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HomeMy WebLinkAboutA3 Resolution 4589 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: David Fine, Economic Development Specialist SUBJECT: Resolution 4589 amending the Fiscal Year 2015 (FY15) North 7th Tax Increment Finance District Fund Budget to Include Additional Expenditures of $20,000 for District Consultant Services, $100,000 for Fiber Optic Engineering and Project Management Costs, and $75,000 for Design Standard Creation. MEETING DATE: March 16, 2015 AGENDA ITEM TYPE: Action RECOMMENDATIONS: Staff recommends adoption of Resolution 4589. SUGGESTED MOTION: Having conducted a public hearing, considered written and spoken public testimony, and based on the findings contained in this and other related staff memoranda, the content of Resolution No. 4589 and findings articulated by the Commission during discussion, I hereby move to adopt Resolution No. 4589. BACKGROUND: 1) Comprehensive Design Standards for the North 7th Tax Increment Finance District - $75,000 Economic Development and Planning staff are working together to provide a broad spectrum of support and input to the North Seventh Urban Renewal Board (NSURB). As the Board works to implement the final phases of the installation of the lighting and sidewalk project it is time to look forward to the next stage in the development of the N 7th corridor. As the Board considers a new branding effort, support for the broadband initiative to increase the viability of redevelopment of underutilized parcels, and possible expansion of the 166 district, now is the time for the Board along with the broader community to update the initial design plan for the TIF. The existing North 7th Avenue Plan was drafted to primarily address street connections and improvements. The implementation of the lighting plan will realize much of what the plan called for in terms of street improvements. Other recommended plan improvements, such as the inclusion of traffic circles at major intersections were recommendations that cannot be realized due to right of way constraints. The district and the community have moved beyond the scope of the initial study and would benefit from the cooperative development of a new design plan to address the continuing evolution of the district. As the TIF matures, broader design guidelines are needed in order to address the goal of district revitalization. The key to altering the suburban development patterns of the area that seem to be devaluing property – overly wide roads, large, barren and numerous parking lots, wasted space, and outdated site design – is to create a design plan that can guide the Board and the Commission in the allocation of limited funds to create the greatest impact to revitalize the district. Developing a vision and plan for the district will assist property owners in seeing the unrealized value in their property. Retrofitting is incremental and adaptive, but needs to be guided by an overall vision for the district. Maximizing the use of one “suburban” property, with denser, walkable, synergistic uses, results in the retrofit of another. One successful retrofit begets another, but we are now at the point where we are not sure how to move forward to incentivize the courageous civic minded development entrepreneur to take bold steps to maximize the value of properties for the benefit of the owner, adjacent owners, and the community. A new design plan will help the NSURB to create implementing policies that maximize market forces to encourage diversification and redevelopment. Recommendations to address key design challenges to altering the suburban development pattern to create internal and external integration of the parts over time and over multiple parcels is a critical policy that is needed to move the district to the next stage. Innovative ideas to address zoning and subdivision regulations to overcome the existing fragmentation are needed. Transforming a parcel of as little as 15 acres can transform the character of an area and spark excitement. We have seen this in Bozeman already with the redevelopment of the Cannery District. A new urban design plan is needed to continue to move this TIF district from “blight” to buzz. The NSURB voted on February 5, 2015 to amend their work plan and budget to request $75,000 to develop design standards for the District. 2) Professional Services Contract with Community Development Services of Montana to rewrite the Urban Renewal Plan for the North 7th TIF and to complete the necessary activities for the possible expansion of the North 7th TIF by the City Commission - $20,000 The North Seventh Urban Renewal Board (NSURB) voted on January 8, 2015 to recommend that the Commission consider five (5) areas contiguous to the district for expansion. Those areas are indicated on the attached map. The City Commission would have the ultimate authority to include any of these areas in a proposed district. If, however, an area is not included in the study area, the area cannot be included in any expanded district. The contract with Community Development Services of Montana (CDS) includes considerable time for public outreach and engagement with key stakeholders like the school board and county commission. 167 Staff recommends continuing with the expansion study for all five areas and making an expansion decision later in the process. The NSURB and staff recommend completely rewriting the Urban Renewal Plan for the North 7th District. The existing TIF plan is outdated and could provide much better direction regarding the specifics of the urban renewal projects that should take place within the district. The Administrative Rules of the State of Montana (ARM) governing TIF district expansion specify processes that are very similar to the creation of a new TIF district, including submitting the proposed TIF plan to the Montana Department of Revenue. The contract with CDS includes rewriting the TIF plan, in conjunction with the NSURB, to better meet the needs of the District and the requirements of the Department of Revenue should the district be expanded. The NSURB believes that rewriting the TIF plan is in the best interests of the District, even if the Commission elects not to expand the boundaries of the district. 3) Fiber Optic Engineering and Project Management - $100,000 The Commission approved work plan and budget for the Downtown TIF included $100,000 for expenses related to provisioning fiber optic infrastructure. On January 8, 2015, the NSURB voted to request an amendment to their work plan and budget requesting similar funding for engineering and project management services to plan for fiber optic infrastructure within the District. This funding request is consistent with the goals of the Bozeman Fiber Master Plan. Moreover, it would allow the district to plan more comprehensively for fiber optic infrastructure throughout the district to facilitate blight remediation by means of enhanced infrastructure that may attract new businesses and support existing businesses. UNRESOLVED ISSUES: • No decision has been made about the expansion of the N. 7th TIF. Staff recommends that the Commission make an expansion decision further into the study process. ALTERNATIVES: As determined by the Commission. FISCAL EFFECTS: The increased appropriations shall be funded from un-used cash reserves in the North 7th Tax Increment District Fund. Current Beginning and Ending Reserves estimates are as follows: Beginning FY15 Estimated Revenues Amended Appropriations Amended FY15 Ending Balance $1,466,251 $728,013 $1,243,500 $950,764 168 Attachments: • Resolution No. 4589 • Map of Proposed Expansion Areas • Professional Services Agreement and Phased Scope of Work for the contract with Community Development Services of Montana. • NSURB Minutes from January 8, 2015 • NSURB Minutes from February 5, 2015 Report prepared on March10, 2015 169 - 1 - COMMISSION RESOLUTION NO. 4589 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, AMENDING FISCAL YEAR 2015 (FY15) NORTH 7TH TAX INCREMENT FINANCE DISTRICT FUND BUDGET TO INCLUDE ADDITIONAL EXPENDITURES OF $20,000 FOR DISTRICT CONSULTANT SERVICES, $100,000 FOR FIBER OPTIC PROJECT COSTS, AND $75,000 FOR DESIGN STANDARD CREATION. WHEREAS, on June 2, 2014, the North 7th Urban Renewal District (the District ) presented their annual work-plan report and budget request for Fiscal Year 2015 to the City Commission; and WHEREAS, the City Commission exercises its authority to adopt budgets and authorize expenditures for the District in accordance with Montana Code Annotated 7-15-4281; and WHEREAS, the City Commission did, on the 23rd day of June, 2014, after due and proper legal notice conduct a public hearing on and adopt Resolution No. 4531 - A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, APPROPRIATING FUNDS FOR VARIOUS BUDGET UNITS, AND FURTHER ESTIMATING REVENUE NECESSARY TO OPERATE AND MAINTAIN SERVICES OF MUNICIPAL GOVERNMENT FOR THE FISCAL YEAR ENDING JUNE 30, 2015; and WHEREAS, on January 8, 2015 the District approved a motion to amend the work-plan and budget to include $20,000 for TIF consultant services for analysis of the district boundaries and for rewriting the urban renewal plan. WHEREAS, on January 8, 2015 the District approved a motion to amend the work plan and budget to include $100,000 for fiber optic engineering design and project management within the 170 - 2 - district; and WHEREAS, on February 5, 2015 the District approved a motion to amend the work plan and budget to include $75,000 to create comprehensive design standards for the North 7th Avenue Corridor; and WHEREAS, the North 7th Tax Increment Finance District Special Revenue Funds are to be expended on projects included in the North 7th Urban Renewal District’s work-plan, to benefit the District; and WHEREAS, the City Commission did, on the 16th day of March, 2015, after due and proper legal notice, conduct a public hearing on the proposed budget amendments. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, to wit: Section 1 – Appropriation Additions The City Commission of the City of Bozeman, Montana, does hereby authorize additional expenditures within the North 7th Tax Increment District Fund in Fiscal Year 2015 in the following amounts: North 7th Tax Increment District Fund: Consulting Services – TIF District $20,000 Consulting Services – Fiber Optic Engineering & Project Management $100,000 Consulting Services – Design Standards $75,000 GRAND TOTAL – Additional Appropriations $ 195,000 Section 2 – Use of Fund Reserves The increased appropriations shall be funded from un-used cash reserves in the North 7th Tax Increment District Fund. Current Beginning and Ending Reserves estimates are as follows: Beginning FY15 Estimated Revenues Amended Appropriations Amended FY15 Ending Balance $1,466,251 $728,013 $1,243,500 $950,764 Section 3 Pursuant to Section 7-6-4030, M.C.A., this resolution, upon its passage, shall be in full force and effect on July 1, 2014. 171 - 3 - Section 4 That should it be found by any court of competent jurisdiction that any section, clause, portion, sentence, word, or phrase of this resolution is deemed to be contrary to any existing law or regulations, that in this instance, it is the intent of the City Commission of the City of Bozeman, Montana, that all other portions, sections, words, clauses, phrases, or paragraphs of this document shall remain in full force and effect. PASSED AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 16th day of March, 2015. ________________________________________ JEFFREY K. KRAUSS Mayor ATTEST: _____________________________________ STACY ULMEN, CMC City Clerk APPROVED AS TO FORM: ________________________________________ GREG SULLIVAN City Attorney 172 173 Professional Services Agreement for Tax Increment Finance District Expansion FY 2014 – FY 2015 Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 2014, 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, Community Development Services of Montana, with a mailing address of 954 West Caledonia St., Butte, MT 59701 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 this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Attachment “A” and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the date of its execution and will terminate on January 2, 2016. 3. Scope of Work: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services (the frequency and work schedule). For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: The City agrees to compensate CDS of Montana an amount not exceeding $2,500 for Phase 1 of the scope of work as detailed in Attachment A to this agreement based on an hourly rate of $80.00 per hour plus expenses. If the City chooses to continue with subsequent phases, the City will agree to compensate CDS of Montana an additional amount, not to exceed $17,500, based on an hourly rate of $80.00 per hour plus expenses for Phases 2 and 3 of the scope of work as detailed in Attachment A to this agreement. Compensation will be made within fifteen (15) days of submittal of an invoice via electronic mail to David Fine, dfine@bozeman.net, by CDS of Montana. Any alteration or deviation from the described services that involves 174 Professional Services Agreement for Tax Increment Finance District Expansion FY 2014 – FY 2015 Page 2 of 11 additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform said services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, 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, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in 175 Professional Services Agreement for Tax Increment Finance District Expansion FY 2014 – FY 2015 Page 3 of 11 connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take to services shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes and for any claims regarding underpaid prevailing wages. 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; or (iii) the negligent, reckless, or intentional misconduct of any other third party. 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. 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). 176 Professional Services Agreement for Tax Increment Finance District Expansion FY 2014 – FY 2015 Page 4 of 11 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. 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 or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement 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; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; 177 Professional Services Agreement for Tax Increment Finance District Expansion FY 2014 – FY 2015 Page 5 of 11 • Automobile Liability - $100,000 property damage, each accident/ bodily injury $500,000, each accident; and The City of Bozeman, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial Liability policy. The insurance and required endorsements must be in a form suitable to City and shall include no less than a sixty (60) 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) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience/Contractor Termination: a. Should conditions arise which, in the sole opinion and discretion of the City, 178 Professional Services Agreement for Tax Increment Finance District Expansion FY 2014 – FY 2015 Page 6 of 11 make it advisable to the City to cease performance under this Agreement City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 13, 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 13(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. e. Contractor may terminate this Professional Services Agreement in whole or in part for any reason at any time upon giving written notice. Such termination shall be effective in the manner specified in said notice. The City will compensate Contractor for services performed up to the date of termination. If Contractor terminates pursuant to this subsection, Contractor shall immediately provide City with all Contractor’s work product. 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. 179 Professional Services Agreement for Tax Increment Finance District Expansion FY 2014 – FY 2015 Page 7 of 11 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 Brit Fontenot (Economic Development Director) 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 Brit Fontenot as the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as 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 Janet Cornish 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. 180 Professional Services Agreement for Tax Increment Finance District Expansion FY 2014 – FY 2015 Page 8 of 11 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination: 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. The Contractor shall require these nondiscrimination terms of its sub- Contractors 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. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing his employees and agents in safe work practices. 16. Modification and Assignability: This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party, which are not contained in this written Agreement, may be considered valid or binding. This Agreement may not be enlarged, modified or altered except by written agreement signed by 181 Professional Services Agreement for Tax Increment Finance District Expansion FY 2014 – FY 2015 Page 9 of 11 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. 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. 182 Professional Services Agreement for Tax Increment Finance District Expansion FY 2014 – FY 2015 Page 10 of 11 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 and the parties expressly agree that venue will be in Gallatin County, Montana, and no other venue. 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 Attachments 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 by written agreement of the Parties. In no case, however, may this Agreement run longer than May 31st, 2016. 183 Professional Services Agreement for Tax Increment Finance District Expansion FY 2014 – FY 2015 Page 11 of 11 **** 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 ____________________________________ CONTRACTOR (Type Name Above) By________________________________ By__________________________________ Chris Kukulski, City Manager Print Name: Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 184 Attachment A to the Professional Services Agreement between the City of Bozeman and CDS of Montana 1 Attachment A to the Professional Services Agreement between CDS of Montana and the City of Bozeman The City of Bozeman is considering the expansion of the existing North Seventh Street Urban Renewal District for the purposes of furthering its efforts to revitalize this commercial area and surrounding neighborhoods. If the expansion is determined to be feasible and appropriate, the City also intends to extend its North Seventh Tax Increment Financing (TIF) program to the new portions of the urban renewal district. The analysis of feasibility and appropriateness (Phase 1) per the scope of work will include the following elements: • An on-site review of the area(s) proposed to be included in the expanded urban renewal district, to establish whether it potentially meets the statutory requirements with respect to blight (7-15-4206, MCA) • The identification of a preliminary boundary based on these statutory requirements • Interviews with City staff to help identify blight and infrastructure deficiencies in the proposed area(s) • A cursory review of current urban renewal program and the status of the existing TIF • A presentation of findings to the Urban Renewal Agency Board If the existence of blight is substantiated within the area proposed to be added to the existing district, the City may choose to proceed with the balance of work (Phases 2 and 3) necessary to expand the district with a base year of 2015 per the following: Scope of Work and Associated Costs The total cost associated with completing all of the steps necessary to expand the Bozeman North 7th Urban Renewal TIF district is $20,000. The ability to keep the cost at this amount, relies on the timely cooperation of the local government in: • selecting the boundary of the project • developing legal descriptions in a digital format • generating maps in a JPEG/PDF format • collecting information including geocodes and property owner information • providing relevant documents including adopted growth policies and zoning regulations • providing previously adopted and/or similar board and governing body notices, resolutions, ordinances, etc. in a digital format • facilitating the flow of various communications • publishing and posting public hearing notices as required • making sure ordinances and resolutions are introduced and acted upon 185 Attachment A to the Professional Services Agreement between the City of Bozeman and CDS of Montana 2 • mailing required information to property owners • providing other on-site functions as needed The City of Bozeman will pay for such things as publication of all documents, provision of printed growth policy for state certification, hearing notices, certified mailings, and map production. The following provides a description of the scope of work, in phases with associated costs: Phase 1. Site Review and Feasibility Analysis - “not to exceed” $2,500.00 a. Assess proposed urban renewal area (s) and determine suitability as such, based on 7-15-4206 MCA b. Meet with City staff to identify infrastructure deficiencies c. Meet with City staff to review the existing urban renewal program, timing and funds and appropriateness of new/expanded district d. Meet with City Manager, Administrative Services Director, and Economic Development staff to discuss the policy implications of Urban Renewal District Expansion. e. On a second site visit, make preliminary recommendations to the Urban Renewal Board regarding the proposed (expanded) district with respect to: i. Potential findings of blight and associated statutory issues ii. Boundary delineation iii. Time frame iv. Other, as appropriate Phase 2. Project Kick-Off - “not to exceed” $3,500.00 f. Conduct initial training and orientation sessions regarding Tax Increment Financing and the steps involved in creating/amend a district. g. Hold meetings with staff, Urban Renewal Agency Board of Directors, City Council and other stakeholders to determine the specific boundaries of the proposed district expansion and to identify all of the available resources and information h. Hold meetings with the affected taxing jurisdictions (schools, county, fire districts, etc.) to provide information on the proposed Urban Renewal TIF District expansion i. Conduct educational meeting with property owners within the proposed Urban Renewal TIF District 186 Attachment A to the Professional Services Agreement between the City of Bozeman and CDS of Montana 3 Phase 3. Assist the local government in completing the steps necessary to expand the Urban Renewal TIF District, which include the following - “not to exceed” $14,000 j. Identify a definitive district boundary k. Assure that the property proposed for inclusion within the (expanded) TIF District consists of a continuous area with an accurately described boundary (including a legal description and a map) l. Compile a list of geo-codes for the properties included in the proposed TIF District m. Generate Property Owners’ Names and Addresses for Mailing Labels n. Prepare Statement of Blight o. Develop a Resolution of Necessity for adoption by the City Council p. Prepare (amendments to) the Urban Renewal Plan with a TIF provision q. Review Growth Policy to determine whether it adequately provides for the proposed Urban Renewal Plan r. Amend Growth Policy as required s. Review Zoning Regulations with respect to the proposed Urban Renewal Plan t. Amend Zoning Regulations if required u. Request determination of conformance with the Growth Policy from the Planning Board v. Prepare the local government's finding that the property within the proposed TIF is not included within an existing urban renewal district w. Prepare Ordinance Adopting the (amended) Urban Renewal Plan with a TIF provision x. Develop the hearing notice for publication and for mailing by certified mail to all property owners in the proposed Urban Renewal TIF District y. Hold the public hearing and adopt the Urban Renewal TIF Plan by ordinance. z. Assure that the ordinance becomes effective no later than December 31st of the 2015 for the purpose of calculating the tax increment aa. Compile all documents per the Montana Department of Revenue Administrative Rules concerning the certification of the TIF District bb. Provide the Department of Revenue and all Affected Taxing Jurisdictions with package of materials. cc. Monitor certification by DOR until conclusion of contract 187 Attachment A to the Professional Services Agreement between the City of Bozeman and CDS of Montana 4 Payment Schedule CDS of Montana bills on a monthly basis at the end of each month, by email. Our requested payment schedule is for each monthly bill to be paid within fifteen days of receipt. 188 Page 1 of 6 APPROVED minutes from January 8, 2015 board meeting Voted on an approved during February 5, 2015 board meeting held at the Stiff Building, upper conference room TO DO List: Everyone attend February 5 board meeting and bring your prioritization of these potential 2015 goals: lighting, N7 events, media awareness, setup revolving loan program, expanding district, other Bill chat with Bozeman Camera about photography event Susan work on contest idea Allyson, Brit and/or David get N7 added to Tony’s contract via Engineering dept; find proposed itemized billing from Janet Cornish; submit budget amendment to include $20K for TIF consultant work; bring listing of the PROs and CONs for each of the proposed areas of expansion In attendance: Carson Taylor, Bill Fogarty, Esther Schwier, Scott Hedglin, Susan Fraser, Allyson Brekke, Econ Dev Ofc Brit Fontenot and David Fine Call to Order – Scott called the meeting to order at 4:37pm. Public Comment – none. Meeting Minutes Bill motioned to accept December 4 minutes as presented; Susan seconded. All in favor. TIF consultant presentation on preliminary analysis of current TIF boundaries and plan Brit introduced Janet Cornish and Lynette Windemaker, Community Development Services of Montana, http://cdsofmontana.com . Janet started presentation by noting they visited Bozeman in November to meet with city staff about issues. She then launched into slideshow after handing out map discerning six areas board might consider adding (see Attachment A) and the legal description of blight (see Attachment B). Discussion involved revolving loan idea, and Brit confirmed such a system is already set up within the city and run by Prospera. Discussion continued including the following:  Scott asked Staff for their suggestions on sections to consider adding to district: 1)”Barmuda” to Lamme section, 2)section behind Cats Paw, west of 8th, and 3) proposed convention center site.  Scott then asked about the fairgrounds and Janet noted it would be a boon to connectivity even with the knowledge of no monetary contribution to tax increment district fund.  Janet reported their projected timeframe is nine months to finalize expansion.  If nothing else, Brit noted, he would like the consultant team to rework the 2006 city’s district plan. 189 Page 2 of 6  K12 and County have been contacted about possible district expansion. Brit reported school district is good to simply stay in the information stream; county administrator Jim in the room and he, too, said it is just good to be included in the informational conversation but they have no direct concerns about going forward.  Carson noted he will have to be convinced that expansion provides true benefit. Janet concluded presentation by noting only six years remain for district and asked the board if expansion is worth it considering short timeframe. N7Rehab applications and presentations Allyson gave two project updates: Universal interested in technical assistance grant; and Cellular/Verizon Jeff called about help with their eastern pad area. Phase II lighting project status, easements, etc Kevin Jacobsen with Morrison-Maierle joined the table. Scott summarized yesterday’s meeting with MDT, noting a really short report as the idea of reducing lane width was met with very little support. Scott noted he believes we should abandon this idea now. Yesterday’s meeting also included conversation about including MM moving forward, going ahead with light installations where we do have easements. MDT supportive of this plan. Scott went on to say discussion included MM continuing creating easements and exhibits for remaining district. Bill asked for clarification; Allyson confirmed this work fits within existing budget parameters. Brit spoke to easements. Currently adding N. 7th needs to Tony’s existing contract with city for easement gathering. His work goes thru city engineering, and board already includes right-of-way costs within annual budgets. 2015 Goals Discussion – lighting, events, media awareness, setup revolving loan program, etc Scott opened discussion noting that as a board we need to think about goals for this year. Bill wants to add to goals the expansion of the district. Scott continued to touch on the possible goals noted in agenda item, asking board to do a couple of things well this year. Brit noted they, too, have the same goal. Discussion continued. Scott requested on February agenda a listing of all possible priorities and then board will put in order during meeting conversation. More discussion, including board member’s ideas of events that could get people out. Bill will pursue the photography event idea, chatting with Bozeman Camera about hosting. Susan will rough out idea of contests for event ideas, similar rules of sweet pea poster art contest. Recruiting board members to fill vacant positions Scott welcomed Esther Schwier to the board, inviting her to give two minute introduction of herself. Her appointment is on Monday’s commission agenda as is Bill’s reappointment. There are still two empty seats on NSURB. 190 Page 3 of 6 Action items TIF consultant Brit spoke about $20K for TIF consultants would cover entire process over the next nine months, soup to nuts. Discussion. Scott asked staff to request itemization of the consultant’s proposed work. Allyson thinks they have already received such. Susan motioned to amend the work plan and budget up to $20K for TIF consultant services for analysis of the current district boundaries and plan. Bill seconded the motion. All in favor. Scott asked staff for their listings of PROs and CONs on all six proposed areas and to present them at February meeting. Scott requested TIF consultant be recurring agenda item. Bill requested goals be same. Fiber optic engineering David presented map of fiber optic plans (see Attachment C), noted red area is Phase I. Requesting 180-200K for engineering and looking at 300-400K request of FY16 budget for summer 2015 install of fiber. Discussion. Scott made the motion to amend the work plan budget with properly allocated NSURD section work costs, up to $100K, for fiber optic engineering design and project management within the district. Bill seconded the motion. All in favor. Brit noted final approval will be given or denied at January 26 commission meeting. This topic will also become a recurring NSURB agenda item. Adjournment Scott adjourned the meeting at 7:00pm. 191 Page 4 of 6 Attachment A 192 Page 5 of 6 Attachment B 193 Page 6 of 6 Attachment C 194 Page 1 of 8 Unapproved minutes from February 5, 2015 board meeting held at the Stiff Building, upper conference room TO DO List: Everyone attend March 5 board meeting In attendance: Scott Hedglin, Bill Fogarty, Susan Fraser, Brit Fontenot, Carson Taylor, Allyson Brekke, David Fine, Andrew Cetraro, Carl Solvie, Kevin Cook Call to Order – Scott called the meeting to order at 4:36pm. Public Comment – none. Meeting Minutes Bill motioned to accept December 4 minutes as presented; Andrew seconded. All in favor. N7Rehab Allyson reported slight change to U. Athletics parking layout; might do two grant applications. Cellplus now asking for monies for work they’ve already done. Scott encouraged U. Athletics to get apps to board sooner than later. Carl shared email from D. Cattin asking about façade improvement grant. Allyson will make contact with Dennis. Discussion went to grant language. Brit noted language will be considered in TIF consultant work. Scott shared he is willing to use his professional talents to help property owners, and he has already asked city legal counsel about this. Legal response: it is not bad form for him to do so but he would have to recuse himself from any voting attached to work he might do. Scott wanted his fellow board members feedback on this idea, wanting as public record that is he pondering such. Discussion. Phase II lighting project David reported UHaul easement is ‘in the mail to us’. And he shared the great news that the IntensiveCar easement is now complete. David also reported the NSURD easement addition to existing city engineering contract work is on February 9 commission agenda. The contractor will bring report to April board meeting. Allyson noted C. Rowland will be chatting with ReCompute neighbors as want to discuss his shared improvement ideas. David confirmed Morrison-Maierle Kevin is currently working on design of remaining lighting plan, this following January meeting with MDT. The contract amendment for this work is also on the February 9 commission agenda. TIF consultant David passed around maps and staffs’ listing of PROs and CONS for district expansion (see Attachments A & B). He then presented the PROs and CONs, noting listed in priority order, and reminding board that any area must be studied before considered for required blighting process. He also shared the points brought forward at the January board meeting by Janet Cornish, including: her work would rework original plan, proposed nine months to completion of expansion. Staff has decided Southeast section their top priority 195 Page 2 of 8 for addition to the district as provides continuity between TIF districts. Staff needs NSURB”s priority(ies) tonight as commission is waiting for this information before they approve the study at all. Continuing thru the proposed sections for study, the second priority for staff is the west section, David noting large size of section. Discussion continued through the remaining listing with the northwest section, just west of the forecasted site for the convention center, at which point David invited Daryl Schliem, Bozeman Chamber, to the table. Daryl touched on current status of convention center proposals, wanting TIF to help bond the project so can move forward. Daryl reporting did a similar work/bond in with TIF in Reno. Adding neighboring property to the district would be a good sign to owners. Scott noted there is motion from MSU to use the convention center for future culinary program – Daryl confirmed recently meeting with MSU Alumni Foundation’s Chris Murray. David spoke to fairgrounds section. Scott then opened discussion on decision on sections to study at this time. Brit noted to the inclusion in consultant’s $20k fee of reworking current district plan, including the grant language. Discussion continued. Carson taking points to commission, noting NSURB is supportive of including all six sections in the expansion study. Goals Scott opened floor on brainstorming. Update design guidelines brought forward by Brit and Wendy Thomas as city planning’s top goal for NSURD. Wendy spoke to Mayor Krauss’ recent mayor camp at LA architecture school and all the ideas he brought home with him. Discussion also included NSURD has moved beyond the Winter Plan. Maybe revision to the corridor’s design guidelines could include a zoning that is unique to N. 7th. Discussion included event ideas – getting people to come out and spend some time on N. 7th. Susan shared three ideas, Bill working with Bozeman Camera on his idea. Discussion. Wendy suggested including in next year’s budget an event planner. Is developing an annual event a goal? Discussion included no as want to get back to basic needs/plans for N. 7th. Possibly add a revolving loan fund. Media awareness should be fairly easy. Maybe outreach coordinator needed. Fiber project as infrastructure (lights and fiber) category – already moving forward on these things so no need to worry about them as far as tonight’s 1-year goal discussion, noted David. Update the plan is rising to the top priority. Incentivizing development – revolving loan, etc, is Scott’s top goal. More discussion will continue at March board meeting. 196 Page 3 of 8 Logo Allyson will run with the idea of updating the logo, bringing it to NSURB later. Fiber David rehashed (see Attachment C). Staff wishes to sit still on last month’s $100k budget amendment, not forward to commission until district plan is rewritten. They fiber project for the schools will start this summer and N. 7th will then be a Summer 2016 install. Recruiting board members Greg Cattin will hopefully attend March meeting and then decide if he’s game to join, per Carson. Brit introduced Tracy with HRDC Community Café as she, too, is considering joining the board. Action item: $75k for redesign of NSURD vision document Reimagine/rework the design plan for the district – the goal talked about tonight. Allyson said it would be completing the Clarion work started last year. Redefine from corridor to district, etc. Carl made the motion as written; Kevin seconded. All in favor. Kevin asked Carson how to make certain commission will understand a new plan. Carson said better communication needed for this. For March agenda, support staff transitioning to Econ Dev. Office. Adjournment Scott adjourned the meeting at 7:10pm. 197 Page 4 of 8 Attachment A 198 Page 5 of 8 Attachment B 199 Page 6 of 8 Attachment C 200 Page 7 of 8 201 Page 8 of 8 202