HomeMy WebLinkAbout04-15-25 City Commission Agenda and Packet MaterialsA. Call to Order - 6:00 PM - Commission Room, City Hall, 121 North Rouse
B. Pledge of Allegiance and a Moment of Silence or Mindfulness
C. Changes to the Agenda
D. Commission Disclosures
E. FYI
F. Consent
F.1 Accounts Payable Claims Review and Approval (Edwards)
F.2 Approval of Depository Bonds and Pledged Securities as of March 31, 2025 (Clark)
F.3 Authorize the City Commission to Ratify the Montana Main Street Program Grant Award for
THE CITY COMMISSION OF BOZEMAN, MONTANA
REGULAR MEETING AGENDA
Tuesday, April 15, 2025
How to Participate:
If you are interested in commenting in writing on items on the agenda please send an email to
comments@bozeman.net or visit the Public Comment Page prior to 12:00 p.m. on the day of the
meeting. At the direction of the City Commission, anonymous public comments are not distributed to
the City Commission or staff.
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.
This meeting will be held both in-person and also using an online video conferencing system. You
can join this meeting:
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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-
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United States Toll
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Access code: 933 7244 1920
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the I-Ho Peace Park(Grabinski)
F.4 Authorize the City Manager to Sign a Notice of Award to CK May Excavating for Construction
of the Riverside Lift Station and Force Main Project(Gamradt)
F.5 Authorize City Manager to Sign Notice of Award to Smith River Construction for Story Mill
Community Park Splash Pad, and Final Documents Once Received(Jadin)
F.6 Authorize the City Manager to Sign a Professional Services Master Task Order Agreement
with Advanced Engineering and Environmental Services, LLC for On-call Engineering Services
for the City of Bozeman Water Treatment Division(Nielsen)
F.7 Authorize the City Manager to Sign a Professional Services Master Task Order Agreement
with Advanced Engineering and Environmental Services, LLC for On-call Engineering services
for the City of Bozeman Water Reclamation Facility(Nielsen)
F.8 Resolution Authorizing Change Order 2 with Roset and Associates for Construction
Modifications, Solid Waste Building Remodel and Garage Addition Project(Ross)
F.9 Resolution Establishing Compliance with IRS Reimbursement Bond Regulations(Hodnett)
G. Mayoral Proclamation
G.1 City for Convention on the Elimination of Discrimination Against Women (CEDAW)
Anniversary Proclamation(Cunningham)
G.2 Equal Pay Proclamation(Cunningham)
H. Special Presentation
H.1 Equal Pay Report(Tozer)
H.2 Fire Department Accreditation Special Presentation (Waldo)
I. Action Items
I.1 Decision on Appeal 25033 Regarding Conditional Approval of The Guthrie, 5th and Villard
Site Plan, Certificate of Appropriateness, and Demolition Application Number 24493,
Continued from April 1, 2025(George)
I.2 Review and Consider the Boutique Hotel, Located at 240 E. Mendenhall Street, Site Plan and
Commercial Certificate of Appropriateness with a Deviation Application, Application 24147
(Quasi-judicial)(Krueger)
J. Public Comment on Non-agenda Items Falling Within the Purview and Jurisdiction of the
Commission
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
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K. FYI / Discussion
L. Adjournment
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 state whether you are a resident of the city or a
property owner within the city 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.
City Commission meetings are open to all members of the public. If you have a disability that
requires assistance, please contact our ADA Coordinator, David Arnado, at 406.582.3232.
Commission meetings are televised live on cable channel 190 and streamed live on our Meeting
Videos Page.
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Memorandum
REPORT TO:City Commission
FROM:Nicole Armstrong, Accounts Payable Clerk
Rhonda Edwards, Accounts Payable Clerk
Aaron Funk, City Controller
Melissa Hodnett, Finance Director
SUBJECT:Accounts Payable Claims Review and Approval
MEETING DATE:April 15, 2025
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. Please provide approval for
checks dated April 16, 2025.
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: August 21, 2024
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Memorandum
REPORT TO:City Commission
FROM:Laurae Clark, Treasurer
Melissa Hodnett, Finance Director
SUBJECT:Approval of Depository Bonds and Pledged Securities as of March 31, 2025
MEETING DATE:April 15, 2025
AGENDA ITEM TYPE:Finance
RECOMMENDATION:Approve the depository bonds and pledged securities as of March 31, 2025.
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:
Pledged securities are assets, such as government or municipal bonds, that a
financial institution commits as collateral to secure a deposit in excess of the
$250,000 insured by the FDIC. Utilizing pledged securities offers an added
layer of security for large deposits, ensuring that funds are protected beyond
the standard FDIC insurance limits. This practice ensures that public money
remains secure, promoting fiscal responsibility and stability. Per MCA section
7-6-207 the City Commission must approve pledged securities at least
quarterly.
UNRESOLVED ISSUES:None
ALTERNATIVES:As suggested by the City Commission
FISCAL EFFECTS:The city is sufficiently pledged.
Attachments:
Depository Bonds & Securities 033125.pdf
SLC_580049.pdf
SLC_578492.pdf
Report compiled on: April 3, 2025
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DEPOSITORY BONDS AND SECURITIES
AS OF
March 31, 2025
MATURITY CUSIP NO/LOC NO. TOTAL AMOUNT
US BANK
All Accounts
Federal Deposit Insurance Corporation-Operating Accts $ 250,000.00
LOC-FHLB Cincinnati 4/15/2025 578492 $ 12,000,000.00
TOTAL – US Bank $ 12,250,000.00
This is to certify that we, the Commission of the City of Bozeman, in compliance with the provisions of Section 7-6-
207, M.C.A., have this day certified the receipts of US Bank, for the Depository Bonds held by the Director of
Finance as security, for the deposit for the City of Bozeman funds as of March 31, 2025, by the banks of Bozeman
and approve and accept the same.
_____________________________________________
TERENCE CUNNINGHAM, Mayor
_______________________________________ _______________________________________
JOEY MORRISON, Deputy Mayor JENNIFER MADGIC, Commissioner
_______________________________________ _______________________________________
DOUGLAS FISCHER, Commissioner EMMA BODE, Commissioner
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PLEDGED SECURITIES AND CASH IN BANK
As of
March 31, 2025
US BANK
Total Cash on Deposit $4,531,610.95
FDIC Coverage $250,000.00
Amount Remaining $4,281,610.95
Pledges Required 104% $4,452,875.39
Actual Pledges $12,000,000.00
Over (Under) Pledged $7,547,124.61
REFERENCE: Section 7-6-207, M.C.A.
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Issue Date:April 15, 2025 LOC No.:580049
Beneficiary:City of Bozeman
P.O. Box 1230
Bozeman, MT 59771-1230
Ladies and Gentlemen:
For the account of U.S. Bank National Association, CINCINNATI, OH, we hereby authorize you to
draw on us at sight up to an amount of $12,000,000.00.
This letter of credit is irrevocable, unconditional and nontransferable.
Drafts drawn under this letter of credit must be accompanied by the original letter of credit and be
presented in substantially the form attached as Exhibit A, at the office identified below by an authorized
officer of the beneficiary no later than 2:00 P.M., Cincinnati time, on Tuesday, July 15, 2025.
This letter of credit sets forth in full the terms of our obligations to you, and such undertaking shall not
in any way be modified or amplified by any agreement in which this letter is referred to or to which this
letter of credit relates, and any such reference shall not be deemed to incorporate herein by reference
any agreement.
We engage with you that multiple drafts drawn under and in compliance with the terms of this letter of
credit will be duly honored at the Credit Department of the Federal Home Loan Bank of Cincinnati, 221
East Fourth Street, Cincinnati, Ohio 45202.
This letter of credit is subject to the Uniform Customs and Practice for Documentary Credits (2007
Revision), International Chamber of Commerce Publication 600.
Sincerely,
Lisa Wishart
Vice President
Markus Pepper
Credit Operations Officer
c:Corinne M Yerigan O'Neil
U.S. Bank National Association
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Issue Date:January 15, 2025 LOC No.:578492
Beneficiary:City of Bozeman
P.O. Box 1230
Bozeman, MT 59771-1230
Ladies and Gentlemen:
For the account of U.S. Bank National Association, CINCINNATI, OH, we hereby authorize you to
draw on us at sight up to an amount of $12,000,000.00.
This letter of credit is irrevocable, unconditional and nontransferable.
Drafts drawn under this letter of credit must be accompanied by the original letter of credit and be
presented in substantially the form attached as Exhibit A, at the office identified below by an authorized
officer of the beneficiary no later than 2:00 P.M., Cincinnati time, on Tuesday, April 15, 2025.
This letter of credit sets forth in full the terms of our obligations to you, and such undertaking shall not
in any way be modified or amplified by any agreement in which this letter is referred to or to which this
letter of credit relates, and any such reference shall not be deemed to incorporate herein by reference
any agreement.
We engage with you that multiple drafts drawn under and in compliance with the terms of this letter of
credit will be duly honored at the Credit Department of the Federal Home Loan Bank of Cincinnati, 221
East Fourth Street, Cincinnati, Ohio 45202.
This letter of credit is subject to the Uniform Customs and Practice for Documentary Credits (2007
Revision), International Chamber of Commerce Publication 600.
Sincerely,
Lisa Wishart
Vice President
Markus Pepper
Credit Operations Officer
c:Corinne M Yerigan O'Neil
U.S. Bank National Association
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Memorandum
REPORT TO:City Commission
FROM:Jamie Grabinski, Grants Coordinator
Aaron Funk, Controller
Melissa Hodnett, Finance Director
SUBJECT:Authorize the City Commission to Ratify the Montana Main Street Program
Grant Award for the I-Ho Peace Park
MEETING DATE:April 15, 2025
AGENDA ITEM TYPE:Grant
RECOMMENDATION:Authorize the City Commission to Ratify the Montana Main Street Program
Grant Award for the I-Ho Peace Park.
STRATEGIC PLAN:4.4 Vibrant Downtown, Districts & Centers: Promote a healthy, vibrant
Downtown, Midtown, and other commercial districts and neighborhood
centers – including higher densities and intensification of use in these key
areas.
BACKGROUND:In November 2024, the Downtown Bozeman Partnership and the City of
Bozeman submitted a Montana Main Street Grant application for the design
and construction of the I-Ho Peace Park. The initial grant application request
was $100,000 and noticed on the consent agenda on 12/10/2024. In March
2025, the Downtown Bozeman Partnership received a notice of award and a
contract for $30,000 for the MT State Department of Commerce. The I-Ho
Peace Park is to commemorate the life and public service dedication of I-Ho
Pomeroy. The project coordinates several different partners across the City
to construct this important pocket park located at N. Black Avenue and E.
Mendenhall Street.
UNRESOLVED ISSUES:None.
ALTERNATIVES:As identified by the City Commission.
FISCAL EFFECTS:This grant funds a portion of the park's design, with design costs currently
being spent in the Downtown Urban Renewal District. Funds for construction
are being identified and will be proposed to the City Commission as a budget
amendment at a later date.
Attachments:
Contract Bozeman.pdf
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Report compiled on: March 27, 2025
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Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
MONTANA DEPARTMENT OF COMMERCE
MAIN STREET PROGRAM
CONTRACT #MT-MMS-CG-25-010
This agreement (“Contract”) is entered into by the City of Bozeman, Montana
(“Grantee”) and the Montana Department of Commerce (“Department”) (collectively, the
“Parties”).
The Grantee and the Department hereby agree to the following terms:
Section 1. PURPOSE
The purpose of this Contract is to provide funding to the Grantee for main street activities
approved by the Department under the Montana Main Street Program (“MMS” or
“Program”).
Section 2. AUTHORITY
This Contract is issued under authority of Title 90, Chapter 1, Part 1 of the Montana Code
Annotated (“MCA”).
Section 3. APPLICATION INCORPORATED BY REFERENCE
The Grantee's application for Program assistance, including any written modifications or
reports resulting from the review of the application by the Department (collectively
“Project”), is specifically incorporated into this Contract by reference and the
representations made therein are binding upon the Grantee.
Section 4. ACCEPTANCE OF PROGRAM REQUIREMENTS
(a) The Grantee will comply with all applicable local, state, and federal laws as well as
all applicable regulations, ordinances, and resolutions now in effect or as may be
amended during the term of this Contract. Grantee will comply with all
administrative directives and procedures that may be established or amended by
the Department for the Program, including the most current version of the
Montana Main Street Program Guidelines, maintained by the Department.
(b) The Grantee agrees that all contracts and subcontracts it enters into for the
completion of the activities described in Section 6 will require such contractors,
subcontractors, and subrecipient entities to also comply with all requirements
placed on the Grantee in paragraph (a) of this Section.
(c) The Grantee agrees to repay to the Department any funds advanced under this
Contract that the Grantee, its contractors, subcontractors, or subrecipient entities,
or any public or private agent or agency to which it delegates authority to carry
Docusign Envelope ID: B9C3FBC2-AD57-41FF-A36E-D9CFFFBAAC99
12196
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Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
out any portion of this Contract expends in violation of: (i) the terms of this
Contract; (ii) the statutes, and regulations governing the Program; (iii) or any
applicable local, state, or federal requirements.
(d) The Grantee agrees that the Project will adhere to all applicable design standards
required by the Department of Environmental Quality (“DEQ”), and Grantee shall
obtain all applicable federal, state, and local permits required for the Project. If no
DEQ standards are applicable to the Project, the Grantee agrees that the Project
will adhere to generally accepted industry standards, such as Recommended
Standards for Wastewater Facilities or Recommended Standards for Water Works,
published by the Great Lakes-Upper Mississippi River Board of State and Provincial
Public Health and Environmental Managers, latest edition.
Section 5. EFFECTIVE DATE AND TIME OF PERFORMANCE
(a) This Contract shall take effect upon execution by the Parties and will terminate on
June 30, 2026 or upon approval of Grantee’s Project completion report by the
Department, whichever is later, unless otherwise terminated in accordance with
this Contract.
(b) All authorized expenses to be reimbursed must be incurred by the Grantee
between January 7, 2025 and June 30, 2026. All requests for reimbursement must
be submitted to the Department within ninety (90) days after March 31, 2026.
(c) The activities to be performed by the Grantee will be completed according to the
implementation schedule set forth in Exhibit A. The Grantee may modify the
implementation schedule only with prior written approval of the Department.
(d) The Department may grant an extension to this Contract upon request by the
Grantee if the Department determines, in its sole discretion, that the Grantee has
demonstrated progress toward completion of the Project, has engaged in a good
faith effort to comply with the duties, terms, and conditions of this Contract, and
that the failure to comply with any of those services, duties, terms, or conditions
resulted from circumstances beyond the Grantee’s control. A written request for
an extension must be submitted at least sixty (60) days prior to June 30, 2026.
Section 6. SCOPE OF WORK
The Grantee will complete the Project and administer this Contract as set forth in the
Grantee’s application for Program assistance, including any amendments, approved by
the Department. The Grantee will use Program funds for the following major components
of the Project:
• Complete plans for the I-Ho Park; and
• Implement construction of the I-Ho Park in Bozeman.
Docusign Envelope ID: B9C3FBC2-AD57-41FF-A36E-D9CFFFBAAC99
13197
3 of 15
Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
Section 7. BUDGET
(a) The total amount to be awarded to the Grantee under this Contract shall not
exceed $30,000.
(b) Grantee represents that it has secured the match requirement as outlined in
Montana Main Street Program Guidelines to complete the Project. Up to twenty
percent (20%) of the required match may include reasonable in-kind contributions.
Grantee acknowledges and agrees that if the actual costs Grantee incurs to
complete the Project are different than the existing Project cost estimate, Grantee’s
match will change to reflect the total Project costs actually incurred, which must
be confirmed during the Project closeout process with the Department.
(c) A copy of the preliminary Project budget is attached as Exhibit B and specifically
incorporated herein by reference. After construction bids are awarded or other
major Project activity cost elements are determined, the Grantee shall provide the
Department with a final Project budget that will, upon receipt and approval by the
Department, supersede the preliminary budget in Exhibit B and thereby be
incorporated as part of this Contract, binding upon the Grantee.
(d) For cumulative budget adjustments of $5,000 or less between line items of the
Program portion of Exhibit B, Department approval of the request for
reimbursement form shall constitute approval of the budget adjustment. Grantee
shall describe the rationale for any budget adjustment and note the adjustment(s)
in the request for reimbursement submitted to the Department. Budget
adjustments in excess of $5,000 between any line item of Exhibit B must be
approved in advance by the Department.
(e) Any authorized funds not expended under this grant by the later date referenced
in Section 5(b), or otherwise accounted for in accordance with the provisions of
this Section, will revert to the Department.
Section 8. ACCESS TO AND RETENTION OF RECORDS
(a) The Grantee agrees to create and maintain records supporting the services
covered by this Contract, including but not limited to, financial records,
supporting documents, and such other records as are required by law or other
authority, for a period of five (5) years after either the termination date of the
Contract or the conclusion of any claim, litigation, or exception relating to the
Contract taken by the State of Montana or third party, whichever is later. These
records will be kept in the Grantee’s offices.
(b) The Grantee shall provide the Department, Montana Legislative Auditor, or their
authorized agents access to any records related to the Project or otherwise
necessary to determine contract compliance, at no cost to the Department, the
Docusign Envelope ID: B9C3FBC2-AD57-41FF-A36E-D9CFFFBAAC99
14198
4 of 15
Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
Montana Legislative Auditor, or their authorized agents.
Section 9. LIAISONS
All project management and coordination on behalf of the Department shall be through
a single point of contact designated as the Department’s liaison. Grantee shall designate
a liaison that will provide the single point of contact for management and coordination
of Grantee’s work. All work performed pursuant to this Contract shall be coordinated
between the Department’s liaison and the Grantee’s liaison. The liaisons for this Contract
are:
For the Department: For the Grantee:
Micky Zurcher (or successor) Jamie Grabinski
Program Specialist, MDOC City of Bozeman
301 S. Park Ave. 121 N. Rouse Avenue
P.O. Box 200523 Bozeman, MT 59715
Helena, MT 59620-0523 406-582-2364
406-841-2863 jgrabinski@bozeman.net
micky.zurcher@mt.gov
Section 10. METHOD OF REIMBURSEMENT
(a) The Department will not release any Program funds to the Grantee until the
Grantee has obtained firm commitments for all other financial resources to be
involved in the Project, as defined in Section 6 and Exhibit B. The Grantee may not
expend or obligate any Program funds, other than for administrative purposes,
until the Department determines that this condition has been satisfied.
(b) The Department agrees that, if and when the funds described in paragraph (a) of
this Section are available, the Department will authorize the Grantee to request
reimbursement from funding awarded for the Project.
(c) The Department agrees to reimburse the Grantee for eligible Project costs incurred
on or after the date identified in Section 5(b) upon the successful completion of
activities set forth in Section 6. All reimbursements must be supported by adequate
documentation requested by the Department, and provided by the Grantee, and
require Department approval of the Grantee’s request for reimbursement. In
requesting reimbursement, the Grantee will follow the instructions supplied by the
Department.
Unless previously agreed to in writing by the Department, the Department will not
reimburse Grantee for any costs related to the land acquisition, construction,
construction inspection, or contingency line items in Exhibit B until Grantee
demonstrates all applicable permits for the project have been obtained as required
Docusign Envelope ID: B9C3FBC2-AD57-41FF-A36E-D9CFFFBAAC99
15199
5 of 15
Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
in Section 4(c). In requesting reimbursement, the Grantee will follow the
instructions supplied by the Department.
(d) The Department will not reimburse the Grantee for any costs incurred prior to the
date identified in Section 5(b), any expenses not included in Exhibit B or an
approved adjustment thereto, any ineligible expenses as set forth in the most
current version of the Montana Main Street Program Guidelines, or any expenses
not adequately supported in writing by the Grantee's records.
(e) As set forth in Section 17, if the Grantee fails to or is unable to comply with any of
the terms and conditions of this Contract any costs incurred will be the Grantee's
sole responsibility.
(g) The Department is allowed thirty (30) business days to process a request for
reimbursement once adequate supporting documentation has been received by
the Department. The Grantee shall provide banking information before or at the
time of Contract execution in order to facilitate electronic funds transfer
payments.
(h) If the Grantee changes one of its sources of funding or the cost of the Project
increases after the Grantee has obtained the firm commitment of non-Program
funds, the Department may, at its discretion, suspend the distribution of Program
funds until the Grantee obtains a firm commitment of funds for the full Project
budget.
(i) The Department may reduce the Grantee’s amount of Program funds provided by
this Contract if actual Project expenses are lower than projected by the Grantee in
Exhibit B or the Grantee obtains a greater amount of grant funds from other
sources than as presented in the Project application.
(j) If the Department, in its sole discretion, determines that the Grantee has failed
to satisfactorily carry out its responsibilities under this Contract or has breached
the terms of this Contract, the Department may withhold reimbursement to the
Grantee until such time as the Department and the Grantee agree on a plan to
remedy the deficiency.
(k) Requests for reimbursement for contracted or subcontracted services must
include appropriate documentation demonstrating compliance with contract
requirements.
(l) The Grantee may not use monies provided through this Contract as payment for
Project costs that are reimbursed from other sources.
Docusign Envelope ID: B9C3FBC2-AD57-41FF-A36E-D9CFFFBAAC99
16200
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Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
Section 11. REPORTING REQUIREMENTS
(a) Project Progress Reports: During the term of this Contract, Grantee will submit
Project progress reports to the Department in conjunction with each request for
reimbursement. These reports will describe the status of the activities set forth in
Section 6, including, at a minimum, the percentage completed, costs incurred,
funds remaining, and projected completion date. Additionally, the report must
provide documentation supporting each claim for expenses to be reimbursed,
describe any significant problems encountered in carrying out the Project, and the
scope of any necessary modifications the Grantee is requesting in the Project scope
of work, budget, or implementation schedule. The Department, at its sole
discretion, may decline to honor any request for reimbursement if the required
Project progress report has not been submitted to or approved by the Department.
(b) Project Completion Report: Within ninety (90) days of Project completion, the
Grantee will submit a final Project completion report for Department approval. The
Project completion report will describe the total costs incurred for the Project,
identify the final completion date, and summarize any significant problems
encountered in carrying out the Project. Upon approval of the Project completion
report, the Department will issue a notice of Project close-out. If the Grantee fails
to submit a Project completion report within ninety (90) days of Project
completion, then the Department will consider the Grantee to be in breach of this
Contract.
Section 12. PROJECT MONITORING
The Department or any of its authorized agents may monitor and inspect all phases and
aspects of the Grantee's performance to determine compliance with Section 6 of this
Contract, the proper use of funds, and other technical and administrative requirements of
this Contract, including the adequacy of the Grantee’s records and accounts. The
Department may advise the Grantee of any specific areas of concern and provide the
Grantee opportunity to propose corrective actions acceptable to the Department.
The Grantee understands and acknowledges that the Department may report to the
Montana Legislature and Legislative Interim Committees as requested on the status of all
Program projects, and that information related to the Project may be considered public
information subject to disclosure under Montana law.
Section 13. NOTICE
All notices required under the provisions of this Contract must be in writing and
delivered to the Parties’ liaisons identified herein either by first class mail, electronic
mail, or personal service.
Docusign Envelope ID: B9C3FBC2-AD57-41FF-A36E-D9CFFFBAAC99
17201
7 of 15
Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
Section 14. REFERENCE TO CONTRACT
The Contract number must appear on all invoices, reports, and correspondence pertaining
to the Contract. If the number is not provided, the Department is not obligated to pay the
invoice.
Section 15. ASSIGNMENT, TRANSFER AND SUBCONTRACTING
The Grantee may not assign, transfer, or subcontract any portion of this Contract without
the Department’s prior written consent. (§ 18-4-141, MCA). The Grantee is responsible to
the Department for the acts and omissions of all Grantee’s subcontractors or agents and
of persons directly or indirectly employed by such subcontractors, and for the acts and
omissions of persons employed directly by the Grantee. No contractual relationships exist
between any subcontractor the Department under this Contract.
Section 16. CONTRACT AMENDMENT
This Contract may not be enlarged, modified, or altered without a written agreement
signed by all Parties to the Contract.
Section 17. TERMINATION OF CONTRACT
This Contract may only be terminated in whole or in part as follows:
(a) Termination Due to Loss or Reduction of Funding: The Department, at its sole
discretion, may terminate or reduce the scope of this Contract if any funding
sources are eliminated or reduced for any reason, including as permitted by
Montana Code Annotated § 18-4-313(4). If a termination or modification is
required, the Department may, if sufficient Program funds are available,
compensate the Grantee for eligible services rendered and actual, necessary, and
eligible expenses incurred as of the revised termination date. The Department will
notify the Grantee of the effective date of the termination or modification of this
Contract and, if a reduction in funding is required, provide the Grantee with a
modified Project budget amount.
(b) Termination for Cause with Notice to Cure Requirement: The Department may
terminate this Contract for failure of the Grantee, its contractors, subcontractors,
or subrecipient entities to perform or comply with any of the services, duties, terms,
or conditions contained in this Contract after giving the Grantee written notice of
the stated failure. The written notice will demand performance of the stated failure
within a specified period of time not less than thirty (30) calendar days. If the
demanded performance is not completed within the specified period, the
termination is effective at the end of the specified period.
(c) Effect of Termination: In the event of termination due to the Grantee's, its
Docusign Envelope ID: B9C3FBC2-AD57-41FF-A36E-D9CFFFBAAC99
18202
8 of 15
Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
contractors’, subcontractors’, or subrecipient entities’ failure to perform or comply
with any of the services, duties, terms, or conditions of this Contract, any costs
incurred will be the sole responsibility of the Grantee. However, at its sole
discretion, the Department may approve written requests by the Grantee for
reimbursement of eligible expenses incurred. The Department's decision to
authorize payment of any costs incurred or to recover expended Program funds
will be based on a consideration of the extent to which the expenditure of those
funds represented a good faith effort of the Grantee to comply with any of those
services, duties, terms, or conditions of this Contract, and on whether the failure to
comply with any of those services, duties, terms, or conditions resulted from
circumstances beyond the Grantee's control.
Section 18. COMPLIANCE WITH APPLICABLE LAWS
Grantee shall, in performance of work under this Contract, fully comply with all applicable
federal, state, or local laws, rules, regulations, and executive orders including but not
limited to, the Montana Human Rights Act, the Equal Pay Act of 1963, the Civil Rights Act
of 1964, the Age Discrimination Act of 1975, the Americans with Disabilities Act of 1990,
and Section 504 of the Rehabilitation Act of 1973. Grantee is the employer for the purpose
of providing healthcare benefits and paying any applicable penalties, fees and taxes under
the Patient Protection and Affordable Care Act [P.L. 111-148, 124 Stat. 119]. Any subletting
or subcontracting by Grantee subjects subcontractors to the same provisions. In
accordance with § 49-3-207, MCA, and Executive Order No. 04-2016. Grantee agrees that
the hiring of persons to perform this Contract will be made on the basis of merit and
qualifications and there will be no discrimination based on race, color, sex, pregnancy,
childbirth or medical conditions related to pregnancy or childbirth, political or religious
affiliation or ideas, culture, creed, social origin or condition, genetic information, sexual
orientation, gender identity or expression, national origin, ancestry, age, disability,
military service or veteran status, vaccination status, or marital status by the persons
performing this Contract.
Section 19. ACCOUNTING, COST PRINCIPLES, AND AUDITING
(a) The Grantee, in accordance with §§ 2-7-503, 2-7-504, MCA, implementing
administrative rules, and other authorities, must maintain for the purposes of this
Contract an accounting system of procedures and practices that conforms to
Generally Accepted Accounting Principles (“GAAP”).
(b) The Department, any other legally authorized governmental entity, or their
authorized agents may, at any time during or after the term of this Contract,
conduct in accordance with §§ 2-7-503, 5-13-304, and 18-1-118, MCA and other
authorities, audits for the purposes of ensuring the appropriate administration,
expenditure of monies, and delivery of services provided through this Contract, at
no cost to the Department.
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Section 20. AVOIDANCE OF CONFLICT OF INTEREST
(a) The Grantee will comply with §§ 2-2-121, 2-2-201, 7-3-4256, 7-3-4367, 7-5-2106,
and 7-5-4109, MCA, as applicable, and any other applicable local, state, or federal
law regarding the avoidance of conflict of interest.
(b) The Grantee agrees that none of its officers, employees, or agents will solicit or
accept gratuities, favors, or anything of monetary value from contractors,
subcontractors, or potential contractors and subcontractors, who provide or
propose to provide services relating to the project funded under this Contract.
(c) The Grantee shall promptly refer to the Department any credible evidence that a
principal, employee, agent, contractor, sub-grantee, subcontractor, or other person
has submitted any false claim or has committed any criminal or civil violation of
laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct
involving funds provided under this Contract.
Section 21. COMPLIANCE WITH WORKERS’ COMPENSATION ACT
Grantees shall comply with the provisions of the Montana Workers’ Compensation Act
while performing work for the State of Montana in accordance with §§ 39-71-401, 39-71-
405, and 39-71-417, MCA. The Grantee accepts responsibility for supplying, and requiring
all subcontractors to supply, the Department proof of compliance with the Montana
Workers’ Compensation Act while performing work for the State of Montana. The Grantee
agrees that neither the Grantee nor its employees are employees of the State. Proof of
compliance must be in the form of workers’ compensation insurance, an independent
contractor's exemption, or documentation of corporate officer status. Neither the Grantee
nor its employees are employees of the State. This insurance/exemption must be valid
for the entire term of the Contract. Proof of compliance and renewal documents must be
sent to the Department within thirty (30) days of Contract execution.
Section 22. OWNERSHIP AND PUBLICATION OF MATERIALS
All reports, information, data, and other materials prepared by the Grantee or any of its
contractors or subcontractors in furtherance of this Contract are the property of the
Grantee and the Department. Both Grantee and the Department have the royalty-free,
nonexclusive, and irrevocable right to reproduce, publish, authorize others to use, and to
otherwise use, in whole or part, such property and any information relating thereto. No
material produced in whole or part under this Contract may be copyrighted or patented
in the United States or in any other country without the prior written approval of both the
Department and the Grantee.
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Section 23. INSURANCE
(a) General Requirements: Grantee must maintain and assure for the duration of this
Contract, at its cost and expense, insurance against claims for injuries to persons
or damages to property, including contractual liability, which may arise from or in
connection with the performance of the duties and obligations in the Contract by
Grantee, its agents, employees, representatives, assigns, or subcontractors. This
insurance must cover such claims as may be caused by any negligent act or
omission. The State, its officers, officials, employees, and volunteers must be
covered as additional insureds for all claims arising out of the use of grant
proceeds provided by the State of Montana.
(b) General Liability Insurance: At its sole cost and expense, Grantee must purchase
and maintain occurrence coverage with minimum combined single limits of $1
million per occurrence and $2 million aggregate per year to cover such claims as
may be caused by any act, omission, or negligence of the Grantee or its officers,
agents, representatives, assigns, or subcontractors, or as established by statutory
tort limits of $750,000 per claim and $1,500,000 per occurrence as provided by a
self-insurance pool insuring counties, cities, or towns, as authorized under § 2-9-
211, MCA. The State, the Department, and their officers, officials, employees, and
volunteers are to be covered and listed as additional insured’s; for liability arising
out of activities performed by or on behalf of the Grantee, including the insured's
general supervision of the Grantee; products and completed operations; premises
owned, leased, occupied, or used.
(c) Professional Liability Insurance: Grantee shall assure that any representatives,
assigns, and subcontractors performing professional services under this Contract
purchase occurrence coverage with combined single limits for each wrongful act
of $1,000,000 per occurrence and $2,000,000 aggregate per year. Note: if
"occurrence" coverage is unavailable or cost prohibitive, the contractor may
provide "claims made" coverage provided the following conditions are met: (1) the
commencement date of the Contract must not fall outside the effective date of
insurance coverage and it will be the retroactive date for insurance coverage in
future years; and (2) the claims made policy must have a three (3) year tail for
claims that are filed after the cancellation or expiration date of the policy.
(d) General Provisions: All insurance coverage must be with a carrier licensed to do
business in the State of Montana and with a Best’s rating of at least A-, or by a
public entity self-insured program either individually or on a pool basis as provided
by Title 2, MCA. All certificates and endorsements must be received by the
Department prior to beginning any activity provided for under the Contract.
Grantee must notify the Department immediately of any material change in
insurance coverage, such as changes in limits, coverage, change in status of policy,
etc. The Department reserves the right to request complete copies of Grantee’s
insurance policy, including endorsements, at any time.
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(e) Property Insurance: At its sole cost and expense, Grantee must maintain property
and hazard insurance, including course of construction coverage and earthquake
insurance, for loss or damage to any building and related improvements and
contents therein on a replacement cost basis throughout the term of the Contract.
Note: earthquake insurance is required when working in areas where the shaking
level is above 10g.
(Ref: http://rmtd.mt.gov/Portals/62/aboutus/publications/files/NEHRP.pdf).
Section 24. HOLD HARMLESS AND INDEMNIFICATION
To the fullest extent permitted by law, the Grantee shall indemnify and hold harmless
State, its elected and appointed officials, officers, agents, directors, and employees from
and against all claims, damages, losses and expenses, including the cost of defense
thereof, to the extent caused by or arising out of the Grantee’s negligent acts, errors, or
omissions in work or services performed under this Contract, including but not limited
to, the negligent acts, errors, or omissions of any subcontractor or anyone directly or
indirectly employed by any subcontractor for whose acts subcontractor may be liable.
Claims under this provision also include those arising out of or in any way connected
with the Grantee's breach of this contract, including any Claims asserting that any of the
Grantee's employees are actually employees or common law employees of the State or
any of its agencies, including but not limited to, excise taxes or penalties imposed on
the State under Internal Revenue Code (“Code”) §§ 4980H, 6055 or 6056.
Section 25. DEFAULT
Failure on the part of either party to perform the provisions of the Contract constitutes
default. Default may result in the pursuit of remedies for breach of contract as set forth
herein or as otherwise legally available, including but not limited to damages and
specific performance.
Section 26. DEBARMENT
The Grantee certifies and agrees to ensure during the term of this Contract that neither it
nor its principals, contractors, subcontractors, or subrecipient entities are debarred,
suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
participation in this Contract by any governmental department or agency.
Section 27. FORCE MAJEURE
Neither party will be liable for any failure or delay in performing its duties in this
agreement due to Force Majeure Events. “Force Majeure Event” means an event or
circumstance beyond a party’s reasonable control, such as natural catastrophes and acts
of terrorism or war, and the consequences of that event or circumstance. Force Majeure
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Montana Department of Commerce City of Bozeman
Event does not include a strike or other labor unrest that affects only that party, an
increase in prices or other change in general economic conditions, a change in law, or an
event or circumstance that results in that Party’s not having sufficient funds to comply
with an obligation to pay. If a Force Majeure Event continues for thirty (30) days, the other
party may terminate this agreement or suspend payments while the event continues.
Section 28. SEPARABILITY
A declaration by any court, or any other binding legal forum, that any provision of the
Contract is illegal or void shall not affect the legality and enforceability of any other
provision of the Contract, unless the provisions are mutually dependent.
Section 29. ARBITRATION
Unless otherwise agreed to in writing or provided for by law, arbitration is not available
to the Parties as a method of resolving disputes that would arise under the Contract.
Section 30. NO WAIVER OF BREACH
No failure by the Department to enforce any provisions hereof after any event of breach
will be deemed a waiver of its rights regarding that event, or any subsequent event. No
express failure of any event of breach will be deemed a waiver of any provision hereof.
No such failure or waiver will be deemed a waiver of the right of the Department to
enforce each and all the provisions hereof upon any further or other breach on the part
of the Grantee.
Section 31. JURISDICTION AND VENUE
This Contract is governed by the laws of Montana. The Parties agree that any litigation
concerning this Contract must be brought in the First Judicial District in Lewis and Clark
County, State of Montana and each party must pay its own costs and attorney fees, except
as provided in Section 24, Hold Harmless and Indemnification.
(Remainder of page intentionally left blank.)
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Section 32. INTEGRATION
The Contract contains the entire agreement between the Parties. No statements,
promises, or inducements of any kind made by either party or the agents of either party,
not contained herein or in a properly executed amendment hereto are valid or binding.
This Contract supersedes all prior agreements, representations, and understandings. Any
amendment or modification must be in a written agreement signed by all Parties.
The Parties through their authorized agents have executed this Contract on the
dates set out below.
GRANTEE:
Chuck Winn, Manager Date
City of Bozeman
ATTEST:
Mike Mass, City Clerk Date
APPROVED AS TO FORM:
Greg Sullivan, Attorney Date
DEPARTMENT:
Mandy Rambo, Deputy Director Date
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3/10/2025
3/10/2025
3/10/2025
3/10/2025
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EXHIBIT A
Implementation Schedule
Project Name: I-Ho Pomeroy Peace Park
Activity Quarters 2025 Quarters 2026 Quarters 2027
1st 2nd 3rd 4th 1st 2nd 3rd 4th 1st 2nd 3rd 4th
Project Start-up X
Contract with Commerce X
Construction X
Project Closeout X
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EXHIBIT B
Budget
Project Budget For: I-Ho Pomeroy Peace Park
Activity
Source: Department
of Commerce Grant
MMS
Source/Match:
Downtown
Urban Renewal
District Total
Grant Administration - - -
Professional Services
(Engineering Architecture) $30,000 $6,000 36,000.00
Total Admin Costs
$
30,000.00
$
6,000.00 36,000.00
Construction Costs -
Total Construction Costs
Total Project Costs
$
30,000.00
$
6,000.00 $36,000.00
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26210
Memorandum
REPORT TO:City Commission
FROM:Kellen Gamradt, Engineer II
Shawn Kohtz, Director of Utilities
SUBJECT:Authorize the City Manager to Sign a Notice of Award to CK May Excavating
for Construction of the Riverside Lift Station and Force Main Project
MEETING DATE:April 15, 2025
AGENDA ITEM TYPE:Agreement - Vendor/Contract
RECOMMENDATION:Authorize the City Manager to Sign a Notice of Award to CK May Excavating
for Construction of the Riverside Lift Station and Force Main Project for the
Total Schedule 1 Base Bid, in the amount of $1,782,351.00.
STRATEGIC PLAN:3.1 Public Safety: Support high quality public safety programs, emergency
preparedness, facilities, and leadership.
BACKGROUND:Attached is a copy of the Notice of Award for the above-referenced project.
The project generally includes connecting the Riverside Community’s existing
wastewater collection system to the City’s Water Reclamation Facility via
construction of a new sewer lift station and force main. The contract is to be
completed within 180 calendar days of the issuance of the notice to
proceed. Bids for the project were opened on March 20th with 3 bids being
submitted. The low bid was submitted by CK May Excavating of Bozeman, in
the amount of $1,782,351 for the base bid work. The Bid Tabulation for the
project is attached. The City’s Engineering Consultant, DOWL, has drafted a
project award recommendation letter which recommends awarding the
project to the low bidder, CK May.
UNRESOLVED ISSUES:None
ALTERNATIVES:Disapprove
FISCAL EFFECTS:Special improvements district 789 has been created to finance this project
through a bond sale and secured through the state revolving loan fund.
Property owners within the Riverside Community will pay for these
improvements over the 20-year term of the loan.
Attachments:
Bid Tab - Riverside Lift Station.pdf
DOWL_Award_Recommendation letter.pdf
NoticeOfAward_CKMay_Riverside Lift Station Project.docx
27
Report compiled on: April 1, 2025
28
Name:Contractor #:Affirmation Form:Bid Bond:Debarment
CK May Excavating Yes Yes Yes
Williams Civil Construction Yes Yes Yes
Sime Construction Yes Yes Yes
Mike Maas Kellen Gamradt
City Clerk Engineer II
Riverside Lift Station
These bids were opened and read before the undersigned at 2:30 pm on Th
Docusign Envelope ID: B307616A-B3A5-478C-82E9-D75D1FF7B01F
29194
DBE Base Bid Total:
Yes $1,782,351.00
Yes $2,288,240.00
$1,990,161.00
hursday, March 20, 2025
Docusign Envelope ID: B307616A-B3A5-478C-82E9-D75D1FF7B01F
30195
406-586-8834 ■ 800-865-9847 (fax) ■ 2090 Stadium Drive ■ Bozeman, Montana 59715 ■ www.dowl.com
April 1, 2025
Mr. Kellen Gamradt
City of Bozeman
P.O. Box 1230
Bozeman, MT 59771
Subject: Riverside Lift Station and Force Main – Bid Opening; Recommendation for
Award
Dear Mr. Gamradt:
The City received bids for the Riverside Sewer Lift Station and Force Main on March 20, 2025
and received three responsive and responsible bids as reflected in the below table. All bids
were within the current project budget and Special Improvement District funding limitations, and
the project can proceed to contracting and construction.
Bidder Bid Amount
CK May Excavating $1,782,351.00
Sime Construction $1,990,161.00
Williams Civil Construction $2,288,240.00
Engineer’s Estimate $2,357,314.00
The low bidder, CK May Excavating has indicated they are prepared to accept award for the
project. They have further indicated their major subcontractors for the project are CEI Electrical
Contractors and Tru Directional for the significant electrical and horizontal directional drilling
project components, respectively. DOWL considers CK May and these subcontractors
sufficiently qualified for the scope of this project. We recommend award of the construction
contract in the amount of $1,782,351 to CK May Excavating of Bozeman, MT.
If you have any further questions please let use know. Please find attached the completed
Notice of Award for the City’s use.
Sincerely,
DOWL
Kevin R. Johnson, PE, BCEE
Project Manager
Attachment(s): As stated
c:
31
NOTICE OF AWARD Sec 00440 - 1
DIVISION 1 – GENERAL REQUIREMENTS
SECTION 00440 – NOTICE OF AWARD
NOTICE OF AWARD
Dated: __________________
TO: CK May Excavating, Inc.
ADDRESS: P.O. Box 1426; Belgrade, MT 59714
PROJECT: Riverside Lift Station and Force Main
CONTRACT FOR: City of Bozeman – Riverside Lift Station and Force Main
You are notified that your Bid opened on March 20, 2025, for the above Contract has been considered. You are the
apparent Successful Bidder and have been awarded a Contract for the:City of Bozeman – Riverside Lift Station
and Force Main. The Contract Price of your Contract is: one million, seven hundred, eighty two thousand, three
hundred fifty one dollars ($1,782,351.00).
You must comply with the following conditions precedent within fifteen (15) days of the date of this Notice of Award,
that is, by _______________.
1.You must deliver with the Contract Security (Bonds) as specified in the Instruction to Bidders (Article 20),
and the General Conditions (paragraph 5.01).
2.You must deliver with the executed Agreement the Certificates of Insurance as specified in the General
Conditions (Article 5) and Supplementary Conditions (paragraphs SC-5.04 and SC-5.06).
Failure to comply with these conditions within the time specified will entitle OWNER to consider your Bid abandoned,
to annul this Notice of Award, and to declare your Bid Security forfeited.
Within ten (10) days after you comply with these conditions, OWNER will route the documents via “DocuSign” for
final signature of the Agreement form and provide a fully-executed copy of the Contract Documents.
CITY OF BOZEMAN, MONTANA ATTEST:
BY: __________________________________BY: ____________________________
(CITY MANAGER)
(CITY CLERK)
DATE: _______________________________
32
Memorandum
REPORT TO:City Commission
FROM:Addi Jadin, Park Planning and Development Manager
Mitch Overton, Director of Parks and Recreation
SUBJECT:Authorize City Manager to Sign Notice of Award to Smith River Construction
for Story Mill Community Park Splash Pad, and Final Documents Once
Received
MEETING DATE:April 15, 2025
AGENDA ITEM TYPE:Agreement - Vendor/Contract
RECOMMENDATION:Authorize City Manager to Sign Notice of Award for Smith River Construction
for Story Mill Community Park Splash Pad, and Final Documents Once
Received
STRATEGIC PLAN:3.4 Active Recreation: Facilitate and promote recreational opportunities and
active health programs and facilities.
BACKGROUND:Story Mill Community Park Splash Pad was included in the original Park
Master Plan. The splash pad was initially added to the City's Capital
Improvements Plan in 2022, but delayed as partner agreements and a design
process was pursued to create custom splash equipment. After an
unsuccessful bidding process, the department and project partners at Trust
for Public Land agreed to pursue a different design and the City has procured
equipment to be installed in the spring and early summer of 2025. After a
new, successful bidding process and at the recommendation of the project
engineer (attached), the City aims to move forward with a construction
contract for Smith River Construction following the project budget
amendment scheduled for May 6, 2025.
UNRESOLVED ISSUES:na
ALTERNATIVES:Per Commission
FISCAL EFFECTS:Budget Amendment for this project is scheduled for May 6, 2025.
Attachments:
Splash Pad Recommendation to Award.pdf
Splash Pad Bid Tabulation_2025.pdf
Report compiled on: April 3, 2025
33
MONTANA | WASHINGTON | IDAHO | NORTH DAKOTA | PENNSYLVANIA
406.586.0277
tdhengineering.com
234 East Babcock Street
Suite 3
Bozeman, MT 59715
April 3, 2025
Addi Jadin, Park Planning and Development Manager
City of Bozeman Parks and Recreation Department
P.O. Box 1230
Bozeman, MT 59771
RE: STORY MILL COMMUNITY PARK SPLASH PAD
ENGINEER RECOMMENDATION
TD&H ENGINEERING JOB NO. B24-069
Dear Addi,
TD&H has tabulated the bids from contractors for the Story Mill Community Park Splash
Pad. After an active and successful bidding period, overall, three contractors submitted
bids on the splash pad work. All contractors submitted bids to the City of Bozeman on
March 19, 2025. This letter acknowledges that the City has reviewed the bid costs and will
proceed with budget appropriation and contracting.
The low bid for this project came in as follows: $682,000.00
Smith River Construction LLC has confirmed that they are comfortable with their numbers
to complete a successful project and their Work In Progress (WIP) shows they have the
capacity to begin splash pad work this summer and complete the project for use during the
2025 season.
Please let me know if you have any questions.
Sincerely,
Lincoln Jamrog, PE
Project Manager
TD&H ENGINEERING
Attachments: 2025 Bid Tabulation
34
Story Mill Community Park Splash Pad (#9506969)
Owner: Bozeman MT, City of
Solicitor: Bozeman MT, City of
Bid Tabulation For Bids Dated 03/19/2025 02:00 PM MDT
Smith River Construction LLC BMY Construction Group Inc.Two Bear Construction
Section TitleLine Item Item Code Item Description UofM Quantity Unit Price Extension Unit Price Extension Unit Price Extension
Base Bid
1 101 Mobilization L.S.1 $100,000.00 $100,000.00 $54,000.00 $54,000.00 $115,831.36 $115,831.36
2 102 Splash Pad Concrete Slab L.S.1 $115,000.00 $115,000.00 $198,310.00 $198,310.00 $162,156.35 $162,156.35
3 103 Splash Pad Equipment Installation L.S.1 $178,000.00 $178,000.00 $354,046.00 $354,046.00 $213,705.90 $213,705.90
4 104 Splash Pad Electrical Work L.S.1 $55,000.00 $55,000.00 $49,791.00 $49,791.00 $62,005.59 $62,005.59
5 105 Water Service Installation L.S.1 $92,000.00 $92,000.00 $13,188.00 $13,188.00 $49,919.40 $49,919.40
6 106 Sewer Service Installation L.S.1 $94,000.00 $94,000.00 $23,585.00 $23,585.00 $125,479.65 $125,479.65
7 107 Cleanup L.S.1 $38,000.00 $38,000.00 $6,890.00 $6,890.00 $39,998.39 $39,998.39
8 108 Miscellaneous LS 1 $10,000.00 $10,000.00 $1.00 $1.00 $0.00 $0.00
Base Bid Total:$682,000.00 $699,811.00 $769,096.64
35
Memorandum
REPORT TO:City Commission
FROM:Griffin Nielsen, Water Resource Engineer
Shawn Kohtz, Director of Utilities
SUBJECT:Authorize the City Manager to Sign a Professional Services Master Task
Order Agreement with Advanced Engineering and Environmental Services,
LLC for On-call Engineering Services for the City of Bozeman Water
Treatment Division
MEETING DATE:April 15, 2025
AGENDA ITEM TYPE:Agreement - Vendor/Contract
RECOMMENDATION:Authorize the City Manager to sign a Professional Services Master Task
Order Agreement with Advanced Engineering and Environmental Services,
LLC for on-call engineering services for the City of Bozeman Water Treatment
Division.
STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and
maintenance for existing and new infrastructure.
BACKGROUND:The City’s Water Treatment Division operates and maintains a wide variety of
complex systems at the City’s water treatment plants and within the water
distribution systems. The Water Treatment Division and Utilities Department
staff work closely to operate and maintain these systems; however, projects
and situations occasionally arise that require outside engineering support.
Having outside engineering services available through an on-call agreement
better positions the division to quickly respond to needs as they arise.
A request for qualifications for on-call engineering services was advertised
on November 16th, 2024. Three statements of qualification were received.
Upon review of the submission, City staff determined that Advanced
Engineering and Environmental Services (AE2S) is qualified to provide the
range of engineering services necessary for the Water Treatment Division.
The attached Professional Services Master Task Order Agreement (on-call
agreement) has been negotiated with AE2S. As work arises, the on-call
agreement requires negotiation of individual task orders. The initial term of
the on-call agreement expires December 31, 2027, but may be extended
upon mutual agreement of the parties for up to two additional years.
UNRESOLVED ISSUES:None
36
ALTERNATIVES:As suggested by the Commission
FISCAL EFFECTS:As work arises, individual task orders will be negotiated prior to proceeding
with work. Task order costs will be funded by the Utilities Department's
operating budgets.
Attachments:
WTD_2025 OnCall Master Professional Services
Agmt_AE2S.docx
Report compiled on: April 3, 2025
37
Professional Services Master Task Order Agreement for WTP On-Call Engineering Services
PROFESSIONAL SERVICES MASTER TASK ORDER AGREEMENT
THIS AGREEMENT is made and entered into this _____ of ________________, 2025, 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, Advanced Engineering and Environmental Services, LLC, 1288 N. 14th
Ave Ste 103, Bozeman, MT 59715, , 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 as follows:
1.Purpose: City agrees to enter into this agreement with Contractor to provide a range
of professional and technical services related to operations and maintenance of the City of Bozeman
Water Treatment Plant and Facilities, including but not necessarily limited to engineering design,
preparation of construction documents, project bidding, and construction administration services for
various improvement projects, as requested by the City through issuance of individual, consecutively
numbered Task Orders on an as needed and requested basis.
2.Term/Effective Date: This Agreement is effective upon the date of its execution and
will expire on December 31th, 2027 unless extended or terminated as specifically provided for within
the agreement.
3.Scope of Work: Contractor will perform the work and provide the services in
accordance with the specific services and corresponding cost and schedule as mutually agreed upon by
City and Contractor and included in each individual Task Order executed under the authority of this
Agreement. Task Orders shall be in a format similar to EXHIBIT A, attached and made part of this
Agreement. For conflicts between this Agreement and the Scope of Services, unless specifically
provided otherwise, the Agreement governs.
4.Payment: The terms of compensation to Contractor shall be agreed upon and included
in each Task Order.City agrees to pay Contractor the amount specified in the individual Task Orders.
Any alteration or deviation from the described services that involves additional costs above the
Agreement amount will be performed by Contractor after written request by the City, and will become
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Professional Services Master Task Order Agreement for WTP On-Call Engineering Services
an additional charge over and above the amount listed in the Scope of Services. The City must agree
in writing upon any additional charges.
5. Contractor’s Representations: To induce City to enter into this Agreement,
Contractor makes the following representations:
a.For each individual Task Order, Contractor will familiarized itself with the nature and
extent of the assignment, 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 and will provide a mutually agreeable Scope of Services for each Task Order.
b.Contractor represents to City that it has the experience and ability to perform the
services required by this Agreement; that it will perform said services in a professional, competent
and timely manner and with diligence and skill ordinarily used by member in the same profession
practicing at the same time and in the same locality; 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 standard of care.
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, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71,
MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of
Contractor’s business, except for those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for
workers’ compensation coverage by an insurer licensed and authorized to provide workers’
compensation insurance in the State of Montana; or (2) proof of exemption from workers’
compensation granted by law for independent contractors.
Contractor shall indemnify, 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
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Professional Services Master Task Order Agreement for WTP On-Call Engineering Services
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 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; (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 willful
misconduct of the Contractor or Contractor’s agents or employees. Defense obligation under this
indemnity paragraph means only the reimbursement of reasonable defense costs to the proportionate
extent of the Contractor’s actual liability obligation hereunder.
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).
Contractor’s indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City.
Should any indemnitee described herein be required to bring an action against the Contractor
to assert its right to defense or indemnification under this Agreement or under the Contractor’s
applicable insurance policies required below the indemnitee shall be entitled to recover reasonable
costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court
of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was
obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof.
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Professional Services Master Task Order Agreement for WTP On-Call Engineering Services
In the event of an action filed against City resulting from the City’s performance under this
Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
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 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 and 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 and annual aggregate;
Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
Automobile Liability - $1,000,000 property damage/bodily injury; $1,000,000 annual
aggregate; and
Professional Liability - $2,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers,
agents, and employees, shall be endorsed as an additional or named insured on a primary non-
contributory basis on 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. The City must approve all insurance coverage and
endorsements prior to the Contractor commencing work. Contractor shall notify City within two (2)
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Professional Services Master Task Order Agreement for WTP On-Call Engineering Services
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 or
any individual Task Order under 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 or any Task Order under this Agreement by written notice to
Contractor (“Notice of Termination for City’s Convenience”). The termination shall be
effective in the manner specified in the Notice of Termination for City’s Convenience and
shall be without prejudice to any claims that the City may otherwise have against Contractor.
b.Upon receipt of the Notice of Termination for City’s Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance under
this Agreement or any Task Order under this Agreement and make every reasonable effort to
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Professional Services Master Task Order Agreement for WTP On-Call Engineering Services
refrain from continuing work, incurring additional expenses or costs under this Agreement or
any Task Order 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 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.
11.Representatives:
a.City’s Representative: The City’s Representative for the purpose of this
Agreement shall be Griffin Nielsen, PE 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 Brian
Heaston as the City’s Representative and approvals or authorizations shall be issued only by
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Professional Services Master Task Order Agreement for WTP On-Call Engineering Services
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 listed above and may receive approvals or
authorization from such persons.
b.Contractor’s Representative: The Contractor’s Representative for the
purpose of this Agreement shall be Brian Viall 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.
12.Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman
business license, and inspections from applicable governmental authorities, and pay all fees and
charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers’
compensation laws, all environmental laws including, but not limited to, the generation and disposal
of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and
provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and
State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination,
affirmative action, and utilization of minority and small business statutes and regulations.
14.Web Accessibility and the ADA: Title II of the ADA prohibits discrimination against
people with disabilities in all services, programs, and activities offered or made available by the City.
This includes ensuring that the City’s communications with people with disabilities are as effective
as its communications with others.
If Contractor’s Scope of Services includes the production of digital content, documents, or web
applications intended to be branded for use by the City, Contractor must use the City style guide
when creating a design. As per recommendations found in Section 508 of the Rehabilitation Act,
all digital content, documents, or web applications must also adhere to level A and AA Success
Criteria and Conformance Requirements as defined by the current Web Content Accessibility
Guidelines (WCAG).
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Professional Services Master Task Order Agreement for WTP On-Call Engineering Services
The City will not accept digital content that does not comply with WCAG A and AA guidelines. If
the City refuses digital content because it is non-compliant with the City style guide, Section 508 of
the Rehabilitation Act, and/or WCAG, Contractor will be required to make the digital content
compliant and redelivered at no additional cost to the City.
15.Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by
Contractor of persons performing this Agreement shall be on the basis of merit and qualifications.
The Contractor will have a policy to provide equal employment opportunity in accordance with all
applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will
not refuse employment to a person, bar a person from employment, or discriminate against a person
in compensation or in a term, condition, or privilege of employment because of race, color, religion,
creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation,
gender identity, physical or mental disability, except when the reasonable demands of the position
require an age, physical or mental disability, marital status or sex distinction. The Contractor shall
be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United
States Code, and all regulations promulgated thereunder.
Contractor represents it is, and for the term of this Agreement will be, in compliance with the
requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act).
Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has
been found guilty of within 60 days of such finding for violations occurring during the term of this
Agreement.
Contractor shall require these nondiscrimination terms of its subcontractors providing services
under this Agreement.
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
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Professional Services Master Task Order Agreement for WTP On-Call Engineering Services
instructing his employees and agents in safe work practices.
16.Modification and Assignability: This Agreement may not be enlarged, modified or
altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor’s rights, including the right to compensation or duties arising
hereunder, without the prior written consent of 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 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: That in the event it becomes necessary for either Party of
this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to
give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled
to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include
City Attorney.
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.
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Professional Services Master Task Order Agreement for WTP On-Call Engineering Services
b.If the parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this Agreement.
22.Survival: Contractor’s indemnification shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
23.Headings: The headings used in this Agreement are for convenience only and are not
be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to
which they refer.
24.Severability: If any portion of this Agreement is held to be void or unenforceable, the
balance thereof shall continue in effect.
25.Applicable Law: The parties agree that this Agreement is governed in all respects by
the laws of the State of Montana.
26.Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs,
legal representatives, successors, and assigns of the parties.
27.No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28.Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29.Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained therein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties other
than as set forth in this Agreement. All communications, either verbal or written, made prior to the
date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this
Agreement by reference.
30.Extensions:this Agreement may, upon mutual agreement, be extended for a period
of one year by written agreement of the Parties. In no case, however, may this Agreement run longer
than December 31, 2029.
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Professional Services Master Task Order Agreement for WTP On-Call Engineering Services
31.Consent to Electronic Signatures: The Parties have consented to execute this Agreement
electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter
18, Part 1, MCA.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
IN WITNESS WHEREOF,the parties hereto have executed this instrument the day and year
first above written.
CITY OF BOZEMAN, MONTANA ADVANCED ENGINEERING AND
ENVIRONMENTAL SERVICES, LLC
By________________________________By__________________________________
Chuck Winn, Interim City Manager
Print Name: Zach Magdol
Print Title: Operations Manager
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
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Memorandum
REPORT TO:City Commission
FROM:Griffin Nielsen, Water Resource Engineer
Shawn Kohtz, Director of Utilities
SUBJECT:Authorize the City Manager to Sign a Professional Services Master Task
Order Agreement with Advanced Engineering and Environmental Services,
LLC for On-call Engineering services for the City of Bozeman Water
Reclamation Facility
MEETING DATE:April 15, 2025
AGENDA ITEM TYPE:Agreement - Vendor/Contract
RECOMMENDATION:Authorize the City Manager to sign a Professional Services Master Task
Order Agreement with Advanced Engineering and Environmental Services,
LLC for on-call engineering services for the City of Bozeman Water
Reclamation Facility.
STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and
maintenance for existing and new infrastructure.
BACKGROUND:The City operates and maintains a wide variety of complex systems at the
Water Reclamation Facility (WRF) and within the wastewater collection
systems. The Water Reclamation Facility and Utilities Department staff work
closely to operate and maintain these systems; however, projects and
situations occasionally arise that require outside engineering support. Having
outside engineering services available through an on-call agreement better
positions the division to quickly respond to needs as they arise.
A request for qualifications for on-call engineering services was advertised
on November 16th, 2024. Four statements of qualification were received.
Upon review of the submission, City staff determined that Advanced
Engineering and Environmental Services (AE2S) is qualified to provide the
range of engineering services necessary for the Water Reclamation Facility.
The attached Professional Services Master Task Order Agreement (on-call
agreement) has been negotiated with AE2S. As work arises, the on-call
agreement requires negotiation of individual task orders. The initial term of
the on-call agreement expires December 31, 2027, but may be extended
upon mutual agreement of the parties for up to two additional years.
UNRESOLVED ISSUES:None
49
ALTERNATIVES:As suggested by the Commission
FISCAL EFFECTS:As work arises, individual task orders will be negotiated prior to proceeding
with work. Task order costs will be funded by the Utilities Department's
operating budgets.
Attachments:
2025_WRF_OnCall_Professional Services Agmt_AE2S.docx
Report compiled on: April 3, 2025
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Professional Services Master Task Order Agreement for WRF On-Call Engineering Services
PROFESSIONAL SERVICES MASTER TASK ORDER AGREEMENT
THIS AGREEMENT is made and entered into this _____ of _____2025, 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, ADVANCED ENGINEERING AND ENVIRONMENTAL SERVICES, LLC, 1288
N. 14th Ave Ste 103, Bozeman, MT 59715, 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 as follows:
1.Purpose: City agrees to enter into this agreement with Contractor to provide a range
of professional and technical services related to operations and maintenance of the City of Bozeman
Water Reclamation Facility, including but not necessarily limited to engineering design, preparation
of construction documents, project bidding, and construction administration services for various
improvement projects, as requested by the City through issuance of individual, consecutively
numbered Task Orders on an as needed and requested basis.
2.Term/Effective Date: This Agreement is effective upon the date of its execution and
will expire on December 31th, 2027 unless extended or terminated as specifically provided for within
the agreement.
3.Scope of Work: Contractor will perform the work and provide the services in
accordance with the specific services and corresponding cost and schedule as mutually agreed upon by
City and Contractor and included in each individual Task Order executed under the authority of this
Agreement. Task Orders shall be in a format similar to EXHIBIT A, attached and made part of this
Agreement. For conflicts between this Agreement and the Scope of Services, unless specifically
provided otherwise, the Agreement governs.
4.Payment: The terms of compensation to Contractor shall be agreed upon and included
in each Task Order.City agrees to pay Contractor the amount specified in the individual Task Orders.
Any alteration or deviation from the described services that involves additional costs above the
Agreement amount will be performed by Contractor after written request by the City, and will become
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Professional Services Master Task Order Agreement for WRF On-Call Engineering Services
an additional charge over and above the amount listed in the Scope of Services. The City must agree
in writing upon any additional charges.
5. Contractor’s Representations: To induce City to enter into this Agreement,
Contractor makes the following representations:
a.For each individual Task Order, Contractor will familiarized itself with the nature and
extent of the assignment, 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 and will provide a mutually agreeable Scope of Services for each Task Order.
b.Contractor represents to City that it has the experience and ability to perform the
services required by this Agreement; that it will perform said services in a professional, competent
and timely manner and with diligence and skill ordinarily used by member in the same profession
practicing at the same time and in the same locality; 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 standard of care.
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, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71,
MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of
Contractor’s business, except for those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for
workers’ compensation coverage by an insurer licensed and authorized to provide workers’
compensation insurance in the State of Montana; or (2) proof of exemption from workers’
compensation granted by law for independent contractors.
Contractor shall indemnify, 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
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Professional Services Master Task Order Agreement for WRF On-Call Engineering Services
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 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; (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 willful
misconduct of the Contractor or Contractor’s agents or employees. Defense obligation under this
indemnity paragraph means only the reimbursement of reasonable defense costs to the proportionate
extent of the Contractor’s actual liability obligation hereunder.
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).
Contractor’s indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City.
Should any indemnitee described herein be required to bring an action against the Contractor
to assert its right to defense or indemnification under this Agreement or under the Contractor’s
applicable insurance policies required below the indemnitee shall be entitled to recover reasonable
costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court
of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was
obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof.
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Professional Services Master Task Order Agreement for WRF On-Call Engineering Services
In the event of an action filed against City resulting from the City’s performance under this
Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
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 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 and 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 and annual aggregate;
Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
Automobile Liability - $1,000,000 property damage/bodily injury; $1,000,000 annual
aggregate; and
Professional Liability - $2,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers,
agents, and employees, shall be endorsed as an additional or named insured on a primary non-
contributory basis on 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. The City must approve all insurance coverage and
endorsements prior to the Contractor commencing work. Contractor shall notify City within two (2)
54
Professional Services Master Task Order Agreement for WRF On-Call Engineering Services
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 or
any individual Task Order under 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 or any Task Order under this Agreement by written notice to
Contractor (“Notice of Termination for City’s Convenience”). The termination shall be
effective in the manner specified in the Notice of Termination for City’s Convenience and
shall be without prejudice to any claims that the City may otherwise have against Contractor.
b.Upon receipt of the Notice of Termination for City’s Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance under
this Agreement or any Task Order under this Agreement and make every reasonable effort to
55
Professional Services Master Task Order Agreement for WRF On-Call Engineering Services
refrain from continuing work, incurring additional expenses or costs under this Agreement or
any Task Order 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 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.
11.Representatives:
a.City’s Representative: The City’s Representative for the purpose of this
Agreement shall be Griffin Nielsen, PE 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 Brian
Heaston as the City’s Representative and approvals or authorizations shall be issued only by
56
Professional Services Master Task Order Agreement for WRF On-Call Engineering Services
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 listed above 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 Zach Frieling 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.
12.Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman
business license, and inspections from applicable governmental authorities, and pay all fees and
charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers’
compensation laws, all environmental laws including, but not limited to, the generation and disposal
of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and
provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and
State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination,
affirmative action, and utilization of minority and small business statutes and regulations.
14.Web Accessibility and the ADA: Title II of the ADA prohibits discrimination against
people with disabilities in all services, programs, and activities offered or made available by the City.
This includes ensuring that the City’s communications with people with disabilities are as effective
as its communications with others.
If Contractor’s Scope of Services includes the production of digital content, documents, or web
applications intended to be branded for use by the City, Contractor must use the City style guide
when creating a design. As per recommendations found in Section 508 of the Rehabilitation Act,
all digital content, documents, or web applications must also adhere to level A and AA Success
Criteria and Conformance Requirements as defined by the current Web Content Accessibility
Guidelines (WCAG).
57
Professional Services Master Task Order Agreement for WRF On-Call Engineering Services
The City will not accept digital content that does not comply with WCAG A and AA guidelines. If
the City refuses digital content because it is non-compliant with the City style guide, Section 508 of
the Rehabilitation Act, and/or WCAG, Contractor will be required to make the digital content
compliant and redelivered at no additional cost to the City.
15.Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by
Contractor of persons performing this Agreement shall be on the basis of merit and qualifications.
The Contractor will have a policy to provide equal employment opportunity in accordance with all
applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will
not refuse employment to a person, bar a person from employment, or discriminate against a person
in compensation or in a term, condition, or privilege of employment because of race, color, religion,
creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation,
gender identity, physical or mental disability, except when the reasonable demands of the position
require an age, physical or mental disability, marital status or sex distinction. The Contractor shall
be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United
States Code, and all regulations promulgated thereunder.
Contractor represents it is, and for the term of this Agreement will be, in compliance with the
requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act).
Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has
been found guilty of within 60 days of such finding for violations occurring during the term of this
Agreement.
Contractor shall require these nondiscrimination terms of its subcontractors providing services
under this Agreement.
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
58
Professional Services Master Task Order Agreement for WRF On-Call Engineering Services
instructing his employees and agents in safe work practices.
16.Modification and Assignability: This Agreement may not be enlarged, modified or
altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor’s rights, including the right to compensation or duties arising
hereunder, without the prior written consent of 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 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: That in the event it becomes necessary for either Party of
this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to
give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled
to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include
City Attorney.
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.
59
Professional Services Master Task Order Agreement for WRF On-Call Engineering Services
b.If the parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this Agreement.
22.Survival: Contractor’s indemnification shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
23.Headings: The headings used in this Agreement are for convenience only and are not
be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to
which they refer.
24.Severability: If any portion of this Agreement is held to be void or unenforceable, the
balance thereof shall continue in effect.
25.Applicable Law: The parties agree that this Agreement is governed in all respects by
the laws of the State of Montana.
26.Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs,
legal representatives, successors, and assigns of the parties.
27.No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28.Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29.Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained therein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties other
than as set forth in this Agreement. All communications, either verbal or written, made prior to the
date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this
Agreement by reference.
30.Extensions:this Agreement may, upon mutual agreement, be extended for a period
of one year by written agreement of the Parties. In no case, however, may this Agreement run longer
than December 31, 2029.
60
Professional Services Master Task Order Agreement for WRF On-Call Engineering Services
31.Consent to Electronic Signatures: The Parties have consented to execute this Agreement
electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter
18, Part 1, MCA.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
IN WITNESS WHEREOF,the parties hereto have executed this instrument the day and year
first above written.
CITY OF BOZEMAN, MONTANA ADVANCED ENGINEERING AND
ENVIRONMENTAL SERVICES, LLC
By________________________________By__________________________________
Chuck Winn, Interim City Manager
Print Name: _Zach Magdol______________
Print Title: __Operations Manager________
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
61
Memorandum
REPORT TO:City Commission
FROM:Nicholas Ross, Director of Transportation and Engineering
SUBJECT:Resolution Authorizing Change Order 2 with Roset and Associates for
Construction Modifications, Solid Waste Building Remodel and Garage
Addition Project
MEETING DATE:April 15, 2025
AGENDA ITEM TYPE:Agreement - Vendor/Contract
RECOMMENDATION:Authorize the City Manager to execute Change Order No. 2 with Roset and
Associates for Construction Modifications, Solid Waste Building Remodel and
Garage Addition Project.
STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and
maintenance for existing and new infrastructure.
BACKGROUND:On April 4, 2023 Commission authorized award of a prime contract with
Roset and Associates, Inc. to complete the Solid Waste Facility Office
Remodel and Garage Expansion. Attached is a copy of a Resolution and
Change Order No. 2 for the above referenced project. This change order is
related to various items during construction including site work and
entryways treatments. Negotiation was held between city, architect, and
contractor to resolve responsibilities as described in the attached Change
Order.
UNRESOLVED ISSUES:None
ALTERNATIVES:As suggested by the commission.
FISCAL EFFECTS:Change Order No. 2 is for an addition of $22,913.00 to the contract for a
total of $843,253.00. City will receive a payment of $6,300.00 to be
deposited in the Solid Waste Fund for a total increase of $16,613.00 in Fund
obligations.
Attachments:
Resolution Solid Waste Expansion CO-2.docx
Change Order 2 - Modifications to SWD Renovation and
Addition 2025
Report compiled on: April 1, 2025
62
Version February 2023
RESOLUTION XXXX
AUTHORIZING CHANGE ORDER NO. 2 WITH ROSET AND ASSOCIATES FOR CONSTRUCTION
MODIFICATIONS – SOLID WASTE BUILDING REMODEL AND GARAGE ADDITION PROJECT
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA,
WHEREAS,the City Commission did, on the 4th day of April 2023, authorize award of the
bid for the Solid Waste Facility Office Remodel and Garage Addition Project to Roset and
Associates, Inc., Bozeman, Montana; and
WHEREAS,the City Commission did, on the 23rd day of January 2024, authorize Change
Order No. 1 for the Solid Waste Facility Office Remodel and Garage Addition Project with Roset
and Associates, Inc., Bozeman, Montana for the Sand Interceptor in the Equipment Storage
Building; and
WHEREAS,Section 7-5-4308, Montana Code Annotated, provides that any such
alterations or modifications of the specifications and/or plans of the contract be made by
resolution; and
WHEREAS,it has become necessary in the prosecution of the work to make alterations or
modifications to the specifications and/or plans of the contract.
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman,
Montana, to wit: the proposed modifications and/or alterations to the contract between the City
of Bozeman, a municipal corporation, and Roset and Associates, Inc., as contained in Change
Order No. 2, attached hereto, be and the same are hereby approved; and the City Manager is
hereby authorized and directed to execute the contract change order for and on behalf of the
City; and the City Clerk is authorized and directed to attest such signature.
63
Version February 2023
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____.
___________________________________
Terry Cunningham
Mayor
ATTEST:
___________________________________
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
___________________________________
GREG SULLIVAN
City Attorney
64
'WAIA Document G7o1' - zoll
Change Order
PROJECT: (Name and address) CONTRACT INFORMATION: CHANGE ORDER INFORMATION:
Bozeman Solid Waste Contract For: General Construction Change Order Number: 002
2143 Story Mill Road, Bozeman, MT Date: 613o123 Date:03112125
59715
OWNER: (Name and address) ARCHITECT: (Name and address) COI{TRACTOR: (Name and address)
City of Bozeman Hennebery Eddy Architects Roset and Associates
l2l N. Rouse Ave. I 09 N. Rouse Ave. 994 Auger Ln
Bozeman, MT 59715 Bozeman, MT 59715 Bozeman, MT 59718
THE CONTRACT 1S CHANGED AS FOLLOWS:
(Insert a detailed description ofthe change and, dapplicable, altach or reference specific exhibits. Also include agreed upon adjustments
attributable to executed Construction Change Directives.)
Additional site scope including fill, asphalt, and misc. site concrete.
The original Contract Sum was $ ZZ:,SOO.OO
The net change by previously authorized Change Orders $ +O,S+O.OO
The Contract Sum prior to this Change Order was $ 820,340.00
The Contract Sum will be increased by this Change Order in the amount of $ ZZ,qtg.OO
The new Contract Sum including this Change Order will be $ S+:,ZS:.OO
The Contract Time will be increased by Zero (0) days.
The new date of Substantial Completion will be
NOTE: This Change Order does not include adjustments to the Contract Sum or Guaranteed Maximum Price, or the Contract
Time, that have been authorized by Construction Change Directive until the cost and time have been agreed upon by both the
Owner and Contractor, in which case a Change Order is executed to supersede the Construction Change Directive.
NOT VALID UNTIL SIGNED BY THE ARCHITECT, CONTRACTOR AND OWNER.
Hennebery Eddy Architects Roset and Associates City of Bozeman
ARCHITECT (Firm name)CONTRACTOR (Fit'm name)OWNER (Firm name)
SIGNATURE
Scott Dean, Proiect Architect
SIGNATURE
Eric Roset, President
SIGNATURE
KevinHandelin, Superintendent
PRINTED NAME AND TITLE PRINTED NAME AND TITLE PRINTED NAME AND TITLE
DATE DATE DATE
AIA Document G7O1 - 2017 . Copyright @ 1 979, 1987, 2000 , 2001 and 2017 . All rights reserved. "The American lnstitute of Architects," "American lnstitute of
Architects," "AlA," the AIA Logo, and "AlA Contract Documents" are trademarks of The American lnstitute of Architects. This document was produced at 13:06:06 1Ef on 0312412025 under Order No.41 042431 55 which expires on 0413012025, is not for resale, is licensed for one-time use only, and may only be used in
accordance with the AIA Contract Documents@ Terms of Service. To report copyright violations, e-mail docinfo@aiacontracts.com.
User Notes: (3B9ADA40)65
312412025
Kevin Handtin, Superintendent
City of Bozeman, Sotid waste Division
121 N Rouse Ave.
Bozeman, MT 59715
RE: City of Eozeman Solid Waste Division Renovation and Addition - Proiect 1{o. 21111
Dear Kevin:
Over the course of the construction phase at the Sotid Waste project construction scope and costs
in excess of the originaI Contract Amount were identified. Of these additions only one was
documented in writing: Change Order 001 for the addition of a ftoor drain in the amount of
$45,540.00. ln addition to Change 0rder 001, severalverbaI directives by City of Bozeman
representatives were given to Roset Construction that further expanded the scope of the proiect.
The reasons for these construction scope changes vary but were primarily centered around sitework
and concrete. These additions totaled $47,160.64. White a significant maiority of the work resulted
in value to the City, it is at the request of City of Bozeman representatives that a negotiated
agreement be imptemented that shares the cost ofthis work. That agreement has been reached
and is as fotlows:
$8,504.53
Not Shared - Roset Construction
1. Foundation Height Addition
$38,656.11
Shared - City of Bozeman, Design Team, Roset Construction
2. Asphatt Area and fi[[
3. Air Conditioner Pad and Side Entry
4. Front Entry Ramp and Railing
Resolution of the $38,6 56.11 is as foltows:
City of Bozeman $25,720.00 ($9,107.00 contract batance + $16,613.00)
Roset Construction $6,636.1 1
Hennebery Eddy Architects $3,800.00
Morrison Maierle $2,500.00
Attached is Change Order #002 which cancels work from the original contract for ceiting and floor
finishing at the Owner's request and adds scope for items 1 through 4, above. The doltar amount
109 NORTI] ROUSEAVENUE
8OZEMAN IVONTANA
'971'
}lenneDtry tddy
66
for Change Order 002 is proposed aI$22,973.00. This amount was determined by subtracting
Roset's share ofthe shared expense ($6,636.11) and the remaining contract balance for canceled
ftoor and ceilingfinishing ($9,107.00) from the total $38,656.11. Hennebery Eddy and Morrison
Maierle will provide funds directly to the Owner in the amounts of $3,800.00 and $Z,5OO.OO
respectively. Additionalfunds required from the City of Bozeman are $16,613.00.
As stated previously, the working relationship between the design team and the City of Bozeman is
an important one and in recognition, we have agreed to refund a portion of our design fees. Thank
you for the opportunity to provide services for the City of Bozeman. lt is my sincere hope that we all
emerge from this experience with a set of lessons learned that increase the strength of our working
relationship and set us up for future successful projects together.
Sincerely,
/b-- "
Ben Lloyd, Vice President
Hennebery Eddy Architects, lnc.
Enclosures: Hennebery Eddy partiat fee refund
Morrison Maierle partiaI fee refund
RE: City of Eozeman Solid waste Division Renovation and Addition
Project No. 21111
To: Kevin Handlin, Superinterdent
312412025
henneberyeddy.com Poge 2 of 2
]lenneDery Iddy
67
Memorandum
REPORT TO:City Commission
FROM:Melissa Hodnett, Finance Director
SUBJECT:Resolution Establishing Compliance with IRS Reimbursement Bond
Regulations
MEETING DATE:April 15, 2025
AGENDA ITEM TYPE:Resolution
RECOMMENDATION:I move to approve the resolution to establish compliance with IRS
reimbursement bond regulations.
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:In order for the City to reimburse itself for expenditures with debt proceeds,
treasury regulations require a Commission resolution declaring the official
intent to reimburse expenditures with bond proceeds within 60 days of the
original expenditure. Expenditures included in the adopted 2025 Biennium
Budget and/or 2026-2030 Capital Improvement Program which are assumed
to be funded with debt service include street arterial & collector,
stormwater, wastewater, and water infrastructure projects, utility and
streets department vehicles, and solar panel arrays for City facilities. The
proposed resolution is presented solely for purposes of establishing
compliance with treasury regulations and does not bind the City to make any
expenditures, incur any indebtedness, or proceed with projects.
UNRESOLVED ISSUES:None
ALTERNATIVES:The City's current financial plans assume debt funding for the Projects, and
additional funding would need to be identified for these projects to move
forward if the resolution is not approved.
FISCAL EFFECTS:Debt service associated with any debt proceeds are included in long-term
financial models.
Attachments:
2025.04.15-Reimbursement Resolution-No Comments.docx
Report compiled on: June 29, 2023
68
1
RESOLUTION NO. ____
RESOLUTION RELATING TO THE FINANCING OF EXPENDITURES INCURRED FROM STREET
ARTERIAL & COLLECTOR, STORMWATER, WASTEWATER, AND WATER INFRASTRUCTURE
PROJECTS, STREETS, FORESTRY, AND UTILITY DEPARTMENT VEHICLES, AND SOLAR PANELS
ARRAYS FOR CITY FACILITIES;ESTABLISHING COMPLIANCE WITH REIMBURSEMENT BOND
REGULATIONS UNDER THE INTERNAL REVENUE CODE
BE IT RESOLVED by the City Commission (the “Commission”) of the City of Bozeman,
Montana (the “City”), as follows:
Section 1
Recitals.
The United States Department of Treasury has promulgated final regulations governing
the use of proceeds of tax-exempt bonds, all or a portion of which are to be used to
reimburse the City for project expenditures paid by the City prior to the date of issuance
of such bonds. Those regulations (Treasury Regulations, Section 1.150-2) (the
“Regulations”) require that the City adopt a statement of official intent to reimburse an
original expenditure not later than 60 days after payment of the original expenditure.
The Regulations also generally require that bonds be issued and the reimbursement
allocation be made from the proceeds of such bonds within 18 months (or three years, if
the reimbursement bond issue qualifies for the “small issuer” exception from the
arbitrage rebate requirement) after the later of (i) the date the expenditure is paid or (ii)
the date the project is placed in service or abandoned, but (unless the issue qualifies for
the “small issuer” exception from the arbitrage rebate requirement) in no event more
69
2
than three years after the date the expenditure is paid. The Regulations generally
permit reimbursement of capital expenditures and costs of issuance of the bonds.
1.01.The City desires to comply with requirements of the Regulations with respect to
certain projects and costs hereinafter identified.
Section 2
Official Intent Declaration.
2.01.The City intends to expend funds related to street arterial & collector,
stormwater, wastewater, and water infrastructure projects, utility, forestry, and streets
department vehicles, and solar panel arrays for City facilities.
2.02. Other than (i) expenditures to be paid or reimbursed from sources other than
the Bonds (as hereinafter defined), (ii) expenditures permitted to be reimbursed under the
transitional provision contained in Section 1.150-2(j)(2) of the Regulations, (iii) expenditures
constituting preliminary expenditures within the meaning of Section 1.150-2(f)(2) of the
Regulations, or (iv) expenditures in a “de minimus” amount (as defined in Section 1.150-2(f)(1)
of the Regulations), no expenditures for the Projects have heretofore been paid by the City and
no expenditures will be paid by the City until after the date of this Resolution.
2.03. The City reasonably expects to reimburse some or all of the expenditures made
for costs of the Projects out of proceeds of bonds, in one or more series, in an estimated
maximum aggregate principal amount of $8.4 million (the “Bonds”) after the date of payment
of all or a portion of the costs of the Project. All reimbursed expenditures shall be capital
expenditures or extraordinary working capital expenditures, a cost of issuance of the Bonds or
other expenditures eligible for reimbursement under Section 1.150-2(d)(3) of the Regulations.
2.04. As of the date hereof, there are no City funds reserved, allocated on a long-term
basis or otherwise set aside (or reasonably expected to be reserved, allocated on a long-term
basis or otherwise set aside) to provide permanent financing for the portion of the Projects
expected to be financed, other than pursuant to the issuance of the Bonds. The statement of
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3
intent contained in this resolution, therefore, is determined to be consistent with the City’s
budgetary and financial circumstances as they exist or are reasonably foreseeable on the date
hereof.
2.05. The City Finance Director shall be responsible for making the “reimbursement
allocations” described in the Regulations, being generally the transfer of the appropriate
amount of proceeds of the Bonds to reimburse the source of temporary financing used by the
City to make prior payment of the costs of the Projects. Each allocation shall be evidenced by
an entry on the official books and records of the City maintained for the Bonds or the Projects
and shall specifically identify the actual original expenditure being reimbursed.
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4
PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman,
Montana, at a regular session thereof held on the 15th day of April, 2025.
___________________________________
TERENCE CUNNINGHAM
Mayor
ATTEST:
___________________________________
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
___________________________________
GREG SULLIVAN
City Attorney
72
5
CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE
I, the undersigned, being the duly qualified and acting recording officer of the City of Bozeman,
Montana (the “City”), hereby certify that the attached resolution is a true copy of Resolution No.
5448 entitled: “RESOLUTION RELATING TO THE FINANCING OF EXPENDITURES INCURRED FROM
FACILITIES INFRASTRUCTURE IMPROVEMENT PROJECTS AND WASTEWATER INFRASTRUCTURE
IMPROVEMENT PROJECTS; ESTABLISHING COMPLIANCE WITH REIMBURSEMENT BOND
REGULATIONS UNDER THE INTERNAL REVENUE CODE” (the “Resolution”), on file in the original
records of the City in my legal custody; that the Resolution was duly adopted by the City
Commission of the City at a regular meeting on October 25, 2022, and that the meeting was duly
held by the City Commission and was attended throughout by a quorum, pursuant to call and
notice of such meeting given as required by law; and that the Resolution has not as of the date
hereof been amended or repealed.
I further certify that, upon vote being taken on the Resolution at said meeting, the
following Commission members voted in favor thereof:
; voted against the same:
; abstained from voting thereon: ; or
were absent: .
WITNESS my hand and seal officially this ____ day of ___________, 20__.
(SEAL)
__________________________________
MIKE MAAS
City Clerk
73
Memorandum
REPORT TO:City Commission
FROM:Terry Cunningham, Mayor
SUBJECT:City for Convention on the Elimination of Discrimination Against Women
(CEDAW) Anniversary Proclamation
MEETING DATE:April 15, 2025
AGENDA ITEM TYPE:Administration
RECOMMENDATION:Receive proclamation from Mayor Cunningham.
STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver
information to the community and our partners.
BACKGROUND:On April 5, 2022, the City Commission unanimously adopted Resolution
5384, Establishing the City of Bozeman as a City for CEDAW.
UNRESOLVED ISSUES:None
ALTERNATIVES:None
FISCAL EFFECTS:None
Attachments:
Bozeman CEDAW Anniversary Proclamation 2025.docx
Report compiled on: April 9, 2025
74
Proclamation for Anniversary of Cities for CEDAW
WHEREAS, March 8th has been designated by the United Nations as International Women’s Day and has
been celebrated as such since 1997, and
WHEREAS, by The Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW) was adopted by the United Nations General Assembly on December 18, 1979, became an
international treaty as of September 3, 1981, and 186 UN member nations, have agreed to be bound by
CEDAW’s provisions; and
WHEREAS, CEDAW provides a comprehensive framework for governments to examine their policies and
practices in relation to women and girls and to rectify discrimination based on sex against half the
world’s population; and
WHEREAS, Although women have made major gains in the struggle for equality in most fields, much
more needs to be accomplished to fully eradicate discrimination based on sex and to achieve one of the
most basic human rights, equality; and
WHEREAS, City and County governments have an appropriate and legitimate role in affirming the
importance of anti-discrimination as a universal norm, and to serve as guides for public policy;
WHEREAS, Cities for CEDAW was launched at the United Nations Commission on the Status of Women
in March 2014; and
WHEREAS, in 2022, the Bozeman City Commission unanimously adopted resolution 5384 -the Bozeman
Cities for CEDAW Resolution –joining 80 other US Cities in promoting the advancement and protection
of Women and Girls in its community;
NOW, THEREFORE, I Terry Cunningham, as Mayor of the City of Bozeman, proclaim that the City of
Bozeman is proud to celebrate International Women’s Day, the eleven year anniversary of the launch of
Cities for CEDAW initiative and the three year anniversary of Bozeman passing a Bozeman Cities for
CEDAW resolution.
Signed and Proclaimed this 15th Day of April, 2025.
_________________________________
Terry Cunningham
Mayor
Bozeman, Montana
75
Memorandum
REPORT TO:City Commission
FROM:Terry Cunningham, Mayor
SUBJECT:Equal Pay Proclamation
MEETING DATE:April 15, 2025
AGENDA ITEM TYPE:Administration
RECOMMENDATION:Receive Equal Pay Proclamation
STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver
information to the community and our partners.
BACKGROUND:On June 8, 2015, Resolution 4601 was adopted unanimously supporting
equal pay for equal work and to commemorate Equal Pay Day each year.
UNRESOLVED ISSUES:None
ALTERNATIVES:None
FISCAL EFFECTS:None
Attachments:
Bozeman Equal Pay Day Proclamation 2025 REV.docx
Report compiled on: April 7, 2025
76
Proclamation Recognizing Equal Pay Day
WHEREAS,more than 60 years after the passage of the Equal Pay Act and Title VII of the Civil Rights
Act, women and people of color continue to suffer the consequences of inequitable pay differentials; and
WHEREAS, in the United States, on average,women working full-time earn 83 cents to the man’s
dollar, and
WHEREAS,in Montana,women earn 82 cents to the man’s dollar;and
WHEREAS, the wage gap exists in nearly every occupation, in all industries, in every state,across all
countries, at all education levels, and in the private, government, and nonprofit sectors; and
WHEREAS, the gender wage gap results in women and their families having less access to financial
resources and has unfounded, subtle, and unexplained causes that need to be identified and eliminated;
and
WHEREAS, on June 8, 2015,the Bozeman City Commission unanimously passed Resolution 4601
supporting equal pay for equal work; and
WHEREAS, each year since 2015,the city has taken steps to collect data and identify tools that will
assist in the diversification of City positions, encourage the use of innovative and improved human
resources tools, and seek to be an active example in the efforts to close the gender wage gap;and
WHEREAS, in the Equal Pay for Equal Work Resolution 4601,the City of Bozeman commits to
commemorate Equal Pay Day each year and encourage its citizens to recognize the full value of women’s
skills and contributions to the labor force and to take further action as citizens and businesses to help
close the gender wage gap; and
WHEREAS,Bozeman, Montana, as a Welcoming City, recognizes that when there are fair and equitable
outcomes for all women and girls, our community prospers and,therefore,can become a city free of
gender and other discrimination; and
WHEREAS, issues of gender equity, inclusion,and safety are community-wide problems requiring
community-wide analysis and action.
WHEREAS, Tuesday, March 25. 2025, was recognized as “Equal Pay Day,”which symbolizes how far
into the year women had to work to catch up to what their male colleagues earned the previous year.
Now, therefore,I, Terry Cunningham, the Mayor of Bozeman, do hereby proclaim Tuesday,March 25,
2025, as Equal Pay Day, a day whose meaning and purpose needs to become unnecessary by achieving
equal pay for equal work,reaching a day when men and women earn the same wage for the same work
after the same time duration of work; and
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I further Proclaim that the City Commission encourages citizens and businesses to have conversations about gender parity, to explore ways in which we can address and work toward fair pay for all in our community; and
I further Proclaim that the City of Bozeman encourages local businesses to pursue their own hiring,
promotional, and pay policies that reflect equal opportunity and gender wage equity; and
I further Proclaim that the City of Bozeman will continue to take a leadership role in the community.
To encourage its citizens to recognize the full value of women’s skills and contributions to the labor
force and take further action as citizens and businesses to help close the gender wage gap.
Signed this 15th day of April. 2025
_______________________
Terry Cunningham
Mayor of Bozeman
78
Memorandum
REPORT TO:City Commission
FROM:Cassandra Tozer, Human Resources Director
SUBJECT:Equal Pay Report
MEETING DATE:April 15, 2025
AGENDA ITEM TYPE:Administration
RECOMMENDATION:N/A
STRATEGIC PLAN:7.2 Employee Excellence: Recruit, retain and value a diverse, well-trained,
qualified and motivated team capable of delivering superior performance.
Be accountable and expect accountability from others. Make demonstrated
use of good judgement a part of the evaluation process for promotions.
BACKGROUND:
In 2015, the Bozeman City Commission passed Resolution 4601, Equal Pay
for Equal Work, which committed that the City of Bozeman would work to
collect data, identify best practices, evaluate employment practices against
the “Thrive Index”, and commemorate Equal Pay Day annually. Additionally,
in 2020, the City Commission passed Resolution 5169, Adopting Gender Pay
Equity Practices, which, in addition to the commitments established in 2015,
made a commitment that the City would work toward a goal of establishing
a standard of equal pay for comparable worth in its job classifications and
pay schedules. Annually, the Human Resources Department presents a
report on the City's progress towards equal pay.
UNRESOLVED ISSUES:None
ALTERNATIVES:N/A
FISCAL EFFECTS:N/A
Attachments:
Equal Pay Report 2025.pdf
Report compiled on: April 7, 2025
79
To: Chuck Winn, City Manager
From: Cassandra Tozer, Human Resources Director
Date: April 7, 2025
Re: City of Bozeman Equal Pay Progress Report
In 2015, the Bozeman City Commission passed Resolution 4601, Equal Pay for Equal Work, which committed
that the City of Bozeman (“City”) would work to collect data, identify best practices, evaluate employment
practices against the “Thrive Index”, and commemorate Equal Pay Day annually. This year’s national Equal Pay
Day was March 25, marking how far into 2025 women had to work, on average, to earn what men made in
2024. Unfortunately, this is step backwards from last year’s Equal Pay Day of March 12. Following Resolution
4601, the City Commission passed Resolution 5169 in 2020, Adopting Gender Pay Equity Practices, which, in
addition to the commitments established in 2015, made a commitment that the City would work toward a
goal of establishing a standard of equal pay for comparable worth in its job classifications and pay schedules.
Since the adoption of Resolutions 4601 and 5169, the City’s Human Resources Department continues to
analyze wage and benefit data and review, develop, and implement policies and procedures to ensure we are
adhering to best practices and remaining competitive in the labor market.
This year’s report shows that overall, the City continues efforts to reduce the gender pay gap. Note all City
data presented in this report includes regular, full-time employees as of December 31, 2024, and is obtained
through the City’s Human Resources Department. This report includes the following:
A. Policies and Procedures Impacting Gender Pay Equity
B. City Employee Earnings, by Gender and Education, Compared with National Earnings
C. City Full-Time Employees, by Gender & Department
D. City Full-Time Employees, Top 25% Earnings details
E. City Full-Time Employees, Bottom 25% Earnings details
F. Historic Applicant and Employee Data Tracked for Specific Positions
Appendix A: City of Bozeman Thrive Index assessment
A. Policies and Procedures Impacting Gender Pay Equity
Establishing Pay for Positions
Pay for City positions (i.e. a brand-new position or reclassification of an existing position) is established either
through the collective bargaining process, or through the City’s Pay Committee based on recommendations
from the Human Resources Department (or a combination of the two). Regardless of the avenue used, the
City aims to balance internal equity with competitiveness in the labor market by giving consideration to both
market comparisons and a position’s comparable worth in the organization.
In addition to periodic market analysis, the City evaluates pay for positions using objective job-related factors,
helping to reduce the potential for bias based on other factors such as gender. By using a “classification
method”, positions are evaluated based on key compensable factors and then grouped into a predefined pay
grade within the classification system. Positions are evaluated on the following key compensable factors:
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• Minimum level of education, training, and/or certifications required;
• Minimum number of years of relevant experience required;
• Level of responsibility (supervisory, budgetary, decision-making authority, etc.); and,
• Working conditions
Grouping like positions into the same, or similar, pay bands using the above factors helps to promote internal
equity and allows the City to adjust pay bands based on market analysis, as appropriate. For example, many
of the City’s “Program Manager”-type of positions are classed within the same pay band based on these
positions having similar minimum education and years of experience requirements, similar levels of
responsibility, and similar working conditions. It is important to note that actual pay rates for individuals in
these positions will vary within the established pay band based on the individual’s qualifications and tenure
with the City, however, the positions are valued equally. Pay rates for all City positions continue to be publicly
available through the City’s website or through the Human Resources Department.
Pay Upon Hire
The City has robust, objective procedures in place for determining pay upon hire. Candidates for non-
represented and MFPE-represented positions are offered a rate of pay within the applicable pay band for the
position based on their relevant education, training, and years of experience. For example, for a position that
requires a Bachelor’s degree and two years of relevant experience, a candidate who possesses a Bachelor’s
degree and has two years of relevant experience will be offered “step A” (entry-level pay) for that position.
Under this process, two people may be hired for positions within the same pay band, but they may be
compensated at different starting rates based on their qualifications. Approving these pay rates is the
responsibility of the City’s Pay Committee, which consists of the City Manager, Assistant City Manager, and
Human Resources Director, who are all blind to gender and other personally identifiable information when
evaluating starting pay rates.
Similarly, firefighter candidates are offered a rate between “Probationary” and “Firefighter 4th Year” on the
applicable pay table based on their education, training and certifications, and relevant experience, using a
weighted tool that assigns points to each qualification. This means that two firefighters with the same level
of education, the same number of applicable certifications, and the same number of years of relevant
experience, will be hired at the exact same rate of pay.
Police officer candidates are offered a rate between “year 0” and “year 10” on the applicable pay table
determined solely by their number of years of law enforcement experience, and are eligible for an additional
two percent for possession of a Bachelor’s degree, in accordance with their collective bargaining agreement.
This means that two police officer candidates each with two years of law enforcement experience would both
be hired at the exact same base rate.
Teamsters-represented positions are hired at the singular pay rate for the position as set forth in their
collective bargaining agreement.
Using the objective factors described above to determine starting pay eliminates the potential for gender and
other non-job-related factors to be considered.
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Pay Increases
Annual salary adjustments are based on market-driven data and applied in accordance with applicable
collective bargaining agreements for represented positions and in accordance with the City’s Employee
Handbook for non-represented positions. In addition to any applicable salary adjustments, non-represented
and MFPE-represented employees are eligible for a merit step increase within their applicable pay band based
on a successful performance evaluation. Police, fire, and Teamsters-represented employees receive automatic
wage increases based on their years of service, whether through a negotiated increase to base wages, or
longevity pay, as established in their collective bargaining agreements.
Continuing Efforts
The City continues efforts to positively impact the recruitment and retention of females in the workplace. We
continue to offer paid parental leave to employees, both male and female, totaling 8,973 hours in 2024. This
is a staggering increase from 2023, when 3,938 hours of paid parental leave were utilized. Despite continuing
increases in healthcare costs, the City continues to offer a health insurance plan option providing family
coverage at no cost to the employee.
B. City Employee Earnings, by Gender and Education, Compared with National Earnings
According to the 2023 United States Census Bureau estimates (most recent data), on a national scale, women
earned between 69% and 72%, depending on education level, of what men earned with the same education
level. While there is little change between City of Bozeman data between 2023 and 2024, it is worth noting
that the City continues to perform significantly better, at most education levels, than estimates at a national-
level. While still much higher than national-level estimates for 2024, City data shows a very small decrease
from 2023 to 2024 in median earnings for women as a percentage of men at each education level. It should
be noted that education level is only one of the key compensable factors the City uses in determining pay for
positions.
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C. Full-Time City Employees, by Gender and Department
As of December 31, 2024, the City employed 449 full-time employees, of which, approximately 30% were
female. Shown below is the distribution of employees by gender across all City departments in 2024 and the
gender distribution City-wide since 2019. The gender distribution across departments remained consistent
between 2023 and 2024, with some minor fluctuations in various departments.
Departments Female Male Total % Female
City Manager 6 10 16 37.5%
Community Development 12 21 33 36.4%
Economic Development 2 2 4 50.0%
Finance 11 4 15 73.3%
Fire 4 47 51 7.8%
HR 6 0 6 100.0%
IT 0 9 9 0.0%
Legal 12 2 14 85.7%
Library 17 3 20 85.0%
Municipal Court 8 2 10 80.0%
Parks & Recreation 14 27 41 34.1%
Police 17 62 79 21.5%
Strategic Services 7 10 17 41.2%
Transportation & Engineering 12 60 72 16.7%
Utilities 6 56 62 9.7%
Total 134 315 449 29.8%
2024 Employee Numbers by Gender
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D. City Full-Time Employees, Top 25% Earnings Details
The information below shows the characteristics of the City’s top 25% of full-time employee wage earners.
The percentage of females in the top 25% remained relatively consistent from 2023 to 2024, still a positive
trend since 2019. Education levels of the top 25% of earners has also remained relatively consistent with 2023,
continuing to show the top 25% of earners in the City are highly educated, with 66% of these earners
possessing a Bachelor’s degree or higher. Among the top 25% of earners in 2024, there were small reductions
in the number of non-represented positions and Local 613 IAFF positions. Data also shows almost a 10%
increase in the number of BPPA positions among the top 25% of earners.
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E. City Full-Time Employees, Bottom 25% Earnings Details
The information below shows the characteristics of the City’s bottom 25% of full-time employee wage earners.
At 41% in 2024, the percentage of women in this category remains relatively consistent with 2023. Education
levels of the bottom 25% of earners has also remained relatively consistent compared with 2023. Additionally,
union representation of the bottom 25% of earners has remained relatively consistent compared with 2023,
with small increases in the Teamsters and MFPE groups and decreases in the BPPA and non-represented
groups.
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F. Historic Applicant and Employee Data Tracked for Specific Positions
The Bozeman Police Department, like other agencies nation-wide, continues to experience a decrease in the
overall number of applications received for police officer positions. In 2024, the Police Department received
266 applications for police officer positions, of which just over 13% were female, similar to 2023. In 2024, the
BPD had nine of its 27 females on staff employed as sworn police officers. The Bozeman Fire Department
received 144 applications for firefighter positions in 2024, of which 7% were female, up only slightly from
2023. The Fire Department has retained the three female firefighters currently on staff and has recently hired
one more as part of the most recent 2025 recruitment. The number of females in police officer, firefighter,
and Teamsters-represented positions (Transportation & Engineering/Utilities/Parks/Facilities) continues to
show a positive upward trend.
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Appendix A: City of Bozeman Thrive Index Assessment
CITY OF BOZEMAN AND THE THRIVE INDEX
Adequate wages and benefits City of
Bozeman
Comment
Are part-time workers paid the same (per hour, including
benefits) as full-time workers performing the same or
similar tasks?
Yes Differences exist between
represented part-time and non-
represented part-time
employees.
Are most part-time workers guaranteed a minimum
number of hours per week? If not, are there ways they
could be?
Yes
Are workers who remain on the job for a specified period
of time eligible for a pay increase?
Yes
Are workers who remain on the job for a specified period
of time eligible for paid sick leave for themselves or to
care for a family member?
Yes
When job-skill demands or responsibilities increase, are
wages adjusted upward?
Yes The City works to ensure
employees are working within
their class specifications.
Reclassifications/promotions are
the avenue for pay increases and
department heads request those
during the annual staffing plan
and budget process.
Reclassifications/promotions may
also occur outside of the staffing
plan and budget process when
appropriate.
Are workers paid for their entire scheduled shift, even if
business is slow?
Sometimes Non-exempt employees are paid
for the hours they work. Shifts are
not typically cut short, but if there
is an urgent need to close a
facility, employees would not be
paid for the closure. In this type
of circumstance, the City would
make a reasonable effort to look
for work in other
departments/facilities for the
affected employee(s). This rarely
happens.
87
Are hourly wages higher for nonstandard shifts, such as
nights or weekends?
Sometimes Employees are eligible for “shift
premiums” and other types of
additional compensation such as
“call-out pay”, in accordance with
their applicable collective
bargaining agreement.
Opportunities for Upward Mobility
Do low-wage workers have opportunities for on-the-job
or cross-task training or outside educational
opportunities that can lead to upward mobility?
Yes
Can schedules accommodate workers’ pursuit of
educational opportunities?
Sometimes The City makes every effort to
accommodate employees’
requests for time off and/or
modified schedules in order to
support educational
opportunities. When the
education is considered relevant
and/or necessary for the
employee’s position, the
employee may be allowed paid
time to study, etc. Based on the
need to efficiently and safely
operate City business, not every
request can be granted every
time.
When skill demands or job responsibilities increase, is
training provided for newly assigned tasks?
Yes
Can workers cross-train in different areas to increase
their flexibility and value to the company (recognizing
that outsourcing of some functional areas or other
factors may prohibit this)?
Yes
Are there opportunities for upward mobility within the
company that do not require geographic relocation?
Yes
Support for personal and family needs
Can worker breaks be scheduled to accommodate the
need for phone calls at pre-specified times for working
caregivers?
Yes
Are occasional calls for urgent matters allowable? Can
children or caregivers call an employee at work when
necessary?
Yes
Are workers who remain on the job for a specified period
of time eligible during their regular work hours to care for
their health or a family member’s without losing pay
Yes
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(e.g., able to leave for an hour or two for a trip to the
doctor)?
Can personal time be taken in small increments of an
hour or two (for doctor’s appointments, parent-teacher
conferences, educational opportunities, etc.)?
Yes
Do you offer paid or unpaid maternity or paternity leave
for workers? Is the length of this leave negotiable?
Yes
Work scheduling, predictability, and flexibility
Is there a systematic way for workers to communicate
their preferences for hours and schedules? If not, could
some such system be implemented?
Yes
Does the shift/hours scheduling system take account of
workers’ constraints and preferences?
Yes
Are work schedules announced more than a day or two in
advance? Can workers trade shifts with colleagues when
time conflicts develop (allow “shift-swapping”)?
Yes
If workers are asked to stay beyond the end of scheduled
shifts to finish assignments or for administrative
procedures, are they given advance notice of when this
may be required?
Yes
Does the measured workload take into account the
quality or difficulty of tasks along with simpler measures
of the number of customers, clients, or patients?
Yes
Autonomy, respect, and trust
Are workers protected from “no-fault” absence or
tardiness policies (ones that lead to disciplinary actions or
dismissal, even for excused absences)?
Yes
Are workers allowed or encouraged to contribute ideas to
better organize or improve their work teams or work
areas?
Yes
Can workers occasionally make personal phone calls? Yes
89
Memorandum
REPORT TO:City Commission
FROM:Josh Waldo, Fire Chief
SUBJECT:Fire Department Accreditation Special Presentation
MEETING DATE:April 15, 2025
AGENDA ITEM TYPE:Administration
RECOMMENDATION:N/A
STRATEGIC PLAN:3.1 Public Safety: Support high quality public safety programs, emergency
preparedness, facilities, and leadership.
BACKGROUND:The Fire Department first had conversations around international third party
accreditation as far back as 2017, seeing it as a tool to improve and measure
the fire department. The Bozeman City Commission included obtaining Fire
Department accreditation as part of it's City Strategic Plan under section
3.1.F. Beginning in 2021, the Fire Deparment began the formal process of
pursuring accreditation and has since completed a communtiy risk
assessment / standards of cover (CRA/SOC), fire & emergency services self
assessment manual (FESSAM), and has recently published the third version
of a department strategic plan. The Fire Department sat in front of the
Commission on Fire Accreditation International (CFAI) on April 1, 2025 and is
happy to provide the results to the City Commission.
UNRESOLVED ISSUES:None
ALTERNATIVES:N/A
FISCAL EFFECTS:N/A
Report compiled on: April 7, 2025
90
Memorandum
REPORT TO:City Commission
FROM:Erin George, Director of Community Development
Brian Krueger, Development Review Manager
Sarah Rosenberg, Associate Planner and Historic Preservation Officer
Nick Ross, Director of Transportation and Engineering
Taylor Lonsdale, Transportation Engineer
Russ Ward, Assistant Superintendent Solid Waste Division
Scott Mueller, Fire Marshal
David Fine, Economic Development Manager
SUBJECT:Decision on Appeal 25033 Regarding Conditional Approval of The Guthrie,
5th and Villard Site Plan, Certificate of Appropriateness, and Demolition
Application Number 24493, Continued from April 1, 2025
MEETING DATE:April 15, 2025
AGENDA ITEM TYPE:Community Development - Quasi-Judicial
RECOMMENDATION:Uphold the Director of Community Development's conditional approval of
application 24493.
STRATEGIC PLAN:4.1 Informed Conversation on Growth: Continue developing an in-depth
understanding of how Bozeman is growing and changing and proactively
address change in a balanced and coordinated manner.
BACKGROUND:On April 1, 2025, the City Commission met to consider Appeal 25033. The
Commission heard presentations from City staff, the Appellant, and the
Developer and asked questions of each party. Each party was allowed a
rebuttal. The Commission also accepted public comment. After closing the
hearing on the matter and due to the late hour, the Commission voted to
continue its deliberation, motions, and vote on the matter until its regular
meeting on April 15, 2025. All materials provided to the Commission for the
April 1, 2025 meeting are included here for convenience. No additional
information from the parties or public comment will be taken at the April
15, 2025 meeting.
Original Commission memorandum:
An appeal filed by Bozeman Home Advocacy Group, LLC seeks to overturn
the administrative decision conditionally approving application 24493. The
underlying development application, 24493, includes a site plan, commercial
certificate of approval, and demolition applications. The conditionally
approved project, located on the corner of North 5th Avenue and Villard
Street, is known as "The Guthrie." It proposes to demolish an existing
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convalescent center and build a new four-story apartment building on the
site, which includes affordable housing units. The site lies within the
Midtown neighborhood. It is just inside the boundary of the Neighborhood
Conservation Overlay District and just outside the boundary of the Midtown
Urban Renewal District.
The appeal raises constitutional claims related to the City's process for
administrative review of site plan applications and appeals. It also preserves
Appellant's ability to facially challenge the constitutionality of the City's
affordable housing codes, which have been repealed and replaced since their
application to The Guthrie. The appeal also raises substantive issues arguing
the Director of Community Development's conditional approval was in
error. Appellant also asserts that a two-year stay on issuance of a
demolition permit should be enforced.
The attached staff report addresses all of Appellant's claims. The City's legal
department recommends preserving the City's defenses regarding all
constitutional issues raised by the Appellant. The staff report explains why
the Director's decision conditionally approving application 24493 should be
upheld.
At the end of the hearing on the appeal, the Commission may uphold,
amend, or overturn the administrative project decision for application
24493. The decision may be overturned or amended upon the finding that
the final administrative decision was erroneous and making alternative
findings in support.
UNRESOLVED ISSUES:None.
ALTERNATIVES:The Commission may amend or overturn the administrative decision of the
Director of Community Development upon finding the final administrative
decision was erroneous and making findings in support.
FISCAL EFFECTS:None.
Attachments:
25033 The Guthrie Appeal Staff Report.pdf
2024 Version of Division 38.380.pdf
Order United Food v. City of Bozeman Cause No. DV-19-10BX
18Oct2019.pdf
Report compiled on: March 26, 2025
92
Commission Memo
The Guthrie/5th and Villard Site Plan, COA, and Demo Appeal
Appeal number 25033
March 26, 2025
Report To: Mayor and City Commission
From: Erin George, Community Development Director
Subject: Appeal #25033 Regarding Conditional Approval of the
Guthrie/5th and Villard Site Plan, Certificate of Appropriateness,
and Demolition Application Number 24493
Meeting Date: April 1, 2025
Agenda Type: Action
Project Location: 321 North 5th Avenue, Bozeman, MT 59715. The legal description of
the property is Karp Addition, S12, T02 S, R05 E, Block 6, Lots 1-3,
Acres .843, Plat E-3-A, City of Bozeman, Gallatin County, Montana.
CITY COMMISSION ACTION:
At the conclusion of consideration of the appeal, the City Commission may uphold,
amend, or overturn the administrative project approval decision for the Guthrie/5th
and Villard’s Site Plan, COA, and Demolition applications. The administrative
decision may be overturned or amended upon finding that the final administrative
decision was erroneous.
Report Date: March 26, 2025
EXECUTIVE SUMMARY:
This appeal, filed by attorney Kirsa Shelkey on behalf of Bozeman Home Advocacy Group,
LLC, seeks to overturn the Director of Community Development’s administrative decision
conditionally approving the 5th and Villard Site Plan, Commercial Certificate of Approval
(CCOA) and Demolition applications (collectively referred to as the “decisions”) on several
grounds. The underlying development applications are bundled and given one planning
application number, 24493 (referred to as “The Guthrie”).
The project at issue is an infill redevelopment located at 321 North 5th Avenue, just east of
the North 7th corridor and just outside the Midtown Urban Renewal District. In its Site Plan
application, HomeBase Partners proposed to demolish an existing building on the site and
construct in its place a new four-story residential apartment building that will include a
total of 91 rental dwelling units, of which 46 will be affordably priced at no greater than
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80% of the area median income. This project proposes a 54,300 square foot building in an
R-5 zoning district within walking distance of the midtown and downtown commercial
areas and is served by nearby bus routes. The project provides automobile and bicycle
parking in excess of requirements. The applicant of the underlying application, HomeBase
Partners, and the owner, 5th and Villard Apartments, LLC will collectively be referred to as
“Developer.”
This application for appeal was submitted by:
Kirsa Shelkey of Western Roots Law, PLLC, on behalf of a corporate entity called Bozeman
Home Advocacy Group, LLC, which is referred to as “Appellant.”
Appeals of administrative project decisions are governed by 380.250.030 Bozeman
Municipal Code (BMC). For a discussion of the procedures governing this appeal, see
below. The record of review for Developer’s applications consists of the Director’s Decision
Letter Conditionally Approving the 5th and Villard Site Plan, CCOA, and Demolition
applications and incorporated January 15, 2025, staff report for application 24493, all
application materials submitted by the Developer, and all public comment.
According to the appeal application materials submitted, Appellants base their appeal on
several grounds. First, Appellant alleges procedural due process violations and the
unconstitutionality of the City’s lack of public hearing during administrative project
decisions, the City’s imposition of an application fee to file an appeal, and the City
Commission’s decision to decline exercising its authority to reclaim decision-making
responsibility regarding application 24493. Next, Appellant raises several substantive
claims to support its allegation that the Director erroneously conditionally approved
application 24493. Substantive claims include: (1) failure to comply with Neighborhood
Conservation Overlay District (NCOD)1 standards and the Bozeman Guidelines for Historic
Preservation & the Neighborhood Conservation Overlay District (NCOD Guidelines), which
Appellant argues are compulsory; (2) failure to comply with BMC section 38.230.100.A.7.a
regarding mass and scale standards of the NCOD and the development’s compatibility with
nearby residences; (3) failure to comply with other subsections of BMC section 38.230.100
with respect to meeting minimum open space requirements and that design flaws impact
public health and safety, including the location of the solid waste and recycling tip pad, a
one-way parking lot, and inadequate firehose pulls; and (4) failure to comply with BMC
section 38.230.100.A.6 and 38.400.060.B.4 because the Traffic Impact Study provided by
the Developer and analyzed by staff was deficient, the level of service of intersections failed
to meet code standards, and the signal warrant analysis was flawed. Appellant also
challenges the Director’s decision that the two-year stay on demolition found in Section
38.340.090.D.3 is properly terminated. Finally, Appellant states that the conditionally
1 Appellant incorrectly refers to the NCOD as the “neighborhood-character-overlay district.”
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approved project exploits deep incentives available to incentivize affordable housing
construction “at the expense of Bozeman’s historic neighborhoods and without the
assurance of affordable housing.”
The City Attorney has provided analysis regarding Appellant’s constitutional claims, finding
that no violation of Appellant’s due process rights occurred and the entirety of the City’s
process is constitutional. Further, any alleged unconstitutional code provisions or
violations of Appellant’s due process are properly raised in district court, not on appeal to
the City Commission, pursuant to the plain terms of BMC section 38.250.030.A and because
the Commission is the very same body that adopted the process and code provisions
Appellant alleges as being unconstitutional.
With respect to the Appellant’s substantive claims, staff responds that it thoroughly
reviewed the applications for compliance with every applicable criterion in the Unified
Development Code (UDC). The Director’s decision conditionally approving the application
should be upheld because the proposal met all code requirements, as explained throughout
the Director’s January 15, 2025, decision, findings of fact, and incorporated staff report. All
NCOD criteria were satisfied and NCOD Guidelines were considered. The mass and scale of
the project, as well as its compatibility with surroundings met code standards and criteria.
Open space requirements were satisfied, and the site is designed in accordance with all
code requirements, including the location of refuse collection, site circulation, and fire
safety codes. In addition, staff based its determinations regarding traffic impacts on data
and industry standards, which supported finding the applications in compliance with all
requirements.
Regarding the two-year stay on demolition provided in section 38.340.090.D.3, staff agrees
that a previous development application regarding this property was denied in part for
failure to meet criteria found in section 38.340.090.C2 and that denial resulted in the
imposition of a two year stay on demolition of the building currently on the property.
However, upon advice of the City Attorney, the code provides multiple ways to terminate
the stay prior to the expiration of the two-year period. Because application 24493
presented additional evidence to satisfy the criteria found in 38.340.050 and constitutes an
alternative proposal that was approved, the two-year stay on demolition was terminated
pursuant to the plain language of section 38.340.090.D.3, BMC. Staff takes no position as to
whether the alternative means of early termination provided by section 38.340.090.D.3.a
were sufficiently met and which Appellant claims were not.
2 In denying The Guthrie I application, Commissioners cited a failure to meet certain standards for a
certificate of appropriateness, found in BMC section 38.340.050. Compliance with the standards for a
certificate of appropriateness is required pursuant to 38.340.090.C, BMC.
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Finally, staff observes that Appellant takes issue with policy decisions of the City
Commission through its adoption of an affordable housing ordinance, Ordinance 2105, in
2022, rather than staff’s application of any specific requirement of section 38.380 to
development application 24493. Appellant states that if the Commission upholds the
Director’s decision, “…the appellant facially challenges, and preserves its ability to
challenge, the AHO – in effect on December 4, 2024.” A facial challenge of a law usually
refers to challenging the constitutionality of a law. As noted above, pursuant to the City
Attorney’s advice the proper venue to argue the constitutionality of the City’s code is in
district court and the matter is inappropriate for consideration on appeal to the City
Commission.
For all these reasons, the application was appropriately approved and should be upheld by
the City Commission.
Only “aggrieved persons” may appeal an administrative decision in accordance with section
38.250.030.A BMC. Appellants contend they are aggrieved persons as defined in section
38.700.020 BMC3 because “the individual members of Bozeman Home Advocacy Group,
LLC are neighboring property owners to the Project.” Although none of the individual
members provides their address in order to verify their proximity to the site, Appellant
states that Scott Boyd, an individual member of Bozeman Home Advocacy Group, LLC, lives
across the street and within 200 feet of the proposed development. Similarly, Appellant
states that member Christy Stillwell “owns real property neighboring the Guthrie” and
Emily Talago “owns real property one block north of the proposed Guthrie.” Appellant’s
discussion of standing provides information about each member’s involvement in their
neighborhood and community and discusses general concerns about the process and the
Guthrie project that neighbors or residents might encounter, either from the approval of
the Guthrie or from future development over two stories tall within the NCOD. However,
Appellant provides little, if any, specificity about how each member expects to be personally
impacted by the Guthrie or any negative effect of the Guthrie’s approval on their legal
interests. Therefore, the City Attorney recommends the City not stipulate that Appellants
are “aggrieved persons” pursuant to 38.250.030.A, BMC, at this time. A recommendation to
preserve the City’s arguments and objections as to Appellant’s status as an “aggrieved
person” and a discussion of standing are further discussed below.
Appeals are limited to specific issues raised during the public comment period. See
38.250.030.B, BMC. The City received 113 public comments during the public comment
3 Aggrieved person. A person, as defined in this division 38.700, who has a specific, personal and legal interest
in the final decision of an agency, board or commission, as distinguished from a general interest such as is the
concern of all members of the community, and which interest would be specifically and personally prejudiced
by the decision or benefited by its reversal.
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period on application 24493. Relevant to this appeal, substantive comments opposed to
the development discussed: the project’s failure to meet NCOD standards and guidelines;
the project’s incompatibility with the surrounding neighborhood, particularly its form,
mass, and scale; failure to comply with requirements for open space; adverse impacts to
public health and safety because the location of the garbage pickup area, the design of a
one-way parking lot with no turnaround, and the inability to adequately fight fire on
portions of the building; traffic concerns, including concerns regarding the level of service
(LOS) ratings of local street intersections with North 7th Avenue; concerns about the
compatibility of the Guthrie with surrounding residential neighborhoods, including the
proximity of a four-story building to one- or two- story nearby homes and buildings;
application of the 2-year stay as provided in 38.340.090.D.3; and the inappropriateness of
the available deep incentives provided through the City’s affordable housing code in BMC
division 38.380. Some written public comment claimed the City’s administrative review
violates the Montana Constitution’s right of participation and many comments requested
the City Commission to reclaim review authority, though not necessarily by asserting a
constitutional right to a public hearing. None of the public comments addressed the
constitutionality of the appeal fee. All of the individual members of Bozeman Home
Advocacy Group, LLC named in Appellant’s materials submitted public comment on
application 24493. The City Attorney recommends preserving the City’s arguments and
objections regarding whether any issue is the appeal was raised in public comment on the
underlying application.
At the conclusion of consideration of the appeal, the City Commission may uphold, amend,
or overturn the administrative project decision for Application 24493. The decision may
be overturned or amended upon the finding that such final administrative decision was
erroneous. See 38.250.030.J, BMC.
Consider the Recommended Motions:
Having reviewed and considered Appeal number 25033 including the record of review, the
presentation of staff and Appellant, public comment, and all information presented, I move to
preserve all defenses the City of Bozeman may assert regarding standing of Appellant to bring
this appeal, their ability to raise any issue on appeal, and Appellant’s constitutional claims if
Appellant seeks judicial review.
Having reviewed and considered Appeal number 25033 seeking to overturn the decision of the
Director of Community Development conditionally approving the 5th and Villard Site Plan,
CCOA, and Demolition application number 24493, including the record of review, the
presentation of staff and Appellant, public comment, and all information presented, I move to
uphold the Director’s conditional approval of application 24493.
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Table of Contents
EXECUTIVE SUMMARY: ........................................................................................................................................ 1
TABLE OF CONTENTS: .......................................................................................................................................... 6
ILLUSTRATIONS…………………………………………………………………………………………………….…..8
BACKGROUND:…………………………………………………………………………………………………………14
Regulatory Context…………………………………………………………………………………………….14
The Guthrie Site Plan, CCOA, and Demolition Application 22493……….…………………14
Timeline of the Guthrie Application and Appeal…………………………………………………..16
38.250.030.A “Aggrieved Person”….…………………………………………………………………....17
38.250.030.B Issue Preclusion…………………………………………………………………………….17
BASIS OF THE APPEAL:…………………………………………………………………………………………….18
Staff Evaluation and Director’s Conditional Approval of the Application………………………….20
APPEAL OF THE ADMINISTRATIVE DECISION………………………………………………………….21
I. Constitutional Claims…………………………………………………………………………………………21
A. Procedural Due Process Does Not Require a Public Hearing………………………21
B. The Appeal Fee is Not Unconstitutional or Exorbitant……………………………….22
C. The City Commission’s Discretionary Decision Not to Reclaim Application
24493 is Not Unconstitutional………………………………………………………………….23
II. Substantive Claims……………………………………………………………………………………………..24
A. Compliance with NCOD Standards and Consideration of Guidelines…………..24
1. Role of NCOD Guidelines and Compliance with 38.203.100.A.5……….24
2. Form, Mass and Scale and Compliance with 38.340.040…………………26
B. Compliance with Mass and Scale Standards and Compatibility with
Surroundings………………………………………………………………………………………….29
C. Public Health and Safety………………………………………………………………………….30
1. Calculation of Open Space…………………………………………………………….31
2. Solid Waste and Recycling Collection Tip Pad………………………………..33
3. One-Way Parking Lot…………………………………………………………………...34
4. Fire Protection and Safety…………………………………………………………….35
D. Traffic Impact Study and Signal Warrant………………………………………………….36
III. The Two-Year Stay on Demolition Was Properly Imposed Upon Denial of
Application 23354 and Terminated Upon Approval of Application
24493………………………………………………………………………………………………………….42
IV. Affordable Housing Standards Were Properly Analyzed and Applied…………………..44
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APPEAL OF THE ADMINISTRATIVE DECISION:…………………………………………………………44
APPEAL PUBLIC NOTICE:………………………………………………………………………………………….44
APPEAL PUBLIC COMMENT:………………………………………………………………………………….....45
EVALUATION OF THE APPEAL:……………………………………………………………………………...…45
Authority of the City Commission under the Bozeman Municipal Code…………………45
City Commission May Act as a Board of Adjustment…………………………………………….45
APPEAL PROCEDURE:………………………………………………………………………………………………45
UNRESOLVED ISSUES:………………………………………………………………………………………………46
ALTERNATIVES:……………………………………………………………………………………………………....46
ATTACHMENTS:……………………………………………………………………………………………………….46
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Figure 1. Boundary of the Midtown Neighborhood Association
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Figure 2: Open Space and Outdoor Bicycle Parking
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Figure 3. Trash Pick Up Location and Turning Movements, Version 1 (original design)
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Figure 4. Trash Pick Up Location and Turning Movements, Version 2
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Figure 5. Site Plan Sheet A1.01 (red dotted lines depict fire hose pulls)
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Figure 6. Fire Lane Striping and Signage Plan
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BACKGROUND:
Regulatory Context
Historic decisions made by the City Commission have shaped the City’s site plan review
process, as well as the allowable development, code standards, and anticipated evolution of
The Guthrie site.
In 2003, the City Commission adopted Ordinance 1604, which expanded the delegated
administrative review authority to staff and explicitly assigned approval authority for
many actions to the Planning Director. See. 18.64.010.B. This ordinance also adopted the
administrative review structure, which requires a public comment period, but not a public
hearing on administrative review of site plan applications and which is still used today.
Section 18.34.070.A.1 of the historic code requires:
The Planning Director shall provide an opportunity for the public to comment upon
development proposals. The duration of the initial comment period shall be
included in any notice required by Chapter 18.76, BMC. The comment period shall
be from the date of the first consideration of the complete preliminary plan and
supplementary materials by the DRC until 5:00 pm on the third working day after
DRC and other review bodies as may be appropriate have taken action regarding the
proposal.
Just as today, the historic code began the public comment period on the date the staff
begins its consideration of a complete site plan.
In 2005, the Commission adopted Resolution 3782, setting a fee for an appeal application at
the same amount as the application fee paid by the developer. The Commission has
periodically adopted new fee schedules for all development applications, including appeals.
The most recent fee schedule was adopted in 2024 through Resolution 5622.
The R-5 zoning district was created in 2016 through Ordinance 1942. Commission adopted
R-5 zoning for this site in 2016 through Ordinance 1943. Most of the specific development
standards applicable to this site plan application were adopted through the 2018 repeal
and replacement of the UDC in Ordinance 1978. Provisions related to the deep incentives
available to developers of affordable housing projects that were applied to The Guthrie site
plan have been in place since 2022 when they were adopted by the City Commission
through Ordinance 2105.
The Guthrie/5th and Villard Site Plan, CCOA, and Demolition Application 24493
The Guthrie site is located at 321 North 5th Avenue. It is within the NCOD and abuts the
perimeter of the Midtown Urban Renewal District. The site is approximately .84 acres and
within the Midtown Neighborhood. The property has been zoned R-5 since 2016. The R-5
zoning district is designated as a residential, mixed-use high density district in Bozeman’s
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growth policy, the Bozeman Community Plan 2020. A variety of other zoning districts, both
residential and commercial/mixed-use, surround the site. Immediately adjacent to the site
on the west is the Sapphire Motel, which is zoned B-2M (Community Business District-
Mixed). The site is bounded on its north and east sides by single-household residences and
a church, which are zoned R-3 (Residential Medium Density District) and to the south by a
four-household dwelling and single-household dwellings zoned R-4.
An existing building on the site was used as a convalescent center, but it has been vacant
since 2022. The structure was built in 1958, is not located in a historic district, and is not
eligible to be listed individually on the National Register of Historic Places. The building
could contribute to a potential historic district based on the post-war expansion phase of
Bozeman’s development. The designation of such a historic district has not been pursued
by any party.
Prior to the development proposal that is the subject of this appeal, the Developer
submitted application 23354, which proposed to develop a 5-story apartment building
with 111 residential units, including affordable housing units. Section 38.200.010.B, BMC,
assigns review authority to the Community Development Director. The decision-making
authority for application 23354 was reclaimed by the City Commission, as authorized in
38.200.010.B.2, BMC. The City Commission held a public meeting on the application and
denied it in part on grounds the application failed to meet certain NCOD criteria. Due to the
denial, a stay on the issuance of a demolition permit for a period of two-years was imposed
pursuant to 38.340.090.D.3, BMC.
The application at issue in this appeal, application 24493, proposes to demolish the existing
structure and build in its place a new, 4-story apartment building. The project will provide
91 residential units, 46 of which are affordable units offered for rent at or below 80% of the
area media income (AMI). In offering the affordable units, the application utilizes the
incentives available under BMC section 38.380.030.B.4
One advisory committee reviewed the project. The Development Review Committee (DRC)
is comprised of City staff who bring their technical expertise to bear on each aspect of a
development application that affects their department. The DRC deemed the project
adequate on December 4, 2024. DRC further evaluated the application against relevant
4 Division 38.380 was repealed and replaced in its entirety by Ordinance 2025-001, which went into effect on
March 13, 2025. Affordable housing codes that were in place at the time the application was deemed
adequate were analyzed and applied to application 24493, pursuant to section 38.200.080.B, BMC. Therefore,
affordable housing codes as they existed on December 4, 2024, when The Guthrie application was deemed
adequate are attached to this report. No hyperlinks are provided to the online version of the municipal code
for each reference to division 38.380 because the online code reflects the current version of the affordable
housing code and not the version applicable to application 24493.
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code standards and recommended that the application was adequate, conforms to
standards, and is sufficient for approval with conditions and code provisions. Planning
staff found that the application met all standards and criteria for approval with conditions.
The Community Development Director concurred and conditionally approved the
application. One way in which the two-year stay on demolition can be terminated is
through approval of a subsequent application that satisfies NCOD criteria, pursuant to
section 38.340.090.D.3, BMC. After the Director conditionally approved application 24493,
the two-year stay on demolition applied to the Applicant’s previous application for the
same site was terminated.
Timeline of the Guthrie Site Plan, CCOA, and Demolition Application, Approval, and Appeal
The Guthrie I application 23354 submitted Dec. 1, 2023
Commission vote to reclaim The Guthrie I application April 16, 2024
Meeting of the City Commission on The Guthrie I application July 9, 2024
and denial; beginning of 2-year stay on demolition
per 38.250.090.D.3
The Guthrie II application 24493 submitted Sept. 6, 2024
The Guthrie Development Review Committee adequacy determination Dec. 4, 2024
The Guthrie 24493 public comment period Dec. 6, 2024 to
Dec. 31, 2024
Public comment from Appellant’s member Scott Boyd received Dec. 17, 2024
Dec. 31, 2024
Jan. 7, 2025
Public comment from Appellant’s member Christy Stillwell received Dec. 14, 2024
Dec. 17, 2024
Dec. 19, 2024
Dec. 20, 2024
Dec. 31, 2024
Public comment from Appellant’s member Emily Talago received Dec. 31, 2024
CD Director decision conditionally approving application 24493 Jan. 15, 2025
Appeal 25033 submitted by Appellant Jan. 30, 2025
Notice of appeal hearing and public comment period March 3, 2025 to
April 1, 2025
Commission Hearing on Appeal 25033 April 1, 2025
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38.250.030.A “Aggrieved Person:”
The City Attorney recommends the Commission preserve its arguments and objections
about whether Appellant qualifies as an “aggrieved person,” as required in BMC
38.250.030.A and as defined in section 38.700.020, BMC, with standing to bring this appeal
to be determined by a district court, if Appellant or Developer appeals the Commission’s
decision.
An analysis of standing includes determining whether the Appellant has concrete,
particularized, and imminent injury sufficient to establish the Appellant has a
personal stake in the outcome of the controversy. A District Court Order from Montana’s
Eighteenth Judicial District in United Food and Commercial Workers v. City of Bozeman and
Gallatin TR LP and Winco Foods, LLC (attached) provides judicial guidance as to minimum
requirements to be an aggrieved person capable of raising an appeal of an administrative
decision under the BMC. Regarding traffic complaints, the court notes that concerns about
increased traffic disrupting a morning commute due to additional congestion on City
streets do not differ from the general interests of the community. The opinion also notes
that the proximity of a landowner to the proposed development is an important factor in
determining whether traffic concerns are particularized and distinct from the general
interests of the community.
Appellant here expresses general concerns about safety particularly related to street
congestion and traffic, parking, diminishment of sunlight, historic preservation, and
housing affordability. Appellants generally assert that they have standing because they
own properties near the Guthrie project, but the identified constituent members of the
Appellant provide no specific information about how their quality of life, homes, and
property values are or will be adversely impacted by the development. Appellant asserts
that its identified members live in close proximity to the project, varying between as close
as within two hundred feet and as far away as one block north of the project.
Because a specific standing analysis should be applied to each of the Appellant’s identified
members to determine which, if any, among them have standing to assert the appeal, the
City Attorney recommends the Commission hear and decide the merits of the appeal,
preserving the City’s defenses regarding Appellant’s standing for later determination by a
district court judge if appellants seek judicial review.
38.250.030.B Issue Preclusion:
In order to raise an issue on appeal, the issue must have been raised in-person or in-
writing during the provided public comment period, unless the issue could not have been
reasonably known by any party during the time of the public comment period pursuant to
38.250.030.B, BMC.
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The City Attorney agrees that each of Appellant’s substantive claims, found in sections II
through IV of Appellant’s Argument were properly raised in public comment. However, at
least one of Appellant’s constitutional claims, found in section I of Appellant’s Argument
were not properly raised in public comment. Whether constitutional claims were
adequately raised or not, it is nonetheless inappropriate to consider constitutional claims
in this appeal. The City Attorney recommends the Commission preserve all arguments and
objections regarding all constitutional claims. Preserving the City’s arguments related to
issue preclusion on only the constitutional claims would allow a district court to determine
whether each issue was properly raised during consideration of application 24993 and
whether constitutional claims can even be considered during an administrative project
decision appeal, if the Appellant or Developer appeals the Commission’s decision.
Therefore, the City Attorney recommends the Commission hear and decide the merits of
the appeal, preserving all defenses the City may assert regarding constitutional claims and
issue preclusion related to those claims for determination by a district court judge. We
provide a motion to implement this recommendation.
BASIS OF THE APPEAL:
This appeal raises constitutional claims and substantive claims in seeking to overturn the
Director’s decision.
In section I of its appeal, Appellant raises three constitutional claims related to the City’s
process in making administrative decisions and hearing appeals. First, Appellant argues
that procedural due process requires a public hearing, citing Article II, section 17 of the
Montana Constitution. Next, Appellant seeks waiver of the required fee for an application
to appeal an administrative project decision because, they assert, it is unconstitutional to
require a fee to be afforded their claimed constitutional right to a public hearing. Finally,
Appellant claims it was denied procedural due process when the City Commission
exercised its discretion to not reclaim decision making authority over application 24493.
In section II of its appeal, and in support of its arguments that the Director’s decision was in
error, unlawful, arbitrary and capricious, Appellant raises several substantive claims.
Appellant asserts that application 24493 fails to meet site plan review criteria found in four
subsections of 38.230.100, BMC, specifically subsections A.5.c, A.7.a, A.7.b, and A.6.
First, Appellant cites a failure to meet subsection 38.230.100.A.5.c, which requires
consideration of “applicable zone specific or overlay standards (divisions 38.330-.340)”
because the application does not meet certain provisions of the NCOD Guidelines, which
Appellant argues are compulsory requirements. In support of the contention that the
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NCOD Guidelines are compulsory, Appellant cites one portion of 38.340.050.D, which
provides, “When applying the standards of subsections A-C5 of this section, the review
authority must be guided by the design guidelines for the neighborhood conservation
overlay district6.”
Appellant also argues that The Guthrie fails to meet site plan review criteria of
38.230.100.A.7.a, BMC, which requires conformance with the project design provisions of
article 5 of the UDC, including:
Compatibility with, and sensitivity to, the immediate environment of the site and the
adjacent neighborhoods and other approved development relative to architectural
design, building mass, neighborhood identity, landscaping, historical character,
orientation of buildings on the site and visual integration.
In support of its contention that the application fails to meet this criteria, Appellant cites a
failure to meet the standard to be approved for a certificate of appropriateness found in
38.340.050.C7 and which they contend is required by the NCOD Guidelines. Specifically,
Appellant argues that the mass and scale of The Guthrie is incompatible with adjacent
single-household residential dwellings and a nearby church, single-story motel, and multi-
family dwelling.
Next, Appellant describes three examples to support its conclusion that the application fails
to meet site plan review criteria of 38.230.100.A.7.b, BMC, which requires conformance
with the provisions of Article 5 of the UDC, including:
Design and arrangement of the elements of the plan (e.g., buildings, circulation, open
space and landscaping, etc.) so that activities are integrated with the organizational
scheme of the community, neighborhood, and other approved development and
produce an efficient, functionally organized and cohesive development.
The first example offered argues that the application fails to provide the minimum amount
of open space required by 38.520.060 because it included outdoor bike parking areas in the
calculation. The second example raises concerns regarding the location of the garbage and
recycling tip pad. The third example raises concerns with the design of a one-way parking
lot without a vehicle turnaround. The fourth example claims that two 150-foot hose pull
locations are inadequate to fight fire on the interior, west wall of The Guthrie. It appears
5 Subsections A and B are inapplicable to application 24493 because those provisions deal with alterations to
existing historic structures. Because The Guthrie proposes to demolish, not alter, the existing structure and
build new, contemporary construction on the site, subsection C is applicable.
6 Appellant misquotes the code, apparently combining portions of subsections C and D of section
38.340.050.D, on p.15 of Appellant’s document 000 2025.01.30 Final Guthrie Appeal.
7 Appellant also cites subsections B.1 and B.5 of BMC section 38.340.050, which are inapplicable to
application 24493, as explained footnote 5 above.
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that Appellant cites a failure to conform to code requirements of 38.520.050 for each of the
latter three examples.
Appellant also contends that application 24493 fails to meet site plan review criteria of
38.230.100.A.6, BMC, which requires conformance with Article 4 of the UDC, which provide
standards related to transportation facilities and access to and from a site. Specifically,
Appellant challenges the satisfaction of BMC section 38.400.060.B.4, which sets forth level
of service standards for intersections. Appellant also finds the TIS provided by the
Developer inadequate because it fails to analyze signal warrants for key arterial and
collector intersections within one-half mile of the study area, as required by
38.220.060.A.11.h.
In section III of its appeal, Appellant states that a two-year stay on demolition of the
existing structure should be enforced because the criteria for issuance of a demolition
permit have not been met, pursuant to section 38.340.090.C. Appellant also contends that
the Developer has not met the requirements of 38.340.090.D.3.a, BMC, for early
termination of the two-year stay on issuance of a demolition permit.
Finally, in section IV of its appeal, Appellant states that the deep incentives found within
the affordable housing code were unlawfully exploited and that Appellant preserves their
right to facially challenge the provisions of Division 38.380 of the UDC.
Please refer to the Appellant’s submittal for a complete review of the issues on appeal,
which is attached to this report. The City’s responses are each addressed in the order
Appellant presented them.
Staff Evaluation and Director’s Conditional Approval of Application 24493
City staff reviewed The Guthrie Site Plan, CCOA, and Demolition application for compliance
with all applicable criteria. Staff’s analysis and findings related to each criterion are
contained in the staff report, which is part of the record of review. Specific to the issues on
appeal, staff provides the following information to explain the analysis and conclusions
supporting approval of the application and rebut issues raised by Appellant.
As an initial observation, many of the arguments raised by Appellant appear to take issue
with the zoning of this parcel or various adopted standards in code. For instance, although
the application adheres to all code requirements regarding affordable housing and the
qualification of the project for affordable housing incentives, Appellant nonetheless argues
that the project does not offer sufficient affordability for the size of the units and therefore
the adopted policy is unconstitutional. The adopted standards that were applied to this
project are the result of policy making decisions about how Bozeman should look and
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function and how to incentivize desired housing, informed by hours of public input.
Disagreement with policies or the adopted standards applicable to those policies is not a
basis for appealing the application of those policies and standards to a specific project.
This staff report addresses each of Appellant’s arguments in turn.
APPEAL OF THE ADMINISTRATIVE DECISION
I. CONSTITUTIONAL CLAIMS
Pursuant to the City Attorney’s analysis and advice, it is inappropriate for Appellants to
raise constitutional claims about the City’s process through an administrative project
appeal before the Bozeman City Commission for two reasons. First, section 38.250.030
provides, “Any appeal of a final administrative decision to approve, approve with
conditions or deny an application must be an appeal on the basis of the information
available to the administrative review authority including [BMC Chapter 38], all submitted
application materials, review and recommendations by administrative staff or advisory
bodies, public comment and such other materials as were available.” (emphasis added).
Second, it is inappropriate for the City Commission, the very same body that adopted the
processes set forth in code to sit in judgement as to the constitutionality of its own policy
decisions. The appropriate venue to challenge the constitutionality of laws, including the
City’s adopted municipal code, is district court. Nonetheless, staff provides a brief response
to each allegation.
A. Procedural Due Process Does Not Require a Public Hearing
Appellant points to no applicable law in asserting a constitutional right to a public hearing.
Appellant’s reliance on Montana Media Inc. v. Flathead County is not on point because the
case does not stand for the proposition that a public hearing is a requirement during an
administrative decision making process and the courts denied the Plaintiff’s due process
violation claims, ruling in favor of the City of Whitefish and Flathead County. Montana
Media instead states that “procedural due process does not prescribe what procedural
safeguards must be in place.” Montana Media Inc. v. Flathead County, 2003 MT 23, ¶ 66, 63
P.3d 1129, 314 Mont 121 (citing Logan v. Zimmerman (1982), 455 U.S. 422, 434, 102 S.Ct.
1148, 1156-1157 and Matter of Connell v. State (1997), 280 Mont. 491, 496, 930 P.2nd 88,
91). Further, in finding Plaintiff’s due process was not violated Montana Media notes that,
“the Board of Adjustment is responsible for hearing appeals that allege an error related to
the enforcement of [ordinances related to billboard regulations].” Id. At ¶ 67. Here, the
Bozeman City Commission sits as the Board of Adjustment and hears appeals that allege an
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error related to zoning regulations. See Evaluation of the Appeal section of this report
below.
The Montana Constitution protects the public’s right to participate in the decisions of
government agencies prior to the final decision, as may be provided by law. See Section 8
of the 1972 Montana Constitution. The “essential elements” required to meet Montana’s
constitutional and statutory guarantees of public participation are “notice and opportunity
to be heard.” Carbon Cty. Res. Council v. Mont. Bd. Of Oil & Gas Conservation, 2016 MT 240, ¶
21, 380 P.3d 798. Montana law requires provision of an opportunity to submit views, but
does not require a public hearing:
Opportunity to submit views – public hearings. (1) Procedures for assisting
public participation must include a method of affording interested persons
reasonable opportunity to submit data, views, or arguments, orally or in written
form, prior to making a final decision that is of significant interest to the public.
Mont. Code. Ann. § 2-3-111(1).
Pursuant to notice requirements of BMC section 38.220.420, notice was provided to the
public via first-class mail to all land owners within 200 feet of the project site and by a
notice board posted on the site. The public had ample opportunity to be heard through a
written a public comment period from December 6, 2024, through December 31, 2024.
Indeed, many members of the public, including each of the identified members of the
Appellant’s organization, exercised their opportunity to be heard because the City received
113 written public comments on application 24493.
B. The Appeal Fee Is Not Unconstitutional or Exorbitant
Fees charged by the City for appeal applications are constitutional and reasonable. State
law authorizes self-governing local governments to provide any service or perform any
function not expressly prohibited by the Montana constitutions, state law, or its charter.
Mont. Code Ann. § 7-1-102. The ability to charge fees for zoning applications, including
appeals of administrative zoning project decisions, is not among the powers denied to
municipalities with self-governing powers. Mont. Code Ann. § 7-1-111. The City
Commission has duly adopted a regulation allowing the City to charge fees for appeals and
other development applications. Section 38.200.140 – Fee schedule provides:
A. The city commission must establish a schedule of fees, charges and expenses and
a collection procedure for reviews, permits, appeals and other matters
pertaining to this chapter. The schedule of fees for the procedures listed below
will be set from time to time by the city commission by resolution. The fees must
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be available in the office of the community development director and may be
altered or amended only by the city Commission.
B. No subdivision, or zoning permit allowed by this chapter may be issued unless
or until such costs, charges, fees or expenses have been paid in full, nor may any
action be taken on proceedings before any advisory body or review authority
until fees have been paid in full.
The City Commission adopted the most recent fee schedule for planning applications,
which includes the fee for appeals, through Resolution 5622 on August 13, 2024.
The City charges a fee for every development application to recover some of the costs of
reviewing and processing each application. In recent years, less than half of the City’s costs
have been defrayed by the fees charged for applications to the Community Development
Department. According to the cover memorandum for Resolution 5622, “the City adopts a
schedule of fees that is specific to application types to pursue an equitable best fit between
fees charged and resources consumed during a review.” Indeed, each appeal requires
significant city resources in terms of staff time from city employees. This appeal, which
includes 454 pages of documents is no different.
C. The City Commission’s Discretionary Decision Not to Reclaim Application
24493 is Not Unconstitutional
Staff declines to comment on the reasons given by the Commission regarding each
Commissioner’s decision to reclaim the Guthrie I application, nor will staff speculate on the
reasons the Commission declined to reclaim the Guthrie II application.
Pursuant to the UDC, it is the Commission’s prerogative to reclaim an administrative
project decision. Pursuant to section 38.200.010.B.2, “The City commission may by an
affirmative, simple majority vote of its members at a regularly scheduled meeting reclaim
to itself the final approval of a development application normally subject to the approval of
the community development director. The vote must occur prior to the action of the
community development director” (emphasis added). In this case, the Commission chose
not to take any vote regarding whether to reclaim decision making authority over
application 24493. Nothing in the UDC requires or compels the Commission to reclaim; to
the contrary, the code is expressly permissive. Appellants were not deprived of a right to
due process because the Commission failed to exercise its entirely discretionary ability to
reclaim decision making authority over this or any other administrative project decision.
All of Appellant’s rights were preserved by the opportunity to submit an appeal.
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II. SUBSTANTIVE CLAIMS
Appellants are correct that approval of application 24493 required a demonstration of
compliance with all criteria articulated in BMC sections 38.230.100 (plan review criteria),
division 38.380 (affordable housing), and applicable sections of 38.340.010 through
38.340.130 (NCOD standards and criteria). The extensive staff report (attached) analyzes
The Guthrie application against every applicable standard and criteria in the UDC and
concludes that the project should be conditionally approved.
Staff disagrees with Appellant’s contention that NCOD Guidelines are compulsory or that
the application failed to meet any required criteria. Additionally, in some instances
Appellant’s arguments ignore entire sections of analysis in the Director’s decision and
incorporated staff report, are contradictory, or assert generalized claims without sufficient
specificity for staff to respond. For example, Appellant states, “Despite clear guidance in
the growth policy, the Director’s decision and the findings in the Staff Report betray that
City Staff prioritizes utilization of the deep incentives in the new and much-needed AHO
over well-established protections for Bozeman’s historic neighborhoods and public health,
safety, and welfare protections for Bozeman’s residents.” See p. 14 of Appellant’s
document 000 2025.01.30 Final Guthrie Appeal. This allegation fails to provide any
reference to guidance in the growth policy that supports their contention and ignores the
three pages of detailed analysis in the staff report regarding compliance with 16 stated
goals of the City’s growth policy and other provisions of the Bozeman Community Plan
2020. See pp. 19-22 of the Director’s decision.
A. Compliance with NCOD Standards and Consideration of Guidelines
Again, the City does not dispute that compliance with applicable NCOD standards and
criteria found in various sections of the UDC is required. Specifically, these standards and
criteria include: (1) BMC section 38.230.100.A.5.c “In considering applications for plan
approval under this chapter, the review authority and advisory bodies must consider the
following criteria … 5.c. Applicable zone specific or overlay standards (divisions 38.330-
340);” (2) standard for Certificates of Appropriateness found in BMC section 38.340.050,
and; (3) criteria for issuance of a certificate of appropriateness for demolition and
subsequent development found BMC section 38.340.090.C. As required by section
38.20.100.A.5, pages 22-24 of the Director’s decision set forth analysis regarding
compliance with various zoning provisions of Article 3. Compliance with the NCOD
standards and criteria of sections 38.340.050 and 38.340.090.C are addressed separately
on pages 32-38 of the Director’s decision, which offers the most thorough analysis in the
entire report.
1. Role of NCOD Guidelines and Compliance with 38.230.100.A.5
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Appellant argues that the Director “must be guided” by the design guidelines for the NCOD,
but in one instance fails to acknowledge that the Director was guided by the NCOD
Guidelines8 and in another characterizes the Director’s analysis of the guidelines as
“insincere.”9 In fact, nearly two pages of analysis in the Director’s decision are dedicated to
analysis of Chapters 2 and 3 of the NCOD Guidelines. See pp. 34-35 of the Director’s
decision. Appellant may draw different conclusions than the Director did throughout the
discussion of each item within relevant chapters of the NCOD Guidelines, but the Guidelines
were considered, properly analyzed, and provided guidance to the Director’s decision, all in
compliance with the requirement of 38.340.050.D.
There is authority within the municipal code and NCOD guidelines supporting the
Director’s interpretation that NCOD Guidelines provide guidance and are not intended to
be compulsory. Beyond simply the use of the term “Guidelines” rather than “standards” or
“criteria” and ample references to the “guidance” they provide, city code recognizes the
flexibility that must be afforded in considering the guidelines. Municipal code expressly
states, “application of the design guidelines may vary by property as explained in the
introduction to the design guidelines.” See section 38.340.050.D, BMC. The introduction to
the NCOD Guidelines largely discusses preserving existing structures, but it also states, “To
maintain the character of a historic building, design elements such as form, mass and
materials should be considered in any alteration.” Emphasis added. See p. 3 of Bozeman
Guidelines for Historic Preservation & the Neighborhood Conservation Overlay District.
The language in the introduction, coupled with the language in the UDC, lends credibility to
the conclusion that the NCOD Guidelines do not require or proscribe rigid and specific
design elements within the NCOD. Nonetheless, the Director analyzed compliance with all
UDC standards related to the design, mass, and scale of The Guthrie and also considered
guidance regarding materials, building mass and scale, roof form, and multi-household
dwellings found in Chapters 2 and 3 of the NCOD Guidelines, as explained in further detail
below.
Finally, without citing any authority, Appellant dismisses the Director’s interpretation of
section 38.340.050.D, that the NCOD Guidelines are not compulsory, as incorrect. Further,
without providing any specific example or information to allow staff to respond as to its
consistent application of this interpretation, Appellant contends that the interpretation
8 “The Staff Report analyzes only compliance with the R-5 zoning district.” See p. 17 of Appellant’s document
0000 2025.01.30 Final Guthrie Appeal.
9 “Despite the Staff Report’s conclusion that it may be guided by the NCOD guidelines, the Staff Report
nevertheless employs the guidelines. The Staff Report’s findings are insincere and reflect administrative
gymnastics …” See p.19 of Appellant’s document 0002025.01.30 Final Guthrie Appeal.
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“represents a major reversal in City policy, signaling arbitrary and capricious action.” See
p. 16 of Appellant’s document 000 2025.01.30 Final Guthrie Appeal.
The NCOD Guidelines are not regulatory or prescriptive; instead they define a range of
appropriate responses to a variety of specific design issues. Regardless, the Director
analyzed applicable portions of the NCOD Guidelines and found substantial compliance
with them. The Director’s decision should be upheld.
2. Form, Mass and Scale and Compliance with 38.340.040
As an initial matter, Appellant makes misstatements of applicable code and
mischaracterizes The Guthrie development as an alteration to an existing structure, rather
than a demolition and subsequent new, contemporary construction. Staff clarifies
applicable code here to resolve Appellant’s errors
and agrees that approval of the application required a Certificate of Appropriateness and
an analysis of the compatibility of the new construction with surrounding structures.
First, “alteration” of an existing structure as contemplated by section 38.340.040.A includes
repairs, additions, or reuse of an existing structure. See p. 5 of the NCOD Guidelines.
Demolition of a building within the NCOD requires a Certificate of Appropriateness
pursuant to section 38.340.040.A.1, BMC. As such, Appellant incorrectly states that The
Guthrie must be compatible with the existing two-story Bozeman Health and Rehabilitation
Center, which is to be demolished. However, Appellant correctly states that contemporary
new structures like The Guthrie must be compatible with surrounding structures, pursuant
to BMC section 38.340.050.C and D.
Second, Appellant states that design elements, including height and scale must be
compatible with surrounding structures, incorrectly citing subsections B.1 and B.5 of
38.340.050. As explained in the Director’s decision, a careful reading of section 38.340.050,
BMC reveals that subsections A and B are inapplicable to The Guthrie. See p. 33 of the
Director’s Decision. “Subsection 38.340.050 does not apply because the Secretary of the
Interior’s Standards does not speak to new construction and because the property is not
located within a historic district nor is the structure on the National Register. Nor does
subsection B apply since those guidelines are used to consider compatibility with proposed
alterations of the original design features.” Regardless, the City agrees that compatibility of
the new construction with surrounding structures is relevant to the Director’s conditional
approval of The Guthrie as required in subsections C and D of 38.340.050.
The applicable required standards for the height of The Guthrie are found with in Table
38.320.030.C, establishing a maximum height of 50 feet in the R-5 zone district for roof
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pitches less than 3:12. The Guthrie satisfies these required code standards. The NCOD
Guidelines provides guidance that, “the front wall of a new structure should not exceed two
stories in height,” which is not a code requirement or controlling as discussed above.
Additionally, the NCOD was never intended to require historic neighborhoods to remain
static and unchanged. To the contrary, both the NCOD Intent and Purpose statement in the
BMC and the NCOD Guidelines include express language encouraging new development
and density in the NCOD:
New construction will be invited and encouraged provided primary emphasis is given
to the preservation of existing buildings and further provided in the design of such new
space enhances and contributes to the aesthetic character and function of the property
and the surrounding neighborhood or area. Contemporary design will be encouraged,
provided it is in keeping with the above-stated criteria, as an acknowledged fact of the
continuing developmental pattern of a dynamic, changing community.
38.340.010.C, BMC.
Notably, application 24493 proposes a building that is one story less and 14.5 feet shorter
than was proposed in application 23354, which was denied by the City Commission. It
does not use additional height incentives offered through affordable housing codes as the
previous application did, instead falling under the by-right height limit of 50 feet in the R-5
zoning district.
In arguing that The Guthrie is incompatible in form, mass, and scale with its surroundings,
Appellants limit their analysis to adjacent buildings, while criticizing the Director’s decision
for limiting compatibility analysis to buildings within the adjacent Midtown Urban Renewal
District. Consideration of both residential neighborhoods to the east and the commercial
district to the west is appropriate. In fact, the site sits nearly in the middle of the city-
recognized Midtown Neighborhood District, which extends several blocks west of North 7th
Avenue.10 See Figure 1. In 2016, the City Commission, after substantial public outreach
and participation adopted the site’s R-5 zoning which is distinct from the adjacent R-3 and
R-4 zones. It is reasonable to expect that buildings in one zoning district with distinct
standards regarding appropriate uses and allowable design elements would be developed
differently from those buildings in an adjacent, but different zoning district.
Undeniably, the site is located in a transition zone between the more densely developed
and commercial areas abutting the development on the west and the mostly single-
10 Appellant should be familiar with the boundaries of the Midtown Neighborhood because one of its
members has represented the Midtown Neighborhood Association on the Bozeman InterNeighborhood
Council. See p. 7 of Appellant’s document 000 2025.01.30 Final Guthrie Appeal.
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household residences to the east11. In considering the compatibility of the proposed
development, the Director utilized the definition of “compatible development” found within
the UDC, which provides:
Compatible development. The use of land and the construction and use of structures
which is in harmony with adjoining development, existing neighborhoods, and the
goals and objectives of the city’s adopted growth policy. Elements of compatible
development include, but are not limited to, variety of architectural design; rhythm
of architectural elements; scale; intensity; materials; building siting; lot and building
size; hours of operation; and integration with existing community systems including
water and sewer services, natural elements in the area, motorized and non-
motorized transportation, and open spaces and parks. Compatible development does
not require uniformity or monotony of architectural or site design, density or use.
Section 38.700.040, emphasis added.
The Director’s decision considered both, noting that it’s residential use and aspects of the
site and building’s design aligned with or incorporated various aspects of residential
surroundings, while acknowledging that it’s height and the size of the building was more
consistent with buildings in the adjacent Midtown Urban Renewal District. See pp. 21-22,
28-29, and 33-35 of the Director’s decision.
Appellant asserts that staff misstates the amendment date of the NCOD Guidelines and the
Guidelines’ applicability to high-density and mixed-use development. The staff report
states, “Beside the addition of Chapter 4-B, Guidelines for the B-3 Commercial Character Area,
which are not applicable to this project, these guidelines have not been updated since
2006.” See p. 33 of the Director’s decision. Staff acknowledged that one portion of the
NCOD Guidelines was amended in 2015, but correctly states that the portions of the
Guidelines relevant to The Guthrie have not been updated since their adoption nearly 20
years ago. In contrast, the standards for the base zoning were substantially updated in
2018 and incorporated many building design elements.
In looking at the content of the relevant chapters of the NCOD Guidelines, it is clear that
much of the guidance is relevant to and anticipates single-household residential
construction, not higher density multi-dwelling residential buildings. See Chapters 2 and 3
of the NCOD Guidelines. The multi-household guidelines found in Chapter 3 of the NCOD
Guidelines offer the most relevant guidance for a project like The Guthrie, located in an R-5
11 The adjacent R-3 and R-4 districts are developed to only a portion of their allowed height, density, and
development capacity. Both districts provide for a range of different types of homes and much taller buildings
than presently in place. Both district have been in place for many years. For example, building in the R-3
zoning district can have a height up to 36 or 46 feet, depending on the roof pitch, which is only 11 feet
(roughly 1 story) shorter than the height of The Guthrie at 47 feet.
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zoning district on the edge of a major commercial corridor. See pp. 60-62 of the NCOD
Guidelines. However, even the multi-household guidelines tend to reflect expected
construction of a multi-household structure on a lot previously occupied by a single
household dwelling, which makes even the most relevant guidance contained in the NCOD
Guidelines ill-suited for the present situation proposing redevelopment of a larger infill site
that currently contains a larger institutional structure. This illustrates the outdated nature
of the NCOD Guidelines. Nonetheless, The Guthrie application included many of the
recommendations found in this section, as noted on p. 35 of the Director’s decision.
Finally, Appellants insinuate that staff attempted to change the NCOD boundary through an
unscheduled meeting at the behest of the Developer. Nothing could be further from the
truth. The Historic Preservation Advisory Board (HPAB) held a special meeting on
September 12, 2023, which was properly noticed through its agenda published on
September 7, 2023. The special meeting was held to make a recommendation to the
Community Development Board prior to their meeting to discuss the ongoing UDC update
project. The HPAB discussed specific items in the UDC update that relate to historic
preservation, one of which was consideration of a boundary change for the NCOD. The
Boundary change proposal was based on the 2019 NCOD Policy Report and the updated
UDC’s proposed implementation of recommendations therein. HBAB recommended no
change to the NCOD at that time and further consideration of NCOD boundary changes will
be addressed within the City’s separate Local Landmark Program, currently in progress
and closely involving HPAB. The discussion regarding changing the NCOD boundary had
nothing to do with The Guthrie and its timing was purely coincidental.
B. Mass and Scale Compatibility with Surroundings
Site plan applications must conform to project design provisions of article 5 of the UDC,
including:
compatibility with, and sensitivity to, the immediate environment of the site and the
adjacent neighborhoods and other approved development relative to architectural
design, building mass, neighborhood identity, landscaping, historical character,
orientation of buildings on the site and visual integration. BMC section
38.230.100.A.7.a.
As discussed above, compatibility with the immediate environment of the site and adjacent
neighborhoods does not mean staff must analyze only those single-household residences,
the church, motel, and four-household dwelling that are Appellant’s sole focus. Analysis of
this criteria is found in the Director’s decision on pages 28-29 and additional analysis
regarding neighborhood compatibility is addressed in pages 21-22 and 33-35. Further,
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administrative design review staff12 is charged with reviewing projects and making
recommendations about development within the NCOD, balancing the need “to maintain
the … desirable characteristics of structures… while recognizing the need for innovation
and individual expression in the development of these districts.” 38.340.020.A, BMC. The
BMC emphasizes the role of the design review staff in guiding the Director’s determination,
“the recommendations of the … administrative design review staff must be given careful
consideration in the final action of the [Director].” 38.340.010.A, BMC.
Zoning regulations provide the practical application and meaning to the general direction
of the growth policy and state law.13 Code requirements pertaining to “mass and scale” for
this site are found primarily in 38.320.030 with some supplementary standards in the
NCOD section of the code, found in 38.340.050.B, BMC. Additionally, the City has adopted
form and intensity standards to regulate height and transitions where higher intensity
zoning districts abut lower intensity districts. 38.320.050 and .060, BMC. These standards
directly implement the degree of transition between districts the Commission found
necessary and appropriate. The application meets all provisions of the BMC, including
those that provide standards for height limits and the mass and scale of buildings. No zone
edge transition applies to this site. See 38.320.020 and 38.320.030.
Bozeman’s neighborhoods are not restricted to blocks of single-household dwellings.
Bozeman’s Midtown neighborhood encompasses the growing and revitalized North 7th
Avenue corridor, with its mix of residential, retail, and office uses, as much as its mix of
homes in its residential areas. See Figure 1. In the context of the entirety of adjacent
neighborhoods, which properly includes the commercial area adjacent to the west, staff
reasonably found similarities in exterior materials, orientation of the building to the street,
the streetscape, landscaping, and building mass with other buildings in the adjacent
neighborhoods.
C. Public Health and Safety
Appellant argues that aspects of site plan application 24493 will negatively impact public
health and safety. Appellant offers four examples to support this contention: (1) that the
site offers insufficient open space because it inappropriately counts bicycle parking in its
12 The Design Review Board referenced in this code section no longer exists and its functions have been
transferred to administrative design review staff serving on the Development Review Committee.
13 For example, Montana law requires the City to consider “reasonable provision of adequate light and air” in
adopting zoning regulations. Mont. Code Ann. § 76-2-304. The City Commission’s adopted regulations that
establish that the reasonable provision of light and air is achieved with building heights of up to 50 feet in the
R-5 zoning district and zone edge transitions that “are intended to supersede other form and intensity
standards in this division, and which do not require a setback when an R-5 zoning district is adjacent to R-3
or R-4 zoning districts, as is the case with The Guthrie. 38.320.050 and .060, BMC.
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open space calculation, citing BMC section 38.520.060; (2) that the placement and design of
the trash and recycling tip pad is unsafe; (3) that the parking lot, which has no turnaround
for vehicles, is a poor design and is arguably unsafe; and (4) fire-fighting abilities will be
curtailed due to the location of fire hose pulls. Appellant cites BMC section 38.520.050 in
arguing that examples 2-4 render The Guthrie’s vehicular circulation system unsafe.
Technical experts among city staff gather weekly to review development applications at the
Development Review Committee (DRC). Relevant to these examples, technical experts
from the City’s Solid Waste Division, Transportation and Engineering Division, Planning
Division, and the Bozeman Fire Department thoroughly reviewed each of these aspects of
site plan application 24493 and concluded each met all code requirements adopted by the
City Commission to ensure public health and safety. Each example is addressed below
providing additional information about public health and safety considerations and how
relevant code requirements are met. Responses to examples 2-4 also demonstrate that
Appellant’s reliance on 38.520.050, BMC, is misplaced because the cited code provision
contains standards regarding drive aisles, access and egress points, inter-site connectivity
for commercial developments, standards for internal roadways on sites greater than two
acres, and drive-through pick-up windows. None of the provisions of section 38.520.050,
BMC, are relevant to Appellant’s examples and the drive aisle and access points are
designed in compliance with code standards and engineering specifications. In meeting
each specific code standard, the Director’s finding that the site plan satisfied review criteria
of 38.230.100.A.7 was reasonable.
1. Calculation of Open Space
At issue is whether three outdoor bicycle racks properly count toward The Guthrie’s
required amount of open space. To City staff’s knowledge, the question has never arisen as
to whether bicycle parking should be considered a “parking area,” thus excluding the space
from the open space calculation, or a “pedestrian amenity,” such that the area can be
counted toward open space requirements. Staff has for years considered similarly
designed bicycle parking amenities as part of non-vehicular courtyards and as
complementary to pedestrian amenities in compliance with section 38.520.060, BMC, and
distinct from vehicular parking areas. Examples include Wallace Works (application
24532), Main Street Hotel (application 22176), Block 15 Apartments (application 23063),
14th and Patrick Apartments (application 23170). Finally, at least one photo of desirable
examples of pedestrian-oriented open space in the BMC depicts bicycles parked near an
outdoor seating area. See Figure 38.520.060.D.2, BMC.
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Appellant correctly notes that bike racks must be included in a development application as
part of parking facilities pursuant to 38.220.080.A.2.h (Site plan submittal requirements)
and mandatory bicycle parking calculations are analyzed in the parking section of the staff
report. However, staff’s interpretation that bicycle facilities are complementary to and an
enhancement of pedestrian facilities as both are integral to the City’s encouragement of
multi-modal transportation, is reasonable and is supported by code. For example, the
provision of bicycle facilities is included alongside pedestrian facilities in BMC section
38.520.040 – Non-motorized circulation and design, while bicycles are not mentioned
at all in section 38.520.050 – Vehicular circulation and parking, except with respect to
shared streets that accommodate mixed vehicle, bicycle and pedestrian movements, which
is not relevant to the Guthrie. In fact, every use of the word “vehicle” in 38.520.050 clearly
refers to a motor vehicle as distinct from a bicycle.
Appellant’s argument hinges on whether a bicycle is a “vehicle” such that it is included in
the definition of a “parking area” pursuant to 38.700.150, BMC, which provides:
Parking area. An area, other than a street or alley designated for use, or used, for
temporary parking of vehicles.
There is no definition of “vehicle” in the Unified Development Code. When a term is
undefined in Division 38.700, city code adopts definitions found in the latest edition of “The
Illustrated Book of Development Definitions” by Harvey S. Moskowitz and Carl G.
Lindbloom. The fourth edition of this book does not include a stand-alone definition of
“vehicle,” but it provides definitions of the following terms, all of which refer to motor
vehicles and do not include any reference to bicycles: vehicle, inoperable; vehicle, junk;
vehicle, motor; vehicle, off-road (ORV); vehicle overhang; vehicle, passenger; vehicle,
recreational; vehicle sales area; and vehicle trip. Therefore, Appellant’s argument that a
bicycle is a “vehicle” such that bicycle parking should be considered a “parking area” is
unavailing.
The City contends that bike racks, as an integral part of the City’s multimodal
transportation network, are considered pedestrian amenities under 38.520.060.B.2.d
because they enhance the functionality and enjoyment of open spaces for a wide range of
users. The code requires pedestrian amenities that improve accessibility and usability, such
as seating, lighting, and play structures. Similarly, bike racks directly support pedestrian-
oriented travel by encouraging cycling as a mode of transportation, allowing users to
secure their bicycles and transition seamlessly into pedestrian activity within the shared
open space.
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Further, bicycles are not just a mode of transportation, but a means of recreation as well.
Section 38.520.060.A.1, BMC, states that on-site residential open space is intended, “to
create useable space that is suitable for leisure or recreational activities for residents.”
Bike racks are also required to be located within 50 feet of an entrance to the building that
the bicycle parking is required to serve, pursuant to section 38.540.050.A.5.c.(1), BMC.
Notably, while only 11 bicycle parking spaces are mandated per code, the site provides 97
spaces significantly enhancing accessibility for cyclists and pedestrians. Just as seating and
lighting accommodate pedestrians, bike racks serve those who arrive by bicycle. The
additional 86 bike spaces above the minimum requirement demonstrates a strong
commitment to promoting active transportation and improving user experience.
The outdoor bike racks account for roughly 310 square feet of the 9798 square feet of
provided open space. Therefore, if the Commission determines the outdoor bicycle parking
facilities are properly included in The Guthrie’s open space calculations pursuant to
38.520.060, the project exceeds the 9750 square feet of required open space; if the
Commission finds that outdoor bicycle parking facilities should be excluded from the open
space calculation, the project will fall short of its required open space by roughly 262
square feet. Given the support in code and staff’s consistent inclusion of bicycle racks as
part of open space calculations, the Director’s approval finding open space requirements
are met should be upheld.
2. Solid Waste and Recycling Collection Tip Pad
The approved location and design of the trash and recycling tip pad mitigates conflicts
between traffic and trash and recycling trucks and is safe, as is required by BMC section
38.250.050.B.4. In fact, the location of the tip pad was redesigned by the developer in
response to comments from solid waste to mitigate public safety concerns. Originally, the
developer failed to identify the location of a tip pad and only depicted a trash room located
well inside the site, approximately halfway down the drive aisle. The original version of the
site plan depicted a straight trash loading path from North 5th Avenue, making it unclear
how the trash loading path would be utilized in relation to the location of the trash room.
Instead, the location of the trash room insinuated that trash and recycling trucks would
have to make a 90-degree turn and fully pull into the drive aisle of the site, collect the
refuse, and then make a blind 90-degree turn in reverse, backing out into traffic. See Figure
3. Trash Pick Up Location and Turning Movements, original design.
The DRC determined this initial design was unacceptable and dangerous due to the
required blind 90-degree turn backing out into traffic. According to the City’s Solid Waste
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Division staff, the driver of a trash or recycling truck cannot adequately see an obstacle
behind the truck while making a reverse 90 degree turn until the obstacle is directly behind
the truck. Staff comments on version 1 of the site plan required Developer to redesign the
site demonstrating the tip pad must have a 50-foot straight approach with no parking
allowed within the approach. Staff comments also noted instead that Developer could
provide “a turn around for refuse truck[,] we cannot back out onto the street.” Solid Waste
staff and the Developer discussed designing a hammer head turn around at the west end of
the drive aisle, but the Developer chose not to pursue the design because it would reduce
the number of off-street parking spaces.
The Developer reconfigured the tip pad closer to the street, showing that trash would be
removed from the trash room on pick up day, moved along a heated section of sidewalk,
and be picked up near the corner where the site’s drive aisle meets North 5th Avenue. This
design appropriately locates the trash at the required 50-foot straight approach in
response to the comment from city staff. See Figure 4. Trash Pick Up Location and Turning
Movements, Version 2.
The City’s technical experts approved this design because it is safer for the public. Using
this design, the refuse truck remains in the right of way without pulling into the drive aisle.
It is true that the refuse truck blocks the southbound lane of traffic while utilizing the 50-
foot straight loading path. However, the driver has full view of the southbound traffic and
uses back up cameras and mirrors to see the northbound traffic, so the design does not
result in a situation where the driver is required to back up blindly into traffic.
Furthermore, this design is regularly proposed and approved for apartment buildings
within the NCOD and commercial sites throughout the city. A similar design is used at
Blackbird Kitchen, the former location of Fork & Spoon near the intersection of North 7th
Avenue and Beall Street, the Days Inn Suites just west of the intersection of North 7th
Avenue and Oak Street, the Black Olive and One11 buildings, and the Armory hotel during
its construction period. To the best of the City’s knowledge, no accidents involving traffic
and City trucks collecting refuse at a similarly designed site have occurred in at least the
past 15 years.
3. One-Way Parking Lot
There is no prohibition against one-way parking lots or requirement to design a turn-
around in a parking lot in section 38.520.050, BMC, or anywhere else in the municipal code,
which Appellant concedes in its brief discussion of this example. See p. 23 of Appellant’s
document 000 2025.01.30 Final Guthrie Appeal. The potential risk in a parking lot
designed without a dedicated turn-around space would be from a vehicle backing out, as
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Appellant points out. However, the scenario does not render the design inherently unsafe.
First, drive aisles are required to be 24 feet wide, which is equivalent to many streets with
12 feet for travel lanes in either direction. Most vehicles can perform a three-point turn to
turn around in this space. Second, traffic safety in terms of public health and risk of injury
is predominantly a function of vehicle speed. Reversing is inherently a low-speed
operation and therefore low risk to public health and safety. Many similar conditions exist
in this and other cities with no known objective evidence of safety risk.
An alternative solution providing a turn-around space would require removal of off-street
parking. Lack of adequate off-street parking was expressed repeatedly through public
comment as a neighborhood concern. Lacking a code requirement for a turn-around and
all code requirements being met for the design of the parking lot, the Director’s
determination should be upheld. However, if the Commission determines a different
parking lot configuration is warranted, the Commission could amend the Director’s
decision to require as a condition of approval inclusion of a turn-around within the parking
lot to mitigate concerns about vehicle backing, which may also facilitate an alternative
placement of the trash tip pad.
4. Fire Protection and Safety
The City’s fire professionals have no concern about the adequacy of the fire suppression
and protection systems regarding The Guthrie site plan 24493. Fire Marshal, Scott Mueller
has nearly 30 years of experience and has served as the Fire Department’s representative
on the DRC for 15 years. He thoroughly reviewed The Guthrie site plan to identify any fire
safety issues. The red dotted lines in The Guthrie application materials depict two 150-foot
hose pull lines. See Figure 5. The red dotted lines each originate at a street, but it is an
incorrect assumption that the fire truck would only park on the street if access to the west
wall of the building was required. The fire department would utilize the drive aisle on the
south side of the building in responding to a fire, making the true beginning point of the fire
pull roughly the southwest corner of the building. Incorporating the drive aisle into the fire
department’s response was expressly contemplated as the entire curb along the southern
side of the drive aisle along the building must be painted red indicating it’s use as a fire
lane. See Figure 6. From the southwest corner of the building, the hose pull provides more
than adequate coverage of the entire interior west wall of the building. The entire building
measures roughly 155 feet from north to south.
Likewise, the 150-foot fire hose pull originating from West Villard provides adequate fire
protection. This fire hose pull is depicted extending in a straight line into the parking lot
past the corner of the building containing the bike room. In reality, a fire hose would wrap
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around the corner of the building and through the open space and bike rack area to provide
direct access to the west wall of the building. Nor would a car parked on West Villard
Street impede firefighting efforts, as Appellant claims. The fire department is able to go
around, over, or through any vehicle parked in the way requiring perhaps only 10
additional feet of hose. Finally, the spray of each fire hose offers an additional 30 feet of
reach from full extension of the hose. Clearly, the hose pulls offer adequate protection for
the entire exterior of the building.
Significant additional fire protection measures are incorporated into The Guthrie building
and site plan. First, the Developer will be required to install a new fire hydrant near the
southeast corner of the property, which will serve this and nearby buildings in addition to
an existing hydrant across West Villard Street from The Guthrie. Next, due to the size of the
building and its construction type, it must have a full interior sprinkler system. Third, the
approved design of The Guthrie incorporates standpipe locations within the building to
which fire hoses can be connected to efficiently supply water to firefighting efforts inside of
the multi-story building. The approved site plan complies with all fire code and building
code requirements for fire protection and safety.14
The location and length of fire hose pulls are not addressed in section 38.520.050, BMC.
Appellant cites no other section of municipal code or fire code to support the contention
that the design is flawed and will negatively impact public health and safety.
D. Traffic Impact Study and Signal Warrant
The Traffic Impact Study (TIS) submitted by the Developer with application 24493
complied with submittal requirements and provided sufficient data by which the City’s
professional staff could determine compliance with all code requirements related to traffic.
Staff required traffic calming infrastructure beyond that required in code based in part on
public concerns over traffic and safety. As explained below, an independent traffic study
submitted during public comment contains errors and contradictions making it an
unreliable source for staff analysis. While staff respects that what constitutes sufficient
traffic safety may vary from person to person, no objective public safety questions remain
unanswered for which facts can be found. The approved design meets code standards and
the Director’s decision should be upheld.
First, Appellant alleges that staff’s analysis of the traffic impacts of the site are suspect
because the underlying data used in application 24493 was the same as the data used in
application 23354. However, Appellant does not identify specifically what was deficient in
14 The State prohibits the City from imposing standards different from those in the State-adopted technical
codes and incorporated into municipal code in Chapter 10.
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the underlying data of the TIS for either the original or subsequent site plan applications.
The data and conclusions in the Developer’s TIS and in City staff’s analysis are similar
because the differences in the initial application and the approved application 24493 are
insignificant from a traffic analysis perspective due to the approved application containing
a mere 20 housing units less than its first iteration. The difference in housing units and
projected trip demand was properly accounted in the approved application and does not
render staff’s analysis incorrect or even suspect.
The “independent traffic report and analysis regarding the initial TIS” (the “independent
report”) submitted through public comment and identified as Exhibit 016 in the appeal
materials is not reliable. The primary and repeated flaw in the independent report can be
found in the Executive Summary item that states, “There is no evidence that the
unmitigated failing intersection will operate safely.” The term “failing intersections” refers
to Level of Service on the minor street legs of the intersections of Villard and Beall with
North 7th Avenue. Level of Service is a qualitative metric used to describe intersection
operations as measured by average vehicle delay. This is explicitly and inarguably not a
direct measure of safety and does not even attempt to evaluate modes of transportation
such as bicycles and pedestrians. Further, there is no explicit industry standard that can be
applied to “prove” an intersection will operate safely nor any objective definition of “safety”
as a measurable metric. Adequate safety is presumed to derive from an intersection
meeting standards for appropriate geometry and traffic control, which both intersections
of Villard and Beall with North 7th Avenue comply in the existing and design year. Staff
notes that higher level of service may in fact require design features that allow for
increased throughput and therefore reduced vehicle delay. Such features include wider
multi-lane intersections that increase pedestrian crossing distances and conflicts with
vehicles, prohibition of protected pedestrian phasing at signalized intersections, and
permissive left turn phasing instead of protected left turn phasing. Modern engineering
practice has thoroughly concluded such design features correlate with reduced, not
improved, multimodal safety.
This flaw in the independent report is repeated under the heading “Safety of Future Failing
Intersections Not Analyzed or Considered.” Further, the section titled “The Study Area
Does Not Meet City Requirements” identifies lack of evaluation at Peach Street/Durston
Street and Mendenhall. Staff exempted these locations due to an ongoing Montana
Department of Transportation project to address capacity at all signals along North 7th
Avenue, which was in design at the time of the Developer’s TIS scoping. Finally, the
analysis finds fault in failure to adequately define the need for traffic calming, which was
required by staff through a condition of approval of the site plan. Traffic calming features
inherently support safety through reduction of vehicle speed. The independent report’s
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criticism of the City’s failure to justify need for the traffic calming infrastructure contradicts
its own claim that the development will induce unsafe traffic operations.
In contrast, the Developer’s TIS thoroughly evaluated the safety performance of these
intersections and found them to be at or below the predictive average crash frequency and
predictive range of crashes using the Highway Safety Manual 1st Edition predictive
methodology. Staff appropriately determined that the Developer’s submitted TIS
sufficiently documented compliance with adopted standards pursuant to BMC section
38.220.060.A.1115 and relied upon it when analyzing the traffic impact of the proposed
development and determining compliance with code standards.
Regarding the Level of Service (LOS) analysis for intersections near and impacted by The
Guthrie, staff found compliance with the LOS standards articulated in 38.400.060.B.4, BMC,
which states:
Level of service standards. All arterial and collector streets and intersections with
arterial and collector streets must operate at a minimum level of service “C” unless
specifically exempted by this section. The city determines level of service (LOS)
values by using the methods defined by the most recent edition of the Highway
Capacity Manual. The review authority may approve a development only if the LOS
requirements are met in the design year, which must be a minimum of 15 years
following the development application review or construction of mitigation
measures if mitigation measures are required to maintain LOS. Intersections must
have a minimum acceptable LOS of “C” for the intersection as a whole. Emphasis
added.
This portion of the BMC correlates with submittal requirements in section
38.220.060.A.11.g.(2).(c).(ii) stating capacity analysis is required for “all arterial-arterial,
collector-collector, and arterial-collector intersections within one-half mile of the site, or as
required by the city engineer during the pre-application review, concept plan review, or
informal project review.” However, BMC section 38.220.060.A.11.g.(2).(d) applies a
different standard of review for two-way stop controlled intersections, such as those found
at Villard and Beall, which states, “for two-way stop controlled intersections, analysis of
15 Note that standards found in 38.220.060.A.11 are subdivision requirements and are not applicable to site
plans. However, if a site plan is significant enough in intensity to indicate an anticipated increase in peak
hour trips of at least 100 or of a nature that would require a TIS by other code criteria, staff uses
administrative authority to require a full TIS, imposing requirements of 38.220.060, demonstrating staff’s
sensitivity to traffic safety analysis.
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whether the intersection would satisfy signalization warrants if the two-way stop control
was removed.”
As shown above, the code states that minimum LOS must be met or construction of
mitigation measures applied, if mitigation measures are required. Staff did not require
study or mitigation of certain existing signalized intersections on the understanding that
construction of those potentially required mitigation measures would be undertaken by
the Montana Department of Transportation in their upcoming North 7th Avenue Signals
Project. The Highway Capacity Manual states that failure of individual legs of a two-way
stop controlled intersection should not be the sole basis for selection of appropriate traffic
control, which in this case would be the required mitigation element. For this reason, and
based on the requirement in 38.220.060.A.11.g.(2).(d). (“For two-way stop controlled
intersections, analysis of whether the intersection would satisfy signalization warrants if
the two-way stop control was removed.”), staff required a signal warrant study to
determine the appropriateness of traffic control. The Developer complied with this
requirement as demonstrated by the Traffic Signal Warrant analysis dated October 11,
2024. The warrant studies determined signalization is not warranted and therefore, that
form of mitigation of the individual leg LOS failures through signalization was not required.
Staff considered other potential mitigation solutions for individual leg LOS failures that
would generally restrict crossing and left turning movements from the local streets, Villard
and Beall, onto North 7th Avenue. Staff ultimately did not recommend mitigation for three
reasons. First, the practical impact of the reduction in minor leg LOS in the design year
(2038) is 1 to 3 vehicles queued in the 95th percentile scenario in the peak hour. The
existing peak hour 95th percentile queue is 1. Therefore, the increase in queued vehicles is
small and occurs only during short durations of the day, which suggests the mitigation
measure would be of minimal benefit. Second, staff cannot find any evidence of public
complaint or dissatisfaction at these intersections that would indicate queuing of this
nature is unacceptable. Finally, the additional queuing and delay is almost entirely due to
projected background growth in traffic volume and not that which is induced by The
Guthrie development itself. As a means of comparison, a traffic study of the previous use of
the site as an assisted living facility of lesser intensity in the design year (2038) would have
a high probability of showing a similar increase in queuing and decrease in minor leg LOS.
Relying on their professional judgment and years of experience, licensed professional
engineering staff determined the negative impact of movement restrictions would be
greater than the impact of the minor additional queuing due to movement restrictions
causing a discontinuity in travel patterns and the high likelihood that movement
restrictions would not be obeyed by drivers. When applying movement restrictions,
without physical barriers such as curbing that require only right-in-right-out turning
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movements, driver confusion and unexpected movements can result, which risks a less safe
condition than the minor amount of additional delay identified in the design year. The city
has several locations of turning restrictions without physical barriers, such as the
intersection of College and Willson, that supports this analysis by way of observation.
All standards for intersection performance are met and the Director’s determination
should be upheld. However, if the Commission determines The Guthrie fails to meet code
requirements regarding the LOS of certain intersections, the Commission could amend the
Director’s decision to require as a condition of approval installation of turn-restriction
measures to mitigate delays at minor leg intersections of Villard and Beall with North 7th
Avenue.
Appellant also finds fault with the City’s analysis of the LOS of intersections near The
Guthrie because the analysis was different from and inconsistent with an unrelated zone
map amendment application for a different location that was denied in 2022. The two
applications are entirely distinguishable and denial of the zone map amendment
application near the intersection of Haggerty Lane and East Main Street has no bearing or
relation to staff’s analysis of The Guthrie site plan application. One critical distinction is
that the intersection of Haggerty Lane and East Main Street was evaluated in the 2017
Transportation Master Plan and found to fail LOS while meeting conditions that warrant a
signalized intersection. In contrast, the intersections of Villard and Beall with North 7th
Avenue do not meet signal warrants. In spite of the intersection of Haggerty Lane and East
Main Street being warranted for signalization, Montana Department of Transportation has
not supported construction of a traffic signal or other traffic control that would be required
to mitigate the LOS efficiency due to the intersection’s proximity to the East Main
interchange with Interstate 90 and other topographic concerns specific to that site.
Without the cooperation and support for signalization or other traffic mitigation
infrastructure from the Montana Department of Transportation, which owns East Main
Street, the City is unable to provide adequate mitigation sufficient to allow intensified
development near the intersection. Finally, 2024 Montana Department of Transportation
traffic volume data indicates that traffic on Haggerty Lane approaching East Main Street
has an average annual daily traffic count of 2,986, which is more than triple the traffic
volume found on Beall and Villard. The combination of these factors indicates a substantial
difference in the conditions and analysis applied between the two projects. Appellant’s
proffered example is inapposite to the application at issue in this appeal.
Next, Appellant criticizes the signal warrant study because it uses data from the TIS
submitted with application 23354, which Appellant claims “lacked complete analysis.” The
reasonableness of using data that had not substantially changed from the initial Guthrie
application is addressed above. Here, too, Appellant does not provide any specific analysis
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as to what is deficient about the TIS and warrant study while noting concern for
pedestrians and schools. Staff nonetheless provides the following information regarding its
analysis and conclusion that the signal warrant study provided adequate data to determine
that signals are not warranted at either site analyzed. First, with regard to Signal Warrant
4, pedestrian volumes at this intersection can be found on pages 24-25 of the signal
warrant study. Warrant 4 did not meet either the four-hour volume or the peak-hour
volume criteria. The lower threshold of the four-hour volume is 107 pedestrians per hour
and the lower threshold of peak-hour volume is 133 pedestrians per hour. The highest
measured pedestrian volume identified in the warrant study at Villard was 11 pedestrians
per hour in the existing year and projected to 15 pedestrians per hour in the design year.
Second, Signal Warrant 5: School Crossing pedestrian volumes can be found on page 26 of
the signal warrant study. Here, the highest measured pedestrian volume identified in the
warrant study at Beall was 5 pedestrians per hour in the existing year and projected to
reach 7 pedestrians per hour in the design year. Per the required conditions of the School
Crossing Warrant, neither Villard nor Beall are established school crossings based on
MUTCD criteria and neither intersection exhibits at least 20 school student crossings
during the highest crossing hour. Additionally, a rectangular rapid flashing beacon and
pedestrian refuge island currently exist at the Villard intersection to assist with pedestrian
crossings. Staff’s analysis was thorough, based on specific data, and considered
infrastructure already in place to address pedestrian safety.
Appellant next questions how “trips” were calculated in the TIS and suggests, without any
citation to a legal requirement or professional standards, that a method entirely outside of
the BMC or recognized industry standards should be utilized instead. The calculation of
“trips” is clearly set forth in the Trip Generation section of the TIS. It states,
“This study utilized Trip Generation, 11th Edition, published by the Institute of
Transportation Engineers (ITE), which is the most widely accepted source for
determining trip generation projections. These projections are used to analyze the
impacts of a new development on the surrounding area. For the purposes of this
study, Affordable Housing (Land Use Code 223) in the General Urban/Suburban
setting was utilized to project trip generation for The Guthrie development based on
information provided by the development team.” See pp. 9-10 of the TIS, attached
to this report.
The BMC requires the use of the ITE Trip Generation Manual to calculate trip generations,
which the Developer’s TIS clearly follows. See 38.220.060.A.11.g.(1). Appellant’s reference
to occupancy assumptions derived from the U.S. Department of Housing and Urban
Development calculations for affordability has no basis in calculating trip generation by the
standards required for the TIS. As further evidence of staff’s care regarding traffic
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concerns, note that staff previously required the applicant to revise land use assumptions
for trip generation in the initial November 2023 TIS from “Dense Multi-Use Urban” to
“General Urban/Suburban” as evidenced in the January 26, 2024, TIS Addendum. This
change in setting resulted in an increase of 25.5% and 26.5% peak hour trips in the a.m.
and p.m. respectively. The analysis directed by staff demonstrates an intent for more
conservative trip estimation in direct acknowledgment of concern expressed through
public comment and contradicts any speculation that conditions of analysis required by
staff were improper or unduly favorable to the Developer.
Finally, Appellant takes issue with the exclusion of “key arterial and collector intersections
within the required half-mile study area” and “fails to analyze all signal warrants for
required intersections or evaluate the safety impacts of increased traffic.” However,
Appellant again does not specify which intersections they claim staff was required to
analyze beyond a reference to the intersection of North 7th Avenue and Durston/Peach
Street. Regarding that intersection, Appellant incorrectly speculates that staff excluded the
intersection from review as an “unlawful post-hoc justification” without presenting any
evidence to support the claim. The City’s transportation engineers did not require
evaluation of that intersection or the intersection of Mendenhall and North 7th Avenue due
to their knowledge that the Montana Department of Transportation, which owns North 7th
Avenue, was already engaged in a project to upgrade those intersections to mitigate LOS
deficiencies. The exemption was given at the time of TIS scoping. Finally, although not
required, in response to community concerns regarding traffic and to ensure all safety
considerations were made based on data, staff required analysis of Beall and Villard.
Section 38.220.060.A.11.g.(2).(c).(ii) requires an a.m. and p.m. peak hour traffic capacity
analysis for intersections of major streets. Beall and Villard are classified as local streets
and would be exempt from analysis. Staff’s insistence on receiving the capacity analysis
above and beyond requirements demonstrates the care placed on evaluating the traffic
impacts of this development.
The traffic impacts of The Guthrie were thoroughly considered based on ample data using
accepted industry standards. Mitigation alternatives were considered. Concerns about
traffic safety expressed in public comment were considered. In response to public
concerns, additional data was requested beyond that required by municipal code and a
condition of approval requiring installation of traffic calming infrastructure near the
development was imposed. The Director’s conditional approval of The Guthrie should be
upheld.
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III. THE TWO-YEAR STAY ON DEMOLITION WAS PROPERLY IMPOSED UPON
DENIAL OF APPLICATION 23354 AND TERMINATED UPON APPROVAL OF
APPLICATION 24493
Appellant asserts, and the City agrees, that no demolition of the existing historic structure
is permitted because the Commission denied the previous Guthrie application 23354
based in part on grounds that the application failed to meet requirements of section
38.340.090.C, BMC. However, Appellant only analyzes one of the means by which the two-
year stay may be terminated, which is found in subsection D.3.a of 38.340.090 and
provides:
a. Early termination of a two-year stay. An owner of property subject to a stay
under this section may seek early termination of the stay if the owner
demonstrates s/he has actively and in good faith sought alternatives to
demolition. These alternatives may include but are not limited to: listing the
property for sale as a historic property; actively seeking input from
neighborhood groups and interested parties; exploring alternative funding
sources for stabilization and/or reconstruction; and offering the property for
relocation.
It is possible that the Developer satisfied the requirements of 38.340.090.D.3.a, but staff
takes no position on the matter. The Developer submitted two economic analyses
determining it was not economically feasible to rehabilitate the existing structure. The
Developer met with neighborhood representatives and interested parties.16 The Developer
informed the City that it attempted to secure alternative funding sources for
reconstruction, but could not secure funding. The City has no knowledge as to whether the
Developer listed the property for sale as a historic property or offered the property for
relocation.
The BMC authorizes a second means of terminating the two-year stay, which was met when
the Director approved application 24493. “The two-year stay may be terminated at any
point in time if an alternate proposal is approved or if sufficient additional evidence is
presented to otherwise satisfy the requirements of this section.” 38.340.090.D.3, BMC.
This sentence presents an alternative means of terminating the two-year stay when a
subsequent application, satisfying the requirements of section 38.340.090, BMC, is
16 Appellant claims that the staff report mischaracterizes a meeting between Ms. Talago, members of City
executive staff, and the Developer. In fact, the staff report states, “The applicant met with City officials and
neighborhood representatives or interested parties who had expressed opposition to the original proposal
through public comment…” Ms. Talago is an “interested party” even if she did not meet with the Developer in
her capacity as a neighborhood representative. Further, the Developer informed the City that several
meetings with interested parties occurred after the denial of application 23354.
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approved. “Satisfy the requirements of this section,” meaning the criteria found in
38.340.090.C and in 38.340.050, is a requirement to approve any alternative proposal. The
Director approved application 24493 based on compliance with all criteria, including
criteria for demolition of a historic structure and subsequent redevelopment found in
38.340.090.C. See pp. 36-37 of Director’s decision. Therefore, approval of application
24493, an alternative proposal, terminates the two-year stay.
IV. AFFORDABLE HOUSING STANDARDS WERE PROPERLY ANALYZED AND
APPLIED
Appellant does not contend that staff incorrectly applied or erred in its analysis of The
Guthrie’s compliance with affordable housing provisions in code or its eligibility to receive
the incentives offered for the provision of affordable housing found in 38.380.030. Rather,
Appellant expresses the opinion that the adopted affordable housing codes applied to The
Guthrie are insufficiently affordable. Appellant states that it, “facially challenges, and
preserves its ability to challenge the AHO…” See p. 28 of Appellant’s document 000
2025.01030 Final Guthrie Appeal. As noted above, constitutional challenges, including
those to duly adopted codes, are inappropriate to be heard on appeal before the City
Commission.
Analysis of compliance with the requirements of Division 38.380, affordable housing
provisions of the BMC are found on pages 23-24 of the Director’s decision. The Director
properly found compliance with all code standards and requirements related to affordable
housing and the decision should be upheld.
APPEAL OF THE ADMINISTRATIVE DECISION:
The deadline for submission of an appeal application was January 30, 2025.
On January 30, 2025, the Community Development Department received a complete appeal
from attorney Kirsa Shelkey on behalf of Bozeman Home Advocacy Group, LLC, pursuant to
Section 38.250.030 BMC, “Administrative project decision appeals.” Staff reviewed the
appeal application materials and informed the Appellant and Developer that the appeal
was received and that a hearing on the appeal before the City Commission on April 1, 2025
was scheduled.
APPEAL PUBLIC NOTICE:
Notice of the appeal hearing was completed in conformance with 38.220 BMC,
“Applications and Noticing.” Notice was posted on the site and mailed to property owners
within 200 feet on March 3, 2025.
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APPEAL PUBLIC COMMENT:
The City has received 1 comment regarding this appeal from the public at the time of
writing this staff report. Any further public comment received will be forwarded to the City
Clerk’s office for Commission consideration.
EVALUATION OF THE APPEAL:
Authority of the City Commission under the Bozeman Municipal Code
The City Commission has the express authority to uphold, amend, or overturn the
Director’s decision in section 38.250.030.J, BMC.
City Commission May Act as a Board of Adjustment
The City of Bozeman does not have a Board of Adjustment as described in Montana Code
Annotated section 76-2-321. Rather, the City Commission has reserved for itself the
powers of a board of adjustments through Resolution 4419 in 2012. The City Commission
may choose to exercise its powers as a Board of Adjustment17, separate from those
expressly provided under the BMC.
APPEAL PROCEDURE:
The City Commission must comply with the procedures for appeal as set forth in section
38.250.030.I BMC. During the appeal, the Commission will first hear from the
administrative staff who are required to give an “explanation of the application and nature
of the appeal.” Next, the Appellant will have an opportunity to present its position. If
requested, the landowner may then make a presentation. Then, the Commission will hear
public comment regarding the appeal from any proponent or opponent. During the
17 Section 76-2-323, Montana Code Annotated provides:
76-2-323. Powers of board of adjustment. (1) The board of adjustment shall have the following powers:
(a) to hear and decide appeals where it is alleged there is error in any order, requirement, decision, or
determination made by an administrative official in the enforcement of this part or of any ordinance adopted
pursuant thereto;
(b) to hear and decide special exceptions to the terms of the ordinance upon which such board is
required to pass under such ordinance;
(c) to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not
be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions
of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed
and substantial justice done.
(2) In exercising the above-mentioned powers, such board may, in conformity with the provisions of this
part, reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determination
appealed from and may make such order, requirement, decision, or determination as ought to be made and to
that end shall have all the powers of the officer from whom the appeal is taken.
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process, no person making a presentation may be subject to cross-examination. However,
Commission members and the City Attorney may ask questions for the purpose of eliciting
information or clarifying information presented.
At the close of public comment, the Commission must consider the merits of the appeal,
including considering motions, discussion, and taking a vote. The Commission must
consider the merits of the appeal based upon the same decision criteria and standards as
the Director. If the Commission determines to overturn or amend the Director’s decision, it
must make alternative findings of fact to support the determination.
UNRESOLVED ISSUES:
The City preserves three issues for determination by a district court judge if the City
Commission’s decision is appealed: whether Appellant has met the requirements of section
38.250.030.A, regarding aggrieved persons; whether Appellant can raise constitutional
claims through an administrative project decision appeal, and; if so, whether constitutional
claims were properly raised during the public comment period for application 24493, as
required by 38.250.030.B, BMC.
ALTERNATIVES:
The City Commission has the following alternative actions available:
1. Uphold the Director’s conditional approval decision for application 24493 as
written in the January 15, 2025, decision.
2. Amend the conditional approval after making findings as to which of the criteria
are met or not met, modify any conditions of approval, and approve the
amended conditional approval of application 24493.
3. Overturn the Director’s decision. Find that the Director’s decision was in error,
make alternative findings as to the criteria that are not met, and deny application
24493.
ATTACHMENTS:
25033 Appeal – submission materials found at:
https://weblink.bozeman.net/WebLink/Browse.aspx?id=296260&dbid=0&repo=BOZEMA
N
Public Comment on Appeal 25033 found at:
https://weblink.bozeman.net/WebLink/Browse.aspx?id=297409&dbid=0&repo=BOZEMA
N
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Text of Division 38.380 – Affordable Housing as it existed on December 4, 2024, when
application 24493 was deemed adequate for review.
Bozeman Guidelines for Historic Preservation & The Neighborhood Conservation
Overlay District, January 17, 2006, Amended July 13, 2015
Record of Review for the Guthrie/5th and Villard Site Plan, CCOA, and Demolition
application 24493:
• Director’s Decision Letter Conditionally Approving the Guthrie/5th and Villard Site
Plan, CCOA, and Demolition application and incorporated January 15, 2025, staff
report for application 24493;
• Application plans and documents submitted by the Developer found at:
https://weblink.bozeman.net/WebLink/Browse.aspx?id=292962&dbid=0&repo=B
OZEMAN;
• All public comment found at:
https://weblink.bozeman.net/WebLink/Browse.aspx?id=295393&dbid=0&repo=B
OZEMAN.
United Food and Commercial Workers, Local 4; Samara Yanny; John Robert McGowan,
Jr. and Joel Dunbar v. City of Bozeman and Gallatin TR LP and Winco Foods, LLC, Order
re: Motions for Summary Judgment and Motion to Strike, Cause No. DV-19-10BX,
October 18, 2019.
Full application and file record: available to view by contacting the Community
Development Division, 20 E. Olive, Bozeman, MT 59715. Please contact Jacob Doesschate at
jdoesschate@bozeman.net or 406-582-2945 to make arrangements to view the file.
139
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2.
DIVISION 38.380. - AFFORDABLE HOUSING
Footnotes:
--- (5) ---
Editor's note— Ord. No. 2105, § 12, adopted Sep. 27, 2022, amended Div. 38.380 in its entirety to read as herein set out.
Former Div. 38.380, pertained to similar subject matter, and derived Ord. No. 2012, adopted Jan. 14, 2019; Ord. No. 2089,
adopted 12-7-2021.
Sec. 38.380.010. - Purpose.
The purpose of this division is to promote the public health, safety, and welfare by incentivizing
increased production of affordable rental and for sale housing to meet the needs of city residents
and the goals of the adopted growth policy and the community housing action plan.
In addition, the purpose of this division is to offer incentives tailored to the levels of housing
affordability in new development and redevelopment, with greater incentives being offered to
those producing or preserving housing affordable to households earning lower percentages of
the Bozeman Area Median Income (AMI).
In addition, this division alleviates the reduction in the land supply available to accommodate
future affordable housing development that would result if most or all of the available residential
land is used solely for the benefit of households that are able to afford market-rate housing.
(Ord. No. 2105, § 12, 9-27-2022)
Sec. 38.380.020. - Applicability.
Generally. The following types of development are eligible to use the incentives described in this
division. Affordable home incentives, described in section 38.380.030, may be approved in
conjunction with an annexation, subdivision, or site plan that:
Contains or will contain dwellings; and
That commits to providing at least the minimum percentages of dwellings in the development
at rental rates or sales prices affordable at no more than the maximum percentages of AMI
established in Table 38.380.020-1 or Table 38.380.020-2 and consistent with all requirements
of 38.380.
Table 38.380.020-1
A ordable Homes Required for Deep Incentives
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Minimum
Percentage of
Homes
Maximum Percentage of AMI Duration
Rental
Dwellings
For-Sale
Dwellings
(includes
condominiums)
Type of Housing
Single-
Household
Detached
Dwelling
=>50%80% of AMI 120% of AMI =>30 years
Single-
Household
Attached
Dwelling
=>50%80% of AMI 120% of AMI =>30 years
Multi-Household
Dwelling
=>50%80% of AMI 120% or AMI =>30 years
Table 38.380.020-2
A ordable Homes Required Shallow Incentives
Minimum
Percentage of
Homes
Maximum Percentage of AMI Duration
Rental
Dwellings
For-Sale
Dwellings
(includes
condominiums)
Type of Housing
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B.
C.
1.
2.
D.
1.
2.
Single-
Household
Detached
Dwelling
=>5%80% of AMI 120% of AMI =>30 years
Single-
Household
Attached
Dwelling
=>5%80% of AMI 120% of AMI =>30 years
Multi-Household
Dwelling
=>5%80% of AMI 120% or AMI =>30 years
The city and a landowner may agree by contract to future development on a property producing
the housing identified above in exchange for the incentives in this division.
Previously approved development.
A previously annexed but undeveloped parcel of land, subdivision, or site plan that has
received final approval before the effective date of this division, and that has not previously
received an incentive in return for commitments to include affordable housing in the
development, may apply for affordability incentives listed in section 38.380.030. The property
owner or applicant for the previously undeveloped parcel must make a written commitment
to meet the affordability standards for rental rates or sales prices in this section consistent
with 38.380.040. The affordable housing plan must be submitted and approved prior to use of
any incentive.
Only that portion of the amended preliminary plat or site plan, including associated code
standards and conditions of approval, pertaining to the request for approval of one or more
procedural adjustments and subsidies will be subject to additional preliminary plat or site
plan review.
Assumptions and calculations.
All references to AMI are to the most recent Area Median Income established by the U.S.
Department of Housing and Urban Development (HUD). As HUD publishes updated AMI
values they are immediately effective without further action by the city. The city may establish
administrative procedures for application and implementation of AMI in calculating dwelling
costs in accordance with 38.380.070.
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To determine the maximum sales prices of affordable homes with different numbers of bedrooms, the city
will base its calculation on AMIs for households of different sizes, as follows, with the review authority
determining which rooms qualify as bedrooms:
Studio dwelling: AMI for a one-person household;
One bedroom dwelling: AMI for a two-person household;
Two-bedroom dwelling: AMI for a three-person household; and
Three-bedroom unit or larger: AMI for a four-person household.
If the calculation of the required number of affordable homes results in a fraction of a home,
fractions equal to or less than 0.5 shall be ignored, and fractions greater than 0.5 shall be
rounded up to require the construction of one affordable home, which may be a studio unit.
(Ord. No. 2105, § 12, 9-27-2022)
Sec. 38.380.030. - Incentives available.
Applications for development of affordable homes that comply with the requirements of this division
qualify for and must be awarded the incentives applicable to the type and tenancy of affordable housing
being provided and requested by the developer.
Incentives may be applied to:
Dwellings in single use residential or mixed-use residential/nonresidential development.
If a single building contains a mix of residential and nonresidential primary uses, these
incentives are only available if 50 percent or more of the gross floor area of the building
contains residential uses.
The incentives below supersede the standards otherwise applicable in this chapter. The city retains the
authority to approve, approve with conditions, or deny the project as a whole based on compliance with
other portions of this title or other city regulations, but shall not attach conditions to an approval that have
the effect of removing the incentives awarded in this section.
Incentives for table 38.380.020-1 deep incentives. If the developer proposes to construct
affordable homes that meet the standards in Table 38.380.020-1 in the same geographically
contiguous development as market rate homes, the developer may apply the following incentives
to all primary buildings in the development in which 50 percent or more of the gross floor area
contains residential uses:
For single-household detached dwellings:
Minimum lot size of 2,000 square feet; or 1,600 square feet if the applicant demonstrates
that all applicable city regulations related to lot development, access and utilities can be
met.
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c.
d.
2.
a.
b.
c.
d.
3.
a.
b.
c.
d.
e.
f.
(1)
(2)
(3)
(4)
(5)
(6)
No minimum lot width requirement above that necessary for access and utilities if the applicant
demonstrates that all applicable city regulations related to lot development, access and utilities can be met.
Off-street parking requirement of one space per dwelling.
Concurrent construction of infrastructure and dwellings per 38.270.030 is allowed.
For single-household attached dwellings (townhouses and rowhouses):
Minimum lot size of 1,600 square feet; or 1,400 square feet if the applicant demonstrates
that all applicable city regulations related to lot development, access and utilities can be
met.
No minimum lot width requirement if the applicant demonstrates that all applicable city
regulations related to lot development, access and utilities can be met.
Off-street parking reduction to one space per dwelling.
Concurrent construction of infrastructure and housing per 38.270.030 is allowed.
For multi-household dwellings and mixed-use buildings:
One additional story of height (maximum 15 feet per story) beyond that allowed in the RS,
R-1, R-2, R-3, or RMH zoning districts.
Two additional stories of height (maximum 15 feet per story) beyond that allowed in the
R-4, R-5, R-O, NEHMU, and B-1 zoning districts.
Four additional stories of height (maximum 15 feet per story) beyond that allowed in the
UMU, REMU, B-2, B-2M, and B-3 zoning districts.
No minimum on-site vehicle parking requirement, but bicycle parking standards and
requirements of 38.540.050 still apply.
Townhouses* and rowhouses* (two attached units) in the R-1, RS, and RMH zoning
districts.
Exemption from each of the following for buildings containing dwellings, unless an
alternative standard is provided in this division:
Minimum lot size, lot area per dwelling units, and lot width requirement in all zoning
districts.
Section 38.510.030.E to J block frontage standards, provided that vehicle parking is
prohibited between the front or side of a principal building and a public or private
street;
Section 38.530.040.E maximum façade width standards;
Section 38.530.040.F roofline modulation standards;
Section 38.530.050 building detail standards; and
Section 38.530.060 building material standards.
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4.
a.
b.
c.
d.
e.
(1)
(2)
f.
g.
h.
i.
j.
k.
l.
m.
Concurrent construction of infrastructure and housing per 38.270.030.
Developments subject to 38.380 may use yield streets without requirement for additional
zoning review requirements beyond that for the development within which the yield street
will be used. A yield street has the following characteristics:
Forty-foot right-of-way with two-way dedicated travel in a 16-foot advisory yield zone for
motor vehicles and five-foot walkways outside on either side.
Staggered seven-foot wide parallel parking spaces which may include chicane style
streetscape for varying width of paved area.
No parking in front of private property that blocks access to property adjacent to the
street.
Passing areas every 100 feet minimum for sight line assurance and yielding capabilities.
Passing pullout areas to be not less than 25 feet long. Driveway accesses may serve as
passing areas.
Snow management plan, including enforcement provisions, must be provided during
initial development review.
No snow storage in passing areas;
Adequate storage areas or removal methods must be provided to address two 25-year
storms.
Stormwater must be managed within the right-of-way unless an alternate method
compliant with municipal standards is provided.
A comprehensive street signage plan must be included with initial submittal and executed
with infrastructure plans and construction including but advisory signage for yielding to
pedestrians/bikes/PTDs and other vehicle travelers.
The proposed design must be consistent with accessibility requirements established by
any governmental agency.
Design shall address inclusion of any proposed street furnishings, amenities, plantings,
etc.
Yield streets are exempt from the requirements of 38.550.070 for installation of street
trees adjacent to individual lots.
The city may limit speeds to less than standard for a local street.
Maintenance must be maintained by landowners in the development unless the city
explicitly assumes responsibility. A funding mechanism equal to that for private streets in
38.400.020 is required for private maintenance.
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n.
C.
1.
2.
3.
a.
b.
c.
d.
e.
f.
A.
1.
Length may not exceed 400 feet without intersecting with a street. Ends must terminate at a street or be
provided a fire code compliant turn around. A total length may exceed 400 feet if there are crossing streets
with a yield street.
Adjacent buildings must not exceed three stories unless setup space for fire department
ladder trucks is provided adequate to access all buildings in excess of three stories.
Incentives for table 38.380.020-2 shallow incentives. If the developer proposes to construct
affordable homes that meet the standards in Table 38.380.020-2 in the same geographically
contiguous development as market rate homes, the developer may apply the following incentives
to all primary buildings in the development in which 50 percent or more of the gross floor area
contains residential uses:
For each single-household detached dwelling a minimum lot size of 3,000 square feet, or
2,500 square feet, if the applicant demonstrates that all applicable city regulations related to
lot development, access and utilities can be met.
For each single-household attached dwelling (townhouse or rowhouse) a minimum lot size of
2,200 square feet, or 1,800 square feet, if the applicant demonstrates that all applicable city
regulations related to lot development, access and utilities can be met.
For multi-household dwellings and mixed-use buildings:
Ten percent reduction in lot area for applicable dwelling type in Table 38.320.030.A.
One additional story of height (maximum 15 feet per story) beyond that allowed in the RS,
R-1, R-2, R-3, RMH, R-4, R-5, R-O, NEHMU, and B-1 zoning districts.
Two additional stories of height (maximum 15 feet per story) beyond that allowed in the
UMU, REMU, B-2, B-2M, and B-3 zoning districts.
Minimum vehicle parking requirement of one stall per dwelling for all districts other than
B-3 and bicycle parking standards and requirements of 38.540.050 still apply.
Minimum vehicle parking requirement of 0.75 stall per dwelling for B-3 district; bicycle
parking standards and requirements of 38.540.050 still apply.
Townhouses and rowhouses (two attached units) are principal uses in the R-1, RS, and
RMH zoning districts.
(Ord. No. 2105, § 12, 9-27-2022)
Sec. 38.380.040. - A ordable housing plan required.
To qualify for low income affordable home incentives, the developer must submit to the city an
affordable housing plan that includes the information and complies with the standards in this
section:
Information required.
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b.
c.
d.
e.
f.
g.
h.
i.
(1)
(2)
2.
a.
b.
c.
d.
The total number of affordable homes, and market rate homes in the proposed
development.
The table in 38.380.020 to be applied to the affordable housing plan.
The number of bedrooms in each proposed low income affordable home, and market rate
home in the development.
Whether each affordable home will be offered for rental or for sale.
The location of affordable lots or units in the development.
The applicable AMI and maximum rental or sales price applicable to each low income
affordable home.
A description of the requested incentives from section 38.380.040.
Any other information that is reasonably necessary to evaluate the compliance of the
affordable housing plan with the requirements of this division, as determined by the
review authority.
If the development is to be constructed in phases:
The required information may include specific commitments for the first phase of
development and estimates for later phases of development, provided the
combination of committed and estimated low income affordable homes in the
development equals or exceeds the minimum required to qualify for the incentives
requested.
As the number of low income affordable homes for each later phase is finalized, the
developer must submit an update to the affordable housing plan including or
updating the information required in this section. The review authority shall review
and approve, approve with conditions, or deny the update using the criteria in this
section.
Development standards for affordable homes.
The number of affordable homes must meet or exceed the minimum standards needed to
qualify for the applicable incentive in section 38.380.030.
The mix of bedrooms per unit in affordable homes must be as similar as possible to the
mix of bedrooms per unit of the market-rate homes in the development.
Access to shared amenities and services by residents of the affordable homes must be the
same as to those in market rate homes in the development.
If the development is to be constructed in phases, and the developer has requested
affordable housing incentives, at least 75 percent of the dwelling units in each phase must
be affordable homes, unless the city has received adequate legal or financial assurance
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C.
D.
E.
A.
B.
C.
that any shortfall during earlier phases will be constructed before approval of the final phase of
development.
The review authority may approve the affordable housing plan if the review authority finds that it
includes the information required for the city to confirm compliance with the standards and
criteria in this division, including but not limited to the standards in Section 38.380.030.A, and any
administrative procedures related to this division adopted pursuant to section 38.380.070.
No annexation, preliminary subdivision, or site plan that contains any residential dwelling units
and that requests affordable housing incentives may receive final approval until the affordable
housing plan has been approved by the review authority.
After approval by the review authority, the affordable housing plan must be incorporated by
reference in the recorded annexation, final subdivision plat, or site plan documents.
An approved affordable housing plan is a binding contract between the developer and the
developer's successors in interest to the lot or dwelling, and must be included in a separate
recorded written agreement between the developer and the city, or incorporated into another
recorded document in which the developer is required to implement the affordable housing plan.
(Ord. No. 2105, § 12, 9-27-2022)
Sec. 38.380.050. - Land donation alternative.
As an alternative to constructing some or all of the affordable homes required by section
38.380.020, the developer may qualify for the incentives listed in section 38.380.040 by donating
one or more parcels of land within the city limits. The land donation must meet the standards in
this section and be approved by the director as providing equal or greater affordable housing
benefit to the city.
The developer may donate undeveloped parcels of land or ready-to-build house lots, provided
the land is subject to a document recorded in the records of the Gallatin County Clerk and
Recorder requiring the land be used only for the construction of affordable homes.
The value of the land donated must equal or exceed the remaining cost of designing, obtaining
land use and building approvals for, installing or upgrading infrastructure for, and constructing
the number of affordable homes the annexer, subdivider, or developer would otherwise be
required to provide in return for the requested incentives listed in subsection 38.380.030, as
established by an independent valuation and economic study commissioned by and acceptable to
the city and paid for by the developer.
(Ord. No. 2105, § 12, 9-27-2022)
Sec. 38.380.060. - Quali cation of renters and buyers.
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1.
2.
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a.
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Developer must provide to the city written assurance acceptable to the city that each renter or
purchaser of an affordable home must meet the following standards for a period of at least 30
years from initial occupancy of the home.
Each renter or purchaser of an affordable home:
Must occupy the affordable home as their primary residence, as determined by the review
authority;
Must meet the definition of a Household in section 38.700.090;
Must comply with the income restrictions applicable to that type of home and tenancy
according to 38.380.020:
Income verification for rental units must be performed every two years, and income
verification for owner occupied units must be performed at the time of purchase, based
on standards and methods approved by the U.S. Department of Housing and Urban
Development.
If the project is subject to income restrictions different from those in section 38.380.020
as a condition of participation in a state or federal housing program or receipt of state or
federal financial assistance, the renter or purchaser must comply with those alternative
income restrictions, as verified by standards and methods used by the applicable state or
federal program.
Must not, if the affordable home is purchased, sell the home for a price higher than the
original sales price of the home plus a compounded increase of 2.5% for each year the
purchaser owns the home.
The developer may satisfy the requirements of this section by contracting with a third party to
monitor and enforce the conditions in this section through a written agreement approved as to
form by the city attorney. The developer may change the third party contractor with written
approval by the city.
The developer, or the city or its agent if the city is involved in the rental or sale of an affordable
home, must record in the offices of the Gallatin County Clerk and Recorder, simultaneously with
the recording of the deed of conveyance, a restrictive covenant, deed of trust or other legal
instrument, approved as to form by the city attorney, that obligates all owners or renters of the
property to comply with the provisions of this section.
(Ord. No. 2105, § 12, 9-27-2022)
Sec. 38.380.070. - Administration.
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The review authority shall have authority to promulgate and enforce all reasonable rules and
regulations and take all actions necessary to the effective operation and enforcement of this
division, unless such authority is expressly reserved to the city commission or another city official,
including but not limited to:
Reviewing affordable housing plans for compliance with this division;
Adopting application, monitoring, and reporting forms, and other forms and information
required from developers for implementation of this division;
Monitoring compliance with this division, notifying the subdivider or developer of
noncompliance, and ordering compliance;
Imposing any and all sanctions permitted by this division;
Calculating and making available through the city website or otherwise the AMI needed to
qualify for the various incentives listed in this division, and updating that information as
needed to reflect any adjustments approved by the city commission; and
Adopting standards and policies to qualify eligible purchasers and renters for Affordable
Homes created under this division.
The city may publish administrative rules and instructions consistent with and necessary for the
implementation of this division, including but not limited to instructions for completing the
affordable housing plan, valuations required by this division, and the distribution of the required
number of affordable homes and bedrooms within a project requesting the incentives in this
division.
The review authority may create standards for documentation the city will use to verify the rental
rates or sale prices of affordable homes created pursuant to this division. For the initial sale of an
affordable home, the seller must provide the city with a copy of the HUD-1 form prepared by an
attorney or title company indicating the sale price. The final sale price on the HUD-1 form may not
exceed the maximum price for a specific affordable home as described in section 38.380.030, plus
an allowed maximum established by rule as authorized in this section in buyer selected upgrades,
if allowed by the first mortgage lender underwriters. In addition, the city shall require certification
satisfactory to the city of homebuyer income qualification.
Upon receipt of a settlement statement for the sale of an affordable home, the city will determine
if the completed affordable home sale complies with the approved affordable housing plan and
the requirements of this division and if not, will notify the seller of the noncompliance.
(Ord. No. 2105, § 12, 9-27-2022)
Sec. 38.380.080. - Noncompliance and sanctions.
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C.
1.
2.
3.
If the city determines that a developer has failed to comply with any terms or conditions of the
affordable housing plan or this division, the review authority shall notify the developer of the
noncompliance in writing and order compliance by the most reasonable and expeditious means
as determined by the city. Notification shall describe the date by which the developer must be in
full compliance and shall describe the nature of the noncompliance and the possible sanctions for
noncompliance.
A developer that sells an affordable home for a price not in compliance with the approved
affordable housing plan, this division, or any other recorded document obligating the developer
to comply with this division shall pay a penalty to the city. The penalty shall be equal to 125
percent of the difference between the actual sale price and the maximum sale price of the
affordable home as set out in the approved affordable housing plan.
In addition to other remedies available to the city pursuant to this division, if the developer
remains in noncompliance on the date by which compliance was required, the city shall have the
authority to impose one or more sanctions, including but not limited to the following, that the city
deems most effective and appropriate considering the nature of the noncompliance:
Withholding or revoking building permits;
Issuing stop-work orders; and/or
Withholding or revoking certificates of occupancy.
(Ord. No. 2105, § 12, 9-27-2022)
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Memorandum
REPORT TO:City Commission
FROM:Sarah Rosenberg, Associate Planner
Brian Krueger, Development Review Manager
Erin George, Director of Community Development
SUBJECT:Review and Consider the Boutique Hotel, Located at 240 E. Mendenhall
Street, Site Plan and Commercial Certificate of Appropriateness with a
Deviation Application, Application 24147 (Quasi-judicial)
MEETING DATE:April 15, 2025
AGENDA ITEM TYPE:Community Development - Quasi-Judicial
RECOMMENDATION:Having reviewed and considered the application materials, public comment,
and all the information presented, I hereby adopt the staff findings as
presented in the staff report for application 24147 that the application does
meet the criteria required for approval and move to approve with conditions
the Boutique Hotel application for the deviation requested to allow for
encroachment of open space hardscaping, a 4-foot awning, and supporting
utility infrastructure into the 35-foot watercourse setback.
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:A site plan/commercial certificate of appropriateness with deviation
application at 240 E. Mendenhall Street proposing a six-story hotel with
amenities on a vacant parcel that currently serves as a parking lot. There is a
basement that provides covered bicycle parking, storage, and supporting
building service infrastructure. The first floor includes a hotel lobby,
commercial space, and back of house operations. Each subsequent floor
includes hotel rooms, and a rooftop bar is proposed on the sixth level. The
total number of hotel rooms is 71.
Included with this application is a deviation request to allow for
encroachment of structures into the 35-foot watercourse setback along
Bozeman Creek. Per 38.410.100, “where a development is crossed by or is
adjacent to a watercourse, the developer must mitigate the impacts of the
development on the watercourse. This mitigation may not be less restrictive
than the requirements of the city floodplain regulations or any other
applicable regulation of this chapter. The purpose of this mitigation is bank
stabilization; sediment, nutrient and pollution removal; and flood control.”
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Since the subject property was platted prior to July 10, 2002, the setback
along Bozeman creek is 35-feet along both sides of the watercourse. The
development proposes hardscaping for the open space, a 4-foot awning, and
supporting utility infrastructure to encroach about 30-feet into the
watercourse setback along the eastern portion of the property. The building
footprint is outside of the watercourse setback.
Per 38.200.010.A.1, where the deviation is for more than 20 percent of the
standard, the City Commission is the review authority and must conduct a
public hearing for this application. A deviation can be requested for
properties within the NCOD due to most of historic Bozeman preceding
zoning regulations and to encourage activity that would contribute to the
overall historic character of the community. The criteria for granting
deviations from the underlying zoning requirements are outlined in
38.340.070.
This site had a previous site plan application (no. 19445) with deviation
request that was approved on March 9, 2020, by the City Commission to
allow for encroachment of open space hardscaping and a 4-foot awning into
the 35-foot watercourse setback. The project was to develop a six-story
mixed-use building with open space along Bozeman Creek. The approval of
the application expired.
UNRESOLVED ISSUES:There are no unresolved issues with this application.
ALTERNATIVES:1. Deny the application based on the Commission’s findings of non-
compliance with the applicable criteria contained within the staff report; or
2. Approve the application;
3. Approve the application with the addition of specific conditions based
on Commission’s findings;
4. Continue the public hearing on the application, with specific direction to
staff or the subdivider to supply additional information or to address specific
items.
FISCAL EFFECTS:None
Attachments:
24147 City Commission Staff Report.pdf
Report compiled on: April 3, 2025
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24147; Boutique Hotel Site Plan/Commercial Certificate of Appropriateness with Deviation
Application
Public Meeting/Hearing Dates:
City Commission meeting will be held – Tuesday, April 15, 2025, at 6:00 pm
Project Description: Site Plan application proposes a six-story hotel with amenities on a vacant parcel
that currently serves as a parking lot. The ground floor includes a hotel lobby, commercial space, and
back of house operations. Each subsequent floor includes hotel rooms, and a rooftop bar is proposed on
the sixth level. The total number of hotel rooms is 71. Site improvements include sidewalk, streetscape,
landscaping, and additional site amenities. The applicant proposes off-site parking to accommodate the
required parking. The property is zoned B-3 and is in the Neighborhood Conservation Overlay District
(NCOD).
The project is located directly adjacent to Bozeman Creek which requires a 35-foot setback along both
sides of the creek per 38.410.100. While the proposed building is located outside of the watercourse
setback, the applicant is requesting to allow for up to a 30-foot encroachment into the watercourse setback
for open space hardscaping and patio space, a 4-foot awning, and supporting utility infrastructure. Per
38.200.010.A, the City Commission is the review authority where a deviation is more than 20 percent of
the standard.
A deviation can be requested for properties within the NCOD due to most of historic Bozeman preceding
zoning regulations and to encourage activity that would contribute to the overall historic character of the
community. The criteria for granting deviations from the underlying zoning requirements are outlined in
38.340.070.
Project Location: 240 E. Mendenhall St., Bozeman Original Plat, S07, T02 S, R06 E, Block D, Parcel A
Plat C-1-H, City of Bozeman, Gallatin County, Montana
Staff Finding: The application does conform to standards and criteria and is sufficient for approval.
Recommended Motion: Having reviewed and considered the application materials, public comment, and
all the information presented, I hereby adopt the staff findings as presented in the staff report for
application 24147 that the application does meet the criteria required for approval and move to approve
with conditions the Boutique Hotel application for the deviation requested to allow for encroachment of
open space hardscaping, a 4-foot awning, and supporting utility infrastructure into the 35-foot
watercourse setback.
Report Date: April 3, 2025
Reviewing Staff: Sarah Rosenberg, AICP, Associate Planner
Simon Lindley, Project Engineer
Agenda Item Type: Action (Quasi-judicial)
EXECUTIVE SUMMARY
This report is based on the application materials submitted and public comment received to date. The full
application and file of record can be viewed digitally at the Community Development Department at 20
E. Olive Street, Bozeman, MT 59715, as well as digitally at
https://www.bozeman.net/departments/community-development/planning/project-information-portal,
select the “Project Documents Folder” link and navigate to application 24147. They are also available in
the City’s Laserfische folder and may be accessed through the Community Development viewer.
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Unresolved Issues:
There are no unresolved issues with this application.
Project Summary:
The Department of Community Development received a site plan/commercial certificate of
appropriateness with a deviation application on March 25, 2024, proposing a six-story hotel with
amenities on a vacant parcel that currently serves as a parking lot. There is a basement that provides
covered bicycle parking, storage, and supporting building service infrastructure. The first floor includes a
hotel lobby, commercial space, and back of house operations. Each subsequent floor includes hotel rooms,
and a rooftop bar is proposed on the sixth level. The total number of hotel rooms is 71.
Included with this application is a deviation request to allow for encroachment of structures into the 35-
foot watercourse setback along Bozeman Creek. Per 38.410.100, “where a development is crossed by or
is adjacent to a watercourse, the developer must mitigate the impacts of the development on the
watercourse. This mitigation may not be less restrictive than the requirements of the city floodplain
regulations or any other applicable regulation of this chapter. The purpose of this mitigation is bank
stabilization; sediment, nutrient and pollution removal; and flood control.” Since the subject property was
platted prior to July 10, 2002, the setback along Bozeman creek is 35-feet along both sides of the
watercourse. The development proposes hardscaping for the open space, a 4-foot awning, and supporting
utility infrastructure to encroach about 30-feet into the watercourse setback along the eastern portion of
the property.
Per 38.200.010.A.1, where the deviation is for more than 20 percent of the standard, the City Commission
is the review authority and must conduct a public hearing for this application. The application must meet
the standards for granting deviations in section 38.340.070 of the Unified Development Code. A
description and staff evaluation are outlined in this report.
This site had a previous site plan application (no. 19445) with deviation request that was approved on
March 9, 2020, by the City Commission to allow for encroachment of open space hardscaping and a 4-
foot awning into the 35-foot watercourse setback. The project was to develop a six-story mixed-use
building with open space along Bozeman Creek. The approval of the application expired.
On March 11, 2025, the Development Review Committee (DRC) found the application contained the
required application materials with sufficient information for the City to consider the application
adequate. The DRC finds that the application does conform to standards and criteria and is sufficient for
approval.
The public noticing period ran from March 17 to April 15, 2025. The City has received two letters of
public comment on the application as of the writing of this report.
Alternatives:
1. Deny the application based on the Commission’s findings of non-compliance with the applicable
criteria contained within the staff report; or
2. Approve the application.
3. Approve the application with the addition of specific conditions based on Commission’s findings.
4. Continue the public hearing on the application, with specific direction to staff or the subdivider to
supply additional information or to address specific items.
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Table of Contents
EXECUTIVE SUMMARY .......................................................................................................................... 1
Unresolved Issues: ................................................................................................................................ 2
Project Summary: .................................................................................................................................. 2
Alternatives: .......................................................................................................................................... 2
SECTION 1 – MAP & PLAN SERIES .................................................................................................... 4
Exhibit 1 – Location and zoning of subject property ............................................................................ 4
Exhibit 2 – Future Land Use Map ......................................................................................................... 5
Exhibit 3 – Site Plan ............................................................................................................................. 6
Exhibit 4 – Watercourse setback ........................................................................................................... 7
Exhibit 5 – Elevations ........................................................................................................................... 8
SECTION 2 – RECOMMENDED CONDITIONS OF APPROVAL .................................................... 10
SECTION 3 – CODE REQUIREMENTS .............................................................................................. 10
SECTION 4 – RECOMMENDATION AND FUTURE ACTIONS ...................................................... 11
SECTION 5 – STAFF ANALYSIS AND FINDINGS ........................................................................... 11
BMC 38.230.100 – Plan Review Criteria ........................................................................................... 11
BMC 38.230.080 – Certificate of Appropriateness Criteria ............................................................... 14
BMC 38.250.050 – Deviations ........................................................................................................... 15
Conformance with adopted City of Bozeman Plans ........................................................................... 17
Conclusion .......................................................................................................................................... 19
APPENDIX A – NOTICING AND PUBLIC COMMENT ................................................................... 19
APPENDIX B – RELEVANT MUNICIPAL STATUTES .................................................................... 19
APPENDIX C – OWNER INFORMATION AND REVIEWING STAFF ........................................... 19
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SECTION 1 – MAP & PLAN SERIES
Exhibit 1 – Location and zoning of subject property
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Exhibit 2 – Future Land Use Map
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Exhibit 3 – Site Plan
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Exhibit 4 – Watercourse setback (in red)
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Exhibit 5 – Elevations
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SECTION 2 – RECOMMENDED CONDITIONS OF APPROVAL
Please note that these conditions are in addition to any required code provisions identified in this report.
These conditions are specific to this project.
Recommended Conditions of Approval:
1. BMC 38.340.010.F. The applicant must conduct an archeological excavation or another similar
process to explore the site prior to construction to determine if there are any artifacts that may exist
on site. Any items found must be reported and cataloged. A report of the process conducted and the
findings following the exploration must be presented to the Community Development Department.
2. BMC 38.340.010.F. The applicant must submit a proposal to the Community Development
Department for an onsite installation that recognizes the history and significance of the site. This
may include, but is not limited to a sign, artwork, plaque, or other commemorative display. The
proposal must specify the design, content, and intended location on the site. The content must
include, at a minimum, the site's history, historic photographs, and recognition of the creek. The
applicant is encouraged to work with the Downtown Bozeman Partnership and other appropriate
parties to adhere to the Downtown Bozeman Improvement Plan. The proposed installation must be
reviewed and approved by the Community Development Department prior to installation and must
be in place prior to planning approval of final routing for occupancy.
3. BMC 38.410.060. The applicant must record a public access easement for the common open space
prior to final site plan approval.
SECTION 3 – CODE REQUIREMENTS
1. BMC 38.240.350. A subdivision exemption application is required to aggregate the underlying lots.
The amended plat must be approved and recorded with the Gallatin County Clerk & Recorder prior
to final site plan approval.
2. BMC 38.250.060. Prior to final site plan approval, the applicant must pay the departure fee to allow
an alternative to the transparency standard on the north elevation.
3. BMC 38.540.070. The use depends on off-site parking to meet parking requirements. The applicant
must provide evidence to the Community Development Department of a long-term lease agreement
for parking utilization of the off-site location prior to final site plan approval.
4. BMC 38.270.030. The applicant proposes concurrent construction of the building and the
infrastructure improvements. The applicant must fulfill the requirements of section 38.270.030 D,
BMC prior to the issuance of a building permit for the proposed development or per 38.270.030.C
complete construction of all off-site infrastructure first.
5. BMC 38.600.170.C.4 A floodplain permit must be obtained prior to final site plan approval. The
floodplain permit application and required materials shall be provided to the City floodplain
administrator electronically through the PDox electronic plan review system.
6. BMC 38.600.220.D, that prior to receiving a Certificate of Occupancy, the Applicant must submit a
certification from the design engineer or architect that the completed project conforms with the
approved floodplain permit, and a fully completed FEMA Floodproofing Certificate for Non-
Residential Structures acceptable to the Floodplain Administrator.
7. BMC 38.410.130. The development's estimated average municipal water demand is 8.80 ac-feet.
The estimate will be uploaded to the project file. The demand must be offset prior to final site plan
approval. To offset the demand by paying cash-in-lieu of water right a fee of $52,801 must be paid
prior to final site plan approval.
8. BMC Chapter 40, Article 4. Any work on the site must conform to the approved stormwater permit.
9. BMC 38.410.100. The applicant must work with the Engineering Division on any restoration work
beyond the approved landscaping plan. Any additional trees that need to be removed along the creek
bed during the construction process must be approved by the City Forester prior to removal.
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10. BMC 34.05.060. and 34.05.070. Valet services that involve the elimination of any on-street parking
along Mendenhall requires approval from the Parking Commission through the infrastructure review
process.
SECTION 4 – RECOMMENDATION AND FUTURE ACTIONS
The Development Review Committee (DRC) determined the application was adequate review on March
11, 2025. The DRC finds that the application conforms to standards and is sufficient for approval with
conditions and code provisions. Furthermore, the DRC finds that the application meets all deviation
criteria and findings to support the approval of the request which are outlined below in this staff report.
While site plan applications are typically reviewed administratively, because the applicant requests a
deviation for more than 20% of the standard, the City Commission retains to itself the review authority
and the approval of the entire application requires the approval of the deviation. The City Commission
meeting will be held Tuesday, April 15, 2025, at 6:00 pm
SECTION 5 – STAFF ANALYSIS AND FINDINGS
Analysis and resulting recommendations are based on the entirety of the application materials, municipal
codes, standards, plans, public comment, and all other materials available during the review period.
Collectively this information is the record of the review. The analysis in this report is a summary of the
completed review.
The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as
conditions of approval, does not, in any way, create a waiver or other relaxation of the lawful
requirements of the Bozeman Municipal Code or State law.
Applicable Plan Review Criteria – Section 38.230, BMC
In considering applications for plan approval, the review authority evaluates the following criteria. This
application must comply with all applicable requirements of BMC chapter 38 including overlay district
requirements. The staff provides findings analyzed under the following relevant sections of code and
applicable plans:
• BMC 38.230.100 – Plan Review Criteria
• BMC 38.230.080 – Certificate of Appropriateness Criteria
• BMC 38.250.050 – Deviations
• Conformance with other City adopted plans
BMC 38.230.100 – Plan Review Criteria
Conformance with City’s adopted Growth Policy (38.100.040.D)
The subject property is designated as Traditional Core. The Bozeman 2020 Community Plan states, “the
traditional core of Bozeman is the historic downtown. This area has an extensive mutually supportive
diversity of uses, a strong pedestrian and multi-modal transportation network, and a rich architectural
character. Essential government services, places of public assembly, and open spaces provide the civic
and social core of town. Residential development on upper floors is well established. New residential uses
should be high density. The area along Main Street should be preserved as a place for high pedestrian
activity uses, with strong pedestrian connectivity to other uses on nearby streets. Users are drawn from
the entire planning area and beyond. The intensity of development is high with a Floor Area Ratio well
over 1. Future development should continue to be intense while providing areas of transition to adjacent
areas and preserving the historic character of Main Street.”
The application conforms to the Traditional Core category as it proposes a high intensity development. It
expands upon the existing activity of downtown. It also utilizes an undeveloped site and promotes
pedestrian connectivity.
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Conformance with Article 2 – Submittal Material Requirements (38.220)
The site plan and commercial certificate of appropriateness are met with this project. The project
conforms to zoning provisions, community design provisions, and project design provisions. See the
analysis below for how the required standard of each article is met.
Concurrent Construction has been requested by the applicant to allow simultaneous construction of the
proposed building and required supporting infrastructure. The required infrastructure improvements
include adjacent improvements that are subject to BMC 38.270.030.D. The requirements of this section
including City and DEQ infrastructure review, approval from the City Fire Marshall, execution of an
Irrevocable Offer of Dedication, and an acceptable concurrent construction plan, must be met prior to a
building permit being issued for the development.
Conformance with Article 3 – Zoning Provisions (38.300)
The subject property is zoned B-3, Downtown District. “The intent of the downtown B-3 business district
is to provide a central area for the community's business, government service and cultural activities with
urban residential development as an essential supporting use. The downtown B-3 district should be the
area of greatest density of development, intensity of use, and appropriate infill. Design standards
reinforcing the area's historical pedestrian-oriented context are very important.
This district encourages high volume, pedestrian-oriented uses in ground floor space in the "core area" of
the city's central business district, i.e., along Main Street from Grand to Rouse and to the alleys one-half
block north and south from Main Street. Lower volume pedestrian uses such as professional offices may
locate on ground floor space in the downtown B-3 area outside the above-defined core.”
Currently the parcel is vacant and is used as a parking lot. A hotel is a permitted use in the B-3 zone
district. The proposed building meets form and intensity standards as follows:
Per 38.350.050, elevator and stair penthouses are exempt from height limitations provided that no linear
dimension exceed 50 percent of the corresponding street frontage line. These penthouses exceed 4-feet
above the allowable height. Mechanical facilities are exempt from height.
Conformance with Article 4 – Community Design Provisions (38.400)
The applicant provided a Traffic Impact Study conducted by 406 Traffic & Transportation Consulting,
which was thoroughly evaluated by the Engineering Division and found to satisfy standards for trip
generation and level of service evaluations. The development proposes valet service which will eliminate
some on-street parking along East Mendenhall Street. Any substantial encroachment involving the
elimination of any on-street parking within that area of the B-3 zoning district requires approval from the
Parking Commission. Compensation must be provided for each on-street parking space eliminated from
the downtown business district parking inventory in accordance City code outlined in BMC 34.05.060-
070. This process is completed during the City’s infrastructure review process which is a separate process
from site plan review and is managed by the City’s Engineering Division and requires the Parking
Commission’s approval as outlined in code provision number 9.
Setbacks Proposed Allowed
Front 3’ Storefront block frontage - See
Article 5 analysis below
Rear 13’ 0’
Side 1’ 0’
Alley 13’ 5’
Lot Area Proposed Allowed
Max lot coverage 49% 100%
Building Height Proposed Allowed
70’ 70’
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While there is an alley to the south of the building, there is no vehicular access to the building. Parking is
proposed to be located off-site. Pedestrian improvements include updating the sidewalk along Mendenhall
to be 13 feet wide.
This is an infill project on existing lots on an existing block. A subdivision exemption is required to
aggregate the underlying lots the lots prior to final site plan approval.
The subject property is an infill site with existing infrastructure services the site. The existing 6-inch
sewer main along East Mendenhall Street will be upgraded to 8-inch to accommodate the new use. At the
City’s current CILWR fee rate, the fee for the project is $52,801. Payment must be made prior to final site
plan approval.
An on-site storm water maintenance plan and design report was prepared by TD&H. Site improvements
include area inlets, roof drain piping, trench drains, subsurface infiltration chambers, and permeable
pavers.
Bozeman Creek runs through the subject property along the eastern boundary line which requires the
development to adhere to watercourse setback provisions outlined in 38.410.100. The setback along
Bozeman Creek is 35-feet on both sides. Along the stream bank is a 5-foot non-disturbance zone which
will remain in a natural state and be seeded with native seed if necessary. Between the stream bank and
open space plaza, the landscaping will be improved which includes preserving existing trees and adding
additional landscaping to meet watercourse setback planting requirements.
The open space plaza between the landscaped area and building includes hardscaping which encroaches
roughly 24-feet into the watercourse setback. Supporting utility infrastructure is located on the southern
portion of the property and encroaches roughly 30-feet into the watercourse setback. While the building
itself is out of the watercourse setback, the building awning on the east side encroaches 4-feet into the
watercourse setback. The Bozeman Municipal Code defines setback as “the space on the same lot with a
principal building, which is open and unoccupied from the ground upward or from the ground
downward.” So even though the awning is not on the ground, it still encroaches into the setback.
A deviation is requested to allow for the encroachment of all these structures into the watercourse setback.
See the analysis below on how the criteria is met to satisfy the deviation request.
Since this project is a commercial development on less than one acre, no parkland requirements are
warranted.
Conformance with Article 5 – Project Design
The building fronts onto East Mendenhall Street which is designated storefront block frontage meaning
that the building and site must be designed in a vibrant and active manner. The building is setback 3-feet
from the front property line to accommodate a wider sidewalk. There is a building entrance that faces the
street and includes an awning that wraps around the entire perimeter of the building.
The applicant requests a departure to allow façade transparency to be 55% where 60% is required. This
reduction is based on the façade articulation along the ground floor rather than a flat façade. The intent is
still met through the 5% reduction of transparency that still promotes visual interest for pedestrians. This
departure meets the criteria and is sufficient for approval.
The proposed sidewalk along E. Mendenhall Street is widened to 13 feet. Landscaping, street trees, and
bike racks are incorporated into the wider sidewalk to enhance the pedestrian experience. The open space
plaza to the east of the building incorporates seating and robust landscaping that promotes circulation and
amenities for pedestrians. While open space is not required for the project since the parcel is less than one
acre, roughly thirty percent of the property incorporates open space area to minimize the impact on the
watercourse setback and floodplain while providing a pedestrian amenity. To ensure that the plaza can be
enjoyed by all and to support access to Bozeman Creek, condition of approval number 3 requires a public
access easement to be recorded for that space prior to final site plan approval.
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Trash services are located at the rear of the building along the alley. No screening measures are required
for services on the alley. Utility meters are located on the east façade and screened by landscaping.
The building meets building design standards. It utilizes durable high-quality materials through limestone
veneer, cast stone, and metal cladding. The ground level creates a human-scaled façade pattern through
façade articulation features such as windows, entries, weather protection features, and a change in
materials. Furthermore, since the building is in the B-3 zone district, it adheres to the NCOD Design
Guidelines chapter 4-B which is analyzed above.
Parking for the building will be provided off-site through an off-site parking agreement. The development
proposes to use the parking lot directly east to accommodate the 46 spaces required for the use. The
development takes advantage of the allowable reductions outlined in 38.540.050.C. Prior to final site plan
approval, the applicant must provide an executed off-site parking agreement. The required bicycle parking
is 10 spaces. The development proposes 5 bike racks along the sidewalk on East Mendenhall and 12
covered spaces in a bike room in the basement.
The project provides the appropriate landscaping required as outlined in 38.550 including adding grated
street trees along East Mendenhall, drought tolerant plants, and the use of permanent irrigation. The
applicant proposes to do some restoration work along the creek bed which includes the protection of
existing trees, the removal of a few, and adding a native seed mixture if necessary. Code provision
number 8 requires the applicant communicate with the City if any additional trees will be removed and
any additional restoration work needs to be done.
All site lighting meets full cutoff standards as required by code.
Conformance with Article 6 – Floodplain Regulations (38.600)
The Site lies within a FEMA-regulated special flood hazard area for Bozeman Creek, which includes the
100-year floodway and floodplain fringe. The building is located within the floodplain fringe but outside
the floodway. Building design features are intended to mitigate the flood potential to both the building and
abutting pedestrian passageways.
The floodplain regulations in BMC 38.600 allow this particular use but require floodproofing or elevating
the building to the base flood elevation (BFE) plus 2 feet. The building’s main elevation is proposed at the
BFE plus 2 feet along most of the flood reach. The openings/windows that reside on the north side of the
building are proposed to be floodproofed to the BFE plus 2 feet. Areas below the BFE, such as the
basement, are allowable as the building is elevated or floodproofed.
Code Provision 5 requires, per BMC 38.600.170.C.4, that prior to final site plan approval, the Applicant
must obtain a floodplain permit.
Code Provision 6 requires, per 38.600.220.D, that prior to receiving a Certificate of Occupancy, the
Applicant must submit a certification from the design engineer or architect that the completed project
conforms with the approved floodplain permit, and a fully completed FEMA Floodproofing Certificate for
Non-Residential Structures acceptable to the Floodplain Administrator.
BMC 38.230.080 – Certificate of Appropriateness Criteria
Conformance with Overlay District Standards (38.340)
The proposed project is located within the Neighborhood Conservation Overlay District (NCOD) but is
not within a historic district. As there is no building on the site, no demolition review is required. It is
reviewed under the classification of new infill and construction that falls under the standards for
certificate of appropriateness outlined in BMC 38.340.050 and the NCOD Design Guidelines, specifically
chapter 4B which applies to properties zoned B-3 and outside of the Main Street Historic District. The
building and site design meets the standards conforms to this section.
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The area around the Main Street Historic District should accommodate compatible contemporary
development of greater height and density. This project provides density that meets the goals and
objectives of the Downtown Bozeman Improvement Plan. The building design uses a combination of
materials such as limestone veneer and metal and is articulated through façade plane changes and the use
of awnings and windows along the street facing and open space facades. To further incorporate into the
downtown business district, the use of a flat roof line is used.
The site design creates a strong connection for pedestrians by incorporating a wide sidewalk along East
Mendenhall Street, a visible and publicly accessible open space along Bozeman Creek, and a variety of
different landscaping.
BMC 38.250.050 – Deviations
Conformance for Granting Deviations (38.340.070)
The subject property is located directly adjacent to Bozeman Creek which requires a 35-foot setback
along both sides of the creek per BMC 38.410.100. Section 38.410.100.A.1.a.(2) states that “no fence,
residential or commercial structure, fill material, parking or other similar improvements shall be located
within required watercourse setback.” Bozeman Creek runs along the east boundary of the property and
the watercourse setback encroaches 35-feet into the parcel. The development proposes open space
hardscaping, a 4-foot awning, and supporting utility infrastructure to be in the watercourse setback. The
open space plaza encroaches roughly 24-feet into the watercourse setback. Supporting utility
infrastructure is located on the southern portion of the property and encroaches roughly 30-feet into the
watercourse setback.
While the building does not encroach into the setback, the Bozeman Municipal Code defines setback, in
the relevant portion, as “the space on the same lot with a principal building, which is open and
unoccupied from the ground upward or from the ground downward.” Therefore, the proposed awning
encroaches 4-feet into the watercourse setback and is not allowed under BMC 38.410.100 absent an
approved deviation.
A deviation can be requested for properties within the NCOD due to most of historic Bozeman preceding
zoning regulations and to encourage activity that would contribute to the overall historic character of the
community. Pursuant to Section 38.340.070 BMC, there are three criteria for granting deviations from the
underlying zoning requirement.
1. Modification must be more historically appropriate for the building and site in question and
the adjacent properties, as determined by the standards in Section 38.340.050, than would
be achieved under a literal enforcement of this chapter.
Bozeman Creek was channelized through the center of town back in the early days of the area’s
settlement, as evidenced by Sanborn maps dating from 1891. It was narrowed, straightened, and banks
armored with rock, concrete, and other materials. Since the realignment, Bozeman Creek was diverted to
be utilized for the built environment. Structures were built up to and over the creek. On this very parcel,
the pattern of development shows that structures were built over the creek and next to it as depicted in the
figures below.
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Figure 1: Original City Plat with Bozeman Creek in natural flowing state. Figure 2: 1884 Sanborn Map depicting channelized Bozeman Creek Project site in orange box.
‘
Figure 3: 1942 Aerial of Downtown Bozeman
Although the proposed open space and building awning do not replicate what was traditional to the
construction or style of the early settlement of Bozeman, the DRC finds that the traditional placement of
structures close to the creek is historically appropriate to the site. Bozeman Creek was forced to not
meander through downtown, but instead to be utilized for industry and more recently recreation. Portions
of the retaining walls which form the embankments for segments of the creek are former rubble
foundations of structures no longer present.
Furthermore, along much of the historic development pattern along Bozeman Creek, there are structures
that abut up against it or are directly above Bozeman Creek. To the south of the subject property, 311 E.
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Main (Bar IX) cantilevers over the creek and has an outdoor patio that is adjacent to Bozeman Creek. To
the north, 317 E. Mendenhall (Fresco restaurant) and 121 N. Rouse (City Hall) both have buildings that
front very closely to the creek within the Bozeman Creek watercourse setback.
Figure 4: Back of Bar IX building, date unknown Figure 5: Back of Bar IX building, present day
2. Modifications will have minimal adverse effects on abutting properties or the permitted
uses thereof.
The proposed deviations will have minimal adverse effects on neighboring properties and their permitted
uses. The planned open space presents an opportunity to enhance both the creek and adjacent properties,
offering guests and the public a park-like setting in Downtown Bozeman along Bozeman Creek. As noted,
many nearby properties are built up to or over the creek, and this development aligns with the established
pattern and character of the area while maintaining minimal adverse effects on neighboring properties.
3. Modifications must assure the protection of the public health, safety and general welfare.
Approvals may be conditioned to assure such protection, and such conditions may include a
time period within which alterations will be completed; landscaping and maintenance
thereof; architectural, site plan and landscape design modifications, or any other conditions
in conformity with the intent and purpose set forth in this part 1.
The DRC has identified no significant barriers to public health, safety and general welfare from the
proposed deviations. The restoration and rehabilitation activity along Bozeman Creek will affect how
people interact with the creek. Currently, Bozeman Creek is overgrown, walled and/or fenced throughout
Downtown. The requested deviation will improve the open space adjacent to the creek and revitalize the
waterway by making it visible to the public and highlighting it as a unique amenity to Bozeman.
The enhancement of the open space will allow the public to utilize the area adjacent to Bozeman Creek. A
proposed railing and retaining wall will alleviate public safety concerns regarding public access to the
creek. The permeable pavers will help reduce storm water runoff and restore a functioning creek to
enhance public health. The existing landscaping is overgrown and will be cleaned up to further promote
the health of the stream bank. The protruding awning does not have any sort of impact on the public
health, safety, and general welfare but rather provides sheltered relief within the open space.
Conformance with adopted City of Bozeman Plans
In addition to the deviation criteria above, the Uniform Development Code (chapter 38 BMC) requires
conformance with specific plans adopted by the City of Bozeman. The Downtown Bozeman
Improvement Plan and Downtown Creek Enhancement Plan are applicable to this project. Staff has made
three conditions of approval that are supported by these plans to help achieve the goals of enhancing and
engaging Bozeman Creek.
In 2012, the City of Bozeman developed the Downtown Creek Enhancement Plan (DCEP), which created
goals, objectives, and strategies to assist in enhancing Bozeman Creek through downtown such as
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creating ways to inform residents about the creek from its ecological services to the past and present
importance to the community. The DCEP also emphasizes on restoration of the creek to create a more
functioning stream ecosystem that can be enjoyed by all.
The Downtown Bozeman Improvement Plan (DBIP) was adopted in 2019 by the City Commission. One
of the themes of the DBIP is to connect to nature and culture by enhancing the natural systems and
increasing public spaces. Bozeman Creek flows right through downtown, but it is piped, hidden under
roads and parking lots. Much of the banks of the creek are largely overgrown or fenced. The goal of
enhancing Bozeman Creek is to reveal the creek, which would help create places to linger and points to
interact with the creek. Revealing the creek can also help produce strategies that help find healthier ways
for the natural waterways to filter storm water.
Based on the goals and objectives of these two plans, the DRC has proposed three conditions of approval
to help achieve the goals of enhancing and engaging Bozeman Creek. The requested deviation to allow
for encroachment into the watercourse setback will further assist in achieving these goals. The enhanced
open space creates points of access to Bozeman Creek’s edge and allows the public to experience the
waterways. To ensure that the public can experience the creek, condition of approval number three
requires a public access easement to be created for the open space area that fronts onto Bozeman Creek.
Both plans emphasize creating some sort of commemorative display along the creek to provide
educational opportunities on the history and ecological service the creek provides. Condition of approval
number two notes that the applicant must create a commemorative display that highlights a variety of
content for the public to view. These sorts of displays are already occurring along Bozeman Creek such as
the Revitalize Relatives art installation and demonstration garden outside of City Hall and the restoration
of the creek in Bogert Park that is highlighted through educational signage.
Figure 6: Revitalize Relatives Art Installation outside of City Hall Figure 7: Demonstration Garden outside of City Hall
Figure 8: Restoration of Bozeman Creek in Bogert Park Figure 9: Restoration of Bozeman Creek in Bogert Park
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Condition number one requires the applicant to conduct an archeological excavation or another similar
technique to explore the site before construction to ensure that if there are any artifacts that can be found
that they be reported and cataloged. Prior to when white settlers came to this area, Native Americans
relied on the abundant resources of the valley including this creek. When white settlers came to this area
and settled Bozeman, this area along East Mendenhall Street was considered Bozeman’s Red Light
District. An archeological dig or like process could discover artifacts that may bring forth relevant historic
information about this area.
Conclusion
The Development Review Committee finds that the application conforms with the site plan review
criteria, certificate of appropriateness criteria, and meets the criteria for granting the deviation for
encroachment into the watercourse setback and finds the application sufficient for approval. If the City
Commission denies the deviation request, the applicant will have to apply for a new site plan application
that does not have anything located in the watercourse setback per the pre-2002 watercourse setback
BMC standard.
APPENDIX A – NOTICING AND PUBLIC COMMENT
Notice was provided at least 15 and not more than 45 days prior to the City Commission public meeting
per BMC 38.220.420. The City scheduled public notice for this application on March 14, 2025. The
applicant posted public notice on the subject property on March 14, 2025. The applicant sent public notice
to physically adjacent landowners of record within 200-feet of the subject property via first class mail on
March 14, 2025. It was also posted in the Bozeman Daily Chronicle on March 29 and April 3, 2025.
The City has received two public comments as of the writing of this staff report. One public comment was
inquiring more about the project, and another was in opposition of the deviation request. A link to the
public comment received can be found here:
https://weblink.bozeman.net/WebLink/Browse.aspx?id=297513&dbid=0&repo=BOZEMAN
APPENDIX B – RELEVANT MUNICIPAL STATUTES
Bozeman Municipal Code Section 348.340.070 – Deviations from underlying zoning requirements
Because the development of much of historic Bozeman preceded zoning, subdivision and construction
regulations, some buildings within the conservation district do not conform to contemporary zoning
standards. In order to encourage restoration, rehabilitation and appropriate new construction activity that
would contribute to the overall historic character of the community, deviations from underlying zoning
requirements may be granted as described in division 38.250 of this chapter. The criteria for granting
deviations from the underlying zoning requirements are:
1. Modifications must be more historically appropriate for the building and site in question and the
adjacent properties, as determined by the standards in section 38.340.050, than would be achieved
under a literal enforcement of this chapter;
2. Modifications will have minimal adverse effects on abutting properties or the permitted uses
thereof; and
3. Modifications must assure the protection of the public health, safety and general welfare.
Approvals may be conditioned to assure such protection, and such conditions may include a time
period within which alterations will be completed; landscaping and maintenance thereof;
architectural, site plan and landscape design modifications, or any other conditions in conformity
with the intent and purpose set forth in this part 1.
APPENDIX C – OWNER INFORMATION AND REVIEWING STAFF
Owner: Paine Group, INC, 402 East Main Street, Suite 3, Bozeman, MT 59715
Applicant/Representative: Intrinsik Architecture, 106 E. Babcock, Suite 1A, Bozeman, MT 59715
Report by: Sarah Rosenberg, AICP, Associate Planner; Simon Lindley, Engineer.
193
Name:Contractor #:Affirmation Form:Bid Bond:Debarment
CK May Excavating Yes Yes Yes
Williams Civil Construction Yes Yes Yes
Sime Construction Yes Yes Yes
Mike Maas Kellen Gamradt
City Clerk Engineer II
Riverside Lift Station
These bids were opened and read before the undersigned at 2:30 pm on Th
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DBE Base Bid Total:
Yes $1,782,351.00
Yes $2,288,240.00
$1,990,161.00
hursday, March 20, 2025
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Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
MONTANA DEPARTMENT OF COMMERCE
MAIN STREET PROGRAM
CONTRACT #MT-MMS-CG-25-010
This agreement (“Contract”) is entered into by the City of Bozeman, Montana
(“Grantee”) and the Montana Department of Commerce (“Department”) (collectively, the
“Parties”).
The Grantee and the Department hereby agree to the following terms:
Section 1. PURPOSE
The purpose of this Contract is to provide funding to the Grantee for main street activities
approved by the Department under the Montana Main Street Program (“MMS” or
“Program”).
Section 2. AUTHORITY
This Contract is issued under authority of Title 90, Chapter 1, Part 1 of the Montana Code
Annotated (“MCA”).
Section 3. APPLICATION INCORPORATED BY REFERENCE
The Grantee's application for Program assistance, including any written modifications or
reports resulting from the review of the application by the Department (collectively
“Project”), is specifically incorporated into this Contract by reference and the
representations made therein are binding upon the Grantee.
Section 4. ACCEPTANCE OF PROGRAM REQUIREMENTS
(a) The Grantee will comply with all applicable local, state, and federal laws as well as
all applicable regulations, ordinances, and resolutions now in effect or as may be
amended during the term of this Contract. Grantee will comply with all
administrative directives and procedures that may be established or amended by
the Department for the Program, including the most current version of the
Montana Main Street Program Guidelines, maintained by the Department.
(b) The Grantee agrees that all contracts and subcontracts it enters into for the
completion of the activities described in Section 6 will require such contractors,
subcontractors, and subrecipient entities to also comply with all requirements
placed on the Grantee in paragraph (a) of this Section.
(c) The Grantee agrees to repay to the Department any funds advanced under this
Contract that the Grantee, its contractors, subcontractors, or subrecipient entities,
or any public or private agent or agency to which it delegates authority to carry
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out any portion of this Contract expends in violation of: (i) the terms of this
Contract; (ii) the statutes, and regulations governing the Program; (iii) or any
applicable local, state, or federal requirements.
(d) The Grantee agrees that the Project will adhere to all applicable design standards
required by the Department of Environmental Quality (“DEQ”), and Grantee shall
obtain all applicable federal, state, and local permits required for the Project. If no
DEQ standards are applicable to the Project, the Grantee agrees that the Project
will adhere to generally accepted industry standards, such as Recommended
Standards for Wastewater Facilities or Recommended Standards for Water Works,
published by the Great Lakes-Upper Mississippi River Board of State and Provincial
Public Health and Environmental Managers, latest edition.
Section 5. EFFECTIVE DATE AND TIME OF PERFORMANCE
(a) This Contract shall take effect upon execution by the Parties and will terminate on
June 30, 2026 or upon approval of Grantee’s Project completion report by the
Department, whichever is later, unless otherwise terminated in accordance with
this Contract.
(b) All authorized expenses to be reimbursed must be incurred by the Grantee
between January 7, 2025 and June 30, 2026. All requests for reimbursement must
be submitted to the Department within ninety (90) days after March 31, 2026.
(c) The activities to be performed by the Grantee will be completed according to the
implementation schedule set forth in Exhibit A. The Grantee may modify the
implementation schedule only with prior written approval of the Department.
(d) The Department may grant an extension to this Contract upon request by the
Grantee if the Department determines, in its sole discretion, that the Grantee has
demonstrated progress toward completion of the Project, has engaged in a good
faith effort to comply with the duties, terms, and conditions of this Contract, and
that the failure to comply with any of those services, duties, terms, or conditions
resulted from circumstances beyond the Grantee’s control. A written request for
an extension must be submitted at least sixty (60) days prior to June 30, 2026.
Section 6. SCOPE OF WORK
The Grantee will complete the Project and administer this Contract as set forth in the
Grantee’s application for Program assistance, including any amendments, approved by
the Department. The Grantee will use Program funds for the following major components
of the Project:
• Complete plans for the I-Ho Park; and
• Implement construction of the I-Ho Park in Bozeman.
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Section 7. BUDGET
(a) The total amount to be awarded to the Grantee under this Contract shall not
exceed $30,000.
(b) Grantee represents that it has secured the match requirement as outlined in
Montana Main Street Program Guidelines to complete the Project. Up to twenty
percent (20%) of the required match may include reasonable in-kind contributions.
Grantee acknowledges and agrees that if the actual costs Grantee incurs to
complete the Project are different than the existing Project cost estimate, Grantee’s
match will change to reflect the total Project costs actually incurred, which must
be confirmed during the Project closeout process with the Department.
(c) A copy of the preliminary Project budget is attached as Exhibit B and specifically
incorporated herein by reference. After construction bids are awarded or other
major Project activity cost elements are determined, the Grantee shall provide the
Department with a final Project budget that will, upon receipt and approval by the
Department, supersede the preliminary budget in Exhibit B and thereby be
incorporated as part of this Contract, binding upon the Grantee.
(d) For cumulative budget adjustments of $5,000 or less between line items of the
Program portion of Exhibit B, Department approval of the request for
reimbursement form shall constitute approval of the budget adjustment. Grantee
shall describe the rationale for any budget adjustment and note the adjustment(s)
in the request for reimbursement submitted to the Department. Budget
adjustments in excess of $5,000 between any line item of Exhibit B must be
approved in advance by the Department.
(e) Any authorized funds not expended under this grant by the later date referenced
in Section 5(b), or otherwise accounted for in accordance with the provisions of
this Section, will revert to the Department.
Section 8. ACCESS TO AND RETENTION OF RECORDS
(a) The Grantee agrees to create and maintain records supporting the services
covered by this Contract, including but not limited to, financial records,
supporting documents, and such other records as are required by law or other
authority, for a period of five (5) years after either the termination date of the
Contract or the conclusion of any claim, litigation, or exception relating to the
Contract taken by the State of Montana or third party, whichever is later. These
records will be kept in the Grantee’s offices.
(b) The Grantee shall provide the Department, Montana Legislative Auditor, or their
authorized agents access to any records related to the Project or otherwise
necessary to determine contract compliance, at no cost to the Department, the
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Montana Legislative Auditor, or their authorized agents.
Section 9. LIAISONS
All project management and coordination on behalf of the Department shall be through
a single point of contact designated as the Department’s liaison. Grantee shall designate
a liaison that will provide the single point of contact for management and coordination
of Grantee’s work. All work performed pursuant to this Contract shall be coordinated
between the Department’s liaison and the Grantee’s liaison. The liaisons for this Contract
are:
For the Department: For the Grantee:
Micky Zurcher (or successor) Jamie Grabinski
Program Specialist, MDOC City of Bozeman
301 S. Park Ave. 121 N. Rouse Avenue
P.O. Box 200523 Bozeman, MT 59715
Helena, MT 59620-0523 406-582-2364
406-841-2863 jgrabinski@bozeman.net
micky.zurcher@mt.gov
Section 10. METHOD OF REIMBURSEMENT
(a) The Department will not release any Program funds to the Grantee until the
Grantee has obtained firm commitments for all other financial resources to be
involved in the Project, as defined in Section 6 and Exhibit B. The Grantee may not
expend or obligate any Program funds, other than for administrative purposes,
until the Department determines that this condition has been satisfied.
(b) The Department agrees that, if and when the funds described in paragraph (a) of
this Section are available, the Department will authorize the Grantee to request
reimbursement from funding awarded for the Project.
(c) The Department agrees to reimburse the Grantee for eligible Project costs incurred
on or after the date identified in Section 5(b) upon the successful completion of
activities set forth in Section 6. All reimbursements must be supported by adequate
documentation requested by the Department, and provided by the Grantee, and
require Department approval of the Grantee’s request for reimbursement. In
requesting reimbursement, the Grantee will follow the instructions supplied by the
Department.
Unless previously agreed to in writing by the Department, the Department will not
reimburse Grantee for any costs related to the land acquisition, construction,
construction inspection, or contingency line items in Exhibit B until Grantee
demonstrates all applicable permits for the project have been obtained as required
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in Section 4(c). In requesting reimbursement, the Grantee will follow the
instructions supplied by the Department.
(d) The Department will not reimburse the Grantee for any costs incurred prior to the
date identified in Section 5(b), any expenses not included in Exhibit B or an
approved adjustment thereto, any ineligible expenses as set forth in the most
current version of the Montana Main Street Program Guidelines, or any expenses
not adequately supported in writing by the Grantee's records.
(e) As set forth in Section 17, if the Grantee fails to or is unable to comply with any of
the terms and conditions of this Contract any costs incurred will be the Grantee's
sole responsibility.
(g) The Department is allowed thirty (30) business days to process a request for
reimbursement once adequate supporting documentation has been received by
the Department. The Grantee shall provide banking information before or at the
time of Contract execution in order to facilitate electronic funds transfer
payments.
(h) If the Grantee changes one of its sources of funding or the cost of the Project
increases after the Grantee has obtained the firm commitment of non-Program
funds, the Department may, at its discretion, suspend the distribution of Program
funds until the Grantee obtains a firm commitment of funds for the full Project
budget.
(i) The Department may reduce the Grantee’s amount of Program funds provided by
this Contract if actual Project expenses are lower than projected by the Grantee in
Exhibit B or the Grantee obtains a greater amount of grant funds from other
sources than as presented in the Project application.
(j) If the Department, in its sole discretion, determines that the Grantee has failed
to satisfactorily carry out its responsibilities under this Contract or has breached
the terms of this Contract, the Department may withhold reimbursement to the
Grantee until such time as the Department and the Grantee agree on a plan to
remedy the deficiency.
(k) Requests for reimbursement for contracted or subcontracted services must
include appropriate documentation demonstrating compliance with contract
requirements.
(l) The Grantee may not use monies provided through this Contract as payment for
Project costs that are reimbursed from other sources.
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Section 11. REPORTING REQUIREMENTS
(a) Project Progress Reports: During the term of this Contract, Grantee will submit
Project progress reports to the Department in conjunction with each request for
reimbursement. These reports will describe the status of the activities set forth in
Section 6, including, at a minimum, the percentage completed, costs incurred,
funds remaining, and projected completion date. Additionally, the report must
provide documentation supporting each claim for expenses to be reimbursed,
describe any significant problems encountered in carrying out the Project, and the
scope of any necessary modifications the Grantee is requesting in the Project scope
of work, budget, or implementation schedule. The Department, at its sole
discretion, may decline to honor any request for reimbursement if the required
Project progress report has not been submitted to or approved by the Department.
(b) Project Completion Report: Within ninety (90) days of Project completion, the
Grantee will submit a final Project completion report for Department approval. The
Project completion report will describe the total costs incurred for the Project,
identify the final completion date, and summarize any significant problems
encountered in carrying out the Project. Upon approval of the Project completion
report, the Department will issue a notice of Project close-out. If the Grantee fails
to submit a Project completion report within ninety (90) days of Project
completion, then the Department will consider the Grantee to be in breach of this
Contract.
Section 12. PROJECT MONITORING
The Department or any of its authorized agents may monitor and inspect all phases and
aspects of the Grantee's performance to determine compliance with Section 6 of this
Contract, the proper use of funds, and other technical and administrative requirements of
this Contract, including the adequacy of the Grantee’s records and accounts. The
Department may advise the Grantee of any specific areas of concern and provide the
Grantee opportunity to propose corrective actions acceptable to the Department.
The Grantee understands and acknowledges that the Department may report to the
Montana Legislature and Legislative Interim Committees as requested on the status of all
Program projects, and that information related to the Project may be considered public
information subject to disclosure under Montana law.
Section 13. NOTICE
All notices required under the provisions of this Contract must be in writing and
delivered to the Parties’ liaisons identified herein either by first class mail, electronic
mail, or personal service.
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Section 14. REFERENCE TO CONTRACT
The Contract number must appear on all invoices, reports, and correspondence pertaining
to the Contract. If the number is not provided, the Department is not obligated to pay the
invoice.
Section 15. ASSIGNMENT, TRANSFER AND SUBCONTRACTING
The Grantee may not assign, transfer, or subcontract any portion of this Contract without
the Department’s prior written consent. (§ 18-4-141, MCA). The Grantee is responsible to
the Department for the acts and omissions of all Grantee’s subcontractors or agents and
of persons directly or indirectly employed by such subcontractors, and for the acts and
omissions of persons employed directly by the Grantee. No contractual relationships exist
between any subcontractor the Department under this Contract.
Section 16. CONTRACT AMENDMENT
This Contract may not be enlarged, modified, or altered without a written agreement
signed by all Parties to the Contract.
Section 17. TERMINATION OF CONTRACT
This Contract may only be terminated in whole or in part as follows:
(a) Termination Due to Loss or Reduction of Funding: The Department, at its sole
discretion, may terminate or reduce the scope of this Contract if any funding
sources are eliminated or reduced for any reason, including as permitted by
Montana Code Annotated § 18-4-313(4). If a termination or modification is
required, the Department may, if sufficient Program funds are available,
compensate the Grantee for eligible services rendered and actual, necessary, and
eligible expenses incurred as of the revised termination date. The Department will
notify the Grantee of the effective date of the termination or modification of this
Contract and, if a reduction in funding is required, provide the Grantee with a
modified Project budget amount.
(b) Termination for Cause with Notice to Cure Requirement: The Department may
terminate this Contract for failure of the Grantee, its contractors, subcontractors,
or subrecipient entities to perform or comply with any of the services, duties, terms,
or conditions contained in this Contract after giving the Grantee written notice of
the stated failure. The written notice will demand performance of the stated failure
within a specified period of time not less than thirty (30) calendar days. If the
demanded performance is not completed within the specified period, the
termination is effective at the end of the specified period.
(c) Effect of Termination: In the event of termination due to the Grantee's, its
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contractors’, subcontractors’, or subrecipient entities’ failure to perform or comply
with any of the services, duties, terms, or conditions of this Contract, any costs
incurred will be the sole responsibility of the Grantee. However, at its sole
discretion, the Department may approve written requests by the Grantee for
reimbursement of eligible expenses incurred. The Department's decision to
authorize payment of any costs incurred or to recover expended Program funds
will be based on a consideration of the extent to which the expenditure of those
funds represented a good faith effort of the Grantee to comply with any of those
services, duties, terms, or conditions of this Contract, and on whether the failure to
comply with any of those services, duties, terms, or conditions resulted from
circumstances beyond the Grantee's control.
Section 18. COMPLIANCE WITH APPLICABLE LAWS
Grantee shall, in performance of work under this Contract, fully comply with all applicable
federal, state, or local laws, rules, regulations, and executive orders including but not
limited to, the Montana Human Rights Act, the Equal Pay Act of 1963, the Civil Rights Act
of 1964, the Age Discrimination Act of 1975, the Americans with Disabilities Act of 1990,
and Section 504 of the Rehabilitation Act of 1973. Grantee is the employer for the purpose
of providing healthcare benefits and paying any applicable penalties, fees and taxes under
the Patient Protection and Affordable Care Act [P.L. 111-148, 124 Stat. 119]. Any subletting
or subcontracting by Grantee subjects subcontractors to the same provisions. In
accordance with § 49-3-207, MCA, and Executive Order No. 04-2016. Grantee agrees that
the hiring of persons to perform this Contract will be made on the basis of merit and
qualifications and there will be no discrimination based on race, color, sex, pregnancy,
childbirth or medical conditions related to pregnancy or childbirth, political or religious
affiliation or ideas, culture, creed, social origin or condition, genetic information, sexual
orientation, gender identity or expression, national origin, ancestry, age, disability,
military service or veteran status, vaccination status, or marital status by the persons
performing this Contract.
Section 19. ACCOUNTING, COST PRINCIPLES, AND AUDITING
(a) The Grantee, in accordance with §§ 2-7-503, 2-7-504, MCA, implementing
administrative rules, and other authorities, must maintain for the purposes of this
Contract an accounting system of procedures and practices that conforms to
Generally Accepted Accounting Principles (“GAAP”).
(b) The Department, any other legally authorized governmental entity, or their
authorized agents may, at any time during or after the term of this Contract,
conduct in accordance with §§ 2-7-503, 5-13-304, and 18-1-118, MCA and other
authorities, audits for the purposes of ensuring the appropriate administration,
expenditure of monies, and delivery of services provided through this Contract, at
no cost to the Department.
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Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
Section 20. AVOIDANCE OF CONFLICT OF INTEREST
(a) The Grantee will comply with §§ 2-2-121, 2-2-201, 7-3-4256, 7-3-4367, 7-5-2106,
and 7-5-4109, MCA, as applicable, and any other applicable local, state, or federal
law regarding the avoidance of conflict of interest.
(b) The Grantee agrees that none of its officers, employees, or agents will solicit or
accept gratuities, favors, or anything of monetary value from contractors,
subcontractors, or potential contractors and subcontractors, who provide or
propose to provide services relating to the project funded under this Contract.
(c) The Grantee shall promptly refer to the Department any credible evidence that a
principal, employee, agent, contractor, sub-grantee, subcontractor, or other person
has submitted any false claim or has committed any criminal or civil violation of
laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct
involving funds provided under this Contract.
Section 21. COMPLIANCE WITH WORKERS’ COMPENSATION ACT
Grantees shall comply with the provisions of the Montana Workers’ Compensation Act
while performing work for the State of Montana in accordance with §§ 39-71-401, 39-71-
405, and 39-71-417, MCA. The Grantee accepts responsibility for supplying, and requiring
all subcontractors to supply, the Department proof of compliance with the Montana
Workers’ Compensation Act while performing work for the State of Montana. The Grantee
agrees that neither the Grantee nor its employees are employees of the State. Proof of
compliance must be in the form of workers’ compensation insurance, an independent
contractor's exemption, or documentation of corporate officer status. Neither the Grantee
nor its employees are employees of the State. This insurance/exemption must be valid
for the entire term of the Contract. Proof of compliance and renewal documents must be
sent to the Department within thirty (30) days of Contract execution.
Section 22. OWNERSHIP AND PUBLICATION OF MATERIALS
All reports, information, data, and other materials prepared by the Grantee or any of its
contractors or subcontractors in furtherance of this Contract are the property of the
Grantee and the Department. Both Grantee and the Department have the royalty-free,
nonexclusive, and irrevocable right to reproduce, publish, authorize others to use, and to
otherwise use, in whole or part, such property and any information relating thereto. No
material produced in whole or part under this Contract may be copyrighted or patented
in the United States or in any other country without the prior written approval of both the
Department and the Grantee.
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Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
Section 23. INSURANCE
(a) General Requirements: Grantee must maintain and assure for the duration of this
Contract, at its cost and expense, insurance against claims for injuries to persons
or damages to property, including contractual liability, which may arise from or in
connection with the performance of the duties and obligations in the Contract by
Grantee, its agents, employees, representatives, assigns, or subcontractors. This
insurance must cover such claims as may be caused by any negligent act or
omission. The State, its officers, officials, employees, and volunteers must be
covered as additional insureds for all claims arising out of the use of grant
proceeds provided by the State of Montana.
(b) General Liability Insurance: At its sole cost and expense, Grantee must purchase
and maintain occurrence coverage with minimum combined single limits of $1
million per occurrence and $2 million aggregate per year to cover such claims as
may be caused by any act, omission, or negligence of the Grantee or its officers,
agents, representatives, assigns, or subcontractors, or as established by statutory
tort limits of $750,000 per claim and $1,500,000 per occurrence as provided by a
self-insurance pool insuring counties, cities, or towns, as authorized under § 2-9-
211, MCA. The State, the Department, and their officers, officials, employees, and
volunteers are to be covered and listed as additional insured’s; for liability arising
out of activities performed by or on behalf of the Grantee, including the insured's
general supervision of the Grantee; products and completed operations; premises
owned, leased, occupied, or used.
(c) Professional Liability Insurance: Grantee shall assure that any representatives,
assigns, and subcontractors performing professional services under this Contract
purchase occurrence coverage with combined single limits for each wrongful act
of $1,000,000 per occurrence and $2,000,000 aggregate per year. Note: if
"occurrence" coverage is unavailable or cost prohibitive, the contractor may
provide "claims made" coverage provided the following conditions are met: (1) the
commencement date of the Contract must not fall outside the effective date of
insurance coverage and it will be the retroactive date for insurance coverage in
future years; and (2) the claims made policy must have a three (3) year tail for
claims that are filed after the cancellation or expiration date of the policy.
(d) General Provisions: All insurance coverage must be with a carrier licensed to do
business in the State of Montana and with a Best’s rating of at least A-, or by a
public entity self-insured program either individually or on a pool basis as provided
by Title 2, MCA. All certificates and endorsements must be received by the
Department prior to beginning any activity provided for under the Contract.
Grantee must notify the Department immediately of any material change in
insurance coverage, such as changes in limits, coverage, change in status of policy,
etc. The Department reserves the right to request complete copies of Grantee’s
insurance policy, including endorsements, at any time.
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Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
(e) Property Insurance: At its sole cost and expense, Grantee must maintain property
and hazard insurance, including course of construction coverage and earthquake
insurance, for loss or damage to any building and related improvements and
contents therein on a replacement cost basis throughout the term of the Contract.
Note: earthquake insurance is required when working in areas where the shaking
level is above 10g.
(Ref: http://rmtd.mt.gov/Portals/62/aboutus/publications/files/NEHRP.pdf).
Section 24. HOLD HARMLESS AND INDEMNIFICATION
To the fullest extent permitted by law, the Grantee shall indemnify and hold harmless
State, its elected and appointed officials, officers, agents, directors, and employees from
and against all claims, damages, losses and expenses, including the cost of defense
thereof, to the extent caused by or arising out of the Grantee’s negligent acts, errors, or
omissions in work or services performed under this Contract, including but not limited
to, the negligent acts, errors, or omissions of any subcontractor or anyone directly or
indirectly employed by any subcontractor for whose acts subcontractor may be liable.
Claims under this provision also include those arising out of or in any way connected
with the Grantee's breach of this contract, including any Claims asserting that any of the
Grantee's employees are actually employees or common law employees of the State or
any of its agencies, including but not limited to, excise taxes or penalties imposed on
the State under Internal Revenue Code (“Code”) §§ 4980H, 6055 or 6056.
Section 25. DEFAULT
Failure on the part of either party to perform the provisions of the Contract constitutes
default. Default may result in the pursuit of remedies for breach of contract as set forth
herein or as otherwise legally available, including but not limited to damages and
specific performance.
Section 26. DEBARMENT
The Grantee certifies and agrees to ensure during the term of this Contract that neither it
nor its principals, contractors, subcontractors, or subrecipient entities are debarred,
suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
participation in this Contract by any governmental department or agency.
Section 27. FORCE MAJEURE
Neither party will be liable for any failure or delay in performing its duties in this
agreement due to Force Majeure Events. “Force Majeure Event” means an event or
circumstance beyond a party’s reasonable control, such as natural catastrophes and acts
of terrorism or war, and the consequences of that event or circumstance. Force Majeure
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Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
Event does not include a strike or other labor unrest that affects only that party, an
increase in prices or other change in general economic conditions, a change in law, or an
event or circumstance that results in that Party’s not having sufficient funds to comply
with an obligation to pay. If a Force Majeure Event continues for thirty (30) days, the other
party may terminate this agreement or suspend payments while the event continues.
Section 28. SEPARABILITY
A declaration by any court, or any other binding legal forum, that any provision of the
Contract is illegal or void shall not affect the legality and enforceability of any other
provision of the Contract, unless the provisions are mutually dependent.
Section 29. ARBITRATION
Unless otherwise agreed to in writing or provided for by law, arbitration is not available
to the Parties as a method of resolving disputes that would arise under the Contract.
Section 30. NO WAIVER OF BREACH
No failure by the Department to enforce any provisions hereof after any event of breach
will be deemed a waiver of its rights regarding that event, or any subsequent event. No
express failure of any event of breach will be deemed a waiver of any provision hereof.
No such failure or waiver will be deemed a waiver of the right of the Department to
enforce each and all the provisions hereof upon any further or other breach on the part
of the Grantee.
Section 31. JURISDICTION AND VENUE
This Contract is governed by the laws of Montana. The Parties agree that any litigation
concerning this Contract must be brought in the First Judicial District in Lewis and Clark
County, State of Montana and each party must pay its own costs and attorney fees, except
as provided in Section 24, Hold Harmless and Indemnification.
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Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
Section 32. INTEGRATION
The Contract contains the entire agreement between the Parties. No statements,
promises, or inducements of any kind made by either party or the agents of either party,
not contained herein or in a properly executed amendment hereto are valid or binding.
This Contract supersedes all prior agreements, representations, and understandings. Any
amendment or modification must be in a written agreement signed by all Parties.
The Parties through their authorized agents have executed this Contract on the
dates set out below.
GRANTEE:
Chuck Winn, Manager Date
City of Bozeman
ATTEST:
Mike Mass, City Clerk Date
APPROVED AS TO FORM:
Greg Sullivan, Attorney Date
DEPARTMENT:
Mandy Rambo, Deputy Director Date
Docusign Envelope ID: B9C3FBC2-AD57-41FF-A36E-D9CFFFBAAC99
3/10/2025
3/10/2025
3/10/2025
3/10/2025
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Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
EXHIBIT A
Implementation Schedule
Project Name: I-Ho Pomeroy Peace Park
Activity Quarters 2025 Quarters 2026 Quarters 2027
1st 2nd 3rd 4th 1st 2nd 3rd 4th 1st 2nd 3rd 4th
Project Start-up X
Contract with Commerce X
Construction X
Project Closeout X
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Main Street Program Contract # MT-MMS-CG-25-010
Montana Department of Commerce City of Bozeman
EXHIBIT B
Budget
Project Budget For: I-Ho Pomeroy Peace Park
Activity
Source: Department
of Commerce Grant
MMS
Source/Match:
Downtown
Urban Renewal
District Total
Grant Administration - - -
Professional Services
(Engineering Architecture) $30,000 $6,000 36,000.00
Total Admin Costs
$
30,000.00
$
6,000.00 36,000.00
Construction Costs -
Total Construction Costs
Total Project Costs
$
30,000.00
$
6,000.00 $36,000.00
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