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HomeMy WebLinkAbout18- Declaration of Institutional Controls - Bridger Vale LLC - Bridger Vale Annexation Inter-office Original to: City of Bozeman City Clerk PO Box 1230 Bozeman MT 549771-1230 2634483 l�l hll= CharrlottefMills 12Galla018 tinn County, MT Fee $56.00 MIsc I IIIIIII IIIIII III IIII IIIIIII IIIIII IIII IIII IIIII IIIII IIIII IIIIII III IIIII IIIII IIII IIII DECLARATION OF INSTITUTIONAL CONTROLS FOR THE BRIDGER VALE ANNEXATION This DECLARATION OF INSTITUTIONAL CONTROLS is made and entered into this I day of Oert 2018, by Bridger Vale LLC, P.O. Box 930, Manhattan MT 59741-0930, hereinafter called "Bridger Vale", and the City of Bozeman (the "City"), a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana,with principal offices at 121 N.Rouse Ave.,PO Box 1230,Bozeman, MT 59771-1230, hereinafter called the "City", (Bridger Vale and City are referred to collectively as the Parties) for the purpose of addressing the terms of annexation of the property known as Bridger Vale and its suitability for development. WHEREAS, Bridger Vale is owner of land (the "Property" as described in Section 1, below)which it is annexing to the City of Bozeman for the purposes of development; and WHEREAS, on February 5, 2018 after conducting all required review the Bozeman City Commission determined it was in the best interest of Bridger Vale and the City for the Property to be annexed; and WHEREAS, it is the intent of Bridger Vale and the City to record this Declaration to satisfy the terms of annexation for the Property; and WHEREAS, during the review process for annexation of the Property issues of potential pollution relating to the former East Gallatin Landfill, also known as the Bozeman Old City Landfill, a closed landfill located on property owned by the City, further described in Section 2.a below, were identified; and WHEREAS, during the review process for annexation of the Property the City and Bridger Vale consulted with the Montana Department of Environmental Quality (MDEQ) and the Parties identified the need to establish institutional controls to protect the health, safety, and general welfare of future residents of the Property; and WHEREAS, Bridger Vale conducted monitoring of the Property and shared information with the City demonstrating low levels of potential contaminants; and 1 WHEREAS; Bridger Vale and the City agree it is in their mutual interest to establish institutional controls to mitigate potential impacts resulting from potential contamination from the former East Gallatin Landfill; and WHEREAS,the Parties identify institutional controls which are expected to address known or probable concerns identified at this time and are appropriate to be addressed in conjunction with annexation and future development on the Property; and WHEREAS, the Parties recognize that in additional to the controls contained in this declaration additional institutional controls may be required in conjunction with subdivision or other development of the site; and WHEREAS, Bridger Vale desires to declare and provides notice to all subsequent purchasers, lessees, residents, or any other person seeking to obtain a legal or equitable interest in the Property that such controls exist, may be amended or supplemented, and that interested parties should seek information regarding the environmental status of the Property or the East Gallatin Landfill from Bridger Vale,the City, or MDEQ. NOW, THEREFORE, Bridger Vale hereby declares and covenants: 1. Property Description This Declaration pertains to, and includes, the property designated and identified on Annexation Application 17230 and further described as Remaining Tract GLR-1 of COS 157, Section 31, Township 1S, Range 6E, Gallatin County, Montana(the "Property"). 2. Institutional Controls Bridger Vale declares the restrictions set forth herein shall govern use of the Property. The following institutional controls are hereby placed on the Property and may only be amended by prior written consent of the City: a. Bridger Vale, for itself, its successors and assigns,recognizes the Property shares a property boundary the east-southeast with the former East Gallatin Landfill. The East Gallatin Landfill is located on land owned by the City and described as Tract GL-2, COS 1221, located in the northwest quarter of Section 31, T1S, R6E, PMM, Gallatin County, Montana. The East Gallatin Landfill has been designated by the MDEQ as the "Old City Landfill" and is listed as site BZLF in MDEQ's database. According to the MDEQ, the East Gallatin Landfill is under the State's CECRA (Comprehensive Environmental Cleanup and Responsibility Act)program, which is the lead regulatory program for the site. MDEQ ranks the site a low priority. Information regarding the East Gallatin Landfill is available from the City's Engineering Division and the MDEQ's State Superfund Unit. b. Bridger Vale hereby declares, for itself, its successors and assigns, to monitor the performance of sub-slab mitigation systems required pursuant to Section 2.e of this 2 Declaration and take all steps necessary to ensure such system perform as designed until otherwise agreed by the City. Bridger Vale also declares and agrees it will prepare a Sampling and Analysis Plan for the sub-slab vapor mitigation systems detailing at a minimum sampling objectives and design, sampling location and frequency, sampling methods and handling procedures, analytical laboratory testing methods, quality control requirements, and data storage. The Sampling and Analysis Plan (the "Plan") must be approved by the City prior to final approval of any development on the Property. Bridger Vale declares it will amend this Declaration and the Plan prior to final approval of any development on the Property to specify the type of sub-slab vapor mitigation systems to be installed and the specific sampling and analysis requirements of the Plan. Bridger Vale also declares and agrees to allow the City and MDEQ access to install groundwater, soil, and soil vapor monitoring locations on the Property in locations to be determined upon of approval of development of the Property. Access for the City and MDEQ shall be provided during reasonable times with prior notice to Bridger Vale or its successors and assigns. Upon the establishment of monitoring locations for groundwater, soil, and soil vapor Bridger Vale agrees to provide the City, if requested, access easements for such monitoring. Bridger Vale also declares and agrees to establish provisions in its covenants adopted pursuant to any development on the Property requiring Bridger Vale and its successors and assigns to share with the City data collected by it or its successors and assigns pursuant to the Plan, and if requested by MDEQ, with MDEQ. The covenants must contain the Plan approved by the City and require any property owners association to provide sufficient financial and technical resources to ensure the sub-slab vapor mitigation Plan continues in effect until otherwise agreed to by the City. d. Bridger Vale declares that groundwater wells, other than the one (1) existing well located on the Property which serves a home located to the north of the Property, are prohibited on the Property. Bridger Vale further declares and agrees any future development of the Property will connect to City water services and that all water use on the Property, including potable and irrigation uses,will use only City provided water. This restriction may be lifted for irrigation purposes only as determined solely by the City upon a showing by Bridger Vale or its successors and assigns that groundwater proposed for irrigation uses complies with MDEQ water quality standards. e. All future structures on the Property must be built slab-on-grade and have a professional engineer design, certify, and oversee construction of a sub-slab vapor mitigation system. Such sub-slab vapor mitigation systems may be active or passive. Such systems must comply with best practices as established by the MDEQ in the most current version of the Montana Vapor Intrusion Guidance. The licensed professional engineer must certify such system as designed and installed will meet industry best practices for 3 mitigating vapor intrusion. Bridger Vale declares for itself and on behalf of its successors and assigns it must maintain in good working condition such sub-slab vapor mitigation systems and adhere to the Montana Vapor Intrusion Guidance recommendations for post- construction testing, maintenance, and monitoring. Any future covenants established on the Property must include the above requirements. f. Excavation activities: Bridger Vale, and its successors and assigns, must inform (and keep records of such communication) all persons disturbing or excavating the Property to construct any utilities or buildings that best practices for excavation of contaminated sites must be followed. Such best practices include but are not limited to: i. OSHA worker safety regulations; ii. Active venting of excavations; iii. If any excavation or disturbance of soil results in exposing or interacting with groundwater and such excavation or disturbance requires dewatering of the ground or removal of groundwater and disposal of groundwater off the Property, Bridger Vale must obtain all necessary environmental permits for such disposal. iv. Compliance with all City, state, and federal requirements for stormwater control during construction; and V. Any other requirement of a local, state, or federal agency established pursuant to a permit for activities on the Property. 3. Grant of Access for Dedicated Rights-of-Way Bridger Vale declares and agrees the City may without notice access all rights of way, parks, open spaces; and with reasonable notice to the then current landowner all privately owned land within the Property, for the purpose of monitoring and, if necessary, mitigating real or potential contamination. 4. Information Sharing Bridger Vale for itself and its successors and assigns declares and agrees to share information and data with the City and MDEQ resulting from monitoring. Such information sharing is to the benefit of both Parties and no compensation is due between the Parties for sharing of such information. 5. City as Intended Beneficiary of Covenants The City shall be entitled to enforce these covenants as an intended beneficiary thereof. Bridger Vale specifically agrees that the remedy of"specific performance" shall be available to the City in such proceedings. 4 6. Default Time is of the essence of this Agreement. If Bridger Vale shall default in or fail to fully perform any of its obligations in conformance with this declaration and the timeframes contained herein, and such default or failure shall continue for a period of thirty(30)days after written notice specifying the default is deposited in the United States mail addressed to Bridger at P.O.Box 930, Manhattan MT 59741-0930, or any other address as Bridger Vale shall provide to the City from time to time, without being completely remedied, satisfied, and discharged, the City may elect to enforce any remedy provided by law. 7. Modification or Alterations No modifications or amendment of this Declaration shall be valid, unless evidenced by a writing signed by the Parties hereto. 8. No Assignment It is expressly agreed that Bridger Vale shall not assign this Declaration in whole, or in part, without prior written consent of the City. Sale of individual lots after approval of the final plat of any future subdivision does not require prior written consent of the City. Bridger Vale may establish a property owners association to assume all duties and obligations of this Agreement without City's prior written consent; in doing so, Bridger Vale must provide notice to the City at the time such duties and obligations are transferred to the property owners association. 9. Invalid Provision The invalidity or unenforceability of any provision of this Declaration shall not affect the other provisions hereof, and this Declaration shall be construed in all respects as is such invalid or unenforceable provision were omitted. 10. Additional Terms The parties recognize these documents shall be filed and of record with the Gallatin County Clerk and Recorder at the same time as filing of the Annexation Agreement between the Parties. Bridger Vale declares the City may file these documents at any time.The undersigned Landowner affirms that they have authority to enter into this Declaration and to bind themselves to this Declaration. 11. Governing Law and Venue This declaration shall be construed under and governed by the laws of the state of Montana. In the event of litigation between the Parties, venue is in the Eighteenth Judicial District Court, in and for County of Gallatin, State of Montana. 5 12. Attorney's Fees In the event it becomes necessary for Bridger Vale or the City to retain an attorney to enforce any of the terms or conditions of this declaration,then the prevailing party shall be entitled to reasonable attorney's fees and costs, to include the salary and costs of in-house counsel including City Attorney. 13. Waiver No waiver by Bridger Vale or the City of any breach of any term, covenant or declaration shall be deemed a waiver of the same or any subsequent breach of this same or any other term, covenant or declaration. No covenant,term or declaration shall be deemed waived by either party unless waived in writing. 14. Successors This declaration shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective heirs, successors and assigns and specifically to any subsequent purchaser of the annexed property 15. Covenants to Run with the Land The parties intend that the terms of this declaration shall benefit the Property and shall be covenants running with the land and shall not expire upon transfer of ownership of the Property. These restrictive covenants apply in perpetuity and every subsequent instrument conveying an interest in all or any portion of the Property shall include these restrictive covenants. A property owner may request City approval to remove all or a portion of these institutional controls from the Property, and these institutional controsl or the portion thereof may be removed if the City determines an unacceptable to public health, safety, and welfare and the environment does not exist. 16. Filin This declaration shall be recorded in the Office of the Gallatin County Clerk and Recorder. **End of Agreement except for Signatures" 6 RI ER ALE LLC B : Andrew Ebbighausen STATE OF MONTANA ) :ss COUNTY OF GALLATIN ) On this 5 day of DEC— , 2018, before me, the undersigned, a Notary Public for the State of Montana, personally appeared Andrew Ebbighausen known to me to be thee;�Rv.�Cos� of Bridger Vale LLC, and acknowledged to me that he executed the same for and on behalf of Bridger Vale LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. (SEAL) . 11 E AKRISTA JO ASLIN�iNotary Public.ti for the State of Montana (Printe ame Here) • = Residing at:ea Bozeman, Montana Q My commission Expires: Notary Public for the State of ' March 01,2022� Residing at My Commission Expires: �b (Use 4 digits for expiration year) 7 CITY OF BOZEMAN By. City Manager , OF•g p2�, ATTEST: • ram, • ,C ,�'�.J{ • City Clerk z • 883 • ♦ �- . L�TIN CO APP OVED AS TO FORM: Citbzorney STATE OF MONTANA ) )ss. County of Gallatin ) On this (q �- day of 2018,before me, a Notary Public for the State of Montana,personally appeared ANDREA SURRATT, ROBIN CROUGH, and GREG SULLIVAN known to me to be the City Manager, City Clerk, and City Attorney respectively, of the City of Bozeman and the persons whose names are subscribed to the within instrument,and acknowledged to me that they executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. "A{ ) BRENDA SWEENEY Notary Public 'mom:,,oTARj,q for the State of Montana _ Residing at: y.SEAL. ,= Bozeman, Montana Notary Public for the State of Mo ana P' My Commission Eres: , , ,� )i December 02,2022 8