HomeMy WebLinkAbout05-06-19 City Commission Packet Materials - C6. Sewer Agreement with Wallace-Babcock Properties for S. Wallace
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Kellen Gamradt, Engineer II
Shawn Kohtz, City Engineer SUBJECT: South Wallace Sewer Agreement and Conditional Irrevocable Offer
of Dedication
AGENDA ITEM TYPE: Consent MEETING DATE: May 6, 2019
RECOMMENDATION: Authorize the City Manager to sign the Wallace Sewer Agreement
and Conditional Irrevocable offer of Dedication for Improvements to the sanitary sewer collection system in South Wallace Avenue.
BACKGROUND: Wallace-Babcock Properties, LLC has applied to the City for approval to
undertake development of a property located at the southwest corner of East Babcock Street and
South Wallace Avenue (lot 13A, Block A, of Rouse’s 2nd Addition). As a condition of the development, the developer must make improvements to the sanitary sewer main in South Wallace Avenue from Babcock Street to Main Street. The irrevocable offer of dedication will
transfer ownership of these improvements from the developer to the city. The Sewer agreement
explains that this area of Wallace is inside the Bozeman CMC Asbestos Facility and is subject to
the Montana DEQ rules and regulations over the facility. The agreement is written to place liability on the developer to meet the requirements of the asbestos facility.
UNRESOLVED ISSUES: None
FISCAL EFFECTS: None
ALTERNATIVES: As suggested by the City Commission.
Attachments: Wallace Sewer Agreement, Conditional Irrevocable Offer of Dedication
166
CITY OF BOZEMAN WALLACE SEWER AGREEMENTTHIS AGREEMENT is made and entered into this 1^^ day oi _^W^_^, 2019,by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporationorganized and existing under its Charter and the laws of the State of Montana, 121 North RouseStreet, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771,hereinafter referred to as "City," and, Wallace-Babcock Properties LLC hereinafter referred to as"Developer."WHEREAS, the Developer desires to complete certain public and private improvementsto benefit its development project Site Plan Development Application 17-263, Wallace andBabcock Building (the "Development") and the City desires to make the developer aware of therisks involved with construction of the associated public infrastructure; andWHEREAS, the City and the Developer desire to set forth the terms of their agreement inwriting.NOW THEREFORE, In consideration of the mutual covenants and agreements hereincontained, the receipt and sufficiency whereof being hereby acknowledged, the parties heretoagree as follows:1. Incorporation: The foregoing recitals of this Agreement are contractual and are herebyincorporated by reference.2. The Project: The construction of improvements (the "Project") consists of installation ofapproximately 400 LF of sanitary sewer in South Wallace Avenue to connect in MainStreet. Prior to construction the Developer must submit to the City Engineering Division afinal set of Plans and Specifications for the Project and receive approval of the Plans andSpecifications from the City's Engineering Division. No occupancy of any structure to bebuilt on the Development will be authorized until the City Engineering Division performsa final inspection, receives final certification by the Developer's engineer, and approvesthe final Project per the process defined in the City of Bozeman Design Standards andSpecifications Policy.Page 1 of 4167
Terms:The whole of the work within the South Wallace Avenue right-of-way will be within theCMC Bozeman Asbestos CECRA Facility.The developer must retain a certified asbestos remediation consultant to oversee allconstruction activity within the asbestos facility.The developer must obtain all required permitting and/or approvals through the MontanaDepartment of Environment Quality (DEQ) prior to the start of any construction activitywithin the asbestos facility.The developer must follow the Final 2016 Voluntary Cleanup Plan Remediation Proposalfor the CMC Bozeman Asbestos CECRA Facility.o As required with the remediation plan, all Asbestos Containing Waste ("ACW")(soil and any other associated materials impacted by asbestos) excavated from thefacility by Developer will be removed and disposed at the Valley View Landfill, aClass II landfill in Montana City, Montana.o As required with the remediation plan confirmation sampling of soils left in-placewill be performed in all areas where ACW was removed by Developer per methodsoutlined in the Sampling and Analysis Plan and Quality Assurance Project Plan(SAP/QAAP) (Appendix G to the Amended VCP).The developer must coordinate with all work within the Facility with the City ofBozeman.Risks:• The financial responsibility of asbestos remediation incurred due to the Project, includingbut not limited to DEQ site response oversight costs, shall be the sole responsibility of thedeveloper.The developer recognizes that if the limits of asbestos remediation specifically required forthe Project extend beyond the indicated work limits all additional remediation effortsincurred due to the Project are also the responsibility of the developer.• The City will not issue an occupancy permit for of the building without an approvedconstruction completion report from the Montana DEQ.The Orphan Share Reimbursement for asbestos remediation pursuant to §§ 75-10-742 et.seq., MCA, is not guaranteed for this project and is subject to the availability of OrphanPage 2 of 4168
Share Funds. All remedial action costs specifically incurred due to the Project, includingthose incurred by DEQ, shall be paid in full by Developer. Subject to DEQ requirementsand approvals, the City, at the request of the Developer, may submit claims on behalf ofDeveloper against the orphan share fund for the Orphan Share's proportional share of thosecosts. The Developer shall reimburse the City for time and costs spent on such claims.3. Contracts for Design and Construction of Project: The Developer must retain a licensedprofessional engineer to provide construction inspection and oversight services for theProject and retain a licensed and qualified contractor to construct the Project. TheDeveloper is solely responsible for selection and hiring of the engineer and contractor.4. Amendment and Waiver: This Agreement may only be amended or modified by a writtenagreement signed by the City and the Developer. No waiver by any party hereto of anyprovision or breach of, or default under, this Agreement shall be deemed to have been madeunless the same is in writing and signed and delivered by the party charged with makingthe waiver, and no waiver of any provision or breach of, or default under, this Agreementshall be deemed a waiver of any other provision or breach of, or default under, thisAgreement.5. Representations and Warranties: Each party represents and warrants to the other that:a. Execution of this Agreement does not violate any agreement, bylaw, statute orordinance binding on or applicable to such party; andb. The individual executing this Agreement on behalf of the party is dulyauthorized and empowered to execute this Agreement for the party, andfollowing execution and delivery by both parties this Agreement will be alegally binding obligation of the party, enforceable against the party inaccordance with its terms.6. Choice of Law and Venue: This Agreement shall be governed by, and interpreted under,Montana Law, without regard to conflict of law principles. Mandatory and exclusivejurisdiction for any dispute shall be in the Eighteenth Judicial District Court, GallatinCounty, Montana.7. Severability: Each provision of this Agreement shall be considered severable and if forany reason any provision which is not essential to the effectuation of the basic intent of thisAgreement is determined to be invalid, such invalidity shall not impair the operation of oreffect those provisions of this Agreement which are valid.Page 3 of 4169
Dated this ft day of /^-/^ 201_?Wallace-BabcPr^ierties LLCBy: Peter R^Belschwendej^, Memberz_Sy: Gabriel Williams, MemberBy: Todd A. Smith, MemberDated this _ day of,201CITY OF BOZEMANBy: Andrea Surratt, City ManagerPage 4 of 4170
City ofBozeman Conditional IrrevocableOffer of DedicationThis Irrevocable Offer to Dedicate and Declaration of Restrictions (hereinafter "Offer") ismade this /^ day of /^^/^- 201_3; by WALLACE-BABCOCK PROPERTIES, LLC, aMontana limited liability company of 1283 North 14th Ave, Suite 101, Bozeman, Montana 59715(hereinafter referred to as "Grantor").WHEREAS, Grantor is the legal owner in simple fee interest of certain real properties locatedin the County ofGallatin, State of Montana, and described as Lot 13A of the Amended Plat of Lot 13,Lot 14, Lot 15A and Lot 16A, Block A of Rouse's 2nd Addition to Bozeman (Plat Reference: C-6-F)on file and of record in the office of the Clerk and Recorder of said County (hereinafter referred to asthe "Property") andWHEREAS, Grantor applied to the City of Bozeman (the "Municipality") for approval toundertake development as defined in Chapter 38.42, BMC within the City ofBozeman (hereinafterthe "Permit"); andWHEREAS, approval of Application no. 17263 was granted on May 1st, 2019, by theMunicipality in accordance with the provisions of Title 38, BMC, hereby incorporated by reference;andWHEREAS, Grantor wishes to meet the requirements of Title 38, BMC, to provide publicaccess and/or allow simultaneous construction of infrastructure and improvements which will later begranted to the Municipality, with the buildings, remaining improvements and land appurtenant theretoto remain in private ownership, as authorized in Section 38.39.030.C; andWHEREAS, the water and sewer improvements and street infrastructure appurtenant to and tobe installed or constructed on or under the above described lands, and infrastructure and/or intereststherein are to be dedicated to the Municipality, free and clear of all encumbrances, pursuant to saidfinal approval of the Permit; and,WHEREAS, it is intended that this Offer is irrevocable and shall, upon written acceptance bythe Municipality and final approval of the Permit referenced herein, grant all rights of use or accessfor maintenance and repair of the said improvements and infrastructure offered;NOW THEREFORE, in consideration of the granting of, and conditioned upon, the final171
approval for application no. 17263, the Grantor hereby offers to dedicate to theMunicipality, the sewer and water improvements and street infrastructure constructed or beconstructed upon the real property as specifically set forth, described and identified in the plans andspecifications issued or prepared by Bridger Engineers, Inc., 21 50 Analysis Dr., Ste. B, Bozeman, MTDEQ Project no. 18-1801 dated 3.12.2018 (DEQ)and 5.2.2018 (City ofBozeman Engineering) (withsubsequent approved revisions), which are by this reference incorporated in this instmment.1. Benefit and Burden. This Offer shall mn with and burden the Property and allobligations, terms, conditions, and restrictions hereby imposed shall be deemed to be covenants andrestrictions running with the land and shall be, upon the issuance of the final Permit reference herein,be effective limitations on the use and access of the Property by Grantor and shall bind the Grantorand all successors and assigns. This Offer shall benefit the Municipality only so long as saidimprovements and infrastructures for sewer and water exist on the Property.2. Construction and Validity. If any provision of these Restrictions is held to beinvalid or for any reason becomes unenforceable, no other provision shall be thereby affectedor impaired.3. Successors and Assigns. The terms, covenants, conditions, exceptions,obligations, and reservations contained in this Offer shall be binding upon and inure to thebenefit of the successors and assigns of both the Grantor and the Municipality, whethervoluntary or involuntary.4. Limitations. The construction and other standards adopted or utilized by the Cityof Bozeman regarding legal form, construction materials, warranty, and all other elementsrelating to improvements or infrastructure constructed or be constmcted pursuant to the Permitshall be fully applicable.5. Term. This irrevocable Offer of Dedication shall be binding for the duration ofFinal Site Plan approval process. Upon written acceptance of this Offer by the Municipality, thisOffer and the terms, conditions, and restrictions hereof shall exist in perpetuity, shall have theeffect of a grant by Grantor, subject to the conditions stated herein, and shall run with the landand be binding on the parties, their heirs, assigns, and successors, PROVIDED, HOWEVER,this grant shall be null and void if the Permit referenced herein is not granted and issued by theMunicipality on or before one year after the date of Final Plan approval or extensions of the dateof approval.WALLACE-BAcOPERTIES, LLCBy:Beleter^B^:>ehv^fder/ M^diberodd^SnyA^MetrfberBy:-•t-Gabriel Q^ Williams , Member172
State of^ADV\^V\(\ )County ofG^i^-hvn)On this j^day of Ay^t \201^ before me personally appeared PETER R.BESCHWENDER, GABRIEL Q. WILLIAMS and TODD A. SMITH, whose identity wasproved to me on the basis of satisfactory evidence to be the persons whose name is subscribedto this instmment, and acknowledged that they executed the same as Members of, and for andon behalf of WALLACE-BABCOCK, LLC, a Montana limited liability company.KETTI JO MARCOFF^^•''^. „'.''%'''/. .. Notary Public^^.^oTAn/^-.^^ for the State of Montana\ *p:. S KAL .•''<? ;: i=^i^Si^fir,?9^t;.^i^ART%S&&°S^s:August 24,2019Print Name: K€-H^ J6 M^^^-F-fSigned: Kfff^fY^OA^o^ —Notary Public f6r th^SJ:ate ofResiding at:My Commission Expires:ACCEPTED:CITY OF BOZEMAN, MONTANACity ManagerATTEST:City ClerkSTATE OF MONTANA )) ssCounty of Gallatin )On thisday of201_, before me, the undersigned, aNotary Public for the State of Montana, personally appeared ANDREA SURRATT and ROBINCROUGH, known to me to be the City Manager and City Clerk for the City of Bozeman,respectively, and the persons whose names are subscribed to the within instrument, andacknowledged to me that they executed the same for and on behalf of the City ofBozeman.IN WITNESS WHEREOF, I have hereunto set my hand and affixed my NotarialSeal the day and year first above written.(SEAL)Notary Public for the State of MontanaResiding at Bozeman, MontanaMy Commission Expires173