HomeMy WebLinkAbout16- Temporary Construction and Permanent Slope Easement - Bozeman Health - Parking Facilities Expansion After Recording,Please Return To:
Bozeman Deaconess Health Services
Attn:Cheryl Ridgely
915 Highland Boulevard Bozeman,Montana 59715 2558302
Page: 1 of 9 09/22/2016 10:30:4e AM Fee: $63.00
Charlotte Mills - Gallatin County, MT MIsc
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City of Bozeman
City Clerk
PO Box 1230
0ozeman, MT 59771-1230
TEMPORARY CONSTRUCTION AND PERMANENT SLOPE EASEMENT
The TEMPORARY CONSTRUCTION AND PERMANENT SLOPE EASEMENT is
granted this--% -day of }� r,2016,by the CITY OF BOZEMAN,a self-governing
municipality operating pursuant to its Charter and the laws of the State of Montana, 121 North
Rouse Avenue,Bozeman,Montana 59771,hereinafter referred to as"GRANTOR,"to
BOZEMAN HEALTH DEACONESS HOSPITAL, a Montana Non-Profit Corporation,with
address of 915 Highland Boulevard,Bozeman,Montana 59715,hereinafter referred to as
"GRANTEE."
WHEREAS,GRANTOR is the owner of certain real property(herein referred to as
described as the"PREMISES')in Gallatin County,Montana,being further described as
follows:
A tract of land located within the Northeast Quarter of Section 18,Township 2 South of
Range 6 East,M.P.M.,lying within the city limits of the City of Bozeman,Montana;and
being a portion of Prospect Hill Addition as recorded at Gallatin County,Montana,and
more particularly described as follows:
Beginning at a set iron pin and cap on the North line of Section 18 which bears N. 88'08'
W. a distance of 30.0 feet fiom a found iron pipe taken to be the Northeast corner of
Section 18;thence N.88°08' W. a distance of 1,266.1 feet to-a set pin and cap coincident
with the east right of way of the Ida Avenue and the North line of Section 18;thence S.
00°51' W.a distance of 442.1 feet to a set pin and cap on the east right of way of Ida
Avenue;thence S. 89°05'E.a distance of 1,204.4 feet to a set pin and cap on the west
right of way of Highland Boulevard;thence N. 10143'E.a distance of 22.0 feet to a set
pin and cap at the point of curvature of a circular curve to the left,with a radius of
1,571.96 feet,through a central angle of 1096',for a distance bf 290.8 feet to a set pin
and cap at the point of tangency;thence N. 00°07'E.a distance of 110.0 feet to the point
of beginning,according to the Amended Plat of Prospect Hill Addition to the City of
Bozeman,Gallatin County,Montana. (Plat No.C-39-A);and
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WHEREAS,GRANTEE is the owner of certain real property(herein referred to as
described as the"DOMINANT ESTATE")in Gallatin County,Montana,being further
described as follows:
Tract 1 of Certificate of Survey No.2047,City of Bozeman,Gallatin County,Montana,
(which includes Mortgage Survey No.M-348),according to the official plat thereof on
file and of record in the office of the County Clerk and Recorder of Gallatin County,
Montana,EXCEPTING THEREFROM all of the final plat of The Knolls At Hillcrest on .
file and of record in the office of the County Clerk and Recorder of Gallatin County,
Montana. (Plat Reference:J-483)and FURTHER EXCEPTING THEREFROM all of the
Amended final plat of The Knolls At Hillcrest on file and of record in the office of the
County Clerk and Recorder of Gallatin County,Montana. (Plat Reference: J-483-A);
and
WHEREAS, GRANTEE is preparing for construction of an expansion to its existing
parking lot located on the DOMINANT ESTATE(hereinafter referred to"Project"); and
WHEREAS,GRANTEE requires a temporary construction easement and a permanent
slope easement for construction and creation of slopes upon a certain portion of the PREMISES
to accommodate its parking lot expansion as further set forth and described below; and
WHEREAS,GRANTOR is not currently using the Slope Easement Area for park or
cemetery purposes; and
WHEREAS,GRANTOR finds the Slope Easement Area is currently unsuitable for
purposes of interment because of its slope,and grading the Slope Easement Area to make it
suitable for interments would be a substantial expense;and
WHEREAS,the Sunset Hills Master Plan,adopted by the City Commission on July 26,
2004,seeks to ensure at the perimeter of the cemetery property a"buffer of old growth trees and
trails,such that edge burial plots are as attractive as center plots";and
WHEREAS,the Slope Easement Area is adjacent to an existing Mutual Access
Easement along the southern property line,and GRANTEE plans to extend an existing paved
access drive within the Mutual Access Easement,to add landscaping and trees to the north of the
driveway,and to relocate the trail before completion of the Project;and
WHEREAS,GRANTOR finds maintaining a landscaped buffer area between cemetery
plots and adjoining properties and rights of way as planned by GRANTEE is a suitable cemetery
purpose;and
WHEREAS,GRANTOR finds the grant of a temporary construction easement and
permanent slope easement as described herein is in the public interest.
NOW,THEREFORE,for a valuable consideration,the receipt of which is
acknowledged,GRANTOR does hereby grant unto the GRANTEE and its successors and
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assigns,the easements upon a portion of the PREMISES as described herein and subject to the
covenants and conditions set forth herein below as follows:
1. Grant and Description of Temporary Construction.Easement. GRANTOR
hereby grants to GRANTEE,its successors and assigns,a temporary construction easement.
within the area depicted on Exhibit A as"TEMPORARY CONSTRUCTION EASEMENT"
(herein referred to as"Construction Easement Area")for the purposes of operating,storing, and
maintaining equipment and erecting and constructing a slope or slopes,and performing such
other operations as are required to complete the Project which easement shall terminate upon the
completion of the Project(hereinafter referred to as"Temporary Construction Easement"). It is
understood that this Temporary Construction Easement is needed to provide a work area required
in connection with the Project and that the GRANTEE's contractor will use the Construction
Easement Area in accomplishing the construction of the Project. All tools,equipment,
improvements,and other property taken on the PREMISES will remain the property of the
GRANTEE and its contractors and their respective successor,or assigns,and may be removed at
any time during the term of the Temporary Construction Easement.Earth slopes constructed on
the PREMISES in connection with the Project will not be removed by the GRANTEE.
2. Grant and Description of Permanent Slope Easement. GRANTOR further
grants to GRANTEE, its successors and assigns, a non-exclusive,permanent slope easement for
construction of slopes within the area depicted on Exhibit B attached hereto and incorporated as
herein by reference and referenced on Exhibit B as "PERMANENT MAINTENANCE
EASEMENT" (herein referred to as "Slope Easement Area") to lay, grade, construct,, install,
replace and remove soil materials for slope and drainage purposes in furtherance of construction
and use of the Project (hereinafter referred to as "Permanent Slope Easement"). GRANTOR
and its successors or assigns, shall not diminish or substantially add to the ground cover over the
Slope Easement Area. This grant of a Permanent Slope Easement includes the right of the
GRANTEE, its successors, permittees, licensees, and assigns and its and their agents and
employees, to enter at all times upon PREMISES by using existing roads or trails or otherwise
by a route causing the least damage and inconvenience to the GRANTOR for the purposes of
maintenance of the Slope Easement Area described herein.
3. Restoration. GRANTEE will keep the public property adjacent to the
Construction Easement Area, including trails,free from construction debris and other materials.
Upon completion of the Project,GRANTEE will restore the Construction Easement Area to its
original condition. GRANTEE will restore and repair any damage caused on the Slope
Easement Area or adjoining public lands resulting from the construction or reconstruction or
repair of said slope by GRANTEE.
4. Ongoing Maintenance of the Slope Easement Area. GRANTOR shall be
responsible at it sole cost and expense for ongoing maintenance of the Slope Easement Area after
completion of the Project,including,but not limited to,maintenance of any trails,roads,above
and underground utilities,and other improvements lying therein.
S. Reservation. GRANTOR,and its successors or assigns,reserve the right to use
and otherwise occupy the Slope Easement Area and Construction Easement Area of said
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PREMISES for any purpose,provided such use or occupation does not interfere with
GRANTEE's Permanent Slope Easement or Temporary Construction Easement.
6. Release. GRANTEE must release this Slope Easement upon the construction of
an approved development on the Slope Easement Area which provides the necessary subjacent
support and protection of the Project.
7. Indemnification. GRANTEE agrees to defend,hold harmless,and indemnify
the GRANTOR,its officers,elected officials and employees,their successors and assigns from
any and all suits,actions or liabilities which may occur by reason of injury to person and/or
property because of or due to the slope and/or GRANTEE,its employees,_agents,and/or
contractors or subcontractors' use of the easements described herein,unless caused by
GRANTOR's negligent or willful conduct or GRANTOR's failure to fulfill its ongoing
maintenance obligations as set forth in Section 4.
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 indemnitec(s)which would otherwise exist as to such indemnitee(s).
GRANTEE's indemnity under this Section shall be without regard to and without any
right to contribution from any insurance maintained by GRANTOR.
Should any indemnitee described herein be required to bring an -action against
GRANTEE to assert its right to defense or indemnification under this Agreement or under
GRANTEE's applicable insurance 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 GRANTEE 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 GRANTOR resulting from the GRANTOR's
obligations under this Agreement, the GRANTOR may elect to represent itself and incur all
costs and expenses of suit.
GRANTEE also waives any and all claims and recourse against the Owner 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.
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8, Modification. Neither party may modify the size,scope,location of the
easements granted herein without the prior written consent of both parties.
9. Taxes. GRANTOR shall continue to pay all relevant real estate taxes affecting
the PREMISES.
10. Enforcement. In the event it is necessary for either of the parties hereto to take
any action,judicial or otherwise,to enforce the terms.of the easements granted herein,it is
agreed that the easements granted herein shall be governed by,construed,and enforced in
accordance with the laws of the State of Montana; is binding and inures to the benefit of the
respective successors in interest and assigns;and the prevailing party shall be entitled to recover
their reasonable attorney's fees and costs from the non-prevailing party. .
11. Run with the Land; Binding Effect. The Permanent Slope Easement shall run
with the land and shall be binding upon the successors and assigns of the respective parties
thereto.
12; Controlling Law. This Easement Agreement will be governed by the laws of the
State of Montana. Venue for any action hereunder will be in the district court of Gallatin
County,Montana.
13. Entire Agreement; Merger of Previous UnderstandinE. This instrument
embodies and constitutes the entire understanding between the parties hereto with respect to the
transaction contemplated herein, and supersedes all prior or contemporaneous negotiations,
communications and promises,all of which are merged herein.
14. Severability;No Waiver. The invalidity or unenforecability of any provision of
this Agreement shall not affect the other provisions hereof,and this Agreement shall be construed
in all respects as if such invalid or unenforceable provisions were omitted. Should either party fail
to enforce a term of this Easement Agreement,it will not deemed be a waiver of a subsequent right
of enforcement,nor shall it be deemed a modification or alteration of the terms and conditions
contained herein.
15. Nondiscrimination. GRANTEE agrees that all hiring by GRANTEE of persons
performing this Agreement shall be on the basis of merit and qualifications. GRANTEE will
not discriminate in the fulfillment of its obligations under this Agreement on the basis of race,
color,religion,creed,sex, age,marital status,national origin,or actual or perceived sexual
orientation,gender identity or disability. GRANTEE will require these nondiscrimination terms
of its agents and subcontractors performing GRANTEE's obligations under this Agreement.
Executed the day and year as set forth above.
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GRANTOR:
CITY OF BOZEMAN
By: Chris A.Kukulski—City Manager
STATE OF MONTANA )
. ss.
County of Gallatin )
On this 20 day of Sr_Pa-f-ynW,2016,before me,the undersigned, a Notary Public
in and for the State of Montana,personally appeared Chris A.Kukulski as City Manager of the
CITY OF BOZEMAN known to me to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that he executed the same on behalf of the CITY OF
BOZEMAN.
In witness whereof,I have hereunto set my hand and affixed my notarial seal on the day
and year first above written.
PEARL MICHALSON
v••••;44SO; Notary Public
a.NoTnArq':y;for the State of Montana NOTARY PUBLIC FOR THE STATE OF MONTANA
ataFiaUe(riding at:
* SEA oze an,Montana
poy Commission Expires:
hoof Mari Maroh 10,2020
nn
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GRANTEE:
BOZEMAN HEALTH DEACONESS HOSPITAL
BY: G-Lt�G `
Gordon L.Davidson—CEO/CFO
STATE OF MONTANA )
ss.
County of Gallatin }
On this , day of , 2016, before me, the undersigned a Notary Public
for the State of Montana,personally appeared Gordon L.Davidson,known to me to be the CEO
and CFO of BOZEMAN HEALTH DEACONESS HOSPITAL, and known to me to be the
person whose name is subscribed to the above instrument and acknowledged to me that they
executed the same on behalf of BOZEMAN HEALTH DEACONESS HOSPITAL.
IN WITNESS WHEREOF, I have hereunto set me hand anc4 ai'fixed me Notarial Seal the
day and year first above written. /
KAT EH RINE MAL.IN
NOTARY PUBLIC for the NOT Y PUBLIC FOR THE TE OF MONTANA
•',g rialEft'of Montana
B*NOTAIn *= Miding at
SEAL �� Bozeman, Montana
My Commission Expires
January 30,2020
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PAYMENT AGREEMENT FOR TEMPORARY CONSTRUCTION EASEMENT
AND PERMANENT SLOPE EASEMENT
This agreement (the "Payment Agreement") is made and entered into this 19rday of
Sgnpk.�r.2016 by and between the City of Bozeman, a self-governing municipality operating
pursuant to its Charter and the laws of the State of Montana, 121 N. Rouse Avenue, Bozeman
Montana 59771 ("City") and Bozeman Health Deaconess Hospital, a Montana Non-Profit
Corporation,915 Highland Boulevard,Bozeman Montana 59715(`Bozeman Health"and together
with the City the"Parties"). In consideration of the mutual covenants set forth herein,and other
good and valuable consideration,the receipt and sufficiency of which is acknowledged,the City
and Bozeman Health agree as follows:
1. The City is the owner of certain real property("Property")in Gallatin County,being further
described as follows:
A tract of land located within the Northeast Quarter of Section 18,Township 2 South of
Range 6 East,M.P.M_,lying within the city limits of the City of Bozeman,Montana; and
being a portion of Prospect Hill Addition as recorded at Gallatin County,Montana, and
more particularly described as follows:
Beginning at a set iron pin and cap on the North line of Section 18 which bears N. 88°08'
W.a distance of 30.0 feet from a found iron pipe taken to be the Northeast coiner of Section
18;thence N. 88°08' W.a distance of 1,266.1 feet to a set pin and cap coincident with the
east right of way of the Ida Avenue and the North line of Section 18;thence S.00°51' W.
a distance of 442.1 feet to a set pin and cap on the east right of way of Ida Avenue;thence
S. 89°05' E. a distance of 1,204.4 feet to a set pin and cap on the west right of way of
Highland Boulevard;thence N. 10'43' E.a distance of 22.0 feet to a set pin and cap at the
point of curvature of a circular curve to the left, with a radius of 1,571.96 feet, through a
central angle of 10°36', for a distance of 290.8 feet to a set pin and cap at the point of
tangency;thence N.00°07'E.a distance of 110.0 feet to the point of beginning,according
to the Amended Plat of Prospect Hill Addition to the City of Bozeman, Gallatin County,
Montana. (Plat No.C-39-A)
2. The Property is subject to an existing 60-foot wide"Mutual Access Easement"along the
entire southern boundary of the Property as shown on the drawing attached as Exhibit A,
which is incorporated herein by this reference,and recorded with the Gallatin County Clerk
and Recorder's Office at Film 198 Page 3915.
3. Bozeman Health desires to expand its existing parking lot adjacent to the Property(the
"Project"). In preparing for the Project,Bozeman Health requested and the City agreed to
grant a temporary construction easement(the"Construction Easement") and a permanent
slope easement (the "Slope Easement") pursuant to an agreement entered into
contemporaneously with this Payment-Agreement(the"Easement Agreement").
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4. The Parties agree to the following as in-kind payment by Bozeman Health to the City for
the Construction Easement and Slope Easement:
a. Prior to completion of the Project,Bozeman Health will install landscaping,including
ground cover, at least twelve conifer trees, and an irrigation system along the
approximately 20-foot wide area shown as"Proposed Conifer Tree Buffer"on Exhibit
A.The final landscape and irrigation plan must.be approved in advance by the Director
of Parks and Recreation prior to installation. Bozeman Health will assume
responsibility for ongoing maintenance and irrigation of the.landscaped buffer.
b. Prior to completion of the Project, Bozeman Health will relocate the existing.gravel
trail to the north of the landscaped buffer, shown as "Proposed Trail Relocation" on
Exhibit A, to create a separation between the trail and Bozeman Health's parking lot
and lot access driveway.The City will assume responsibility for ongoing maintenance
of the relocated trail.
CITY OF BOZEMAN
By:
Title:
BOZEMAN HEALTH DEACONESS HOSPITAL
By: 61
Title: 17,,5 idtiw�(CGU ?.�V�tCt to �(�
2
PAYMENT AGREEMENT FOR TEMPORARY CONSTRUCTION EASEMENT
AND PERMANENT SLOPE EASEMENT
This agreement (the "Payment Agreement") is made and entered into this _10:�day of
kgJeXdJ2g 2016 by and between the City of Bozeman, a self-governing municipality operating
pursuant to its Charter and the laws of the State of Montana, 121 N. Rouse Avenue, Bozeman
Montana 59771 ("City") and Bozeman Health Deaconess Hospital, a Montana Non-Profit
Corporation,915 Highland Boulevard,Bozeman Montana 59715 ("Bozeman Health"and together
with the City the "Parties"). In consideration of the mutual covenants set forth herein, and other
good and valuable consideration, the receipt and sufficiency of which is acknowledged, the City
and Bozeman Health agree as follows:
1. The City is the owner of certain real property("Property")in Gallatin County,being further
described as follows:
A tract of land located within the Northeast Quarter of Section 18, Township 2 South of
Range 6 East,M.P.M., lying within the city limits of the City of Bozeman,Montana; and
being a portion of Prospect Hill Addition as recorded at Gallatin County,Montana, and
more particularly described as follows:
Beginning at a set iron pin and cap on the North line of Section 18 which bears N. 88°08'
W. a distance of 30.0 feet from a found iron pipe taken to be the Northeast corner of Section
18; thence N. 88°08' W. a distance of 1,266.1 feet to a set pin and cap coincident with the
east right of way of the Ida Avenue and the North line of Section 18; thence S. 00°51' W.
a distance of 442.1 feet to a set pin and cap on the east right of way of Ida Avenue;thence
S. 89°05' E. a distance of 1,204.4 feet to a set pin and cap on the west right of way of
Highland Boulevard;thence N. 10'43' E. a distance of 22.0 feet to a set pin and cap at the
point of curvature of a circular curve to the left, with a radius of 1,571.96 feet, through a
central angle of 10°36', for a distance of 290.8 feet to a set pin and cap at the point of
tangency;thence N. 00°07' E. a distance of 110.0 feet to the point of beginning,according
to the Amended Plat of Prospect Hill Addition to the City of Bozeman, Gallatin County,
Montana. (Plat No. C-39-A)
2. The Property is subject to an existing 60-foot wide "Mutual Access Easement" along the
entire southern boundary of the Property as shown on the drawing attached as Exhibit A,
which is incorporated herein by this reference,and recorded with the Gallatin County Clerk
and Recorder's Office at Film 198 Page 3915.
3. Bozeman Health desires to expand its existing parking lot adjacent to the Property (the
"Project"). In preparing for the Project,Bozeman Health requested and the City agreed to
grant a temporary construction easement(the "Construction Easement") and a permanent
slope easement (the "Slope Easement") pursuant to an agreement entered into
contemporaneously with this Payment Agreement(the"Easement Agreement').
1
4. The Parties agree to the following as in-kind payment by Bozeman Health to the City for
the Construction Easement and Slope Easement:
a. Prior to completion of the Project, Bozeman Health will install landscaping, including
ground cover, at least twelve conifer trees, and an irrigation system along the
approximately 20-foot wide area shown as"Proposed Conifer Tree Buffer"on Exhibit
A.The final landscape and irrigation plan must be approved in advance by the Director
of Parks and Recreation prior to installation. Bozeman Health will assume
responsibility for ongoing maintenance and irrigation of the landscaped buffer.
b. Prior to completion of the Project, Bozeman Health will relocate the existing gravel
trail to the north of the landscaped buffer, shown as "Proposed Trail Relocation" on
Exhibit A, to create a separation between the trail and Bozeman Health's parking lot
and lot access driveway. The City will assume responsibility for ongoing maintenance
of the relocated trail.
CITY OF BOZEMAN
By: ,
Title:
BOZEMAN HEALTH DEACONESS HOSPITAL
Title: aG�ulw}�
2