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Home My WebLink About07-25-23 City Commission Meeting Agenda and Packet MaterialsA.Call to Order - 6:00 PM - Commission Room, City Hall, 121 North Rouse This meeting will be held both in-person and also using an online video conferencing system. You can join this meeting: Via Video Conference: Click the Register link, enter the required information, and click submit. Click Join Now to enter the meeting. Via Phone: This is for listening only if you cannot watch the stream, channel 190, or attend in- person United States Toll +1 669 900 9128 Access code: 933 7244 1920 B.Pledge of Allegiance and a Moment of Silence C.Changes to the Agenda D.Authorize the Absence of Commissioner Pomeroy Authorize the Absence of Commissioner Pomeroy D.1 Authorize the Absence of Commissioner Pomeroy(Maas) E.Public Service Announcements F.FYI G.Approval of Minutes G.1 Approve the Regular Meeting Minutes from: February 7, 2023 February 14, 2023 (Maas) THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, July 25, 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 H.Consent H.1 Accounts Payable Claims Review and Approval (Waters) H.2 Authorize the City Manager to sign a Short Form Construction Agreement with Altitude Contracting LLC for Rouse Lot Entrance Widening.(Tucker) H.3 Authorize City Manager to sign the Professional Services Agreement with DOWL, LLC for the Riverside Lift Station and Force Main Project.(Murray) H.4 Authorize the City Manager to sign a Professional Services Agreement (PSA) with Richard Brown for Fred Willson Multiple Property Documentation Historical Research Services(Rosenberg) H.5 Authorize the City Manager to sign amendment No. 1 to the professional services agreement for the Field Survey Term Contract with Sanderson Stewart, to facilitate design of upcoming capital improvements projects(Gamradt) H.6 Authorize the City Manager to Sign a Task Order Seven with Baker Tilly for Housing and Economic Development Project Cash Flow Analysis on Bozeman Wallace Works in the Northeast Urban Renewal District(Fine ) I.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. J.Special Presentation J.1 Overview of Senate Bill 382 and Overview of Unified Development Code Public Review Process in Fall 2023.(Saunders) K.Action Items K.1 Resolution 5495 To Increase Permit Fees in the University Residential Parking Permit District and the Bozeman High School Residential Parking Permit District(Veselik) K.2 Ordinance 2142, Provisional Adoption Revising Speed Limits on City-controlled Routes (Ross) L.Work Session L.1 Wetland Protection Mitigation Work Session(Shawn Kohtz, City Engineer) M.FYI / Discussion 2 N.Adjournment City Commission meetings are open to all members of the public. If you have a disability that requires assistance, please contact our ADA Coordinator, Mike Gray, at 582-3232 (TDD 582-2301). Commission meetings are televised live on cable channel 190 and streamed live at www.bozeman.net. 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:Alex Newby, Deputy City Clerk Mike Maas, City Clerk Kira Peters, Assistant City Manager Jeff Mihelich, City Manager SUBJECT:Authorize the Absence of Commissioner Pomeroy MEETING DATE:July 25, 2023 AGENDA ITEM TYPE:Administration RECOMMENDATION:Authorize the Absence of Commissioner Pomeroy STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:Commissioner Pomeroy notified City Manager Mihelich and Mayor Andrus of her anticipated absence. UNRESOLVED ISSUES:None ALTERNATIVES:None FISCAL EFFECTS:None Report compiled on: July 6, 2023 4 Memorandum REPORT TO:City Commission FROM:Alex Newby, Deputy City Clerk Mike Maas, City Clerk Kira Peters, Assistant City Manager Jeff Mihelich, City Manager SUBJECT:Approve the Regular Meeting Minutes from: February 7, 2023 February 14, 2023 MEETING DATE:July 25, 2023 AGENDA ITEM TYPE:Minutes RECOMMENDATION:I move to approve the combined City Commission minutes as submitted. STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:In 2013, The Clerk’s Office identified goals related to the Commission’s priority of Improving Technology Utilization and Proficiency. Improvements included: • Live streaming broadcast of the City Commission Meeting • Meeting efficiency • Better access of meeting information for staff and the public • Time savings • Streamlined approach to citizen involvement and public comment In addition to the City Commission, many Citizen Advisory Boards utilize the system as well. Beginning January 5, 2021 meetings in the Granicus platform have been closed captioned. Those captions are searchable using the advanced search option on our video view page. Users are always welcome to contact the City Clerk’s Office at 582-2320 or email agenda@bozeman.net for assistance. UNRESOLVED ISSUES:None ALTERNATIVES:As determined by the Commission. FISCAL EFFECTS:None Attachments: 5 02-07-23 City Commission Meeting Minutes.pdf 02-14-23 City Commission Meeting Minutes.pdf Report compiled on: July 19, 2023 6 Bozeman City Commission Meeting Minutes, February 7, 2023 Page 1 of 10 THE CITY COMMMISSION MEETING OF BOZEMAN, MONTANA MINUTES February 7, 2023 Present: Cyndy Andrus, Terry Cunningham, I-Ho Pomeroy, Jennifer Madgic Absent: None Excused: Christopher Coburn Staff Present at the Dais: City Manager (CM) Jeff Mihelich, City Attorney (CA) Greg Sullivan, City Clerk (CC) Mike Maas A) 00:05:52 Call to Order - 6:00 PM - Commission Room, City Hall, 121 North Rouse B) 00:06:51 Pledge of Allegiance and a Moment of Silence C) 00:07:33 Changes to the Agenda CM Mihelich noted the change to I.1, Application 22270, that the continuance be to a date uncertain. 00:08:02 Motion to approve the absence of Commissioner Christopher Coburn. Terry Cunningham: Motion Jennifer Madgic: 2nd 00:08:15 Vote on the Motion to approve the absence of Commissioner Christopher Coburn. The Motion carried 4 - 0. Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Disapprove: None 7 Bozeman City Commission Meeting Minutes, February 7, 2023 Page 2 of 10 D) 00:08:23 FYI CM Mihelich highlighted the engagement opportunities for Sensitive Land Study, Unified Development Code, Westside Community Center, DEI, and PRAT Plan. E) 00:09:20 Commission Disclosures There were no disclosures. F) Approval of Minutes F.1 00:09:24 Approve the Regular Meeting Minutes from: January 10, 2023 January 24, 2023 Approve the Special Meeting Minutes from: January 25, 2023 Approve the Executive Session Minutes from: December 6, 2022 (distributed separately) 01-10-23 City Commission Meeting Minutes.pdf 01-24-23 City Commission Meeting Minutes.pdf 01-25-23 City Commission Special Meeting Minutes.pdf 00:09:30 Motion to approve the combined City Commission minutes as submitted. Jennifer Madgic: Motion I-Ho Pomeroy: 2nd 00:09:59 Vote on the Motion to approve the combined City Commission minutes as submitted. The Motion carried 4 - 0. Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Disapprove: None G) 00:10:07 Consent G.1 Accounts Payable Claims Review and Approval G.2 Approval of Depository Bonds and Pledged Securities as of December 31, 2022 Depository Bonds & Securities 1222.doc G.3 Authorize the Mayor to Sign the 2131 Graf Street Minor Subdivision Preliminary Plat Findings of Fact and Order 22188 Graf St PP CC FOF Memo.pdf 22188 Graf PP FOF staff rpt 01 13 23.docx 8 Bozeman City Commission Meeting Minutes, February 7, 2023 Page 3 of 10 2131 Graf St Preliminary Plat.pdf G.4 Authorize the City Manager to Sign a Notice of Award and Purchase Agreement for One (1) New 2022 Ford F550 Metro Sized Truck Mounted Attenuator (TMA) BID PURCHASE AGREEMENT Notice of Award Quote and Bid Form G.5 Authorize the City Manager to sign a Notice of Award to Purchase a Dump Truck Replacement in Utilities Department Notice_of_Award Dump Truck.docx G.6 Authorize the City Manager to Sign an Irrevocable Offer of Dedication and a Hold Harmless Agreement with Gallatin County for Gallatin County Courts Site Plan (22186) Irrevocable Offer of Dedication Hold Harmless Agreement G.7 Authorize the City Manager to Sign an Amendment 1 to the 2022 CIPP Project with DOWL, LLC to Facilitate the Bidding and Construction Phases of the Project 2022_CIPP_DOWL_Amend1.pdf G.8 Ratify the City Manager's Signature on Early Work Amendment 1 for the Fire Station 2 Relocation Project Bozeman Fire Station No. 2 - Early Work Amendment No. 1.pdf G.9 Resolution 5464 A Resolution of Intent of the Bozeman City Commission to Create Special Improvement District (SID) 778 for the Purpose of Undertaking Certain Local Improvements to Bogert Place from South Church Avenue to East Story Street and Financing the Costs Thereof RES 5464.docx Exhibit A.pdf Exhibit B.pdf Exhibit C.pdf Exhibit D - Letter to Property Owners.doc Exhibit E - NOTICE OF PASSAGE OF RESOLUTION OF INTENT.doc PROTEST FORM Special Improvement District Creation.docx G.10 Resolution 5474 Approving Change Order 2 to the WRF Solids Dewatering Building Expansion and Headworks Improvement Project Resolution 5474_CO No. 2_WRF Solids Handling_011923.docx Change Order No. 2.pdf G.11 Resolution 5476 Authorizing Prime Change Order 2 and Guaranteed Maximum Price Amendment 4 with Martel Construction, Inc. for the Construction of the Bozeman Public Library Renovation Project Resolution 5476.pdf Prime Change Order #2.pdf Guaranteed Maximum Price Amendment No. 4 for Public Library.pdf G.12 Resolution 5477 Adopting the Update to the Fair Market Value of Land for Cash-in-Lieu of Parkland Calculations Resolution_5477_Determination_of_CILP_Valuation.docx Exhibit A - Appraisal Report.pdf 00:10:11 City Manager Introduction CM Mihelich provided the highlights of the Consent Agenda. 9 Bozeman City Commission Meeting Minutes, February 7, 2023 Page 4 of 10 00:10:27 Public Comment There were no public comments on the Consent Agenda 00:11:00 Motion to approve Consent Items 1 - 12 as submitted. I-Ho Pomeroy: Motion Terry Cunningham: 2nd 00:11:08 Vote on the Motion to approve Consent Items 1 - 12 as submitted. The Motion carried 4 - 0. Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Disapprove: None H) 00:11:18 Public Comment Mayor Andrus opened general public comments. 00:12:05 Leif Sundeen, Public Comment Leif Sundeen commented on lumber prices and parking. I) 00:15:25 Action Items I.1 00:15:30 Continue the Public Hearing for a Zone Text Amendment to Modify the City’s Development Code to Restrict Greek Letter Organizations (GLOs) to the R-4, R-O, B-2, B-3, REMU Zoning Districts as Principal Uses, and Conditionally in the R-3 Zoning District, Application 22270 to April 4, 2023. 00:15:39 Motion to continue that, the City Commission having not received the report of the Zoning Commission prior to acting on an amendment to zoning as is required by state law Section 76-2-307, that application 22270 be continued to a date uncertain until receipt of the required report of the Zoning Commission. Terry Cunningham: Motion Jennifer Madgic: 2nd 00:16:02 Vote on the Motion to continue that, the City Commission having not received the report of the Zoning Commission prior to acting on an amendment to zoning as is required by state law Section 76-2- 307, that application 22270 be continued to a date uncertain until receipt of the required report of the Zoning Commission. The Motion carried 4 - 0. Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy 10 Bozeman City Commission Meeting Minutes, February 7, 2023 Page 5 of 10 Jennifer Madgic Disapprove: None I.2 00:16:14 Northwest Crossing Phase 2 Preliminary Plat Application, to Subdivide Five Restricted Development Lots Platted with Northwest Crossing Phase 1 into 264 Developable Lots with Associated Stormwater, Open Space, City Park, Easements, and Right-of-way, Located Southwest of the Corner of Baxter Lane and North Cottonwood Road, Application 22129 (Quasi-Judicial) 22129 Staff Report.pdf 00:16:24 Staff Presentation Associate Planner Danielle Garber entered the staff report into the record. She presented the subject property location, the Community Plan Future Land Use Map (FLUM) designation, the proposed plat, highlighted specific blocks within the plat, the proposed phasing plan, housing stock diversity, the pedestrian and transportation network, there has been no public comment, and the recommendations. 00:23:09 Questions of Staff 00:34:53 Applicant Presentation Jason Leep, MT Division President for Williams Homes, introduced the team available for questions, stated that all homes are planned for each lot, provided a background on Williams Homes, and the intent of the project. He responded to questions about the commercial development adjacent to their phase. Scott Maples presented the housing types. 00:44:40 Questions of Applicant 00:55:23 Public Comment 00:55:39 Leif Sundeen, Public Comment Leif Sundeen commented on the housing product provided and affordability. 00:57:32 Motion to approve the Northwest Crossing Phase 2 Preliminary Plat application with staff recommended conditions of approval and code provisions. Jennifer Madgic: Motion I-Ho Pomeroy: 2nd 00:57:45 Discussion 01:06:58 Vote on the Motion to approve the Northwest Crossing Phase 2 Preliminary Plat application with staff recommended conditions of approval and code provisions. The Motion carried 4 - 0. Approve: Cyndy Andrus Terry Cunningham 11 Bozeman City Commission Meeting Minutes, February 7, 2023 Page 6 of 10 I-Ho Pomeroy Jennifer Madgic Disapprove: None I.3 01:07:09 Saccoccia Minor Subsequent Subdivision Preliminary Plat (Quasi-judicial) 22188 Graf St PP CC Memo.docx 21430 Final Pre-Plat Page 1 11 01 22.pdf 21430 Final Pre-Plat Page 3 10 31 22.pdf 21430 Final Pre-Plat page2 10 31 22.pdf 21430 Saccoccia PP CC staff rpt 01 30 23.pdf 01:07:29 Staff Presentation Senior Planner Susana Montana entered the staff report into the record, presented the application, the lot layout, the necessary access, and the recommendations. 01:10:45 Questions of Staff 01:12:26 Applicant Presentation Matt Ekstrom, Morrison Maierle, represented the applicant, and responded to the question of access easements. 01:13:26 Question of Applicant 01:14:52 Public Comment There were no comments on this item. 01:15:30 Motion to approve Having reviewed and considered the application materials, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 21430 and move to approve the subdivision with conditions and subject to all applicable code provisions. I-Ho Pomeroy: Motion Terry Cunningham: 2nd 01:16:05 Discussion 01:16:50 Vote on the Motion to approve Having reviewed and considered the application materials, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 21430 and move to approve the subdivision with conditions and subject to all applicable code provisions. The Motion carried 4 - 0. Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic 12 Bozeman City Commission Meeting Minutes, February 7, 2023 Page 7 of 10 Disapprove: None I.4 01:17:00 Resolution 5478 A Resolution Approving the Cloverleaf Project in the Northeast Urban Renewal District as an Urban Renewal Project; Making Findings with with Respect Thereto and Approving the Use of Tax Increment Revenues to Reimburse Eligible Costs Thereof and Approving a Related Development Agreement Commission Memorandum for Resolution 5478.docx Resolution 5478 approving Cloverleaf project.docx Staff Report to NURB Cloverleaf Development v2 F.docx 213051-DRAFT MEMO-TIF Review-Bronkens Development_1-24-22.pdf BZN Development Agreement.Cloverleaf.v2.docx Cloverleaf.Height Restriction.v4.docx Cloverleaf.Affordable Housing Covenant.v2.docx 01:17:33 Staff Presentation Economic Development Manager David Fine presented the project purpose, the Northeast Tax Increment Finance (TIF) Assistance Program Incentives, the site and buildings, the Cloverleaf Project, public infrastructure improvements and benefits, costs to be reimbursed through TIF and the resulting fiscal effects, the required findings, entered the memorandum and staff report into the record, the three actions of the resolution, and the suggestion action. 01:32:37 Questions of Staff 01:51:15 Public Comment 01:51:33 Chandler Dayton, Public Comment Chandler Dayton commented on confusion of the action being taken by the Commission and the process. 01:53:17 Clarification of Staff 01:56:22 Motion to adopt Staff's findings in the Commission Memorandum and Staff Report and adopt Resolution 5478 approving the Cloverleaf development agreement including the amendments to remove the text from sections 5.1(f) and 5.2 as provided by staff. Terry Cunningham: Motion Jennifer Madgic: 2nd 01:56:44 Discussion 02:05:12 Vote on the Motion to adopt Staff's findings in the Commission Memorandum and Staff Report and adopt Resolution 5478 approving the Cloverleaf development agreement including the amendments to remove the text from sections 5.1(f) and 5.2 as provided by staff. The Motion carried 4 - 0. Approve: Cyndy Andrus 13 Bozeman City Commission Meeting Minutes, February 7, 2023 Page 8 of 10 Terry Cunningham I-Ho Pomeroy Jennifer Madgic Disapprove: None 02:05:22 Recess Mayor Andrus called the meeting into recess. 02:10:46 Call to Order Mayor Andrus called the meeting back to order. I.5 02:10:54 Authorize the City Manager to Sign the Development Agreement for Provision of Utilities and Affordable Housing with Virga Venture II RL 012522 Final Silos Development Agreement[85].docx Silo_Gravity_Draft3 Exhibit A.pdf 221129 Exhibit B.pdf 02:11:49 Staff Presentation Program Manager Fine presented the proposed development agreement with Virga Venture II, the purpose of the project, the Silo's Annexation approximate gravity drainage area, actions since 2021, agreement highlights, and the recommendation. 02:24:00 Questions of Staff 02:46:44 Public Comment There were no comments on this item. 02:47:17 Motion to authorize the City Manager to sign the Development Agreement for Provision of Utilities and Affordable Housing with Virga Venture II. Jennifer Madgic: Motion I-Ho Pomeroy: 2nd 02:47:29 Discussion 02:55:43 Vote on the Motion to authorize the City Manager to sign the Development Agreement for Provision of Utilities and Affordable Housing with Virga Venture II. The Motion carried 4 - 0. Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Disapprove: None 14 Bozeman City Commission Meeting Minutes, February 7, 2023 Page 9 of 10 J) Appointments J.1 02:55:55 Appointment to the Community Development Advisory Board Jason Delmue.pdf Matthew Hausauer.pdf 02:56:28 Motion to appoint Jason Delmue to the Community Development Board for a term ending December 31, 2024. Terry Cunningham: Motion Jennifer Madgic: 2nd 02:56:42 Vote on the Motion to appoint Jason Delmue to the Community Development Board for a term ending December 31, 2024. The Motion carried 4 - 0. Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Disapprove: None 02:56:50 Public Comment There were no comments on this item. K) 02:57:11 FYI / Discussion L) 02:57:16 Adjournment ___________________________________ Cynthia L. Andrus Mayor ATTEST: ___________________________________ Mike Maas City Clerk 15 Bozeman City Commission Meeting Minutes, February 7, 2023 Page 10 of 10 PREPARED BY: ___________________________________ Mike Maas City Clerk Approved on: July 25, 2023 16 Bozeman City Commission Meeting Minutes, February 14, 2023 Page 1 of 11 THE CITY COMMMISSION MEETING OF BOZEMAN, MONTANA MINUTES February 14, 2023 Present: Terry Cunningham, I-Ho Pomeroy, Jennifer Madgic, Christopher Coburn Absent: None Excused: Cyndy Andrus Staff Present at the Dais: City Manager (CM) Jeff Mihelich, City Attorney (CA) Greg Sullivan, City Clerk (CC) Mike Maas A) 00:03:13 Call to Order - 6:00 PM - Commission Room, City Hall, 121 North Rouse B) 00:04:46 Pledge of Allegiance and a Moment of Silence C) 00:05:36 Changes to the Agenda There were no changes. D) Authorize Absence D.1 00:05:48 Authorize the Absence of Mayor Andrus 00:05:55 Motion to authorize the absence of Mayor Andrus Christopher Coburn: Motion Jennifer Madgic: 2nd 00:06:00 Vote on the Motion to authorize the absence of Mayor Andrus. The Motion carried 4 - 0. Approve: Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: 17 Bozeman City Commission Meeting Minutes, February 14, 2023 Page 2 of 11 None E) 00:06:12 FYI CM Mihelich highlighted the launch of Pulse Point for notifications for a need for CPR. F) 00:07:20 Commission Disclosures DM Cunningham disclosed that he is the Executive Director of a non-profit that builds dog parks as it relates to the discussion around the PRAT Plan. G) 00:07:55 Consent G.1 Accounts Payable Claims Review and Approval G.2 Authorize the City Manager to Sign a Notice of Award for the Cottonwood Road (Oak to Baxter) project, to Treasure State, Inc. for Schedule I in the Amount of $7,955,703.50, and Final Contract Documents Once Received Cottonwood Notice of Award.doc Cottonwood Award Recommendation and Bid Tab 01 06 2023.pdf G.3 Authorize the City Manager to Sign a Conditional Irrevocable Offer of Dedication with WSF LLC for the West Side Flats Phase 2 and 3 Site Plan (22026) Conditional Irrevocable Offer of Dedication G.4 Authorize the City Manager to Sign a Utility Easement with ABS, LLC for the Addison Place Condos (22108) Utility Easement G.5 Authorize the City Manager to Sign a Trail Corridor Easement with Mitchell Development & Investments, LLC for the Bozeman Gateway PUD Phase 5 (22145) Trail Corridor Easement G.6 Authorize the City Manager to Sign a Montana Department of Environmental Quality 2022 Stormwater Annual Report Form 2022_AnnualReport_Stormwater.pdf 2022 SWMP.pdf G.7 Authorize the City Manager to Sign a Professional Services Agreement with Advanced Engineering and Environmental Services, LLC (AE2S) for Water and Wastewater Revenue Adequacy Modeling PSA AE2S Rate Consulting.docx Exhibit A-AE2S Rate Study Update.pdf G.8 Authorize the City Manager to Sign an Amendment to Terms for the Existing Host Compliance Granicus Vendor Contract MT_Bozeman_2023FEB1_ Final.pdf G.9 Authorize the City Manager to Sign an Amendment 1 to Task Order 14 with Sanderson Stewart for the Purpose of Right-of-Way Acquisition on the N 19th Avenue Pathway project ROW TO #14_19th Ave Path Prpsl_Amendment 1.pdf G.10 Authorize the City Manager to Sign a Task Order 8 of the Stormwater Design Professional Services Master Task Order Agreement with DOWL, LLC for the Downtown Mechanical Treatment Project Phase 4 A - Task Order 08 - Scope of Services.pdf B - Professional Services Master Task Order Agreement.pdf 18 Bozeman City Commission Meeting Minutes, February 14, 2023 Page 3 of 11 G.11 Reconsideration of the Cloverleaf Zone Map Amendment Decision; the Cloverleaf Zone Map Amendment Requested Amending the City Zoning Map for a City Block Bounded by East Cottonwood Street, Ida Avenue, East Peach Street, and Plum Avenue Consisting of Approximately 3.1995 Acres and the Accompanying Adjacent Rights-of way from NEHMU (Northeast Historic Mixed Use) to B-2M (Community Business District Mixed) 00:08:02 City Manager Introduction CM Mihelich provided the highlights of the Consent Agenda. 00:09:11 Cr. Madgic requested G.11 be moved to an Action Item. 00:09:35 Public Comment There were no comments on Consent Items G.1 - G.10. 00:10:20 Motion to approve Consent Items 1-10 as submitted. Jennifer Madgic: Motion I-Ho Pomeroy: 2nd 00:10:32 Vote on the Motion to approve Consent Items 1-10 as submitted. The Motion carried 4 - 0. Approve: Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None H) 00:10:41 Public Comment There were no general public comments. I) 00:12:16 Action Items G.11 00:12:24 Reconsideration of the Cloverleaf Zone Map Amendment Decision; the Cloverleaf Zone Map Amendment Requested Amending the City Zoning Map for a City Block Bounded by East Cottonwood Street, Ida Avenue, East Peach Street, and Plum Avenue Consisting of Approximately 3.1995 Acres and the Accompanying Adjacent Rights-of way from NEHMU (Northeast Historic Mixed Use) to B-2M (Community Business District Mixed) 00:12:30 City Manager Introduction 00:13:17 Discussion 00:13:58 Public Comment DM Cunningham opened this item for public comment. 19 Bozeman City Commission Meeting Minutes, February 14, 2023 Page 4 of 11 00:14:33 Chandler Dayton, Public Comment Chandler Dayton commented in opposition to the project. 00:18:13 Steve Kirchoff, Public Comment Steve Kirchoff commented in opposition to the project. 00:21:30 Jason Delmue, Public Comment Jason Delmue commented on the rationale for reconsideration. 00:23:38 Amy Kelley Hoitsma, Public Comment Amy Kelley Hoitsma commented on the process for reconsideration and in opposition to the project. 00:27:12 Motion to approve I move to reconsider the Cloverleaf Zone Map Amendment and direct staff to notice a public hearing to the same. Jennifer Madgic: Motion I-Ho Pomeroy: 2nd 00:27:26 Vote on the Motion to approve I move to reconsider the Cloverleaf Zone Map Amendment and direct staff to notice a public hearing to the same. The Motion carried 3 - 1. Approve: Terry Cunningham I-Ho Pomeroy Christopher Coburn Disapprove: Jennifer Madgic I.1 00:27:52 1603 Bridger Drive Annexation and Zone Map Amendment Establishing Initial Zoning of R-2 , Residential Moderate Density, for a Property Addressed at 1603 Bridger Drive on Approximately 0.7417 Acres Located North of Bridger Drive Approximately One-third of a Mile East of Story Mill Road, Application 22247 22247 1603 Bridger Drive Annex-ZMA CC SR.pdf 00:28:09 Staff Presentation Senior Planner Tom Rogers entered the staff report, applicant submittal, and all public comment into the record. He presented the subject property location, recent annexations in the vicinity, the Future Land Use Map (FLUM) designation, the existing zoning in the area, the zoning review criteria, that four public comments have been received, and the recommendations. 00:32:37 Questions of Staff 00:35:55 Applicant Presentation Pers Hjalmarsson presented the reason for the application. 00:38:41 Questions of Applicant 20 Bozeman City Commission Meeting Minutes, February 14, 2023 Page 5 of 11 00:40:20 Public Comment 00:40:46 Marilyn Collins, Public Comment Marilyn Collins commented in opposition to the project. 00:45:01 Clarifications of Staff 00:47:50 Motion to recess the item until the City Attorney can determine if the threshold has been met. Christopher Coburn: Motion I-Ho Pomeroy: 2nd 00:48:08 Discussion 00:48:27 Vote on the Motion to continue recess the item until the City Attorney can determine if the threshold has been met. The Motion carried 4 - 0. Approve: Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None I.2 00:48:41 Resolution 5455 Creation of Special Improvement Lighting District 776, Eastlake Professional Center Resolution 5455-Creation of SILD 776 .doc 00:49:00 Staff Presentation Finance Director Melissa Hodnett presented the lighting district. 00:50:14 Questions of Staff 00:50:25 Public Comment There were no comments on this item. 00:51:03 Motion to adopt Commission Resolution 5455 Creation of Special Improvement Lighting District 776, Eastlake Professional Center. Christopher Coburn: Motion Jennifer Madgic: 2nd 00:51:15 Vote on the Motion to adopt Commission Resolution 5455 Creation of Special Improvement Lighting District 776, Eastlake Professional Center. The Motion carried 4 - 0. Approve: 21 Bozeman City Commission Meeting Minutes, February 14, 2023 Page 6 of 11 Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None I.3 00:51:27 Resolution 5457 Creation of Special Improvement Lighting District 777, Billings Clinic Bozeman Campus Resolution 5457-Creation of SILD 777 .doc 00:51:53 Staff Presentation Director Hodnett presented the lighting district. 00:52:27 Questions of Staff 00:53:59 Public Comment There were no comments on this item. 00:54:23 Motion to adopt Commission Resolution 5457 Creation of Special Improvement Lighting District 777, Billings Clinic Bozeman Campus Jennifer Madgic: Motion I-Ho Pomeroy: 2nd 00:54:42 Vote on the Motion to adopt Commission Resolution 5457 Creation of Special Improvement Lighting District 777, Billings Clinic Bozeman Campus. The Motion carried 4 - 0. Approve: Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None I.4 00:54:57 Annual Comprehensive Financial Report (ACFR) for Fiscal Year 2022 and Audit Results FY22 City of Bozeman ACFR.pdf FY22 Audit Governance Letter.pdf 00:55:22 Staff Presentation Director Hodnett and representatives from the auditing firm presented the purpose of the report, a summary of the report sections, and a summary of each section. Jessica Van Voast and Jacob Popp, from Anderson Zurmuehlen (now Pinion), presented the audit process, and the results of the 2022 audit. 22 Bozeman City Commission Meeting Minutes, February 14, 2023 Page 7 of 11 01:08:05 Questions 01:16:38 Public Comment There were no comments on this item. 01:17:16 Motion to approve the Fiscal Year 2022 Annual Comprehensive Financial Report and the accompanying Letter of Governance. I-Ho Pomeroy: Motion Christopher Coburn: 2nd 01:17:35 Vote on the Motion to approve the Fiscal Year 2022 Annual Comprehensive Financial Report and the accompanying Letter of Governance. The Motion carried 4 - 0. Approve: Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None I.1 01:17:52 1603 Bridger Drive Annexation and Zone Map Amendment Establishing Initial Zoning of R-2 , Residential Moderate Density, for a Property Addressed at 1603 Bridger Drive on Approximately 0.7417 Acres Located North of Bridger Drive Approximately One-third of a Mile East of Story Mill Road, Application 22247 01:18:07 Staff Clarification CA Sullivan presented the determination of valid protests, the threshold has been met, and the requirements necessary to override the protest. 01:20:31 Motion to approve Having reviewed and considered the staff report, application materials, public comment, and all information presented, I here-by adopt the findings presented in the staff report for application 22247 and move to approve the 1603 Bridger Drive Annexation with recommended terms of annexation, and direct staff to prepare an annexation agreement for signature by the parties. I-Ho Pomeroy: Motion Christopher Coburn: 2nd 01:21:07 Discussion 01:25:05 Vote on the Motion to approve Having reviewed and considered the staff report, application materials, public comment, and all information presented, I here-by adopt the findings presented in the staff report for application 22247 and move to approve the 1603 Bridger Drive Annexation with recommended terms of annexation, and direct staff to prepare an annexation agreement for signature by the parties. The Motion carried 4 - 0. 23 Bozeman City Commission Meeting Minutes, February 14, 2023 Page 8 of 11 Approve: Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None 01:25:23 Motion to approve 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 22247 and move to approve the 1603 Bridger Drive Zone Map Amendment, with contingencies required to complete the application processing. I-Ho Pomeroy: Motion Christopher Coburn: 2nd 01:26:06 Discussion 01:33:04 Vote on the Motion to approve 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 22247 and move to approve the 1603 Bridger Drive Zone Map Amendment, with contingencies required to complete the application processing. The Motion carried 4 - 0. Approve: Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None 01:33:20 Recess DM Cunningham called the meeting to recess. 01:40:51 Call to Order DM Cunningham called the meeting back to order. J) 01:41:03 Work Session J.1 01:41:08 Parks, Recreation, and Active Transportation Plan Work Session PRAT-Plan.pdf 01:41:52 Staff Presentation 24 Bozeman City Commission Meeting Minutes, February 14, 2023 Page 9 of 11 Addi Jadin began the presentation by presenting what the PRAT Plan is, the questions to consider, how the plan was developed, a summary of themes heard from the engagements, and introduced the community liaisons that will be presenting tonight. Bri Daniels, Eagle Mount Employee, presented on access and inclusion. Luis Islas, Director of Philanthropy at One Valley Community Foundation, presented on the LatinX community engagement efforts. Mikayla Pitts, Health and Wellness Program Manager at the Montana Racial Equity Project, presented on the BIPOC community engagement efforts. Rhiannon Sinclair, Planner with Agency Landscape and Planning, presented the PRAT Plan framework, and Plan goals and strategies. Planner Jadin presented the remaining review and adoption timeline. 02:13:53 Questions from the Commission 02:50:25 Public Comment DM Cunningham opened this item for public comments. 02:51:01 Marilee Brown, Public Comment Marilee Brown commented on the Plan's relation to other planning documents, details within the plan, the role of advisory boards, and the role of e-bikes. 02:54:16 Ralph Zimmer, Public Comment Ralph Zimmer commented on the Frontage Road Path and a pathway from Belgrade. 02:58:16 Comments from the Commission 03:28:46 City Manager Summary J.2 03:33:32 UDC Project - Review and Advise Regarding the Update to the Unified Development Code, Chapter 38, Bozeman Municipal Code to Address Potential Changes to Standards Relating to Zoning District and Building Transitions; and Commercial and Mixed-Use Zoning Districts, Application 21381 2-14-2023 Work Session cover memo .pdf Group Engagement Log 2-07-2023.pdf Tall Buildings Map 7-15-2022 small.pdf 230208_Midway Report, Engagement Station DRAFT.pdf 03:34:20 Staff Presentation Director Bentley provided an introduction to today's work session. Colin Scarff and Ryan Johnson of Code Studio, presented the outreach and engagement efforts and a summary of responses. They presented the zone edge transitions options, guiding principles, the existing requirements, and an example of transition styles. 03:50:58 Questions and Comments from the Commission 04:02:25 Meeting Extended DM Cunningham extended the meeting to 10:15 p.m. 25 Bozeman City Commission Meeting Minutes, February 14, 2023 Page 10 of 11 04:02:32 Questions and Comments continued 04:11:12 Meeting Extended DM Cunningham extended the meeting until 10:25 p.m. 04:11:45 Presentation continued The consultants presented options for mixed use & nonresidential districts. 04:26:54 Meeting Extended DM Cunningham extended the meeting until 10:35 p.m. 04:26:57 Questions and Comments from the Commission 04:37:35 Meeting Extended DM Cunningham extended the meeting to 10:45 p.m. 04:37:45 Questions and Comments continued 04:43:46 Public Comment 04:44:07 Jason Delmue, Public Comment 04:45:12 Chandler Dayton, Public Comment Chandler Dayton commented on the NEHMU district. K) 04:47:11 FYI / Discussion L) 04:47:22 Adjournment ___________________________________ Cynthia L. Andrus Mayor ATTEST: ___________________________________ Mike Maas City Clerk 26 Bozeman City Commission Meeting Minutes, February 14, 2023 Page 11 of 11 PREPARED BY: ___________________________________ Mike Maas City Clerk Approved on: July 25, 2023 27 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:July 25, 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: July 20, 2023 28 Memorandum REPORT TO:City Commission FROM:Ryan Tucker, Parking Enforcement Officer Mike Veselik, Economic Development Program Manager Brit Fontenot, Economic Development Director SUBJECT:Authorize the City Manager to sign a Short Form Construction Agreement with Altitude Contracting LLC for Rouse Lot Entrance Widening. MEETING DATE:July 25, 2023 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:I move to authorize the City Manager to sign a Short Form Construction Agreement with Altitude Contracting LLC for Rouse Lot Entrance Widening. . STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The Bozeman Parking Division operates four surface lots in downtown Bozeman and aims to be a leader in technology and innovation in the municipal parking industry. In 2021, a solar panel digital counter was installed on the Rouse Lot to provide accurate parking availability data to drivers as well as the Parking Department. The technology is not being utilized well due to the narrow entrance into the lot, vehicles are not driving over the sensors and providing inaccurate data. Widening the entrance will allow proper spacing for vehicles to drive over the sensors to create accurate data. UNRESOLVED ISSUES:No unresolved issues. ALTERNATIVES:Alternatives as proposed by the Commission. FISCAL EFFECTS:As approved in FY2024 budget Attachments: Appedix A Scope of Work - City of Bozeman Parking Lot Entrance Widening (1).pdf Short Form Construction Agreement with Altitdue Contracting LLC for Rouse Parking Lot Widening Project.docx Report compiled on: July 13, 2023 29 Name City of Bozeman (Ryan Tucker)Company Altitude Contracting LLC Address 315 E Babcock Name Justin Lammle City, State ZIP Bozeman, MT 59715 Address PO Box 6581 Phone 406-561-6886 City, State ZIP Bozeman, MT 59771 Email rtucker@bozeman.net Phone 406-451-8062 Email justin.altitudecontracting@outlook.com Completion date Scope of Work Not Included Proposal Owner Acceptance -Demo Sidewalk, Parking Lot Entrance, Curb & Gutter -Place 6" of 3/4" crushed aggregate and compact -Clean-up -Form Sidewalk and Parking Lot Entrance -Strip Forms -Excavate Subgrade 12" below top of concrete -Form Curb & Gutter (approx. 47') -Pour Sidewalk and Parking Lot Entrance -Pour Curb & Gutter -Strip Curb & Gutter Forms -Form Entrance Median (Approx. size 5'L x 2'W x 18" D) -Strip Forms -Pour Median -Hand Tooled Joints All Altitude Contracting Estimate Owner Information Contractor Information Project name Rouse Parking Lot Entrance Widening We, Altitude Contracting, propose to due the above described work in 60 Days from award of contract for the sum of $18,500.00. Down payment of 50% required upon signed contract or start date. Justin Lammle 6/5/2023 Submitted by (home owner or authorized representative)Date Submitted by (Company Representative)Date Customer Agrees to pay Altitude Contracting for above described work at 315 East Babcock Street Bozeman, MT -1/2" Expansion Joint Placed between Sidewalk and Curb Any work not described above, Soil Corrections, Soil Engineering, Soil Testing, Concrete Testing, Structural Engineering -Broom Finish All 30 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 1 of 16 CONSTRUCTION AGREEMENT This Construction Agreement is made and entered into this 25th day of July, 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, ____________, _______________, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the covenants, agreements, representations, and warranties contained herein, the parties agree as follows: 1.Work to be Performed: a.A description of the work to be performed to widen and repave the drive aisle (the “Construction Project”) and Contractor’s duties is set forth in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof, and in the drawings, plans, and specifications provided by the City, which are included in the Scope of Services attached hereto as Exhibit A. b.Prior to the commencement of any work on the Construction Project, Contractor’s representatives and City’s representatives shall hold a meeting to establish a working understanding among the parties as to the scope of the Construction Project and duties of the Contractor. At this meeting, Contractor and City shall resolve any outstanding issues related to the plans, designs, drawings, and specifications. If the parties are unable to resolve these issues and the City fails, refuses, or is unable to approve the same, no work shall commence on the Construction Project until such issues are resolved and the City approves the related plans, designs, drawings, and specifications. c.Except as provided elsewhere in this Agreement, Contractor shall furnish all the labor, materials, equipment, tools, and services necessary to perform and complete the Construction Project. d.During work on the Construction Project, and as part of the final completion of the Construction Project, Contractor shall clean up the Project site, including the removal and satisfactory disposal of all waste, garbage, excess materials, and equipment, and the performance of any other work necessary to restore the site to at least as good order and condition as at the commencement of the Construction Project. 31 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 2 of 16 2.City-Supplied Materials: The City may supply materials from time to time in furtherance of the Construction Project. Such materials will be noted as an addendum to this Agreement. 3.Time of Performance: Contractor shall begin the Construction Project after receiving a Notice to Proceed from City and shall complete the Construction Project no later than October 31, 2023. Time is of the essence of completion of all work and each phase of the Construction Project. 4.Liquidated Damages: If the Construction Project is not completed within the time provided by this Agreement, the City may deduct for each day the Construction Project remains uncompleted the sum of Five Hundred Dollars ($500.00) from the compensation hereinafter specified and retain that sum as payment for liquidated damages sustained by reason of the Contractor’s failure to complete the Construction Project on time. 5.Compensation: a.City shall pay to Contractor, and Contractor shall accept as full payment for the performance of this Agreement and the Construction Project, the amount of Eighteen Thousand Five Hundred Dollars ($18,500.00). b.If work not included within the original Construction Documents is requested by City, such additional work and the related compensation shall be agreed to in writing by both parties prior to commencement of the additional work (“Change Order”). c.City shall retain five percent (5%) of the total amount of compensation to be paid to the Contractor to ensure compliance with the terms and conditions of this Agreement and the timely completion of the Construction Project and any and all “punch list” items (“Retainage Amount”). The Retainage Amount shall be paid to Contractor thirty (30) days after the City’s final acceptance of the portion of work for which a separate price is stated in the specifications for the Construction Project. e.Upon acceptance of final payment and for other good and valuable consideration, Contractor shall and hereby does release and forever discharge City, its officers, agents, and employees of and from any and all claims, demands, actions, causes of action, obligations, and liabilities of every kind and character whatsoever, in law and in equity, whether now known or in the future discovered, arising from or related to this Agreement or the Construction Project that Contractor may have or assert against City, its officers, agents, and employees. 6.Inspection and Testing: a.City has the right to inspect and test any and all work performed by Contractor on the Construction Project. Contractor shall allow City and its agents access to the Construction Project at all times and shall provide every reasonable facility for the purpose of such inspection and testing, including temporarily discontinuing portions of the 32 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 3 of 16 work or uncovering or taking down portions of the finished work. Any inspection and testing performed by the City and its agents is for the sole benefit of the City and shall not relieve the Contractor of its duty, responsibility, and obligation to ensure that the work strictly complies with the Agreement terms and conditions and all applicable laws and building and safety codes. City’s inspection and testing shall not be deemed or considered acceptance by the City of any portion of the Construction Project. City’s inspection and testing shall not serve to nullify, amend, or waive any warranties provided by the Contractor under this Agreement. b.Contractor shall, without charge, replace any material or correct any work found by the City or its agents to be defective or otherwise not in compliance with the terms and conditions of this Agreement. In the event Contractor fails to replace or correct any defective work or materials after reasonable written notice by the City to do so, the City may take such corrective action, either with its own materials and employees or by retaining any third party to do so, and deduct the cost and expense of such corrective action from the Contractor’s compensation. 7.Partial Utilization of Construction Project: City shall have the right to use or occupy any portion of the Construction Project that City and Contractor mutually agree is substantially completed and constitutes a separately functioning and usable part of the Construction Project for its intended purpose without significant interference with Contractor’s performance of the remaining portions of the Construction Project. In the event City takes possession of any portion of the Construction Project, such possession shall not be deemed an acceptance of the Construction Project, in whole or in part. City’s use of any portion of the Construction Project shall not be grounds for extensions of any construction deadlines or a change in the Contractor’s compensation. Contractor’s warranties shall run from the completion of the total Construction Project and not from the date the City may take possession of selected portions of the Construction Project. 8.Related Work at the Site: Nothing in this Agreement shall prevent or preclude City, through its own employees or by contract with any third party, from performing other work related to the Construction Project at the construction site; provided such related work is not otherwise addressed in this Agreement and provided such related work does not otherwise interfere with Contractor’s performance of this Agreement or the completion of the Construction Project. Contractor shall afford any City employee, agent or representative, or any third party under contract with the City to perform the related work, proper and safe access to the construction site, a reasonable opportunity for the introduction and storage of materials and equipment, the opportunity to perform the related work, and shall properly coordinate the Contractor’s work on the Construction Project with the related work. 9.Contractor’s Warranties: Contractor represents and warrants as follows: a.Unless otherwise specified by the terms of this Agreement, all materials and equipment used by Contractor on the Construction Project shall be new and where not otherwise specified, of the most suitable grade for their intended uses. 33 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 4 of 16 b.All workmanship and materials shall be of a kind and nature acceptable to the City. c.All equipment, materials, and labor provided to, on, or for the Construction Project must be free of defects and nonconformities in design, materials, and workmanship for a minimum period beginning with the commencement of the work on the Construction Project and ending one (1) year from the final completion and acceptance by the City of the Construction Project, regardless of whether such equipment, materials, or labor were supplied directly by Contractor or indirectly by Contractor’s subcontractors or suppliers. Other express warranties on materials that provide for a warranty period longer than one year apply for the period of that express warranty and are not reduced by this provision. Upon receipt of City’s written notice of a defective or nonconforming condition during the warranty period, Contractor shall take all actions, including redesign and replacement, to correct the defective or nonconforming condition within a time frame acceptable to the City and at no additional cost to the City. Contractor shall also, at its sole cost, perform any tests required by City to verify that such defective or nonconforming condition has been corrected. Contractor warrants the corrective action taken against defective and nonconforming conditions for a period of an additional one (1) year from the date of City’s acceptance of the corrective action. d.Contractor and its sureties are liable for the satisfaction and full performance of all warranties. e.Contractor shall give its personal attention to the faithful prosecution of the completion of the Construction Project and Contractor, or its duly authorized representative assigned to serve as the Construction Project Manager, shall be personally present at the site of the Construction Project during working hours for the term of this Agreement until the completion of the Construction Project. f.Contractor shall have a complete, accurate, and up-to-date set of construction plans, drawings, and specifications on site at all times. g.Contractor has examined all available records and made field examinations of the site of the Construction Project. Contractor has knowledge of the field conditions to be encountered during the Construction Project. Contractor has knowledge of the types and character of equipment necessary for the work, the types of materials needed and the sources of such materials, and the condition of the local labor market. h.Contractor is responsible for the safety of the work and shall maintain all lights, guards, signs, temporary passages, or other protections necessary for that purpose at all times. i.All work must be performed at Contractor’s risk, and Contractor shall promptly repair or replace all damage and loss at its sole cost and expense regardless of the reason or cause of the damage or loss; provided, however, should the damage or loss be 34 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 5 of 16 caused by an intentional or negligent act of the City, the risk of such loss shall be placed on the City. j.Contractor is responsible for any loss or damage to materials, tools, or other articles used or held for use in the completion of performance of the Construction Project. k.Contractor’s performance must be without damage or disruption to any other work or property of the City or of others and without interference with the operation of existing machinery or equipment. l.Title to all work, materials, and equipment covered by any payment of Contractor’s compensation by City, whether directly incorporated into the Construction Project or not, passes to City at the time of payment, free and clear of all liens and encumbrances. 10.Delays and Extensions of Time: If Contractor’s performance of this Agreement is prevented or delayed by any unforeseen cause beyond the control of the Contractor, including acts or omissions of the City, Contractor shall, within ten (10) days of the commencement of any such delay, give the City written notice thereof. Further, Contractor shall, within ten (10) days of the termination of such delay, give the City written notice of the total actual duration of the delay. If the City is provided with these required notices and if the City determines that the cause of the delay was not foreseeable, was beyond the control of the Contractor, and was not a result of the fault or negligence of the Contractor, then the City will determine the total duration of the delay and extend the time for performance of the Agreement accordingly. Unless the delay is caused by the intentional interference of the City with the Contractor’s performance, Contractor shall make no claim for damages or any other claim other than for an extension of time as herein provided by reason of any delays. 11.Suspension: a.The City may, by written notice to the Contractor and at its convenience for any reason, suspend the performance of all or any portion of the work to be performed on the Construction Project (“Notice of Suspension”). The Notice of Suspension shall set forth the time of suspension, if then known to the City. During the period of suspension, Contractor shall use its best efforts to minimize costs associated with the suspension. b.Upon Contractor’s receipt of any Notice of Suspension, unless the notice requires otherwise, Contractor shall: (1)immediately discontinue work on the date and to the extent specified in the Notice of Suspension; (2)place no further orders or subcontracts for materials, services, or equipment; (3)promptly make every reasonable effort to obtain suspension upon terms satisfactory to City of all orders, subcontracts, and rental agreements to the extent that they relate to the performance of the work suspended; and (4) continue to protect and maintain the Project, including those portions on which work has been suspended. 35 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 6 of 16 c.As compensation for the suspended work, Contractor will be reimbursed for the following costs, reasonably incurred, without duplication of any item, and to the extent that such costs directly resulted from the suspension: (1)a standby charge paid during the period of suspension which will be sufficient to compensate Contractor for keeping, to the extent required in the Notice of Suspension, Contractor’s organization and equipment committed to the Project in standby status; (2)all reasonably incurred costs for the demobilization of Contractor’s and subcontractor’s crews and equipment; (3)an equitable amount to reimburse Contractor for the cost to protect and maintain the Project during the period of suspension; and (4)an equitable adjustment in the cost of performing the remaining portion of the work post-suspension if, as a direct result of the suspension, the cost to Contractor of subsequently performing the remaining work on the Construction Project has increased or decreased. d.Upon receipt of written notice by the City to resume the suspended work (“Notice to Resume Work”), Contractor shall immediately resume performance of the suspended work as to the extent required in the Notice to Resume Work. Any claim by Contractor for time or compensation described in Section 11(c) shall be made within fifteen (15) days after receipt of the Notice to Resume Work and Contractor shall submit a revised Construction Schedule for the City’s review and approval. Contractor’s failure to timely make such a claim shall result in a waiver of the claim. e.No compensation described in Section 11(c) shall be paid and no extension of time to complete the Construction Project shall be granted if the suspension results from Contractor’s non-compliance with or breach of the terms or requirements of this Agreement. 12.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 Construction Project (“Termination Notice Due to Contractor’s Fault”). The City may then take over the Construction Project and complete it, either with its own resources or by re-letting the contract to any other third party, and may immediately take possession of and use such materials, appliances, tools, and equipment as may be on the site and which may be necessary for the completion of the Construction Project. b.In the event of a termination pursuant to this Section 12, Contractor shall be entitled to payment only for those services Contractor actually rendered. In the case of a lump sum or unit price contract, Contractor shall not be entitled to any further payment until the Construction Project has been completed. Upon completion of the Construction Project, if the unpaid balance of the Contractor’s compensation exceeds the cost to the City of completing the work, including all costs paid to any subcontractors or third parties retained by the City to complete the Construction Project and all administrative costs resulting from the termination (“City’s Cost for Completion”), such excess shall be paid to 36 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 7 of 16 the Contractor. If the City’s Cost for Completion exceeds the unpaid balance of the Contractor’s compensation, then Contractor and its sureties shall be liable for and shall pay the difference, plus interest at the rate applicable to court judgments, to the City. c.Any termination provided for by this Section 12 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d.In the event of termination under this Section 12, 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. 13.Termination for City’s Convenience: a.Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease work on the Construction Project, 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 work on the Construction Project, discontinue placing orders for materials, supplies, and equipment for the Construction Project, and make every reasonable effort to 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, in progress, or in transit to the construction site. c.In the event of a termination pursuant to this Section 13, Contractor is entitled to payment only for those services Contractor actually rendered and materials actually purchased or which Contractor has made obligations to purchase on or before the receipt of the Notice of Termination for City’s Convenience, and reasonably incurred costs for demobilization of Contractor’s and any subcontractor’s crews. It is agreed that any materials that City is obligated to purchase from Contractor will remain the City’s sole property. d.The compensation described in Section 13(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. 37 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 8 of 16 14.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 ten (10) 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. 15.Representatives and Notices: a.City’s Representative: The City’s Representative for the purpose of this Agreement shall be Ryan Tucker, Parking Enforcement Officer I (rtucker@bozeman.net; 406-579-8346) 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 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 Justin Lammle, (justin.altitudecontracting@outlook.com; 406-451-8062) or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c.Notices:All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 38 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 9 of 16 16.Locating Underground Facilities: Contractor shall be responsible for obtaining and determining the location of any underground facilities, including but not limited to, the location of any pipelines or utility supply, delivery, or service lines in accordance with the provisions of §69-4-501, et seq., Montana Code Annotated (MCA). Contractor shall make every effort to avoid damage to underground facilities and shall be solely responsible for any damage that may occur. If City personnel assume responsibility for locating any underground facilities, this fact shall be noted in writing prior to commencement of such location work. 17.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, pay all fees and charges in connection therewith, and perform all surveys and locations necessary for the timely completion of the Construction Project. 18.Ownership of Documents; Indemnification: All plans, designs, drawings, specifications, documents, sample results and data, in whatever medium or format, originated or prepared by or for Contractor in contemplation of, or in the course of, or as a result of this Agreement or work on the Construction Project, shall be promptly furnished to the City (“City Documents and Information”). All City Documents and Information shall be the exclusive property of the City and shall be deemed to be works-for-hire. Contractor hereby assigns all right, title, and interest in and to the City Documents and Information, including but not limited to, all copyright and patent rights in and to the City Documents and Information. Neither party grants to the other any express or implied licenses under any patents, copyrights, trademarks, or other intellectual property rights, except to the extent necessary to complete its obligations to the other under this Agreement. 19.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. 20.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 39 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 10 of 16 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. 21.Intoxicants; DOT Drug and Alcohol Regulations: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the site of the Construction Project. 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. 22.Labor Relations: a.In the event that, during the term of this Agreement and throughout the course of Contractor’s performance of the Construction Project, any labor problems or disputes of any type arise or materialize which in turn cause any work on the Construction Project 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 to resume work on the Construction Project 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 work on the Construction Project to resume and be completed within the time frames set forth in the Construction Schedule at no additional cost to City. b.Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 40 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 11 of 16 23.Subcontractors: a.Contractor may employ subcontractors for any work on the Construction Project. Contractor shall provide City with a list of all subcontractors employed. b.Contractor remains fully responsible for the acts and omissions of any subcontractor, just as Contractor is for its own acts and omissions, and Contractor shall remain fully responsible and liable for the timely completion of the Construction Project. c.Contractor is solely liable for any and all payments to subcontractors. Contractor shall hold all payments received from the City in trust for the benefit of subcontractors, and all such payments shall be used to satisfy obligations of the Construction Project before being used for any other purpose. Contractor shall make any payments due to any subcontractor within seven (7) days of Contractor’s receipt of payment, including a proportional part of the retainage Contractor has received from the City. In the event of a dispute regarding any subcontractor’s invoice, Contractor shall promptly pay the undisputed amount to the subcontractor and notify the subcontractor in writing of the amount in dispute and the reasons for the dispute. Any withholding of payment must comply with the requirements of §28-2-2103, MCA. In the event Contractor is unwilling or unable to make timely and proper payment to any subcontractor, City may elect to withhold any payment otherwise due to Contractor and upon seven (7) days’ written notice to Contractor, may pay subcontractor by direct or joint payment. 24.Indebtedness and Liens: Before City may make any final payment to Contractor, Contractor shall furnish City with satisfactory proof that there are no outstanding debts or liens in connection with the Construction Project. If the Contractor allows any indebtedness to accrue to subcontractors or others during the progress of the work, and fails to pay or discharge the same within five (5) days after demand, then City may either withhold any money due to Contractor until such indebtedness is paid or apply the same towards the discharge of the indebtedness. If any lien or claim is filed or made by any subcontractor, material supplier, or any other person, the Contractor shall immediately notify the City and shall cause the same to be discharged of record within thirty (30) days after its filing. 25.Hazard Communication: Contractor shall comply with all hazard communication requirements dictated by the Environmental Protection Agency, the Montana Department of Agriculture, OSHA, Hazard Communications Standard, 29 CFR 1910.1200, and applicable City ordinances. Contractor shall supply a chemical list, the associated material safety data sheets (MSDS), and other pertinent health exposure data for chemicals that the Contractor’s, subcontractor’s or the City’s employees may be exposed to while working on City property during the course of the Construction Project. One copy of this documentation must be delivered to City to the attention of the City’s Representative. This documentation must be delivered before work involving these chemicals may commence. 26.Accounts and Records: During the term of this Agreement and for two (2) years following the City’s final acceptance of the Construction Project, Contractor shall maintain accounts and records related to the Construction Project. Upon reasonable notice, City shall have 41 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 12 of 16 the right to inspect all such accounts and records, including but not limited to, Contractor’s records, books, correspondence, instructions, drawings, specifications, field and site notes, receipts, invoices, bills, contracts, or other documents relating to the Construction Project. 27.Indemnification; Insurance; Bonds: a.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 and 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. b.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). c.Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. d.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. e.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. f.Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. 42 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 13 of 16 g.These obligations shall survive termination of this Agreement and the services performed hereunder. h.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 subsection (a) of 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 shown below: Workers’ Compensation – not less than statutory limits; 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; Products and Completed Operations – $1,000,000; Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000 annual aggregate (all owned, hired, non-owned vehicles); Builder’s Risk/Property Insurance at least as broad as that provided by the ISO special causes of loss form (CP10 30) naming at a minimum the City in an amount equal to greater of Contractor’s compensation or full replacement value of the work (covering at a minimum all work, buildings, materials and equipment, whether on site or in transit, loss due to fire, lightening, theft, vandalism, malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of laws, water damage, flood if site within a flood plain, repair or replacement costs, testing and start-up costs) on an all risk coverage basis. This insurance must include waivers of subrogation between the City and Contractor to the extent that damage to the Construction Project or City Hall is covered by other insurance; Owner’s and Contractor’s Protective Liability: one policy designating the City (including its agents, representatives, employees, and officers) as the insured and another independent policy designated the City’s Representative (including its consultants, consultants, agents and employees) as the insured on the declarations with both policies covering: (i) operations performed by the Contractor under this Agreement for the City; and (ii) the City’s and City’s Representatives acts or omissions, including negligent acts, in connection with its general supervision of the work of the Contractor’s and its subcontractors - $1,000,000 per occurrence; $2,000,000 aggregate; Contractual Liability Insurance (covering the Contractor’s indemnity obligations described in this Agreement) - $1,000,000 per occurrence $2,000,000 aggregate 43 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 14 of 16 The amounts of insurance provided shall be exclusive of defense costs. The City of Bozeman shall be endorsed as an additional or named insured on a primary non- contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. 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. i.Pursuant to the City’s authority provided for in 18-2-201(4), the Contractor shall not be required to provide bonds as required by 18-2-201(1) under this Agreement. 28.Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. Contractor understands that all contractors or subcontractors working on a publicly funded project are required to pay or have withheld from earnings a license fee of one percent (1%) of the gross contract price if the gross contract price is Five Thousand Dollars ($5,000) or more. This license fee is paid to the Montana Department of Revenue. 29.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 shall be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 30.Survival: Contractor’s indemnification and warranty obligations shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 31.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. 32.Waiver: A waiver by City of any default or breach by Contractor of any covenants, terms, or conditions of this Agreement does not limit City’s right to enforce such covenants, terms, or conditions or to pursue City’s rights in the event of any subsequent default or breach. 44 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 15 of 16 33.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. 34.Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 35.Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 36.Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 37.Amendments: This Agreement may not be modified, amended, or changed in any respect except by a written document signed by all parties. 38.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. 38.Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 39.Assignment: Contractor may not assign this Agreement in whole or in part without the prior written consent of the City. No assignment will relieve Contractor of its responsibility for the performance of the Agreement and the completion of the Construction Project. Contractor may not assign to any third party other than Contractor’s subcontractors on the Construction Project, the right to receive monies due from City without the prior written consent of City. 40.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. 41.Independent Contractor: The parties agree and acknowledge that in the performance of this Agreement and the completion of the Construction Project, Contractor shall render services as an independent contractor and not as the agent, representative, subcontractor, or employee of the City. The parties further agree that all individuals and companies retained by Contractor at all times will be considered the agents, employees, or independent contractors of Contractor and at no time will they be the employees, agents, or representatives of the City. 42.Integration: This Agreement and all Exhibits attached hereto constitute 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 45 Construction Agreement for Rouse Ave Lot Entrance Widening Project FY2020-2021 Page 16 of 16 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. 43.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 **** IN WITNESS WHEREOF, Contractor and City have caused this Agreement to be executed, effective on the date written above, and intend to be legally bound thereby. CITY OF BOZEMAN, MONTANA ALTITUDE CONTRACTING LLC By: _______________________________By: Jeff Mihelich, City Manager Justin Lammle, Owner APPROVED AS TO FORM: By: _______________________________ Greg Sullivan, City Attorney 46 Memorandum REPORT TO:City Commission FROM:Bob Murray, Project Engineer Shawn Kohtz, City Engineer SUBJECT:Authorize City Manager to sign the Professional Services Agreement with DOWL, LLC for the Riverside Lift Station and Force Main Project. MEETING DATE:July 25, 2023 AGENDA ITEM TYPE:Agreement - Legal RECOMMENDATION:Authorize City Manager to sign the Professional Services Agreement with DOWL, LLC for the Riverside Lift Station and Force Main Project. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:Attached is a copy of the Professional Services Agreement (PSA) with DOWL, LLC for the Riverside Lift Station and Force Main Project. The document is in the City’s standard PSA format. These services were procured through the City’s consultant selection process. A Request for Proposals was published in the Bozeman Daily Chronicle on August 28th and September 11st 2022, with the proposals being due on September 16th. Proposals were received from 2 firms on the project which were distributed to a selection committee of 3 city employees. The written proposals were scored by the selection committee and DOWL was selected the most qualified to complete the project. The current contract is for the predesign services only. In this phase, the appropriate location for the lift station and the route of the force main will be determined including the river crossing evaluation and analysis. Surveying, geotechnical investigation and some permitting will also be completed at this time. Once this phase is complete and accepted, an amendment will be negotiated to add the design phase services. This work is pursuant to the annexation agreement with the Riverside Community. That agreement stipulated that the City would complete the installation of a new lift station and force main to convey wastewater from the subdivision to the water reclamation facility, and that those cost would be reimbursed through the establishment of a Special Improvement District. UNRESOLVED ISSUES:None 47 ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:$148,832 to be paid from the Wastewater Fund (WW133). The current CIP has this project budgeted at $2,500,000 in FY24 and $500,000 in FY25. All project expenditures will be reimbursed by the Riverside Subdivision property owners through creation of a Special Improvement District per the Riverside Annexation Agreement. Attachments: Riverside Lift Station and Force Main Professional Services Agreement.pdf Riverside Annexation Resolution.pdf Report compiled on: July 11, 2023 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 Memorandum REPORT TO:City Commission FROM:Sarah Rosenberg, Associate Planner Brian Krueger, Development Review Manager Erin George, Deputy Director of Community Development Anna Bentley, Director of Community Development SUBJECT:Authorize the City Manager to sign a Professional Services Agreement (PSA) with Richard Brown for Fred Willson Multiple Property Documentation Historical Research Services MEETING DATE:July 25, 2023 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign professional service agreement (PSA) with Richard Brown for Fred Willson Multiple Property Documentation Historical Research Services. STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:The City of Bozeman received a grant from the Mountain History Foundation for $6000 to begin documenting buildings designed by Fred Willson. A Multiple Property Documentation presents historic context, property types, and evaluation for properties that have a common thematic history. In order to use the grant funds within the one year window, the city is seeking to hire Richard Brown, a local historian who has research findings on Fred Willson. The $3000 as part of the PSA will be used to compensate him for his research. This PSA will be completed by May 2024. UNRESOLVED ISSUES:None at this time. ALTERNATIVES:As suggested by the City Commission FISCAL EFFECTS:Cost of this professional services agreement is $3000 Attachments: RBrown_PSA_Signed.pdf Report compiled on: July 12, 2023 90 91 92 93 94 95 96 97 98 99 100 101 102 103 Memorandum REPORT TO:City Commission FROM:Kellen Gamradt, Engineer II Shawn Kohtz, City Engineer SUBJECT:Authorize the City Manager to sign amendment No. 1 to the professional services agreement for the Field Survey Term Contract with Sanderson Stewart, to facilitate design of upcoming capital improvements projects MEETING DATE:July 25, 2023 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Approve and authorize the City Manager to sign amendment No. 1 to the professional services agreement for the field survey term contract with Sanderson Stewart to facilitate design of upcoming capital improvements project STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a mechanism to encourage economic development. BACKGROUND: Attached is a copy of the contract amendment with Sanderson Stewart. This amendment will add survey of South Black Avenue, Cypress Street area, and Tschache Lane as described in the attached scope of work and payment schedule. These surveys will be used for the design of upcoming capital improvements projects and will add work to our existing survey contract. Engineering staff have reviewed the amendment and found it to be commensurate with the work involved. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the commission FISCAL EFFECTS: If approved, this amendment will increase the fee by $45,250.00 from $43,031.50 to $96,048.50. This will be paid for with capital improvements funding from the associated water (W04), wastewater (W08), and street reconstruction (SCR28) funds Attachments: 22- Professional Services Agreement - Sanderson Stewart - 104 Capital Improvements Project Field Study.pdf PSA Amendment No 1 (002)-FULL AGREEMENT.pdf Report compiled on: July 10, 2023 105 Version 8 30 21 Professional Services Agreement for [Capital Improvement Projects Field Survey] Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“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, Sanderson Stewart, 106 E Babcock St, Suite L1, Bozeman, MT 59715, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the __30_ day of ___June_, 2025, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC July12 2 106 Version 8 30 21 Professional Services Agreement for [Capital Improvement Projects Field Survey] Page 2 of 11 Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor 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 DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC 107 Version 8 30 21 Professional Services Agreement for [Capital Improvement Projects Field Survey] Page 3 of 11 Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance 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 DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC 108 Version 8 30 21 Professional Services Agreement for [Capital Improvement Projects Field Survey] Page 4 of 11 jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows:  Workers’ Compensation – statutory;  Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Automobile Liability - $1,000,000 property damage/bodily injury per accident; and  Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC 109 Version 8 30 21 Professional Services Agreement for [Capital Improvement Projects Field Survey] Page 5 of 11 must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC 110 Version 8 30 21 Professional Services Agreement for [Capital Improvement Projects Field Survey] Page 6 of 11 b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be ___Kellen Gamradt____ or such other individual as City shall designate DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC 111 Version 8 30 21 Professional Services Agreement for [Capital Improvement Projects Field Survey] Page 7 of 11 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 ___Danielle Scharf, PE___ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC 112 Version 8 30 21 Professional Services Agreement for [Capital Improvement Projects Field Survey] Page 8 of 11 14. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC 113 Version 8 30 21 Professional Services Agreement for [Capital Improvement Projects Field Survey] Page 9 of 11 subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist 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 DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC 114 Version 8 30 21 Professional Services Agreement for [Capital Improvement Projects Field Survey] Page 10 of 11 competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 30. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 31. Extensions: this Agreement may, upon mutual agreement, be extended for a period DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC 115 Version 8 30 21 Professional Services Agreement for [Capital Improvement Projects Field Survey] Page 11 of 11 of two years by written agreement of the Parties. In no case, however, may this Agreement run longer than ____06/30/2027____. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA ___Sanderson Stewart__________________ CONTRACTOR (Type Name Above) By________________________________ By__________________________________ Jeff Mihelich, City Manager Print Name: ___Danielle Scharf, PE_______ Print Title: _Principal/Region Manager___ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC 116 Exhibit A - Scope of Work The scope of work covered by this agreement is described hereafter: The project consists of the preparation of a topographic survey of: 1. Bogert Place – E Story Street to S Church Avenue 2. West Story Street – S 8th Avenue to S 4th Avenue 3. South Black Avenue – E Babcock Street to E Story Street See attached survey area exhibits. These surveys will be used for the design of future capital improvement projects by the City of Bozeman. The topographic survey will tie horizontally and vertically all surface improvements within the right of way (i.e. curb, gutter, sidewalk, driveways, asphalt, trees, fences, signs, aboveground utilities, and underground utilities marked by Montana One Call, etc.) Additionally, existing sanitary sewer manholes, storm drain manholes and inlets, and water main valve boxes will be measured vertically. Generally, the survey limits will be from back of walk to back of walk as noted on the attached survey area exhibits including approximately 20 feet beyond curb returns on side street intersections. Sanitary sewer, storm drain, and water alignments and associated measuredowns will extend beyond the survey limits where needed. The points will be surveyed using the Bozeman Low Distortion Projection. The Bozeman Low Distortion Projection is based on a single parallel Lambert Conformal Conic Projection and the North American Datum of 1983. A minimum of one project benchmark on the City of Bozeman Datum on each block within the project area (Area) will be established. Phase 100. Project Management & Coordination Task 101. Prepare project scope of work and contracts. Task 102. Project management, and coordination, and send weekly project updates. Phase 200. Pre-Survey Preparations & Research Task 201. Montana One Call utility locates will be requested for public underground utilities. Task 202. Review existing City sanitary sewer, storm drain, and water information utilizing the Bozeman GIS Infrastructure Viewer. Phase 300. Survey Control Task 301. Locate existing benchmarks from the Bozeman City Datum and calibrate the vertical component of the survey to one point for each DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC 117 block within the survey areas. Additional control points will be set at strategic locations as needed. Phase 400. Topographic Survey Task 401. Use robotic total station to survey ground points on all three areas. Existing tree diameters will be estimated and labeled as deciduous or coniferous but will not be identified by species. Task 402. Survey field location of existing visible utilities as marked by Montana One Call. Task 403. Complete measuredowns on existing sanitary sewer manholes, storm drain manholes and inlets, and water main valve boxes. Photographs will be taken of each manhole within the project corridor. Task 404. The completed topographic survey will undergo a quality process review to check for consistency and completeness. Phase 500. Draft Topo & Base Plan Task 501. The surveyed data will be used to create an individual topographic surface and 2D linework and labeling will be completed for all three areas. Task 502. Internal quality control review of all deliverables. Task 503. The photographs taken of each manhole will be cataloged and georeferenced for easy identification and location. Task 504. Meet with the City to review the 90 percent plans prior to final submittal. Task 505. Incorporate the City’s comments into the plans. Task 506. Coordinate electronic and hardcopy file delivery with the City. The file delivery will contain a 24”x36” hard copy of the site map, copies of all field notes and photographs, PDF copies of the site map, and all AutoCAD project files and points files. There will be individual AutoCAD and PDF files for each area. The AutoCAD files will be compatible with AutoCAD Civil3D 2022. Fixed Costs/Expenses: Survey Equipment at $15.00 /fieldwork hour DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC 118 DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC119 DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC120 City of Bozeman 2022 CIP Survey Bogert Place, W Story Street, S Black Avenue 22166 LaborCategory Total PlanHours Total PlanBill Amt Phase 100: Project Mgmt & Coordination Principal 18.00 4,230.00 Professional Land Surveyor 18.00 2,250.00 Phase 200: Pre-Survey Prep & Research Professional Land Surveyor 14.00 1,750.00 Phase 300: Survey Control Staff Surveyor II 16.00 1,840.00 Phase 400: Topo Survey Staff Surveyor II 132.00 15,180.00 Phase 500: Draft Topo & Base Plan Professional Land Surveyor 128.00 16,000.00 Senior Professional Land Surveyor 4.00 700.00 Subtotal 330.00 41,950.00 Expenses 1,500.00 Total for Data Collection, Topo & Site Survey 330.00 43,450.00 Total Acres Total Cost 6.20 43,450.00 43,450.00 Summary of 2022 CIP Survey Services 1 - Bogert Place, W Story Street, S Black Ave Total Project Cost Page 1 of 1 DocuSign Envelope ID: FD66FAC9-00E8-44AA-A085-A21DF656BDCC 121 First Amendment to Professional Services Agreement for Field Survey Term Contract Page 1 of 2 FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS FIRST AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR Field Survey Term Contract dated July 12, 2022 (the “Agreement”) is made and entered into this _____ day of ____________, 2023, by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and Sanderson Stewart, 106 E Babcock Street, Suite L1, Bozeman, MT 59718 hereinafter referred to as “Contractor.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree to amend the Agreement as follows: 1. Addition to Scope of Work. Task 2 – S Black Avenue, Cypress Street Area, Tschache Ln have been added to the scope of services. These tasks shall be completed using traditional survey methods and delivered to the City of Bozeman, See Exhibits A – D attached. 1. Addition to Payment. Payment Schedule – Attached - has been added to the payment provisions. 2. Agreement still valid. All remaining terms and provisions of the original Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 122 First Amendment to Professional Services Agreement for Field Survey Term Contract Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA SANDERSON STEWART By________________________________ By_____________________________ Jeff Mihelich, City Manager Print Name: Danielle Scharf Title: Principal/Region Manager APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 123 124 125 126 127 City of Bozeman 2023 CIP Survey S Black Avenue, Cypress Street Area, Tschache Ln 22166 LaborCategory Total PlanHours Total PlanBill Amt Task 001: Project Management and Coordination Principal 4.50 1,057.50 Senior Professional Land Surveyor 3.00 534.00 Professional Land Surveyor I 24.00 3,240.00 Project Administrator 2.00 190.00 Task 002: Pre-Survey Prep & Research Professional Land Surveyor I 20.00 2,700.00 Task 003: Topography Survey Staff Surveyor II 148.00 17,760.00 Task 004: Draft Base Map Professional Land Surveyor I 130.00 17,550.00 Subtotal 331.50 43,031.50 Expenses 2,218.50 Total for Data Collection, Topo & Site Survey 331.50 45,250.00 Total Acres Total Cost 6.50 50,798.50 7.40 45,250.00 96,048.50 Summary of 2022 CIP Survey Services 1 - S Black Avenue, West Story St, Bogert Place, Area 1 Alley, N Ida ROW Staking 2 - S Black Avenue, Cypress Street Area, Tschache Ln Total Project Cost Page 1 of 1 128 Memorandum REPORT TO:City Commission FROM:Jesse DiTommaso, Economic Development Specialist David Fine, Economic Development Program Manager SUBJECT:Authorize the City Manager to Sign a Task Order Seven with Baker Tilly for Housing and Economic Development Project Cash Flow Analysis on Bozeman Wallace Works in the Northeast Urban Renewal District MEETING DATE:July 25, 2023 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a task order seven with Baker Tilly for housing and economic development project cash flow analysis on Bozeman Wallace Works in the Northeast Urban Renewal District. STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a mechanism to encourage economic development. BACKGROUND:The City of Bozeman established the Northeast Urban Renewal District to facilitate development/redevelopment and the financing of certain public improvements surrounding Bozeman’s northeast neighborhood. The City has requested assistance with preparing financial feasibility and needs analysis related to financing of certain public infrastructure and other public improvements. The purpose of this task order is to outline a scope of work, estimated fee and time frame for completion. The outcome would be to provide a district cash flow analysis for context as the City moves forward with the consideration of development options and candidate projects. UNRESOLVED ISSUES:None. ALTERNATIVES:As recommended by the City Commission. FISCAL EFFECTS:The work as described will be completed with an estimated fee in the range of $3,900-$5,200 which is available in the Northeast Urban Renewal Budget. Attachments: 23- Task Order 7- Baker Tilly - Wallace Works District Cash Flow Analysis.pdf Report compiled on: July 7, 2023 129 130 City of Bozeman Term Contract Housing and Economic Development Project Financial Analysis and Related Services Task Order 7 PROJECT: Housing and Economic Development Project Financial Analysis and Related Services – Financial Feasibility and Needs Analysis Addendum– Bozeman Wallace Works Issued under the authority of Urban Renewal District Term Contract Professional Services Agreement with Baker Tilly Municipal Advisors, LLC for Housing and Economic Development Project Financial Analysis and Related Services. This Task Order is dated July 25, 2023 between the City of Bozeman and Baker Tilly Municipal Advisors (Contractor). The following representatives have been designated for the work performed under this Task Order: City: David Fine, Urban Renewal Program Manager Contractor: Mikaela Huot, Baker Tilly Municipal Advisors, LLC SCOPE OF WORK: The scope for this task order is for work on housing and economic development financial analysis and related services as request by the City as described in the attached scope of work requested. COMPENSATION: Baker Tilly Municipal Advisors, LLC will bill for its services based on the attached scope of work and rate sheet previously provided. IN WITNESS WHEREOF, the parties authorized to commit resources of the parties have executed this Task Order: City of Bozeman Baker Tilly Municipal Advisors, LLC Jeff Mihelich, City Manager Mikaela Huot, Director 131 1 Scope of Work – Cash Flow Analysis Bozeman Wallace Works TIF Assistance Request City of Bozeman, Montana Financial Feasibility and Needs Analysis May 2023 (Addendum) Part 1: Original Scope dated November 2022 The City of Bozeman (the “City”) received a request for TIF assistance from Nest Partners / Wallace Works (the “Developer”) for the proposed development of a mixed-use commercial and residential area and structured parking (the “Project”). The Project is proposed to be developed in the Northeast Urban Renewal District on the corner of Wallace and Tamarack. A public parking garage is proposed as part of the project and would provide for over 200 parking spaces along with covered bike parking. The parking garage would support the proposed private development, as well as provide for new public parking spaces. The Project would include improvements to the pedestrian systems with public open plaza space. The Developer has indicated there is a financial gap based on the current project scope including construction of the parking garage and additional improvements, for which tax increment financing could be a tool to finance a portion of the costs. The structure of assistance has been proposed that the Developer construct the entire project (commercial, residential, and parking structure) and the City would purchase the parking structure, with the intent of leasing back a portion of the spaces to support the private development, with the remaining spaces available for general public use. Part 2: addendum dated May 2023 The purpose of this document is to outline a scope of work, estimated fee and time frame for completion. Baker Tilly’s proposed scope of work includes the following activities: Phase 1: District Cash Flow Analysis (addendum) Objectives of addendum ➢ Prepare project cash flow pro forma based on current district assumptions. ➢ Prepare additional project cash flow proforma updates based on potential future projects. ➢ Estimate City revenues (tax increment revenues or other revenues as may be specific to the projects) from the proposed projects. ➢ Prepare a summary report to the City. The report will summarize our findings and make recommendations as appropriate to the City. Baker Tilly staff will be available to attend meetings of the City’s staff, Council, or Committees as appropriate. Tasks The purpose of the analysis is to assist the City with understanding the current financial status of the existing District. This will include an updated cash flow proforma analysis to assist the City with determining project feasibility relative to any future spending options or expected deficits or shortfalls, subject to City financial policy. We have identified separate work tasks as follows: 132 2 1) Prepare feasibility analysis report. The report will include the following information, as applicable: a. A summary of the development assumptions used with respect to timing of construction and projected values. b. Projections of tax increment revenue collections to include annual and cumulative present value calculations. c. If debt financing is anticipated, a summary of the sizing, structure and timing of proposed debt issues. d. A cash flow pro forma reflecting annual and cumulative district fund balances and projected year of closure. Phase 2: Preliminary Revenue Projections and Financial Feasibility (original) Objectives ➢ To prepare preliminary tax increment revenue projections based on developer provided information ➢ To provide initial project financial feasibility Analysis 2) Preparation of tax increment revenues a. Review developer-supplied information for reasonableness b. Forecast the projected tax increment revenues to be generated over the life of the district based on those assumptions i. Developer provided total development costs and project assumptions ii. Tested against available comparable-type developments iii. Estimated range of available revenues based on valuations c. Financial Feasibility Review i. Assess the sufficiency of tax increment revenues to support costs Deliverable ➢ Summary of preliminary revenue projections and initial feasibility ➢ Preliminary financial feasibility analysis Phase 3: Financial Review and Needs Analysis and Development Agreement (original) Objectives ➢ To review and analyze the request for assistance as related to the proposed development project to determine necessity and appropriateness ➢ To assist in negotiations of the financing structure and development agreement, as applicable ➢ To provide draft term sheet Analysis 1) Financial Feasibility Review a. Assess the sufficiency of the tax increment revenues to support parking structure purchase and other requested costs with considerations for timing of bond issuance to provide financial support b. Prepare cash flow analysis based on sensitivity analysis 2) Financial Needs (But For) Analysis a. Review developer information and comment on the reasonableness of assumptions i. Suggest alternative assumptions and provide sensitivity analysis as necessary ii. Estimate of assistance/purchase price for private parking b. Complete a rate of return calculation 133 3 i. Cash-on-Cash Return ii. Internal Rate of Return iii. Identify alternative assumptions if appropriate iv. Recalculate the return with alternative assumptions, as necessary v. Define appropriate level of assistance based on developer’s rate of return c. Compare developer rate of return to the “market” return for similar projects, comment on reasonableness of return considering type of project, current market and developer at risk equity d. Complete sensitivity analysis with respect to developer return and need for assistance (as appropriate) and assessment of availability of revenues 3) Review Financing Options for Parking Structure a. Provide options for City participation/financing of the parking structure b. Assist City staff with review of developer proposal and request as it relates to feasibility and maintaining City security – including: i. Reasonableness of leaseback concept 1. Review trigger points for potential City purchase 2. Perform sensitivity analysis on trigger points and potential financial considerations for the City ii. Consider options for mitigating City risk of financing 1. Availability of revenues from Project and District 2. Debt coverage ratios 3. Timing for purchase 4. Availability of other revenues (annual lease) iii. Comparison of leasing public parking spaces versus purchase of ramp and leasing back private spaces with consideration of: 1. Lease rates (public and private) 2. Utilization levels 3. Operating and maintenance expenses 4. Security of financing 5. Gross and net estimated parking revenues iv. Assist with structuring terms of Agreement between Developer and City 4) Debt Capacity Analysis a. The findings of the financial feasibility study will be considered. Items to be considered will include but not be limited to: i. Profile debt issuance alternatives with considerations for each ii. Profile security profile and marketability of alternatives iii. Provide estimates of potential debt structures and related financial impacts iv. Effect on debt service coverage of revenue supported debt, if applicable b. Consideration of expected trends in net assessed value, if applicable Deliverable ➢ Financial analysis with determination of need for public assistance ➢ Preliminary term sheet with recommended public assistance amounts Compensation The work as described will be completed with an estimated fee in the range of $3,900 - $5,200. Excluded from the fee indicated above are any out-of-pocket expenses such as travel, copies, faxes, conference calls, or other expenses necessary to complete the project. Additional work requested and authorized by the City outside the scope of services described in this proposal will be invoiced at our standard hourly rates. 134 4 Completion Date Upon full receipt of the requested information, Baker Tilly will complete Phase 1 of the above work processes and outcomes within 1-2 weeks, subject to receipt of all information. The remaining phases and steps of analysis will be subject to outcomes of Phase 1 and timing needs of both the City and developer. We will be successful in meeting the requested time frames for completion recognizing it is highly dependent on the timing and completeness of the information received. A delay in receipt of critical material may result in an extension of the completion date. Sincerely, Partner Signature Section: The services and terms as set forth in this Scope Appendix are agreed to on behalf of the Client by: City of Bozeman Name: _____________________________ Title: ______________________________ Date: ______________________________ 135 Memorandum REPORT TO:City Commission FROM:Chris Saunders, Community Development Manager Erin George, Community Development Deputy Director Anna Bentley, Community Development Director SUBJECT:Overview of Senate Bill 382 and Overview of Unified Development Code Public Review Process in Fall 2023. MEETING DATE:July 25, 2023 AGENDA ITEM TYPE:Community Development - Legislative RECOMMENDATION:Receive information. 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:On December 21, 2021, the City Commission adopted Resolution 5368 [External Link PDF]. The resolution established priorities for municipal actions over the next two years. Priorities include replacing the Unified Development Code to “facilitate increased housing density, housing affordability, climate action plan objectives, sustainable building practices, and a transparent, predictable and understandable development review process.” The City Commission budgeted funds for the work and a contract with Code Studio was completed in June 2022 to support the City in changing regulations. Substantial progress has been made on the project and the formal public review process will begin shortly. Bozeman implements land use planning, subdivision, and zoning as authorized by the State of Montana and adopted existing regulations under the laws in effect at the time. The Governor signed Senate Bill 382, the Montana Land Use Planning Act (the Act) on May 17, 2023. The Act changes the rules for land use planning, subdivision, and municipal zoning. Section 5 of the Act says which communities it applies to. Some communities must follow the Act and others may choose to. Bozeman must follow the Act in its planning, subdivision, and zoning activities. The presentation with this agenda item includes two components. 1) An overview of the Act adopted in 2023, and the many consequences to daily development review practices that result from it. Bozeman already uses many of the required practices as part of its daily activities, but some changes are needed to fully implement the bill. A more detailed summary and the full text of the Act are attached. Key elements of change from the 136 Act include: 1. What state enabling legislation applies for updated and future regulations. 2. Changing processes and manners of public participation. 3. Required content and extent of planning information to be prepared. 4. Process changes for amendments to zoning map, regulations text, and land use plan. 5. Changes to development review processes and approval authority for subdivisions and zoning projects. 6. Changes to review processes for variances and appeals. 2) An update on the work replacing local regulations that the City began in 2022 based on years of community outreach and development of plans. This update process has been adjusted to account for the new requirements of the Act adopted in May 2023. Prior to adoption of any regulation the City must provide for public notice and input on the zoning document and map. The City adopted a public engagement plan prior to beginning the code update process in 2022. A website [External Link] was created on August 11, 2022, to provide continuous information to the public, accept public comment, and support interaction and discussion on ideas. The City Commission conducted six work sessions to evaluate issues and give direction. Work sessions were also held by the Community Development Board. The City is using a variety outreach efforts to reach the maximum number of citizens including a utility bill mailer (see attached), in-person interviews, presentations to community groups, and on-line and in-person brochure tools to gather input which influenced the draft document. All received public comment was tracked and archived. The primary input for the UDC update and replacement came from the adopted growth policy, community housing action plan, and sustainability plan, each of which had their own substantial public outreach and inclusion efforts. A listing of the City Commission work sessions with links to minutes or recordings and upcoming key meetings is attached. Major areas of improvements with the UDC replacement include: Compliance with revised and new state law - These are primarily process changes and are discussed in the attachment regarding SB 382. Layout and usability enhancements including changed organization, layout, and increased graphics. Consolidation of residential districts. Sustainability including facilitation of electric vehicle charging, urban agriculture allowances, support for recycling and composting, clarification for solar energy, and bicycle facilities. Revisions and simplification for non-residential parking including some removal of parking requirements. Revisions to requirements for transportation studies and standards. The City has conducted continuous and varied outreach to the public on the code update. As the work moves into the formal public review and decision process the City will continue engaging with the public. A series of 12 public hearings, public meetings, and other outreach events are scheduled. See the 137 attached meetings list. Interested persons can also review the recordings and minutes of previous meetings also attached to this item. UNRESOLVED ISSUES:None, a public release of the document will be provided for review before any public hearings begin ALTERNATIVES:Not applicable FISCAL EFFECTS:Funds for the UDC update have been budgeted. Attachments: SB382 City Commission summary July 25, 2023.pdf SB0382 - Montana Land Use Planning Act.pdf July 25, 2023 List of Meetings.pdf July 2023 utility bill stuffer.pdf Report compiled on: July 14, 2023 138 Summary of Senate Bill 382, Montana Land Use Planning Act, and Impacts on Unified Development Code Replacement Bozeman implements land use planning, subdivision, and zoning as authorized by the State of Montana. The City adopted zoning in 1934 and adopted its first community master plan in 1958. The City has entirely replaced zoning and subdivision regulations 20 times since initial adoption. The City again is repealing and readopting the entire zoning regulations and map as well as its subdivision regulations. The 2023 Legislature adopted Senate Bill 382, the Montana Land Use Planning Act (the Act) which took effect immediately upon signing on May 17, 2023. The Act has not yet been codified so we cannot yet refer to standard statutory citations. Some communities within large counties must follow the Act and others may choose to. Bozeman is required to follow the Act in its planning, subdivision, and zoning activities. This agenda item is an overview of the bill and impacts that will affect the replacement of the Unified Development Code. This will create many implications for development review practices. Bozeman already uses many of the required practices as part of its daily activities, but some changes are needed to fully implement the bill. 1. Per Section 5, paragraph 4, of the Act, Bozeman is no longer subject to Title 76, chapters 1, 2, 3, or 8 MCA once we have adopted regulations in compliance with the Act. This means the Act has replaced all the governing laws Bozeman has used in the past to establish the composition, roles, and characteristics of the planning board and growth policy. Such as the Montana Subdivision and Platting Act and zoning enabling acts. These older statutes have been in place for at least 50 years, were not well coordinated at the state level, and created a lot of overlapping review and work for all participants. The intention of the Act is to coordinate planning and development review actions to prevent duplicative processes and provide a more seamless review process. The Act changes the duties of the Community Development Board, removes requirements for the Community Development Board to consider any subdivision reviews, limits governing body reviews to only final subdivision plats, removes the existing criteria and protest provisions for zoning adoption and amendments, changes notice and public engagement requirements, and other changes. An additional consequence is various bills in the 2023 Legislature that amend Title 76, chapters 1, 2, 3, or 8 MCA subdivision and planning enabling legislation do not apply to Bozeman once SB 382 implementing regulations are adopted. Some elements of those bills have been included in Senate Bill 382. As the City is required to implement SB 382 there is some overlap between the different legislation but only to the extent that SB 382 governs. 2. Public participation. Bozeman has a strong culture of public engagement. The City has established the Engage Bozeman website as an overall engagement portal for large City projects. Section 6 describes the requirements for public engagement. The methods and timing of outreach needs to be identified in a public participation plan at the beginning of a process and can vary by community and subject. This is a much more extensive requirement than is in the prior enabling acts. 139 Summary of Senate Bill 382, Montana Land Use Planning Act, and Impacts on Unified Development Code Replacement The Act places substantial emphasis on the public engaging early and often during the planning process and creation of regulations. Public outreach needs to be an on-going process during development of plans and regulations. Not all activities require the same degree of outreach. The exact nature of outreach needs to be the subject of a public participation plan at the beginning of a process and can vary by community and subject. The Act requires early identification and evaluation of the impacts of development and public engagement at the beginning of a review or plan development. Once an issue has been raised and evaluated then the issue considered settled. Any subsequent application relying on those findings and conclusions are not subject to further public comment but are subject to any regulations based on those earlier findings and conclusions. If an application has impacts greater than expected with the land use and issue plans, notice is limited to only those impacts and public comment is only received in writing; there are not public hearings for subdivisions or zoning projects. Sections 22 and 29 describe the limitations. 3. Land Use and Issue Plans. The Act requires preparation of a Land Use Plan. This replaces the term growth policy. There are many similarities between the two types of documents. A Land Use Plan has more detailed content to be addressed. See Section 7, 9-14, and 17 of the Act for the detailed contents. Section 15 authorizes area plans. These are the same as neighborhood plans like the Downtown plan and allows more localized analysis. Bozeman’s planning practice has followed the more detailed approach required in the new statute. Section 16 authorizes a community to adopt Issue Plans. An issue plan is a separate document that analyzes a specific subject within the scope of a Land Use Plan and can provide the needed information for statutory compliance. The City has many of these types of plans now such as the transportation and sewer facility plans. Those plans continue forward as currently established. See page 19 of the Bozeman Community Plan 2020 for a list of these plans and other documents. As the existing growth policy and facility plans are updated, they will be reviewed and adopted consistent with the requirements of the Act. One change in this process by the Act is that the Planning Commission (Community Development Board) has a responsibility to review all Issue Plans and make a recommendation to the City Commission regarding their adoption and consistency with the Land Use Plan. The Community Development Board recently performed this function for the PRAT plan. 4. Encourage development of housing. Housing availability and cost is a nationwide challenge. Bozeman has been active for many years in working to support construction of all housing and especially housing at lower cost ranges. Some communities have not materially updated their development standards for many decades. Section 19 of the Act requires a local government subject to the Act to include at least five strategies applicable to a 140 Summary of Senate Bill 382, Montana Land Use Planning Act, and Impacts on Unified Development Code Replacement majority of the jurisdictional area where residential development is permitted. Staff will provide an analysis with the UDC update identifying which of the strategies have been selected and to which percentage of the area they apply. Many of the alternatives, like accessory dwellings, are things that Bozeman has been doing for years. Some options are issues actively under development as part of the UDC update prior to passage of SB 382. 5. Amendment process changes. The former enabling acts had specific criteria for amendments to zoning and subdivision regulations that the public and decision makers have seen many times in staff reports. The zoning criteria were referred to as the Lowe criteria after a notable court case. None of those criteria carried forward into the Act. New criteria have been established for zoning and subdivision regulations. These criteria will be the standards against which the UDC replacement will be evaluated for all future amendments as well to regulations or zoning map. Sections 21 and 27 contain these requirements. The law also changes who may initiate amendments. One key change in the zoning amendment process is that there is no protest provision. The prior protest provisions gave some members of the community more influence on land use decisions than others. With removal of the protest provision all input carries the same weight and must be considered solely on the merits of the information presented. All decisions to approve or deny any amendment will be a simple majority of the City Commission. Public notice and comment during the amendment process is limited only to those areas not previously settled with adoption of a Land Use Plan or Issue Plan. If the amendment is consistent with the analysis and conclusions of the earlier documents it is not a proper subject for public notice or comment per the Act. 6. Development review processes. SB 382 changes development processes so that both subdivision and zoning site specific reviews are required to be administrative decisions with no advisory board participation. The planning commission’s role will be limited to the initial adoption and amendments to the land use plan and development regulations with final decision by city commission. As noted in item 2 above, public notice for both subdivision and zoning applications are restricted by the bill. Sections 22 and 29 describe the limitations. The City Commission will still be the body that approves final plats. The City Commission recently approved amendments to Chapter 2, BMC that allows the City Manager to accept and grant easements. This has simplified review processes. The Act requires that a Land Use Plan include a future land use map for areas where growth outside of the City is expected. The Bozeman Community Plan 2020 already has this map. Zoning to implement the future land use map is required even though it may not be in effect until annexation is completed. The draft regulations are expected to include designated districts that will be applicable upon annexation without further action to 141 Summary of Senate Bill 382, Montana Land Use Planning Act, and Impacts on Unified Development Code Replacement amend the zoning map. This action will substantially speed up the process of annexing property and will provide greater predictability to all. If an applicant wishes a different zoning district they can apply for a different district in conjunction with the annexation application. 7. Variances. The required criteria and process for variances, both subdivision and zoning, have been completely replaced and are now the same for both processes. Floodplains continue to have some criteria unique to them. A board of adjustment is no longer allowed to consider variances. All variances are now administrative reviews subject to the standard appeal processes. Variances do not require public hearings and may or may not require public notices depending on whether it is determined that the variance is within the impacts identified with prior planning work. Variances are still subject to high scrutiny and criteria to ensure they are only used appropriately. The standards and procedures for variances in the Act do not affect the deviation and departure processes that are uniquely Bozeman creations and are adopted for different reasons than variances. 8. Appeals. State law now provides a more complete process description for review of appeals. The board of adjustment is abandoned and no longer hears appeals. Appeals now have two administrative steps from the planning administrator (Director of Community Development) to the Planning Commission, and from the Planning Commission to the City Commission. As with current law, appeals from the City Commission go to District Court. 142 - 2023 68th Legislature 2023 SB0382 - 1 - Authorized Print Version – SB 382 ENROLLED BILL AN ACT CREATING THE MONTANA LAND USE PLANNING ACT; REQUIRING CITIES THAT MEET CERTAIN POPULATION THRESHOLDS TO UTILIZE THE LAND USE PLAN, MAP, ZONING REGULATIONS, AND SUBDIVISION REGULATIONS PROVIDED IN THE ACT; ALLOWING OTHER LOCAL GOVERNMENTS THE OPTION TO UTILIZE THE PROVISIONS OF THE ACT; REQUIRING PUBLIC PARTICIPATION DURING THE DEVELOPMENT, ADOPTION, OR AMENDMENT OF A LAND USE PLAN, MAP, ZONING REGULATION, OR SUBDIVISION REGULATION; PROVIDING STRATEGIES TO MEET POPULATION PROJECTIONS; PROVIDING FOR CONSIDERATION OF FACTORS SUCH AS HOUSING, LOCAL FACILITIES, ECONOMIC DEVELOPMENT, NATURAL RESOURCES, ENVIRONMENT, AND NATURAL HAZARDS WHEN DEVELOPING A LAND USE PLAN, MAP, AND ZONING REGULATION; PROVIDING FOR A PROCEDURE TO REVIEW SUBDIVISIONS AND APPROVE FINAL PLATS; PROVIDING FOR A LOCAL GOVERNING BODY TO COLLECT FEES; PROVIDING AN APPEALS PROCESS, ENFORCEMENT MECHANISMS, AND PENALTIES; PROVIDING DEFINITIONS; REPEALING SECTIONS 7-21-1001, 7-21- 1002, AND 7-21-1003, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA: Section 1. Short Title. [Sections 1 through 38] may be cited as the "Montana Land Use Planning Act". Section 2. Legislative purpose, findings, and intent. (1) It is the purpose of [sections 1 through 38] to promote the health, safety, and welfare of the people of Montana through a system of comprehensive planning that balances private property rights and values, public services and infrastructure, the human environment, natural resources, and recreation, and a diversified and sustainable economy. 143 - 2023 68th Legislature 2023 SB0382 - 2 - Authorized Print Version – SB 382 ENROLLED BILL (2) The legislature finds that coordinated and planned growth will encourage and support: (a) sufficient housing units for the state's growing population that are attainable for citizens of all income levels; (b) the provision of adequate public services and infrastructure in the most cost-effective manner possible, shared equitably among all residents, businesses, and industries; (c) the natural environment, including wildlife and wildlife habitat, sufficient and clean water, and healthy air quality; (d) agricultural, forestry, and mining lands for the production of food, fiber, and minerals and their economic benefits; (e) the state's economy and tax base through job creation, business development, and the revitalization of established communities; (f) persons, property, infrastructure, and the economy against natural hazards, such as flooding, earthquake, wildfire, and drought; and (g) local consideration, participation, and review of plans for projected population changes and impacts resulting from those plans. (3) It is the legislature’s intent that the comprehensive planning authorized in [sections 1 through 38]: (a) provides the broadest and most comprehensive level of collecting data, identifying and analyzing existing conditions and future opportunities and constraints, acknowledging and addressing the impacts of development on each jurisdiction, and providing for broad public participation; (b) serves as the basis for implementing specific land use regulations that are in substantial compliance with the local land use plan; (c) provides for local government approval of development proposals in substantial compliance with the land use plan, based on information, analysis, and public participation provided during the development and adoption of the land use plan and implementing regulations; and (d) allows for streamlined administrative review decisionmaking for site-specific development applications. 144 - 2023 68th Legislature 2023 SB0382 - 3 - Authorized Print Version – SB 382 ENROLLED BILL Section 3. Definitions. As used in [sections 1 through 38], unless the context or subject matter clearly requires otherwise, the following definitions apply: (1) "Aggrieved party" means a person who can demonstrate a specific personal and legal interest, as distinguished from a general interest, who has been or is likely to be specially and injuriously affected by the decision. (2) "Applicant" means a person who seeks a land use permit or other approval of a development proposal. (3) “Built environment” means man-made or modified structures that provide people with living, working, and recreational spaces. (4) “Cash-in-lieu donation" is the amount equal to the fair market value of unsubdivided, unimproved land. (5) "Certificate of survey" means a drawing of a field survey prepared by a registered surveyor for the purpose of disclosing facts pertaining to boundary locations. (6) "Dedication" means the deliberate appropriation of land by an owner for any general and public use, reserving to the landowner no rights that are incompatible with the full exercise and enjoyment of the public use to which the property has been devoted. (7) "Division of land" means the segregation of one or more parcels of land from a larger tract held in single or undivided ownership by transferring or contracting to transfer title to a portion of the tract or properly filing a certificate of survey or subdivision plat establishing the identity of the segregated parcels pursuant to [sections 1 through 38]. The conveyance of a tract of record or an entire parcel of land that was created by a previous division of land is not a division of land. (8) "Dwelling " means a building designed for residential living purposes, including single-unit, two- unit, and multi-unit dwellings. (9) "Dwelling unit" means one or more rooms designed for or occupied exclusively by one household. (10) “Examining land surveyor" means a registered land surveyor appointed by the governing body to review surveys and plats submitted for filing. (11) "Final plat" means the final drawing of the subdivision and dedication required by [sections 1 145 - 2023 68th Legislature 2023 SB0382 - 4 - Authorized Print Version – SB 382 ENROLLED BILL through 38] to be prepared for filing for record with the county clerk and recorder and containing all elements and requirements set forth in [sections 1 through 38] and in regulations adopted pursuant to [sections 1 through 38]. (12) "Four-unit dwelling" or "fourplex" means a building designed for four attached dwelling units in which the dwelling units share a common separation, such as a ceiling or wall, and in which access cannot be gained between the units through an internal doorway, excluding common hallways. (13) "Immediate family" means a spouse, children by blood or adoption, and parents. (14) "Irrigation district" means a district established pursuant to Title 85, chapter 7. (15) "Jurisdictional area" or "jurisdiction" means the area within the boundaries of the local government. For municipalities, the term includes those areas the local government anticipates may be annexed into the municipality over the next 20 years. (16) “Land use permit” means an authorization to complete development in conformance with an application approved by the local government. (17) “Land use plan” means the land use plan and future land use map adopted in accordance with [sections 1 through 38]. (18) “Land use regulations” means zoning, zoning map, subdivision, or other land use regulations authorized by state law. (19) “Local governing body” or "governing body" means the elected body responsible for the administration of a local government. (20) “Local government” means a county, consolidated city-county, or an incorporated municipality to which the provisions of [sections 1 through 38] apply as provided in [section 5]. (21) "Manufactured housing" means a dwelling for a single household, built offsite in a factory that is in compliance with the applicable prevailing standards of the United States department of housing and urban development at the time of its production. A manufactured home does not include a mobile home or housetrailer, as defined in 15-1-101. (22) “Ministerial permit” means a permit granted upon a determination that a proposed project complies with the zoning map and the established standards set forth in the zoning regulations. The determination must be based on objective standards, involving little or no personal judgment, and must be 146 - 2023 68th Legislature 2023 SB0382 - 5 - Authorized Print Version – SB 382 ENROLLED BILL issued by the planning administrator. (23) "Multi-unit dwelling" means a building designed for five or more attached dwelling units in which the dwelling units share a common separation, such as a ceiling or wall, and in which access cannot be gained between the units through an internal doorway, excluding common hallways. (24) "Permitted use" means a use that may be approved by issuance of a ministerial permit. (25) “Planning administrator” means the person designated by the local governing body to review, analyze, provide recommendations, or make final decisions on any or all zoning, subdivision, and other development applications as required in [sections 1 through 38]. (26) "Plat" means a graphical representation of a subdivision showing the division of land into lots, parcels, blocks, streets, alleys, and other divisions and dedications. (27) "Preliminary plat" means a neat and scaled drawing of a proposed subdivision showing the layout of streets, alleys, lots, blocks, and other elements of a subdivision that furnish a basis for review by a governing body. (28) "Public utility" has the meaning provided in 69-3-101, except that for the purposes of [sections 1 through 38], the term includes a county water or sewer district as provided for in Title 7, chapter 13, parts 22 and 23, and municipal sewer or water systems and municipal water supply systems established by the governing body of a municipality pursuant to Title 7, chapter 13, parts 42, 43, and 44. (29) "Single-room occupancy development" means a development with dwelling units in which residents rent a private bedroom with a shared kitchen and bathroom facilities. (30) "Single-unit dwelling" means a building designed for one dwelling unit that is detached from any other dwelling unit. (31) "Subdivider" means a person who causes land to be subdivided or who proposes a subdivision of land. (32) "Subdivision" means a division of land or land so divided that it creates one or more parcels containing less than 160 acres that cannot be described as a one-quarter aliquot part of a United States government section, exclusive of public roadways, in order that the title to the parcels may be sold or otherwise transferred and includes any resubdivision and a condominium. The term also means an area, regardless of its size, that provides or will provide multiple spaces for rent or lease on which recreational camping vehicles or 147 - 2023 68th Legislature 2023 SB0382 - 6 - Authorized Print Version – SB 382 ENROLLED BILL mobile homes will be placed. (33) "Subdivision guarantee" means a form of guarantee that is approved by the commissioner of insurance and is specifically designed to disclose the information required in [section 34]. (34) "Tract of record" means an individual parcel of land, irrespective of ownership, that can be identified by legal description, independent of any other parcel of land, using documents on file in the records of the county clerk and recorder's office. (35) "Three-unit dwelling" or "triplex" means a building designed for three attached dwelling units in which the dwelling units share a common separation, such as a ceiling or wall, and in which access cannot be gained between the units through an internal doorway, excluding common hallways. (36) "Two-unit dwelling" or "duplex" means a building designed for two attached dwelling units in which the dwelling units share a common separation, such as a ceiling or wall, and in which access cannot be gained between the units through an internal doorway. Section 4. Planning commission. (1) (a) Each local government shall establish, by ordinance or resolution, a planning commission. (b) Any combination of local governments may create a multi-jurisdiction planning commission or join an existing commission pursuant to an interlocal agreement. (c) (i) Any combination of legally authorized planning boards, zoning commissions, planning and zoning commissions, or boards of adjustment existing prior to [the effective date of this act] may be considered duly constituted under [sections 1 through 38] as a planning commission by agreement of the governing bodies of each jurisdiction represented on the planning commission. (ii) If more than one legally authorized planning board, zoning commission, or planning and zoning commission exists within a jurisdiction, the governing bodies of each jurisdiction may agree to: (A) designate, combine, consolidate, or modify one or more of the authorized boards or commissions as the planning commission; or (B) create a new planning commission pursuant to this section and disband the existing boards and commissions. (2) (a) (i) Each planning commission must consist of an odd number of no fewer than three voting 148 - 2023 68th Legislature 2023 SB0382 - 7 - Authorized Print Version – SB 382 ENROLLED BILL members who are confirmed by majority vote of each local governing body. (ii) Each jurisdiction must be equally represented in the membership of a multi-jurisdiction planning commission. (b) The planning commission shall meet at least once every 6 months. (c) Minutes must be kept of all meetings of the planning commission and all meetings and records must be open to the public. (d) A majority of currently appointed voting members of the planning commission constitutes a quorum. A quorum must be present for the planning commission to take official action. A favorable vote of at least a majority of the quorum is required to authorize an action at a regular or properly called special meeting. (e) The ordinance, resolution, or interlocal agreement creating the planning commission must set forth the requirements for appointments, terms, qualifications, removal, vacancies, meetings, notice of meetings, officers, reimbursement of costs, bylaws, or any other requirement determined necessary by the local governing body. (3) (a) Except as set forth in subsection (3)(b), the planning commission shall review and make recommendations to the local governing body regarding the development, adoption, amendment, review, and approval or denial of the following documents: (i) the land use plan and future land use map as provided in [section 7]; (ii) zoning regulations and map as provided in [sections 18 through 24]; (iii) subdivision regulations as provided in [sections 25 through 34]; and (iv) any other legislative land use planning document the local governing body designates. (b) In accordance with [section 37], the planning commission shall hear and decide appeals from any site-specific land use decisions made by the planning administrator pursuant to the adopted regulations described in subsection (3)(a). Decisions of the planning commission may be appealed to the local governing body as provided in [section 37]. (4) The planning commission may be funded pursuant to 76-1-403 and 76-1-404. Section 5. Applicability and compliance. (1) A municipality with a population at or exceeding 5,000 located within a county with a population at or exceeding 70,000 in the most recent decennial census shall 149 - 2023 68th Legislature 2023 SB0382 - 8 - Authorized Print Version – SB 382 ENROLLED BILL comply with the provisions of [sections 1 through 38]. (2) (a) Except as provided in subsection (2)(b), any municipality that meets the population thresholds of subsection (1) on [the effective date of this act] shall comply with the provisions of [sections 1 through 38] within 3 years of [the effective date of this act]. (b) A municipality that has adopted a growth policy within 5 years prior to [the effective date of this act] shall comply with the provisions of [sections 1 through 38] within 5 years of the date that the growth policy was adopted or within the deadline established in subsection (2)(a), whichever occurs later. (c) A municipality that meets the population thresholds of subsection (1) on any decennial census completed after [the effective date of this act] shall comply with the provisions of [sections 1 through 38] by December 31 of the third year after the date of the decennial census. (3) (a) A local government that is not required to comply with the provisions of [sections 1 through 38] may decide to comply with the provisions of [sections 1 through 38] by an affirmative vote of the local governing body. After an affirmative vote, the governing body shall comply with the provisions of [sections 1 through 38] by December 31 of the fifth year after the date of the vote. (b) A local government that votes pursuant to subsection (3)(a) to comply with the provisions of [sections 1 through 38] may subsequently decide to not comply with the provisions of [sections 1 through 38] by an affirmative vote. (4) A local government that complies with [sections 1 through 38] is not subject to any provision of Title 76, chapters 1, 2, 3, or 8. Section 6. Public participation. (1) (a) A local government shall provide continuous public participation when adopting, amending, or updating a land use plan or regulations pursuant to [sections 1 through 38]. (b) Public participation in the adoption, amendment, or update of a land use plan or implementing regulations must provide for, at a minimum: (i) dissemination of draft documents; (ii) an opportunity for written and verbal comments; (iii) public meetings after effective notice; 150 - 2023 68th Legislature 2023 SB0382 - 9 - Authorized Print Version – SB 382 ENROLLED BILL (iv) electronic communication regarding the process, including online access to documents, updates, and comments; and (v) an analysis of and response to public comments. (2) A local government shall document and retain all public outreach and participation performed as part of the administrative record in accordance with the retention schedule published by the secretary of state. (3) (a) A local government may decide the method for providing: (i) general public notice and participation in the adoption, amendment, or update of a land use plan or regulation; and (ii) notice of written comment on applications for land use permits pursuant to [sections 1 through 38]. (b) All notices must clearly specify the nature of the land use plan or regulation under consideration, what type of comments the local government is seeking from the public, and how the public may participate. (c) The local government shall document what methods it used to provide continuous participation in the development, adoption, or update of a land use plan or regulation and shall document all comments received. (d) The department of commerce established in 2-15-1801 and functioning pursuant to 90-1-103 shall develop a list of public participation methods and best practices for use by local governments in developing, adopting, or updating a land use plan or regulations. (4) Throughout the adoption, amendment, or update of the land use plan or regulation processes, a local government shall emphasize that: (a) the land use plan is intended to identify the opportunities for development of land within the planning area for housing, businesses, agriculture, and the extraction of natural resources, while acknowledging and addressing the impacts of that development on adjacent properties, the community, the natural environment, public services and facilities, and natural hazards; (b) the process provides for continuous and extensive public notice, review, comment, and participation in the development of the land use plan or regulation; 151 - 2023 68th Legislature 2023 SB0382 - 10 - Authorized Print Version – SB 382 ENROLLED BILL (c) the final adopted land use plan, including amendments or updates to the final adopted land use plan, comprises the basis for implementing land use regulations in substantial compliance with the land use plan; and (d) the scope of and opportunity for public participation and comment on site-specific development in substantial compliance with the land use plan must be limited only to those impacts or significantly increased impacts that were not previously identified and considered in the adoption, amendment, or update of the land use plan, zoning regulations, or subdivision regulations. (5) The local governing body shall adopt a public participation plan detailing how the local government will meet the requirements of this section. Section 7. Adoption or amendment of land use plan and future land use map. (1) The local governing body shall adopt or amend by resolution a land use plan and future land use map in accordance with [sections 7 through 17] only after consideration by and on the recommendation of the planning commission. (2) Prior to making a recommendation to the governing body to adopt or amend a land use plan and future land use map, the planning commission shall: (a) provide public notice and participation in accordance with [section 6]; and (b) accept, consider, and respond to public comment on the proposed land use plan and future land use map. All public comment must be part of the administrative record transmitted to the governing body. (3) After meeting the requirements of subsection (2), the planning commission shall make a final recommendation to the governing body to adopt, modify, or reject the proposed land use plan and future land use map or any amendment to the proposed land use plan and future land use map. (4) The governing body shall incorporate any existing neighborhood, area, or plans adopted pursuant to Title 76, chapter 1, that meet the requirements of [sections 1 through 38] into the land use plan and future land use map. (5) (a) The governing body shall consider the recommendation of the planning commission to adopt, modify, or reject the proposed land use plan and future land use map or any amendment to the proposed land use plan and future land use map. (b) After providing public notice and participation in accordance with [section 6], the governing 152 - 2023 68th Legislature 2023 SB0382 - 11 - Authorized Print Version – SB 382 ENROLLED BILL body may adopt, with any revisions the local governing body considers appropriate, or reject the land use plan and future land use map or any amendment to the proposed land use plan and future land use map proposed by the planning commission. (6) An amendment to a land use plan or future land use map may be initiated: (a) by majority vote of the governing body; (b) on petition of at least 15% of the electors of the local government jurisdiction to which the plan applies, as registered at the last general election; or (c) by a property owner applying for a zoning, subdivision, or other land use permit. (7) (a) After the initiation of an amendment to a land use plan or future land use map allowed in subsection (6), the planning commission shall make a preliminary determination of whether the proposed land use plan or future land use map amendment results in new or increased impacts to or from local facilities, services, natural resources, natural environment, or natural hazards from those previously described and analyzed in the assessment conducted in the development of the land use plan. (b) If the planning commission finds new or increased impacts from the proposed land use plan or future land use map amendment, the local government shall collect additional data and conduct additional analysis necessary to provide the planning commission with the opportunity to consider all potential impacts resulting from the amendment before proceeding under subsection (2). (8) The governing body may not amend the land use plan or future land use map unless: (a) the amendment is found in substantial compliance with the land use plan; and (b) the potential impacts resulting from development in substantial compliance with the proposed amendment have been made available for public review and comment and have been fully considered by the governing body. Section 8. Update of land use plan or future land use map. (1) After a local government adopts a land use plan and future land use map in accordance with [section 7], the land use plan and future land use map must be reviewed by the planning commission every fifth year after adoption to determine whether an update to the land use plan and future land use map must be performed. The planning commission shall: (a) make a preliminary determination regarding the existence of new or increased impacts to or 153 - 2023 68th Legislature 2023 SB0382 - 12 - Authorized Print Version – SB 382 ENROLLED BILL from local facilities, services, natural resources, natural environment, or natural hazards from those previously described and analyzed when the land use plan and future land use map were previously adopted; (b) provide public notice and participation in accordance with [section 6]; and (c) accept, consider, and respond to public comment on the review of the land use plan and future land use map. All public comment must be part of the administrative record transmitted to the governing body. (2) (a) If the planning commission finds new or increased impacts under subsection (1), the planning commission shall recommend an update to the land use plan, future land use map, or both. (b) If the planning commission finds no new or increased impacts under subsection (1), the planning commission shall make a recommendation to the governing body that no update to the land use plan or future land use map is necessary. (3) After receiving the recommendation of the planning commission, the governing body may direct that an update of the land use plan, future land use map, or both be completed or may readopt the current land use plan, future land use map, or both. (4) (a) In developing, drafting, and considering an update to the land use plan or future land use map, the planning commission shall follow the process set forth in [section 7] with respect to the changes proposed to the land use plan or future land use map. (b) If the planning commission finds new or increased impacts resulting from the land use plan or future land use map, the local government shall collect additional data and conduct additional analysis necessary to provide the governing body and the public with the opportunity to comment on and consider all potential impacts resulting from an update to the land use plan or future land use map. (5) At any time before an update is required after a review under subsection (1), the local governing body may direct that an update to the land use plan or future land use map be prepared for consideration by the planning commission and for recommendation to the governing body. (6) Once an update to the land use plan or future land use map is adopted or the land use plan or future land use map is readopted, the information and analysis contained within the land use plan and future land use map must be considered accurate for the purposes of making site-specific development decisions in substantial compliance with the land use plan and future land use map. 154 - 2023 68th Legislature 2023 SB0382 - 13 - Authorized Print Version – SB 382 ENROLLED BILL Section 9. Existing conditions and population projections. (1) The land use plan must include, at a minimum, inventories and descriptions of existing conditions of housing, local services and facilities, economic development, natural resources, environment, and hazards, and land use within the jurisdictional boundaries of the land use plan. (2) As set forth in [sections 10 through 17], the land use plan must include, at minimum, a description, map, and analysis of how the jurisdiction will accommodate its projected population over the next 20 years and the expected impacts of the development in the areas of housing, local services and facilities, economic development, natural resources, environment, and hazards. (3) The inventories and descriptions in the plan must be based on up-to-date surveys, maps, diagrams, charts, descriptive material, studies, and reports necessary to explain and supplement the analysis of each section of the land use plan. (4) (a) A jurisdiction shall use demographics provided by: (i) the most recent decennial census or census estimate of the United States census bureau; and (ii) population projections for a 20-year period based on permanent and seasonal population estimates: (A) provided by demographics published by the department of commerce; (B) generated by the local government; or (C) produced by a professional firm specializing in projections. (b) When a population projection is not available, population projections for the jurisdiction must be reflective of the area’s proportional share of the total county population and the total county population growth. Section 10. Housing. (1) A local governing body shall identify and analyze existing and projected housing needs for the projected population of the jurisdiction and provide regulations that allow for the rehabilitation, improvement, or development of the number of housing units needed, as identified in the land use plan and future land use map, including: (a) a quantification of the jurisdiction’s existing and projected needed housing types, including location, age, condition, and occupancy required to accommodate existing and estimated population projections; 155 - 2023 68th Legislature 2023 SB0382 - 14 - Authorized Print Version – SB 382 ENROLLED BILL (b) an inventory of sites, including zoned, unzoned, vacant, underutilized, and potential redevelopment sites, available to meet the jurisdiction's needed housing types; (c) an analysis of any constraints to housing development, such as zoning, development standards, and infrastructure needs and capacity, and the identification of market-based incentives that may affect or encourage the development of needed housing types; and (d) a detailed description of what actions the jurisdiction may take to accommodate the projected needed housing types identified in subsection (1)(a). (2) The housing section of the land use plan and future land use map may incorporate by reference any information or policies identified in other housing needs assessments adopted by the governing body. (3) If, after performing the analysis required in subsection (1), the local government determines that the total needed housing types may not be met due to lack of resources, development sites, infrastructure capacity, or other documented constraints, the local government shall establish the minimum number of housing units that may be rehabilitated, improved, or developed within the jurisdiction over the 20-year planning period and the actions the local government may take to remove constraints to the development of those units over that period. (4) Progress toward the construction of the housing units identified as needed to meet projected housing needs during the 20-year planning period of the land use plan must be documented at each fifth year review of the land use plan as required in [section 8]. (5) The amount of detail provided in the analysis beyond the minimum criteria established in this section is at the discretion of the local governing body. Section 11. Local services and facilities. (1) The land use plan must: (a) determine the existing and anticipated levels of public safety and emergency services necessary to serve the projected population of the jurisdiction, including law enforcement, fire protection, emergency management system agencies, and local health care organizations; (b) contain an inventory and map of existing fire protection, law enforcement, and emergency service jurisdictional areas and anticipated response times, a description of mutual aid or cooperative service 156 - 2023 68th Legislature 2023 SB0382 - 15 - Authorized Print Version – SB 382 ENROLLED BILL agreements, and the location of hospitals or clinics in the jurisdiction; (c) identify capital and service improvements for fire, law enforcement, emergency services, and health services for the jurisdictional area necessary to meet the projected population; (d) determine the existing capacity, existing deficiencies, planned expansion, and anticipated levels of utility services necessary to serve the projected population in the jurisdiction, including water, wastewater, and storm water systems, solid waste disposal, and other utility services, as identified by the local government; (e) contain an inventory and map of all utility service areas, system networks, and facilities; (f) identify local utility capital and service improvements for the jurisdictional area necessary to meet the projected population; (g) determine the existing capacity, existing deficiencies, planned expansion, and anticipated improvements to the transportation network serving the jurisdictional area necessary to serve the projected population in the jurisdiction; (h) contain an inventory and classification map of all existing and planned roads within the jurisdictional area, including major highways, secondary highways, and local routes, all non-motorized routes, including bike lanes and pedestrian thoroughfares, and all public transit systems and facilities; and (i) identify planned capital and service transportation improvements necessary to serve the projected population. (2) The local government shall: (a) coordinate with school districts within the jurisdiction to determine the existing capacity of, planned expansion of, and anticipated improvements necessary for the local K-12 school system to serve the projected population in the jurisdiction; and (b) request that the local school district provide any inventory and maps of existing K-12 educational facilities within the jurisdictional area and identify any capital and service improvements necessary to meet the projected population. (3) The local government may include an analysis of existing capacity and service levels, planned expansions of, and anticipated improvements necessary to provide other services to the projected population in the jurisdiction. 157 - 2023 68th Legislature 2023 SB0382 - 16 - Authorized Print Version – SB 382 ENROLLED BILL (4) The local government may incorporate by reference any information or policies identified in other relevant local services or facilities assessments adopted by the local governing body, such as a capital improvements plan or an impact fee study. (5) The amount of detail provided in the analysis beyond the minimum criteria established in this section is at the discretion of the local governing body. Section 12. Economic development. (1) The land use plan must: (a) assess existing and potential commercial, industrial, small business, and institutional enterprises in the jurisdiction, including the types of sites and supporting services needed by the enterprises; (b) summarize job composition and trends by industry sector, including existing labor force characteristics and future labor force requirements, for existing and potential enterprises in the jurisdiction; (c) assess the extent to which local characteristics, assets, and resources support or constrain existing and potential enterprises, including access to transportation to market goods and services, and assess historic, cultural, and scenic resources and their relationship to private sector success in the jurisdiction; (d) inventory sites within the jurisdiction, including zoned, unzoned, vacant, underutilized, and potentially redeveloped sites, available to meet the jurisdiction’s economic development needs; (e) assess the adequacy of existing and projected local facilities and services, schools, housing stock, and other land uses necessary to support existing and potential commercial, industrial, and institutional enterprises; and (f) assess the financial feasibility of supporting anticipated economic growth in the jurisdiction. (2) The local government may incorporate by reference any information or policies identified in other relevant economic development assessments. (3) The amount of detail provided in the analysis beyond the minimum criteria established in this section is at the discretion of the local governing body. Section 13. Natural resources, environment, and hazards. (1) The land use plan must: (a) include inventories and maps of natural resources within the jurisdiction, including but not limited to agricultural lands, agricultural water user facilities, minerals, sand and gravel resources, forestry 158 - 2023 68th Legislature 2023 SB0382 - 17 - Authorized Print Version – SB 382 ENROLLED BILL lands, and other natural resources identified by the local government; (b) describe the natural resource characteristics of the jurisdictional area, including a summary of historical natural resource utilization, data on existing utilization, and projected future trends; (c) include an inventory, maps, and description of the natural environment of the jurisdictional area, including a summary of important natural features and the conditions of and real and potential threats to soils, geology, topography, vegetation, surface water, groundwater, aquifers, floodplains, scenic resources, wildlife, wildlife habitat, wildlife corridors, and wildlife nesting sites within the jurisdiction; and (d) include maps of, identify factors related to, and describe natural hazards within the jurisdictional area, including flooding, fire, earthquakes, steep slopes and other known geologic hazards and other natural hazards identified by the jurisdiction, with a summary of past significant events resulting from natural hazards that includes: (i) a description of land use constraints resulting from natural hazards; (ii) a description of the efforts that have been taken within the local jurisdiction to mitigate the impact of natural hazards; and (iii) a description of the role that natural resources and the environment play in the local economy. (2) The local government may incorporate by reference any information or policies identified in other relevant assessments of natural resources, environment, or hazards. (3) The amount of detail provided in the analysis beyond the minimum criteria established in this section is at the discretion of the local governing body. Section 14. Land use and future land use map. (1) A land use plan must include a future land use map and a written description of the proposed general distribution, location, and extent of residential, commercial, mixed, industrial, agricultural, recreational, and conservation uses of land and other categories of public and private uses, as determined by the local government. (2) The future land use map must reflect the anticipated and preferred pattern and intensities of development for the jurisdiction over the next 20 years, based on the information, analysis, and public input collected, considered, and relevant to the population projections for and economic development of the jurisdiction and the housing and local services needed to accommodate those projections, while acknowledging 159 - 2023 68th Legislature 2023 SB0382 - 18 - Authorized Print Version – SB 382 ENROLLED BILL and addressing the natural resource, environment, and natural hazards of the jurisdiction. (3) The future land use map may not confer any authority to regulate what is not otherwise specifically authorized in [sections 1 through 38]. (4) The future land use map and the written description must include: (a) a statement of intent describing the jurisdiction’s applicable zoning, subdivision, and other land use regulations; (b) descriptions of existing and future land uses, including: (i) categories of public and private use; (ii) general descriptions of use types and densities of those uses; (iii) general descriptions of population; and (iv) other aspects of the built environment; (c) geographic distribution of future land uses in the jurisdiction, anticipated over a 20-year planning period that specifically demonstrate: (i) adequate land to support the projected population in all land use types in areas where local services can be adequately and cost-effectively provided for that population; (ii) adequate sites to accommodate the type and supply of housing needed for the projected population; and (iii) areas of the jurisdiction that are not generally suitable for development and the reason, based on the constraints identified through the land use plan analysis; (d) a statement acknowledging areas within the jurisdiction known to be subject to covenants, codes, and restrictions that may limit the type, density, or intensity of housing development projected in the future land use map; and (e) areas of or adjacent to the jurisdiction subject to increased growth pressures, higher development densities, or other urban development influences. (5) To the greatest extent possible, local governments shall create compatibility in the land use plans and future land use map in those areas identified in subsection (4)(e). (6) The land use plan may: (a) provide information required by a federal land management agency for the local governing 160 - 2023 68th Legislature 2023 SB0382 - 19 - Authorized Print Version – SB 382 ENROLLED BILL body to establish or maintain coordination or cooperating agency status; and (b) incorporate by reference any information or policies identified in other relevant assessments adopted by the local governing body, such as a pre-disaster mitigation plan or wildfire protection plan. (7) The amount of detail provided in the analysis beyond the minimum criteria established in this section is at the discretion of the local governing body. Section 15. Area plans. (1) A local governing body may adopt area plans for a portion of the jurisdiction to provide a more localized analysis of all or any part of a land use plan. An area plan may include but is not limited to a neighborhood plan, a corridor plan, or a subarea plan. (2) The adoption, amendment, or update of an area plan must follow the same process as a land use plan provided for in [sections 7 through 17] and may be adopted as an amendment to the land use plan. (3) The area plan must be in substantial compliance with the land use plan. To the extent an area plan is inconsistent with the land use plan, the land use plan controls. Section 16. Issue plans. (1) A local governing body may adopt issue plans for all or part of a jurisdiction that provide a more detailed or thorough analysis for any component of the land use plan. (2) The adoption, amendment, or update of an issue plan must follow the same process as a land use plan provided for in [sections 7 through 17]. (3) If an issue plan covers the jurisdictional area of the land use plan, the issue plan may serve as the detailed analysis required in the land use plan. Section 17. Implementation. (1) The land use plan and future land use map is not a regulatory document and must include an implementation section that: (a) establishes meaningful and predictable implementation measures for the use and development of land within the jurisdiction based on the contents of the land use plan and future land use map; (b) provides meaningful direction for the content of more detailed land use regulations and future land use maps; and (c) requires identification of those programs, activities, actions, or land use regulations that may be 161 - 2023 68th Legislature 2023 SB0382 - 20 - Authorized Print Version – SB 382 ENROLLED BILL part of the overall strategy of the jurisdiction for implementing the land use plan. (2) The implementation section of the land use plan must include: (a) if the local jurisdiction does not have current zoning regulations, a schedule by which zoning regulations and a zoning map will be adopted in accordance with the deadlines set forth in [section 5]; (b) if the local jurisdiction has current zoning regulations, an analysis of whether any inconsistencies exist between current zoning regulations and the land use plan and future land use map, including a map of the inconsistencies. If inconsistencies exist, the local government shall identify: (i) specific implementation actions necessary to amend the zoning regulations and the zoning map to bring the zoning regulations and zoning map into substantial compliance with the land use plan and future land use map; (ii) a schedule for amending the zoning regulations and zoning map to be in substantial compliance with the land use plan and future land use map, in accordance with the deadlines set forth in [section 5]; (iii) a schedule for adopting a capital improvements program or for amending an existing capital improvements program to be in substantial compliance with the land use plan and future land use map; (iv) a schedule for expanding or replacing public facilities and the anticipated costs and revenue sources proposed to meet those costs, which must be reflected in a jurisdiction’s capital improvement program; (v) if applicable, a schedule for updating the plan for extension of services required in 7-2-4732 to be in substantial compliance with the land use plan; and (vi) a schedule for implementing any other specific actions necessary to achieve the components of the land use plan, including a timeframe or prioritization of each specific public action; and (c) procedures for monitoring and evaluating the local government’s progress toward meeting the implementation schedule. Section 18. Authority to adopt local zoning regulations. (1) (a) A local government subject to [sections 1 through 38], within its respective jurisdiction, has the authority to and shall regulate the use of land in substantial compliance with its adopted land use plan by adopting zoning regulations. (b) The governing body of a county or city has the authority to adopt zoning regulations in 162 - 2023 68th Legislature 2023 SB0382 - 21 - Authorized Print Version – SB 382 ENROLLED BILL accordance with [sections 18 through 24] by an ordinance that substantially complies with 7-5-103 through 7-5- 107. (c) A municipality shall adopt zoning regulations for the portions of the jurisdictional area outside of the boundaries of the municipality that the governing body anticipates may be annexed into the municipality over the next 20 years. Unless otherwise agreed to by the applicable jurisdictions, zoning regulations on property outside the municipal boundaries may not apply or be enforced until those areas are annexed or are being annexed into the municipality. (2) Local zoning regulations authorized in subsection (1) include but are not limited to ordinances prescribing the: (a) uses of land; (b) density of uses; (c) types of uses; (d) size, character, number, form, and mass of structures; and (e) development standards mitigating the impacts of development, as identified and analyzed during the land use planning process and review and adoption of zoning regulations pursuant to [sections 1 through 38]. (3) The local government shall incorporate any existing zoning regulations adopted pursuant to Title 76, chapter 2, into the zoning regulations meeting the requirements of [sections 1 through 38]. (4) The local government shall adopt a zoning map for the jurisdiction in substantial compliance with the land use plan and future land use map and the zoning regulations adopted pursuant to this section, graphically illustrating the zone or zones that a property within the jurisdiction is subject to. (5) The local government may provide for the issuance of permits as may be necessary for the implementation of [sections 1 through 38]. (6) (a) The zoning regulations and map must identify areas that may necessitate the denial of a development or a specific type of development, such as unmitigable natural hazards, insufficient water supply, inadequate drainage, lack of access, inadequate public services, or the excessive expenditure of public funds for the supply of the services. (b) The regulations must prohibit development in the areas identified in subsection (6)(a) unless 163 - 2023 68th Legislature 2023 SB0382 - 22 - Authorized Print Version – SB 382 ENROLLED BILL the hazards or impacts may be eliminated or overcome by approved construction techniques or other mitigation measures identified in the zoning regulations. (c) Approved construction techniques or other mitigation measures described in subsection (6)(b) may not include building regulations as defined in 50-60-101 other than those identified by the department of labor and industry as provided in 50-60-901. (7) The zoning regulations and map must mitigate the hazards created by development in areas located within the floodway of a flood of 100-year frequency, as defined by Title 76, chapter 5, or determined to be subject to flooding by the governing body. If the hazards cannot be mitigated, the zoning regulations and map must identify those areas where future development is limited or prohibited. (8) The zoning regulations must allow for the continued use of land or buildings legal at the time that any zoning regulation, map, or amendment thereto is adopted, but the local government may provide grounds for discontinuing nonconforming uses based on changes to or abandonment of the use of the land or buildings after the adoption of a zoning regulation, map, or amendment. Section 19. Encouragement of development of housing. (1) The zoning regulations authorized in [section 18] must include a minimum of five of the following housing strategies, applicable to the majority of the area, where residential development is permitted in the jurisdictional area: (a) allow, as a permitted use, for at least a duplex where a single-unit dwelling is permitted; (b) zone for higher density housing near transit stations, places of employment, higher education facilities, and other appropriate population centers, as determined by the local government; (c) eliminate or reduce off-street parking requirements to require no more than one parking space per dwelling unit; (d) eliminate impact fees for accessory dwelling units or developments that include multi-unit dwellings or reduce the fees by at least 25%; (e) allow, as a permitted use, for at least one internal or detached accessory dwelling unit on a lot with a single-unit dwelling occupied as a primary residence; (f) allow for single-room occupancy developments; (g) allow, as a permitted use, a triplex or fourplex where a single-unit dwelling is permitted; 164 - 2023 68th Legislature 2023 SB0382 - 23 - Authorized Print Version – SB 382 ENROLLED BILL (h) eliminate minimum lot sizes or reduce the existing minimum lot size required by at least 25%; (i) eliminate aesthetic, material, shape, bulk, size, floor area, and other massing requirements for multi-unit dwellings or mixed-use developments or remove at least half of those requirements; (j) provide for zoning that specifically allows or encourages the development of tiny houses, as defined in Appendix Q of the International Residential Code as it was printed on January 1, 2023; (k) eliminate setback requirements or reduce existing setback requirements by at least 25%; (l) increase building height limits for dwelling units by at least 25%; (m) allow multi-unit dwellings or mixed-use development as a permitted use on all lots where office, retail, or commercial are primary permitted uses; or (n) allow multi-unit dwellings as a permitted use on all lots where triplexes or fourplexes are permitted uses. (2) If a local government's existing zoning ordinance adopted pursuant to Title 76, chapter 2, before [the effective date of this act] does not contain a zoning regulation that is listed as a regulation to be eliminated or reduced in subsection (1), that strategy is considered adopted by the local government. (3) If the adoption of a housing strategy allowed in subsection (1) subsumes another housing strategy allowed in subsection (1), only one strategy may be considered to have been adopted by the local government. Section 20. Limitations on zoning authority. (1) A local government acting pursuant to [sections 18 through 24] may not: (a) treat manufactured housing units differently from any other residential units; (b) include in a zoning regulation any requirement to: (i) pay a fee for the purpose of providing housing for specified income levels or at specified sale prices; or (ii) dedicate real property for the purpose of providing housing for specified income levels or at specified sale prices, including a payment or other contribution to a local housing authority or the reservation of real property for future development of housing for specified income levels or specified sale prices; (c) prevent the erection of an amateur radio antenna at heights and dimensions sufficient to 165 - 2023 68th Legislature 2023 SB0382 - 24 - Authorized Print Version – SB 382 ENROLLED BILL accommodate amateur radio service communications by a person who holds an unrevoked and unexpired official amateur radio station license and operator's license, "technician" or higher class, issued by the federal communications commission of the United States; (d) establish a maximum height limit for an amateur radio antenna of less than 100 feet above the ground; (e) subject to subsection (2) and outside of incorporated municipalities, prevent the complete use, development, or recovery of any mineral, forest, or agricultural resources identified in the land use plan, except that the use, development, or recovery may be reasonably conditioned or prohibited within residential zones; (f) except as provided in subsection (3), treat the following differently from any other residential use of property: (i) a foster home, kinship foster home, youth shelter care facility, or youth group home operated under the provisions of 52-2-621 through 52-2-623, if the home or facility provides care on a 24-hour-a-day basis; (ii) a community residential facility serving eight or fewer persons, if the facility provides care on a 24-hour-a-day basis; or (iii) a family day-care home or a group day-care home registered by the department of public health and human services under Title 52, chapter 2, part 7; (g) except as provided in subsection (3), apply any safety or sanitary regulation of the department of public health and human services or any other agency of the state or a political subdivision of the state that is not applicable to residential occupancies in general to a community residential facility serving 8 or fewer persons or to a day-care home serving 12 or fewer children; or (h) prohibit any existing agricultural activities or force the termination of any existing agricultural activities outside the boundaries of an incorporated city, including agricultural activities that were established outside the corporate limits of a municipality and thereafter annexed into the municipality. (2) Regulations that condition or prohibit uses pursuant to subsection (1)(e) must be in effect prior to the filing of a permit application or at the time a written request is received for a preapplication meeting pursuant to 82-4-432. (3) Except for a day-care home registered by the department of public health and human services, 166 - 2023 68th Legislature 2023 SB0382 - 25 - Authorized Print Version – SB 382 ENROLLED BILL a local government may impose zoning standards and conditions on any type of home or facility identified in subsections (1)(f) and (1)(g) if those zoning standards and conditions do not conflict with the requirements of subsections (1)(f) and (1)(g). Section 21. Adoption and amendment of zoning regulations. (1) (a) The governing body shall adopt or amend a zoning regulation or map only after consideration by and on the recommendation of the planning commission. (b) An amendment to an adopted zoning regulation or map may be initiated: (i) by majority vote of the governing body; (ii) on petition of at least 15% of the electors of the local government jurisdiction to which the regulations apply, as registered at the last general election; or (iii) by a property owner, as related to an application for any zoning, subdivision, or other land use permit or approval. (2) Prior to making a recommendation to the governing body to adopt or amend a zoning regulation or map, the planning commission shall: (a) provide public notice and participation in accordance with [section 6]; (b) accept, consider, and respond to public comment on the proposed zoning regulation, map, or amendment. All public comment must be part of the administrative record transmitted to the governing body. (c) make a preliminary determination as to whether the zoning regulation and map as proposed or as amended would be in substantial compliance with the land use plan, including whether the zoning regulation or map: (i) accommodates the projected needed housing types identified in [section 10]; (ii) contains five or more specific strategies from [section 19] to encourage the development of housing within the jurisdiction; (iii) reflects allowable uses and densities in areas that may be adequately served by public safety, emergency, utility, transportation, education, and any other local facilities or services identified by the local government in [section 11]; (iv) allows sufficient area for existing, new, or expanding commercial, industrial, and institutional 167 - 2023 68th Legislature 2023 SB0382 - 26 - Authorized Print Version – SB 382 ENROLLED BILL enterprises the local government has identified in [section 12] for targeted economic growth in the jurisdiction; (v) protects and maximizes the potential use of natural resources within the area, as identified in [section 13]; (vi) minimizes or avoids impacts to the natural environment within the area, as identified in [section 13]; and (vii) avoids or minimizes dangers associated with natural hazards in the jurisdiction, as identified in [section 13]; and (d) preliminarily determine whether the proposed zoning regulation, map, or amendment results in new or increased impacts to or from local facilities, services, natural resources, natural environment, or natural hazards from those previously described and analyzed in the assessment conducted for the land use plan. (3) If the planning commission finds new or increased impacts from the proposed regulation, map, or amendment, as provided in subsection (2)(d), the local government shall collect additional data and conduct additional analysis necessary to provide the planning commission and the public with the opportunity to comment on and consider all potential impacts resulting from adoption of the zoning regulation, map, or amendment. (4) After meeting the requirements of subsections (2) and (3), the planning commission shall make a final recommendation to the governing body to approve, modify, or reject the proposed zoning regulation, map, or amendment. (5) (a) The governing body shall consider each zoning regulation, map, or amendment that the planning commission recommends to the governing body. (b) After providing public notice and participation in accordance with [section 6], the governing body may adopt, adopt with revisions the governing body considers appropriate, or reject the zoning regulation, map, or amendment as proposed by the planning commission. (c) The governing body may not condition an amendment to a zoning regulation or map. (d) The governing body may not adopt or amend a zoning regulation or map unless the governing body finds that: (i) the regulation, map, or amendment is in substantial compliance with the land use plan; and (ii) the impacts resulting from development in substantial compliance with the proposed zoning 168 - 2023 68th Legislature 2023 SB0382 - 27 - Authorized Print Version – SB 382 ENROLLED BILL regulation, map, or amendment have been made available for public review and comment and have been fully considered by the governing body. (6) After the zoning regulation, map, or amendment has been adopted by the governing body, there is a presumption that: (a) all permitting in substantial compliance with the zoning regulation, map, or amendment is in substantial compliance with the land use plan; and (b) the public has been provided a meaningful opportunity to participate. Section 22. Effect on zoning regulations and map. (1) After the adoption of a zoning regulation, map, or amendment pursuant to [section 21], any application proposing development of a site is subject to the process set forth in this section. (2) (a) When a proposed development lies entirely within an incorporated city, or is proposed for annexation into the city, the application must be submitted to and approved by the city. (b) Except as provided in subsections (2)(a) or (2)(c), when a proposed development lies entirely in an unincorporated area, the application must be submitted to and approved by the county. (c) If a proposed development lies within an area subject to increased growth pressures, higher development densities, or other urban development influences identified by either jurisdiction in [section 14], the jurisdiction shall provide other impacted jurisdictions the opportunity to review and comment on the application. (d) If the proposed development lies partly within an incorporated city, the application and materials must be submitted to and approved by both the city and the county governing bodies. (3) Zoning compliance permits and other ministerial permits may be issued by the planning administrator or the planning administrator's designee without any further review or analysis by the governing body, except as provided in [section 37]. (4) If a proposed development, with or without variances or deviations from adopted standards, is in substantial compliance with the zoning regulations or map and all impacts resulting from the development were previously analyzed and made available for public review and comment prior to the adoption of the land use plan, zoning regulation, map, or amendment thereto, the application must be approved, approved with conditions, or denied by the planning administrator and is not subject to any further public review or comment, 169 - 2023 68th Legislature 2023 SB0382 - 28 - Authorized Print Version – SB 382 ENROLLED BILL except as provided in [section 37]. (5) (a) If a proposed development, with or without variances or deviations from adopted standards, is in substantial compliance with the zoning regulations and map but may result in new or significantly increased potential impacts that have not been previously identified and considered in the adoption of the land use plan or zoning regulations, the planning administrator shall proceed as follows: (b) request that the applicant collect any additional data and perform any additional analysis necessary to provide the planning administrator and the public with the opportunity to comment on and consider the impacts identified in subsection (5)(a); (c) collect any additional data or perform additional analysis the planning administrator determines is necessary to provide the local government and the public with the opportunity to comment on and consider the impacts identified in subsection (5)(a); and (d) provide notice of a 15-business day written comment period during which the public has the reasonable opportunity to participate in the consideration of the impacts identified in subsection (5)(a). (6) (a) Any additional analysis or public comment on a proposed development described in subsection (5) must be limited to only any new or significantly increased impacts potentially resulting from the proposed development, to the extent the impact was not previously identified or considered in the adoption or amendment of the land use plan or zoning regulations. (b) The planning administrator shall approve, approve with conditions, or deny the application. The planning administrator's decision is final and no further action may be taken except as provided in [section 37]. (7) If an applicant proposes to develop a site in a manner or to an extent that the development is not in substantial compliance with the zoning regulations or map, the applicant shall propose an amendment to the regulations or map and follow the process provided for in [section 21]. Section 23. Zoning and annexation. (1) A municipality shall review and consider a proposed annexation in conjunction with the zoning regulations for the property to be annexed adopted pursuant to [section 18(1)(c)] following the procedures set forth in [section 22]. (2) The joint public process authorized in subsection (1) fulfills the notice and public hearing requirements for a proposed annexation required in Title 7, chapter 2, parts 42 through 47. 170 - 2023 68th Legislature 2023 SB0382 - 29 - Authorized Print Version – SB 382 ENROLLED BILL Section 24. Interim zoning ordinances. (1) A local government, to protect the public safety, health, and welfare and without following the procedures otherwise required prior to adopting a zoning regulation, may adopt an interim zoning ordinance as an urgency measure to regulate or prohibit uses that may conflict with a zoning proposal that the governing body is considering or studying or intends to study within a reasonable time. (2) Before adopting an interim zoning ordinance, the governing body shall first hold a public hearing upon notice reasonably designed to inform all affected parties. A notice must be published in a newspaper of general circulation at least 7 days before the public hearing. (3) An interim zoning ordinance takes effect immediately on passage and approval after first reading and may be in effect no longer than 1 year from the date of its adoption. (4) A local government may not act under the authority provided for in this section until the local government has adopted a land use plan and zoning regulations pursuant to [sections 1 through 38]. Section 25. Authority to adopt local subdivision regulations -- limitations. (1) Within its respective jurisdiction, a local government shall regulate the creation of lots in substantial compliance with its adopted land use plan and zoning regulations by adopting subdivision regulations. (b) The governing body of a county or city has the authority to adopt subdivision regulations in accordance with [sections 25 through 34] by an ordinance that substantially complies with 7-5-103 through 7-5- 107. (c) A municipality shall adopt subdivision regulations for those portions of the jurisdictional area outside the boundaries of the municipality that the governing body anticipates may be annexed into the municipality over the next 20 years. Unless otherwise agreed to by the applicable jurisdictions, subdivision regulations on property outside the municipal boundaries may not apply or be enforced until the areas are annexed or being annexed into the municipality. (2) The subdivision regulations must provide a process for the application and consideration of subdivision exemptions, certificates of survey, preliminary plats, and final plats as necessary for the implementation of [sections 1 through 38]. 171 - 2023 68th Legislature 2023 SB0382 - 30 - Authorized Print Version – SB 382 ENROLLED BILL (3) (a) A local governing body may not require, as a condition for approval of a subdivision under this [sections 25 through 34]: (i) the payment of a fee for the purpose of providing housing for specified income levels or at specified sale prices; or (ii) the dedication of real property for the purpose of providing housing for specified income levels or at specified sale prices. (b) A dedication of real property prohibited in subsection (3)(a)(ii) includes a payment or other contribution to a local housing authority or the reservation of real property for future development of housing for specified income levels or specified sale prices. (4) The local governing body may not change, in the subdivision regulations or in the process for subdividing, any timelines or procedural requirements for an application to subdivide other than provided for in [sections 25 through 34]. Section 26. Exemptions to subdivision review. (1) The following divisions of land, if made in substantial compliance with zoning regulations adopted pursuant to [sections 18 through 24], are not subject to the requirements of [sections 1 through 38]: (a) subject to subsection (2), the creation of four or fewer new lots or parcels from an original lot or parcel: (i) by order of a court of record in this state; (ii) by operation of law; or (iii) that, in the absence of agreement between the parties to a sale, could be created by court order in this state pursuant to the law of eminent domain, Title 70, chapter 30; (b) subject to subsection (3), the creation of a lot to provide security for mortgages, liens, or trust indentures for the purpose of construction, improvements to the land being divided, or refinancing, if the land that is divided is not conveyed to any entity other than the financial or lending institution to which the mortgage, lien, or trust indenture was given or to a purchaser upon foreclosure of the mortgage, lien, or trust indenture; (c) the creation of an interest in oil, gas, minerals, or water that is severed from the surface ownership of real property; 172 - 2023 68th Legislature 2023 SB0382 - 31 - Authorized Print Version – SB 382 ENROLLED BILL (d) the creation of cemetery lots; (e) the reservation of a life estate on a portion of a tract of record; (f) the lease or rental of a portion of a tract of record for farming and agricultural purposes; (g) the division of property over which the state does not have jurisdiction; (h) the creation of rights-of-way or utility sites; (i) the creation of condominiums, townhomes, townhouses, or conversions, as those terms are defined in 70-23-102, when any applicable park dedication requirements as set forth in [sections 18 through 24] are complied with; (j) the lease or rental of contiguous airport-related land owned by a city, a county, the state, or a municipal or regional airport authority; (k) subject to subsection (4), a division of state-owned land, unless the division creates a second or subsequent residential parcel from a single tract for sale, rent, or lease after July 1, 1974; (l) the creation of lots by deed, contract, lease, or other conveyance executed prior to July 1, 1974; (m) the relocation of common boundary lines between or aggregations of adjoining properties that does not result in an increase in the number of lots; (n) a single gift or sale in each county to each member of the landowner's immediate family; or (o) subject to subsection (5), the creation of lots by deed, contract, lease, or other conveyance in which the landowner enters into a covenant with the governing body that runs with the land that provides that the divided land must be used exclusively for agricultural purposes. (2) Before a court of record orders a division of land under subsection (1)(a), the court shall notify the governing body of the pending division and allow the governing body to present written comment on the division. (3) A transfer of divided land by the owner of the property at the time that the land was divided to any party other than those identified in subsection (1)(b) subjects the division of land to the requirements of [sections 1 through 38]. (4) Instruments of transfer of land that is acquired for state highways may refer by parcel and project number to state highway plans that have been recorded in compliance with 60-2-209 and are exempted 173 - 2023 68th Legislature 2023 SB0382 - 32 - Authorized Print Version – SB 382 ENROLLED BILL from the surveying and platting requirements of [sections 1 through 38]. If the parcels are not shown on highway plans of record, instruments of transfer of the parcels must be accompanied by and refer to appropriate certificates of survey and plats when presented for recording. (5) The governing body, in its discretion, may revoke the covenant provided for in subsection (1)(o) without subdivision review if the original lot lines are restored through aggregation of the covenanted land prior to or in conjunction with the revoking of the covenant. Section 27. Adoption and amendment of subdivision regulations. (1) (a) The governing body shall adopt or amend subdivision regulations only after consideration by and on the recommendation of the planning commission. (b) An amendment to adopted subdivision regulations may be initiated: (i) by majority vote of the governing body; (ii) on petition of at least 15% of the electors of the local government jurisdiction to which the regulations apply, as registered at the last general election; or (iii) by a property owner, as related to an application for any zoning, subdivision, or other land use permit or approval. (2) Prior to making a recommendation to the governing body to adopt or amend subdivision regulations, the planning commission shall: (a) provide public notice and participation in accordance with [section 6]; (b) accept, consider, and respond to public comment on the proposed subdivision regulation or amendment to a subdivision regulation. All public comment must be part of the administrative record transmitted to the governing body. (c) make a preliminary determination as to whether the subdivision regulation or amendment to a subdivision regulation is in substantial compliance with the land use plan and zoning regulations, including whether the regulation or amendment: (i) enables the development of projected needed housing types identified in the land use plan and zoning regulations; (ii) reflects applicable strategies from the land use plan and zoning regulations to encourage the 174 - 2023 68th Legislature 2023 SB0382 - 33 - Authorized Print Version – SB 382 ENROLLED BILL development of housing within the jurisdiction; (iii) facilitates the adequate provision of public safety, emergency, utility, transportation, education, and any other local facilities or services for proposed development, as identified in the land use plan and zoning regulations; (iv) reflects standards that provide for existing, new, or expanding commercial, industrial, and institutional enterprises identified in the land use plan and zoning regulations for economic growth; (v) protects and maximizes the potential use of natural resources within the area, as identified in the land use plan and zoning regulations; (vi) contains standards that minimize or avoid impacts to the natural environment within the area, as identified in the land use plan and zoning regulations; and (vii) contains standards that avoid or minimize dangers associated with natural hazards in the jurisdiction, as identified in the land use plan and zoning regulations; and (d) preliminarily determine whether the proposed subdivision regulation or amendment to a subdivision regulation results in new or increased potential impacts to or from local facilities, services, natural resources, natural environment, or natural hazards from those previously described and analyzed in the assessments conducted for the land use plan and zoning regulations. (3) If the planning commission finds new or increased potential impacts from the proposed regulation or amendment to a regulation pursuant to subsection (2)(d), the local government shall collect additional data and conduct additional analysis necessary to provide the planning commission and the public with the opportunity, pursuant to [section 6], to comment on and consider all potential impacts resulting from adoption of the subdivision regulation or amendment to a subdivision regulation. (4) After meeting the requirements of subsection (2), the planning commission shall make a final recommendation to the governing body to approve, modify, or reject the proposed subdivision regulation or amendment to a subdivision regulation. (5) (a) The governing body shall consider each subdivision regulation or amendment to a subdivision regulation that the planning commission recommends to the governing body. (b) After providing public notice and participation in accordance with [section 6], the governing body may adopt, adopt with revisions that the governing body considers appropriate, or reject the subdivision 175 - 2023 68th Legislature 2023 SB0382 - 34 - Authorized Print Version – SB 382 ENROLLED BILL regulation or amendment to a subdivision regulation as proposed by the planning commission. (c) The governing body may not adopt or amend a subdivision regulation unless the governing body finds: (i) the subdivision regulation or amendment to a subdivision regulation is in substantial compliance with the land use plan and zoning regulations; and (ii) the impacts resulting from development in substantial compliance with the proposed subdivision regulation or amendment to a subdivision regulation have been made available for public review and comment, which have been fully considered by the governing body. (6) After the subdivision regulation or amendment to a subdivision regulation has been adopted by the governing body, there is a presumption that: (a) all subdivisions in substantial compliance with the adopted regulation or amendment are in substantial compliance with the land use plan and zoning regulations; and (b) the public has been provided a meaningful opportunity to participate. Section 28. Contents of local subdivision regulations. (1) The subdivision regulations adopted under [sections 25 through 34] are limited to the following requirements: (a) the date the regulations initially become effective under [sections 1 through 38] and the effective dates and the ordinance numbers for all subsequent amendments; (b) design standards for all subdivisions in the jurisdiction, which may be incorporated by reference or may be based on the information and analysis contained in the land use plan and zoning regulations, including: (i) standards for grading and erosion control; (ii) standards for the design and arrangement of lots, streets, and roads; (iii) standards for the location and installation of public utilities, including water supply and sewage and solid waste disposal; (iv) standards for the provision of other public improvements; and (v) legal and physical access to all lots; (c) when a subdivision creates parcels with lot sizes averaging less than 5 acres, a requirement 176 - 2023 68th Legislature 2023 SB0382 - 35 - Authorized Print Version – SB 382 ENROLLED BILL that the subdivider: (i) reserve all or a portion of the appropriation water rights owned by the owner of the subject property, transfer the water rights to a single entity for use by landowners within the subdivision who have a legal right to the water, and reserve and sever any remaining surface water rights from the land; (ii) if the land to be subdivided is subject to a contract or interest in a public or private entity formed to provide the use of a water right on the subdivision lots, establish a landowner's water use agreement that is administered through a single entity and that specifies administration and the rights and responsibilities of landowners within the subdivision who have a legal right and access to the water; or (iii) reserve and sever all surface water rights from the land; (d) except as provided in subsection (2), a requirement that the subdivider establish ditch easements that: (i) are in locations of appropriate topographic characteristics and sufficient width to allow the physical placement and unobstructed maintenance of open ditches or belowground pipelines for the delivery of water for irrigation to persons and lands legally entitled to the water under an appropriated water right or permit of an irrigation district or other private or public entity formed to provide for the use of the water right on the subdivision lots; (ii) unless otherwise provided for under a separate written agreement or filed easement, provide for the unobstructed use and maintenance of existing water delivery ditches, pipelines, and facilities in the subdivision that are necessary to convey water through the subdivision to lands adjacent to or beyond the subdivision boundaries in quantities and in a manner that are consistent with historic and legal rights; (iii) are a sufficient distance from the centerline of the ditch to allow for construction, repair, maintenance, and inspection of the ditch; and (iv) prohibit the placement of structures or the planting of vegetation other than grass within the ditch easement without the written permission of the ditch owner; (e) criteria that the planning administrator must use to determine whether a proposed method of disposition using the exemptions provided in [sections 1 through 38] is an attempt to evade the requirements of [sections 1 through 38]; (f) a list of the materials that must be included in order for the application to be determined 177 - 2023 68th Legislature 2023 SB0382 - 36 - Authorized Print Version – SB 382 ENROLLED BILL complete; (g) subject to subsection (4), identification of circumstances or conditions that may necessitate the denial of any or specific types of development, such as unmitigable natural hazards, insufficient water supply, inadequate drainage, lack of access, inadequate public services, or the excessive expenditure of public funds for the supply of the services; (h) subject to subsection (5), a list of public utilities and agencies of local, state, and federal government that the local government must seek input from during review of an application and for what information or analysis; or (i) subject to subsection (6), requirements for the dedication of land, cash-in-lieu thereof, or a combination of both for parks and recreation purposes, not to exceed 0.03 acres per dwelling unit. (2) A land donation under this section may be inside or outside of the subdivision. (3) The regulations may not require ditch easements if: (a) the average lot size is 1 acre or less and the subdivider provides for disclosure, in a manner acceptable to the governing body, that adequately notifies potential buyers of lots that are classified as irrigated land that the lots may continue to be assessed for irrigation water delivery even though the water may not be deliverable; or (b) the water rights are removed or the process has been initiated to remove the water rights from the subdivided land through an appropriate legal or administrative process and the removal or intended removal is denoted on the preliminary plat. If removal of water rights is not complete upon filing of the final plat, the subdivider shall provide written notification to prospective buyers of the intent to remove the water right and shall document that intent, when applicable, in agreements and legal documents for related sales transactions. (4) (a) The regulations must prohibit development in circumstances or conditions identified in subsection (1)(g) unless the hazards or impacts may be eliminated or overcome by approved construction techniques or other mitigation measures identified in the subdivision regulations. (b) Approved construction techniques or other mitigation measures described in subsection (4)(a) may not include building regulations as defined in 50-60-101 other than those identified by the department of labor and industry as provided in 50-60-901. (5) If a proposed subdivision is situated within a rural school district, as described in 20-9-615, the 178 - 2023 68th Legislature 2023 SB0382 - 37 - Authorized Print Version – SB 382 ENROLLED BILL local government shall provide a copy of the application and preliminary plat to the school district. (6) (a) A park dedication may not be required for: (i) land proposed for subdivision into parcels larger than 5 acres; (ii) subdivision into parcels that are all nonresidential; (iii) a subdivision in which parcels are not created, except when that subdivision provides multiple permanent spaces for recreational camping vehicles, mobile homes, or condominiums; or (iv) a subdivision in which only one additional parcel is created. (b) Subject to the approval of the local governing body and acceptance by the school district trustees, a subdivider may dedicate a land donation provided in subsection (6)(a) to a school district to be used for school facilities or buildings. Section 29. Local review procedure for divisions of land. (1) An applicant may request a preapplication submittal and response from the planning administrator prior to submitting a subdivision application. The preapplication review must take place no more than 30 business days from the date that the planning administrator receives a written request for a preapplication review from the subdivider. (2) On receipt of an application for an exemption from subdivision review under [section 26] that contains all materials and information required by the governing body under subsection (5), the local government: (a) shall approve or deny the application within 20 business days; (b) may not impose conditions on the approval of an exemption from subdivision review except for conditions necessary to ensure compliance with the survey requirements of [section 33(1)]; and (c) may require the certificate of survey to be reviewed for errors and omissions in calculation or drafting by an examining land surveyor before filing with the county clerk and recorder. The examining land surveyor shall certify compliance in a printed or stamped certificate signed by the surveyor on the certificate of survey. A professional land surveyor may not act as an examining land surveyor in regard to a certificate of survey in which the surveyor has a financial or personal interest. (3) (a) When a proposed subdivision lies entirely within an incorporated city or is proposed for annexation into the city, the application and preliminary plat must be submitted to and approved by the city. 179 - 2023 68th Legislature 2023 SB0382 - 38 - Authorized Print Version – SB 382 ENROLLED BILL (b) Except as provided in subsection (3)(c), when a proposed subdivision lies entirely in an unincorporated area, the application and preliminary plat must be submitted to and approved by the county. (c) If the proposed subdivision lies within an area subject to increased growth pressures, higher development densities, or other urban development influences identified by either jurisdiction in [section 14], the jurisdiction shall provide other impacted jurisdictions the opportunity to review and comment on the application. (d) If the proposed subdivision lies partly within an incorporated city, the application and preliminary plat must be submitted to and approved by both the city and the county governing bodies. (4) A subdivision application is considered received on the date the application is delivered to the reviewing agent or agency if accompanied by the review fee. (5) (a) The planning administrator has 20 business days to determine whether the application contains all information and materials necessary to complete the review of the application as set forth in the local subdivision regulations. (b) The planning administrator may review subsequent submissions of the application only for information found to be deficient during the original review of the application under subsection (5)(a). (c) A determination that an application contains sufficient information for review as provided in subsection (5)(a) does not ensure approval or conditional approval of the proposed subdivision and does not limit the ability of the planning administrator to request additional information during the review process. (6) A subdivider may propose a phasing plan for approval with a preliminary plat. The phasing plan must include a phasing plan and map that demonstrates what lots will be included with each phase, what public facilities will be completed with each phase, and the timeline for the proposed phases. (7) (a) If an application proposes a subdivision of a site that, with or without variances or deviations from adopted standards, is in substantial compliance with the zoning and subdivision regulations and all impacts resulting from the development were previously analyzed and made available for public review and comment prior to the adoption of the land use plan, zoning regulations, and subdivision regulations, or any amendment thereto, the planning administrator shall issue a written decision to approve, approve with conditions, or deny the preliminary plat. (b) The application is not subject to any further public review or comment, except as provided in [section 37]. 180 - 2023 68th Legislature 2023 SB0382 - 39 - Authorized Print Version – SB 382 ENROLLED BILL (c) The decision by the planning administrator must be made no later than 15 business days from the date the application is considered complete. (8) (a) If an application proposes subdivision of a site that, with or without variances or deviations from adopted standards, is in substantial compliance with the zoning and subdivision regulations but may result in new or significantly increased potential impacts that have not been previously identified and considered in the adoption of the land use plan, zoning regulations, or subdivision regulations, or any amendments thereto, the planning administrator shall proceed as follows: (i) request the applicant to collect additional data and perform additional analysis necessary to provide the planning administrator and the public with the opportunity to comment on and consider the impacts identified in this subsection (8)(a); (ii) collect additional data or perform additional analysis that the planning administrator determines is necessary to provide the local government and the public with the opportunity to comment on and consider the impacts identified in this subsection (8)(a); and (iii) provide notice of a written comment period of 15 business days during which the public must have a reasonable opportunity to participate in the consideration of the impacts identified in this subsection (8)(a). (b) Any additional analysis or public comment on the proposed development is limited to only new or significantly increased potential impacts resulting from the proposed development to the extent that the impact was not previously identified in the consideration and adoption of the land use plan, zoning regulations, subdivision regulations, or any amendments thereto. (9) Within 30 business days of the end of the written comment period provided in subsection (8)(a)(iii), the planning administrator shall issue a written decision to approve, conditionally approve, or deny a proposed subdivision application. (10) The basis of the decision to approve, conditionally approve, or deny a proposed preliminary plat is based on the administrative record as a whole and a finding that the proposed subdivision: (a) meets the requirements and standards of [sections 1 through 38]; (b) meets the survey requirements provided in [section 33(1)]; (c) provides the necessary easements within and to the proposed subdivision for the location and 181 - 2023 68th Legislature 2023 SB0382 - 40 - Authorized Print Version – SB 382 ENROLLED BILL installation of any planned utilities; and (d) provides the necessary legal and physical access to each parcel within the proposed subdivision and the required notation of that access on the applicable plat and any instrument of transfer concerning the parcel. (11) (a) The written decision must identify each finding required in subsection (10) that supports the decision to approve, conditionally approve, or deny a proposed preliminary plat, including any conditions placed on the approval that must be satisfied before a final plat may be approved. (b) The written decision must identify all facts that support the basis for each finding and each condition and identify the regulations and statutes used in reaching each finding and each condition. (c) When requiring mitigation as a condition of approval, a local government may not unreasonably restrict a landowner's ability to develop land. However, in some instances, the local government may determine that the impacts of a proposed development are unmitigable and preclude approval of the subdivision. (12) The written decision to approve, conditionally approve, or deny a proposed subdivision must: (a) be provided to the applicant; (b) be made available to the public; (c) include information regarding the appeal process; and (d) state the timeframe the approval is in effect. (13) The planning administrator's decision is final, and no further action may be taken except as provided in [section 37]. (14) Any changes to an approved preliminary plat that increases the number of lots or redesigns or rearranges six or more lots must undergo consideration and approval of an amended plat following the requirements of this section. Section 30. Effect of preliminary plat approval. (1) (a) An approved or conditionally approved preliminary plat must be in effect for not more than 5 calendar years and not less than 1 calendar year. (b) At the end of the period, the planning administrator may, at the request of the subdivider, extend the approval once by written agreement. (c) On receipt of a request for an extension, the planning administrator shall determine whether 182 - 2023 68th Legislature 2023 SB0382 - 41 - Authorized Print Version – SB 382 ENROLLED BILL the preliminary plat remains in substantial compliance with the zoning and subdivision regulations. If the preliminary plat is no longer in substantial compliance with the zoning or subdivision regulations, the extension may not be granted. (d) After a preliminary plat is approved, the local government may not impose any additional conditions as a prerequisite to final plat approval if the approval is obtained within the original or extended approval period. (e) Any subsequent requests by the subdivider for extension of the approval must be reviewed and approved by the governing body. (2) An approved or conditionally approved phased preliminary plat must be in effect for 20 calendar years. Section 31. Local review procedure for final plats. (1) The following must be submitted with a final plat application: (a) information demonstrating the final plat conforms to the written decision and all conditions of approval set forth on the preliminary plat; (b) a plat that meets the survey requirements provided in [section 33(1)]; and (c) confirmation the county treasurer has certified that all real property taxes and special assessments assessed and levied on the land to be subdivided have been paid. (2) The final plat may be required to be reviewed for errors and omissions in calculation or drafting by an examining land surveyor before filing with the county clerk and recorder. The examining land surveyor shall certify compliance in a printed or stamped certificate signed by the surveyor on the final plat. A professional land surveyor may not act as an examining land surveyor in regard to a plat in which the surveyor has a financial or personal interest. (3) A final plat application is considered received on the date the application is delivered to the governing body or the agent or agency designated by the governing body if accompanied by the review fee. (4) (a) Within 10 business days of receipt of a final plat, the planning administrator shall determine whether the final plat contains the information required under subsection (1) and shall notify the subdivider in writing. 183 - 2023 68th Legislature 2023 SB0382 - 42 - Authorized Print Version – SB 382 ENROLLED BILL (b) If the planning administrator determines that the final plat does not contain the information required under subsection (1), the planning administrator shall identify the final plat's defects in the notification. (c) The planning administrator may review subsequent submissions of the final plat only for information found to be deficient during the original review of the final plat under subsection (4)(a). (d) A determination that the application for a final plat contains sufficient information for review as provided in subsection (4)(a) does not ensure approval of the final plat and does not limit the ability of the planning administrator to request additional information during the review process. (5) Once a determination is made under subsection (4) that the final plat contains the information required under subsection (1), the governing body shall review and approve or deny the final plat within 20 business days. (6) The subdivider or the subdivider's agent and the governing body or its reviewing agent or agency may mutually agree to extend the review periods provided for in this section. (7) (a) For a period of 5 years after approval of a phased preliminary plat, the subdivider may apply for final plat of any one or more phases following the process set forth in subsections (1) through (6). (b) After 5 years have elapsed since approval of a phased preliminary plat, the planning administrator shall review each remaining phase to determine if a phase may result in new or significantly increased potential impacts that have not been previously identified and considered in the adoption of the land use plan, zoning or subdivision regulations, or review and approval of the phased preliminary plat. If the planning administrator identifies any new or significantly increased potential impacts not previously identified and considered, the planning administrator shall proceed as set forth in [section 29(8)]. (c) If necessary to mitigate impacts identified in subsection (7)(b), the planning administrator may impose conditions on any phase before final plat approval is sought. Section 32. Filing and recordation of plats and certificates of survey. (1) (a) Except as provided in subsection (1)(b), every final plat or certificate of survey must be filed for record with the county clerk and recorder before title to the land may be sold or transferred in any manner. The clerk and recorder of the county may not accept any final plat or certificate of survey for record that has not been approved in accordance with [sections 25 through 34] unless the final plat or certificate of survey is located in an area over which the state 184 - 2023 68th Legislature 2023 SB0382 - 43 - Authorized Print Version – SB 382 ENROLLED BILL does not have jurisdiction. (b) After the preliminary plat of a subdivision has been approved or conditionally approved, the subdivider may enter into contracts to sell lots in the proposed subdivision if all of the following contract conditions are imposed and met: (i) the purchasers of lots in the proposed subdivision make payments to an escrow agent, which must be a bank or savings and loan association chartered to do business in the state of Montana; (ii) the payments made by purchasers of lots in the proposed subdivision may not be distributed by the escrow agent to the subdivider until the final plat of the subdivision is filed with the county clerk and recorder; (iii) if the final plat of the proposed subdivision is not filed with the county clerk and recorder within the approval period of the preliminary plat, the escrow agent shall immediately refund to each purchaser any payments the purchaser has made under the contract; (iv) the county treasurer has certified that no real property taxes assessed and levied on the land to be divided are delinquent; and (v) the following language is conspicuously set out in each contract: "The real property that is the subject of this contract has not been finally platted, and until a final plat identifying the property has been filed with the county clerk and recorder, title to the property may not be transferred in any manner". (2) (a) Subject to subsection (2)(b), no division of land may be made unless the county treasurer has certified that all real property taxes and special assessments assessed and levied on the land to be divided have been paid. (b) (i) If a division of land includes centrally assessed property and the property taxes applicable to the division of land are not specifically identified in the tax assessment, the department of revenue shall prorate the taxes applicable to the land being divided on a reasonable basis. The owner of the centrally assessed property shall ensure that the prorated real property taxes and special assessments are paid on the land being sold before the division of land is made. (ii) The county treasurer may accept the amount of the tax prorated pursuant to this subsection (2)(b) as a partial payment of the total tax that is due. (3) (a) The county clerk and recorder shall maintain an index of all recorded and filed subdivision 185 - 2023 68th Legislature 2023 SB0382 - 44 - Authorized Print Version – SB 382 ENROLLED BILL plats and certificates of survey. (b) The index must list plats and certificates of survey by the quarter section, section, township, and range in which the platted or surveyed land lies and must list the recording or filing numbers of all plats or certificates of survey depicting lands lying within each quarter section. Each quarter section list must be definitive to the exclusion of all other quarter sections. The index must also list the names of all subdivision plats in alphabetical order and the place where filed. (4) The recording of any plat made in compliance with the provisions of [sections 1 through 38] must serve to establish the identity of all lands shown on and being part of the plat. When lands are conveyed by reference to a plat, the plat itself or any copy of the plat properly certified by the county clerk and recorder as being a true copy thereof must be regarded as incorporated into the instrument of conveyance and must be received in evidence in all courts of this state. (5) (a) Any plat prepared and recorded as provided in [sections 25 through 34] may be vacated either in whole or in part as provided by 7-5-2501, 7-5-2502, 7-14-2616(1) and (2), 7-14-2617, 7-14-4114(1) and (2), and 7-14-4115. Upon vacation, the governing body or the district court, as provided in 7-5-2502, shall determine to which properties the title to the streets and alleys of the vacated portions must revert. The governing body or the district court, as provided in 7-5-2502, shall take into consideration: (i) the previous platting; (ii) the manner in which the right-of-way was originally dedicated, granted, or conveyed; (iii) the reasons stated in the petition requesting the vacation; (iv) the parties requesting the vacation; and (v) any agreements between the adjacent property owners regarding the use of the vacated area. The title to the streets and alleys of the vacated portions may revert to one or more of the owners of the properties within the platted area adjacent to the vacated portions. (b) Notwithstanding the provisions of subsection (5)(a), when any poleline, pipeline, or any other public or private facility is located in a vacated street or alley at the time of the reversion of the title to the vacated street or alley, the owner of the public or private utility facility has an easement over the vacated land to continue the operation and maintenance of the public utility facility. 186 - 2023 68th Legislature 2023 SB0382 - 45 - Authorized Print Version – SB 382 ENROLLED BILL Section 33. Survey requirements. (1) Divisions of land under [sections 1 through 38] must follow the uniform standards governing monumentation, certificates of survey, and subdivision plats prescribed and adopted by the board of professional engineers and professional land surveyors. (2) All division of sections into aliquot parts and retracement of lines must conform to United States bureau of land management instructions, and all public land survey corners must be filed in accordance with Title 70, chapter 22, part 1. Engineering plans, specifications, and reports required in connection with public improvements and other elements of the subdivision required by the governing body must be prepared and filed by a registered engineer or a registered land surveyor, as their respective licensing laws allow, in accordance with [sections 25 through 34] and regulations adopted pursuant to [sections 25 through 34]. (3) All divisions of land for sale other than a subdivision created after July 1, 1974, divided into parcels that cannot be described as 1/32 or larger aliquot parts of a United States government section or a United States government lot must be surveyed by or under the supervision of a registered land surveyor. Surveys required under this section must comply with the requirements of subsection (8). (4) Except as provided in 70-22-105, within 180 days of the completion of a survey, the professional land surveyor responsible for the survey, whether the surveyor is privately or publicly employed, shall prepare and submit for filing a certificate of survey in the county in which the survey was made if the survey: (a) provides material evidence not appearing on any map filed with the county clerk and recorder or contained in the records of the United States bureau of land management; (b) reveals a material discrepancy in the map; (c) discloses evidence to suggest alternate locations of lines or points; or (d) establishes one or more lines not shown on a recorded map, the positions of which are not ascertainable from an inspection of the map without trigonometric calculations. (5) A certificate of survey is not required for any survey that is made by the United States bureau of land management, that is preliminary, or that will become part of a subdivision plat being prepared for recording under the provisions of [sections 1 through 38]. (6) It is the responsibility of the governing body to require the replacement of all monuments removed in the course of construction. 187 - 2023 68th Legislature 2023 SB0382 - 46 - Authorized Print Version – SB 382 ENROLLED BILL (7) (a) A registered land surveyor may administer and certify oaths when: (i) it becomes necessary to take testimony for the identification of old corners or reestablishment of lost or obliterated corners; (ii) a corner or monument is found in a deteriorating condition and it is desirable that evidence concerning it be perpetuated; or (iii) the importance of the survey makes it desirable to administer an oath to the surveyor's assistants for the faithful performance of their duty. (b) A record of oaths must be preserved as part of the field notes of the survey and noted on the certificate of survey filed under subsection (4). (8) (a) (i) A surveyor who completes a survey identified in subsection (8)(b) that establishes or defines a section line and creates a parcel that crosses the established or defined section line so that an irrigation district assessment boundary is included in more than one section shall note on the survey the acreage of the farm unit or created parcel in each section. (ii) The surveyor shall notify the appropriate irrigation district of the existence of the survey and the purpose of the survey. (b) The requirements of subsection (8)(a) apply only to surveys for which the surveyor determines that, based on available public records, the survey involves land: (i) traversed by a canal or ditch owned by an irrigation district; or (ii) included in an irrigation district. Section 34. Public improvements and extension of capital facilities. (1) Except as provided in subsections (1)(a) and (1)(c), the governing body shall require the subdivider to complete required improvements within the proposed subdivision prior to the approval of the final plat. (a) (i) In lieu of the completion of the construction of any public improvements prior to the approval of a final plat, the governing body shall, at the subdivider's option, allow the subdivider to provide or cause to be provided a bond or other reasonable security, in an amount and with surety and conditions satisfactory to the governing body, providing for and securing the construction and installation of the improvements within a period specified by the governing body and expressed in the bonds or other security. The governing body shall reduce 188 - 2023 68th Legislature 2023 SB0382 - 47 - Authorized Print Version – SB 382 ENROLLED BILL bond or security requirements commensurate with the completion of improvements. Failure of the local government to require the renewal of a bond does not waive the subdivider's responsibility to complete the required improvements prior to the approval of the final plat. (ii) In lieu of requiring a bond or other means of security for the construction or installation of all the required public improvements under subsection (2)(a)(i), the governing body may enter into a subdivision improvements agreement with the subdivider that provides for an incremental payment, guarantee plan, or other method of completing the necessary improvements to serve the development as set forth in the preliminary plat approval. (b) Approval by the governing body of a final plat prior to the completion of required improvements and without the provision of the security required under subsection (1)(a) is not an act of a legislative body for the purposes of 2-9-111. (c) The governing body may require a percentage of improvements or specific types of improvements necessary to protect public health and safety to be completed before allowing bonding, other reasonable security, or entering into a subdivision improvements agreement for purposes of filing a final plat. The requirement is applicable to approved preliminary plats. (2) (a) A local government may require a subdivider to pay or guarantee payment for part or all of the costs of extending capital facilities related to public health and safety, including but not limited to public roads, sewer lines, water supply lines, and storm drains to a subdivision. The costs must reasonably reflect the expected impacts directly attributable to the subdivision. A local government may not require a subdivider to pay or guarantee payment for part or all of the costs of constructing or extending capital facilities related to education. (b) All fees, costs, or other money paid by a subdivider under this subsection (2) must be expended on the capital facilities for which the payments were required. Section 35. Variances. (1) All land use regulations must include a process for the submission and review of variances. (2) The application for a variance must be for relief from land or building form design standards or subdivision design and improvement standards. 189 - 2023 68th Legislature 2023 SB0382 - 48 - Authorized Print Version – SB 382 ENROLLED BILL (3) Variance applications must be considered and approved or approved with conditions before application or in conjunction with application for a zoning permit or subdivision approval. (4) The granting of a variance must meet all of the following criteria: (a) the variance is not detrimental to public health, safety or general welfare; (b) the variance is due to conditions peculiar to the property, such as physical surroundings, shape, or topographical conditions; (c) strict application of the regulations to the property results in an unnecessary hardship to the owner as compared to others subject to the same regulations and that is not self-imposed; (d) the variance may not cause a substantial increase in public costs; and (e) the variance may not place the property in nonconformance with any other regulations. (5) Additional criteria may apply if the variance is associated with a floodplain or floodway pursuant to the requirements of Title 76, chapter 5. (6) Variance requests must be reviewed and determined by the planning administrator. The planning administrator's decision is final and no further action may be taken except as provided in [section 37]. Section 36. Fees. The governing body may establish reasonable fees to be paid by an applicant for a zoning permit, subdivision application, appeals, or any other review performed by the local government pursuant to [sections 1 through 38] to defray the expense of performing the review. Section 37. Appeals. (1) Appeals of any final decisions made pursuant to [sections 1 through 38] must be made in accordance with this section. (2) For a challenge to the adoption of or amendment to a land use plan, zoning regulation, zoning map, or subdivision regulation, a petition setting forth the basis for the challenge must be presented to the district court within 30 days of the date of the resolution or ordinance adopted by the governing body. (3) (a) Any final administrative land use decision, including but not limited to approval or denial of a zoning permit, preliminary plat or final plat, imposition of a condition on a zoning permit or plat, approval or denial of a variance from a zoning or subdivision regulation, or interpretation of land use regulations or map may be appealed by the applicant or any aggrieved person to the planning commission. 190 - 2023 68th Legislature 2023 SB0382 - 49 - Authorized Print Version – SB 382 ENROLLED BILL (b) An appeal under subsection (3)(a) must be submitted in writing within 15 business days of the challenged decision, stating the facts and raising all grounds for appeal that the party may raise in district court. (c) The planning commission shall hear the appeal de novo. The planning commission is not bound by the decision that has been appealed, but the appeal must be limited to the issues raised on appeal. The appellant has the burden of proving that the appealed decision was made in error. (e) A decision of the planning commission on appeal takes effect on the date when the planning commission issues a written decision. (4) (a) Any final land use decision by the planning commission may be appealed by the applicant, planning administrator, or any aggrieved person to the governing body. (b) An appeal under subsection (4)(a) must be submitted in writing within 15 business days of the challenged decision, stating the facts and raising all grounds for appeal that the party may raise in district court. (c) The governing body shall hear the appeal de novo. The governing body is not bound by the decision that has been appealed, but the appeal must be limited to the issues raised on appeal. The appellant has the burden of proving that the appealed decision was made in error. (d) A decision of the governing body on appeal takes effect on the date when the governing body issues a written decision. (5) (a) No person may challenge in district court a land use decision until that person has exhausted the person's administrative appeal process as provided in this section. (b) Any final land use decision of the governing body may be challenged by presenting a petition setting forth the grounds for review of a final land use decision with the district court within 30 calendar days after the written decision is issued. (c) A challenge in district court to a final land use decision of the governing body is limited to the issues raised by the challenger on administrative appeal. (6) Every final land use decision made pursuant to this section must be based on the administrative record as a whole and must be sustained unless the decision being challenged is arbitrary, capricious, or unlawful. (7) Nothing in [sections 1 through 38] is subject to any provision of Title 2, chapter 4. 191 - 2023 68th Legislature 2023 SB0382 - 50 - Authorized Print Version – SB 382 ENROLLED BILL Section 38. Enforcement and penalties. (1) A local government may, by ordinance, establish civil penalties for violations of any of the provisions of [sections 1 through 38] or of any ordinances adopted under the authority of [sections 1 through 38]. (2) Prior to seeking civil penalties against a property owner, a local government shall provide: (a) written notice, by mail or hand delivery, of each ordinance violation to the address of the owner of record on file in the office of the county recorder; (b) a reasonable opportunity to cure a noticed violation; and (c) a schedule of the civil penalties that may be imposed on the owner for failure to cure the violation before expiration of a time certain. (3) A local government may, in addition to other remedies provided by law, seek: (a) an injunction, mandamus, abatement, or any other appropriate action provided for in law; (b) proceedings to prevent, enjoin, abate, or remove an unlawful building, use, occupancy, or act; or (c) criminal prosecution for violation of any of the provisions of [sections 1 through 38] or of any ordinances adopted under the authority of [sections 1 through 38] as a misdemeanor punishable by a fine not to exceed $500 per day for each violation. (4) In any enforcement action taken under this section or remedy sought thereunder, the parties shall pay their own costs and attorney fees. Section 39. Repealer. The following sections of the Montana Code Annotated are repealed: 7-21-1001. Legislative findings and purpose. 7-21-1002. Definitions. 7-21-1003. Local government regulations -- restrictions. Section 40. Codification instruction. [Sections 1 through 38] are intended to be codified as an integral part of Title 76, and the provisions of Title 76 apply to [sections 1 through 38]. Section 41. Effective date. [This act] is effective on passage and approval. 192 - 2023 68th Legislature 2023 SB0382 - 51 - Authorized Print Version – SB 382 ENROLLED BILL Section 42. Applicability. [This act] applies to local governments that currently meet the population thresholds in [section 5]. - END - 193 I hereby certify that the within bill, SB 382, originated in the Senate. ___________________________________________ Secretary of the Senate ___________________________________________ President of the Senate Signed this _______________________________day of____________________________________, 2023. ___________________________________________ Speaker of the House Signed this _______________________________day of____________________________________, 2023. 194 SENATE BILL NO. 382 INTRODUCED BY F. MANDEVILLE, D. FERN, S. VINTON, M. BERTOGLIO, L. BREWSTER, M. HOPKINS, E. BOLDMAN, G. HERTZ, C. FRIEDEL, J. KARLEN AN ACT CREATING THE MONTANA LAND USE PLANNING ACT; REQUIRING CITIES THAT MEET CERTAIN POPULATION THRESHOLDS TO UTILIZE THE LAND USE PLAN, MAP, ZONING REGULATIONS, AND SUBDIVISION REGULATIONS PROVIDED IN THE ACT; ALLOWING OTHER LOCAL GOVERNMENTS THE OPTION TO UTILIZE THE PROVISIONS OF THE ACT; REQUIRING PUBLIC PARTICIPATION DURING THE DEVELOPMENT, ADOPTION, OR AMENDMENT OF A LAND USE PLAN, MAP, ZONING REGULATION, OR SUBDIVISION REGULATION; PROVIDING STRATEGIES TO MEET POPULATION PROJECTIONS; PROVIDING FOR CONSIDERATION OF FACTORS SUCH AS HOUSING, LOCAL FACILITIES, ECONOMIC DEVELOPMENT, NATURAL RESOURCES, ENVIRONMENT, AND NATURAL HAZARDS WHEN DEVELOPING A LAND USE PLAN, MAP, AND ZONING REGULATION; PROVIDING FOR A PROCEDURE TO REVIEW SUBDIVISIONS AND APPROVE FINAL PLATS; PROVIDING FOR A LOCAL GOVERNING BODY TO COLLECT FEES; PROVIDING AN APPEALS PROCESS, ENFORCEMENT MECHANISMS, AND PENALTIES; PROVIDING DEFINITIONS; REPEALING SECTIONS 7-21-1001, 7-21-1002, AND 7-21-1003, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE. 195 Unified Development Code, Chapter 38 Bozeman Municipal Code, Replacement Public meetings for introduction and overview of draft document and map July 25th – City Commission introduction and outreach overview – staff special presentation only Aug 7th – CDB introduction and outreach overview – staff special presentation only Aug 23rd -24th – Two in-person open houses for public overview and questions/answers August 28th – Code Connect for remote overview and questions/answers Public hearings as currently scheduled Sept 11th Community Development Board – Overview presentation and official start Sept 25th Community Development Board public hearing Oct 2nd Community Development Board direction on Text Oct 16th Community Development Board direction on map (vote and recommendation on both map and text) Oct 24th City Commission – Overview presentation and official start Nov 14th City Commission public hearing Nov 21st City Commission direction on text Nov 28th City Commission direction and provisional adoption text and map Dec 19th City Commission final adoption – text and map Key past public engagement timeline and resources 8/11/2022 Engage Bozeman website for project goes live - https://engage.bozeman.net/udc 9/13/2022 City Commission Work Session #1 Meeting minutes [External Link PDF], meeting video beginning at 1:49:24 [External Link Video] – Formatting and layout recommendations and direction 10/18/2022 City Commission Work Session #2 Meeting minutes [External Link PDF], meeting video beginning at 2:30:23 [External Link Video] – Residential districts recommendations and direction 11/15/2022 City Commission Work Session #3 Meeting minutes [External Link PDF], meeting video beginning at 3:11:40 [External Link Video] – Sustainability recommendations and direction 2/14/2023 City Commission Work Session #4 Meeting video beginning at 3:31:30 [External Link Video] – Commercial district and transitions 2/28/2023 City Commission Work Session #5 Meeting video beginning at 2:09:50 [External Link Video] – Discussion and direction on non-residential parking amendments 4/11/2023 City Commission Work Session #6 196 Unified Development Code, Chapter 38 Bozeman Municipal Code, Replacement Meeting video beginning at 40:29 [External Link Video] – Discussion and direction on transportation amendments 10/27/2022 Code Connect #1 Public e-meeting [External Link] to present summary of Commission direction on residential districts and have public question and answer. 12/1/2022 Code Connect #2 Public e-meeting [External Link] to present summary of Commission direction on sustainability and have public question and answer. 3/28/2023 Code Connect #3 Public e-meeting [External Link] to present summary of Commission direction on commercial zoning districts and district transitions and have public question and answer. 4/20/2023 Code Connect #4 Public e-meeting [External Link] to present summary of Commission direction regarding parking and transportation and have public question and answer. 197 Building Our Future Together UPDATING THE DEVELOPMENT CODE Flip this page over to learn more about Bozeman’s ongoing efforts to update the development code! This project implements community priorities set in adopted city plans and new state laws. 198 Streets, utilities, land use, parks, our economy, and sustainability all require thoughtful planning. The City of Bozeman’s Unified Development Code (UDC) is the set of rules that tie all of this together and it’s getting updated! In addition to this process, the 2023 state legislature changed the requirements for planning and land use regulation. In order to follow these new state rules, the City of Bozeman is drafting new subdivision and zoning regulations and a new zoning map. The new rules highlight the importance of planning ahead and establishing regulations for development that address community concerns. Public participation at this time is essential. Public participation with individual development projects is now focused on those areas where a proposal does not meet regulations or issues were not identified and considered during creation of regulations. After months of public input, a draft of the updated regulations is available at engage.bozeman.net/udc. There you’ll find more info on the project, a schedule of meetings, and other ways to participate. Check it out and share your thoughts with us! 199 Memorandum REPORT TO:City Commission FROM:Mike Veselik, Economic Development Program Manager Brit Fontenot, Economic Development Director Kira Peters, Assistant City Manager SUBJECT:Resolution 5495 To Increase Permit Fees in the University Residential Parking Permit District and the Bozeman High School Residential Parking Permit District MEETING DATE:July 25, 2023 AGENDA ITEM TYPE:Resolution RECOMMENDATION:I move to approve Resolution 5495 To Increase Permit Fees in the University Residential Parking Permit District and the Bozeman High School Residential Parking Permit District STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND:The City Commission is responsible for establishing permit rates in the University Residential Parking Permit District and the Bozeman High School Parking Permit District. The Transportation Advisory Board voted 5-0 to recommend the City Commission adopt Resolution 5495. The attached staff memo and excel spreadsheet has additional information about the districts and their finances. UNRESOLVED ISSUES:No unresolved issues ALTERNATIVES:No alternatives FISCAL EFFECTS:The city will collect an additional $5 in revenue per permit. If the City sells approximately 1,500 permits between the two districts which would follow recent trends, then the Parking Division would collect $7,500 in additional revenue to close some of the current gap between revenues and expenditures. Attachments: Resolution 5495 MSU and BHS Residential Permit Fees.docx CC Memo--Permit Rates for RPPD and BHS Permit Districts FY24.doc RPPD and BHS FY23 Budget.pdf 200 Report compiled on: June 1, 2023 201 Version February 2023 RESOLUTION 5495 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, to increase permit fees in the University Residential Parking Permit District and the Bozeman High School Residential Parking Permit District WHEREAS,the Residential Parking permit districts were established in Bozeman Municipal Code Sec. 36.04.360 and Sec. 36.04.365 to ensure residents had access to on-street parking in their neighborhoods. WHEREAS,the Parking Commission and City Commission are responsible for establishing permit rates in said districts as stated in in Bozeman Municipal Code Sec. 36.04.360(F) and Sec. 36.04.365(F). WHEREAS, the Parking Program is an enterprise fund and therefore must generate revenue to cover the costs of operating the program. Best practice in the industry is that permit fees pay for operating permit districts and enforcement fines pay for enforcement operations. WHEREAS, the program has seen a decline in the number of permits purchased and rising costs in paying for the operations. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, parking permit fees for all types of permits in both the University Residential Parking Permit District and the Bozeman High School Parking Permit District are increased by $5 to $35 per anuum with a $1.75 service fee included by the software provider. The total cost of a permit for a year is $36.75, PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the _____ day of ___________________, 20____. 202 Version February 2023 ___________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 203 Page 1 of 2 MEMORANDUM REPORT TO:Bozeman City Commission FROM:Mike Veselik, Economic Development Program Manager RE:Resolution 5495 MSU and BHS Residential Permit Fees MEETING DATE:July 11, 2023 AGENDA ITEM: Action Item RECOMMENDATION: Increase the permit fees in the two residential permit districts by $5 to cover increasing costs and falling permit purchases. BACKGROUND: City of Bozeman Parking Division staff held community engagement session with residents of the University Residential Parking Permit District (RPPD) and the Bozeman High School Permit District during Winter 2021. At the time, residents asked for more transparency in the budgeting process for permits in their districts. Staff proposed formulating a new budget for how permit fees are allocated to cover expenditures in the district. The permit fees would only cover the costs of administering the district, not the cost of enforcing the district. Using permit fees for administration and citation fees for enforcement is considered best practice in the parking industry. This year is the second year staff prepared a new budget for the district. It is included in the packet for the Commission’s consideration. The packet includes information about fees collected over the last year and the costs for running the district. RESIDENTIAL PARKING PERMIT DISTRICT FEES: Staff is recommending the City Commission increase permit fees by $5 for FY2024. As reflected in the budget presented, permit sales were below staff’s initial estimates for the 2022-2023 permit cycle. For several years before, staff had tracked declining permit sales, except for an uptick last year. The uptick in permit sales is attributed to a well organized neighborhood association that assists in promoting permit sales, finance staff 204 Page 2 of 2 distributing renewal notices in a timely manner, and parking enforcement officers providing consistent enforcement in the district especially when permit renewals occur. However, this year, sales did not keep up with projections for increases. Staff has included money to develop a comprehensive parking management plan for the city in the recommended FY24 budget. One goal of this plan will be to evaluate both residential parking permit districts. The evaluation would include data collection, community engagement, and a recommendation for how to improve the efficacy and performance of the district. For the cost side of the budget, staff included personnel costs for the parking manager and finance staff who administer the district. Parking staff process more than 2,000 applications for parking permits in only a few weeks during renewal season. Additionally, staff routinely assists residents with parking holidays, permit renewals, and anything else that might arise in relation to the district. Finally, costs also include a portion of the insurance and internal overhead costs the parking division incurs. Staff was able to eliminate the cost of a subscription fee for the software used to administer permits through the transition to Passport. The fee for permits include in a convenience fee of $1.75 added at the time of sale for permits renewed on an annual basis. CONCLUSION: Staff has concluded based on the costs, permit sales, and projected revenue into next year that the permit fees for both the University Residential Parking Permit District and the High School District should increase by $5. The Transportation Advisory Board recommended adoption of the resolution 5-0. 205 FY23 BUDGET REVENUE FY 23 BUDGET FY 23 ACTUAL % EARNED YTD RESIDENTIAL NGHBD. PERMITS 36,743.00$ $30,810.00 84% EMPLOYEE NGBHD. PERMITS 6,000.00$ $5,970.00 100% VISITOR NGBHD. PERMITS 14,730.00$ $8,160.00 55% TOTAL 57,473.00$ 44,940.00$ 78% EXPENDITURE FY23 BUDGET FY23 ACTUAL % SPENT YTD ADMIN - PERSONNEL 52,076.57$ 47,736.86$ 92% ADMIN - OPERATING 16,000.00$ 13,505.20$ 84% TOTAL 68,076.57$ 61,242.06$ 90% Permtis Sold 2023 2022 % Change MSU PERMITS 1333 1241 7% BHS PERMITS 134 147 -9% RESIDENTIAL PARKING PERMIT DISTRICT 206 Memorandum REPORT TO:City Commission FROM:Nicholas Ross, Director of Transportation and Engineering SUBJECT:Ordinance 2142, Provisional Adoption Revising Speed Limits on City- controlled Routes MEETING DATE:July 25, 2023 AGENDA ITEM TYPE:Ordinance RECOMMENDATION:Having reviewed and considered the ordinance, public comment, and staff presentation, I hereby move to provisionally adopt Ordinance 2142, Revising Speed Limits on City-controlled Routes. 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:In support of a City Commission priority to evaluate speed limit reduction in Bozeman, Staff have taken on a project to recommend a new manner of setting safe speeds and adjust speed limits on city-controlled routes accordingly. This initiative delivers on an action item recommended in the Bozeman Streets Are For Everyone (SAFE) safety plan developed in 2022. Staff conducted a Work Session with Commission on March 28, 2023 during which Commission provided guidance on two primary policy decisions. First, Commission recommended Staff move forward with using the Safe Speed Study methodology defined by the National Association of City Transportation Officials (NACTO). Second, Commission recommended Staff focus on speed limit revisions to arterial and collector functional classification routes. Local street speed limits will remain unchanged. NACTO Safe Speed Study methodology was chosen over the more traditional 85th percentile rule. Safe speed methodology uses conflict density and activity level to set context-sensitive speed limits. Conflict density is defined by the frequency of potential conflicting movements, such as intersections and driveways, that occur on a given street. Two primary factors determine conflict density, modal mixing and crossing point density. Modal mixing describes the level of physical separation between varying modes such was walking, biking, and motor vehicles. Crossing point density describes how closely spaced intersections, driveways, and other crossing types ae to one another. Bozeman Municipal Code along with Transportation Master Plan 207 define these characteristics by functional classification route type, allowing consistent speed limits to be defined based on functional classification of roadway. Principal arterials are characterized by low modal mixing and low crossing point density due to walk and bike modes typically separated from traffic with shared uses paths and access spacing requirements of approximately 1/4 mile. Minor arterials and collectors are characterized by moderate modal mixing and moderate crossing point density due to a mix on on-street bike lanes, shared use paths, and traditional sidewalks as well as shorter access spacing requirements. Bozeman's overall population density results in relatively low activity levels on streets of these classifications, and land use decisions for these route types typically result in low curbside demand outside of business districts. Setting consistent speed limits by route type better defines the expectation for users. The combination of these factors result in a recommended safe speed limit of 35mph on principal arterials and 30mph on minor arterials/collectors. These routes exhibit our highest need for speed control as indicated by speed-related crashes resulting in severe injury and fatality. Arterial and collectors routes in dense areas of downtown Bozeman and business districts will remain signed at 25mph. Additionally, Staff has prepared related text adjustments expanding school zones, removing time of day, authorizing the Director of Transportation and Engineering to set park zone speed limits in the future, and codifying recent state-controlled speed limit revisions currently in place. Montana Department of Transportation, Bozeman School District, and Bozeman Police Department have been consulted during this process and concur with the proposed ordinance. The city of Bozeman Transportation Board also voted to approve Resolution 2023-01, Recommending that the Bozeman City Commission Support Ordinance 2142 Setting Safe Speed Limits on Arterial and Collector Streets. If approved, approximately 11 miles of collector and arterial streets will see speed limit reductions and school zone adjustments will be made to 7 schools citywide. UNRESOLVED ISSUES:State-controlled routes must follow a separate process in which city conducts MDT-approved speed studies, submits to MDT for concurrence, and then formally approved by state Transportation Commission. Staff are currently conducting three speed studies within the city along segments of Oak, Baxter, and Kagy. ALTERNATIVES:No action. FISCAL EFFECTS:Ordinance 2142 will require the replacement of approximately 40 existing 208 speed limit signs and the installation of 19 new speed limit signs. The work will be completed by city Signs and Signal Division. The estimated cost for this is $15,025. Attachments: Ord. 2142.pdf Report compiled on: July 13, 2023 209 Version February 2023 Ord 2142 Page 1 of 14 ORDINANCE 2142 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA REVISING SPEED LIMITS ON CITY-CONTROLLED ARTERIAL AND COLLECTOR ROUTES, EXPANDING PARK SPEED ZONE HOURS, AND GRANTING AUTHORITY TO THE DIRECTOR OF TRANSPORTATION AND ENGINEERING TO ESTABLISH PARK SPEED ZONES. WHEREAS, Mont. Const. Art. XI, § 4 mandates to liberally construe the powers of incorporated cities, and Mont. Const. Art. XI, § 6 of the Montana Constitution expressly authorizes a local government unit with self-government powers to exercise any power not prohibited by the constitution, law, or charter; and WHEREAS, the Bozeman City Charter establishes that the City of Bozeman is a local government that has adopted self-government powers which must be liberally construed; and WHEREAS, Strategic Plan 4.2, High Quality Urban Approach, establishes the city’s goal of “continu[ing] to support high-quality planning;” and WHEREAS, pursuant to the City’s Bozeman Streets Are For Everyone Safety Action Plan, reducing motor vehicle speed reduces the risk of severe and fatal crash injuries; and WHEREAS, pursuant to Bozeman Municipal Code Sec. 36.07.010, the director of transportation and engineering may, upon completion of an investigation and consultation with the chief of police, alter speed limits on city-controlled routes; and WHEREAS, in certain instances, Mont. Code Ann. § 61-8-303(6) (2021) permits a local authority to alter speed limits; and WHEREAS, Mont. Code Ann. § 61-8-310 authorizes a local authority to alter speed limits for arterial streets and school zones; and WHEREAS, pursuant to Mont. Code Ann. § 61-8-310(6), the City consulted with Bozeman School District officials about altering the speed limit of school zones; 210 Ordinance No. 2142, Revising Speed Limits Page 2 of 14 WHEREAS, Mont. Code Ann. § 7-14-4102 authorizes a city or town council to establish and regulate speed limits in public parks; and WHEREAS, the Montana State Transportation Commission and the Department of Transportation have jurisdiction over all state highways and highways located on the commission-designated highway system; and WHEREAS, the City is amending its code so that all state highways and highways located on the commission-designated highway system within city limits comply with the speed limits established by the state. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 That Section 36.07.020, Bozeman Municipal Code, will be amended as follows: Sec. 36.07.020. Specific speed restriction areas. A. Subject to the provisions of section 36.07.010, and except in those instances where a lower speed is specified in this article, it shall be prima facie lawful for the driver of a vehicle to operate the same at a speed not exceeding the following, except in any case when such speed would be unsafe due to presently existing conditions: 1. General limit. The speed limit is 25 miles an hour on all streets within the city limits unless otherwise posted. 2. Maximum speed. The maximum speed limit is 4035 miles an hour on any street within the city limits, unless otherwise posted or designated in this article and or as excepted by subsection 3 of this section. 3. Highways. There are various highways within the city limits of the city over which the state transportation commission has authority to establish speed limits. These speed limits are posted by the state department of transportation as authorized in MCA 61-8- 310. It shall be unlawful to operate a motor vehicle at a speed less than 15 miles an hour on any through or arterial highway. 4. Intersections. Speed limits at intersections are 15 miles per hour when: a. Making a right or left hand turn at any intersection of streets; b. Approaching within 50 feet of any intersection of streets when the driver's view is obstructed. A driver's view shall be deemed to be obstructed when, at any time during the last 50 feet of the approach to such intersection, the driver does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the streets entering such intersection for a distance of 200 feet from such intersection; and 211 Ordinance No. 2142, Revising Speed Limits Page 3 of 14 c. At any uncontrolled intersection. 5. Graduated speed zones. There are created in the city graduated speed zones, the limits of which are more particularly described in section 36.07.050, wherein it is unlawful for any operator of any vehicle to drive at a speed greater than the speed stipulated in said section. As provided in section 36.07.010.A.1, graduated speed zones may be established by the city commission by commission resolution. 6. Railway grade crossings. Speed limit is 15 miles an hour when approaching within 15 feet of a grade crossing of any railway when the driver's view is obstructed. A driver's view shall be deemed to be obstructed when at any time during the last 200 feet of the driver's approach to such crossing, the driver does not have a clear and uninterrupted view of such railway crossing and of any traffic on such railway crossing, and of any traffic on such railway for a distance of 400 feet in each direction from such crossing. 7. School speed zones. There are created in the city school speed zones, the limits of which are more particularly described in section 36.07.030, wherein it is unlawful for any operator of any vehicle to drive at a speed greater than the speed established in said section between the hours of 8:00 a.m. and 4:30 p.m. on days or parts of days when school is in session. 8. Public park speed zones. There are created in the city, park speed zones, the limits of which are more particularly described in section 36.07.040, wherein it is unlawful for any operator of any vehicle to drive at a speed greater than the speed established in said section, between the hours of 5:00 a.m. and 11:00 p.m. 8:00 a.m. and 8:00 p.m., on streets immediately adjacent to public parks, when signs are posted giving notice thereof. 9. Curves, grades, alleys and in cemetery. Speed limit is 15 miles an hour when traversing or going around curves, or traversing a grade upon a street when the driver's view is obstructed within a distance of 100 feet along such street or highway in the direction in which the driver is proceeding, in all alleys within the city, and within the Sunset Hills Cemetery. Section 2 That Section 36.07.030, Bozeman Municipal Code, will be amended as follows: Sec. 36.07.030. School speed zones designated. A. In accordance with the provisions of section 36.07.020.A.5, it is unlawful for any operator of any vehicle to drive at a speed greater than that designated below or as designed by a commission resolution pursuant to section 36.07.010.A.1, when such speed limit is properly posted between the hours of 8:00 a.m. and 4:30 p.m. on days or parts of days when school is in session, on the streets or parts of streets specified in the following school speed zones: 1. Bozeman Senior High School speed zone. Speed limit is 15 miles per hour on: All that part of North Eleventh Avenue between West Main Street and a line 300 feet south of the south line of Durston Road; and all that part of West Villard Street between a line 150 feet east of the east line of North Eleventh Avenue and the east line of North 212 Ordinance No. 2142, Revising Speed Limits Page 4 of 14 Eleventh Avenue; and all that part of North Fifteenth Ave between a line 150 feet south of the south line of Beall St and a line 600 feet north of the north line of Beall St.; 2. Hawthorne School speed zone. Speed limit is 15 miles per hour on: All that part of East Lamme Street between a line 150 feet east of the east line of North Church Avenue and a line 150 feet west of the west line of North Rouse Avenue; all that part of East Mendenhall Street between a line 150 feet east of the east line of North Church Avenue and a line 150 feet west of the west line of North Rouse Avenue; all that part of North Church Avenue between a line 150 feet south of the south line of East Mendenhall Street and a line 150 feet north of the north line of East Lamme Street; 3. Irving School speed zone. Speed limit is 15 miles per hour on: All that part of South Eighth Avenue between a line 150 feet south of the south line of West Alderson Street and a line 150 feet north of the north line of West Dickerson Street; all that part of South Ninth Avenue between a line 150 feet south of the south line of West Alderson Street and a line 150 feet north of the north line of West Dickerson Street; all that part of West Alderson Street between a line 150 feet east of the east line of South Eighth Avenue and a line 150 feet west of the west line of South Ninth Avenue; all that part of West Dickerson Street between a line 150 feet east of the east line of South Eighth Avenue and a line 150 feet west of the west line of South Ninth Avenue; 4. Longfellow School speed zone. Speed limit is 15 miles per hour on: All that part of Tracy Avenue between a line 20 feet south of the south line of East Story Street to a line 320 feet north of the north line of East College Street; all that part of East Dickerson Street between the west line of South Tracy Avenue and a line 100 feet west of the west line of East Tracy Avenue; all that part of East Story Street 100 feet east of the east curbline of East Tracy Avenue; 5. Whittier School speed zone. Speed limit is 15 miles per hour on: All that part of West Peach Street between a line 150 feet east of the east line of North Fifth Avenue and a line 150 feet west of the west line of North Sixth Avenue; all that part of Sixth Avenue between the north line of West Peach Street and a line 200 feet north of the north line of West Villard Street; all that part of North Fifth Avenue between a line 150 feet north of the north line of West Peach Street and a line 200 feet north of the north line of West Villard Street; all that part of West Short Street between a line 150 feet west of the west line of North Sixth Avenue and a line 150 feet east of the east line of North Fifth Avenue; all that part of the alley adjacent to and parallel to the south line of the Whittier School grounds in Block 4 of the Violett Addition; 6. Willson School/Bridger Alternative High School speed zone. Speed limit is 15 miles per hour on: All that part of South Third Avenue between the south line of West Main Street and the north line of West Babcock Street; all that part of South Fifth Avenue between the south line of West Main Street and the north line of West Babcock Street; and all that part of W Babcock Street from a line 150 feet west of the west line of South Fifth Avenue to a line 150 feet east of the east line of South Third Avenue; 7. Emily Dickinson School speed zone. Speed limit is 15 miles per hour on: All that part of Annie Street between North 25th Avenue and a line 275 feet west of the east 213 Ordinance No. 2142, Revising Speed Limits Page 5 of 14 boundary of Brentwood Avenue; all that part of North 25th Avenue between Rogers Way and the north property line of the school; and on all that part of Durston Rd from 250 feet east of North Twenty-fifth Avenue to 250 feet west of North Twenty-fifth Avenue; 8. Morning Star School speed zone. Speed limit is 15 miles per hour on: All that part of Arnold Street between the west line of Westridge Drive to the west line of the school propertyand a point 150 east of Bon Ton Avenue; 9. Sacagawea Middle School speed zone. a. Speed limit is 15 miles per hour on: All that part of Cambridge Drive from the west line of South Third Avenue to the west line of the school property; b. Speed limit is 25 miles per hour on all that part of South Third Avenue from 200 feet north of Cambridge Drive to 200 feet south of Dartmouth Drive during days and times of day so noted on the changeable speed limit signs installed on South Third Avenue; 10. Chief Joseph Middle School speed zone. Speed limit is 15 miles per hour on: All that part of Kimberwicke Street between the west line of Ferguson Avenue and a line 300 feet east of Arabian Avenue; and all that part of Ferguson Avenue between the south line of Kimberwicke Street and the north line of Cattail Street; 11. Hyalite School Speed Zone. Speed limit is 2015 miles per hour on: All that part of West Babcock Street from 150 feet east of Sheridan Place to 150 feet west of Yellowstone Avenue. 12. Meadowlark School Speed Zone. a. Speed limit is 15 miles per hour on: All that part of Durston Road from 500 feet east of Flanders Mill Road west to 300 feet east of Cottonwood Road; b. Speed limit is 15 miles per hour on: All that part of Flanders Mill Road from Durston Road north to Sunstone Street. 13. Gallatin High School Speed Zone. a. Speed limit is 20 miles per hour on: All that part of Oak Street from Flanders Mill Road to Cottonwood Road. b. Speed limit is 20 miles per hour on: All that part of Cottonwood Road from Oak Street to Glenwood Drive. c. Speed limit is 15 miles per hour on: All that part of Annie Street between Cottonwood Road and Flanders Mill Road. d. Speed limit is 15 miles per hour on: All that part of Flanders Mill Road from Annie Street to Tanzanite Drive. Section 3 That Section 36.07.040, Bozeman Municipal Code, will be amended as follows: 214 Ordinance No. 2142, Revising Speed Limits Page 6 of 14 Sec. 36.07.030. School speed zones designated. Sec. 36.07.040. Public park speed zones. A. In accordance with the provisions of section 36.07.020.A.8, or any applicable subsequent commission resolution, pursuant to section 36.07.010.A.3, it is unlawful for any operator of any vehicle to drive at a speed greater than 15 miles per hour unless otherwise specifically designated between the hours of 8:00 a.m. and 8:00 p.m. 5:00 a.m. and 11:00 p.m. on the streets or parts of streets immediately adjacent to all the applicable public parks., as specified in the following public parks speed zones: The director of transportation and engineering is authorized to designate park speed zones. 1. Aasheim Fields Park speed zone. All that part of Fowler Avenue from the south line of West Babcock Street to the southern boundary of Aasheim Fields Park. 2. Beall Park speed zone. All that part of East Villard Street from the west line of North Black Avenue to the east line of North Bozeman Avenue; all that part of North Bozeman Avenue from the south line of East Villard Street to the north line of East Short Street; all that part of East Short Street from the east line of North Bozeman Avenue to the west line of North Black Avenue; all that part of North Black Avenue from the north line of East Short Street to the south line of East Villard Street. 3. Bogert Park speed zone. On South Church Avenue from the north line of Bogert Park to a point approximately 100 feet south of Bogert Place. 4. Centennial Park speed zone. All that part of North Tracy Avenue from Cottonwood Street to the north line of Centennial Park; all that part of Cottonwood Street from the east line of North Tracy Avenue to the west line of North Grand Avenue; all that part of North Grand Avenue from the south line of Cottonwood Street to the north line of Centennial Park. 5. Christie Fields Park speed zone. All that part of East Mason Street from the west line of South Black Avenue to the east line of South Rouse Avenue; all that part of South Rouse Avenue from the south line of East Mason Street to the north line of Christie Field Park; all that part of South Black Avenue from the south line of East Mason Street to the north line of Christie Field Park. 6. Cooper Park speed zone. All that part of South Eighth Avenue from a line 150 north of West Dickerson Street to the south line of West Koch Street. 7. Farmall Street Park speed zone. All that part of Farmall Street from the west line of Springbrook Avenue to the east line of Durham Avenue; all that part of Durham Avenue from the south line of Farmall Street to the north boundary of Farmall Street Park, which is approximately 500 feet north of the south line of Farmall Street; all that part of Springbrook Avenue from the south line of Farmall Street to the north line of Farmall Street Park; which is approximately 500 feet north of the south line of Farmall Street. 8. Kirk Park speed zone. All that part of West Beall Street from the east line of North 20th Avenue to the west line of Kirk Park; all that part of North 20th Avenue from a 215 Ordinance No. 2142, Revising Speed Limits Page 7 of 14 point approximately 300 feet north of the north line of West Main Street to the north line of West Beall Street. 9. Lindley Park speed zone. All that part of Buttonwood Avenue from the south line of East Main Street to the entrance to the Sunset Hills Cemetery; all that part of Cypress Avenue from the south line of East Main Street to the south line of East Curtiss Street. 10. Meyers Park speed zone. All that part of Hanley Avenue from the north line of West Babcock Street to the south line of Brenden Street; all that part of Clifden Drive from the north line of West Babcock Street to the south line of Brisbin Street; all that part of Cascade Street between the west line of Hanley Avenue to the east line of Clifden Drive. 11. Oak Springs Subdivision Park speed zone. All that part of Jardine Avenue from the north line of Annie Street to its intersection with Palm Street; all that section of Palm Street from its intersection with Jardine Avenue to the east line of Yellowstone Avenue; all that part of Yellowstone Avenue from the south line of Palm Street to the north line of Renova Lane; all that part of Renova Lane from the east line of Yellowstone Avenue to the west line of Oak Springs Subdivision Park. 12. Westlake BMX Park speed zone. All that part of North Fifth Avenue from a line 150 feet north of Peach Street to the south line of Tamarack Street. Section 4 That Section 36.07.050, Bozeman Municipal Code, will be amended as follows: Sec. 36.07.050. Graduated speed zones designated. A. In accordance with the provisions of section 36.07.020.A.5, or any applicable subsequent commission resolution, it is unlawful for any operator of any vehicle to drive at a speed greater than designated below upon the following streets: 1. West Babcock Street. The speed limit is 30 miles per hour on all that part of West Babcock Street from the west line of West Main Street to the east line of Cottonwood Road. 2. Baxter Lane. a. The speed limit is 35 miles per hour from the west line of North Seventh Avenue to a point approximately 1,000 feet west of North Seventh Avenue. b. The speed limit is 45 miles per hour from a point approximately 1,000 feet west of North Seventh Avenue to a point approximately 1,200 east of North Nineteenth Avenue. c. The speed limit is 35 miles per hour from a point approximately 1,200 feet east of North Nineteenth Avenue to the east line of North Nineteenth Avenue. d. The speed limit is 30 miles per hour from the western line of North Nineteenth Avenue to Vaquero Parkway. 216 Ordinance No. 2142, Revising Speed Limits Page 8 of 14 e. The speed limit is 45 miles per hour from a point approximately 1,100 feet west of North Nineteenth Avenue to a point approximately 1175 feet east of Gallatin Green Boulevard. f. The speed limit is 30 miles per hour from the western line of Cottonwood Road to the western boundary of the City. 3. Bozeman Trail Road. The speed limit is 40 miles per hour from the west line of Haggerty Lane to the north line of Kagy Boulevard. 4. Bridger Drive/Bridger Canyon Road. a. The speed limit is 35 miles per hour from the junction of Bridger Drive/Bridger Canyon Road with North Rouse Avenue to a point approximately 550 feet east of Story Mill Road. b. The speed limit is 45 miles per hour from a point approximately 550 feet east of Story Mill Road to a point approximately 600 feet east of Creekwood Drive. c. The speed limit is 60 miles per hour from a point approximately 600 feet east of Creekwood Drive east to the city limits. b. The speed limit is 45 miles per hour from a point approximately 550 feet east of Story Mill Road east to the city limit. 5. West College Street. The speed limit is 35 miles per hour from the west line of South Nineteen Avenue to the south line of West Main Street. 6. Cottonwood Road. a. The speed limit is 40 miles per hour from Durston Road south to a point approximately 100 feet north of Fallon Street. b. The speed limit is 35 miles per hour from a point approximately 100 feet north of Fallon Street to Huffine Lane. c. The speed limit is 40 miles per hour from Huffine Lane south to the city limits. a. The speed limit is 35 miles per hour from Baxter Lane south to Huffine Lane. b. The speed limit is 45 miles per hour from Huffine Lane south to the city limits. 7. Davis Lane. The speed limit is 35 30 miles per hour from the north line of West Oak Street to the south line of East Valley Center Road. 8. Durston Road. a. The speed limit is 30 miles per hour from the west line of North 7th Avenue west to the city limit. a. The speed limit is 30 miles per hour from the west line of North 7th Avenue to the east line of Ferguson Avenue. (As this is an Urban route, this speed limit will not be posted (signed) until the Montana Transportation Commission approves the change.) b. The speed limit is 35 miles per hour from the west line of Ferguson Avenue west to the city limits. 217 Ordinance No. 2142, Revising Speed Limits Page 9 of 14 c. The speed limit is 20 miles per hour during certain hours of school days as signed, from 1250 feet east of North 25th Avenue to 250 feet west of North 25th Avenue. 9. Ferguson Avenue. a. The speed limit is 35 30 miles per hour from the north line of Huffine Lane north to the south line of Durston Road Baxter Lane. 10. Fowler Avenue. The speed limit is 35 30 miles per hour from the south line of Huffine Lane to the north line of Garfield Street. 11. East Frontage Road. a. The speed limit is 60 50 miles per hour from the junction of East Frontage Road with North Seventh Avenue, northwest to the city limits. b. The speed limit is 50 miles per hour from the junction of East Frontage Road with East Main Street, approximately 350 feet east of Haggerty Lane at the I-90 interchange, to a point approximately 100 feet east of Hospitality Way. c. The speed limit is 60 miles per hour from a point approximately 100 feet east of Hospitality Way east to the city limits. 12. Garfield Street. The speed limit is 35 30 miles per hour from the west line of South Nineteenth Avenue to the south line of Fowler Avenue. 13. Griffin Drive. The speed limit is 35 miles per hour from the east line of North Seventh Avenue to the west line of North Rouse Avenue. 14. West Graf Street. The speed limit is 30 mph from South 11th Avenue west to the city limit. Haggerty Lane. a. The speed limit is 40 miles per hour from the west line of Bozeman Trail Road to Ellis Street. b. The speed limit is 35 miles per hour from Ellis Street northwesterly a distance of approximately 675 feet. 15. Haggerty Lane. The speed limit is 30 miles per hour from the west line of Bozeman Trail Road to Main Street. 15.16. Highland Boulevard. The speed limit is 35 miles per hour from a point 400 feet north of Holly Drive to a point 225 feet south of East Curtiss Street. 16. 17. Huffine Lane. a. The speed limit is 45 miles per hour from the junction of Huffine Lane with West Main Street to a point approximately 260 feet west of Ferguson Avenue. b. The speed limit is 55 miles per hour from a point approximately 260 feet west of Ferguson Avenue to a point approximately 850 feet west of Cottonwood Road west to the city limits. c. The speed limit is 65 miles per hour from a point approximately 1850 feet west of Cottonwood Road west to the city limits. 218 Ordinance No. 2142, Revising Speed Limits Page 10 of 14 17.18. Kagy Boulevard. a. The speed limit is 35 miles per hour from the east line of South Nineteenth Avenue to a point approximately 875 feet east of Highland Boulevard. b. The speed limit is 40 miles per hour from a point approximately 875 feet east of Highland Boulevard to Bozeman Trail Road. 18. 19. East Main Street. The speed limit is 40 miles per hour from a point approximately 300 feet east of Cypress Avenue to the junction of East Main Street with East Frontage Road, approximately 350 feet east of Haggerty Lane. a. The speed limit is 40 miles per hour from a point approximately 300 feet east of Cypress Avenue to a point approximately 350 feet east of Haggerty Lane. b. The speed limit is 50 miles per hour from a point approximately 350 feet east of Haggerty Lane to the junction with Frontage Road at the Interstate 90 overpass. 19. 20. West Main Street. a. The speed limit is 35 miles per hour from a point approximately 320 feet east of North Fifteenth Avenue to the west line of South 23rd Avenue. b. The speed limit is 45 miles per hour from the west line of South 23rd Avenue to the junction of West Main Street with Huffine Lane. 20. 21. Manley Road. The speed limit is 35 25 miles per hour from the north line of Griffin Drive north to the city limits. 21. 22. McIllhattan Road. The speed limit is 30 miles per hour from the west line of Story Mill Road northwest to the city limits. 22. 23. North Nineteenth Avenue. a. The speed limit is 35 miles per hour from the south line of Durston Road to approximately 500 feet north of Durston Road. b. The speed limit is 40 miles per hour from a point approximately 500 feet north of the south line of Durston Road to Springhill Road. 23. 24. South Nineteenth Avenue. a. The speed limit is 35 miles per hour from the north line of West Main Street to the south line of West College Street. b. The speed limit is 45 40 miles per hour from the south line of West College Street to 200 feet south of West Graf Street. c. The speed limit is 50 miles per hour from 200 feet south of West Graf Street south to 200 feet south of Blackwood Road. The speed limit for southbound traffic south of Kagy Boulevard is: (1) 45 miles per hour from Kagy Boulevard to a point approximately 330 feet south of Kagy Boulevard. 219 Ordinance No. 2142, Revising Speed Limits Page 11 of 14 (2) 60 miles per hour from a point approximately 330 feet south of Kagy Boulevard south to the city limits. d. The speed limit for northbound traffic south of Kagy Boulevard is: (1) 45 miles per hour from Kagy Boulevard to a point approximately 875 feet south of Kagy Boulevard. (2) 60 miles per hour from a point approximately 1875 feet south of Kagy Boulevard south to the city limits. 24. 25. Oak Street. a. The speed limit is 35 miles per hour from the west line of North Rouse Avenue to the east line of North Eleventh Avenue. b. The speed limit is 45 miles per hour from the east line of North Eleventh Avenue to the east line of North Nineteenth Avenue. c. The speed limit is 35 miles per hour from the west line of North Nineteenth Avenue to the west line of New Holland Drive Cottonwood Road. 25. 26. North Rouse Avenue. The speed limit is 35 miles per hour from a point approximately 430 feet north of East Oak Street to the junction of North Rouse Avenue with Bridger Drive at Griffin Drive. 26. 27. Simmental Way. The speed limit is 35 miles per hour from the north line of Baxter Lane to the terminus of Simmental Way. North Seventh Avenue. a. The speed limit is 35 miles per hour from a point approximately 380 feet north of Durston Road to a point approximately 610 feet north of West Oak Street. b. The speed limit is 45 miles per hour from a point approximately 610 feet north of West Oak Street to a point approximately 1,720 feet north of Griffin Drive. c. The speed limit is 60 50 miles per hour from a point approximately 1,720 feet north of Griffin Drive to the junction of North Seventh Avenue with East Frontage Road. 28. Springhill Road. The speed limit is 35 miles per hour from East Frontage Road north to the city limits. a. The speed limit is 35 miles per hour from East Frontage Road north to a point 2,300 feet north of Moss Bridge Road. b. The speed limit is 45 miles per hour from a point 2,300 feet north of Moss Bridge Road north to the city limits. 29. Story Mill Road. The speed limit is 35 30 miles per hour from the north line of Bridger Drive north to the city limits. 30. South Third Avenue. The speed limit is 35 miles per hour from the south line of West Graf Street to the south side of Wagonwheel Road south to the city limit. 31. East Valley Center Road. 220 Ordinance No. 2142, Revising Speed Limits Page 12 of 14 a. The speed limit is 45 miles per hour from North Nineteenth Avenue west a distance of approximately 2,830 feet. b. The speed limit is 50 miles per hour from a point approximately 2,830 feet west of North Nineteenth Avenue to a point approximately 290 feet west of North 27th Avenue. c. The speed limit is 60 miles per hour from a point approximately 290 feet west of North 27th Avenue west to a point the city limits 330 feet east of East Valley Center Spur. d. The speed limit is 45 miles per hour from a point 330 feet east of East Valley Center Spur west to the city limits. Section 5 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. The park speed limits repealed from BMC 36.07.040(A) will be in full force and effect pursuant to an order issued by the Director of Transportation and Engineering. Section 6 Savings Provision. This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full force and effect. The specific speeds zones for the parks listed in BMC Sec. 36.07.070.A.1 –12 are repealed from the code, but remain in full force and effect. Section 7 Severability. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 8 221 Ordinance No. 2142, Revising Speed Limits Page 13 of 14 Codification. This Ordinance shall be codified as indicated in Section 1 – 4. Section 9 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 25th day of July 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 ____________________, 20__. The effective date of this ordinance is ______________, 20__. _________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: _______________________________ MIKE MAAS City Clerk 222 Ordinance No. 2142, Revising Speed Limits Page 14 of 14 APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 223 Memorandum REPORT TO:City Commission FROM:Nick Ross, Transportation and Engineering Director Brian Heaston, Engineer III Shawn Kohtz, City Engineer Chris Saunders, Community Development Manager Greg Sullivan, City Attorney Anna Saverud, Assistant City Attorney SUBJECT:Wetland Protection Mitigation Work Session MEETING DATE:July 25, 2023 AGENDA ITEM TYPE:Policy Discussion RECOMMENDATION:Receive Presentation, Discuss Alternatives, and Provide Direction to Staff. STRATEGIC PLAN:6.6 Habitat: Work with partner organizations to identify at-risk, environmentally sensitive parcels contribute to water quality, wildlife corridors, and wildlife habitat. BACKGROUND:General Overview Mitigation of impacts to wetlands that occurs during land development is subject to both federal and local regulation. Federal regulation pursuant to the Clean Water Act is enforced by the United States Army Corps of Engineers (USACE) as well as the Environmental Protection Agency (EPA). Local regulation occurs per the City’s Unified Development Code (UDC) Division 38.610, titled Wetlands Regulations. Prior to the United States Supreme Court’s recent decision in Sackett v. Environmental Protection Agency, 142 S.Ct. 1322 (2023), the federal agencies regulated wetlands using a broad definition that included many wetlands within the City. The City’s regulation of wetlands addresses wetlands historically regulated by the federal agencies resulting in concurrent (but not identical) regulation. The Sackett decision significantly narrows the scope of federal regulatory authority over wetlands (see below for a more detailed discussion). As a result, the City’s regulatory program is now the sole regulatory authority over many wetlands that were, prior to Sackett, covered under federal wetland regulations. The City’s historical regulatory approach was to defer to the federal agencies for decisions on mitigation for wetland impacts where both the federal agencies and the City had jurisdiction. Now, after Sackett, federal jurisdiction is significantly limited resulting in a concomitant expansion of the City’s sole 224 jurisdiction over wetlands impacts within the City. Where the impacts of land development to wetlands are unavoidable, mitigation of such impacts regulated by federal agencies may occur in locations distant from the City including the Upper Missouri Wetland Bank located in Twin Bridges, Montana. Currently, a local wetlands bank is under development by the Sacajawea Audubon Society (SAS) in the vicinity of Haggerty Lane and East Main Street intersection. If this bank qualifies as a wetland bank for purposes of federal regulation, landowners seeking to mitigate wetlands that fall within the jurisdiction of federal agencies may be able to access the SAS bank, once established. The SAS bank may also be available to the City to provide mitigation for wetlands now regulated only by the City. The purpose of this work session is to provide the Commission with information related to: (i) the current approach of the City to its wetlands regulatory program under the UDC; (ii) provide information on the Sackett decision and the issues resulting from the decision; and (iii) provide information on future approaches to local regulation of wetlands. Strategic Plan This work session is informed by the following strategic plan priorities: 6.1. a) Watershed Management – Develop and implement a regional watershed approach to manage water quantity and quality. 6.3. d) Climate Change Adaptation and Mitigation – Increase the community’s resiliency and preparedness in response to climate change. 6.5 Parks, Trails and Open Space – Support the maintenance and expansion of an interconnected system of parks, trails and open spaces. 6.6 Habitat – Work with partner organizations to identify at-risk, environmentally sensitive parcels [that] contribute to water quality, wildlife corridors, and wildlife habitat. Existing UDC Wetland Code Overview The City first adopted local regulations to protect wetlands in 2003 by Ordinance 1604. Local regulations have been in effect continuously since initial adoption. The local regulations are supplementary to federal regulations in that historically, the City’s regulations have also regulated wetlands covered by the Clean Water Act. But there are key differences between the historical federal regulatory scheme and the City’s regulations. Most importantly, the City’s regulations apply to wetlands as small as 400 sq. ft. (whereas the federal threshold is 4,360 sq. ft.) and to isolated wetlands not connected to waters of the United States. The City’s regulations exclude artificially created wetlands related to irrigation and stormwater facilities. The scope of federal regulations over such isolated and artificially created wetlands has shifted over time with U.S. Supreme Court decisions and 225 corresponding federal regulations promulgated by EPA and USACE defining waters of the United States consistent with the court’s opinion. Another key difference between the city and federal regulations is that the City’s wetland regulations are also coordinated with development code requirements for protecting watercourses. If a wetland is located within the required setback for a watercourse then the setback is expanded to include the wetland area (Bozeman Municipal Code 38.410.100). A board of wetland professionals was originally established to apply the City’s wetland regulations. The necessary expertise is a small pool of candidates, and the City struggled to maintain a quorum of persons who did not have conflicts of interest. In 2016, through Ordinance 1945, the City Commission dissolved the wetlands review board. Since then the City has contracted with qualified professionals to assist in the review of development that is impacting wetlands. United States Supreme Court Sackett Decision As noted above, the recent Sackett decision significantly altered the scope of federal wetland regulation. Prior to Sackett, federal agencies regulated wetlands that were not only immediately adjacent to traditionally navigable waters, but also wetlands that had a continuous surface connection to such water or had a significant nexus to interstate or traditional navigable waters. This “significant nexus” required federal agencies to analyze a number of factors. A significant nexus existed, under federal guidance, when “wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of those waters.” The result is that the federal agencies regulated millions of acres of wetlands nationwide that were not immediately adjacent to or indistinguishable from traditionally navigable waters. That all changed with the Sackett decision. The majority of the Court determined “that the CWA [Clean Water Act] extends to only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right so that they are ‘indistinguishable’ from those waters.” The result is that many wetlands that were formerly regulated by the federal agencies are no longer under federal jurisdiction. The Supreme Court remanded this decision back to the 9th Circuit Court of Appeals. Additional litigation will most likely be necessary to finally resolve the specific issue in the case. In the meantime, we understand the federal agencies are “developing a rule” to address the decision. See this update from the USACE. The update indicates the federal agencies will issue a new rule by September 1, 2023. To truly comprehend the scope of the impact of Sackett and the future of federal regulation of wetlands, we believe the City must consider any new 226 federal rule and guidance to understand how the City could move forward regulating based solely on the UDC requirements. This includes regulation of wetlands that were, but are no longer, regulated federally and how the City will integrate its mitigation requirements (including a bank) into the ongoing federal wetland bank program. Sacajawea Audubon Society Local Wetland Bank Collaboration City staff have worked with the SAS in support of their wetlands development project. Collaboration has included rerouting a public sanitary sewer main around the SAS wetlands to the extent feasible, over 40 meetings to-date with SAS over the past several years, and working with other public and private agencies to support the wetlands project including coordination with Montana Department of Transportation, BNSF Railway, and USACE. SAS has indicated their willingness to price its mitigation bank credits no higher than the Upper Missouri Mitigation Bank credits if a local mitigation requirement is put in place. SAS further indicated they are estimating mitigation credits from their local bank would last approximately 4 years at the current rate of mitigation credits purchase for development occurring within the City. Regulatory and Mitigation Options Given the significant change in regulatory authority stemming from the Sackett decision, we believe waiting for the federal agencies to issue new rules regarding federal jurisdiction is important before any significant adjustment to City regulatory authority occurs. Nevertheless, prior to the Sackett decision, City staff contacted USACE to engage in conversation about the ability of the City to impose regulations that would require local mitigation of wetlands covered by federal jurisdiction and also wetlands covered only by the City’s UDC. USACE indicated that local regulations that are more stringent than USACE regulations may be allowed. However, there are coordination items that need to be considered: For federally jurisdictional wetlands impacts that are regulated by both USACE (post-Sackett) and also by the City’s UDC, USACE will only accept wetland bank credits from a USACE approved mitigation bank. This was the case before Sackett and will remain the case after Sackett. USACE will not enforce local requirements. USACE regulations allow for acceptance of mitigation bank credits from the Upper Missouri Mitigation Bank for federally jurisdictional wetlands impacts (or other mitigation bank developed in the future such as the SAS mitigation bank upon USACE recognition), so, for wetlands regulated only by the City (no longer under federal jurisdiction), the City would need to require local wetland mitigation and create a local tracking and enforcement mechanism to ensure the impacts to wetlands regulated only locally are mitigated using a locally authorized mitigation bank. An important consideration here is that local requirements for local 227 mitigation cannot double-count any federally authorized credits as double-counting does not further ecological goals of ensuring wetland impacts, regardless of jurisdictional status, are fully offset. USACE prefers existing mitigation banks over cash-in-lieu options due to the assurance that a wetlands mitigation project will be completed. There is essentially a higher risk that mitigation will not be completed through the use of cash-in-lieu options. We concur with this preference and will recommend this be included in any new local-only program. The USACE strategy for wetlands is in order of preference, to avoid impacts, then, minimize impacts to wetlands, and lastly mitigate wetlands impacts where impacts are unavoidable. This mitigation scheme is also mirrored by the City’s UDC. Recognizing that after Sackett, the City continues to regulate impacts to wetlands federal agencies no longer can, we are examining a number of questions. These questions include significant operational and legal issues. To what extent can local rules supplant a developer’s ability to pick a location for mitigation of federally jurisdictional wetlands? Can an authorized USACE wetland mitigation bank be locally authorized for non-federally jurisdictional wetland impacts without double-counting of the federally-authorized credits? As an interim measure, until such time as the SAS wetland bank is authorized by USACE, should the City allow the use of other federally- authorized banks outside of the East Gallatin basin? This review will require evaluation of a local government’s authority to regulate the location of the mitigation of wetlands and to distinguish such authority by the jurisdictional status of the wetlands. In addition, the investigation must examine whether the City should provide for circumstances where mitigation using a local wetland bank is not available in the East Gallatin watershed, especially considering the SAS wetland bank, once established, is projected to fully exhaust its credits within a 4 year period. Lastly, in addition to adopting new regulations and setting up a local mitigation bank tracking system, and due to the Sackett decision, we believe the City needs significantly more staff resources and expertise to enforce UDC wetlands regulations that were previously largely enforced by the federal agencies. Initial estimates of staff time include 2 full-time equivalents (FTEs) to implement and track local wetlands mitigation requirements and provide regulatory oversight previously provided by USACE. Current staff have some knowledge of wetlands; however, current staff do not have the certifications or expertise to manage a local wetlands program. A wetlands program would likely mirror the USACE program to the extent possible to ensure property developers don’t have to duplicate efforts for wetlands mitigation from both the City and USACE where the two would overlap. This program would necessitate establishing and funding a new City division, 228 similar to the Sustainability Program Division. A wetlands programmatic and operational needs include a number of elements, such as: Wetland delineation and jurisdictional status Permit development and tracking of mitigation credits Permit review, approval, and monitoring Enforcement Coordination of credits tracking with USACE Site inspections and documentation General overhead (such as admin support, etc.) UNRESOLVED ISSUES:Regulatory authority USACE-approved local wetland mitigation bank options Wetlands division program development and funding Public outreach and reactions from Sackett decision ALTERNATIVES:As determined by the City Commission. FISCAL EFFECTS:Fiscal effects include approximately $300,000-$400,000 per year for staff and program development as well as consultant support pending the scope of the program. Report compiled on: July 13, 2023 229