HomeMy WebLinkAbout04-23-18 City Commission Packet Materials - C9. ROW Permit with the USFWS Construction of Bicycle and Pedestrian Pathway
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Carolyn Poissant – Manager of Trails, Open Space and Parks
Design and Development
Mitch Overton – Director of Parks, Recreation and Cemetery
SUBJECT: Authorize City Manager to Sign Right-of-Way Permit for the Bicycle and Pedestrian Pathway to the “M” and Drinking Horse Mountain Project
MEETING DATE: April 23, 2018
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Authorize the City Manager to sign the Right-of-Way Permit issued by the Department of the Interior U.S. Fish and Wildlife Service for the Bicycle and Pedestrian Pathway to the “M” and Drinking Horse Mountain Project.
BACKGROUND: On October 28, 2013, Commission approved Resolution 4484, which
authorized the allocation of $600,000 from Trails, Open Space and Parks (“TOP”) Bond funds
for: “the Construction of a Pathway to the M and Drinking Horse Mountain and authorized the City Manager to enter into a Grant Match Agreement with the U.S. Department of
Transportation’s Federal Land Access Program for the amount of $527,406.” The required
federal National Environmental Policy Act public input process and associated surveys and
investigations were completed in order to develop a preferred path alignment concept. An
additional $75,000 was allocated to the project from the TOP bond on February 6, 2017.
A Right-of-Way Permit (Attachment A) is required to be executed for construction of the path
improvements on the site of the U.S. Fish and Wildlife Service’s Bozeman Fish Technology
Center. The terms and conditions of the permit have been reviewed by the City Attorney and
have been found to be acceptable.
UNRESOLVED ISSUES: An encroachment permit and maintenance agreement will need to
be obtained from the state of Montana Department of Transportation in association with final
design and engineering. The draft documents are currently being reviewed by MDT.
ALTERNATIVES: Per Commission.
109
FISCAL EFFECTS: None.
ATTACHMENTS:
Attachment A – Right of Way Permit including Exhibit A
Report compiled on: April 6, 2018
110
LA-Montana-Permits Davies, William J. (4); Davies, William J., et al. (5)
Bozeman Fish Technology Center City of Bozeman (M1)
RIGHT-OF-WAY PERMIT
PURPOSE: Construction of Bozeman to Bridger Mountains Trail
THE SECRETARY OF THE INTERIOR, through his authorized representative, the Regional Director, U.S. Fish and Wildlife Service, in accordance with applicable authorities and regulations published in 50 CFR 29.21 et. seq., and in consideration of the benefits accruing The
Bozeman Fish Technology Center (Center) as a result of trail construction and maintenance,
including increased public safety and transportation options to the Center, does hereby grant a
Right-of-Way Permit to The City of Bozeman (Permittee), to use and occupy certain lands of the Center, known as the Davies, William J. (4) and Davies, William J., et al. (5) tracts, in Gallatin County, MT, for the purpose of constructing and maintaining a multi-use, non-vehicular
trail, for 50 years or for so long as the land is used for the intended purpose, said lands more
particularly described as follows:
Township 1 South, Range 6 East, M.P.M. Portions of the Northwest Quarter of Section 34
The right-of-way contains 0.817 acres, more or less, and is further described and depicted in Exhibit A, attached hereto and made a part hereof.
By accepting this permit, Permittee agrees to the terms and conditions of Title 50 subpart 29.21-
4 and 29.21-8 as shown in Exhibit B, and Special Terms and Conditions as shown on Exhibit
C; attached hereto and by this reference made a part thereof.
Consistent with regulations at 50 CFR 25.21 (h), the Service reserves the right to modify terms and conditions of this permit in the future, as necessary to ensure the continued compatibility
with the use and occupancy of the land.
IN WITNESS WHEREOF, I have hereunto set my hand this ______day of _________, 2018.
DEPARTMENT OF THE INTERIOR
U.S. Fish and Wildlife Service
________________________________ Regional Director, Region 6
U.S. Fish and Wildlife Service
ATTACHMENT A
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ACKNOWLEDGMENT
STATE OF COLORADO
COUNTY OF JEFFERSON
On this day of , 2018, before me personally appeared
, Regional Director, U.S. Fish and Wildlife Service,
known to me to be the same person described in and who executed the foregoing instrument and
who acknowledges to me that they executed the same.
Notary Public
(Seal) My Commission Expires: ____________
The above instrument, together with all conditions thereof, is hereby accepted this ______ day of
________________, 2018.
City of Bozeman
By: ________________________________
Name: __________________________ (Print)
Title: ___________________________ (Print)
ACKNOWLEDGMENT
STATE OF:_______________________
COUNTY OF:_______________________
On this ________ day of _______________________, 2018, before me personally appeared ___________________________________and on behalf of The City of Bozeman, described to
be the same person described in and who executed the foregoing instrument and who
acknowledged to me that they executed the same.
Notary Public
(Seal) My Commission Expires: ____________
112
NUMBER
PARCEL
PURCHASER
OR
TITLE OWNER
Acres
OWNERSHIP
TOTAL
Acres
R.O.W.
TOTAL
Acres
R.O.W.
EXISTING
Acres
ACQUIRED
TO BE
R.O.W.
Acres
REMAINDER
Acres
EASEMENT
CONSTRUCTION
TEMPORARY
NOTE:
0 100 200 300100
Scale in feet
50
VOLNEY E STEELE
0
8.380
0
0
0
0
0
0026
US FISH & WILDLIFE SERVICE
0
160.000
0
0.817
0
159.183
0
029
ROBERT F & CYNTHIA L CRAYTON
0
2.815
0
0.183
0
2.632
0028
JAMES C & JANET SIMMONS
0
40.000
0
0.900
0
39.100
0
027
MONTANA
GALLATIN COUNTY
MT DOT 86(1)
MOUNTAINS TRAIL
BOZEMAN TO BRIDGER
RIGHT-OF-WAY PLAN SHEET
VANCOUVER, WASHINGTON
WESTERN FEDERAL LANDS HIGHWAY DIVISION
FEDERAL HIGHWAY ADMINISTRATION
U.S. DEPARTMENT OF TRANSPORTATION
ftp://198.145.188.2/std_plan/mt08601jh.dgn [Int_ft2D]8
STATE PROJECT NUMBER
SHEET
SHEETS
TOTAL
8MTDOT 86(1)30-Jun-2016 12:30 PM Daniel Schandel --/----08/2015Checked by:Designed by:N
1620+50.00
END OF PROJECT
IR
BOUNDARY MARKER
AC
IRAC
BOUNDARY MARKER
IR
BOUNDARY MARKER
IR
IR
IR
BOUNDARY MARKER
IR
IRIR
BOUNDARY MARKER
boundary control monument descriptions
See Right-of-Way Vicinity Map sheet 3 for
T. 1 S., R. 6 E.
Sec. 33
41NE41SE
T. 1 S., R. 6 E.
Sec. 34
41NW41SW
1612+75.00
1613+35.00
1
3.
7'
1
3.
5'
33 34
of Section 34.4
1532.27' from the W
Vertical Datum: NAVD 88 Geoid 12A
Coordinates (2500) NAD83(2011) Epoch 2010.000
Horizontal Datum: Montana State Plane
Project Units: International Foot50.00'
1
609+94.71
4
5'
45'
30'45'30'45'
6
0'
1
6
1
6
+
0
0.
0
0
6
0'
1
6
1
3
+
4
7.
6
4
4
0'16
13
+
3
9.9
7
4
0'
1
6
1
1
+2
1.
9
8
4
0'50'50'1605+89.7050'3
0'
027
026
028
029
D
R= 200.00'
T= 20.75'
L= 41.34'
D
R= 1,076.00'
T= 207.43'
L= 409.84'
D
R= 200.00'
T= 7.99'
L= 15.97'
D
R= 200.00'
T= 7.54'
L= 15.07'
D
R= 1,000.00'
T= 85.39'
L= 170.36'
D
R= 100.00'
T= 37.42'
L= 71.61'PC 1602+91.76PT 1603+33.11PC 1605+89.70PRC 1609+99.54PT 16
10+1
5.
5
2PC 161
1+0
6.92PT
1
6
1
1
+2
1.
9
8 PC
1
6
1
7
+2
5.
2
8 PRC 1618+95.64PT 1619+67.24POT 1620+50.44
16051
6
1
0
1
6
1
5
1620
113
EXHIBIT B
50 CFR 29.21-4 Terms and Conditions
(a) Any right-of-way easement or permit granted will be subject to outstanding rights, if any, in third parties.
(b) An applicant, by accepting an easement or permit agrees to such terms and conditions as
may be prescribed by the Regional Director in the granting document. Such terms and
conditions shall include the following, unless waived in part by the Regional Director, and may include additional special stipulations at his discretion.
(1) To comply with State and Federal laws applicable to the project within which the easement
or permit is granted, and to the lands which are included in the right-of-way, and lawful existing
regulations thereunder.
(2) To clear and keep clear the lands within the easement or permit area to the extent and in the
manner directed by the Refuge manager in charge; and to dispose of all vegetative and other
material cut, uprooted, or otherwise accumulated during the construction and maintenance of the
project in such a manner as to decrease the fire hazard and also in accordance with such instructions as the Refuge manager may specify.
(3) To prevent the disturbance or removal of any public land survey monument or project
boundary monument unless and until the applicant has requested and received from the Regional
Director approval of measures the applicant will take to perpetuate the location of aforesaid monument.
(4) To take such soil and resource conservation and protection measures, including weed control
on the land covered by the easement or permit as the Refuge manager in charge may request.
(5) To do everything reasonably within his power, both independently and on request of any
duly authorized representative of the United States, to prevent and suppress fires on or near land
to be occupied under the easement or permit area, including making available such construction
and maintenance forces as may be reasonably obtainable for the suppression of such fires.
(6) To rebuild and repair such roads, fences, structures, and trails as may be destroyed or injured
by construction work and, upon request by the Regional Director, to build and maintain neces-
sary and suitable crossings for all roads and trails that intersect the works constructed, main-
tained, or operated under the right-of-way.
114
(7) To pay the United States the full value for all damages to the lands or other property of the
United States caused by the holder or his employees, contractors, or employees of the
contractors, and to indemnify the United States against any liability for damages to life, person,
or property arising from the occupancy or use of the lands under the easement or permit, except where the easement or permit is granted hereunder to a State or other governmental agency
which has no legal power to assume such a liability with respect to damages caused by it to lands
or property, such agency in lieu thereof agrees to repair all such damages. Where the easement
or permit involves lands which are under the exclusive jurisdiction of the United States, the
holder or his employees, contractors, or agents of the contractors, shall be liable to third parties for injuries incurred in connection with the easement or permit area. Grants of easement or
permits involving special hazards will impose liability without fault for injury and damage to the
land and property of the United States up to a specified maximum limit commensurate with the
foreseeable risks or hazards presented. The amount of no-fault liability for each occurrence is
hereby limited to no more than $1,000,000.00.
(8) To notify promptly the Refuge manager in charge of the amount of merchantable timber, if
any, which will be cut, removed, or destroyed in the construction and maintenance of the project,
and to pay the United States in advance of construction such sum of money as the Refuge
manager may determine to be the full stumpage value of the timber to be so cut, removed, or destroyed.
(9) That all or any part of the easement or permit granted may be terminated by the Regional
Director for failure to comply with any or all of the terms and conditions of the grant, or for
abandonment. A rebuttable presumption of abandonment is raised by deliberate failure of the holder to use for any continuous 2-year period the easement or permit for the purpose for which
it was granted or renewed. In the event of noncompliance or abandonment, the Regional
Director will notify in writing the holder of the easement or permit of his intention to suspend or
terminate such grant 60 days from the date of the notice, stating the reasons therefore, unless
prior to that time the holder completes such corrective actions as are specified in the notice. The Regional Director may grant an extension of time within which to complete corrective actions
when, in his judgment, extenuating circumstances not within the holder's control such as adverse
weather conditions, disturbance to wildlife during breeding periods or periods of peak
concentration, or other compelling reasons warrant. Should the holder of a right-of-way issued
under authority of the Mineral Leasing Act, as amended, fail to take corrective action within the 60-day period, the Regional Director will provide for an administrative proceeding pursuant to 5
U.S.C. 554, prior to a final Departmental decision to suspend or terminate the easement or
permit. In the case of all other right-of-way holders, failure to take corrective action within the
60-day period will result in a determination by the Regional Director to suspend or terminate the
easement or permit. No administrative proceedings shall be required where the easement or permit terminates under its terms.
(10) To restore the land to its original condition to the satisfaction of the Regional Director so
far as it is reasonably possible to do so upon revocation and/or termination of the easement or
115
permit, unless this requirement is waived in writing by the Regional Director. Termination also
includes permits or easements that terminate under the terms of the grant.
(11) To keep the Refuge manager informed at all times of the holder’s address, and, in case of corporations, of the address of its principal place of business and the names and addresses of its
principal officers.
(12) That in the construction, operation, and maintenance of the project, the holder shall not
discriminate against any employee or applicant for employment because of race, creed, color, or national origin and shall require an identical provision to be included in all subcontracts.
(13) That the grant of easement or permit shall be subject to the express condition that the
exercise thereof will not unduly interfere with the management, administration, or disposal by
the United States of the land affected thereby. The applicant agrees and consents to the occupancy and use by the United States, its assigns, grantees, permittees, or lessees of any part of
the easement or permit area not actually occupied for the purpose of the granted rights to the
extent that it does not interfere with the full and safe utilization thereof by the holder. The holder
of an easement or permit also agrees that authorized representatives of the United States shall
have the right of access to the easement or permit area for the purpose of making inspections and monitoring the construction, operation, and maintenance of facilities.
(14) That the easement or permit herein granted shall be subject to the express covenant that any
facility constructed thereon will be modified or adapted, if such is found by the Regional
Director to be necessary, without liability or expense to the United States, so that such facility will not conflict with the use and occupancy of the land for any authorized works which may
hereafter be constructed thereon under the authority of the United States. Any such modification
will be planned and scheduled so as not to interfere unduly with or to have minimal effect upon
continuity of energy and delivery requirements.
(15) That the easement or permit herein granted shall be for the specific use described and may
not be construed to include the further right to authorize any other use within the easement or
permit area unless approved in writing by the Regional Director.
116
EXHIBIT C
Special terms and conditions
(1) Upon completion of construction of the project, the Permittee shall remove all refuse and
other materials used and shall dispose of them in an acceptable manner.
(2) The Refuge Manager will be notified immediately in case of a hazardous spill on lands of the
United States and the Permittee shall be responsible for and shall begin immediate cleanup procedures.
(3) The Permittee shall cease all work and notify the Refuge Manager, the Regional
Archaeologist and the Montana Historic Preservation Officer immediately if, during the term of
this Right-of-Way Permit, any previously unrecorded historical or archaeological sites or artifacts, vestiges, or remains are encountered. Site and materials shall be protected from further
disturbance until they may be professionally asserted for their significance by the Montana
Historic Preservation Officer. Clearance to proceed will be granted following review of the
assessments and negotiation of any necessary mitigation agreements.
(4) No pesticides or herbicides may be used within the ROW area.
117