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06-13-23 City Commission Meeting Agenda & Packet Materials
A.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 Juneteenth, Monday, June 19, 2023. There will be no City Commission Meeting on June 20 but garbage pick-up will be on the regularly scheduled day.(Maas) E.FYI F.Commission Disclosures G.Consent THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, June 13, 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.1 Accounts Payable Claims Review and Approval (Waters) G.2 Authorize City Manager to sign Grant Agreement with Bozeman Co-Housing (Munfrada) G.3 Authorize the City Manager to Sign a Contract Agreement with the Montana Department of Environmental Quality to Receive Funding for a Pilot Energy Efficient Appliance Rebate Program(Meyer) G.4 Authorize City Manager to Sign Use License with Sime Construction for Bozeman Sports Park(Jadin) G.5 Authorize the City Manager to Sign a Professional Services Agreement with Kate Burnaby Wright and Latta Consultants for the Local Food System Preliminary Mapping Project(Chipouras) G.6 Authorize City Manager to sign Professional Services Agreement with Human Resource Development Council District IX for Affordable Housing Program Management(Munfrada) G.7 Authorize the City Manager to Sign Amendment 1 to the Interlocal Agreement between City of Bozeman, City of Missoula, and Missoula County to Inform the Development of a Green Tariff(Meyer) G.8 Authorize the City Manager to Sign Task Order Number 6 to the Right-of-way Acquisition Project for Fowler Avenue Right-of-way Pre-Acquisition Appraisals(Murray) G.9 Resolution 5493 Authorizing Change Order 1 to the 2023 Downtown Sewer Renovations Project(Gamradt) G.10 Resolution 5498 Authorizing Change Order 2 to the 2023 Downtown Sewer Renovations Project(Gamradt) G.11 Ordinance 2139 Final 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) 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.Action Items I.1 Continuation of the Gran Cielo II Annexation Requesting Annexation of 81.468 Acres and Amendment of the City Zoning Map for the Establishment of a Zoning Designation of R-4 (Residential High Density District), Application 22090( Rogers) 2 I.2 Fiscal Year 24 City Manager's Recommended Budget Presentation: Introduction, General Fund and Special Revenue Funds (Excluding Assessment Districts)(Hodnett) J.FYI / Discussion K.Adjournment City Commission meetings are open to all members of the public. If you have a disability that requires assistance, please contact our ADA Coordinator, Mike Gray, at 582-3232 (TDD 582-2301). Commission meetings are televised live on cable channel 190 and streamed live at www.bozeman.net. In order for the City Commission to receive all relevant public comment in time for this City Commission meeting, please submit via www.bozeman.net or by emailing agenda@bozeman.net no later than 12:00 PM on the day of the meeting. Public comment may be made in person at the meeting as well. 3 Memorandum REPORT TO:City Commission FROM:Mike Maas, City Clerk Kira Peters, Assistant City Manager Jeff Mihelich, City Manager SUBJECT:City Offices Will be Closed for Juneteenth, Monday, June 19, 2023. There will be no City Commission Meeting on June 20 but garbage pick-up will be on the regularly scheduled day. MEETING DATE:June 13, 2023 AGENDA ITEM TYPE:Administration RECOMMENDATION:City Offices Will be Closed for Juneteenth, Monday, June 19, 2023. There will be no City Commission Meeting on June 20 but garbage pick-up will be on the regularly scheduled day. STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:Ordinance 2100 recognized and designated June 19th as Juneteenth National Freedom Day and designated June 19 as the local Juneteenth holiday. UNRESOLVED ISSUES:none ALTERNATIVES:none FISCAL EFFECTS:none Report compiled on: June 2, 2023 4 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:June 13, 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: June 8, 2023 5 Memorandum REPORT TO:City Commission FROM:Renata Munfrada, Community Housing Program Coordinator David Fine, Economic Development Program Manager Brit Fontenot, Economic Development Director SUBJECT:Authorize City Manager to sign Grant Agreement with Bozeman Co-Housing MEETING DATE:June 13, 2023 AGENDA ITEM TYPE:Agreement - Agency/Non-profit RECOMMENDATION:Authorize City Manager to sign Grant Agreement with Bozeman Co-Housing. 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:Bozeman Co-Housing is an intentional community of 43 households located at 3120 Wagon Wheel Road. Each household will own their own condominium home with private living space, kitchen, and outdoor space. The community will share a garden and a Common House with a kitchen dining area, and laundry facilities. Community members can cook and grow food together, and make decisions through equitable and shared governance. The community will add diversity to South Bozeman, where there are few low-cost homes available. Bozeman Co-Housing agreed by consensus to create two deed restricted affordable homes with the community. The two subsidized homes will be integrated into the community and will appear like all the other homes. The community will offer a high-quality housing option with many added benefits for low-income residents. Bozeman Co-Housing worked with HRDC to qualify buyers with demonstrated need. The homes will target families with approximately 90- 120% of the Area Median Income with less than $105,000 in assets. Bozeman Co-Housing will use a membership process to ensure that the buyer understands the community and its commitments. Bozeman Co-Housing will create 99-year deed restrictions to ensure the two subsidized units will remain affordable for generations to come. The deed restrictions: require buyers to use the home as the primary residence; limit appreciation to 3% per year; limit the amount of capital improvements to 6 10% of the initial cost; require the home to be resold to a qualified first-time homebuyer earning less than 120% AMI; and give Bozeman Co-Housing first right of refusal to buy the home of mortgage default is imminent. The intentional community was formed with the aim of building sustainable homes that are affordable to residents in Bozeman. The development will provide more affordable housing options in the area by adding 41 "missing middle" housing units, in addition to the two deed restricted units. Bozeman Co-Housing has applied for a $38,020 grant from the Community Housing Program to help subsidize the cost of the affordable homes for households with incomes of approximately 80% AMI. UNRESOLVED ISSUES:None. ALTERNATIVES:As recommended by the City Commission. FISCAL EFFECTS:The Grant Agreement with Bozeman Co-Housing, in the amount of $38,020, will come out of the Community Housing Program FY23 budget. Attachments: Grant Agreement Bozeman Co-Housing 05.31.2023.pdf Bozeman_Cohousing_cover_letter.pdf Bozeman Co-Housing Affordabe Housing Plan.pdf Bozeman Cohousing Community Fund Grant Report.pdf Bozeman_Cohousing_Budget.pdf Bozeman_Cohouing_Letter_of_Support-Cadius.pdf Cohousing Studio Condo Ad.pdf Cohousing Two-bedroom Condo Ad.pdf Report compiled on: May 31, 2023 7 FY 2022 Grant Agreement – Bozeman Co-Housing Page 1 GRANT AGREEMENT Bozeman Co-Housing Project THIS AGREEMENT is made and entered into this ____ day of __________, 20__ by and between the City of Bozeman, Montana, a self-governing municipal corporation located at 121 N. Rouse Ave., Bozeman MT 59771 (“City”) as GRANTOR and Bozeman Co-Housing, LLC, an intentional community of forty three households located at 3120 Wagon Wheel Drive, Bozeman, Montana 59715 as GRANTEES. WHEREAS, on October 17, 2005 the Bozeman City Commission adopted Resolution No. 3866 establishing policies for the granting of funds from the City of Bozeman to a requesting entity; and WHEREAS, Bozeman Co-Housing submitted a proposal to the City Commission for a grant of $38,020 for investment of Community Housing Fund grant dollars to act as a perpetual subsidy of public funds for two home priced at 100% of Area Median Income (the “Project) that would benefit from the City funding; and WHEREAS, on November 17, 2021 the Community Affordable Housing Advisory Board (CAHAB) unanimously recommended that the City Commission approve the grant request in the amount of $38,020 of public investment to offset a portion of the original purchase price and be retained in the value of the two permanently affordable homes in the Bozeman Co-Housing Project. THE PARTIES AGREE: 1. The Grant. The City will grant and release to Bozeman Co-Housing a sum of up to thirty eight thousand and twenty dollars ($38,020) from its Community Housing Fund (the “Grant”) pursuant to the payment terms in Section 3. 2. Use of Grant Funds. Grant funds in the amount of up to thirty eight thousand and twenty dollars ($38,020) will be used by Bozeman Co-Housing for the sole purpose of subsidizing two deed-restricted homes to assist in reaching a greater level of affordability for buyers of those units as described in the proposal submitted by Bozeman Co-Housing to the City Commission, attached hereto as Exhibit A and by this reference incorporated herein. Bozeman Co-Housing will enter into an affordability covenant with the City of Bozeman. 8 FY 2022 Grant Agreement – Bozeman Co-Housing Page 2 3. Payment of Grant Funds a. Bozeman Co-Housing may request the Grant funds during the fiscal year ending June 30, 2023 as needed by providing proof of expenses paid. Acceptable forms of proof of payment shall be as determined in the sole discretion of the City’s Director of Finance. b. Any funds from the Grant not awarded during the fiscal year ending June 30, 2023 will remain in the City’s Community Housing Fund and will be available for other appropriation. 4. Grantee Representations a. Bozeman Co-Housing has familiarized itself with the nature and extent of this Agreement and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect Grantee’s performance under this Agreement. b. Bozeman Co-Housing represents and warrants to City that it has the experience and ability to perform its obligations under this Agreement; that it will perform said obligations 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 for Bozeman Co-Housing to meet this warranty. c. Bozeman Co-Housing represents and warrants to City that the Grant funds are necessary to accomplish the financial requirements of the Project. 5. Reports/Accountability/Public Information. If Grant funds are paid to Bozeman Co- Housing, Bozeman Co-Housing will provide to the City a formal written report that includes, at a minimum, the proof of expenses paid. Bozeman Co-Housing agrees to develop and/or provide such other documentation as requested by the City demonstrating Bozeman Co-Housing’s compliance with the requirements of this Agreement. Bozeman Co-Housing must 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 monies provided to Bozeman Co-Housing pursuant to this Agreement were used in compliance with this Agreement and all applicable provisions of federal, state, and local law. Bozeman Co-Housing will retain such records for seven years after 9 FY 2022 Grant Agreement – Bozeman Co-Housing Page 3 receipt of final payment under this Agreement unless permission to destroy them is granted by the City. Bozeman Co-Housing shall not issue any statements, releases or information for public dissemination without prior approval of the City. 6. Independent Contractor Status. The parties agree that Bozeman Co-Housing, its agents, employees, contractors, or subcontractors, are independent contractors for purposes of this Agreement and are not to be considered employees or agents of the City for any purpose. Bozeman Co-Housing and its agents, employees, contractors, or subcontractors, are 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. Bozeman Co-Housing, its agents, employees, contractors, or subcontractors, are not authorized to represent the City or otherwise bind the City in any way. 7. Default and Termination. If Bozeman Co-Housing fails to comply with any condition of this Agreement at the time or in the manner provided for, the City may terminate this Agreement if the default is not cured within fifteen (15) days after written notice is provided to Bozeman Co-Housing. The notice will set forth the items to be cured. If this Agreement is terminated pursuant to this Section, Bozeman Co-Housing will repay to the City any Grant funds already delivered to Bozeman Co-Housing for the Project. 8. Limitation on GRANTEE’s Damages; Time for Asserting Claim a. In the event of a claim for damages by Bozeman Co-Housing under this Agreement, Bozeman Co-Housing’s damages shall be limited to contract damages and Bozeman Co-Housing 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 Bozeman Co-Housing wants to assert a claim for damages of any kind or nature, Bozeman Co-Housing must first 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 ninety (90) days of the facts and circumstances giving rise to the claim. In the event Bozeman Co- Housing fails to provide such notice, Bozeman Co-Housing shall waive all rights to assert such claim. 9. Representatives 10 FY 2022 Grant Agreement – Bozeman Co-Housing Page 4 a. City’s Representative. The City’s Representative for the purpose of this Agreement shall be Kristin Donald 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, Bozeman Co-Housing may direct its communication or submission to other designated City personnel or agents and may receive approvals or authorization from such persons. b. GRANTEE’s Representative. Bozeman Co-Housing’s Representative for the purpose of this Agreement shall be Karen Kitchen or such other individual as Bozeman Co-Housing shall designate in writing. Whenever direction to or communication with Bozeman Co-Housing is required by this Agreement, such direction or communication shall be directed to Bozeman Co-Housing’s Representative; provided, however, that in exigent circumstances when Bozeman Co-Housing’s Representative is not available, City may direct its direction or communication to other designated Bozeman Co-Housing personnel or agents. 10. Indemnity/Waiver of Claims/Insurance. To the fullest extent permitted by law, Bozeman Co-Housing agrees to defend, indemnify and hold the City and its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) harmless against all third party claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, which arise out of, relate to or result from Bozeman Co-Housing’s (i) negligence, or (ii) willful or reckless misconduct. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). Bozeman Co-Housing’s indemnification obligations under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against Bozeman Co-Housing to assert its right to defense or indemnification under this Agreement or under Bozeman Co-Housing’s applicable insurance policies required below the 11 FY 2022 Grant Agreement – Bozeman Co-Housing Page 5 indemnitee 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 Bozeman Co-Housing was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Bozeman Co-Housing also waives any and all claims and recourse against the City or its officers, agents or employees, 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 his 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. In addition to and independent from the above, Bozeman Co-Housing shall at Bozeman Co-Housing’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 Bozeman Co-Housing in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by Bozeman Co-Housing in this Section unless and to the extent coverage for such liability is not reasonably available. 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 and Bozeman Co-Housing 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 The City of Bozeman, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General Liability policy. The insurance and required endorsements must be in a form 12 FY 2022 Grant Agreement – Bozeman Co-Housing Page 6 suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. The City must approve all insurance coverage and endorsements prior to delivery of Grant funds to Bozeman Co-Housing. Bozeman Co-Housing shall notify City within two (2) business days of Bozeman Co-Housing’s receipt of notice that any required insurance coverage will be terminated or Bozeman Co-Housing’s decision to terminate any required insurance coverage for any reason. 11. Nondiscrimination and Equal Pay. Bozeman Co-Housing agrees that all hiring by Grantee of persons performing this Grant Agreement shall be on the basis of merit and qualifications. Bozeman Co-Housing will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. Bozeman Co-Housing 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. Bozeman Co-Housing 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). Bozeman Co-Housing must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Bozeman Co-Housing shall require these nondiscrimination terms of its subcontractors providing services under this Grant Agreement. 12. Public Meetings and Access to Public Records a. Meetings of Bozeman Co-Housing that pertain to the receipt or expenditure of Grant funds from the City are subject to the open meeting requirements of Montana law, including those set forth in Title 7, Chapter 1, Part 41, MCA and Title 2, Chapter 3, MCA. To ensure compliance, Bozeman Co-Housing will provide agendas for meetings that pertain to the receipt or expenditure of Grant funds covered by this Agreement to the City Clerk’s office no later than 72 working hours prior to meeting for notice on the City’s official posting board and any other sites deemed reasonable by the Clerk’s office. In addition, meeting minutes will be kept by Bozeman Co- Housing and provided to the City Clerk’s office no later than 90 days after the meeting. These minutes shall be posted and made available to the public by the City 13 FY 2022 Grant Agreement – Bozeman Co-Housing Page 7 Clerk’s office except for those minutes taken during a closed meeting in accordance with 2-3-203, MCA. Minutes taken during a closed meeting shall also be provided to the City Clerk’s office but shall be handled in accordance with the City Clerk’s regular executive session protocol and kept private in a secured cabinet. b. In accordance with 7-1-4144, MCA and subject to any applicable legal obligation to protect and preserve individual confidential or private information, upon reasonable request and at reasonable times during normal business hours, Bozeman Co-Housing shall make such records available for inspection and copying by members of the public. Bozeman Co-Housing may charge for such copying in accordance with the policies of the City, which Bozeman Co-Housing hereby adopts for such purposes. c. To determine whether a meeting or part of a meeting may be closed to the public and to determine whether information contained in Bozeman Co-Housing documents is protected by law from disclosure, Bozeman Co-Housing may seek a determination of the City Attorney at no cost to Bozeman Co-Housing. Such request and determination shall not create an attorney-client relationship between Bozeman Co-Housing and the City. 13. Attorney’s Fees and Costs. In the event it becomes necessary for a party to this Agreement 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 shall be entitled to reasonable attorney’s fees and costs, including fees, salary, and costs of in- house counsel to include City Attorney. 14. Integration and Modification. This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Agreement may be considered valid or binding. This Agreement may not be modified except by written agreement signed by both parties. 15. 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 14 FY 2022 Grant Agreement – Bozeman Co-Housing Page 8 court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 16. No Assignment. Bozeman Co-Housing may not subcontract or assign Bozeman Co- Housing’s rights, including the right to Grant payments, or any other rights or duties arising hereunder, without the prior written consent of City. 17. No Third Party Beneficiary. The terms and provisions of this Agreement are intended solely for the benefit of each party and their respective successors and assigns. It is not the parties’ intent to confer third party beneficiary rights upon any other person or entity. 18. Choice of Law. This Agreement shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 19. 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. 20. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance of the Agreement shall continue in effect. 21. Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. 15 FY 2022 Grant Agreement – Bozeman Co-Housing Page 9 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year indicated below. _______________________ Date: __________ Jeff Mihelich, City Manager City of Bozeman _______________________ Date: __________ Karen Kitchen, Member Bozeman Co-Housing, LLC Approved as to form: _______________________ Date: __________ Greg Sullivan, City Attorney City of Bozeman 16 FY 2022 Grant Agreement – Bozeman Co-Housing Exhibit A Exhibit A Grant Proposal 17 Bozeman Cohousing, LLC October 25, 2021 Community Affordable Housing Board 121 Rouse Ave., Bozeman MT 59715 To the members of the Community Affordable Housing Board (CAHAB), I am writing today on behalf of Bozeman Cohousing, LLC to apply for a Community Housing Fund Grant for our new cohousing community. We are asking for $38,020 to help subsidize the cost of two permanently affordable deed restricted condominium homes for households with incomes of approximately 80% of the Area Median Income (AMI). Bozeman Cohousing LLC is run by 40 investor families and future homeowners, many already living and working in the Gallatin Valley. We formed an intentional community with the aim of building sustainable homes that are affordable to residents in Bozeman. We are currently in the City’s review process to approve our final site plan for a new development of 43 homes at 3120 Wagon Wheel Drive. Each family will have their own condominium with a private kitchen. The homes range in size from a 576 sq. ft. studio to a 1,458 sq. ft. three-bedroom townhouse. Community members will also have access to a communal kitchen, shared laundry, community garden plots, and other shared amenities. Since our site design workshop in February 2020, we have been committed to being an example to the wider community in creating affordable housing that can strengthen our community through diversity and inclusion. We have carefully crafted our design and budget to ensure that all our homes are as affordable as possible. Our community will add diversity to south Bozeman, where there are few low-cost homes available. According the 2019 American Community Survey, Bozeman Cohousing is located in the census block in the city with the second highest home values. We will provide more affordable choices in this area by adding 41 “missing middle” housing units, and 2 permanently deed restricted homes. In order to fund these two permanently affordable homes, we have consented to $200,000 in internal subsidies. Half of the money comes from the community members through an increase in home prices. The other half comes from a commitment from our co-developer, Cadius Partners located in Bozeman. Cadius has agreed to lower their percentage of profit to help us meet our affordability goals. We have reserved two upstairs flats with two-bedrooms and one bathroom for the deed- restricted homes. These condos are integrated into buildings with market rate homes, located adjacent to our common house at the heart of the community. We chose this location to ensure that families who buy these affordable homes feel included as part of community life and activities. Living in these homes in a cohousing community will have added benefits for 18 Bozeman Cohousing, LLC homeowners, providing a support system for parents, children, singles, or aging residents who might lack extended family in the region. Cohousing helps to prevent the epidemic of loneliness and isolation which negatively impacts the mental health and well-being of many Americans. Residents will also benefit from the high environmental and acoustic performance of the homes which reduce monthly energy costs and ensure privacy. Overall, this will be a very high-quality housing option for low-income residents. Bozeman Cohousing aims to make these homes as affordable as possible for low-income families with incomes around 80% of AMI. In order to do so we would need to lower the cost of these homes from their current market price of $372,544 to $253,534, the 2021 recommended price for a two-bedroom home. This would require a minimum subsidy of $119,010 each, totaling $238,020 for both homes. We are requesting a grant of $38,020 from the Community Housing Fund to make up the difference of the $200,000 of subsidies we have already allotted in our budget. In order to ensure that these homes remain permanently affordable, we will use deed restrictions to limit appreciation and ensure the homes remain in ownership of low-income buyers. In the deed restrictions, we plan to require that buyers use this home as their primary residence, that capital improvements are limited, that appreciation is limited to 3% a year, that homes be sold to a buyer qualified by AMI, and that Bozeman Cohousing has first right of refusal in the case of a mortgage default. We will work with the HRDC to qualify the original buyer and future home buyers to a set AMI. We will also use a membership process to ensure that all buyers, including low income buyers, understand the community’s responsibilities and commitments, and that Bozeman Cohousing will be a good fit for their lifestyle. This proposal is based on our current house price estimates. If house prices increase during construction, or if we do not receive the full Community Housing Fund Grant we may need to revise the details into a contingency plan. This may include: raising prices on the affordable units to target 90% AMI rather than 80% AMI buyers; subsidizing a studio instead of one of the two-bedroom homes; reducing the number of subsidized units; and/or raising additional external grant funding from foundations. We have begun to approach foundations already, but have yet to receive any grants for our project. We are about to receive final city approvals and break ground. We are also in the process of requesting sub-contractor bids on the project. We expect by the end of December to have a final budget, relatively final home prices, and to have started construction. The project will take about 18 months to build with the first homes available after about 12 months. We expect the project to be complete and fully occupied during the Summer of 2023. In the meantime, we will work with the HRDC to set up a process for recruiting and qualifying potential buyers for the deed restricted units. 19 Bozeman Cohousing, LLC We request that you approve our grant application for $38,020 in this funding cycle so that we can move forward with the security of knowing we have enough subsidies to target homebuyers at 80% of AMI. While a partial grant may be of some use in lowering the cost of homes, it would not be enough to implement this exact proposal. We would still build affordable units, but they might be smaller, fewer, or for a higher income group as specified in our contingency plan. While receiving the funding quickly would be useful for meeting the equity requirements for our loan, we could possibly wait until Fall 2022 to receive the funds. The funds would be needed before December 2022 at which time homebuyers would need to begin to qualify for mortgages and close on their homes. We hope some flexibility in the timing of receiving the funds will help you to be able to approve our grant request. Bozeman Cohousing is committed to creating affordability in our community and welcome your support in helping us achieve that goal. We ask that you approve our grant request and help us create two new permanently affordable homes in south Bozeman. Sincerely, Susanne Cowan Affordable Housing Committee Bozeman Cohousing, LLC 318 S. 9th Ave., Bozeman, Montana 59715 susanne.e.cowan@gmail.com 714-595-2933 (mobile) 20 Affordable Housing Program Draft March 14, 2023, Not for Public Release 21 •The initial house price is subsidized to be affordable to buyers that earn approximately 100%-120% of area median income (AMI). The subsidy comes from Bozeman CoHousing LLC, our developer Cadius and the City of Bozeman. What is deed restricted affordable housing? •A deed on the home states that when you sell the home, you may set the price at no more than 3% appreciation per year from initial price, plus approved capital improvement costs. It must be sold to a buyer that meets the financial requirements. •The home must be the principal residence for the owner and not used as rental unit. •Minimum of (1) person per bedroom: 2B units are available to a household of 2 or more persons; studio units are available for 1-2 person household. 22 asset qualification Applicants must have less than $75,000 in investments, savings, checking and bonds; inheritances, insurance payments and settlements within 5 years; other personal property that is readily converted to cash. NOT INCLUDING household effects, IRAs, pension and investment accounts that have a penalty for early withdrawal; balances in retirement and college savings accounts; automobiles for personal use. 1 person household: $87,950 2 person household: $100,500 3 person household: $113,100 4 person household $125,650 income qualification: <120% of AMI for Bozeman “first time homebuyer” qualification Per City of Bozeman: ”individual who has had no ownership interest in a principal residence during the three-year period ending with the date of purchase; or a single parent whose only prior home was owned with a former spouse while married; or an individual who is a displaced homemaker and has only owned with a spouse; or an individual who has only owned a principal residence not permanently affixed to a permanent foundation in accordance with applicable regulations; or an individual who has only owned a property that was not in compliance with state, local or model building codes and which cannot be brought into compliance for less than the cost of construction of a permanent structure.” must be able to qualify for a mortgage see available units for pricing Qualifications for deed restricted homes residency qualification Must be a resident of Gallatin County, or nearby community for past 12 months at time of application. 23 Are you a fit for Bozeman CoHousing? •Are you interested in a being part of a community in a neighborhood designed for social interactions? •We are a multigenerational community that welcomes kids and pets. •No tobacco use on campus. •Are you interested in living in an energy efficient home and an eco-conscious neighborhood? •Are you able to share work that supports the community? •Homes ready to purchase summer and fall of 2023. 24 How to apply for the lottery for deed restricted homes Attend BoCo Affordable Housing Webinar March 25, 2023 step 1: Learn about BoCo and our Affordable Housing Program •Complete qualification application from Bozeman CoHousing •Pre-qualify for mortgage with a lender •Attend HRDC home buyer education course •(3 options between March 20 and May 9) step 2: Qualifications •Deadline for applications June 1, 2023; lottery will take place in June. step 3: Enter Bozeman CoHousing Affordable Housing Lottery 25 Bozeman CoHousing Membership •Pay $100 Explorer Fee •Attend site tour or in-person social event •Observe a members meeting •Attend Explorer orientation •Read programs and watch videos in Explorer Checklist If selected in lottery, become a Bozeman CoHousing Explorer and complete membership steps within one month Become a BoCo member! •Pay $400 membership fee OR have a payment plan within one week of home offer. •Once membership fee is paid, will be a voting member of BoCo LLC •Pay downpayment for home (3-5% recommended, but depends on mortgage terms) 26 •studio —576 sf •upstairs unit with private deck (view to west) •standard finishes; includes kitchen appliances •does not include garage or carport •shared common house with kitchen and dining, group laundry, terrace, kids space, living space, two guest rooms, community gardens, workshop $ 221,490 home price $ 205 monthly COA fees includes utilities: water, garbage, internet and basic cable ($153 without utilities for mortgage qualification) Studio Unit # 42 27 2B unit #35 or #36 •2 bedroom, 1 bath —898 sf •ground floor unit with private backyard and covered front patio •standard finishes; includes kitchen appliances •does not include garage or carport •shared common house with kitchen and dining, group laundry, terrace, kids space, living space, two guest rooms, community gardens, workshop $ 252,500 home price $ 286 monthly COA fees includes utilities: water, garbage, internet and basic cable ($214 without utilities for mortgage qualification) 28 City of Bozeman, Community Housing Fund Report Bozeman Cohousing, LLC 318 S. 9th Ave., Bozeman, Montana 59715 Contact: Susanne Cowan susanne.e.cowan@gmail.com 714-595-2933 March 16, 2023 29 Bozeman Cohousing Bozeman Cohousing is an intentional community of 43 households located at 3120 Wagon Wheel Road. We have pre- sold about 40 of these homes to families who are now equal members of the LLC. As investors and future home-owners, we have collaborated in the design, finance, and development of this project from the ground up using consensus-based workshops and meetings. 30 Bozeman Cohousing Each household will own their own condominium home with private living space, kitchen, and outdoor space. We will share a garden and a Common House with a kitchen dining area, and laundry facilities. We will cook and grow food together, and make decisions through equitable and shared governance. 31 Affordable Housing in South Bozeman Our community will add diversity to South Bozeman, where there are few low-cost homes available. According the 2019 American Community Survey, Bozeman Cohousing is located in the census block in the city with the second highest home values. We will provide more affordable choices in this area by adding 2 permanently deed restricted homes. Bozeman Cohousing 32 Affordable Housing Principles From our first Site Planning workshop in February 2020, Bozeman Cohousing members have aimed to be “an example to the wider community” on issues like affordability. Our affordable housing plan aims to: Demonstrate leadership and action in response to escalating home prices in Bozeman. Strengthen our community through inclusivity and economic diversity 33 Affordable Housing Plan Bozeman Cohousing agreed by consensus to create 2 deed restricted permanently affordable homes within our community. Currently we plan to subsidize 2 upstairs two-bedroom condos shown on this plan in red circles. 34 Affordable Homes The two subsidized homes will be integrated into the community and will appear like all the other homes. Shown in the center, one home is a first-floor condos with front porch and a back yard. 35 Benefits of Cohousing Bozeman Cohousing will offer a high-quality housing option with many added benefits for low-income residents. Helps to prevent the epidemic of loneliness which negatively impacts the mental health of many Americans. High environmental and acoustic performance reduces monthly energy costs and ensures privacy. Provides a support system for parents, children, singles, or aging residents. 36 Qualifying Buyers We will work with HRDC to qualify buyers with demonstrated need. We use a membership process to ensure that the the buyer understands the community and its commitments. We will target families with approximately 90-120% of the average area median income (AMI) with less than $105,000 in assets. 37 Cost Increases Bozeman Cohousing has been able to maintain two affordable units despite price increases of 2.5% across the board and 12% on new buyers. The Oct 2021 price of a two-bedroom downstairs flat was: $402,544 On March 2023 we voted to increase the price for early investors to:$427,237 For new buyers the additional 12% increase would bring the price to:$478,505 Our subsidized price is:$252,500 $482,446 38 Affordable Housing Pricing for Two Bedroom The market price of the downstairs two-bedroom condos is: $427,237 The price for downstairs two-bedroom based on 100% AMI for a two person household with $250 of HOA dues and 7.5% interest will be about : -$252,500 The subsidies needed for home are:$174,737 39 Affordable Housing Pricing for Studio The market price of the studio condo is: $273,490 The subsidized price for the studio is at about 96% AMI with $200 of HOA dues and 7.5% interest will be about : -$210,210 The minimum subsidies for this home are:$ 63,280 40 Affordable Housing Subsidies The minimum subsidies needed for the two homes will be about:$238,017 Currently we have raised these subsidies from the following sources: Bozeman Cohousing, LLC $ 99,999 The co-developer Cadius Partners of Bozeman $ 99,998 City of Bozeman Community Housing Fund $ 38,020 41 Deed Restrictions Bozeman Cohousing will create 99-year deed restrictions to ensure these home remain permanently affordable in perpetuity. These restrictions: Limit appreciation to 3% a year Require buyers to use the home as their primary residence Limit amount of capital improvements to 10% of initial cost Give Bozeman Cohousing first right of refusal to buy home if mortgage default is imminent Require home to be resold to a qualified first-time buyer with less than 120% AMI 42 Projected Timeline First Homes available for Sale and Move In Recruitment and Qualification of Buyers for Deed Restricted Units Project Complete. All homes and common house will be occupied. June/July 2023 January 2024Spring/Summer 2023 43 Bozeman Coho Dev Budget for AH application.xlsx BOZEMAN COHOUSING 29-Sep-21 BOZEMAN, MT 1:18 PM P & L SUMMARY PRELIMINARY PROFORMA BUDGET This budget is preliminary and has been prepared for discussion purposes only. Costs are estimates and may not be accurate. This budget will be revised as the design is finalized and more accurate costs estimates are obtained. Prepared:KMc: K-O 1/6/20 Updated:KMc:9/22/91 ACTUAL ORIGINAL CURRENT %AS OF REVENUE:NOTES BUDGET REVISIONS BUDGET OF SALES 08/31/21 RESIDENTIAL SALES Total Units=43 18,000,000$ 2,812,680$ 20,812,680$ 95.8%- LOCATION PREMIUMS 9 50,000 80,000$ 130,000$ 0.6%- OPTIONS & UPGRADES 40%5 140,000 -$ 140,000$ 0.6%- GARAGES 20 30,000$ - 600,000 600,000$ 2.8%- ATT GARAGES 2 30,000$ 8 - 60,000 60,000$ 0.3%- CARPORTS 7 20,000$ 10 - 140,000 140,000$ 0.6%- 6 - - 0.0%- CREDIT FOR AFFORDABLE HOUSING 7 - (200,000) (200,000)$ -0.9%- RENTAL INCOME 3 - 42,098 42,098$ 0.2%42,098 MISC INCOME 4 - 10,200 10,200$ 0.0%10,200 TOTAL SALES REVENUE 18,190,000$ 3,544,978 21,734,978$ 100.0%52,298$ COSTS:Budgeted Expenses Amount 01 ADMIN., LEGAL, & MISC.124,000 8,195 132,195 0.6%40,917 ADMIN., LEGAL, & MISC.132,195$ 02 PERMITS & FEES 371,580 131,400 502,980 2.3%66,590 PERMITS & FEES 502,980$ 03 DESIGN & ENGINEERING 579,125 114,865 693,990 3.2%489,645 DESIGN & ENGINEERING 693,990$ 04 COMMON FURNISHINGS Group Allowance 20,000 0 20,000 0.1%- COMMON FURNISHINGS 20,000$ 05 LAND ACQUISITION 1,902,050 (14,389)1,887,661 8.7%1,887,661 LAND ACQUISITION 1,887,661$ 06 MARKETING Group Allowance 605,000 (193,306)411,694 1.9%24,660 MARKETING 411,694$ 07 PROJECT MANAGEMENT 385,000 (30,000)355,000 1.6%32,627 PROJECT MANAGEMENT 355,000$ 08 FINANCING 881,576 133,004 1,014,580 4.7%- FINANCING 1,014,580$ 09 COSTS INCURRED AT CLOSING 1 0 0 0 0.0%CONSTRUCTION 14,035,242$ 10 CONSTRUCTION 10,497,100 3,538,142 14,035,242 64.6%- CONTINGENCY 500,000$ 0 - 0.0% 12 CONTINGENCY 500,000 0 500,000 2.3% 0.0%- TOTAL DEVELOPMENT COSTS 15,865,431 3,687,910 19,553,341 90.0%2,542,100 PROJECTED DISTRIBUTABLE CASH 2 2,324,569$ (142,932)$ 2,181,637$ 10.0% 21,734,978$ DISTRIBUTABLE CASH TO BE ALLOCATED AS FOLLOWS: DEVELOPER FEE 50.0%1,090,819$ 50.0% COMMUNITY-TO THE HOA for additional capital improvements 25.0%85,409$ 3.9% Post-move-in solar elements 5 460,000$ 21.1% INVESTORS & PARTICIPATING NOTEHOLDERS 25.0%545,409$ 25.0% NOTES: 1 All closing costs at unit closings to be paid by Buyers 2 Distributable Cash may vary depending on requirements of the construction lender, amount of investment, and final actual costs. 3 Rental income, being a Revenue stream, was moved to this sheet on 10/12/2020. Expected income increased by $5K on 4/1/21. 4 Added 10/12/2020. Includes Explorer and Membership fees received, payments for Getting It Built workshop 5 Moved $460K of total solar budget to post-construction period, to be paid for with the Community's share of Distributable Cash Prepared by Kathryn McCamant, CoHousing Solutions, Inc © 2016 CoHousing Solutions, Inc. $132,195 $502,980 $693,990 $20,000 $1,887,661 $411,694 $355,000 $1,014,580 $14,035,242 $500,000 Budgeted Expenses ADMIN., LEGAL, & MISC. PERMITS & FEES DESIGN & ENGINEERING COMMON FURNISHINGS LAND ACQUISITION MARKETING PROJECT MANAGEMENT FINANCING CONSTRUCTION 44 23 Apex Drive, Bozeman, Montana 59718 27 October 2021 Community Affordable Housing Advisory Board of Bozeman, Montana ATTN: David Fine 121 N. Rouse Ave Bozeman, MT 59715 Dear CAHAB, Cadius Partners and CP Build are pleased to be partnering with Bozeman CoHo, LLC to create the Bozeman Cohousing Community which is bringing a new model of desperately needed middle-class housing for families that live and work in Gallatin Valley. I was particularly impressed when the community asked me to match them in donating $100,000 ($200,000 total) to subsidize two, deed-restricted homes, to assist in reaching a greater level of affordability for the buyers of those units. I have also been impressed that the community has stuck with this pledge despite the rising cost of construction and housing in general in the valley showing a true commitment to their neighbors in the challenging building climate. The Bozeman Cohousing community members are individually subsidizing on average $2,500 per household to make these homes more affordable. While it is not a lot of homes, it is rare to find market-rate homebuyers voluntarily contributing their own funds to help with affordability for others in their community, and I am proud to join them in this effort. Sincerely, Gregory Allen President 45 STUDIO CONDO SALES PRICE: $210,210 ASSOCIATION DUES: $205 a month Studio condo in Bozeman CoHousing with one ¾ bath with shower, about 576 square feet. Does not include carport or garage. Upstairs unit with private west-facing deck. Entry from a shared east-facing deck. Standard finishes include quartz countertops and apartment sized kitchen appliances. Must meet first time home buyer, income qualifications and asset caps. Must be owner occupied. For more information see: https://bozemancohousing.com/ affordable-housing/ REF. REF. REF. A4.83 A4.84 2 CAR GARAGE 2 CAR GARAGE 2 CAR GARAGE 2 CAR GARAGE 3 CAR CARPORT 36' - 6"3' - 0"127' - 6" A4.8 2 A4.8 1 A4.8330' - 0"71' - 1 1/2" 576 SF E 1/1 E1/1 E1/1 A4.84 1:122:12KITCHEN LIVING / DINING BEDROOM BATH. KITCHEN LIVING / DINING BEDROOM BATH. KITCHEN LIVING / DINING BEDROOM BATH. DECK DECK DECK SHARED DECK A4.8 2 A4.8 1 2:12 2:12 2:12 1:122:12CRICKET, TYP. Architect: STUDIO CO+HAB, LLC 914 W Babcock St BOZEMAN, MT 59715 651.336.0394 erik.bonnett@gmail.com Sheet Title: Date Drawn By Project Number FORMAL SITE PLAN SUBMITTALM.B & E.B Civil: MADISON ENGINEERING 895 Technology Blvd #203 BOZEMAN, MT 59718 406.586.0262 chris@mad-eng.com Landscape Architect: WGM GROUP. 109 E Main St suite b BOZEMAN, MT 59715 406.728.4611 lracow@wgmgroup.com Structural: IMEG 108 West Babcock St BOZEMAN, MT 59715 406.582.9901 Ty.R.Monks@imegcorp.com MEP: CDS ENGINEERING 7540 Churchill Rd, MANHATTAN, MT 59741 406.282.7082 csmit@cdsiengineering.com 3/5/2021 3:00:28 PM A3.10 Buidings floor & roof plan Building XII BozemanCohousingBozeman Coho, LLC 3/4/2021 1904BOZ 3120 Wagonwheel Rd.Bozeman, MT, 59715 FORMAL SITE PLAN SUBMITTAL 1/8" = 1'-0"1BUILDING XII - 1st floor 1/8" = 1'-0"2BUILDING XII - 2nd floor 1/8" = 1'-0"3BUILDING XII - Roof floor 46 Bozeman CoHousing Affordable Housing Guidelines, 2023 What is Bozeman CoHousing? Bozeman CoHousing is a form of neighborhood where we aim to live together and know each other personally by cooking, gardening, and recreating together in our common spaces. We have private homes and kitchens. Our community is committed to equitable shared governance and sustainability. Membership in our community includes a time commitment to care for our shared spaces. We are a multigenerational community that welcomes kids and indoor pets. What is limited equity, deed restricted affordable housing? This home is priced below market rate by using subsidies from Bozeman CoHousing LLC, our developer Cadius Partners, and the City of Bozeman. These subsidies reduce the cost of the home to be affordable to buyers in households that earn approximately 95%-120% of area median income (AMI). The prices were calculated to ensure that with owners’ association dues, insurance, and interest, your monthly costs do not exceed 1/3 of your income. In order to keep these homes affordable long term for resale buyers, a deed restriction is placed on the home for thirty or more years. This deed states that when you sell the home, you may set the price at no more than 3% appreciation per year from initial price, plus approved capital improvement costs. The home must be sold to a first-time home buyer that meets the income restriction and would use it as a principal residence. What is the benefit of limited equity, deed restricted housing? This form of ownership helps households to find stable homes with predictable expenses, unlike the uncertainty of renting. It provides an entry into the housing market for middle-income buyers that may otherwise be unable to afford a home. It also allows households to build equity through appreciation and paying off your mortgage. When you sell you would keep your equity and a percentage of the home’s increased value. How can I qualify for affordable housing in Bozeman CoHousing? Step 1: Attend an Orientation at the Bozeman Cohousing Affordable Housing Webinar - April 16th at 3:30 – 6:00 pm - April 22nd at 10:00am – 12:30pm Step 2: QUALIFICATIONS • Complete qualification application from Bozeman CoHousing • Pre-qualify for mortgage with a lender • Show a certificate of completion from a home buyer education course such as by: • HRDC: April 15 9:00 a.m.–4:30 p.m, or May 8 and 9 5:30– 9:00 p.m. - Neighborworks Montana - Homeword.org STEP 3: Enter Bozeman CoHousing Affordable Housing Lottery • Deadline for applications is Saturday June 3, 2023 at midnight. • The lottery will take place in June. To learn more about affordable housing at Bozeman Cohousing, visit our website: https://bozemancohousing.com/affordable-housing/ For questions you may email life@bozemancohousing.com. 47 Bozeman CoHousing Affordable Housing Guidelines, 2023 Household Eligibility Guidelines • Must be a local resident for at least 12 months in one or more of the following counties in Southwest Montana: Gallatin, Park, Meagher, Broadwater, Jefferson, or Madison. • The home must be the principal residence for the owner and not used as rental unit. Residents should plan to live in the home at least ten months per year. Renting part of the home or short-term rentals will not be allowed without approval from Bozeman CoHousing Condo Owners Association (COA). Even if short term rentals are approved, they would only be allowed under the restrictions set by the COA and other community agreements. At this time that would mean less than 30 days per year. If owners are not using their home as a principal residence, they would be asked to sell their home to an income qualified first time home buyer who would be a principal resident. • Be a first-time homebuyer as defined by the City of Bozeman: An “individual who has had no ownership interest in a principal residence during the three-year period ending with the date of purchase; or a single parent whose only prior home was owned with a former spouse while married; or an individual who is a displaced homemaker and has only owned with a spouse; or an individual who has only owned a principal residence not permanently affixed to a permanent foundation in accordance with applicable regulations; or an individual who has only owned a property that was not in compliance with state, local or model building codes and which cannot be brought into compliance for less than the cost of construction of a permanent structure.” • Must have an appropriate household size to the unit size. Households are eligible if they have a minimum of one person per bedroom and a maximum of two people per bedroom. Households of one person are eligible for the studio home only. Households of two are eligible for the studio or the two-bedroom home. Households of three or four are eligible for the two-bedroom home. Households include all people living in the home including one or more heads of household and children who live there at least 50% of the time. • Must have an income below the maximum set for each household size. These are set to limit households to those below 120% of the median income. These limits are: $87,950 for a 1 person household $100,500 for a 2 person household $113,100 for a 3 person household $125,650 for a 4 person household • Applicants must have less than $105,000 in assets at the time of qualification. These assets include: investments, savings, checking and bonds; inheritances, insurance payments and settlements within 5 years; or other personal property that is readily converted to cash. This does not include household effects, IRAs, pension and investment accounts that have a penalty for early withdrawal; balances in retirement and college savings accounts; or automobiles for personal use. • Must be able to qualify for a fixed mortgage with a debt-income ratio under 43%. While higher debt income ratios are sometimes approved by lenders, to ensure that our buyers will not struggle to pay their mortgage, we will not accept mortgages with housing costs above 33% of or debt ratios above 43%. In your pre-approval letter please ask your lender to specify your debt ratio, status, expiration, terms, conditions, or programs. While there is no minimum income requirement, these homes have been priced for households with 95-100% of the median income; households with incomes over $66,000 are more likely to qualify for a mortgage for these homes. Bozeman Cohousing reserves the right to approve all mortgage financing. 48 TWO BEDROOM CONDO SALES PRICE: $252,500 ASSOCIATION DUES: $286 a month Two bedroom, one bath condo in Bozeman CoHousing with about 898 square feet. Does not include carport or garage. Ground floor home with covered front patio and private backyard (fence not included). Standard finishes include quartz countertops, apartment-sized kitchen appliances and washer and dryer hook ups. Must meet first time home buyer, income qualifications, and asset caps. Must be owner occupied. Minimum household size of two. For more information see: https://bozemancohousing.com/ affordable-housing/ 49 Bozeman CoHousing Affordable Housing Guidelines, 2023 What is Bozeman CoHousing? Bozeman CoHousing is a form of neighborhood where we aim to live together and know each other personally by cooking, gardening, and recreating together in our common spaces. We have private homes and kitchens. Our community is committed to equitable shared governance and sustainability. Membership in our community includes a time commitment to care for our shared spaces. We are a multigenerational community that welcomes kids and indoor pets. What is limited equity, deed restricted affordable housing? This home is priced below market rate by using subsidies from Bozeman CoHousing LLC, our developer Cadius Partners, and the City of Bozeman. These subsidies reduce the cost of the home to be affordable to buyers in households that earn approximately 95%-120% of area median income (AMI). The prices were calculated to ensure that with owners’ association dues, insurance, and interest, your monthly costs do not exceed 1/3 of your income. In order to keep these homes affordable long term for resale buyers, a deed restriction is placed on the home for thirty or more years. This deed states that when you sell the home, you may set the price at no more than 3% appreciation per year from initial price, plus approved capital improvement costs. The home must be sold to a first-time home buyer that meets the income restriction and would use it as a principal residence. What is the benefit of limited equity, deed restricted housing? This form of ownership helps households to find stable homes with predictable expenses, unlike the uncertainty of renting. It provides an entry into the housing market for middle-income buyers that may otherwise be unable to afford a home. It also allows households to build equity through appreciation and paying off your mortgage. When you sell you would keep your equity and a percentage of the home’s increased value. How can I qualify for affordable housing in Bozeman CoHousing? Step 1: Attend an Orientation at the Bozeman Cohousing Affordable Housing Webinar - April 16th at 3:30 – 6:00 pm - April 22nd at 10:00am – 12:30pm Step 2: QUALIFICATIONS • Complete qualification application from Bozeman CoHousing • Pre-qualify for mortgage with a lender • Show a certificate of completion from a home buyer education course such as by: • HRDC: April 15 9:00 a.m.–4:30 p.m, or May 8 and 9 5:30– 9:00 p.m. - Neighborworks Montana - Homeword.org STEP 3: Enter Bozeman CoHousing Affordable Housing Lottery • Deadline for applications is Saturday June 3, 2023 at midnight. • The lottery will take place in June. To learn more about affordable housing at Bozeman Cohousing, visit our website: https://bozemancohousing.com/affordable-housing/ For questions you may email life@bozemancohousing.com. 50 Bozeman CoHousing Affordable Housing Guidelines, 2023 Household Eligibility Guidelines • Must be a local resident for at least 12 months in one or more of the following counties in Southwest Montana: Gallatin, Park, Meagher, Broadwater, Jefferson, or Madison. • The home must be the principal residence for the owner and not used as rental unit. Residents should plan to live in the home at least ten months per year. Renting part of the home or short-term rentals will not be allowed without approval from Bozeman CoHousing Condo Owners Association (COA). Even if short term rentals are approved, they would only be allowed under the restrictions set by the COA and other community agreements. At this time that would mean less than 30 days per year. If owners are not using their home as a principal residence, they would be asked to sell their home to an income qualified first time home buyer who would be a principal resident. • Be a first-time homebuyer as defined by the City of Bozeman: An “individual who has had no ownership interest in a principal residence during the three-year period ending with the date of purchase; or a single parent whose only prior home was owned with a former spouse while married; or an individual who is a displaced homemaker and has only owned with a spouse; or an individual who has only owned a principal residence not permanently affixed to a permanent foundation in accordance with applicable regulations; or an individual who has only owned a property that was not in compliance with state, local or model building codes and which cannot be brought into compliance for less than the cost of construction of a permanent structure.” • Must have an appropriate household size to the unit size. Households are eligible if they have a minimum of one person per bedroom and a maximum of two people per bedroom. Households of one person are eligible for the studio home only. Households of two are eligible for the studio or the two-bedroom home. Households of three or four are eligible for the two-bedroom home. Households include all people living in the home including one or more heads of household and children who live there at least 50% of the time. • Must have an income below the maximum set for each household size. These are set to limit households to those below 120% of the median income. These limits are: $87,950 for a 1 person household $100,500 for a 2 person household $113,100 for a 3 person household $125,650 for a 4 person household • Applicants must have less than $105,000 in assets at the time of qualification. These assets include: investments, savings, checking and bonds; inheritances, insurance payments and settlements within 5 years; or other personal property that is readily converted to cash. This does not include household effects, IRAs, pension and investment accounts that have a penalty for early withdrawal; balances in retirement and college savings accounts; or automobiles for personal use. • Must be able to qualify for a fixed mortgage with a debt-income ratio under 43%. While higher debt income ratios are sometimes approved by lenders, to ensure that our buyers will not struggle to pay their mortgage, we will not accept mortgages with housing costs above 33% of or debt ratios above 43%. In your pre-approval letter please ask your lender to specify your debt ratio, status, expiration, terms, conditions, or programs. While there is no minimum income requirement, these homes have been priced for households with 95-100% of the median income; households with incomes over $66,000 are more likely to qualify for a mortgage for these homes. Bozeman Cohousing reserves the right to approve all mortgage financing. 51 Memorandum REPORT TO:City Commission FROM:Ali Chipouras, Sustainability Program Specialist Natalie Meyer, Sustainability Program Manager Jon Henderson, Strategic Services Director SUBJECT:Authorize the City Manager to Sign a Contract Agreement with the Montana Department of Environmental Quality to Receive Funding for a Pilot Energy Efficient Appliance Rebate Program MEETING DATE:June 13, 2023 AGENDA ITEM TYPE:Agreement - Agency/Non-profit RECOMMENDATION:Authorize the City Manager to sign a contract agreement with the Montana Department of Environmental Quality to receive funding for a pilot energy efficient appliance rebate program. STRATEGIC PLAN:6.3 Climate Action: Reduce community and municipal Greenhouse Gas (GHG) emissions, increase the supply of clean and renewable energy; foster related businesses. BACKGROUND:The Bozeman Climate Plan, Focus Area 1: Healthy, Adaptive, and Efficient Buildings, calls for the improvement of building energy efficiency and beneficial building electrification community-wide. Advancing energy efficiency in buildings directly reduces energy consumption resulting in utility bill cost savings for residents and reductions in greenhouse gas emissions. Beneficial building electrification is the process of transitioning from fossil fuel-based energy sources, such as natural gas, to electricity to power systems and appliances in buildings. Building electrification supports the transition to renewable energy sources for powering the built environment. Energy efficiency is a key component of building electrification by reducing the electric load of buildings, allowing for a more sustainable transition from fossil fuel-based energy sources. The Montana Department of Environmental Quality (DEQ) wishes to enter into a contract agreement with the City of Bozeman to develop and implement a locally administered pilot energy efficient appliance rebate program for City of Bozeman residents. A total of $43,500 will be allocated to the City of Bozeman to provide rebates for heat pump water heater (HPWH) appliances (also known as hybrid electric water heaters). Recent studies by the American Lung Association have shown that combustion appliances that burn fossil fuels (e.g. natural gas) directly in 52 buildings have a negative impact on indoor air quality and health. When residents replace gas water heaters, heat pump water heaters provide an efficient electric option for reducing gas combustion in the home. When residents replace conventional electric water heaters, heat pump water heaters use up to 70% less energy. The adoption of heat pump water heaters can improve indoor air quality in homes, improve energy affordability for electric water heating, and reduce community greenhouse gas emissions. However, heat pump water heater technology has not been widely adopted in Montana and the purchase and installation cost is typically higher than standard water heaters. A local rebate program will reduce the cost barrier for residents to purchase and install heat pump water heaters. In addition to the immediate benefit for residents, the heat pump water heater rebate will serve as a pilot program that will prepare our community for new state and federal incentives . The Inflation Reduction Act (IRA) passed by Congress on August 16, 2022, launched federal incentives for heat pump water heaters. A tax credit is now available for heat pump water heaters that can be combined with local rebate programs. The IRA also established the High-Efficiency Electric Home Rebate Act (HEEHRA) and the Whole House Rebates (HOMES) programs. The HEEHRA program will offer rebates at the point of sale for individual items, including heat pump water heaters. The HOMES program will provide energy efficiency rebates determined by energy savings of the whole house. The Montana Department of Environmental Quality will be responsible for implementing several federal rebate programs in Montana, so the Bozeman heat pump water heater rebate program will serve as a pilot to provide the DEQ with information and lessons learned on implementing consumer rebate programs. In addition, the pilot rebate will advance market adoption of heat pump water heaters in Bozeman by accelerating consumer demand and increasing opportunities for contractors to gain experience with the technology. With funding from Montana DEQ, the City of Bozeman Sustainability Division agrees to develop and implement the rebate program, including the following tasks: Determine the rebate amount(s) Determine the qualifying products within the terms of the contract Provide contractor and residential outreach Administer the rebates Provide follow-up surveys with rebate recipients Submit quarterly and final reports to Montana DEQ The Montana DEQ must allocate its funds for the program by June 30, 2023. The City of Bozeman must expend all program funds by December 31, 2025. 53 Upon approval of the contract agreement, the Sustainability Division will proceed with developing the rebate program. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:Program administration of the rebate program can be managed with existing staff resources. While marketing and outreach are eligible expenses under the DEQ agreement, the Sustainability Division’s approved budget for marketing and outreach may be leveraged in order to maximize the rebates available to City of Bozeman residents. Attachments: Contract Agreement with MT DEQ for Efficient Appliance Rebate Program.pdf Report compiled on: June 1, 2023 54 Bozeman Energy Efficient Appliance Rebate Program DEQ Contract 523017 Contract Revised 11/12 THIS CONTRACT is entered into by and between the State of Montana, Department of Environmental Quality (State), and the City of Bozeman, Montana (Contractor), collectively the Parties, for the purpose of funding implementation of an energy-efficient appliance rebate program. This Contract is entered into under Title 18, Montana Code Annotated (MCA), and the Administrative Rules of Montana (ARM), Title 2, chapter 5. 1. EFFECTIVE DATE, DURATION, AND RENEWAL 1.1. Contract Term. The Contract’s initial term is from the date of contract execution, with the effective date being the date of the latter of the two signatures, through January 31, 2025, unless terminated earlier as provided in this Contract. In no event is this Contract binding on the State unless the State’s authorized representative has signed it. The State’s authorized signatory for this Contract is the Procurement Officer for the Department of Environmental Quality, or their designee. 2. SERVICES 2.1. Contractor shall provide the State the services described in Attachment A Scope of Work, attached hereto and incorporated herein by reference. 2.2. As part of the reporting requirements under the Federal Grant Award, Contractors and any subcontractors must have a unique entity Identification number (UEI) and maintain active and current contractor profiles in the System for Award Management (SAM - https://sam.gov/content/home) for the duration of this Contract. The UEI has replaced the Data Universal Numbering System (DUNS) managed by Dun and Bradstreet. 2.3. Within 30 days after the end of each quarter during which the services required by Contract are performed, Contractor shall submit to the State a written progress report giving a detailed description of the status of the project that is the subject of this Contract. Contractor shall include, at a minimum, in the quarterly progress report the information detailed in Appendix A, Section “Reporting Requirements”. 2.4. Within 45 days after the project is completed, Contractor shall submit a final report to the State that must include, at a minimum the information detailed in Appendix A, Section “Reporting Requirements”. 3. WARRANTIES 3.1. Warranty of Services. Contractor warrants that the services provided will conform to the contract requirements and Attachment A, Scope of Work. The State’s acceptance of services provided by Contractor shall not relieve Contractor from its obligations under this warranty. In addition to its other remedies under this contract, at law, or in equity, the State may require Contractor to promptly correct, at Contractor’s expense, any services failing to meet Contractor's warranty herein. Services corrected by Contractor shall be subject to all the provisions of this contract in the manner and to the same extent as services originally furnished. 4. CONSIDERATION/PAYMENT 4.1. The State agrees to provide Contractor with $43,500.00 to cover program costs as defined by Attachment A Scope of Work. 4.2. Within 30 days of contract execution, DEQ shall transfer funding through the electronic funds transfer. 55 Bozeman Energy Efficient Appliance Rebate Program DEQ Contract No.: 523017 Page | 2 4.3. This Contract is funded in part by a portion of a federal grant from the United States Department of Energy (DOE); (Federal Grant No. EE-0008656 and the Federal Catalog No. CFDA 81.041). 5. ACCOUNTING, AUDIT AND RETENTION OF RECORDS 5.1. Contractor shall maintain books, records, documents, other evidence directly pertinent to performance of work under this Contract and current accounting for all funds received and expended pursuant to this Contract as defined by Generally Accepted Accounting Principles (GAAP). Contractor’s accounting system must be able to allocate costs associated with this Contract in a manner that keeps these costs separate from the costs of other contracts. 5.2. The State, the Legislative Auditor, the Legislative Fiscal Analyst, the United States Department of Energy, and the Comptroller General of the United States, or their authorized representatives, have the right of access to accounting records of Contractor for purposes of making an inspection, audit, excerpts, or transcripts of funds received and expended by Contractor pursuant to this Contract. Contractor shall maintain the records at the address of its liaison in Section 17 and allow the entities in the preceding sentence to have access to them for review and copying during normal business hours for as long as the Contractor retains the records under paragraph 6.5. This Contract may be terminated by the State upon any refusal of Contractor to allow access to such records. 5.3. Contractor shall disclose all information and reports resulting from access to the records maintained in paragraph 6.1 to any of the agencies referred to in paragraph 6.2. 5.4. Audits conducted under this section must be as defined by Generally Accepted Auditing Standards (GAAP) as established by the American Institute of Certified Public Accountants and with established procedures and guidelines of the reviewing or auditing agency. 5.5. All books, records, reports, accounting, and other documents maintained by Contractor under this Contract must be retained for a period of eight years after either the completion date of this Contract, or the conclusion of any litigation, claim, audit or exception relating to this Contract taken by the State or a third party, whichever is later. Contractor may not destroy any records without first offering the records to the State. Contractor may provide documents to the State at the end of the Contract term. 5.6. If an audit shows that Contractor has not complied with federal or state laws and rules concerning the handling and expenditure of the funds received under this Contract, including any grant-related income, Contractor must correct the areas of non-compliance within six months after DEQ receives the audit report. 6. ASSIGNMENT, TRANSFER, AND SUBCONTRACTING Under §18-4-141, MCA, Contractor may not assign, transfer, or subcontract any portion of this Contract without the State's prior written consent. Any subcontracting of services under this Contract must be done in a competitive manner and ensure that subcontractor rates are justified and documented in the Pay Table for Level IV of the Executive Schedule (https://www.opm.gov/policy- data-oversight/pay-leave/). Contractor is responsible to the State for the acts and omissions of all subcontractors or agents and of persons directly or indirectly employed by such subcontractors, and for the acts and omissions of persons employed directly by Contractor. No contractual relationships exist between any subcontractor and the State under this Contract. 56 Bozeman Energy Efficient Appliance Rebate Program DEQ Contract No.: 523017 Page | 3 7. HOLD HARMLESS, INDEMNIFICATION, AND INSURANCE REQUIREMENTS 7.1. Each party shall be responsible and assume liability for its own wrongful or negligent acts or omissions, or those of its officers, agents, or employees to the full extent required by law, and shall indemnify and hold the other party harmless from any such liability. 7.2. Each party shall maintain reasonable coverage for such liabilities, either through commercial insurance or a reasonable self-insurance mechanism under the provisions of Title 2, Chapter 9, MCA, at the minimums prescribed by law. 7.3. Each party shall provide the other party with a certificate of insurance upon request. 8. COMPLIANCE WITH WORKERS' COMPENSATION ACT Contractor shall comply with the provisions of the Montana Workers' Compensation Act while performing work for State of Montana under §39-71-401, §39-71-405, and §39-71-417, MCA. Proof of compliance must be in the form of workers' compensation insurance, an independent contractor's exemption, or documentation of corporate officer status. Proof of compliance must be submitted in accordance with Section 15 REQUIRED INSURANCE. This insurance/exemption must be valid for the entire Contract term and any renewal. Upon expiration, a renewal document must be sent to the Montana Department of Environmental Quality, Attn: DEQ Procurement, PO Box 200901, Helena, MT 59620-0901. 9. COMPLIANCE WITH LAWS Contractor shall, in performance of work under this Contract, fully comply with all applicable federal, state, or local laws, rules, regulations, and executive orders including but not limited to, the Montana Human Rights Act, the Equal Pay Act of 1963, the Civil Rights Act of 1964, the Age Discrimination Act of 1975, the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Contractor is the employer for the purpose of providing healthcare benefits and paying any applicable penalties, fees and taxes under the Patient Protection and Affordable Care Act [P.l. 111-148, 124 Stat. 119]. Any subletting or subcontracting by Contractor subjects subcontractors to the same provisions. Under §49-3-207, MCA, and Executive Order No. 04-2016 Contractor agrees that the hiring of persons to perform this Contract will be made on the basis of merit and qualifications and there will be no discrimination based on race, color, sex, pregnancy, childbirth or medical conditions related to pregnancy or childbirth, political or religious affiliation or ideas, culture, creed, social origin or condition, genetic information, sexual orientation, gender identity or expression, national origin, ancestry, age, disability, military service or veteran status, or marital status by the persons performing this Contract. 10. RETIRED STATE EMPLOYEE REQUIRED EMPLOYER REPORTING Under ARM 2.43.2114, state agencies are required to file employee reports with the Montana Public Employee Retirement Administration (MPERA). The employee reports required under ARM 2.43.2114 include a working retiree report covering Montana’s Public Employees’ Retirement System (PERS) retirees performing work in a PERS-covered position as an employee, an independent contractor, or through an employee leasing arrangement, or a temporary service contractor. ARM 2.43.2114(6)(a) requires DEQ to include the social security number of employees and workers in the employer report. Contractor’s staff assigned to perform work under this Contract will be asked to provide a social security number. The purpose of collecting the social security number of an individual hired as an independent contractor or through a professional employer arrangement, an employee leasing agreement, or a 57 Bozeman Energy Efficient Appliance Rebate Program DEQ Contract No.: 523017 Page | 4 temporary service contractor is to determine whether the individual is a retiree. Determining an individual’s status as a retiree will determine whether DEQ must make employer contributions into the public employee retirement system for retirees who return to work in a PERS-covered position as required by Section 19-3-1113, MCA. 11. FEDERAL REQUIREMENTS Contractor agrees to comply with the following terms and conditions as defined by the United States Code (http://uscode.house.gov/search/criteria.shtml), the Code of Federal Regulations (http://www.ecfr.gov/) applicable to the United States Department of Energy, and Presidential Executive Orders (https://www.federalregister.gov/presidential-documents/executive-orders) as they apply to the federal grant from United States Department of Energy for SEP Formula Grant DE- EE0008656. Citations to the relevant portions of the U.S. Code, Code of Federal Regulations, and Executive Orders may be obtained at https://sam.gov/content/home, using the CFDA number(s) referenced in Section 5.8. The following provisions are incorporated into this Contract and shall be included by the Contractor in each subcontract or sub-tiered agreement under any subcontract it enters into in connection with this Contract: 11.1. Supersession (CFR). The provisions of this Section apply to contracted services funded by a federal grant award, and the provisions within it supersede any conflicting provisions of this Contract. 11.2. Drug Free Workplace (CFR). Contractor agrees to maintain a drug-free workplace. Contractor certifies, by signing this Contract that its employees and subcontractors will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance in the performance of this Contract. 11.3. Lobbying and Litigation (CFR). Contractor certifies that no federal appropriated funds have been paid or will be paid, by or on behalf of the Contractor, to any person for influencing or attempting to influence Congress or any federal agency in connection with the awarding of any federal/state contract, the making of any federal/state grant, the making of any federal/state loan, the entering into of any cooperative agreement, the extension, continuation, renewal, amendment, or modification of any federal/state contract, grant, loan or cooperative agreement, or any litigation against the United States, unless authorized under existing law. If any funds other than federal or state appropriated funds have been paid or will be paid to any person for influencing or attempting to influence Congress or any federal agency in connection with this Contract, grant, loan or cooperative agreement, Contractor shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying”, as instructed. 11.4. Debarment, Suspension, Ineligibility and Voluntary Exclusion (CFR). Contractor certifies that it and its principals: (1) are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from the award of contracts by any federal department or agency; (2) have not within a 3-year period preceding this Contract been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state, or local) contract or subcontract; been in violation of federal or state antitrust statutes, or been convicted of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in (2) above; and, (3) have not within a 3-year period preceding this Contract, had one or more contracts terminated for cause or default by any federal or state agency. 58 Bozeman Energy Efficient Appliance Rebate Program DEQ Contract No.: 523017 Page | 5 11.5. Procurement of Recycled Good (USC). Under Section 6002 of the Resource Conservation and Recovery Act, when the purchase of an item exceeds $10,000 or where the quantity of such items acquired in the course of the preceding fiscal year was $10,000 or more, Contractor and subcontractors shall give preference to the purchase of specific products containing recycled materials. 11.6. Use of Recycled Paper (EO). Contractor certifies that recycled paper will be used for all reports, documents, or other submittals prepared by Contractor under the terms of this Contract. This requirement does not apply to reports that are prepared on forms supplied by the federal awarding agency. 11.7. Copyright And Right To Use (CFR). Any discovery or invention made, or data or text developed, or under development, as a result of work conducted under this Contract, is subject to DOE requirements and regulations pertaining to reporting and patent rights, and copyrights and rights in data. In any event, the State and DOE shall have a royalty-free, nonexclusive, and irrevocable right to reproduce, publish or otherwise use and authorize others to use, any patented or copyrightable property developed under this Agreement. 11.8. Equipment (CFR). 11.8.1. Ownership will ultimately reside with the purchasing entity receiving the rebate through the program. 11.9. Acknowledgement Requirements 11.9.1. Any reports, documents, publications or other materials developed for public distribution supported by this Contract shall contain the following statement: "This project has been funded wholly or in part by the Department of Energy (DOE) under assistance agreement Federal Grant No DE-EE0008656 to the Montana Department of Environmental Quality. The contents of this document do not necessarily reflect the views and policies of the DOE, nor does DOE endorse trade names or recommend the use of commercial products mentioned in this document.” 11.10. Subcontracting Under Disadvantaged Business Enterprise (DBE) (CFR) 11.10.1. Contractor shall take all necessary affirmative steps to assure that minority firms, women's business enterprises, and labor surplus area firms are used when possible. 11.10.2. Affirmative steps shall include: 11.10.2.1. Placing qualified small and minority businesses and women's business enterprises on solicitation lists. 11.10.2.2. Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources. 11.10.2.3. Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises. 11.10.2.4. Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises 59 Bozeman Energy Efficient Appliance Rebate Program DEQ Contract No.: 523017 Page | 6 11.10.2.5. Using the services and assistance of the Small Business Administration, and the Minority Business Development Agency of the Department of Commerce. 11.10.2.6. Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs 24.14.2.1 through 24.14.2.5 of this section. 11.11. Buy American - Use of American Iron, Steel, and Manufactured Goods. The United States Department of Energy (DOE) encourages recipients of federal funding that supports the construction, alteration, maintenance, or repair of a public building or public work; or the purchase of goods made of iron, steel; and manufactured goods in support of the project to be produced in the United States. 11.12. Use of Funds for Refreshments or Meals. Contractor and any subcontractor must obtain prior approval from DOE through the State prior to using these funds for the purchase of light refreshments or meals served at meetings, conferences, training workshops, and outreach activities (events) unless the event has been specified in the approved work plan. Requests for approval must include: 11.12.1. An estimated budget and description for the light refreshments, meals, and beverages to be served at the event(s); 11.12.2. A description of the purpose, agenda, location, length and timing for the event; 11.12.3. An estimated number of participants in the event and a description of their roles. 11.13. Hotel-Motel Fire Safety. Contractor agrees to ensure that all space for conferences, meetings, conventions, or training seminars funded in whole or in part with federal funds complies with the protection and control guidelines of the Hotel and Motel Fire Safety Act (PL 101-391, as amended). The Hotel-Motel National Master List (http://www.usfa.dhs.gov/applications/hotel/) may be used to determine if a property is in compliance, or to find other information about the Act. 11.14. Trafficking Victim Protection Act of 2000. The Contractor, Contractor’s employees, and any subcontractor and subcontractor’s employees, must not engage in any form of trafficking in persons, procure a commercial sex act, or use forced labor in the performance of services under this Contract or subcontract at any time during the period the Contract or subcontract is in effect. 11.15. Limit on Funds. Contractor and any subcontractor shall not use these funds for particular activities for any casino or other gambling establishment, aquarium, zoo, golf course, or swimming pool. 11.16. Protection Of Whistleblowers. Under the Whistleblower Protection Enhancement Act of 2012 (WPA) and the Whistleblower Protection Act of 1989 Enhanced by the Act of 2012, and 41 U.S.C. § 4712, it is illegal for a Contractor’s employee an employee of Contractor’s Subcontractor, to be discharged, demoted, or otherwise discriminated against for making a protected whistleblower disclosure. Any employee under this contract or any subcontractor, who believes they have been retaliated against for making a protected whistleblower disclosure may submit a retaliation complaint to the OIG Hotline. Information regarding whistleblower protections is available from the Whistleblower Protection Informational Brochure. Contractor is required to make this information available to its employees and any subcontractors, who are required to make the information available to their employees. 11.17. False Claim. Contractor and subcontractors agree to promptly refer to DOE’s Inspector General any credible evidence that a principal, employee, agent, contractor, subcontractor, loan recipient, or other person has submitted a false claim under the False Claims Act or has committed a 60 Bozeman Energy Efficient Appliance Rebate Program DEQ Contract No.: 523017 Page | 7 criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct involving funds provided under this Contract or subcontracts awarded by the Contractor. 12. CONFLICT OF INTEREST 12.1. For the purposes of the Montana Code of Ethics, Contractor and each of its employees and subcontractors, is a “public employee” for the purposes of this Section. As such, Contractor and each of its employees and subcontractors is subject to the requirements of Title 2, Chapter 2, MCA, regarding conflicts of interest, including but not limited to sections §2-2-104, §2-2-105, §2-2-121, and §2-2-201, MCA. 12.2. If the State discovers that an employee of Contractor or subcontractor is in violation of this Section, the State may, after consulting with Contractor, terminate this Contract or take other appropriate measures to address the conflict and Contractor shall reimburse the State for any services the State requires be performed by another Contractor that duplicate the services performed by the employee who violated this Section. 13. DISCLOSURE 13.1. Contractor shall notify the State of any actual, apparent, or potential conflict of interest with regard to any individual working on a work assignment or having access to information regarding a subcontract. Notification of any conflict of interest shall include both organizational conflicts of interest and personal conflicts of interest (which are defined as the same types of relationships as organizational conflicts of interest, but applicable to an individual). If a personal conflict of interest exists, the individual who is affected shall be disqualified from taking part in any way in the performance of the assigned work that created the conflict of interest situation. 13.2. Contractor certifies that it has identified all current employees and proposed subcontractor’s employees that will perform work under this Contract and that have worked for the State in the last two years prior to submitting the solicitation request which resulted in the award of this Contract. Contractor further certifies that no former employee of the State of Montana or local government may work under this Contract for a period of twelve months after voluntary termination of public employment, if by working under the Contract the employee will take direct advantage, unavailable to others, of matters with which the employee was directly involved during the employee’s public employment. Pursuant to §2-2-201, MCA, a former employee of state or local government may not, within 6 months following the termination of public employment, contract or be employed by an employer who contracts with the State of Montana or any of its subdivisions involving matters with which the former public employee was “directly involved”, as defined in §2-2-201, MCA, during employment. Contractor further certifies it shall identify any new employees hired during this Contract that will perform work under this Contract and that have worked for the State of Montana in the last two years prior to the submission of the solicitation request which resulted in the award of this Contract. Disclosure in all cases shall include the name of the agency and the nature of work performed by the employee. 14. CONTRACT TERMINATION 14.1. Termination for Cause with Notice to Cure Requirement. Either party may terminate this Contract in whole or in part for failure of the other party to materially perform any of the services, duties, terms, or conditions contained in this Contract after giving the other party written notice identifying items not performed. The written notice must demand performance of the items not performed within a specified period of time of not less than 30 days. If the demanded performance is 61 Bozeman Energy Efficient Appliance Rebate Program DEQ Contract No.: 523017 Page | 8 not completed within the specified period, the termination is effective at the end of the specified period. 14.2. Any termination of this Contract is subject to the exception that Section 6, relating to retention of and access to records, remain in effect. 15. EVENT OF BREACH – REMEDIES 15.1. Event of Breach by Contractor. Any one or more of the following Contractor acts or omissions constitute an event of material breach under this Contract: 15.1.1. products or services furnished fail to conform to any requirement; 15.1.2. failure to submit any report required by this Contract; 15.1.3. failure to perform any of the other terms and conditions of this Contract, including but not limited to beginning work under this Contract without prior State approval and breaching Section 20.1 obligations; or 15.1.4. financial inability to perform its obligations under this Contract. 15.2. Event of Breach by State. The State’s failure to perform any material terms or conditions of this Contract constitutes an event of breach. 15.3. Actions in Event of Breach. Upon a material breach by either party, the non-breaching party may: 15.3.1. terminate this Contract as defined under Section 14, and pursue any of its remedies under this Contract, at law or in equity; or 15.3.2. treat this Contract as materially breached and, except as the remedy is limited in this Contract, pursue any of its remedies under this Contract, at law or in equity. 16. FORCE MAJEURE Neither party is responsible for failure to fulfill its obligations due to causes beyond its reasonable control, including without limitation, acts or omissions of government or military authority, acts of God, materials shortages, transportation delays, fires, floods, labor disturbances, riots, wars, terrorist acts, or any other causes, directly or indirectly beyond the reasonable control of the nonperforming party, so long as such party uses its best efforts to remedy such failure or delays. A party affected by a force majeure condition shall provide written notice to the other party within a reasonable time of the onset of the condition. In no event, however, shall the notice be provided later than 5 working days after the onset. If the notice is not provided within the 5 day period, then a party may not claim a force majeure event. A force majeure condition suspends a party’s obligations under this Contract, unless the parties mutually agree that the obligation is excused because of the condition. 17. WAIVER OF BREACH Either party’s failure to enforce any contract provisions after any event of breach is not a waiver of its right to enforce the provisions and exercise appropriate remedies if the breach occurs again. Neither party may assert the defense of waiver in these situations. 18. CONFORMANCE WITH CONTRACT No alteration of the terms, conditions, delivery, price, quality, quantities, or specifications of the Contract shall be granted without the State’s prior written consent. Products or services provided that 62 Bozeman Energy Efficient Appliance Rebate Program DEQ Contract No.: 523017 Page | 9 do not conform to the Contract terms, conditions, and specifications may be rejected and returned at Contractor’s expense. 19. LIAISONS AND SERVICE OF NOTICES 19.1. Contract Liaisons. All project management and coordination on the State's behalf must be through a single point of contact designated as the State's liaison. Contractor shall designate a liaison who will provide the single point of contact for management and coordination of Contractor's work. All work performed under this Contract must be coordinated between the State's liaison and Contractor's liaison. Bonnie Rouse, or their designee or successor, is the State's liaison. 1520 East 6th Avenue Helena, Montana, 59601 Telephone: 406-444-6439 E-mail: brouse@mt.gov Ali Chipouras, or their designee or successor, is Contractor's liaison. 121 N Rouse Avenue Bozeman, MT 59715 Telephone: 406-582-2370 E-mail: achipouras@bozeman.net 19.2. Notifications. The State's liaison and Contractor's liaison may be changed by written notice to the other party. Written notices, requests, or complaints must first be directed to the liaison. Notice may be provided by personal service, mail, or facsimile. If notice is provided by personal service or facsimile, the notice is effective upon receipt; if notice is provided by mail, the notice is effective within three (3) business days of mailing. The party receiving a notice shall sign and date an acknowledgement of the notice and mail it to the sending party. 20. MEETINGS 20.1. Technical or Contractual Problems. Contractor shall meet with the State's liaison, or other personnel to resolve technical or contractual problems occurring during the Contract term or to discuss the progress made by Contractor and the State in the performance of their respective obligations, at no additional cost to the State. The State may request the meetings as problems arise; such meetings will be coordinated by the State. The State shall provide Contractor a minimum of three full working- day’s-notice of meeting date/time and physical location or virtual meeting access information. Contractor’s consistent failure to participate in problem resolution meetings, Contractor missing or rescheduling two consecutive meetings, or Contractor’s failure to make a good faith effort to resolve problems may result in termination of the Contract. 20.2. Progress Meetings. During the term of this Contract, the State's Project Manager shall plan and schedule progress meetings with Contractor to discuss Contractor’s and the State’s progress in the performance of their respective obligations. These progress meetings will include the State Project Manager, the Contractor Project Manager, and any other additional personnel involved in the performance of this Contract as required. At each meeting, Contractor shall provide the State with a written status report that identifies any problem or circumstance encountered by Contractor, or of which Contractor gained knowledge during the period since the last such status report, which may prevent Contractor from completing any of its obligations or may generate charges in excess of those previously agreed to by the parties. This may include the failure or inadequacy of the State to perform 63 Bozeman Energy Efficient Appliance Rebate Program DEQ Contract No.: 523017 Page | 10 its obligation under this Contract. Contractor shall identify the amount of excess charges, if any, and the cause of any identified problem or circumstance and the steps taken to remedy the same. 20.3. Failure to Notify. If Contractor fails to specify in writing any problem or circumstance that materially affects the costs of its delivery of services or products, including a material breach by the State, about which Contractor knew or reasonably should have known with respect to the period during the term covered by Contractor's status report, Contractor shall not be entitled to rely upon such problem or circumstance as a purported justification for an increase in the price for the agreed upon scope. 20.4. State's Failure or Delay. For a problem or circumstance identified in Contractor's status report in which Contractor claims was the result of the State's failure or delay in discharging any State obligation, the State shall review same and determine if such problem or circumstance was in fact the result of such failure or delay. If the State agrees as to the cause of such problem or circumstance, then the parties shall extend any deadlines or due dates affected thereby, and provide for any additional charges by Contractor. This is Contractor’s sole remedy. If the State does not agree as to the cause of such problem or circumstance, the parties shall each attempt to resolve the problem or circumstance in a manner satisfactory to both parties. 21. TRANSITION ASSISTANCE If this Contract is not renewed at the end of the original term, if the Contract is otherwise terminated before project completion, or if particular work on a project is terminated for any reason, Contractor must provide transition assistance for a reasonable, mutually agreed period of time after the expiration or termination of this Contract or particular work under this Contract. The purpose of this assistance is to allow for the expired or terminated portion of the services to continue without interruption or adverse effect, and to facilitate the orderly transfer of such services to the State or its designees. The parties agree that such transition assistance is governed by the terms and conditions of this Contract, except for those terms or conditions that do not reasonably apply to such transition assistance. The State shall pay Contractor for any resources utilized in performing such transition assistance at the most current contract rates. If there are no established Contract rates, then the rate must be mutually agreed upon If the State terminates a project, or this Contract for cause, then the State may offset the cost of paying Contractor for the additional resources Contractor utilized in providing transition assistance with any damages the State may have sustained as a result of Contractor’s breach. 22. CHOICE OF LAW AND VENUE Montana law governs this Contract as defined in §18-1-401, MCA. If there is a dispute under this Contract the Parties will meet in person and attempt to resolve the dispute. If the dispute cannot be settled through negotiation, the parties agree that prior to resorting to litigation they will attempt to settle the dispute by nonbinding mediation administered by a neutral mediator agreed to by the parties. Both parties waive objection to personal jurisdiction in the First Judicial District in and for the County of Lewis and Clark, State of Montana. Any litigation concerning this bid, proposal, or contract must be brought in the First Judicial District in and for the County of Lewis and Clark, State of Montana, and each party shall pay its own costs and attorney fees, except as provided in Section XX, Defense, Indemnification/Hold Harmless. 64 Bozeman Energy Efficient Appliance Rebate Program DEQ Contract No.: 523017 Page | 11 23. TAX EXEMPTION The State of Montana is exempt from Federal Excise Taxes except as otherwise provided in the federal Patient Protection and Affordable Care Act [P.L. 111-*148, 124 Stat. 119]. 24. PERSONAL PROPERTY TAX All personal property taxes will be paid by Contractor. 25. SEVERABILITY CLAUSE A declaration by any court or any other binding legal source that any provision of the Contract is illegal and void shall not affect the legality and enforceability of any other provision of the Contract, unless the provisions are mutually and materially dependent. 26. SCOPE, ENTIRE AGREEMENT, AND AMENDMENT 26.1. Contract. This Contract consists of 12 numbered pages and any Attachments as required. 26.2. Entire Agreement. These documents are the entire agreement of the parties. They supersede all prior agreements, representations, and understandings. Any amendment or modification must be in a written agreement signed by the parties. 27. WAIVER The State's waiver of any Contractor obligation or responsibility in a specific situation is not a waiver in a future similar situation or is not a waiver of any other Contractor obligation or responsibility. 28. EXECUTION The parties through their authorized agents have executed this Contract on the dates set out below. CITY OF BOZEMAN, MONTANA BY: DATE Jeff Mihelich, City Manager 121 N Rouse Avenue Bozeman, MT 59715 DEPARTMENT OF ENVIRONMENTAL QUALITY BY: DATE VICKI J. WOODROW, Agency Procurement Officer Central Management, Fiscal Services Metcalf Building, Room 213 PO Box 200901 Helena, MT 59620-0901 Approved as to Legal Content: 65 Bozeman Energy Efficient Appliance Rebate Program DEQ Contract No.: 523017 Page | 12 BY: DATE DEQ Attorney 66 Bozeman Energy Efficient Appliance Rebate Program DEQ Contract 523017 Page 1 of 2 Contract 523017 Attachment A: Scope of Work Project Title: Bozeman Energy Efficient Appliance Rebate Program Project Description: The Montana Department of Environmental Quality (DEQ) is contracting with the City of Bozeman, Montana (Contractor) to fund development and implementation of a locally administered energy efficient appliance rebate program. Funding is allocated for a program to include heat pump water heater appliances (also known as hybrid electric water heaters and HPWHs). The Scope of Work may be amended to add other energy efficient appliances at the discretion of DEQ. Funding Requirements: Contractor shall meet the following requirements in relation to the design and development of the rebate program listed in the Project Description. 1. Usage of funds. Contractor may use the funds for the following expenditures: a. Provide a rebate for the purchase or installation cost of the appliance, eligible for the consumer or installer. i. Rebate amounts shall be determined by the Contractor. b. Bulk purchase appliances so they are readily available for participants of the rebate program. c. Marketing and materials to promote the local program. 2. Funding Origination. Funds are provided from the following sources: a. Funding awarded through DOE Grant DE-EE0008656, to the amount of $12,000.00. b. Funding awarded through the Montana State General Fund, to amount of $31,500.00. 3. Expenditure of funds. Contractor must expend funds by the end of the contract term stated in Section 1. 4. Efficiency requirements. a. The Contractor may choose the efficiency standard required for appliances eligible for the rebate programs. b. A minimum energy efficiency is required for appliances that shall be equal to or greater than the efficiency standard set forth by the High-Efficiency Electric Home Rebate Act (Section 50122) of the Inflation Reduction Act or by the Energy Efficient Home Improvement Credit – 26 USC 25C. Minimum requirement at the Recipient’s discretion. 5. Liability. a. DEQ is not liable for any financial responsibility involved through the rebate programs administered by the Contractor. DEQ is providing funding for the Contractor to administer their own program and incur all financial responsibility and liability. b. DEQ not liable for the quality, effectiveness, or cost of the installation or appliance installed. 67 Bozeman Energy Efficient Appliance Rebate Program DEQ Contract No.: 523017 Page 2 of 2 Reporting Requirements: As stated in Section 2.3 of the contract, within 30 days after the end of each quarter during which the services required by Contractor are performed, Contractor shall submit to the State a written progress report giving a detailed description of the status of the project that is the subject of this Contract. Contractor shall include, at a minimum, in the quarterly progress report the following: 1. A short narrative of the original project (this would remain the same for each report submitted); 2. Project progress during the reporting period (activities carried out, accomplishments, highlights, problems, corrective actions, etc., must be discussed); 3. Status of expenditure of funds during the reporting period, including: a. Number of appliances purchased through pre-buy. b. Dollar amount expended for pre-buy of appliances. c. Dollar amount expended for marketing and promotional materials. d. Number of rebates issued within reporting period. e. Dollar amount of rebates issued within reporting period. f. Installation date for each appliance. g. Name of Contractor or Company who completed installation for each appliance. h. Manufacturer, model, and size of installed appliance. i. Details of system replaced by new appliance (i.e., electric, gas-fired, tankless, tank, furnace, boiler, etc.). 4. Survey results from participating consumers and contractors; and 5. Planned activities for the next reporting period. As stated in Section 2.4 of the contract, within 45 days after the project is completed, Contractor shall submit a final report to the State that must include, at a minimum the following: 1. A summary of activities performed; 2. The overall project accomplishments; 3. Successes and failures, including significant problems or unique situations encountered, and corrective actions taken; 4. Extent to which the project goals and objectives were met; and 5. Summarization of expenditures of project funds. 68 Memorandum REPORT TO:City Commission FROM:Addi Jadin, Park Planning and Development Manager Mitch Overton, Director of Parks and Recreation SUBJECT:Authorize City Manager to Sign Use License with Sime Construction for Bozeman Sports Park MEETING DATE:June 13, 2023 AGENDA ITEM TYPE:Agreement - Property RECOMMENDATION:Authorize City Manager to Sign Use License with Sime Construction for Bozeman Sports Park STRATEGIC PLAN:6.5 Parks, Trails & Open Space: Support the maintenance and expansion of an interconnected system of parks, trails and open spaces. BACKGROUND:Sime Construction is performing construction on Baxter Drive and seeks to use an area of Bozeman Sports Park for dewatering wells. This use license authorizes them to work in the park and ensures restoration upon completion. UNRESOLVED ISSUES:NA ALTERNATIVES:Per Commission FISCAL EFFECTS:NA Attachments: 2023 Use License - Sime for BSP.docx 2023 Use License - Sime - Exhibit A.tiff 2023 Use License - Sime - Exhibit B.pdf Report compiled on: June 1, 2023 69 License Agreement with Sime Construction at Bozeman Sports Park 2023 Page 1 of 12 AFTER RECORDING PLEASE RETURN TO: City Clerk City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY BY SIME CONSTRUCTION This License Agreement (the “Agreement”) is entered into on ___________, 2023 between the City of Bozeman, a self-governing municipality operating pursuant to its Charter and the laws of the State of Montana, with a mailing address of P.O. Box 1230, Bozeman, MT 59771 (the “City”) and Sime Construction, with a mailing address of 190 Ramshorn, Bozeman, MT 59718 (“Licensee” or collectively with the City, the “Parties”). In consideration of Licensee’s promises herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1.Purpose. The City owns the real property described as Tract 1A1A of Certificate of Survey 2554C (“Bozeman Sports Park” or “Licensed Property”) (Exhibit A) and agrees to authorize Licensee to access a portion of the Licensed Property for purposes of completing construction in Baxter Lane, pursuant to this Agreement and approved infrastructure plans. The alterations of and improvements to the Licensed Property consists of the following: Installation of 10-12 temporary wells for dewatering purposes within the drainage swale south of the sidewalk along Baxter Lane and restoration of the site to like or improved condition upon removal of the wells, including seeding according to the specifications of the Park Superintendent. (the “Alterations and Improvements”). 2.Description of Licensed Property. The portion of the City Property subject to this Agreement consists of the real property as depicted in Exhibit A (“Bozeman Sports Park”). 3.Title. Licensee hereby acknowledges this Agreement grants a privilege and not an interest in the Licensed Property and the title of the City to the Licensed Property, and Licensee agrees never to deny such title or claim, at any time, or claim any interest or estate of any kind or extent whatsoever in the Licensed Property by virtue of this Agreement or Licensee’s occupancy or use hereunder. The City may enter the Licensed Property at any time to assert its real property 70 License Agreement with Sime Construction at Bozeman Sports Park 2023 Page 2 of 12 interest or for other purposes which do not unreasonably interfere with the activities of the Licensee authorized by this Agreement. 4.License for Construction and Installation of Improvements; Term. The City hereby grants permission, revocable and terminable as provided herein, during period commencing on the Effective Date and expiring on September 30, 2023 on the terms and conditions set forth herein, which Licensee promises to comply with and abide by for Licensee’s fulfillment of the obligations as stated in this Agreement, which Licensee promises to comply with and abide by (the “Use License”). The Use License consists of permission for Licensee, their contractors, subcontractors and other entities contracted with or hired by Licensee to use the Licensed Property and no other portion of the Bozeman Sports Park for only the purposes as stated herein. Construction of Improvements not in compliance with the infrastructure plan shall be considered a breach of the Use License. The term of the Use License may be extended by mutual agreement of the Parties in writing. The City Manager is authorized to agree on behalf of the City to extension(s) of the term of the Use License. Title to all permanent improvements on the Park Property and on public rights-of-way adjacent to the Park Propertymade by Licensee or their agents shall vest in the City, free and clear of all debts, liens and encumbrances. 5.Indemnification/Insurance. a. To the fullest extent permitted by law, Licensee, recognizing they exercise their privileges under this Agreement at their own risk, shall release, and shall protect, defend, indemnify, and hold harmless the City and their agents, representatives, employees, and officers 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 occupation or use of the Licensed Property by Licensee; (ii) the negligent, reckless, or intentional misconduct of the Licensee, their officers, employees, or agents on or related to the Licensed Property; and (iii) any negligent, reckless, or intentional misconduct of any of the Licensee’s guests, invitees, contractors, or subcontractors on or related to the Licensed Property. 71 License Agreement with Sime Construction at Bozeman Sports Park 2023 Page 3 of 12 Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist as to an indemnitee described in this Section. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). Licensee’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against the Licensee to assert their right to defense or indemnification under this Agreement or under the Licensee’s applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting their right to indemnification or defense but only if a court of competent jurisdiction determines the Licenseewas obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against the City, the City may elect to represent itself and incur all costs and expenses of suit. Theobligations of this Section 5(a) shall survive termination of this Agreement. b. In addition to and independent from the above, during the term of this Agreement Licensee shall at Licensee’s expense maintain those insurances as may be required by City as set forth below through an insurance company or companies duly licensed and authorized to conduct business in Montana which insures the liabilities and obligations specifically assumed by the Licensee in Section 5(a). The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Licensee in Section 5(a). Within ten (10) days following execution of this Agreement, Licensee shall provide City with proof of such insurance in the form of a certificate of insurance, the insuring agreement and all applicable endorsements demonstrating that such insurance is in full force and effect and shall provide such proof when requested by the City thereafter during the term of this Agreement. The City may require additional evidence of the nature and scope of the insurance required herein. 72 License Agreement with Sime Construction at Bozeman Sports Park 2023 Page 4 of 12 Licensee shall ensure such required insurance coverage is timely renewed so that there is no lapse in coverage during the time such insurance must remain in place. Licensee shall notify the City within two (2) business days of Licensee’s receipt of notice that any required insurance coverage will be terminated or Licensee’s decision to terminate any required insurance coverage for any reason. The insurance and required endorsements must be in a form suitable to the City. c. Licensee shall obtain the following type of insurance in the amount indicated: Workers’ Compensation:not less than statutory limits; and Employers’ Liability:$1,000,000 each occurrence; $2,000,000 annual aggregate; Commercial General Liability: $1,000,000 per occurrence; $2,000,000 annual aggregate; Automobile Liability:$1,000,000 property damage/bodily injury; $2,000,000 annual aggregate; Additional coverage as may be reasonably required by the City from time to time. For liabilities assumed hereunder, the City, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General Liability and Automobile Liability policies. 6.Construction/Restrictions/Repair and Maintenance. a. Licenseeshall, at their sole cost and expense, incorporate the Licensed Property into any environmental permits required as applicable for the Project. b. For the use of any public rights-of-way or any real property of the City other than the Licensed Property the Licensee shall obtain an encroachment permit from the City’s Director of Public Works or other applicable approvals. c. Licenseeshall keep the Licensed Property and sidewalks free from construction debris and other materials except as needed for installation of wells. Sediment, rock, mud, and other debris entering upon the Licensed Property shall be cleaned or removed immediately. 73 License Agreement with Sime Construction at Bozeman Sports Park 2023 Page 5 of 12 d. Licensee agree to immediately repair any damage caused by Licensee, their agents, invitees, guests, contractors or subcontractors to any public or private property outside the Licensed Property including but not limited to streets, curbs, sidewalks, irrigation and other infrastructure to the current City standard for that infrastructure. Licensee agrees to timely comply with any request of the City to perform maintenance and repairs to streets, curbs, sidewalks and other infrastructure damaged by Licenseeor Licensee’s agents, invitees, guests, contractors, or subcontractors. e. Any damage to the Licensed Property shall be repairedto a condition acceptable to the City. Maintenance or repair work to the Licensed Property shall be performed to the City’s reasonable satisfaction. 7.Waste, Nuisance, and Unlawful Use Prohibited. Licensee shall not commit, or suffer to be committed, any waste on the Licensed Property, nor shall Licensee maintain, commit, or permit the maintenance of any nuisance on the Licensed Property or use the Licensed Property for any unlawful purpose. Licensee shall not do or permit anything to be done in or about the Licensed Property which shall in any way conflict with any law, ordinance, rule, or regulation affecting the occupancy and use of the Licensed Property, which are or may hereafter be enacted or promulgated by any public authority. 8.Hazardous Materials. Licensee agrees and represent that they shall not store or dispose of on the Licensed Property any “Hazardous Materials” as defined by Federal, State or local law as from time to time amended. 9.Signage. Licensee, nor any of its agents, may not install any signage except as authorized by the City’s Representative. 11.Restoration. a. Within 30 days upon completion of the Licensee’s use of the Licensed Property or within 30 days of termination of this Agreement pursuant to Section 12, whichever is earlier, the Licensee shall cause the Licensed Property to be fully restored to the condition existing at the date of execution by the City. Restoration is at the discretion of the City and may include but is not limited to grading and repairs to failed sub-grade; reconstruction of accesses, fencing, and existing water systems, as applicable; installation of ground cover as specified by the Parks Superintendent or City Representative; and installation of temporary water system or application of water sufficient to stabilize the area disrupted. In addition, Licensee shall restore damage they or their agents, 74 License Agreement with Sime Construction at Bozeman Sports Park 2023 Page 6 of 12 invitees, guests, hires, contractors or subcontractors cause to other public or private infrastructure adjacent to the Licensed Property to a condition as good or better than existed prior to Licensee’s occupation of the Licensed Property. All work to restore the Licensed Property shall comply with applicable building codes and the City’s design and construction standards, except to the extent that the Existing Condition, as explained below, does not comply with such codes and standards. Licensee may be required to enter into a contract with the City for such work. Licensee may cause their contractors or other agents to conduct such restoration but in no case shall Licensee be relieved of their obligation under this Section until such restoration is accepted by the City. b. Unless waived by the City Representative, prior to Licensee occupying the Licensed Property, the City’s Representative and Licensee shall perform an inspection of the Licensed Property and adjacent public and private infrastructure with video and/or photographs to record the condition of the Licensed Property and/or public or private infrastructure (the “Existing Condition”). c. The City retains the right to approve any plans for and to inspect work done under this Section. d. The City and Licensee may enter into an agreement prior to the expiration of the term of this Agreement or prior to the end of Licensee’s occupation of the Licensed Propertyregarding restoration of the Licensed Property to a condition different from the Existing Condition. Such agreement may address: (i) improvements to the Licensed Property in addition to or different than the Licensee’s obligations for restoration/repair under this Agreement; (ii) the City’s contribution of funds to such improvements, if any; and (iii) other duties and obligations of the Licensee regarding restoration and repair of the Licensed Property. Nothing in such an agreement will reduce the obligations of Licensee under this Agreement. e.Site Restoration Security. The Licensee must provide the City security for Licensee’s restoration requirement through a form acceptable to the Bozeman City Attorney. Licensee may provide a cash deposit, a letter of credit, or obtain a good and sufficient site restoration performance bond payable to the City of Bozeman. The security shall be for the complete restoration of the Site as required by this Section in an amount equal to twenty thousand dollars ($5,000.00). Such security shall be conditioned on the City’s determination whether required restorations have been satisfactorily completed. 75 License Agreement with Sime Construction at Bozeman Sports Park 2023 Page 7 of 12 Licensee may substitute such security upon a written requested directed to the City’s Representative and upon approval by the Bozeman City Attorney. Release of the security to Licensee upon satisfaction of their restoration obligations shall be upon written request of the Licensee providing the security and must be authorized in writing by the City’s Representative. 12.Termination. If Licensee fails to comply with any condition of this Agreement at the time or in the manner provided for, the City may, at its option, terminate this Agreement and be released from all obligations if the Licensee’s default is not cured within sixty (60) calendar days after written notice of the default is provided by the City to the Licensee. Said notice shall set forth the items to be cured. Notices shall be provided in writing and hand-delivered or mailed to the parties at the addresses set forth in the first paragraph of this Agreement. Failure to cure any default may result in an order by the City’s Representative for the Licensee to pay a fine. 13.Due Diligence. Licensee shall at all times exercise due diligence in the protection of the City’s Park Properties and the Licensed Property against damages. 14.Non-discrimination and Equal Pay. The Licensee agrees that all hiring by Licensee of persons performing this Agreement shall be on the basis of merit and qualifications. The Licensee will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Licensee 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 Licensee 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. Licensee represents they are, 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). Licensee must report to the City any violations of the Montana Equal Pay Act that Licensee has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Licensee shall require these nondiscrimination terms of their sub-licensees providing services under this Agreement. 76 License Agreement with Sime Construction at Bozeman Sports Park 2023 Page 8 of 12 15.Amendment. This Agreement represents the entire understanding between the Parties regarding the subject matter and supersedes any prior agreement, verbal or written. Any amendment or modification of this Agreement or any provision herein shall be made in writing or executed in the same manner as the original document and shall after execution become a part of this Agreement. 16.Assignment. Licensee may not assign this Agreement in whole or in part and may not sublet all or any portion of the Property without the prior written consent of the City. No assignment will relieve Licensee of their responsibility for the performance of the Agreement (including their duty to defend, indemnify and hold harmless). This license shall not run with the land. 17.Waiver of Claims. Licensee waives all claims against City for injury to persons or property on or about the Property or from their use of the Licensed Property. It shall be understood that the responsibility for protection and safekeeping of equipment and materials on or near the Property will be entirely that of the Licensee and that no claim shall be made against the City by reason of any act of an employee, officer, or, agent of the City or any trespasser. 18.Representatives. a.City’s Representative. The City Representative for the purpose of this Agreement shall be Addi Jadin, Parks Planning and Development Manager, or her successor or designee. 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, Licensee may direct theircommunication or submission to other Citypersonnel or agents and may receive approvals or authorization from such persons. b.Licensee’sRepresentative. The Licensee’sRepresentatives for the purpose of this Agreement shall be Parker Brown. Whenever direction to or communication with Licensee is required by this Agreement, such direction or communication shall be directed to Licensee’s Representative; provided, however, that in exigent circumstances when Licensee’s Representative is not available, the City may direct its direction or communication to other designated employees or agents of Licensee. 77 License Agreement with Sime Construction at Bozeman Sports Park 2023 Page 9 of 12 19.Permits. Unless otherwise agreed to in writing by the parties, Licensee shall provide all notices, comply with all applicable federal, state, and local laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 20.Intoxicants; DOT Drug and Alcohol Regulations. Licensee shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the Licensed Property. Licensee acknowledge awareness of and shall comply with their responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. The City shall have the right to request proof of such compliance and Licenseeshall be obligated to furnish such proof. The City may order removal from the Licensed Property of any employee or agent of Licensee or any of their subcontractors for use of intoxicants on the Licensed Property. 21.Liens and Encumbrances. Licensee shall not permit any liens or encumbrances to be filed on the Licensed Property related to either the Licensee’s use of the Licensed Property or the Licensee’s actions pursuant to this Agreement. Prior to the expiration of this Agreement or termination by the City or Licensee as provided herein Licensee must furnish the City with satisfactory proof that there are no outstanding liens or encumbrances in connection with the Licensee’s use of the Licensed Property. 22.Dispute Resolution. 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. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute shall be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 23.Survival. Licensee’s indemnification obligations shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 24.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. 25.Waiver. A waiver by City of any default or breach by Licensee of any covenants, terms, or conditions of this Agreement does not limit City’sright to enforce such covenants, terms, or conditions or to pursue City’s rights in the event of any subsequent default or breach. 78 License Agreement with Sime Construction at Bozeman Sports Park 2023 Page 10 of 12 26.Severability. If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 27.Applicable Law. The Parties agree that this Agreement is governed in all respects by the laws of the State of Montana. Jurisdiction for any dispute or claim raised under this Agreement or proceeding brought to interpret the Agreement shall lie solely in the State of Montana, Gallatin County. 28.Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 29.No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party except the City. 30.Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. 31.Authority. Each party represents that it has full power and authority to enter into and perform this Agreement and the person signing this Agreement on behalf of each party has been properly authorized and empowered to sign this Agreement. 32.Independent Contractor.The Parties agree and acknowledge that in the performance of this Agreement Licensee shall not be considered an agent, representative, subcontractor, or employee of the City. The Parties further agree that all individuals and companies retained by Licensee at all times will be considered the agents, employees, or independent contractors of Licensee and at no time will they be the employees, agents, or representatives of the City. 33.Integration. This Agreement constitutes the entire agreement of the Parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 34.Recordation. This Agreement shall be recorded in the files of the Gallatin County Clerk and Recorder. All costs of recording shall be borne by the Licensee. A copy of this recorded agreement shall be provided to the City’s Representative. 79 License Agreement with Sime Construction at Bozeman Sports Park 2023 Page 11 of 12 35.Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. ########### End of Agreement except for signatures ########### 80 License Agreement with Sime Construction at Bozeman Sports Park 2023 Page 12 of 12 Executed this _____ day of __________________, 20___. City: By: _____________________ Jeff Mihelich Bozeman City Manager STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on the _____ day of ________________, 20___ by Jeff Mihelich, as City Manager for the City of Bozeman, Montana. __________________________________________ Notary Public for the State of Montana Printed Name: _____________________________ (SEAL)Residing in________________________________ My Commission Expires:_____________________ Sime Construction By: _______________________ Parker Brown, Superintendent STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on the _____ day of ________________, 20___ by Parker Brown, as Superintendent of Sime Construction. __________________________________________ Notary Public for the State of Montana Printed Name: _____________________________ (SEAL)Residing in________________________________ My Commission Expires:_____________________ 81 EXHIBIT A (COS 2554C) 82 EXHIBIT B (Depiction of Licensed Area within Park Properties) 83 84 85 86 Memorandum REPORT TO:City Commission FROM:Ali Chipouras, Sustainability Program Specialist Natalie Meyer, Sustainability Program Manager Jon Henderson, Strategic Services Director SUBJECT:Authorize the City Manager to Sign a Professional Services Agreement with Kate Burnaby Wright and Latta Consultants for the Local Food System Preliminary Mapping Project MEETING DATE:June 13, 2023 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign a Professional Services Agreement with Kate Burnaby Wright and Latta Consultants for the Local Food System Preliminary Mapping Project. STRATEGIC PLAN:6.3 Climate Action: Reduce community and municipal Greenhouse Gas (GHG) emissions, increase the supply of clean and renewable energy; foster related businesses. BACKGROUND: In 2020, the City of Bozeman adopted the Bozeman Climate Plan. Within the plan, Solution N. Cultivate a Robust Local Food System highlights the critical importance of a robust local food system to reduce greenhouse gas emissions and build community resiliency. A robust local food system, as presented in the Bozeman Climate Plan, is a system that is resilient, sustainable, and equitable. To better understand the role of local government and identify strategies to bolster the local food system, the City of Bozeman first needs to more fully understand the local food landscape in the region. The Local Food System Preliminary Mapping Project will assess the current local food landscape by mapping the vast network of key players, assets, and entities that support everything from production to processing, distribution, sale, consumption, and waste recovery of food. A series of interviews with constituents from across the local food system will serve as the primary method for information gathering and partnership building. Kate Burnaby Wright + Latta Consultants (Consultant) was selected through a competitive RFP process to guide the project in collaboration with City staff 87 and a designated steering committee. The Consultant will lead the interview process, conduct a literature review of current policies and plans, summarize the findings from interviews, and develop recommendations for how the City can support a robust local food system. Recommendations will build on existing work in the community and align with goals adopted in current City plans. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The total budget for the agreement is $29,290 and is authorized under the Sustainability Division's FY23 operating budget. Attachments: Professional Services Agreement with Kate Burnaby Wright and Latta Consultants for Local Food System Mapping.pdf Report compiled on: June 1, 2023 88 Professional Services Agreement for Local Food System Preliminary Mapping Project Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 13th day of June, 2023 (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, LATTA CONSULTANTS, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the 31st day of July, 2024, 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 the Scope of Services attached hereto as Exhibit A. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services attached hereto as Exhibit A. 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, 89 Professional Services Agreement for Local Food System Preliminary Mapping Project Page 2 of 11 and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. 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 90 Professional Services Agreement for Local Food System Preliminary Mapping Project Page 3 of 11 connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance 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 91 Professional Services Agreement for Local Food System Preliminary Mapping Project Page 4 of 11 contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on 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. 92 Professional Services Agreement for Local Food System Preliminary Mapping Project Page 5 of 11 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. 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 93 Professional Services Agreement for Local Food System Preliminary Mapping Project Page 6 of 11 Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Ali Chipouras 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 Maclaren Latta 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 94 Professional Services Agreement for Local Food System Preliminary Mapping Project Page 7 of 11 Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Web Accessibility and the ADA: Title II of the ADA prohibits discrimination against people with disabilities in all services, programs, and activities offered or made available by the City. This includes ensuring that the City’s communications with people with disabilities are as effective as its communications with others. If Contractor’s Scope of Services includes the production of digital content or documents for the City, Contractor must use both the City style guide when creating a design, and as per recommendations found in Section 508 of the Rehabilitation Act, the content must also adhere to level A and AA Success Criteria and Conformance Requirements as defined by the current Web Content Accessibility Guidelines (WCAG). The City will not accept digital content that does not comply with WCAG A and AA guidelines. If the City refuses digital content because it is non-compliant with the City style guide, Section 508 of the Rehabilitation Act, and/or WCAG, Contractor will be required to make the digital content compliant and redelivered at no additional cost to the City. 95 Professional Services Agreement for Local Food System Preliminary Mapping Project Page 8 of 11 15. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 17. 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 96 Professional Services Agreement for Local Food System Preliminary Mapping Project Page 9 of 11 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. 18. 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. 19. 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. 20. 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. 21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 22. 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. 23. Survival: Contractor’s indemnification shall survive the termination or expiration of 97 Professional Services Agreement for Local Food System Preliminary Mapping Project Page 10 of 11 this Agreement for the maximum period allowed under applicable law. 24. 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. 25. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 26. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 27. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 28. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 29. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 30. 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. 31. 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. 32. 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 the 31st day of July, 2025. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 98 Professional Services Agreement for Local Food System Preliminary Mapping Project Page 11 of 11 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 ____________________________________ Maclaren Latta, Latta Consultants CONTRACTOR By________________________________ By__________________________________ Jeff Mihelich, City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 99 CITY OF BOZEMAN LOCAL FOOD SYSTEM PRELIMINARY MAPPING PROJECT Exhibit A: SCOPE OF SERVICES Submitted by: KATE BURNABY WRIGHT + LATTA CONSULTANTS RFP response date: May 18, 2023 PROJECT MANAGEMENT + APPROACH Provide a description of your proposed solution and an outline detailing your approach and concept for accomplishing this project. Address any time or commitments you see City personnel needing to provide. If more than one person from your firm will participate in the project, include their names and how they will participate. Our team proposes a collaborative, multi-phase approach for this project, as outlined below. Our objectives will include: ● Establish effective working relationships, communication channels, project management mechanisms with City of Bozeman staff lead(s) and Steering Committee (“your team”) ● Gather insights from a broad range of food system experts and entities within the Gallatin Valley food system ● Map existing assets and outline critical private, nonprofit and public sector entities involved in the food system ● Review existing City of Bozeman plans and policies, and other applicable information/resources ● Distill findings into opportunities, barriers, and key insights ● Use the insights gathered to make strategic recommendations for the City of Bozeman We anticipate working collaboratively with your team, with Kate taking the lead and Maclaren being the co-lead throughout the project. We look forward to the City of Bozeman staff lead(s), and the Steering Committee, being as involved as you would like to be including providing guidance and participating in interviews, as your time allows. Phase 1a: Initial Kick Off, Onboarding and Initial Literature Review Timing: Weeks 1-5 (June-July) During Phase 1, we will continue the due diligence begun for this RFP response as we immerse ourselves in this project. ● Meet with City of Bozeman staff lead(s) to kick-off the project and confirm the overall objectives, proposed strategic approach, processes, timing, and deliverables ● Provide recommendations for potential Steering Committee members ● Begin to gather background information, literature, and resources relevant to the Gallatin Valley and the role municipalities play in robust local food systems ● Develop a working understanding of the relevant City policies and plans 1 100 Phase 1b:Establish Steering Committee and Conduct Internal Workshop Timing:Weeks 5-7 (July-Aug) For Phase 1b,once the Steering Committee has been established,we will conduct an internal workshop to gain your perspectives. ●Work with City of Bozeman staff lead(s)and the project Steering Committee (“your team”)to outline workshop objectives ●Develop agenda and prep work for the workshop based on the objectives ●Facilitate a multi-hour workshop to capture your thoughts and confirm what needs to be understood at the end of the constituent interviews to be successful Phase 1c:Finalize Strategic Approach Timing:Weeks 7-9 (July-Sept) After the multi-hour workshop,we will prepare an initial report including the preliminary interview plan,interviewee list,and recommendations on how to uncover what’s still needed. ●Analyze and summarize the key takeaways from Phase 1a and Phase 1b ●Outline the overarching questions that need to be answered through primary and secondary research ●Finalize our recommendations for Phase 2a,Phase 2b and Phase 3,based on the key takeaways and overarching questions ●Present the key takeaways,overarching questions,guidance for prioritizing interviewees, and research methodologies to your team for final review and approval ●Provide an updated outline of recommended constituent contacts as well as compensation structure* *Our team’s initial recommendation for compensation is to offer interviewees an option to make a $25-$50 donation to a Gallatin-based non-profit in their name as a thank you for participating in the interview.We will plan to review this recommendation with your team during Phase 1a and Phase 1b. Phase 2a:Develop Constituent Interview Plan and Finalize Strategic Approach Timing:Weeks 8-12 (July-Sept) Based on findings from Phase 1,we will finalize the constituent interview plan,interviewee list and discussion guides for use in the interviews. ●Outline the constituent interview plan,based on the project goals and purpose,using a combination of in-person and virtual approaches,both one-on-one and small group scenarios;confirm recommended compensation structure ●Finalize a list of 20 to 35 interviewees that represents a cross-section of interview populations,ensuring representation from all relevant constituencies/sectors ●Structure discussion guides to provide actionable insights to the overarching questions including:the broader landscape;city impact and approach;and resiliency,sustainability and equity ●Customize questions within the discussion guides to be relevant to each of the different populations 2 101 ●Obtain approval from your team on the interview plan,interviewee list and discussion guides Phase 2b:Primary Research:Constituent Interviews Timing:Weeks 12-36 (Sept-Oct-Nov-Dec-Jan-Feb) The focus of our work for this project will be on the constituent interviews,providing as much time and flexibility as possible to capture thoughts from the confirmed list of interviewees. ●Contact and schedule interviews,working with constituents to find convenient times and to use a variety of locations throughout Gallatin Valley to make it easier and more accessible for the interviewees ●Work with the City of Bozeman staff lead(s)to enable their participation whenever possible ●Facilitate a combination of in-person and virtual interviews,using both one-on-one and small group scenarios as appropriate ●Provide interviewees with agreed-upon compensation/thank yous for participating ●Record notes and compile results ●Analyze and distill findings Phase 3:Secondary Research:Literature Review Timing:Weeks 12-36 (Sept-Oct-Nov-Dec-Jan-Feb) During Phase 3,which will run concurrently with Phase 2b,we will continue our literature review, including: ●Review existing City policies,plans,and programs including but not limited to:The Bozeman Strategic Plan (2018)the City of the Bozeman Community Plan (2021), Bozeman Climate Plan (2020),the Parks Recreation and Active Transportation Plan (2023),the Unified Development Code,and the Economic Vitality Strategy ●Identify barriers,potential areas of conflict and opportunities ●Identify and review other relevant,existing,accessible data sources and resources ●Summarize the literature that was reviewed and the relevant findings Phase 4:Local Food System Preliminary Map and Interview Summary Report Timing:Weeks 28-40 (Jan-Feb-March) Our team will use insights from Phases 1-3 to (A)map out key assets and partners,and (B) outline gaps in the local food system,barriers,and opportunities.Deliverables will include: ●Map of the key local food system players and assets that can be continuously updated ●Report summarizing constituent interviews,including an overview of the process and list of people interviewed ●In-depth summary of the interview key findings ●Working with your team to incorporate your feedback Phase 5:Develop Recommendations and Final Report Timing:Weeks 32-44 (Feb-March-April) During Phase 5,as we wrap up Phases 2b-4,we will evaluate,analyze and distill research findings into actionable insights.Our deliverables will include a strategic report and presentation 3 102 that outlines insights,key takeaways,and specific recommendations for how the City can support a robust local food system.The final report will include: ●Map of the key players and assets ●Interview summaries ●Key findings that include barriers and opportunities related to resiliency,sustainability and equity ●Recommendations ●Collaborating with your team to finalize the report Phase 6:Public Presentations Timing:Weeks 44-48 (April) Our team will create a visually appealing and easily digestible presentation and share the findings and recommendations to multiple groups including the Bozeman Sustainability Citizen Advisory Board,City of Bozeman staff and/or commissioners,project participants,interviewees, and the general public. ●Develop a visual presentation that is in keeping with the City of Bozeman’s look/style ●Share the presentation for your team’s feedback and final approval ●Be available to present up to four times ●Include time for questions and answers ADDITIONAL DELIVERABLES In addition to what we will deliver as outlined above,we will provide you with the following: Progress Reports.We will deliver ongoing progress reports throughout the project at an interval desired by your team,summarizing work completed and immediate next steps. Regular Check Ins.Our experience has shown that regular "check ins"are key to an integrated client partnership.Upon contract start date,we will work with your team to set up a regular time interval,when it’s convenient for you,to meet and discuss updates to the project,timely findings,immediate needs or concerns to be addressed,and future action items. 4 103 PROPOSED SCHEDULE Provide details on the amount of time needed to complete the project and an estimated timeline for completing tasks. Jun 2023 July Aug Sep Oct Nov Dec Jan 2024 Feb Mar Apr Phase 1a Phase 1b Phase 1c Phase 2a Phase 2b Phase 3 Phase 4 Phase 5 Phase 6 Phase 1a:Initial Kick Off,Onboarding and Initial Literature Review Timing:Weeks 1-5 (June-July) Phase 1b:Establish Steering Committee and Conduct Internal Workshop Timing:Weeks 5-7 (July-Aug) Phase 1c:Finalize Strategic Approach Timing:Weeks 7-9 (July-Sept) Phase 2a:Develop Constituent Interview Plan and Finalize Strategic Approach Timing:Weeks 8-12 (July-Sept) Phase 2b:Primary Research:Constituent Interviews Timing:Weeks 12-36 (Sept-Oct-Nov-Dec-Jan-Feb) Phase 3:Secondary Research:Literature Review Timing:Weeks 12-36 (Sept-Oct-Nov-Dec-Jan-Feb) Phase 4:Local Food System Preliminary Map and Interview Summary Report Timing:Weeks 28-40 (Jan-Feb-March) Phase 5:Develop Recommendations and Final Report Timing:Weeks 32-44 (Feb-March-April) Phase 6:Public Presentations Timing:Weeks 44-48 (April) 5 104 PRICE PROPOSAL Provide an overall budget for the project.Describe your preferred fee structure rates.Describe factors significant to determining the project budget. ESTIMATED FEES:$28,290 Our price proposal is based on the proposed deliverables and the desired outcomes and include the following: ●Initial Kick Off,Onboarding and Initial Literature Review ●Establish Steering Committee and Conduct Internal Workshop ●Finalize Strategic Approach ●Develop Constituent Interview Plan and Finalize Strategic Approach ●Primary Research:Constituent Interviews (25 interviewees) ●Secondary Research:Literature Review ●Local Food System Preliminary Map and Interview Summary Report ●Develop Recommendations and Final Report ●Public Presentations (up to 4) ESTIMATED EXPENSES*:$1,000 Expenses are expected to include compensation for 25 interviewees (proposed $25-$50 donation to a Gallatin-based non-profit);and meeting room spaces,refreshments and other costs related to hosting interviews. *Any and all expenses will be submitted for review and approval before they are incurred and then will be submitted for payment after having been incurred. PAYMENT SCHEDULE Invoice #1:25%—Due upon signing of the professional services agreement Invoice #2:25%—Due Oct 1,2023:Phases 1a,1b,1c,and 2a substantially complete Invoice #3:25%—Due Jan 1,2024:Phases 2b and 3 66%complete Invoice #4:25%—Due upon completion of the scope of work 6 105 AFFIRMATION OF NONDISCRIMINATION APPENDIX A NONDISCRIMINATION AND EQUAL PAY AFFIRMATION Kate Burnaby Wright and Latta Consultants hereby affirms it will not discriminate on the basis of race,color,religion,creed,sex,age,marital status,national origin,or because of actual or perceived sexual orientation,gender identity or disability and acknowledges and understands the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatments or proposer’s employees and to all subcontracts. In addition,Kate Burnaby Wright and Latta Consultants hereby affirms it will abide by the Equal Pay Act of 1963 and Section 39-3-104,MCA (the Montana Equal Pay Act),and has visited the State of Montana Equal Pay for Equal Work “best practices”website, https://equalpay.mt.gov/BestPractices/Employers,or equivalent “best practices publication and has read the material. Names and titles of people authorized to sign on behalf of submitter: Kate Burnaby Wright May 18,2023 Maclaren Latta,Owner Latta Consultants May 18,2023 7 106 Memorandum REPORT TO:City Commission FROM:Renata Munfrada, Community Housing Program Coordinator David Fine, Economic Development Program Manager Brit Fontenot, Economic Development Director SUBJECT:Authorize City Manager to sign Professional Services Agreement with Human Resource Development Council District IX for Affordable Housing Program Management MEETING DATE:June 13, 2023 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize City Manager to sign Professional Services Agreement with Human Resource Development Council District IX 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 Human Resource Development Council of District IX (HRDC), through a Professional Services Agreements with the City of Bozeman, works to counsel and qualify buyers of affordable housing with the HUD Certified Homebuyer Education Class. HRDC also offers pre-purchase counseling, analyzes buyer qualifications, manages marketing, and record keeping. HRDC will also monitor and manage for long-term affordability on deed restricted homes. HRDC's Community Development Director (CDD) works closely with City staff to provide additional capacity regarding affordable housing best practices and updated program guidance. The CDD helps staff respond to housing developers and nonprofits, and assists citizens seeking affordable housing resources with information and access to services. The CDD also works to build a more sustainable community by focusing on the relationships between affordable housing, economic and workforce development, and transportation systems within the city. The CDD connects City staff to agency data relevant to creating and updating the City of Bozeman Consolidated Plan. UNRESOLVED ISSUES:None. ALTERNATIVES:As recommended by the City Commission. FISCAL EFFECTS:The Professional Services Agreement with HRDC, in the amount of $60,000, 107 will come out of the Community Housing Program FY23 budget. Attachments: Professional Services Agreement for Community Housing Program 23-24.pdf Report compiled on: June 5, 2023 108 Professional Services Agreement for Community Housing Program Scope of Services July 1, 2023, to June 30, 2024 HUD Certified Homebuyer Education Class – $20,000 HRDC will provide a minimum of 18 homebuyers' classes in the City of Bozeman annually. HRDC's homebuyer’s education course provides an important first point of entry for many residents seeking affordable ownership and is a requirement of all potential homebuyers in the City of Bozeman's Affordable Housing Program. HRDC will provide an 8-hour comprehensive homeownership education course directed by a HUD-approved housing counselor. Topics covered will include advantages and disadvantages of home ownership, assessing homeownership readiness, understanding credit, managing finances, the mortgage process, programs for first-time home buyers, shopping for a home, lender, and a realtor, closing the deal, home maintenance, and post purchase concerns. HRDC will provide the course free of charge and allow all interested potential homebuyers to attend. The Homebuyer Education Class schedule and instructions for attending will be published on HRDC's website, and via HRDC's social media channels. It will also be sent by email to industry partners. A course flyer and schedule are also inserted into internal and external newsletters distributed by HRDC. Pre-Purchase Counseling, Buyer Qualification, Marketing, and Record Keeping – $20,000 Pre-purchase counseling: HRDC's HUD-certified counselors will provide pre-purchase counseling on an individual basis to all persons interested in becoming buyers qualified to purchase a home using City and other related programs. HRDC's pre-purchase counseling will help potential buyers better understand their specific home buyer readiness and identify any barriers to successful and sustainable home ownership. HRDC will assist potential buyers with budgeting, credit, home search, financing, low- interest loan and other subsidy programs, home care and maintenance, purchase procedures, closing, RESPA, loan document review services, terms, and other necessary aspects to purchasing a home. As part of the initial counseling session, HRDC will provide all participants in the counseling session with HUD required materials and disclosures. Buyer Qualification: During pre-purchase counseling, HRDC will evaluate potential buyers for eligibility for possible down payment assistance and secondary lending opportunities which may be available locally through the City of Bozeman's Community Housing Program and the HOME Program Homebuyer Assistance Program in partnership with the Montana Department of Commerce. Qualified Home Buyer Pool: HRDC will maintain a pool of potential qualified home buyers for income brackets as agreed upon with City staff upon review of potential projects. HRDC will notify qualified potential buyers of new home ownership opportunities as they are made available and work with developers of housing to help them understand the needs and resources of households 109 on the list. HRDC will also partner with developers and builders to develop affordable housing plans for submittal to the City. Mechanism Monitoring/Management for Long-term Affordability – $11,000 HomeKeeper System Management, Maintenance, and Data Sharing HRDC will provide and maintain a license for HRDC and the City to use HomeKeeper software (or such alternate software program City consents to in writing) to track applicant eligibility data, and demographics. City's license to use the software must allow the City to access information related to the home buyers, and other records HRDC is required by this Agreement to provide to the City that are stored in the software program. HRDC represents and warrants it has the right under its software license for the City's use of the software as described in this Agreement, and City's use will not infringe on the rights of any third party. Loan Origination/Deed Restriction/Lien Documents HRDC will provide trained professionals to work with local real estate agents, lenders, and title agents to ensure that the home purchase process requirements of below-market homes created by developers in exchange for incentives offered by the City of Bozeman meet applicable program requirements, including down payment assistance, is completed efficiently and in compliance with program regulations. HRDC will provide services related to loan origination, deed restriction, and lien documentation and recordation in accordance with City guidelines. Monitoring and Compliance HRDC will provide monitoring for and verify homeowner compliance with the ownership requirements for homes produced under the previous AHO and under related affordable housing plans provided by developers, including use as primary residence and occupancy requirements. HRDC will request homeowners provide documentation proving compliance on an annual basis. Deed Re-conveyance/Subsidy Recapture at Resale Upon a recapture or re-conveyance event as described in the City's recorded lien documents, HRDC will work closely with homeowners, lenders, realtors, and title agents to ensure that all the terms of the loans are met and a payoff amount is calculated, collected, and understood by all parties. Copies of the finalized documentation will be sent digitally to the City’s representative for review. Funds obtained by HRDC in performing the recapture process will be transferred to the City within 90 days of receipt by HRDC. Community Development Director staff time (approximately 200 hours/year) – $9,000 HRDC’s Community Development Director (CDD) works closely with City staff to provide additional capacity regarding affordable housing best practices and updated program guidance. The CDD helps staff to respond to inquiries from developers of subsidized and market rate housing, provides technical assistance to housing developers and non-profits, and assists citizens seeking affordable housing resources with information and access to services. The CDD also works to build a more sustainable community by focusing on the relationships between 110 affordable housing, economic and workforce development, and transportation systems within the city. The CDD connects City staff to agency data relevant to creating and updating the City of Bozeman Consolidated Plan. Record Keeping and Reporting: HRDC will provide the City with the following records and reports within the following timeframes. HRDC may also make the records available to the City Representative in the HomeKeeper or other tracking software it provides under this Agreement. Records and reporting requirements may be adjusted by the City in writing. 1. Recapture documentation, including each recapture due, payment by the homeowner, and transfer of the payment to the City – Quarterly 2. Reporting and invoices for services rendered - Quarterly ▪ Number of Home Buyer Education classes ▪ Number of participants in Home Buyer Education classes ▪ Number of pre-purchase counsels ▪ All other activities performed under PSA 3. Documents evidencing Owner Occupancy of Affordable Homes will be stored in Homekeeper - Annually Scope of Services Summary: HUD Certified Homebuyer Education Class – $20,000 Pre-Purchase Counseling, Buyer Qualification, Marketing, and Record Keeping – $20,000 Mechanism Monitoring/Management for Long-term Affordability – $11,000 Community Development Director staff time (approximately 200 hours/year) – $9,000 TOTAL: $60,000 111 Memorandum REPORT TO:City Commission FROM:Natalie Meyer, Sustainability Program Manager Jon Henderson, Strategic Services Director SUBJECT:Authorize the City Manager to Sign Amendment 1 to the Interlocal Agreement between City of Bozeman, City of Missoula, and Missoula County to Inform the Development of a Green Tariff MEETING DATE:June 13, 2023 AGENDA ITEM TYPE:Agreement - Agency/Non-profit RECOMMENDATION:Authorize the City Manager to Sign Amendment One to the Interlocal Agreement between City of Bozeman, City of Missoula, and Missoula County to inform the development of a green tariff. STRATEGIC PLAN:6.3 Climate Action: Reduce community and municipal Greenhouse Gas (GHG) emissions, increase the supply of clean and renewable energy; foster related businesses. BACKGROUND:The Bozeman City Commission adopted the 2020 Bozeman Climate Plan with goals for achieving a 26% greenhouse gas emissions reduction by 2025, 100% net clean electricity by 2030, and carbon neutrality by 2050. Action 2.E.1 calls for the advancement of a green tariff to increase community demand for clean energy products that will result in a greater investment in clean energy across Montana. A green tariff is a common mechanism by which customers of regulated utilities have the option to buy power from newly developed renewable energy sources through a special rate (or “tariff”) on their utility bills. On February 2, 2021, the City Commission authorized the City of Bozeman to enter into an Interlocal Agreement between the City of Bozeman, the City of Missoula, Missoula County, and the City of Helena to inform the development of a green tariff. Under the agreement, the local governments secured and paid for a professional consultant to inform the development of a green tariff to meaningfully advance our clean energy goals. The local governments’ goals for the voluntary green tariff include (1) that it results in the development of new utility-scale renewable energy in the state of Montana, (2) that the green tariff rates, contract terms, and eligibility requirements make it accessible and attractive to as many NorthWestern Energy customers as possible, and (3) that it does not negatively impact non- 112 participating customers. The adopted Interlocal Agreement formalized the relationship among the local governments for the purpose of jointly hiring and managing a consultant to assist with the green tariff rate design and economic analysis. Work to develop a framework for the rates and the approval process continues. The local governments anticipate that a provisional term sheet outlining the framework will be available for Commission review in August 2023. Work with the consultant may continue through 2025. Section 1 of the Agreement provided that the term would be for two (2) years unless extended by six (6) months by mutual agreement of the parties in writing. The Agreement was administratively extended on February 11, 2023, for a period of six (6) months and will end on August 10, 2023 unless extended. Amendment No. 1 will extend the term of the agreement to four (4) years, from February 10, 2021 to February 10, 2025, unless extended for up to one (1) -year increments by mutual agreement. Section 4.2 of the Agreement specified that the contract with the consultant should not exceed $138,000. Amendment No. 1 will increase the contract amount by up to $65,000, not to exceed $203,000 without the consent of the local governments. The City of Missoula and Missoula County will contribute the additional funding allocation referenced in Amendment No.1. The City of Bozeman will not increase its original allocation of $90,000, but the agreement extends our existing commitment through fiscal year 2024. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The City of Bozeman's contribution under the Interlocal Agreement is authorized within the Sustainability Division's operating budget. Attachments: Amendment No. 1 Interlocal Agreement for Green Tariff.pdf Report compiled on: June 1, 2023 113 AMENDMENT NO. 1 TO THE INTERLOCAL AGREEMENT BETWEEN CITY OF BOZEMAN, CITY OF MISSOULA, AND MISSOULA COUNTY THIS AMENDMENT No. 1 ("Amendment") is made and entered into as of the date set forth below between the City of Bozeman, City of Missoula, and Missoula County (collectively "the Parties"). RECITALS A. The Parties entered into an interlocal agreement dated February 10th, 2021 ("the Agreement"), under which the Parties agreed to mutually secure and pay for a professional, qualified consultant to inform the development of a green tariff that will meaningfully advance the Parties’ clean energy goals. B. Section 1 of the Agreement provided that the term of the Agreement would be for TWO (2) years unless extended in SIX (6) month increments by mutual agreement of the Parties in writing. C. The Agreement was extended on February 11, 2023 for a period of SIX (6) months and will end on August 10, 2023 unless extended. This extension was to allow time for the Parties to determine the appropriate amendments to the Agreement’s duration and budget. D. The Parties continue to contract with a professional, qualified consultant to inform the development of a green tariff that will meaningfully advance the Parties’ clean energy goals, in alignment with the purpose of the Agreement. The Parties anticipate work with this consultant may continue through 2025. E. The Parties would like to allow for longer durations of extension, beyond SIX (6) month increments, to align with the expected timeline of consultant services needed to support development of a green tariff that will meaningfully advance the Parties’ clean energy goals. The Parties would also like to increase the funds they may allocate to the contract with the consultant to pay for their continued work. F. The Parties therefore desire to amend Sections 1, 4.2, and 4.3 of the Agreement to clarify these changes to its terms. NOW, THEREFORE, in consideration of the mutual benefits herein contained, the Parties hereby agree as follows: 1. Section 1 of the Agreement is hereby amended to read as follows: The duration or term of this Agreement shall be FOUR (4) years, from February 10th 2021 to February 10th 2025, unless extended for up to ONE (1) year increments by mutual agreement of the Parties in writing. The duration may end sooner than FOUR (4) years if terminated pursuant to section 6 of this Agreement. 2. Section 4.2 of the Agreement is hereby amended to read as follows: 114 The original Agreement specified that the contract with the consultant should not exceed $138,000. This amendment to the Agreement extends this allowed allocation by a total of $65,000, such that the contract with the consultant now shall not exceed $203,000 without consent of the Parties. The Parties agree to contribute the following toward the contract total: • Missoula County: up to $30,000 plus any additional amount allocated in Fiscal Year 2024 • City of Missoula: up to $75,000 total between Fiscal Years 2021, 2022, 2023 and 2024 • City of Bozeman: up to $90,000 total between Fiscal Years 2021, 2022, 2023 and 2024 • City of Helena: up to $8,000 plus any additional amount allocated in Fiscal Year 2022 3. Section 4.3 of the Agreement is hereby amended to read as follows: Funding from the Parties shall be allocated from the respective adopted Fiscal Year 2021, 2022, 2023, and 2024 budgets of each of the Parties. 4. All other terms of the Agreement shall remain in full force and effect except as amended by this Amendment. If a conflict arises between the terms of this Amendment and the Agreement, the terms of this Amendment shall control. IN WITNESS WHEREOF, the Parties have executed this Amendment as of the day and year written below. EXECUTED this day of , 2023 MISSOULA COUNTY CITY OF MISSOULA BY: BY: ________________________________________ _______________________________________ Josh Slotnick Jordan Hess Chair, Board of County Commissioners Mayor ________________________________________ ATTEST David Strohmaier Commissioner _______________________________________ Marty Rehbein ________________________________________ City Clerk Juanita Vero Commissioner 115 ATTEST: ________________________________________ Tyler Gernant Clerk and Recorder CITY OF BOZEMAN BY: _______________________________________ Jeff Mihelich City Manager ATTEST _______________________________________ Mike Maas City Clerk 116 Memorandum REPORT TO:City Commission FROM:Bob Murray, Project Engineer Shawn Kohtz, City Engineer SUBJECT:Authorize the City Manager to Sign Task Order Number 6 to the Right-of-way Acquisition Project for Fowler Avenue Right-of-way Pre-Acquisition Appraisals MEETING DATE:June 13, 2023 AGENDA ITEM TYPE:Agreement - Legal RECOMMENDATION:Authorize the City Manager to sign Task Order Number 6 to the Right of Way Acquisition Project for Fowler Avenue R/W Pre-Acquisition Appraisals. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:Attached is a copy of the partially executed Task Order Number 6 with Sanderson Stewart for the Right of Way Acquisition Project for parcels on Fowler Avenue between Oak and Babcock. The design of the improvements project for Fowler Avenue between Oak Street and Huffine Lane are progressing. There are 2 large parcels between Oak and Babcock that will require temporary and/or permanent easements to construct the improvements. The City has a term contract with Sanderson Stewart for right of way acquisition services. This task order will add the right of way acquisition for the two parcels to the existing contract. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission FISCAL EFFECTS:The proposed fee for this scope of work is paid on a time and materials basis with a total cost not to exceed amount of $13,115.00. (SIF001, FY 24 Budget $2,450,000). Attachments: Fowler Pre-acq_Task Order 6.pdf Report compiled on: June 1, 2023 117 ____ Initials May 22, 2023 Mr. Taylor Lonsdale, PE City of Bozeman 20 East Olive St. Bozeman, MT 59715 Reference: City of Bozeman Land Agent Services FY 2021 - FY 2022 Project Scope of Work – Task Order No. #6 Fowler Avenue R/W Pre-Acquisition Appraisals Dear Mr. Lonsdale: The following is a proposal for Sanderson Stewart to provide land agent services for street and utility improvements in connection with the City’s project as referenced above and as described in the Overview section to follow. If this task order proposal is acceptable to you, please execute this agreement by signing and dating the signature page. This agreement sets forth the terms of the contract between the City of Bozeman (hereinafter “Client”) and Sanderson Stewart. The Professional Services Agreement for Streets and Utilities Land Agent Service FY 2021-FY 2022 master services agreement is expressly incorporated into and made part of the contract between the Client and Sanderson Stewart. Project Overview We understand the City of Bozeman intends to construct street and utility improvements in the Fowler Avenue corridor from Huffine Lane to West Oak Street in the near future. The project improvements will provide improved public transportation and utility facilities to cover current and future development growth in west-central Bozeman. To facilitate the improvements, additional permanent and temporary right-of-way (R/W) will be required. As part of the R/W Pre-Acquisition tasks, Sanderson Stewart will provide professional R/W acquisition services to complete two appraisals and preliminary R/W agreements for two parcels as shown on the attached Figure 1. The following scope of work is for pre-acquisition activities only with final R/W acquisition activities to be scoped under a separate task order. TG 118 Mr. Taylor Lonsdale, PE May 22, 2023 Page 2 _____ Initials Scope of Work Sanderson Stewart will provide the following services as part of the basic scope of work: 1. Project Research This phase of the project consists of preliminary R/W activities to obtain pertinent project information. Subtasks under Item 1 will include the following: · Obtain and review available preliminary design plans and project documentation · Coordination meeting with the project team members 2. R/W Mapping and Exhibits This phase of the project consists of the preparation of R/W exhibits to acquire property interests. Subtasks under Item 2 will include the following: · Sanderson Stewart is under contract to design the road project and will provide any available proposed/existing plans/drawings for the project area · Prepare preliminary figures for Parcels 1 and 2 showing proposed R/W acquisition areas. Approximate areas for a new easement and construction permit will be prepared for each parcel. · QA/QC of figures 3. Appraisals and Valuations This phase of the project consists of the preparation of appraisal and valuation documents to value the property rights to be acquired. Subtasks under Item 3 will include the following: · Two (2) full appraisal narratives will be prepared for Parcels 1 and 2 by a licensed appraisal subconsultant (Nick Hogan) · Review appraisals are not included in this scope of services · Team coordination · QA/QC of appraisal documents 4. Prepare Contracts This phase of the project consists of the preparation of offer packages to acquire R/W, including agreements, deeds, easements, exhibits, figures, and correspondence letters. Subtasks under Item 4 will include the following: TG 119 Mr. Taylor Lonsdale, PE May 22, 2023 Page 3 _____ Initials · Prepare preliminary R/W agreements for two (2) parcels of land. The agreements will detail the preliminary offer to acquire permanent and temporary property rights. Impacted private property features will be detailed, if required. · Easement and/or temporary construction permit documents are not included in this scope and will be prepared under a separate contract · Prepare acquisition cost details and summary · QA/QC of documents 5. Property Owner Meetings This phase of the project includes conducting pre-acquisition meetings with affected property owners and modifying the initial R/W agreements based on owner/client meetings. Subtasks under Item 5 will include the following: · Conduct acquisition meetings with two (2) property owners (minimum of 3 meetings each) · Prepare final preliminary acquisition documents for affected parcels · QA/QC of documents 6. Project Administration This phase of the project consists of the activities to manage the project requirements, deliverables, and tasks. Subtasks under Item 6 will include the following: · Project status updates · Budget and schedule monitoring and planning · Invoicing and billing Scope of Work Exclusions The following is a list of project phases or tasks that are excluded for the proposed Scope of Work. If the Client so desires, Sanderson Stewart may be able to provide additional services directly or contract with a sub-consultant to provide additional services. · Engineering or R/W design services · Eminent domain proceedings, expert witness testimony, costs, or other services necessary for legal proceedings · Additional costs related to the actual purchase price of property interests as detailed in R/W acquisition agreements · Relocation costs paid to property owners as detailed in R/W acquisition agreements TG 120 Mr. Taylor Lonsdale, PE May 22, 2023 Page 4 _____ Initials Sanderson Stewart shall have the right, but not the obligation, to provide, without advance authorization from the Client, other services made necessary by the default of the Client or its Contractor(s), or by deficiencies, delays, or defects in the work provided by the Contractor(s). Sanderson Stewart shall provide written notice of the provision of such services as soon as reasonably possible. Project Staff The following Sanderson Stewart staff will be assigned to the project: Senior Quality Reviewer: Danielle Scharf, Principal Project Manager/Agent: Tony Gaddo, Senior Engineer/REALTOR® Additional Project Staff: Keaton Edam, Staff Engineer Sanderson Stewart may, in its discretion, utilize additional or different personnel on the project. Project Schedule Sanderson Stewart and the Client will work cooperatively to develop a proposed schedule for initiation and delivery of the project Scope of Work. This schedule shall include reasonable allowances for performance of services by the Client’s consultants (those not under contract with Sanderson Stewart), review and approval times as required by the Client, and review and approval times required by all public authorities having jurisdiction over the project. This schedule shall be equitably adjusted as the project progresses, allowing for changes in scope, character, or size of the project requested by the Client, or for delays or other causes beyond Sanderson Stewart’s reasonable control. Fees and Billing Arrangements Invoice and Billing: Sanderson Stewart will bill for its services on a time-and-materials basis with a total cost not to exceed $13,115.00. Sanderson Stewart will begin work once this agreement has been executed by both parties. Right-of-Way Acquisition 1. Project Research $218.00 2. R/W Mapping and Exhibits $1,142.00 3. Appraisals and Valuations $672.00 4. Prepare Contracts $1,243.00 5. Property Owner Meetings $1,814.00 6. Project Administration $526.00 TG 121 Mr. Taylor Lonsdale, PE May 22, 2023 Page 5 _____ Initials Appraisals (Nick Hogan) $7,500.00 Total $13,115.00 Sanderson Stewart will submit monthly invoices to the Client for work accomplished during the preceding invoice period. That invoice period will typically be approximately 30 days and will follow a calendar month schedule. Monthly invoices shall include, separately listed, any charges for services for which time charges and/or unit costs shall apply. Such invoices shall also include, separately listed, any charges for consultants retained by Sanderson Stewart, and reimbursable costs. Such invoices shall be submitted by Sanderson Stewart as soon as possible after the end of the month in which the work was accomplished and shall be due and payable by the Client upon receipt. The Client agrees that the monthly invoice from Sanderson Stewart is correct, conclusive, and binding on the Client unless the Client, within 20 working days from the date of receipt of such invoice, notifies Sanderson Stewart in writing of alleged inaccuracies, discrepancies, errors in the invoice, or the need for additional backup. Entire Agreement: This agreement, including the Professional Services Agreement for Streets and Utilities Land Agent Service FY 2021-FY 2022 master services agreement is made part of this contract, constitutes the entire agreement between Sanderson Stewart and the Client. It supersedes all prior communications, understandings, and agreements, whether oral or written. It shall become effective after being signed and dated by both parties; and, upon each page being initialed by Sanderson Stewart. Any amendment or modification to this contract must be written and executed by both Sanderson Stewart and the Client. Conclusion Mr. Lonsdale, we look forward to working with you on this project. Feel free to call me at 406/922-4304 if you have any questions regarding this task order proposal. Otherwise, if it meets your approval, simply mail or email this signed and dated agreement to our office at 106 East Babcock, Suite L1, Bozeman, MT 59715 or tgaddo@sandersonstewart.com. Thank you. Sincerely, Tony Gaddo, PE, REALTOR® Senior Engineer | Right-of-Way Specialist TG 122 Mr. Taylor Lonsdale, PE May 22, 2023 Page 6 _____ Initials This Task Order is dated ________________, 20___ between City of Bozeman, Montana (City) and Sanderson Stewart (Contractor). IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. By Client Title Date By Sanderson Stewart Title Date TG/DS Enc. TG 123 FIGURE 1NORTH0100SCALE:1" = 200'200100PARCEL 1PARCEL 2124 Memorandum REPORT TO:City Commission FROM:Kellen Gamradt, Engineer II Shawn Kohtz, City Engineer SUBJECT:Resolution 5493 Authorizing Change Order 1 to the 2023 Downtown Sewer Renovations Project MEETING DATE:June 13, 2023 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Approve Resolution 5493 authorizing Change Order No.1 to the 2023 Downtown Sewer Renovations Project STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a mechanism to encourage economic development. BACKGROUND:Attached is a copy of resolution 5493 and change order number 1 for the above referenced project. The method of construction for this project as described in the contract documents and drawings was open cut excavation. Through conversations between City Staff and the Contractor, pipe bursting is now the preferred method of construction for this project. There is no adjustment to the contract price or contract time with this change order. This change order documents the changes to the contract specifications and unit prices. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the Commission FISCAL EFFECTS:None Attachments: Resolution 5493.doc Change Order #1.pdf Report compiled on: May 31, 2023 125 1 of 2 COMMISSION RESOLUTION NO. 5493 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, APPROVING ALTERATION/MODIFICATION OF CONTRACT WITH TIMBERLAKE CONSTRUCTION, GREENLEAF, IDAHO WHEREAS,the City Commission did, on the 13TH day of December2022, authorizeaward of the bid for the 2023 Downtown Sewer RenovationsProject, toTimberlakeConstruction, llc Greenleaf, Idaho; and WHEREAS,Section 7-5-4308, Montana Code Annotated, provides that any such alterations or modifications of the specifications and/or plans of the contract be made by resolution; and WHEREAS,it has become necessary in the prosecution of the work to make alterations or modifications to the specifications and/or plans of the contract. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, that the proposed modifications and/or alterations to the contract between the City of Bozeman, a municipal corporation, andTimberlake Construction, llc, as contained in Change Order No. 1,attached hereto, be and the same are hereby approved; and the City Manager is hereby authorized and directed to execute the contract change order for and on behalf of the City;and the City Clerkis authorized and directed to attest such signature. 126 Resolution No. 5493, Change Order 1 for 2023 Downtown Sewer Renovations Project 2 of 2 PASSED AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 13th day of June, 2023. __________________________________________ CYNTHIA ANDRUS Mayor ATTEST: ________________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _____________________________________________ GREG SULLIVAN City Attorney 127 128 Resolution No. 5493, Change Order 1 for 2023 Downtown Sewer Renovations Project 2 of 2 PASSED AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 16th day of May, 2023. __________________________________________ CYNTHIA ANDRUS Mayor ATTEST: ________________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _____________________________________________ GREG SULLIVAN City Attorney 129 Page 2 of 2 R:\CIP Projects\WASTEWATER\2022 Downtown Sewer Reno\Construction\CO1\16-COB Change Order Form.doc CHANGE ORDER INSTRUCTIONS A. GENERAL INFORMATION This document was developed to provide a uniform format for handling contract changes that affect Contract Price or Contract Times. Changes that have been initiated by a Work Change Directive must be incorporated into a subsequent Change Order if they affect Price or Times. Changes that affect Contract Price or Contract Times should be promptly covered by a Change Order. The practice of accumulating Change Orders to reduce the administrative burden may lead to unnecessary disputes. If Milestones have been listed in the Agreement, any effect of a Change Order thereon should be addressed. For supplemental instructions and minor changes not involving a change in the Contract Price or Contract Times, a Field Order should be used. B. COMPLETING THE CHANGE ORDER FORM Engineer normally initiates the form, including a description of the changes involved and attachments based upon documents and proposals submitted by Contractor, or requests from Owner, or both. Once Engineer has completed and signed the form, all copies should be sent to Owner or Contractor for approval, depending on whether the Change Order is a true order to the Contractor or the formalization of a negotiated agreement for a previously performed change. After approval by one contracting party, all copies should be sent to the other party for approval. Engineer should make distribution of executed copies after approval by both parties. If a change only applies to price or to times, cross out the part of the tabulation that does not apply. 130 2023 Downtown Sewer Renovations (#8270969)Owner: Bozeman MT, City ofSolicitor: Bozeman MT, City of11/17/2022 02:30 PM MSTTimberlake ConstructionTimberlake ConstructionSection Title Line Item Item Code Item Description UofM QuantityUnit Price Extension UofM QuantityUnit Price ExtensionSchedule 1$1,222,482 $1,272,482101 101 Taxes, Bonds, InsuranceLS 1 $55,000.00 $55,000.00 LS 1 $55,000.00 $55,000.00102 102 Mobilization LS 1 $255,000.00 $255,000.00 LS 1 $255,000.00 $255,000.00103 103 Remove Existing ManholeEa 10 $6,500.00 $65,000.00 Ea 10 $6,500.00 $65,000.00104 104 Connection to Existing ManholeEa 4 $3,250.00 $13,000.00 Ea 4 $3,250.00 $13,000.00105 105 Connection to Existing Sewer MainEa 8 $6,400.00 $51,200.00 Ea 8 $6,400.00 $51,200.00106 106 10" SDR 35 PVC Sewer Main (12" DR‐17 HDPE) Ln Ft 401 $145.00$58,145.00 Ln Ft 401 $78.00 $31,278.00107 107 8" SDR 35 PVC Sewer Main (10" DR‐17 HDPE) Ln Ft 1636 $105.00$171,780.00 Ln Ft 1636 $70.00 $114,520.00108 108 4' Diameter Basic Manhole 5'‐0" DepthEa 10 $8,500.00 $85,000.00 Ea 10 $8,500.00 $85,000.00109 109 4' Diameter Addditional Manhole DepthVert Ft 67.4 $205.00 $13,817.00 Vert Ft 67.4 $205.00 $13,817.00110 110 4" & 6" SDR 26 PVC Sewer Service ConnectionEa 48 $1,300.00 $62,400.00 Ea 48 $5,844.80 $280,550.40111 111 4" & 6" SDR 26 Sewer Service Ln Ft 60 $85.00 $5,100.00 Ln Ft 60$86.00 $5,160.00112 112 Bypass Pumping LS 1 $65,000.00 $65,000.00 LS 1 $65,000.00 $65,000.00113 113 Cured‐in‐Place Pipe LinerLn Ft 38 $1,750.00 $66,500.00 Ln Ft 0 $1,750.00 $0.00114 114 Asphalt Concrete Pavement 4" ThicknessSq Yd 1096 $65.00 $71,240.00 LS 1 $40,000.00 $40,000.00115 115 Colored & Stamped Concrete CrosswalksSq Ft 100 $85.00 $8,500.00 Sq Ft 100 $85.00 $8,500.00116 116 Traffic Control LS 1 $35,000.00 $35,000.00 LS 1 $35,000.00 $35,000.00117 117 Epoxy Pavement Markings (Yellow Centerline)Gal 10 $457.00 $4,570.00 Gal 8 $457.00 $3,656.00118 118 Epoxy Pavement Markings (White Lane & Edge Line)Gal 2 $400.00 $800.00 Gal 2 $400.00 $800.00119 119 Flowable Backfill Cu Yd 934 $145.00 $135,430.00 LS 1 $100,000.00$100,000.00Miscellaneous Work$50,000.00 $50,000.00120 120 Miscellaneous WorkEa 50000 $1.00 $50,000.00 Ea 50000 $1.00 $50,000.00Base Bid Total:$1,272,482 $1,272,482Original ContractChange Order 1131 DOWNTOWN SEWER RENOVATIONS PROJECT DIVISION 2 - SITEWORK SECTION 02750 – PIPE BURSTING SECTION 02750 – PIPE BURSTING Page 1 of 8 PART 1 - GENERAL 1.01 WORK INCLUDED: This specification covers the rehabilitation of sewer lines using pipe bursting. This process will split or fracture the existing pipe while simultaneously installing a new pipe. If pipe bursting is used to replace the existing main, the CONTRACTOR shall be responsible for all associated work, including maintaining existing sewer service, dealing with existing utilities, reconnecting existing services and protecting existing structures and foundations against damage due to pipe bursting. Any repairs of any damaged utilities or structures during pipe bursting operations must be acceptable to the ENGINEER and OWNER. Since either conventional excavation/installation or pipe bursting are allowed for this sewer main project, the method chosen must provide a complete and satisfactory installation covering all incidental work necessary for that method. If pipe bursting is chosen, the replacement line will follow the existing mains shown on the project drawings. Pipe bursting must be static, pneumatic is not allowed. 1.02 CONTRACTOR QUALIFICATIONS: The CONTRACTOR, or the subcontractor performing the work, shall be certified by the pipe bursting system manufacturer as a fully trained user of the pipe bursting system. Operation of the pipe bursting system shall be performed by trained personnel. The CONTRACTOR shall present evidence to prove to the satisfaction of the ENGINEER that he, or the subcontractor performing the work, has had previous experience in pipe installation of this nature. CONTRACTOR shall employ a superintendent able to furnish acceptable similar evidence and shall keep such supervisor continuously employed until the pipe bursting installation on the project is satisfactorily completed. Presentation of similar experience in the last 3 years shall include: 1. Owner name, address, telephone number, contact person, date and duration of work, location, pipe information, and contents handled by pipeline. 2. Supervisory field personnel and historical information of pipe bursting experience. At least one of the field supervisors listed must be at the site when pipe bursting operations are in progress. Documentation of experience with butt-fusing HDPE pipe and in the use of the equipment proposed for this project to accomplish the necessary butt-fusing shall also be provided. Personnel performing the butt-fusing operation shall have experience with at least two (2) similar jobs. 132 DOWNTOWN SEWER RENOVAIONS PROJECT SECTION 02750 – PIPE BURSTING Page 2 of 8 1.03 RESPONSIBILITY: The pipe bursting CONTRACTOR shall have complete responsibility for installation of the new HDPE pipe within the existing sewer main, locate and reconnect all sewer services, protect and to repair any damaged to other existing utilities in the vicinity of the work or any other features that may be damaged during construction, and to supervise all aspects of the work as required by these Contract Documents. If upsizing the existing sewer mains to sizes shown on the plans results in the need to bore out a portion of the existing sewer main prior to installing the new pipe, that work shall be included. The CONTRACTOR shall be responsible for making any investigations into soil conditions or any other existing conditions that he deems necessary in order to prepare his bid and execute the work. 1.04 SUBMITTALS: Submittals will be required for all qualifications, processes, and materials in accordance with this section and 01300. Submittals shall include all equipment proposed including that for both pipe bursting and butt-fusing of HDPE pipe. A detailed description of the complete process proposed for the replacement of this sewer main by pipe bursting shall also be submitted. This includes excavations, service locations and reconnections, and the process to upsize the space for the new pipe. Specifically, submittals to be provided must include, but are not necessarily limited to the following: A. Certifications of training by the pipe bursting systems manufacturer stating the operators have been fully trained in the use of the equipment. B. Certifications from the pipe manufacturer of training and the proper method of handling and installing the new pipe. C. Certifications of training by the pipe fusion equipment manufacturer that the operators have been fully trained in use of the fusion equipment. D. Detailed construction procedures and layout plans, including sequence of construction. E. Method of locating and installing the service lines. F. Method of installing a new pipe through the existing pipe, including pipe bursting existing or excavating existing fittings, valves, and repair clamps. G. Method of establishing and utilizing the launching and receiving pits. H. Method for providing temporary water service, disinfection, and restoring service. I. Experience of the CONTRACTOR and the superintendent. J. Information on all equipment proposed for pipe bursting operations. K. Any other information required to provide a complete understanding of the proposed construction methods. PART 2 - PRODUCTS 2.01 PIPE: Pipe shall be high density polyethylene (HDPE), complying with Section 02710. HDPE pipe shall have a wall thickness equal to a DR-17 at a minimum; however, the CONTRACTOR shall use a 133 DOWNTOWN SEWER RENOVAIONS PROJECT SECTION 02750 – PIPE BURSTING Page 3 of 8 thicker walled pipe if required to properly install the pipe under this particular project with its unique conditions using pipe bursting methods. All joints shall be fusion welding using equipment that creates a joint that has strength equal to that of the pipe itself. The equipment for fusion welding shall be specifically designed for this purpose and be used according to the manufacturer’s requirements. PART 3 - EXECUTION Both the pipe bursting and fusion welding processes shall comply with manufacturer’s requirements and the Specifications. All materials shall be transported, handled and stored as recommended by the manufacturer and so as not to damage them. Any damaged materials shall be replaced by acceptable materials at the CONTRACTOR’s cost. CONTRACTOR shall employ a static pipe bursting method to satisfactorily install the new pipe. CONTRACTOR shall be responsible for and promptly repair any damage to any existing facilities during the pipe installation. The pipe bursting tool shall be designed to force its way through the existing pipe materials by fragmenting the pipe and compressing the old pipe sections into the surrounding soil as it progresses. A properly sized bursting unit shall be used to create sufficient room for the new pipe. This room shall be at least 4 inches larger than the pipe. CONTRACTOR shall locate all existing services and laterals before pipe bursting, and once the bursting is completed, connect these services to the new pipe within the time requirements. The pipe bursting unit shall be remotely controlled and locatable, so that its location can be accurately determined at any time. If any installed new pipe does not satisfactorily comply with these requirements, it shall be removed and replaced by the CONTRACTOR. This includes replacing any defective joints, and any section of pipe with a gash, abrasion or other flaw with a depth equal to 10% of the wall thickness. Lubrication shall be used if in the opinion of the CONTRACTOR such lubrication is necessary to ensure the successful completion of the job. Any lubricants used shall be suitable for use with potable water pipe and not negatively impact the environment. Any material that enters the pipe during the pipe bursting operation shall be removed by the CONTRACTOR. CONTRACTOR shall make excavations as needed to connect to existing pipe, or to install valves, hydrant connections, services, laterals, or fittings. This work shall comply with other specification sections as appropriate. A. Fusion Technician & Installer Requirements 134 DOWNTOWN SEWER RENOVAIONS PROJECT SECTION 02750 – PIPE BURSTING Page 4 of 8 1. The fusion technician shall be fully qualified by the pipe supplier to install Fusible HDPE pipe of the type(s) and size(s) being used. Qualification shall be current as of the actual date of fusion performance on the project. 2. For an installer to be considered commercially proven, the installer must have at least 5 years active experience in the commercial installation of Fusible PVC by means of pipe bursting. The installer's key personnel shall have at least 25,000 linear feet and/or 100 line sections of successful experience with pipe bursting of Fusible PVC pipe. Included in this experience shall be a sufficient quantity of installations in the sizes proposed for this project. B. Fusion Joints Unless otherwise specified, Fusible HDPE pipe lengths shall be assembled in the field with butt- fused joints. The Contractor shall follow the pipe supplier’s written guidelines for this procedure. 1.02 DELIVERY, HANDLING & STORAGE A. Delivery & Off‐Loading 1. All pipe shall be bundled or packaged in such a manner as to provide adequate protection of the ends during transportation to the site. Any pipe damaged in shipment shall be replaced as directed by the Engineer. 2. Each pipe shipment should be inspected prior to unloading to see if the load has shifted or otherwise been damaged. Notify Owner and Engineer immediately if more than immaterial damage is found. Each pipe shipment should be checked for quantity and proper pipe size, color, and type. 3. Pipe should be loaded, off-loaded, and otherwise handled in accordance with AWWA M23, and all of the pipe supplier’s guidelines shall be followed. 4. Off-loading devices such as chains, wire rope, chokers, or other pipe handling implements that may scratch, nick, cut, or gouge the pipe are strictly prohibited. 5. During removal and handling, be sure that the pipe does not strike anything. Significant impact could cause damage, particularly during cold weather. 6. If appropriate unloading equipment is not available, pipe may be unloaded by removing individual pieces. Care should be taken to insure that pipe is not dropped or damaged. Pipe should be carefully lowered, not dropped, from trucks. B. Handling & Storage 1. Any length of pipe showing a crack or which has received a blow that may have caused an incident fracture, even though no such fracture can be seen, shall be marked as rejected and removed at once from the work. Damaged areas, or possible areas of damage may be removed by cutting out and removing the suspected incident fracture area. Limits of the acceptable length of pipe shall be determined by the Engineer. 2. Any scratch or gouge greater than 10% of the wall thickness will be considered significant and can be rejected unless determined acceptable by the Engineer. 135 DOWNTOWN SEWER RENOVAIONS PROJECT SECTION 02750 – PIPE BURSTING Page 5 of 8 3. Pipe lengths should be stored and placed on level ground. Pipe should be stored at the job site in the unit packaging provided by the manufacturer. Caution should be exercised to avoid compression, damage, or deformation to the ends of the pipe. The interior of the pipe, as well as all end surfaces, should be kept free from dirt and foreign matter. 4. Pipe shall be handled and supported with the use of woven fiber pipe slings or approved equal. Care shall be exercised when handling the pipe to not cut, gouge, scratch or otherwise abrade the piping in any way. 5. If pipe is to be stored for periods of 1 year or longer, the pipe should be shaded or otherwise shielded from direct sunlight. Covering of the pipe which allows for temperature build-up is strictly prohibited. Pipe should be covered with an opaque material while permitting adequate air circulation above and around the pipe as required to prevent excess heat accumulation. 6. Pipe shall be stored and stacked per the pipe supplier’s guidelines. 1.03 FUSION PROCESS A. General 1. Fusible HDPE pipe will be handled in a safe and non-destructive manner before, during, and after the fusion process and in accordance with this specification and pipe supplier’s guidelines. 2. Fusible HDPE pipe will be fused by qualified fusion technicians, as documented by the pipe supplier. 3. Each fusion joint shall be recorded and logged by an electronic monitoring device (data logger) connected to the fusion machine. 4. Only appropriately sized and outfitted fusion machines that have been approved by the pipe supplier shall be used for the fusion process. Fusion machines must incorporate the following elements: a. Heat Plate: Heat plates shall be in good condition with no deep gouges or scratches. Plates shall be clean and free of any debris or contamination. Heater controls shall function properly; cord and plug shall be in good condition. The appropriately sized heat plate shall be capable of maintaining a uniform and consistent heat profile and temperature for the size of pipe being fused, per the pipe supplier’s guidelines. b. Carriage: Carriage shall travel smoothly with no binding at less than 50 psi. Jaws shall be in good condition with proper inserts for the pipe size being fused. Insert pins shall be installed with no interference to carriage travel. c. General Machine: Overview of machine body shall yield no obvious defects, missing parts, or potential safety issues during fusion. d. Data Logging Device: An approved data logging device with the current version of the pipe supplier’s recommended and compatible software shall be used. Data logging device operations and maintenance manual shall be with the unit at all times. If fusing for extended periods of time, an independent 110V power source shall be available to extend battery life. 136 DOWNTOWN SEWER RENOVAIONS PROJECT SECTION 02750 – PIPE BURSTING Page 6 of 8 5. Other equipment specifically required for the fusion process shall include the following: a. Pipe rollers shall be used for support of pipe to either side of the machine. b. A weather protection canopy that allows full machine motion of the heat plate, fusion assembly and carriage shall be provided for fusion in inclement, extreme temperatures, and /or windy weather, per the pipe supplier’s recommendations. c. An infrared (IR) pyrometer for checking pipe and heat plate temperatures. d. Fusion machine operations and maintenance manual shall be kept with the fusion machine at all times. e. Facing blades specifically designed for cutting Fusible HDEP pipe shall be used. B. Joint Recording Each fusion joint shall be recorded and logged by an electronic monitoring device (data logger) connected to the fusion machine. The fusion data logging and joint report shall be generated by software developed specifically for the butt-fusion of Fusible HDPE pipe. The software shall register and/or record the parameters required by the pipe supplier and these specifications. Data not logged by the data logger shall be logged manually and be included in the Fusion Technician’s joint report. 1.04 PIPE BURSTING PREPARATION A. Available Information 1. The Contractor shall review all available information, as indicated in the Special Provisions, relating to the pipelines being replaced by pipe bursting. This may include information either included on the Drawings, in the specifications, or made available from the Owner by other means. 2. The Contractor shall field verify the length of sewer main sections to be pipe burst. B. Notification The Contractor shall provide at least 10 days of advance notice to the Owner and Engineer prior to mobilization for pipe bursting work. C. Pre‐Installation CCTV Inspection The Contractor shall provide experienced personnel trained in determining the condition of the existing pipe, and the suitability of the existing pipe for Fusible HDPE pipe insertion by pipe bursting methods, by using CCTV to perform an inspection of the pipelines and verify readiness to install the Fusible HDPE pipe. The interior of the pipeline shall be carefully inspected to determine the location of any conditions that may prevent proper installation of the Fusible HDPE pipe by pipe bursting, which shall be noted for cleaning or repair. D. Cleaning & Repair If necessary, pipes shall be cleaned by the Contractor, as needed, with high-velocity jet cleaners, mechanically powered equipment, cable-attached scraper devices, fluid-propelled devices (e.g., pipe pigs), and/or other methods described by AWWA Manual M28. If pre-installation inspection reveals an unforeseen obstruction that will prevent the installation process, and it cannot be removed by conventional cleaning equipment, including the equipment and methods listed above, then the Contractor shall make a point repair excavation 137 DOWNTOWN SEWER RENOVAIONS PROJECT SECTION 02750 – PIPE BURSTING Page 7 of 8 to uncover and remove or repair the obstruction. Obstructions that are previously unknown, or not indicated on the Drawings or in the specifications, shall be brought to the attention of the Engineer for determination of repair methods and evaluation as a changed condition. The Contractor will be reimbursed for the cost of clearing unforeseen obstructions that are determined to be a changed condition in accordance to the terms of the Contract. E. Dewatering The Contractor shall be responsible for protecting the work area from groundwater inflow to the extent necessary. Any external water leaking back into the existing pipeline shall be kept to a minimum so as not to interfere with the proper bursting operation and Fusible HDPE pipe installation. F. Temporary Water System The Contractor shall provide temporary sewer service for all affected customers. 1.05 BURSTING OPERATIONS AND PIPE INSTALLATION A. Location & Protection of Underground Utilities 1. Correct location of all underground utilities that may impact the installation is the responsibility of the Contractor. 2. Utility location and notification services shall be contacted by the Contractor prior to the start of construction. 3. All existing lines and underground utilities shall be positively identified, including exposing those facilities that are located within an envelope of possible impact of the bursting operation as determined for the project-specific site conditions. It is the Contractor's and pipe burst system operator's responsibilities to determine this envelope of safe burial depth and offset from existing utilities. This will include, but is not limited to soil conditions and layering, utility proximity and material, pipe bursting system and equipment, and foreign subsurface material. B. Excavation & Access Pits 1. Access pit length shall be such that the minimum bending radius for the Fusible HDPE pipe, per the pipe supplier, is maintained. Sheeting, shoring and bracing requirements shall be in accordance with these specifications and applicable jurisdictional standards. 2. Access pit excavations shall be performed at all points where the Fusible HDPE pipe will be inserted into the existing pipeline. When possible, access pit excavations shall coincide with host pipe lateral connection points or other appurtenance installations. 3. The Fusible HDPE pipe may be continuously or partially supported on rollers or other Engineer approved friction-decreasing implement during joining and insertion, as long as the pipe is not overstressed or critically abraded prior to or during installation. 4. Prior to entering any confined space, the Contractor shall make an evaluation of the atmosphere to determine the presence of toxic or flammable vapors or lack of oxygen. This shall be undertaken in accordance with local, state, or federal safety regulations. C. Pipe Bursting Operation 138 DOWNTOWN SEWER RENOVAIONS PROJECT SECTION 02750 – PIPE BURSTING Page 8 of 8 1. The new Fusible HDPE pipe shall be inserted immediately behind the bursting head in accordance with the pipe supplier’s recommended procedures. The bursting equipment shall be specifically designed and manufactured for the type of insertion process being used. 2. Immediately following the completion of a pipe bursting installation, if possible, the pipe should be pushed back into the location of the insertion, at the pulling head, until a small amount of movement is realized at the insertion pit on the other side of the installation from the pulling equipment. D. Fusible HPDE Pipe Care 1. The Fusible HDPE pipe shall be handled with care to minimize the possibility of it being cut, kinked, gouged, or otherwise damaged. The use of cables or hooks in direct contact with the pipe will not be permitted. 2. Sections of the Fusible HDPE pipe damaged, cut, or gouged shall be repaired by cutting out the section of damaged pipe and then rejoining per the specifications and the pipe supplier’s guidelines. 1.06 QUALITY ASSURANCE PROCEDURES A. Installation Acceptance 1. The first several feet of Fusible HDPE pipe that is pulled into the receiving pit behind the pull head shall be inspected for damage. Depending on the gouging, abrading or damage witnessed the pipe may be accepted, reinstalled, or abandoned as unusable at the discretion of the Engineer. 2. Contractor shall verify that all utilities, structures, and sub-surface features within the envelope of possible impact of the bursting operation, as determined for the project- specific site conditions, are sound. Following completion of the work, the CONTRACTOR shall provide complete set of as-built drawings to the ENGINEER. These drawings shall accurately show all connections, valves, fittings, etc; the depth and location of the pipe, and other details from construction. END OF SECTION 02750 139 140 141 142 143 144 145 146 147 148 149 150 Memorandum REPORT TO:City Commission FROM:Kellen Gamradt, Engineer II Shawn Kohtz, City Engineer Nick Ross, Transportation & Engineering Director SUBJECT:Resolution 5498 Authorizing Change Order 2 to the 2023 Downtown Sewer Renovations Project MEETING DATE:June 13, 2023 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Approve Resolution 5498 authorizing Change Order No. 2 to the 2023 Downtown Sewer Renovations Project STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a mechanism to encourage economic development. BACKGROUND:Through conversations between the City and Timberlake Construction, LLC, (General Contractor), the project schedule and phasing plan has been modified from the original contract documents. The revised schedule is preferred by Timberlake Construction and will allow for minimal impact to downtown businesses and scheduled special events throughout construction of the project. There is no change to the contract price or the number of contract days with this change order. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission FISCAL EFFECTS:None Attachments: resolution 5498.doc Change Order No2.pdf Report compiled on: May 31, 2023 151 1 of 2 COMMISSION RESOLUTION NO. 5498 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, APPROVING ALTERATION/MODIFICATION OF CONTRACT WITH TIMBERLAKE CONSTRUCTION, GREENLEAF, IDAHO WHEREAS,the City Commission did, on the 13TH day of December2022, authorizeaward of the bid for the 2023 Downtown Sewer RenovationsProject, toTimberlakeConstruction, llc Greenleaf, Idaho; and WHEREAS,Section 7-5-4308, Montana Code Annotated, provides that any such alterations or modifications of the specifications and/or plans of the contract be made by resolution; and WHEREAS,it has become necessary in the prosecution of the work to make alterations or modifications to the specifications and/or plans of the contract. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, that the proposed modifications and/or alterations to the contract between the City of Bozeman, a municipal corporation, andTimberlake Construction, llc, as contained in Change Order No. 2,attached hereto, be and the same are hereby approved; and the City Manager is hereby authorized and directed to execute the contract change order for and on behalf of the City;and the City Clerkis authorized and directed to attest such signature. PASSED AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 13th day of June, 2023. 152 Resolution No. 5498, Change Order 2 for 2023 Downtown Sewer Renovations Project 2 of 2 __________________________________________ CYNTHIA ANDRUS Mayor ATTEST: ________________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _____________________________________________ GREG SULLIVAN City Attorney 153 Page 1 of 3 R:\CIP Projects\WASTEWATER\2022 Downtown Sewer Reno\Construction\CO2\Change Order No2.doc CHANGE ORDER No. 02 DATE OF ISSUANCE May 31, 2023 EFFECTIVE DATE May 31, 2023 OWNER City of Bozeman CONTRACTOR Timberlake Construction, LLC Contract: 2023 Downtown Sewer Renovations Project Project: 2023 Downtown Sewer Renovations Project OWNER's Contract No. ENGINEER City of Bozeman ENGINEER's Contract No. You are directed to make the following changes in the Contract Documents: Description: Remove the following wording from the Special provisions to the contract: 11A. PROJECT PHASING The Contractor shall be required to accommodate scheduled special events and closures on East Main Street. These include: Music on Main, Run to the Pub, Memorial Day Parade, Sweet Pea activities, Crusin’ on Main, Christmas Stroll, Bozeman Marathon and the Super Bowl Fun Run. In order to accommodate these special events, the Contractor MUST limit construction activities on East Main Street as described below: Beginning at Station 3+85 (Sheet S1) through Station 6+73 (Sheet S3): Construction may not begin until May 30th, 2023 and must be substantially completed by July 5th, 2023. Beginning at Station 6+73 (Sheet S3) through Station 0+90 (Sheet S4): Construction may not begin until May 30th, 2023 and shall be substantially completion by August 1st, 2023. Add the following wording to the Special provisions to the contract: 11A. PROJECT PHASING The Contractor shall be required to accommodate scheduled special events and closures within the work areas. These include: Music on Main, Run to the Pub, Memorial Day Parade, Sweet Pea activities, Crusin’ on Main, Christmas Stroll, Bozeman Marathon and the Super Bowl Fun Run. In order to accommodate these special events, the Contractor MUST limit construction activities as described below and on the attached exhibit: Beginning at Station 6+29 through Station 10+77 (Sheet S3) and from Station 0+47 through 0+90 (Sheet S4): Construction may not begin until June 5th, 2023 and must be substantially completed by July 5th, 2023. Beginning at Station 0+90 through Station 4+00 (Sheet S4) and from Station 0+21 through Station 3+05 (Sheet S5): Construction may not begin until June 19th, 2023 and must be substantially completed by August 1st, 2023. Beginning at Station 0+33 through Station 3+79 (Sheet S1): Construction may not begin until August 7th, 2023 and shall be substantially completion by August 21st, 2023. Beginning at Station 3+79 through 4+34 (Sheet S1) and from Station 0+47 (Sheet S2) through Station 6+29 (Sheet S3): Construction may not begin until August 21st, 2023 and shall be substantially completion by September 21st, 2023. Reason for Change Order: To accommodate changes to the contractor’s schedule. 154 155 Page 3 of 3 R:\CIP Projects\WASTEWATER\2022 Downtown Sewer Reno\Construction\CO2\Change Order No2.doc CHANGE ORDER INSTRUCTIONS A. GENERAL INFORMATION This document was developed to provide a uniform format for handling contract changes that affect Contract Price or Contract Times. Changes that have been initiated by a Work Change Directive must be incorporated into a subsequent Change Order if they affect Price or Times. Changes that affect Contract Price or Contract Times should be promptly covered by a Change Order. The practice of accumulating Change Orders to reduce the administrative burden may lead to unnecessary disputes. If Milestones have been listed in the Agreement, any effect of a Change Order thereon should be addressed. For supplemental instructions and minor changes not involving a change in the Contract Price or Contract Times, a Field Order should be used. B. COMPLETING THE CHANGE ORDER FORM Engineer normally initiates the form, including a description of the changes involved and attachments based upon documents and proposals submitted by Contractor, or requests from Owner, or both. Once Engineer has completed and signed the form, all copies should be sent to Owner or Contractor for approval, depending on whether the Change Order is a true order to the Contractor or the formalization of a negotiated agreement for a previously performed change. After approval by one contracting party, all copies should be sent to the other party for approval. Engineer should make distribution of executed copies after approval by both parties. If a change only applies to price or to times, cross out the part of the tabulation that does not apply. 156 157 Memorandum REPORT TO:City Commission FROM:Jay Porteen, Code Compliance Manager Anna Bentley, Director of Community Development SUBJECT:Ordinance 2139 Final 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:June 13, 2023 AGENDA ITEM TYPE:Ordinance RECOMMENDATION:I move to 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, 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 about how best to reduce construction operations’ noise affecting residents. 158 Ord. 2139 implements a city-wide, objective, decibel standard for constriction operation noise. Specifically, construction operation noise exceeding 60dB(A) may not occur between the hours if 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. At the May 23, 2023 City Commission meeting, after considering staff's presentation, the City Commission voted to unanimously provisionally adopt Ord. 2139. 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: Construction Operations Noise Ord. 2139.pdf Report compiled on: May 30, 2023 159 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: 160 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. “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. 1.2. “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. 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; 161 Ordinance No. 2139: Noise from Construction Operations Page 3 of 9 b. Restoring property to a safe condition following a public calamity; c. By private or public utilities when restoring utility service; or 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 162 Ordinance No. 2139: Noise from Construction Operations Page 4 of 9 devices, leaf blowers, chainsaws, or lawnmowers in a manner which may disturb the quiet, comfort or repose of any normally sensitive and reasonable person. 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. 163 Ordinance No. 2139: Noise from Construction Operations Page 5 of 9 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 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; 164 Ordinance No. 2139: Noise from Construction Operations Page 6 of 9 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 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 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 165 Ordinance No. 2139: Noise from Construction Operations Page 7 of 9 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. 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. 166 Ordinance No. 2139: Noise from Construction Operations Page 8 of 9 Section 10 Effective Date. This Ordinance shall be in full force and effect thirty (30) days after final adoption. PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the _____ day of _______________, 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: 167 Ordinance No. 2139: Noise from Construction Operations Page 9 of 9 _________________________________ GREG SULLIVAN City Attorney 168 Memorandum REPORT TO:City Commission FROM:Tom Rogers, Senior Planner Chris Saunders, Community Development Manager Erin George, Deputy Director of Community Development Anna Bentley, Director of Community Development SUBJECT:Continuation of the Gran Cielo II Annexation Requesting Annexation of 81.468 Acres and Amendment of the City Zoning Map for the Establishment of a Zoning Designation of R-4 (Residential High Density District), Application 22090 MEETING DATE:June 13, 2023 AGENDA ITEM TYPE:Community Development - Legislative RECOMMENDATION:Recommended City Commission Annexation Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 22090 and move to approve the Gran Cielo II Annexation subject to the terms of annexation and direct staff to prepare an annexation agreement. Recommended City Commission Zoning Motion: Having reviewed and considered the staff report, application materials, public comment, recommendation of the Zoning Commission, and all information presented, I hereby adopt the findings presented in the staff report for application 22090 and move to approve the Gran Cielo II Zone Map Amendment with contingencies of approval necessary to complete adoption of an implementing ordinance. STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning, ranging from building design to neighborhood layouts, while pursuing urban approaches to issues such as multimodal transportation, infill, density, connected trails and parks, and walkable neighborhoods. BACKGROUND:The applicant and property owners seek to annex two parcels totaling 81.468 acres plus adjacent rights-of-way into the City limits and establish an initial zoning of R-4, Residential High Density District. The property is currently zoned “Agriculture Suburban” (AS) within the County administered Gallatin County Bozeman Area Zoning District (the Donut). Considerable development activity is occurring in the vicinity including the Gran Cielo I subdivision, Buffalo Run development on the south, and the 169 existing Meadow Creek subdivision. The Future Land Use Map in the Bozeman Community Plan (BCP) 2020 designates the property as “Urban Neighborhood” which includes the R-4 district as an implementing zoning district. Nearby municipal zoning includes R-4 on a portion of the southern border, R-3 on the south, east, and northeast sides. The remaining area is bordered by un-annexed property zoned A-S in the Gallatin County Bozeman Area Zoning District. The subject properties are within the urban planning and municipal service area for the City. This report is based on the revised application. The original application proposed a mix of R-3 and R-4 on the property and was subsequently amended after initiating the public notice period. The revised application is proposing R-4 for the entire property. The proposed annexation would bring in additional right of way to build out sections of Kurk Drive, West Graf Street, Fowler Lane, and upon future development additional internal street network. There are no structures on the property. On March 20, 2023 the Community Development Board voted to continue the public hearing to April, 17, 2023. During public comment period at this meeting four members of the public testified. Comments zeroed in on the inadequate street network for traffic volume, specifically the substandard roads of Fowler Lane, South 27th, and Stucky Road, and defined these roadway as dangerous for all users except vehicular traffic. In addition, comments addressed the poor condition of intersections of Fowler Lane and Stucky Road. Also, comments were received about impacts of the natural environment and water availability. Public comment has been received on this application. All written comments can be reviewed at the following link. https://weblink.bozeman.net/WebLink/Browse.aspx? id=273672&dbid=0&repo=BOZEMAN The City Commission began the public hearing on May 2, 2023. The item starts at time stamp 0:25:00. The Commission directed staff to explore alternate zoning options for the property with the applicant. As a result of those conversations the applicant prepared an alternate proposed zoning map for the Commission to consider based on public comments and Commission direction. The revised zoning map is attached. A video recording of the May 2 hearing can be viewed at the following link. https://bozeman.granicus.com/player/clip/2018? view_id=1&redirect=true&h=baf137873312f383fa86d675f4955049 170 UNRESOLVED ISSUES:There are no identified conflicts on this application at this time. ALTERNATIVES:1. Approve the application with contingencies as presented; 2. Approve the application with modifications to the recommended zoning; 3. Deny the application based on findings of non-compliance with the applicable criteria contained within the staff report; or 4. Open and continue the public hearing, with specific direction to staff or the applicant to supply additional information or to address specific items. FISCAL EFFECTS:No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Annexation or Zone Map Amendment. Attachments: 22090 Gran Cielo II Annx-ZMA CC.pdf Exhibit B - Zone Map Amendment Exhibit - Rev 2.pdf Report compiled on: May 25, 2023 171 Page 1 of 46 22090 Staff Report for the Gran Cielo II Annexation and ZMA Public Hearings: Community Development Board (map amendment only) March 20, 2023, continued to April 17, 2023. City Commission (Annexation and map amendment) April 11, 2023, continued to May 2, 2023. Project Description: Gran Cielo II Annexation requesting annexation of 81.468 acres and amendment of the City Zoning Map for the establishment of a zoning designation of R-4 (Residential High Density District). Application 22090. Project Location: Property is located south of West Graf Street between South 27th Avenue and Fowler Lane and more particularly described as Tract 1 of COS 2074 and Parcel A, COS 1861, located in in the Southwest One-Quarter of Section 23, Township Two South (T2S), Range Five East (R5E) of P.M.M., Gallatin County, Montana. Recommendation: Meets standards for approval with terms of annexation and contingencies. Recommended Zoning Commission Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 22090 and move to recommend approval of the Gran Cielo II Zone Map Amendment, with contingencies required to complete the application processing. Recommended City Commission Annexation Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 22090 and move to approve the Gran Cielo II Annexation subject to the terms of annexation and direct staff to prepare an annexation agreement. Recommended City Commission Zoning Motion: Having reviewed and considered the staff report, application materials, public comment, recommendation of the Zoning Commission, and all information presented, I hereby adopt the findings presented in the staff report for application 22090 and move to approve the Gran Cielo II Zone Map Amendment with contingencies of approval necessary to complete adoption of an implementing ordinance. Report Date: April 24, 2023 Staff Contact: Tom Rogers, Senior Planner Lance Lehigh, City Engineer Agenda Item Type: Action - Legislative 172 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 2 of 46 EXECUTIVE SUMMARY This report is based on the application materials submitted and public comment received to date. This report addresses both the zoning amendment for Community Development Board acting in their capacity as the Zoning Commission, as well as the annexation and the zoning amendment for the City Commission. The application materials are available on the City’s website in the laserfiche archive. Unresolved Issues There are no identified conflicts on this application at this time. Project Summary The applicant and property owners seek to annex two parcels totaling 81.468 acres plus adjacent rights-of-way into the City limits and establish an initial zoning of R-4, Residential High Density District. The property is currently zoned “Agriculture Suburban” (AS) within the County administered Gallatin County Bozeman Area Zoning District (the Donut). Considerable development activity is occurring in the vicinity including the Gran Cielo I subdivision, Bennett Property Annexation, Buffalo Run development on the south, and the existing Meadow Creek subdivision to the east. The Future Land Use Map in the Bozeman Community Plan (BCP) 2020 designates the property as “Urban Neighborhood” which includes the R-4 district as an implementing zoning district. Nearby municipal zoning includes R-4 on a portion of the southern border, R-3 on the south, east, and northeast sides. The remaining area is bordered by un-annexed property zoned A-S in the Gallatin County Bozeman Area Zoning District. The subject properties are within the urban planning and municipal service area for the City. This report is based on the revised application. The original application proposed a mix of R- 3 and R-4 on the property and was subsequently amended after initiating the public notice period. The revised application is proposing R-4 for the entire property. The proposed annexation would bring in additional right of way to build out sections of Kurk Drive, West Graf Street, Fowler Lane, and upon future development additional internal local street network. There are no structures on the property. In determining whether the criteria applicable to this application are met, Staff considers the entire body of plans and regulations for land development. Standards which prevent or mitigate 173 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 3 of 46 possible negative impacts are incorporated in many locations in the municipal code but are principally in Chapter 38, Unified Development Code. References in the text of this report to Articles, Divisions, or in the form xx.xxx.xxx are to the Bozeman Municipal Code. Community Development Board (Zoning Commission) Summary The Community Development Board acting in their capacity as the Zoning Commission will hold a public hearing on March 20, 2023 which was continued to April 17, 2023. After the completion of the public hearing a report on their deliberations will provided to the City Commission. On March 20, 2023 the Community Development Board (CDB) voted to continue the public hearing to April, 17, 2023. The CDB heard public comment on the application. Comments zeroed in on the inadequate street network for traffic volume, specifically the substandard roads of Fowler Lane, South 27th, and Stucky Road, and defined these roadway as dangerous for all users except vehicular traffic. Comments addressed the poor condition of the intersection of Fowler Lane and Stucky Road. Also, comments were received about impacts of the natural environment and water availability. The Community Development Board acting in their capacity as the Zoning Commission held a public hearing on April 17, 2023. Numerous public comments were heard on the application. A variety of concerns were raised by public comment including traffic impacts, general infrastructure deficiencies to serve future development, water pressure, water quantity, preservation of productive agricultural land, and the transportation network. In addition to specific concerns comments addressed the associated density, development in this area and its impact on Bozeman’s efforts to address climate change, and character. Not all comments were critical of the proposed zoning. The Commission focused on the lack of commercial activity in the vicinity and the narrow class of use allowed by residential zones. The Commission found that the R-4 zoning does not adequately integrate uses promoted by a variety of goals and policies of the BCP 2020. The Commission moved and seconded the staff recommended motion described in the Staff Report, the motion failed (0:6). The Commission continued by proposing a revised motion to state, “I move to approve the application with a portion of the property to include a commercial zoning designation that allows retail such as REMU, Residential Emphasis Mixed Use”. The motion failed (3:4). In conclusion to Commission recommended not to approve the R-4 zoning. Discussion of the viability of commercial activities has been added in Section 6, Criterion A. A full video recording can be reviewed at the following web link. Review beings at time stamp 1:02:15. https://bozeman.granicus.com/player/clip/2002?view_id=1&redirect=true&h=e9dde40563ffb adab955ef48d8703c94 174 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 4 of 46 Public comment has been received on this application. All written comments can be reviewed at the following link. https://weblink.bozeman.net/WebLink/Browse.aspx?id=273672&dbid=0&repo=BOZEMAN Alternatives 1. Approve the application with contingencies as presented; 2. Approve the application with modifications to the recommended zoning; 3. Deny the application based on findings of non-compliance with the applicable criteria contained within the staff report; or 4. Open and continue the public hearing, with specific direction to staff or the applicant to supply additional information or to address specific items. 175 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 5 of 46 TABLE OF CONTENTS EXECUTIVE SUMMARY ...................................................................................................... 2 Unresolved Issues ............................................................................................................... 2 Project Summary ................................................................................................................. 2 Community Development Board (Zoning Commission) Summary ................................... 3 Alternatives ......................................................................................................................... 4 SECTION 1 - MAP SERIES: ................................................................................................... 6 SECTION 2 - RECOMMENDED TERMS OF ANNEXATION .......................................... 11 SECTION 3 - RECOMMENDED CONTINGENCIES OF ZONE MAP AMENDMENT... 14 SECTION 4 - RECOMMENDATION AND FUTURE ACTIONS ...................................... 15 Annexation ........................................................................................................................ 15 Zone Map Amendment ..................................................................................................... 15 SECTION 5 - ANNEXATION STAFF ANALYSIS AND FINDINGS ................................ 16 SECTION 6 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS ........... 22 PROTEST NOTICE FOR ZONING AMENDMENTS ......................................................... 42 APPENDIX A - NOTICING AND PUBLIC COMMENT .................................................... 43 APPENDIX B - PROJECT GROWTH POLICY AND PROPOSED ZONING ................... 43 APPENDIX C - OWNER INFORMATION AND REVIEWING STAFF ............................ 46 FISCAL EFFECTS ................................................................................................................. 46 ATTACHMENTS ................................................................................................................... 46 176 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 6 of 46 SECTION 1 - MAP SERIES: Map 1: Project Vicinity Map 177 Page 7 of 46 Map 2: Vicinity Map Subject Property Subject Property 178 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 8 of 46 Map 3: BCP 2020 Future Land Use Map Subject Property 179 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 9 of 46 Map 4: BCP 2020 Future Land Use Map – Future commercial node locations are shown in PINK. One mile radius from exterior boundary One half mile radius from exterior boundary 180 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 10 of 46 Map 5: Existing City Zoning Subject Property REMU approved, not fully adopted 181 Page 11 of 46 SECTION 2 - RECOMMENDED TERMS OF ANNEXATION The following terms of annexation are recommended to enable the application to comply with the City’s Annexation Policy and the requirements of state law for the provision of services. Recommended terms of annexation: 1. The documents and exhibits to formally annex the subject property must be identified as the “Gran Cielo II Annexation”. 2. An Annexation Map, titled “Gran Cielo II Annexation Map” with a legal description of the property and any adjoining un-annexed rights-of-way and/or street access easements must be submitted by the applicant for use with the Annexation Agreement. The map must be supplied as a PDF for filing with the Annexation Agreement at the County Clerk & Recorder, and a digital copy for the City Engineers Office. This map must be acceptable to the Director of Public Works and City Engineers Office, and must be submitted with the signed Annexation Agreement. 3. The applicant must extend the annexation map to the full width of Fowler Lane for the full length of the subject property adjacent to Tract 1, COS 2074. 4. The applicant must execute all contingencies and terms of said Annexation Agreement with the City of Bozeman within 60 days of the distribution of the annexation agreement from the City to the applicant or annexation approval shall be null and void. 5. The land owners and their successors must pay all fire, street, water and sewer impact fees at the time of connection; and for future development, as required by Chapter 2, Bozeman Municipal Code, or as amended at the time of application for any permit listed therein. 6. If they do not already exist the applicant must provide and file with the County Clerk and Recorder's office executed Waivers of Right to Protest Creation of Special Improvement Districts (SIDs) for the following: a. Street improvements to S. 27th Avenue between Stucky Road and Blackwood Road including lighting, signalization, paving, curb/gutter, sidewalk, and storm drainage. b. Street improvements to Stucky Road between Fowler Lane and South 19th Avenue including lighting, signalization, paving, curb/gutter, sidewalk, and storm drainage. c. Street improvements to West Graf Street between Fowler Lane to South 19th Avenue including lighting, signalization, paving, curb/gutter, sidewalk, and storm drainage. d. Street improvements to Fowler Lane between Blackwood Road and Stucky Road including lighting, signalization, paving, curb/gutter, sidewalk, and storm drainage. 182 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 12 of 46 e. Intersection improvements at South 27th Ave and West Graft Street including lighting, signalization/channelization, paving, curb/gutter, sidewalk, and storm drainage. f. Intersection improvements at Fowler Lane and West Graf Street including lighting, signalization/channelization, paving, curb/gutter, sidewalk, and storm drainage. g. Intersection improvements at West Graf Street and South 19th Ave including lighting, signalization/channelization, paving, curb/gutter, sidewalk, and storm drainage. h. Intersection improvements at Stucky Road and South 19th Avenue including lighting, signalization/channelization, paving, curb/gutter, sidewalk, and storm drainage. i. Intersection improvements to Fowler Lane and Stucky Road including lighting, signalization/channelization, paving, curb/gutter, sidewalk, and storm drainage. j. Intersection improvements to Fowler Lane and Blackwood Road including lighting, signalization/channelization, paving, curb/gutter, sidewalk, and storm drainage. k. The document filed must specify that in the event an SID is not utilized for the completion of these improvements, the developer agrees to participate in an alternate financing method for the completion of the improvements on a fair share, proportionate basis as determined by square footage of property, taxable valuation of the property, traffic contribution from the development, or a combination thereof. The applicant must provide a copy of the SID waiver in conjunction with the Annexation Agreement. l. The applicant may obtain a copy of the template SID waiver from the City Engineering Department. The document filed must specify that in the event an SID is not utilized for the completion of these improvements, the applicant agrees to participate in an alternate financing method for the completion of said improvements on a fair share, proportionate basis as determined by square footage of property, taxable valuation of the property, traffic contribution from the development, or a combination thereof. The applicant must provide a copy of the SID waiver filed with the County Clerk and Recorder prior to annexation. 7. The Annexation Agreement must include the following notices: a. The Annexation Agreement must include notice that, prior to development, the applicant will be responsible for preparing a storm water master plan in conjunction with future development. The storm water master plan shall address maintenance and operations until and unless the City affirmatively assumes responsibility for maintenance and operations of stormwater facilities within the area of the annexation. b. The Annexation Agreement must include notice the City will, upon annexation, make available to the Property existing City services only to the extent currently available, or as provided in the Agreement. 183 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 13 of 46 c. The Annexation Agreement must include notice that there is no right, either granted or implied, for Landowner to further develop any of the Property until it is verified by the City that the necessary municipal services are available to the property. d. The Annexation Agreement must include notice that, prior to development, the applicant will be responsible for installing any facilities required to provide full municipal services to the properties in accordance with the City of Bozeman's infrastructure master plans and all City policies that may be in effect at the time of development. e. The Annexation Agreement must include notice that utility easements may be required to be provided by the landowner at the time of development to ensure necessary municipal services are available to the property. f. The agreement must include notice that charges and assessments may be required after completion of annexation to ensure necessary municipal services are available to the property. g. The Annexation Agreement must include notice that the City will assess system development and impact fees in accordance with Montana law and Chapter 2, Article 6, Division 9, Bozeman Municipal Code. h. All procedural terms necessary to establish the Annexation Agreement in conformance with state law and municipal practice will be included with the final Annexation Agreement. 8. The Annexation Agreement must include notice that the applicant must connect to municipal services and will be responsible for installing any facilities required to provide full municipal services to the property in accordance with city policy at the time of connection. 9. CIL of Water Term. The applicant must contact the City’s Engineering Department to obtain an analysis of cash-in-lieu of water rights for the proposed annexation. The determined amount must be paid prior to the adoption of Resolution of Annexation, if applicable. 10. City of Bozeman Resolution 5076, Policy 1 South 27th Street is classified as a collector in the Bozeman Transportation Master Plan (TMP), which has a minimum right-of- way ROW width of (90) feet. The applicant must provide their respective South 27th Street ROW from the centerline of the existing ROW as a public street and utility easement where South 27th Street is adjacent to the property prior to the adoption of Resolution of Annexation. 11. City of Bozeman Resolution 5076, Policy 1 Graf Street is classified as a collector in the Bozeman Transportation Master Plan (TMP), which has a minimum right-of-way ROW width of (90) feet. The applicant must provide their respective Graf Street ROW from the centerline of the existing ROW as a public street and utility easement where Graf Street is adjacent to the property prior to the adoption of Resolution of Annexation. 12. City of Bozeman Resolution 5076, Policy 1 Fowler Lane is classified as a Minor Arterial in the Bozeman Transportation Master Plan (TMP), which has a minimum 184 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 14 of 46 right-of-way ROW width of (100) feet. The applicant must provide their respective Fowler Lane ROW (50) feet from the centerline of the existing ROW as a public street and utility easement where Fowler is adjacent to the property prior to the adoption of Resolution of Annexation. 13. City of Bozeman Resolution 5076, Policy 1 Kurk Drive is classified as a Local Street and is adjacent to the subject property. The applicant must provide their respective Kurk Drive ROW in order to provide the City with a 60 foot width public street and utility easement from the intersection of Kurk Drive & 27th endpoint of Kurk Drive at Fowler Lane ROW, prior to the adoption of Resolution of Annexation. 14. All final easements provided to the City must be stamped and signed by a professional surveyor. SECTION 3 - RECOMMENDED CONTINGENCIES OF ZONE MAP AMENDMENT Please note that these contingencies are necessary for the City to complete the process of the proposed amendment. These contingencies only apply in the event that the related annexation request has previously been approved. Recommended Contingencies of Approval: 1. That all documents and exhibits necessary to establish an initial municipal zoning designation shall be identified as the “Gran Cielo II Annexation Zone Map Amendment.” All required documents must be returned to the City within 60 days of the City Commission action to annex the property or the preliminary approval shall be null and void. 2. That the Ordinance for the Zone Map Amendment shall not be finalized until the Annexation Agreement is signed by the applicant and formally approved by the City Commission. If the annexation agreement is not approved, the Zone Map Amendment application shall be null and void. 3. That the applicant must submit a Zone Amendment map, titled “Gran Cielo II Annexation Zone Map Amendment”. The map must be supplied as a PDF. This map must be acceptable to the City Engineer’s Office, and must be submitted within 60 days of the action to approve the zone map amendment. Said map shall contain a metes and bounds legal description of the perimeter of the subject property including adjacent right-of-ways or street easements, and total acreage of the property to be rezoned; unless the property to be rezoned can be entirely described by reference to existing platted properties or certificates of survey. 4. The Ordinance for the Zone Map Amendment shall not be drafted until the applicant provides an editable metes and bounds legal description prepared by a licensed Montana surveyor. 185 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 15 of 46 SECTION 4 - RECOMMENDATION AND FUTURE ACTIONS Annexation Having considered the criteria established for an annexation, the Development Review Committee (DRC) did not find any deficiencies that prohibit annexation at this time that could not be addressed through future development review processes and adopted City Codes. The City Commission will hold a public meeting on the annexation on May 2, 2023. The meeting will begin at 6 p.m. Zone Map Amendment Having considered the criteria established for a zone map amendment, the Staff found the requested zoning meets standards for approval as submitted. The Zone Map Amendment (ZMA) is in conjunction with an annexation request. Staff’s recommendation and staff responses are predicated on approval of the annexation, application 22090. The Development Review Committee (DRC) considered the amendment. The DRC did not identify any infrastructure or regulatory constraints that would impede the approval of the application that cannot be addressed with adopted standards and requirements for future development. The Community Development Board acting in their capacity as the Zoning Commission will hold a public hearing on this ZMA on March 20, 2023, continued to April 17, 2023 and will forward a recommendation to the Commission on the Zone Map amendment. The meeting will begin at 6 p.m. in will be held in the Commission Room at City Hall, 121 N. Rouse Ave, Bozeman, Montana. Members of the public will also be able to participate remotely via WebEx. Instructions for joining the WebEx meeting will be included on the meeting agenda which is published on the City’s website at least 48 hours prior to the meeting. The agenda is available at https://www.bozeman.net/meetings. The City Commission will hold a public hearing on the zone map amendment on April 11, 2023 and continued to May 2, 2023. The meeting will begin at 6 p.m. in the Commission Room at City Hall, 121 N. Rouse Ave, Bozeman, Montana, the City Commission will conduct a public hearing on the proposed Zone Map Amendment application. Members of the public will also be able to participate remotely via WebEx. Instructions for joining the WebEx meeting will be included on the meeting agenda which is published on the City’s website at least 48 hours prior to the meeting. The agenda is available at https://www.bozeman.net/meetings. 186 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 16 of 46 SECTION 5 - ANNEXATION STAFF ANALYSIS AND FINDINGS In considering applications for approval of the requested annexation, the advisory boards and City Commission shall consider the following: Commission Resolution No. 5076 Criteria Commission Resolution No. 5076 Goals Goal 1: The City of Bozeman encourages annexations of land contiguous to the City. Criterion Met. The property in question is contiguous to the City limits on the northeast half, east, and the southern edge of the property. Goal 2: The City encourages all areas that are totally surrounded by the City to annex. Criterion not met. The subject property is not wholly surrounded at this time. Unannexed property lies to the west and northwest. Goal 3: The City encourages all properties currently contracting with the City for City services such as water, sanitary sewer, and/or fire protection to annex. Criterion met. There are no structures onsite contracting for City services. Goal 4: The City of Bozeman requires annexation of all land proposed for development lying within the existing and planned service area of the municipal water and sewer systems as depicted in their respective facility plans, any land proposed for development that proposes to utilize municipal water or sewer systems. Criterion met. The subject property lies within the planned service area of the municipal water and sewer services. Future proposed developments will be required to utilize municipal water or sewer systems. Goal 5: The City encourages annexations within the urban area identified on the future land use map in the current Bozeman Growth Policy. Criterion Met. As shown in Section 1, the subject property is planned as ‘Urban Neighborhood’ and is within the urban area of the growth policy. See the discussion under Criterion A of Section 6 of the report for more information on the growth policy. Goal 6: The City of Bozeman encourages annexations to make the City boundaries more regular rather than creating irregular extensions which leave unannexed gaps between annexed areas or islands of annexed or unannexed land. Criterion Met. The proposed annexation will fill in a missing gap between Buffalo Run to the south, Meadow Creek subdivision to the east, and Gran Cielo subdivision to the northeast. Visual observation shows a more regular city boundary with this property annexed. 187 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 17 of 46 Goal 7: The City of Bozeman encourages annexations which will enhance the existing traffic circulation system or provide for circulation systems that do not exist at the present time. Criterion met. The property is bounded by roadways identified in the Bozeman Area Transportation Plan, 2017 Update as Collector and Arterial streets. In addition, Kurk Drive, a local street, will eventually be constructed to connect the exiting road to Fowler Lane. Terms of annexation include provisions pursuant to City of Bozeman Resolution 5076, Policy 1 to acquire necessary rights-of-way (ROW) to accommodate the development of these streets. Fowler Lane is a designated Arterial street which requires 100 feet of ROW. Both South 27th Avenue and West Graf Street are designated Collector streets which utilize a 90 foot ROW. See Terms of Annexation No. 10 – 13. There are no Class I trails identified in the PROST plan on the subject property. Goal 8: The City prefers annexation of parcels of land larger than five (5) acres in size, but will allow annexation of smaller parcels if factors such as topographic limitations, sanitary disposal needs, fire access, maintenance of public facilities, etc., justify a smaller annexation. Criterion met. The subject property is approximately 81.468 acres. Goal 9: The City seeks to obtain water rights adequate for future development of the property with annexation. Criterion Met. After annexation, the subject property will be bound to the provisions of 38.410.130 which require evaluation of water adequacy and provision of water if needed at time of development. The municipal code section requires water rights or an equivalent to be provided. Exact timing and amounts will be evaluated during development review. There are several methods to address the requirements of 38.410.130. The annexation agreement will provide notice of this requirement, see Terms of Annexation 9. The landowner will consent to this requirement by signature on the annexation agreement. Goal 10: The City of Bozeman encourages annexations for City provision of clean treated water and sanitary sewer. Criterion Met. The subject property is located within the City’s planned water and sewer service area. See Goal 4 above. Any future development will be required to connect to the City systems. Per Term of Annexation 7.d and 8, the Annexation Agreement requires notice that the applicant requires the applicant to design extensions of services to meet the City’s adopted infrastructure standards. These include provisions for minimum water pressure and volumes, adequate sewer flows by volume, gravity flow of sewers, and other standards necessary to protect public health and safety and ensure functional utilities. 188 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 18 of 46 Resolution No. 5076 Policies Policy 1: Annexations must include dedication of all easements for rights-of-way for collector and arterial streets, adjacent local streets, public water, sanitary sewer, or storm or sewer mains, and Class I public trails not within the right of way for arterial or collector streets. Annexations must also include waivers of right to protest the creation of special or improvement districts necessary to provide the essential services for future development of the City. Criterion Met. As discussed in Section 5 Goal 7, additional right of way is being included for the Collector streets of South 27th Avenue, and West Graf Street. And Fowler Lane Arterial Street needs. The Recommended Terms of Annexation include requirements for these right of way provisions. See Terms of Annexation 10 - 12. No Class I trails are designated for the subject property according to the PROST Plan. Policy 2: Issues pertaining to master planning and zoning must be addressed prior to or in conjunction with the application for annexation. Criterion Met. The subject property is planned for Urban Neighborhood. No change to the growth policy is required. The application includes a request for initial zoning of R-4. See the zone map amendment section of this report for analysis of the zone map amendment criteria. Policy 3: The application for annexation must be in conformance with the current Bozeman Growth Policy. If a Growth Policy Amendment is necessary to accommodate anticipated uses, the amendment process must be initiated by the property owner and completed prior to any action for approval of the application for annexation. Criterion Met. The property is designated “Urban Neighborhood” on the future land use map. No growth policy amendment is required. See discussion under zone map amendment Criterion A. Policy 4: Initial zoning classification of the property to be annexed will be determined by the City Commission, in compliance with the Bozeman Growth Policy and upon a recommendation of the City Zoning Commission, simultaneously with review of the annexation petition. The Community Development Board acting in their capacity as the City Zoning Commission will be reviewing the requested zoning district designation on April 17, 2023. The Zoning Commission’s recommendation will be passed along to the City Commission for review and consideration along with the annexation request on May 2, 2023. 189 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 19 of 46 Policy 5: The applicant must indicate their preferred zoning classification as part of the annexation petition. Criterion Met. The applicant has requested a zoning designation of R-4, Residential High Density District. See Section 6 of this report for analysis of the requested zoning. Policy 6: Fees for annexation processing will be established by the City Commission. Criterion Met. The appropriate application processing and review fees accompanied the application. Policy 7: It is the policy of the City that annexations will not be approved where unpaved county roads will be the most commonly used route to gain access to the property unless the landowner proposes a method to provide for construction of the road to the City’s street standards. Criterion Met. The subject property is accessed by South 27th Street, Kurk Drive, and Fowler Lane; all of which are paved. Policy 8: Prior to annexation of property, the City will require the property owner to acquire adequate and usable water rights, or an appropriate fee in lieu thereof, in accordance with Section 38.410.130 of the municipal code, as amended. Criterion Met. The property owner shall provide usable water rights, or cash in-lieu of water rights thereof, in an amount to be determined by the Director of Public Works, as outlined by Section 38.410.130 of the municipal code. The calculated amount will be determined by the Director of Public Works and based on the zoning designation approved by the City Commission. Term of annexation 9 requires notice of this requirement to be part of the annexation agreement. Satisfaction of this requirement will occur with future development. Policy 9: Infrastructure and emergency services for an area proposed for annexation will be reviewed for the health, safety and welfare of the public and conformance with the City’s adopted facility plans. If the City determines adequate services cannot be provided to ensure public health, safety and welfare, the City may require the property owner to provide a written plan for accommodation of these services, or the City may reject the petition for annexation. Additionally, the parcel to be annexed may only be provided sanitary sewer service via the applicable drainage basin defined in the City Wastewater Collection Facilities Plan. Criterion Met. City infrastructure and emergency services are available to the subject property. An existing 12 inch ductile iron water pipe is in West Graf Street and South 27th Avenue to the north and east respectively. An additional 8 inch ductile iron water pipe is in Kurk Drive on the south side of the subject property. Any future development will be required to connect to the City systems. The property is located adjacent to existing urban development that is currently served by Bozeman Fire. 190 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 20 of 46 Per Term of Annexation 7a, 7.d, and 8, the Annexation Agreement required to finalize the requested annexation will require the applicant to design extensions of services to meet the City’s adopted infrastructure standards. These include provisions for minimum water pressure and volumes, adequate sewer flows by volume, gravity flow of sewers, and other standards necessary to protect public health and safety and ensure functional utilities. Policy 10: The City may require annexation of any contiguous property for which city services are requested or for which city services are currently being provided. In addition, any person, firm, or corporation receiving water or sewer service outside of the City limits is required as a condition of initiating or continuing such service, to consent to annexation of the property serviced by the City. The City Manager may enter into an agreement with a property owner for connection to the City’s sanitary sewer or water system in an emergency conditioned upon the submittal by the property owner of a petition for annexation and filing of a notice of consent to annexation with the Gallatin County Clerk and Recorder’s Office. The contract for connection to city sewer and/or water must require the property owner to annex or consent to disconnection of the services. Connection for purposes of obtaining City sewer services in an emergency requires, when feasible as determined by the City, the connection to City water services. Criterion Met. City services are not currently being provided to this property as it is vacant. Future development will be required to hook up to City services. This annexation is not a result of an emergency condition requiring connection. Policy 11: The annexation application shall be accompanied by mapping to meet the requirements of the Director of Public Works. Where an area to be annexed can be entirely described by reference to a certificate of survey or subdivision plat on file with the Gallatin County Clerk and Recorder the mapping may be waived by the Director of Public Works. Criterion Met. Mapping to meet the requirements of the Director of Public Works must be provided with the Annexation Agreement. Mapping requirements are addressed in Recommended Term of Annexation 2. The map must include adjacent right of way and therefore cannot be described solely by reference to platted lands. Policy 12: The City will assess system development/ impact fees in accordance with Montana law and Chapter 2, Article 6, Division 9, Bozeman Municipal Code. Neutral. The annexation does not require immediate payment of fees. The annexation agreement will provide notice of obligations to pay impact fees at times of triggers as required in ordinance. Policy 13: Public notice requirements: Notice for annexation of property must be coordinated with the required notice for the zone map amendment required with all 191 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 21 of 46 annexation. The zone map amendment notice must contain the materials required by 38.220.410, BMC. Notices of the public hearing have been mailed, published in the Bozeman Daily Chronicle twice, and posted on the site as set forth under this policy. See Appendix A for more details. Policy 14: Annexation agreements must be executed and returned to the City within 60 days of distribution of the annexation agreement by the City, unless another time is specifically identified by the City Commission. Criterion Met. Suggested terms of annexation include a notice that the agreement, once prepared and provided to the applicant, must be signed and retuned within the stated time period. This policy will be implemented only if the Commission acts to grant approval. If the application is denied then no annexation agreement will be necessary. Policy 15: When possible, the use of Part 46 annexations is preferred. Criterion Met. This annexation is being processed under Part 46 provisions. Policy 16: Where a road improvement district has been created, the annexation does not repeal the creation of the district. The City will not assume operations of the district until the entirety of the district has been annexed. Any funds held in trust for the district will be used to benefit the district after transfer to the City. Inclusion within a district does not lessen the obligation to participate in general city programs that address the same subject. Neutral. No road improvement district is associated with this application. Policy 17: The City will notify the Gallatin County Planning Department and Fire District providing service to the area of applications for annexation. Criterion Met. The necessary agencies were notified and provided copies of the annexation. Policy 18: The City will require connection to and use of all City services upon development of annexed properties. The City may establish a fixed time frame for connection to municipal utilities. Upon development, unless otherwise approved by the City, septic systems must be properly abandoned and the development connected to the City sanitary sewer system. Upon development, unless otherwise approved by the City, water wells on the subject property may be used for irrigation, but any potable uses must be supplied from the City water distribution system and any wells disconnected from structures. The property owner must contact the City Water and Sewer Superintendent to verify disconnects of wells and septic systems. Criterion Met. There are no existing septic systems or wells that will need to be abandoned. All future development will be required to connect to city services. 192 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 22 of 46 SECTION 6 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS In considering applications for plan approval under this title, the advisory boards and City Commission must consider the following criteria (letters A-K). As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction. The burden of proof that the application should be approved lies with the applicant. A zone map amendment must be in accordance with the growth policy (criteria A) and be designed to secure safety from fire and other dangers (criteria B), promote public health, public safety, and general welfare (criteria C), and facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements (criteria D). Therefore, to approve a zone map amendment the Commission must find Criteria A-D are met. In addition, the Commission must also consider criteria E-K, and may find the zone map amendment to be positive, neutral, or negative with regards to these criteria. To approve the zone map amendment, the Commission must find the positive outcomes of the amendment outweigh negative outcomes for criteria E-K. In determining whether the criteria are met, Staff considers the entire body of plans and regulations for land development. Standards which prevent or mitigated negative impacts are incorporated throughout the entire municipal code but are principally in Chapter 38, Unified Development Code. Section 76-2-304, MCA (Zoning) Criteria A. Be in accordance with a growth policy. Criterion met. The Bozeman Community Plan (BCP) 2020, Chapter 5, p. 73, in the section titled Review Criteria for Zoning Amendments and Their Application, discusses how the various criteria in 76-2-304 MCA are applied locally. Application of the criteria varies depending on whether an amendment is for the zoning map or for the text of Chapter 38, BMC. The first criterion for a zoning amendment is accordance with a growth policy. Future Land Use Map The proposed amendment is a change to the zoning map. Therefore, it is necessary to analyze compliance with the future land use map. Chapter 3 of the BCP 2020 addresses the future land use map. The introduction to that chapter discusses the importance of the chapter. Following are some excerpts. “Future land use is the community’s fundamental building block. It is an illustration of the City’s desired outcome to accommodate the complex and diverse needs of its residents.” 193 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 23 of 46 “The land use map sets generalized expectations for what goes where in the community. Each category has its own descriptions. Understanding the future land use map is not possible without understanding the category descriptions.” The area of this application is within the anticipated growth area of the City. As shown on the maps in Section 1, on the excerpt of the current future land use map, the property is designated as Urban Neighborhood. The Urban Neighborhood designation description reads: “This category primarily includes urban density homes in a variety of types, shapes, sizes, and intensities. Large areas of any single type of housing are discouraged. In limited instances, an area may develop at a lower gross density due to site constraints and/or natural features such as floodplains or steep slopes. Complementary uses such as parks, home-based occupations, fire stations, churches, schools, and some neighborhood-serving commerce provide activity centers for community gathering and services. The Urban Neighborhood designation indicates that development is expected to occur within municipal boundaries. This may require annexation prior to development. Applying a zoning district to specific parcels sets the required and allowed density. Higher density residential areas are encouraged to be, but are not required or restricted to, proximity to commercial mixed use areas to facilitate the provision of services and employment opportunities without requiring the use of a car.” The correlation between the future land use map of the growth policy and the zoning districts is presented in Table 4 of the Bozeman Community Plan 2020. As shown in the following Correlation with Zoning Table excerpt, the R-4 district is an implementing district of the Urban Neighborhood. The applicant originally requested a combination of R-3 and R-4 evenly split on the property. After initiating the public comment period the application was amended to request the R-4 zone for the entire property. In finding that this application meets criterion A, with hesitation, the analysis is cognizant that in many planning efforts and discussions over the decades, the Planning Board and City Commission have considered the various elements of the question of to grow or not grow and the consequences of either approach. After considering this question, they have concluded that having growth within the physical boundaries of Bozeman results in better outcomes than not. Therefore, the BCP 2020 approaches growth as something that overall is positive but 194 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 24 of 46 recognizes that it does not come without drawbacks and that the community will change over time. Large swath of single use zoning is generally not supported by the BCP 2020. No metric for what is considered “large” has been established. Although some zoning districts, REMU for example, require minimum areas to qualify most do not. The City’s development code does not include a requirement to mix housing types, we rely on the market, developer preference, and lending practice to influence housing types. The BCP 2020 includes many goals and objectives to encourage a variety of housing types and the production missing middle housing that supports a variety of goals and polices. Establishing R-4 zoning on the entire property may not achieve the desired outcome. The location of this property is unique due its distance to existing commercial activity, employment centers, educational opportunities, and other City services because it is nearing the jump to next Commercial Node identified on the BCP 2020. See Map 4 in Section 1 of this report. Viable commercial activity requires sufficient rooftops. As part of the City’s Community Plan Hub web site, the City is tracking its efforts to meet the goals and objectives detailed in the BCP 2020. For example, under the City of Unique Neighborhoods Theme is the Bozeman Residential Density Map – Community Plan Indicators Map. The residential density map shows the nearest development to the subject property, Meadow Creek Phase 1 subdivision, has a living unit per acre of 5 – 10. This data will improve its accuracy as the City infills. Currently, there are undeveloped parcels that skew the results and push the value lower than if you exclude vacant parcels in the calculation. However, the histogram associated with the map shows the following general trends in relation to each zoning district. Figure 1: Average living units per acre by Zoning Designation 195 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 25 of 46 The R-4 zoning district correlates with the principles applied in the Bozeman Community Plan 2020. A few of the ten principles listed under Basic Planning Precepts of the Plan are supported by the R-4 district. For example, “land use designations must respond to a broad range of factors, including infrastructure, natural, and economic constraints, other community priorities, and expectations of all affected parties concerning private development.” And, “gathering places and open spaces, including parks and trails, should be in convenient locations to those they serve. Quality and function is superior to quantity alone.” The latter is achieved by the City’s adopted development code. On the other hand, other precepts are less supportive of the scope of requested R-4 zoning. Specific goals and objectives can be teased out showing conformance of the proposed zoning designation. The primary discussion point is whether or not 80 acres of a single zoning residential designation meet the diverse needs of the City compared a mix of zoning districts. Goals and Policies A zoning amendment is also evaluated against the goals and policies of the BCP 2020. Most of the goals and policies are not applicable to this application. Relevant goals and objectives have been identified by staff. Conflict with the text of the growth policy hasn’t been identified. The Short Term Action list on page 63 of the BCP 2020 describes 14 items to implement the growth policy. The first two relate to direct changes to the zoning map in support of listed goals and objectives. These include increasing the intensity of zoning districts in already developed areas. Beginning on page 71 of the BCP 2020 in the section titled Zoning Amendment Review, the document discusses how the City implements zoning for new areas, amendments to areas, and revisions to existing text. This section includes a discussion of when the City may initiate a zoning change to a more intensive district to increase development opportunities. This section demonstrates that the City, as a matter of policy, is supportive of more intensive zoning districts and development. It is inconsistent with this approach to zone at annexation for lower intensities than what infrastructure and planning documents will support. This policy approach does not specify any individual district but does lean towards the more intensive portion of the zoning district spectrum. The intent described above is strengthened by Objective N-1.11 “Enable a gradual and predictable increase in density in developed areas over time.” It is inconsistent with the approach to increase density within existing already developed area and to zone at annexation for lower intensities than what infrastructure and planning documents will support. This policy approach does not specify any individual district but does lean towards the more intensive portion of the zoning district spectrum. Goal N-3: Promote a diverse supply of quality housing units. 196 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 26 of 46 As noted above the area is designated as Urban Neighborhood according to the FLUM. This category primarily includes urban density homes in a variety of types, shapes, sizes, and intensities. Large areas of any single type of housing are discouraged. Although, in limited instances, an area may develop at a lower gross density due to site constraints and/or natural features, we generally assume the most density permitted by a given zoning district. Without constraints it would be reasonable to assume a developed density of 18 dwelling units per net acre or approximately 1,440 dwellings units on the property. Applying a zoning district to specific parcels sets the required and allowed density. Higher density residential areas are encouraged to be, but are not required or restricted to, proximity to commercial mixed use areas to facilitate the provision of services and employment opportunities without requiring the use of a car. Goal DCD-1: Support urban development within the City. The proposed zoning is occurring in conjunction with an annexation. Any future development will be required to occur at urban densities and will be within the City. If the City Commission declines the annexation then the requested R-4 zoning will not occur. DCD-2.2 Support higher density development along main corridors and at high visibility street corners to accommodate population growth and support businesses. Fowler Avenue is a planned arterial street as shown in the last three long range transportation plans including the current Transportation Master Plan adopted in 2017. Arterial streets are the most intensive category of streets. Fowler Avenue is planned to extend from Hyalite Canyon to Valley Center Road. This street will develop to be a main corridor. West Graff Street is a designed Collector Street. Therefore, placement of higher density development adjacent to Fowler Avenue and Graff Street is consistent with this objective. Fowler is presently developed as a rural standard road. Graff has not been extended to through the subject property. Evaluation of the degree of required road improvements will occur with formal development review. RC-3.2 Work with Gallatin County to keep rural areas rural and maintain a clear edge to urban development that evolves as the City expands outwards. Gallatin County adopted the Gallatin County/Bozeman Area Plan (GCBA Plan), a neighborhood plan under their growth policy, to identify County priorities for this area of the county. Implementing zoning was updated for the new neighborhood plan and is now in place. “The purposes of the [County] Growth Policy and the 2005 Bozeman Area Plan are to provide comprehensive, long-range guidance relative to the growth and development…” The GCBA Plan recognizes the area is in transition. On page 1 of the GCBA Plan it says, “It is not the intent of this Plan to prematurely discourage existing agricultural operations; rather it is the intent to accommodate the needs of present agriculture while recognizing an inevitable transition to a more urban landscape.” 197 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 27 of 46 The proposed annexation and zoning of this property will extend the municipal boundary to Fowler Lane. Two other properties were recently annexed to the north and south of the subject property; Buffalo Run and the Fowler Lane Annexation properties. Measuring on the north of Huffine Lane City limits extends an additional 1.75 miles to the west and the planning area another three-quarters of a mile beyond City limits. The municipal service area and planning area of the city extends two and half miles west of Fowler Lane. DCD-1.11 Pursue annexations consistent with the future land use map and adopted facility plans for development at urban intensity. The proposed zoning is consistent with the future land use map and is within the current facilities plans. The Demographic and Real Estate Market Assessment, 2018 (EPS) evaluated commercial zoning needs. Specifically, the report evaluated some of the issues with supporting and growing retail and commercial series and business closer to housing and well-connected community serving commercial and retail areas, “Commercial Zoning Evaluation” (p. 54- 62). The comments speak to “neighborhood commercial”. The assessment states, “It is estimated that a B-1 district with 500 residents within 0.5 to 1.0 miles can support approximately 2,000 square feet of retail, food, and beverage space. However, a vibrant neighborhood commercial center needs a larger ‘critical mass’ of space to be viable, judged to be in the 20,000 to 30,000 square foot range. Therefore, a B-1 district requires approximately 3,500 to 5,500 households within a 0.5 to 1.0-mile radius (Table 15). Methodology is important, but here is a key takeaway for neighborhood commercial. A prototypical 10 acre B-1 District could contain 40,000 SF of commercial development. The FLUM show locations for commercial activity to meet future needs. As shown in Map 4 in Section 1 of this report four commercial nodes of varying size are planned for this part of town. These include Kagy Boulevard and 19th Avenue, Blackwood Road and South 19th, West Graf Street and South Cottonwood. 198 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 28 of 46 Goal RC-3: Collaborate with Gallatin County regarding annexation and development patterns adjacent to the City to provide certainty for landowners and taxpayers. Gallatin County has been notified of the proposed annexation. RC-3.3 Prioritize annexations that enable the incremental expansion of the City and its utilities. The property in question is contiguous to the City limits on the east, south, and half of the north with approximately 5,200 lineal feet adjacent to existing City limits. It adds approximately 80 acres to the City limits that is available for urban development while creating a more consistent city border. The discussion and analysis for the Buffalo Run Annexation (property directly to the south) noted that it would create a peninsula of 20 acres. It stated that, “it is expected that additional annexations in the future will make the City boundary more regular.” This application brings this expectation to fruition. RC-3.4 Encourage annexation of land adjacent to the City prior to development and encourage annexation of wholly surrounded areas. The property is adjacent to the City and does not create any new unannexed areas surrounded by City limits. The property is seeking annexation and municipal zoning for the purpose of residential development. Annexation is happening before development. In addition to goals and objectives, the BCP 2020 includes descriptive statements regarding what the goals and objectives seek to support and create. Page 27 of the BCP 2020 includes the descriptive language for Theme 2, A City of Unique Neighborhoods. Reviewing the language, themes of housing diversity, inclusion, and equity to serve different housing needs are prevalent. Theme 2 emphasizes the importance of neighborhoods in the City’s development. It is notable that none of the goals and objectives associated with Theme 2 calls for fixing the character of developed areas in their current status or prohibit the evolution of an area’s character. There is recognition of the role that a sense of place serves in Goal N-4. Neighborhoods do have physical attributes that help them be distinctive. See also RC – 3.3 response. Goal N-4: Continue to encourage Bozeman’s sense of place. N-4.1 Continue to recognize and honor the unique history, neighborhoods, neighborhood character, and buildings that contribute to Bozeman’s sense of place through programs and policy led by both City and community efforts. The proposed amendment does not alter the zoning on any adjacent property and correspondingly the character of that adjacent property. As noted in other criteria in this report, the proposed amendment is consistent with the planned development of the area as homes with 199 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 29 of 46 an urban intensity. While the application does not further all goals of the BCP 2020, taken as a whole the application is supportive of and in accordance with, the BCP 2020. B. Secure safety from fire and other dangers. Criterion Met. There are no current buildings, however future development will be served by the Bozeman Fire Department. Fire protection water supply will be provided by the City of Bozeman water system. The property is not within any delineated floodplain nor does it have other known natural hazards. Upon annexation the subject property will be provided with City emergency services including police, fire and ambulance. Future development of the property will be required to conform to all City of Bozeman public safety, building and land use requirements. The City provides emergency services to adjacent properties and no obstacles have been identified in extending service to this parcel. C. Promote public health, public safety, and general welfare. Criterion Met. See comments in Section 6, Criteria A, B and D. City development standards included in Chapter 38, Unified Development Code, building codes, and engineering standards all ensure that this criterion is met. Adequate water and sewer supply and conveyance provide for public health through clean water. Rapid and effective emergency response provides for public safety. The City’s standards ensure that adequate services are provided prior to construction of homes which advances this criterion. General welfare has been evaluated during the adoption of Chapter 38 and found to be advanced. Provision of parks, control of storm water, and other features of the City’s development standards advance the general welfare. Compliance with the BCP 2020 advances the well-being of the community as a whole. D. Facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements. Criterion Met. This property is included in future planning areas. The City conducts extensive planning for municipal transportation, water, sewer, parks, and other facilities and services provided by the City. The adopted plans allow the City to consider existing conditions and identify enhancements needed to provide additional service needed by new development. The City implements these plans through its capital improvements program that identifies individual projects, project construction scheduling, and financing of construction. As stated in 38.300.020.C, the designation of a zoning district does not guarantee approval of new development until the City verifies the availability of needed infrastructure. All zoning districts in Bozeman enable a wide range of uses and intensities. At time of future subdivision or site plan review the need for individual services can be more precisely determined. No subdivision or site plan is approved without demonstration of adequate capacity. 38.300.020.C, “Placement of any given zoning district on an area depicted on the zoning map indicates a judgment on the part of the city that the range of uses allowed within that district are generally acceptable in that location. It is not a guarantee of approval for 200 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 30 of 46 any given use prior to the completion of the appropriate review procedure and compliance with all of the applicable requirements and development standards of this chapter and other applicable policies, laws and ordinances. It is also not a guarantee of immediate infrastructure availability or a commitment on the part of the city to bear the cost of extending services.” The application site is located 2 miles within the City’s land use, transportation, parks, and utility planning areas. Those plans show this property as developing within the City when development is proposed. Adequacy of all these public requirements is evaluated during the subdivision and site development process. All zoning districts in Bozeman enable a range of uses and intensities. At the time of future subdivision or site plan review the need for individual services can be more precisely determined. No subdivision or site plan is approved without demonstration of adequate capacity. The future development of the area will require dedication and construction of streets, provision of parks, extension of water and sewer services, and placement of easements for telecommunication, electricity and similar dry utilities. As noted in Section 6, Criterion A, the Fowler Lane alignment has been designated in multiple City and joint City/County transportation plans as an arterial street. Although presently a gravel rural surface, Fowler Lane is a substantial north-south link in the long range transportation network with a long term width of 110 feet planned for the right of way. With or without this proposed zoning amendment the street will change to an urban paved street at some time. Development of any urban zoning or more intensive County zoning district will require changes to the street to the degree demonstrated as necessary during review of the development. As noted above, the placement of a zoning district does not grant entitlement to construct. West Graff Street is a designated Collector Street and required ROW easements are required with the associated annexation. Similar to Fowler Lane, with or without this proposed zoning amendment the street will change to an urban paved street at some time. The site is located within the Cattail Creek drainage basin and Meadow Creek sewer outfall service area. Both have capacity to service additional development. Water mains are located in Kurk Drive, South 27th, and West Graff and can be extended to provide the required looped water service. Responsibility to make those connections lies with the developer. The site is adjacent to Fowler Lane, an arterial street. Kurk Drive, a paved City street with sidewalks on the south side, connects to the property at the east side. South 27th provides access on the east. Review of future development will further verify adequate capacity is present and all needed connections can be provided before any construction may begin. Division 38.420 and Section 38.520.060 require dedication of parks and on-site open spaces to meet the needs of residents. The associated annexation will partially address required compliance with City standards through the Terms of Annexation in Section 2. Dedication of right of way for arterials streets 201 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 31 of 46 is part of the annexation process as is agreement to follow the City’s development standards. With future development proposals, the applicant must demonstrate not just possible but actual street networks and utility connections existing or to be constructed to support the intensity of development proposed. See also Section 6, Criterion F regarding transportation and Section 5, annexation Policies 8, 9, and 12. The criterion is met. E. Reasonable provision of adequate light and air. Criterion Met. The R-4 zoning designation has requirements for setbacks, height, and lot coverage which provide for the reasonable provision of adequate light and air. Any future development of the property will be required to conform to City standards for setbacks, height, lot coverage, and buffering. In addition to the zoning standards, adopted building codes contain more detailed requirements for air circulation, window placement, and building separation that further ensure the intent of this criterion is satisfied. The site has wetlands and riparian areas running through the property. The City requires protection of wetlands. This requirement applies to all zoning districts. This will support additional light and air beyond what would otherwise be applicable on the site. F. The effect on motorized and non-motorized transportation systems. Criterion Met. The proposed zoning will allow for a higher density of uses than is currently allowed under Gallatin County zoning. As a result, under the proposed zoning, when a development is proposed, they will be responsible for their frontage improvements which will include improvements along Fowler Lane, Graff Street, and 27th Avenue in addition to internal streets required to serve development. The City conducts routine transportation monitoring, modeling, and planning to understand existing conditions and future needs of the transportation system. The 2017 Transportation Master Plan is the most recent transportation plan. Figure 2.5, Existing Major Street Network, shows Fowler Avenue as an arterial street, S. 27th Avenue, and Graf Street as collectors. The Greater Bozeman Area Transportation Plan 2007 Update, Gallatin County’s adopted transportation plan for this same area, shows the same street classifications on Figure 2.2. These four streets will be the primary collector and arterial accesses to the site over time. Local streets will link the larger arterial and collectors. Both documents show extensions of Graf Street to Fowler as future expansions of the road network. Further capacity expansion to the transportation network is planned, such as upgrading the condition of Fowler Lane, Stucky Road, extending Graff, improving and connecting Blackwood to S. 19th, and signalization of the intersection of Blackwood and 19th. These expected actions to implement the Transportation Master Plan will mitigate impact on the larger transportation network as the overall area develops. Not all of these expansions will be the responsibility of individual projects. 202 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 32 of 46 The recently adopted Capital Improvement Plan (CIP FY24-FY28) included funds from the Street Impact Fee Fund for improvements to Stucky Road from South 19th to Fowler Road. Fowler Lane is currently a rural standard unpaved road. Development of the site will require development of additional street capacity. Exact routing of travel and character of the improvements is not known at this time. They will be identified during development review when a specific construction proposal is made and impacts can be more accurately identified. Anticipated street capacity for various classes of streets is shown in Table 2.7 of the Transportation Master Plan and discussed in Section 2.4.1 of the same document. Future development of this property provides opportunity to expand the pedestrian network through installation of sidewalks such as a new East-West link connecting Fowler Lane to the sidewalk network along an extension of Kurk Drive. As there are no existing pedestrian or bicycle facilities along this section of Fowler Lane, the future extension of Graff Street and Kurk Drive will substantially shorten the travel distance from the west to reach trails, sidewalks, and parks. Bike and pedestrian travel is much more sensitive to distance than motor vehicle travel. Sidewalk installation is a minimum development standard under Chapter 38. This expands and improves the non-motorized transportation system. These links will be required with any future development under any municipal zoning district. Figure 2.10 of the Transportation Master Plan visually illustrates the Census and American Community Survey data that those living in the census tract including this property commute to work 35% of the time by foot, bike, or transit and likely higher with considerable recent development in the area. This is the 2nd highest rate in the City area. Given the location of the project site Staff expects that the non-motorized work trip will be less than the 35%. However, the extension of Kurk Drive and Graff Street will provides a continuous street connection from the far west of the subject property to the collector and arterial network that would support walking and biking to major destinations like MSU. Non-work travel data is not available from the Census. There are intermittent gaps in pedestrian and bicycle network. It is expected that those will fill in over time, either with development of adjacent properties or overall City improvements. The City has set minimum standards applicable to development to limit block length, ensure trail and sidewalk connections, and provide streets adequate to carry traffic projected from development. These standards are not applied at the time of the ZMA but are implemented during the subdivision and site plan processes required before any construction may begin. See also Section 6, Criterion D. The Walk Score is low with a walk score of zero, a transit score of zero, and a bike score of 48. These values are provided by Walk Score, a private organization which presents information on real estate and transportation through walkscore.com. The algorithm which produces these numbers is proprietary. A score is not an indication of safety or continuity of services or routes. Scores are influenced by proximity of housing, transit, and services and expected ability, as determined by the algorithm, to meet basic needs without using a car. Sites 203 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 33 of 46 located on the edge of the community have lower scores than those in the center of the community as the area is still under development and therefore diversity of uses is less than in fully established areas. There are no adopted development standards relating to the walk score. If, as suggested by the applicant, their statement of constructing mixed-use, may eventually improve these scores. According to Walk Score® the walks score measures the walkability of any address based on the distance to nearby places and pedestrian friendliness. 90 – 100 Walker’s Paradise. Daily errands do not require a car. 70 – 89 Very Walkable. Most errands can be accomplished on foot. 50 – 69 Somewhat walkable. Some errands can be accomplished on foot. 25 – 49 Car-Dependent. Most errands require a car. 0 – 24 Car-Dependent. Almost all errands require a car. Prior to occupancy or other appropriate trigger the applicant must show all applicable transportation systems are adequate to serve the proposed development and must meet minimum City standards. The Applicant has been advised of specific code provisions that will apply with future development proposals. G. Promotion of compatible urban growth. Criterion Met. The Bozeman Community Plan establishes a preferred and compatible development pattern. “The land use map sets generalized expectations for what goes where in the community… The land use categories and descriptions provide a guide for appropriate development and redevelopment locations for civic, residential, commercial, industrial, and other uses. The future land use designations are important because they aim to further the vision and goals of the City through promoting sustainability, citizen and visitor safety, and a high quality of life that will shape Bozeman’s future.” (Community Plan P. 51) Individuals may have widely varying opinions about what constitutes compatibility. To address this wide variation of viewpoint, Compatible development and Compatible land use are defined in Article 38.7 BMC to establish a common reference for consideration of this criterion and application of development standards. They are defined as: “Compatible development. The use of land and the construction and use of structures which is in harmony with adjoining development, existing neighborhoods, and the goals and objectives of the city's adopted growth policy. Elements of compatible development include, but are not limited to, variety of architectural design; rhythm of architectural elements; scale; intensity; materials; building siting; lot and building size; hours of operation; and integration with existing community systems including water and sewer services, natural elements in the area, motorized and non-motorized 204 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 34 of 46 transportation, and open spaces and parks. Compatible development does not require uniformity or monotony of architectural or site design, density or use. Compatible land use. A land use which may by virtue of the characteristics of its discernible outward effects exist in harmony with an adjoining land use of differing character. Effects often measured to determine compatibility include, but are not limited to, noise, odor, light and the presence of physical hazards such as combustible or explosive materials.” As noted in the definition of Compatible development, there are many elements that contributed to compatibility. The final sentence of the definition deserves emphasis “Compatible development does not require uniformity or monotony of architectural or site design, density or use.” Compatible development can be different than what is already in place. The City has adopted a variety of standards to implement compatibility. The proposed R-4 district is a residential district. The allowed uses for residential districts are set in 38.310.030. Table 38.310.030.A - Permitted general and group residential uses in residential zoning districts, shows permitted uses in the R-4 district and Table 38.310.030.B details permitted accessory and non-residential uses in residential zoning districts. The form and intensity standards for residential districts are in 38.320.030. The existing Meadow Creek subdivision (zoned R-3) has developed between 5 – 10 living units per acre. According to City code the required minimum density for the R-1 through R-3 districts is 5. The minimum density for R-4 is 8 dwelling per net acre. The more intensive development elements allowed in the R-4 district is subject to additional development standards established in Article 38.5, Project Design, of the municipal code. These standards address both site and building design to enable differing uses and scales of development to meet the definition of compatible in the municipal code and presented above. Section 38.500.010. – Purpose states: “This article (38.5) implements the Bozeman's growth policy. Overall, this article: A. Provides clear objectives for those embarking on the planning and design of development projects in Bozeman; B. Preserves and protects the public health, safety, and welfare of the citizens of Bozeman; C. Ensures that new commercial and multi-household development is of high quality and beneficially contributes to Bozeman's character; D. Ensures that new developments within existing neighborhoods are compatible with, and enhance the character of Bozeman's neighborhoods; E. Promotes an increase in walking and bicycling throughout the City; F. F. Enhances the livability of Bozeman's residential developments; G. Maintains and enhances property values within Bozeman.” 205 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 35 of 46 The intent of the R-4 district, 38.300.100.E, BMC, “is to provide for high-density residential development through a variety of housing types within the city with associated service functions. This purpose is accomplished by: 1. Providing for minimum lot sizes in developed areas consistent with the established development patterns while providing greater flexibility for clustering lots and mixing housing types in newly developed areas. 2. Providing for a variety of compatible housing types, including single and multi- household dwellings to serve the varying needs of the community's residents. 3. Allowing office use as a secondary use, measured by percentage of total building area. Use of this zone is appropriate for areas adjacent to mixed-use districts, commercial districts, and/or served by transit to accommodate a higher density of residents in close proximity to jobs and services.” The proposed amendment is associated with an annexation creating an incremental increase in the size of the City. As discussed in Section 6, Criterion A above, both the City’s and County’s growth policies expect this area to transition from rural to urban development. The unannexed areas adjacent to this property are agricultural or detached homes on an individual large lot in conformance with the Gallatin County AS zoning. The City Commission has adopted standards to control development impacts and support compatibility. The following excerpt from the BCP 2020, page 75 describes the City’s approach. “What combination of uses under what conditions can work well together? There is a wide range of possible answers for each community to consider. Some communities take a highly prescriptive worst-case view and try to restrain all possible points of perceived conflict. This tends to create a very homogenous community with little interest or scope for creativity. Bozeman takes a different approach. The worst case scenario is recognized as unlikely, but possible. Development standards deal with the majority of cases, while restraining extraordinary problems. The City creates standards under items 1 through 3; when one district is adjacent to another and is consistent with the growth policy, any physical conflicts will be minimal, if present at all. The City’s zoning policy encourages continued development of mixed uses. … The City uses the broad scope of its development standards to enable differing uses to be successful near each other. This shows on the zoning map where districts providing a wide diversity of uses are intermixed.” This proposal amends the zoning map and not the text. Therefore, no element of this amendment modifies the standards of any zoning district. The character of the districts as created by those standards remains intact. 206 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 36 of 46 As noted above, the City Commission has latitude in considering the geographical extents of a zoning district. Application of any municipal zoning district to the subject property will alter the existing agricultural character of the subject property. It is not expected that zoning freeze the character of an area in perpetuity. Rather, it provides a structured method to consider changes to the character. The BCP 2020 includes several objectives applicable to this criteria. These are: N-1.11 Enable a gradual and predictable increase in density in developed areas over time. N-1.2 Increase required minimum densities in residential districts. N-3.5 Strongly discourage private covenants that restrict housing diversity or are contrary to City land development policies or climate action plan goals. Application of any municipal zoning district to the subject property and subsequent development will alter the existing character of the subject property; which is fallow historic agricultural land within a rapidly developing area of the City. Likewise, development under any municipal zoning district will be visually different from adjacent unannexed property. This is true even if both are used for similar types of housing due to the differences between municipal and county zoning. Zoning doesn’t freeze the character of an area in perpetuity. Rather, it provides a structured method to consider changes to the character. The BCP 2020 notes, “…when considering an amendment to the zoning map both the actual and possible built environment are evaluated. If the amendment is accompanying an annexation request there is often a substantial change in use that will occur. In this case, the Commission must look at what the growth policy recommends for the area, as there is less built context to provide guidance.” Staff concludes that although the R-4 is different than some surrounding zoning, it is compatible urban growth as called for in the growth policy. See also discussion for Section 6, Criteria A & H. H. Character of the district. Criterion Met. Section 76-2-302, MCA says “…legislative body may divide the municipality into districts of the number, shape, and area as are considered best suited to carry out the purposes [promoting health, safety, morals, or the general welfare of the community] of this part.” Emphasis added. This proposal amends the zoning map and not the text. Therefore, no element of this amendment modifies the standards of any zoning district. The character of the districts as created by those standards remains unaltered. Even though the criterion is most applicable to text amendments it still must be applied to consideration of zoning map amendments. The requested zoning meets the requirements of this criterion because, although different, it is 207 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 37 of 46 compatible with surrounding zoning, existing roads and a park will provide a buffer between future development on this parcel and existing residential and agricultural uses, and promotes urban growth as called for in the BCP 2020. The proposed amendment only applies to the Applicant’s property and does not change what is or is not allowed on adjacent property. As noted above, the City Commission has discretion within the limits of the State established criteria in considering the location and geographical extents of a zoning district. Implementation of zoning must also be in accordance with the adopted growth policy. As noted in Section 6, Criterion A, the City policy calls for a diverse and densifying land use pattern. See discussion in Section 6, Criterion A. The BCP 2020 includes several objectives applicable to this criteria. These are: N-1.11 Enable a gradual and predictable increase in density in developed areas over time. N-1.2 Increase required minimum densities in residential districts. N-3.5 Strongly discourage private covenants that restrict housing diversity or are contrary to City land development policies or climate action plan goals. Application of any municipal zoning district to the subject property and subsequent development will alter the existing character of the subject property; which is a rural. Likewise, development under any municipal zoning district will be visually different from adjacent unannexed property. This is true even if both are used for similar types of housing due to the differences between municipal and county zoning. Similarly, development will likely be different from other annexed properties. For example, properties to the east are zoned R-3 but are largely developed as detached single-household neighborhoods, well below permitted densities. Zoning doesn’t freeze the character of an area in perpetuity. Rather, it provides a structured method to consider changes to the character. The BCP 2020 notes, “…when considering an amendment to the zoning map both the actual and possible built environment are evaluated. If the amendment is accompanying an annexation request there is often a substantial change in use that will occur. In this case, the Commission must look at what the growth policy recommends for the area, as there is less built context to provide guidance.” See Section 6, Criterion A above for discussion about the application and growth policy and anticipated change to the character of the area. The City has defined compatible development as: “The use of land and the construction and use of structures which is in harmony with adjoining development, existing neighborhoods, and the goals and objectives of the city's adopted growth policy. Elements of compatible development include, but are not limited to, variety of architectural design; rhythm of architectural elements; scale; intensity; 208 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 38 of 46 materials; building siting; lot and building size; hours of operation; and integration with existing community systems including water and sewer services, natural elements in the area, motorized and non-motorized transportation, and open spaces and parks. Compatible development does not require uniformity or monotony of architectural or site design, density or use.” As noted above, the City Commission has latitude in considering the geographical extents of a zoning district. To date, the City of Bozeman has not defined a specific area outside of the area itself to be rezoned for consideration of this criterion. A review of the existing uses within a quarter mile radius of the amendment site shows three zoning districts. First is R-4, the same as what is being proposed which allows a variety of housing types in close proximity. Second, R-3, is a municipal district and allows a wide variety of housing types including detached homes, townhomes, and other forms of attached homes, as well as various institutional and light commercial uses. Finally, A-S, is a county zoning district focused on low density residential and preservation of agricultural operation until it transitions to urban development. See discussion under Section 6, Criterion A above. Active uses within a quarter mile include parks, detached individual homes, and agricultural fields. This is a small selection of the potential uses allowed in the existing zoning districts. Single homes and townhomes are beginning construction in the nearby Gran Cielo subdivision. The Buffalo Run development to the south is finalizing their development patterns. About half the area within a quarter mile is undeveloped and remains as fields. In the developed areas, zoned as R-3 and R-4 as detached single household residences are the most commonly constructed structures. Page 77 of the BCP 2020 describing review of zoning map amendments states “When evaluating compliance with criteria, it is appropriate to consider all the options allowed by the requested district and not only what the present applicant describes as their intensions.” When evaluating compatibility between zoning districts, Staff considers the full range of allowable uses, not only what is built now or proposed by a specific project. The maps in Section 1, all of the municipally zoned areas west of 19th are in the upper range of zoning district intensity. This is consistent with the City’s previous and current growth policy and infrastructure planning. The character of the larger area is in the process of changing with multiple large and intense developments now under construction or in review. This is illustrated by this excerpt from the Community Development Viewer. All colored or striped shaded areas are in some stage of review and development. This application is the solid green shaded rectangle in the lower left of the image in a red box. 209 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 39 of 46 Less than half of the area adjacent to the site is agricultural and has already transitioned from rural to urban, as described in Section 6, Criterion A. Therefore, the character is not fully defined, and is suitable to add additional uses. The City, as shown by an examination of the zoning map and authorized uses in all zoning districts, strives to encourage a diverse development pattern and avoid large areas of single use development. This is further supported by the statement in the description of the Urban Neighborhood future land use category, “Large areas of any single type of housing are discouraged.” No size is specified for what is a large area. Therefore, when considering the character of an area it is expected that there will be diversity of development types. This diversity is also shown on the zoning maps in Section 1. Development within the City is more land efficient than rural or suburban development in unannexed areas. Urban intensity development whether more intensive apartment style development or more typical medium density residential is much more land efficient than rural/suburban development. Suburban development consumes 135 times the amount of land and the rural consumes 594 times the amount of land per home than urban development. Development within the City also provides for a wide range of housing types to meet a wide range of housing needs. Development within the City lessens likelihood of conversion of agricultural and open spaces to other uses but does convert uses on some land with annexation. The City expects urban development within the municipal boundary. 210 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 40 of 46 Table 4 of the BCP 2020, see Section 6, Criterion A above, identifies the implementing zoning districts of the Urban Neighborhood future land use category. That category allows for zoning districts that authorize a wide range of possible future development. There are no zoning districts which are limited to only one type of development. All zoning districts implementing the Urban Neighborhood category provide for a range of housing types, institutions, and commercial activities. The expansiveness and intensity allowed varies between districts. As noted in this report, the BCP 2020 calls for evaluation of the entire range of uses in zoning districts when evaluating criteria for zoning amendments. The R-4 zoning district and the adjacent R-3 and R-4 zoning districts are residential in nature and are more similar than different in uses and standards. Development in R-4 that is more intensive than that allowed in the R-3 district, such as an apartment building, is subject to the standards of Article 38.5. Article 38.5 imposes a variety of standards on site and building design. However, a recent text amendment allows “limited apartments” in the R-3 district. Limited apartments are structures that host up to eight dwellings units. The present development zoned R-3 near the subject property is developed at the low end of the allowed intensity for the R-3 zoning district. Evaluation of this situation is guided by the growth policy. On page 76 of the BCP 2020 under discussion of application of this zoning criteria is says: “Second, when considering an amendment to the zoning map both the actual and possible built environment are evaluated. If the amendment is accompanying an annexation request there is often a substantial change in use that will occur. In this case, the Commission must look at what the growth policy recommends for the area, as there is less built context to provide guidance.” The City has adopted many standards to identify and avoid or mitigate demonstrable negative impacts of development. These will support the ability of future development in R-4 to be compatible with adjacent development and uphold the residential character in an area where R-4 is applied even if the intensity between districts is different. The following excerpt from the BCP 2020, page 75 describes the City’s adopted approach. “What combination of uses under what conditions can work well together? There is a wide range of possible answers for each community to consider. Some communities take a highly prescriptive worst-case view and try to restrain all possible points of perceived conflict. This tends to create a very homogenous community with little interest or scope for creativity. Bozeman takes a different approach. The worst case scenario is recognized as unlikely, but possible. Development standards deal with the majority of cases, while restraining extraordinary problems. The City creates standards under items 1 through 3; when one district is adjacent to another and is consistent with the growth policy, any physical conflicts will be 211 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 41 of 46 minimal, if present at all. The City’s zoning policy encourages continued development of mixed uses. … The City uses the broad scope of its development standards to enable differing uses to be successful near each other. This shows on the zoning map where districts providing a wide diversity of uses are intermixed.” The standards adopted by the City prevent physically dangerous spillover effects. An example is the capture, treatment and discharge controls from additional storm water runoff as additional impervious surfaces are built. Required setbacks from property lines, landscaping requirements, and similar site and building standards address character and compatibility. These and other standards carry out the intent and purpose of the City’s land development standards in Chapter 38 of the municipal code. Sec. 38.100.040. - Intent and purpose of chapter. A. The intent of this unified development chapter is to protect the public health, safety and general welfare; to recognize and balance the various rights and responsibilities relating to land ownership, use, and development identified in the United States and State of Montana constitutions, and statutory and common law; to implement the city's adopted growth policy; and to meet the requirements of state law. Zoning does not prohibit change but provides a structure within which change can occur. Such changes include modifications to both the text and zoning map. Such amendments are authorized in the zoning enabling act for municipalities. Landowners have both property rights and responsibilities. The City has adopted development standards to ensure that responsibilities are met while landowners exercise their property rights. The City has not chosen, and is not required, to adopt standards for all issues. For example, standards have not been adopted regarding preservation of view sheds or extra separation of buildings from unannexed property. Finally, Theme 7 of the BCP 2020 includes this statement: “RC-3.2 Work with Gallatin County to keep rural areas rural and maintain a clear edge to urban development that evolves as the City expands outwards.” This objective describes the situation now under review. The City is expanding outwards by annexation. Gallatin County has identified this area as a growth area in its land use planning documents. There will be a distinct edge between the AS and R-5 zoning districts with different intensity of residential uses. Staff concludes that although the R-4 is different than the surrounding zoning it is compatible and is urban growth as called for in the growth policy. See also discussion for Section 6, Criteria A, G, and F. I. Peculiar suitability for particular uses. Neutral. The proposed amendment does not modify the existing standards of the R-4 district. Therefore the impact of the amendment is limited to this application site. The property is generally flat. A watercourses cross the property from north to south. Groundwater in the area 212 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 42 of 46 is shallow and potentially at hazard from onsite sewage treatment. The property is within the City’s planning area for land use and utility extensions. There is frontage on Fowler Lane, an arterial street, Graff Street and South 27th Avenue, which are collector streets. Municipal utilities and emergency services can be extended to the area. The site is capable of supporting a more intensive district in the range of zoning districts. These features are not unusual for properties adjacent to the City. The described features support annexation and development within the City. There are not sufficient distinctive characteristics of the property to make a positive or negative findings for this criteria specific to an individual zoning district. J. Conserving the value of buildings. Neutral. The proposed amendment does not modify the existing standards of the R-4 district. R-4 zoning is residential in nature and allows a variety of housing types as long as the minimum density of 8 DU per acre is achieved. The immediate Future land Use and zoning surrounding the property is residential in nature. Future development is not known at this juncture and will emerge with future development applications. The permitted uses must conform to the adopted zoning. A minimum of a 90 feet of right-of-way separate this property from any adjacent property that will act as a buffer to the existing developments. The location of amenities that may increase the value of buildings such as parks, open space, trails, and value added assets is undermined. Any new structures at the site will be required to meet setback and other protective requirements set forth in the Bozeman Municipal Code. Compliance will alleviate potential negative impacts to the value of surrounding buildings and properties. As described in earlier criteria, the proposed zoning is compatible with existing buildings on adjacent properties and does not create any new situations not in compliance with municipal code. K. Encourage the most appropriate use of land throughout the jurisdictional area. Criterion Met. The proposed R-4 zoning designation will encourage the most appropriate use of land as the property is adjacent to both residential and commercial uses. There is access to the city’s services, including streets, thus is able to support a higher intensity of uses as allowed within the R-4 zoning district. Furthermore, the proposed R-4 zoning designation is generally consistent with the BCP 2020 future land use map designation of “Urban Neighborhood”. PROTEST NOTICE FOR ZONING AMENDMENTS IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE OWNERS OF 25% OR MORE OF THE AREA OF THE LOTS WITHIN THE AMENDMENT AREA OR THOSE LOTS OR UNITS WITHIN 150 FEET FROM A LOT INCLUDED IN A PROPOSED CHANGE, THE AMENDMENT SHALL NOT BECOME EFFECTIVE EXCEPT 213 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 43 of 46 BY THE FAVORABLE VOTE OF TWO-THIRDS OF THE PRESENT AND VOTING MEMBERS OF THE CITY COMMISSION. The City will accept written protests from property owners against the proposal described in this report until the close of the public hearing before the City Commission. Pursuant to 76-2-305, MCA, a protest may only be submitted by the owner(s) of real property within the area affected by the proposal or by owner(s) of real property that lie within 150 feet of an area affected by the proposal. The protest must be in writing and must be signed by all owners of the real property. In addition, a sufficient protest must: (i) contain a description of the action protested sufficient to identify the action against which the protest is lodged; and (ii) contain a statement of the protestor's qualifications (including listing all owners of the property and the physical address), to protest the action against which the protest is lodged, including ownership of property affected by the action. Signers are encouraged to print their names after their signatures. A person may in writing withdraw a previously filed protest at any time prior to final action by the City Commission. Protests must be delivered to the Bozeman City Clerk, 121 North Rouse Ave., PO Box 1230, Bozeman, MT 59771-1230. APPENDIX A - NOTICING AND PUBLIC COMMENT Notice was published in the Bozeman Daily Chronicle on March 1 and 5, 2023. The notice was posted on site and notices mailed by the applicant as required by 38.220 and the required confirmation provided to the Planning Office. Notice was provided at least 15 and not more than 45 days prior to any public hearing. Public comment has been received on this application and can be viewed at the following link. https://weblink.bozeman.net/WebLink/Browse.aspx?id=273672&dbid=0&repo=BOZEMAN APPENDIX B - PROJECT GROWTH POLICY AND PROPOSED ZONING Adopted Growth Policy Designation: The property is designated as “Urban Neighborhood” in the Bozeman Community Plan 2020. “This category primarily includes urban density homes in a variety of types, shapes, sizes, and intensities. Large areas of any single type of housing are discouraged. In limited instances, an area may develop at a lower gross density due to site constraints and/or natural features such as floodplains or steep slopes. Complementary uses such as parks, home-based occupations, fire stations, churches, schools, and some neighborhood-serving commerce provide activity centers for community gathering and services. The Urban Neighborhood designation indicates that development is expected to occur within municipal boundaries. This may require annexation prior to development. 214 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 44 of 46 Applying a zoning district to specific parcels sets the required and allowed density. Higher density residential areas are encouraged to be, but are not required or restricted to, proximity to commercial mixed use areas to facilitate the provision of services and employment opportunities without requiring the use of a car.” Proposed Zoning Designation and Land Uses: The applicant has requested zoning of R-4, Residential High Density District whose intent is to: Residential high density district (R-4). The intent of the R-4 residential high density district is to provide for high-density residential development through a variety of housing types within the city with associated service functions. This purpose is accomplished by: 1. Providing for minimum lot sizes in developed areas consistent with the established development patterns while providing greater flexibility for clustering lots and mixing housing types in newly developed areas. 2. Providing for a variety of compatible housing types, including single and multi- household dwellings to serve the varying needs of the community's residents. 3. Allowing office use as a secondary use, measured by percentage of total building area. Use of this zone is appropriate for areas adjacent to mixed-use districts, commercial districts, and/or served by transit to accommodate a higher density of residents in close proximity to jobs and services. 215 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 45 of 46 216 Staff Report for the Gran Cielo II Annexation and ZMA, Application 22090 Page 46 of 46 APPENDIX C - OWNER INFORMATION AND REVIEWING STAFF Owner: Bozeman Haus Two, LLC, 15267 SE Rivershore Drive, Vancouver, WA 98683 Applicant: Madison Engineering, 895 Technology Drive, #203, Bozeman, MT 59718 Representative: Madison Engineering, 895 Technology Blvd., Suite 203, Bozeman, MT 59718 Report By: Tom Rogers, Senior Planner, Community Development Department FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Annexation or Zone Map Amendment. ATTACHMENTS The full application and file of record can be viewed at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. 217 218 Memorandum REPORT TO:City Commission FROM:Kaitlin Johnson, Budget Analyst Melissa Hodnett, Finance Director Jeff Mihelich, City Manager SUBJECT:Fiscal Year 24 City Manager's Recommended Budget Presentation: Introduction, General Fund and Special Revenue Funds (Excluding Assessment Districts) MEETING DATE:June 13, 2023 AGENDA ITEM TYPE:Finance RECOMMENDATION:Listen to the presentation, ask questions, and provide comments. 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:Municipal budgets serve a number of important functions. In addition to laying out a spending plan for the City and allocating resources to meet the diverse needs of the community, Bozeman’s budget: - Is a principal policy and management tool for the City’s administration, reflecting and defining the annual work program; - Provides a framework for the City to accomplish its vision and strategic plan; and - Reflects core City values of integrity, leadership, service, and teamwork. We are pleased to present to you the City Manager Recommended Budget for Fiscal Year 2023-2024 (FY24). The recommended budget represents the thoughtful work of dozens of people across all departments to ensure an informed projection of FY24 in support of the City Commission Strategic Plan. Bozeman is a vital, growing, and changing city, which presents significant challenges including balancing community needs, like infrastructure and public safety, with affordability and pressure on the allocation of limited City resources. The recommended budget focuses on maintaining or improving our level of service to the community as it relates to public safety, community health & safety, and affordable housing. 219 This budget presentation will provide a brief introduction to the budgeting process and timeline as well as highlights from the General Fund and select Special Revenue Funds, including the Community Housing Fund, Planning Fund, and Building Inspection Fund. The FY24 City Manager Recommended Budget is available online at FY24 City Manager Recommended Budget. The General Fund is used to account for all financial resources of the City, except for those required to be accounted for in another fund. The General Fund supports such basic services as the General Administration, Police, Fire, Finance, Recreation, and Library services. The presentation will highlight the overall financial summary, found on pages 25-27 of the FY24 City Manager Recommended Budget document, as well as divisions funded fully or partially by the General Fund. Specific details on each division can be found beginning on page 57. The Planning Fund accounts for revenues and expenditures related to community planning and zoning operations, in addition to the Code Compliance department. The Building Inspection Fund is supported entirely by the revenue from building fees and permits. Revenues and expenditures are statutorily restricted to amounts that support the building safety program. The Community Housing Fund is where the Affordable Housing Program is accounted for. Affordable housing is part of our Strategic Plan and is a City Commission priority. This presentation will outline the recommended budget for each fund and the anticipated resulting outcomes. Details on the Planning Fund, Building Inspection Fund, and Community Housing Fund can be found on pages 73-74, 83-84, and 129-130, respectively. In addition to begin available online, a copy of the FY24 City Manager Recommended Budget is available at the Bozeman Public Library. The second budget hearing will take place on June 27, 2023, at which time Enterprise Funds, Internal Service Funds and Special Assessment Districts will be presented on and discussed. Final adoption of the FY24 Budget is scheduled for July 11, 2023. UNRESOLVED ISSUES:None ALTERNATIVES:If there are changes the City Commission would like to make to the City Manager's Recommended Budget, they can be discussed during this meeting 220 and adopted at formal budget adoption on July 11. FISCAL EFFECTS:This presentation has no immediate fiscal impacts, but it is the first work session as part of the budget adoption process for the fiscal year 2024, which begins on July 1, 2023. Once adopted, the budget will fund activities that support the Commission's priorities. Report compiled on: June 1, 2023 221