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HomeMy WebLinkAbout80- McMillan Easement - , , . ." . \ ~~.~ '.ci~; of Bozeman If~~[~i Fll~ 5[\rlGE1475 ':'~'~lt\t' 01 Mont., County of Gallatin. s?~,~q~, record September 25 ~,' i b 80,' aL.. 2: OQ_-X--M., aNd recorded in Book SRof, HISCE~LANEOUS~l : ,~pageliI5 _. .fuciUe a. 21UdQa. Recorder. By \In{1\ct~!L! 'lit,! L-,~ tt.bePLlt~ EASEMENT AND RIGHT OF WAY AGREEM~T FOR \ SEWER TRUNK THIS AGREEMENT, Made and entered into this 30 day of July A, D. 19i8..0... by and between Ca vour L. & Mary parties of the fi rst part, hereinafter Ellen McMillan called the Grantor s and THE CITY OF BOZEMAN, a municipal corporation of the State of Montana, in Gallatin County, the party of the second part, hereinafter called the Grantee. WIT N E SSE T H WHEREAS, The Grantorfi- are the 1 ega 1 record tit1 e owner of SP.P. attached Exhibit "A" more particularly described below, and WHEREAS, The Grantee, in the exercise of its power and authority as a municipality of the State of Montana, proposes to construct and install a sp.wer trunk __ and necessary appurtenances to serve various properties located within the Valley Unit Subdivision portion of the City of Bozeman and one or more such lines would run across the Grantors'land; and WHEREAS, The Grantee desires to acquire from the Grantor~, and the Grantor~~ willing to grant to the Grantee an easement and right of way across the above described property of the Grantor~, andtheir heirs, executors, administrators, successor.s and assigns, for the purpose of installing, operating, using, repairing, replacing, maintaining, and removing said sewer trunk and appurtenances and for such other rights of access and incidental rights as are hereinafter described, all as hereinafter more particularly pro- vided. NOW, THEREFORE. in consideration of the sum of $ 1. 00 and other considerations in hand ~id by the City of Bozeman. the receipt whereof is hereby acknowledged. and in further consideration of the covenants and agreements between the parties hereto, the Grantor s have granted. bargained. sold, conveyed. and confirmed and by these presents do hereby grant, bargain. sell. convey. and confirm unto the said Grantee and its successors and assigns the follow- ing rights and privileges forever: 1. A perpetual easement and right of way for the purpose of installing, operating. using. repairing. replacing, maintaining and removing a sanitary sewer thereto upon and across the above described property of the Grantor~. said easement and right of way to consist of a strip of land thirty (30) feet in width being Beginning at the northeast corner of Section 10, Township 2 South, Range 5 East, an iron pin found in place; thence North 89 degrees 46' 00" East, along the South line of Section 2, Township 2 South, Range 5 East, which is the centerline of Durston Road, a roadway by use, a distance of 150.00 feet; thence North 01 degrees 36' 27" East, a distance of 30 feet, to the north right of way of Durston Road to the true point of beginning; thence North 01 degrees 36' ~~71\ East, a distance of 1294.37 feet along the centerline 01 a 30 foot easement of which 15 feet each side of said centerline parallel and contiguous thereto, shall be granted as a permanent utility easement, with a 30 foot temporary construction easement parallel and contiguous to the west side of the permanent utility easement, f1U~ 5[3PAGEt476 2. The perpetual ~~ht of ingress and egres~ to and from .aid tracr.ef land at all reasonable times ror the purpose of installing. operating. using. repairing. replacing and maintaining said IO:PWf:n' trnnk and for the rerco'l1ing of same if and when desired by the Grantee. ttQ ~eea.ors and assigns: TO HAVE AND TO HOLD the above ueaeribed .ight of way vith all the appurteo...nees anrl privileges unto the said Grantee and to l~s successors and a~8igns forever. Tte Grantee hereby covenants alld agrees with the Grantor1L- as foUol's: 1. That. in connection with the inltalling, operating, using. repairing. replacing. maintaining and removing .of said SP.W0I:. trnnk __ it will replace. at its sole expense, all existing fences, ditches and other appllrtenance~ of saici land that may be disturbed by its operation 1,n a condition equal to the condition thereof existing before sOlid operations were begun. or a8 near thereto as shall b~ reasonably possible. 2. That, during operations involvint excavation. it will remove the to;.soil from th~ trench area to a depth of one foot. >r tr> d".~ full depth of the t0p~~il \-lhich~ver is less. and Btrckt)ile sai1 topsoil for replacemel1t oVer the trench. and ,,;i.11 rcmoy: frnl t.he site <1o.lY large rocks br $urp.lus e.:cavated r.uterial ~r any kind of debris that may have been exposed by the excavation and remaining after backfilling is ~c.lT\letp.d and will leave the finished surface in sub- stc::1Llly the same condi Uon that ~x:'.sted prior to the begin~ing of opecatiQns except that the surface of back- filled areas may be moundl~d sufficiently to prevent the for1flation of depressions afte'C final settlel1l.E'nt has taken place. 3. To opera(~, Ulle anet maintain $aid_~e~~....:tJ.:'UXlk.. ,__,___ in such. manner as idli not hi.nd~r ot prev~nt the proper cultivation of the tract tht'ough which this l.."igbt ,';If way is hereby granted. 4. In the event that it .hould become nece&sary r"'r the Grantee to re.enter the Grantors ~remiset for the purpose of repairing, replec1ng, maintaining O~ removing sa~d utility l:hl."'-s the Grantee will reimburse the G1('e.ntors for any actual Jamage done to the Grantors premisel O~ c~cps. .2. FILM 58 P~GE 1477 2A. In further consideration of the granting of this ease;lent by the Grantors unto the Grantee, Grantee COvenants and agrees with Grantors at the time of construction of the trunk sewer facil~~y to ':=u_= :.lsl"1 ana i.ns'ca:l or..e Cd wye on the Grantors' property at" a location to be agreed upon by and between Grantors and the City Engineer of and for the City of Bozeman, and in addition thereto, to waive any and all fee now or hereafter required for the con- nection of the single family residential dwelling presently exist- ing on Grantors' property, to the trunk sewer facility, notwith- standing the fact, however, that Grantors shall be responsible for, and pay for, the installation of any sewer lateral line from the single family residential dwelling presently existing on Grantors' property to the wye installed by Grantee, and further shall be responsible for and pay the monthly service charge for the ~Fe of the sewer facility. At such time as Grantors' real property is annexed to the City of Bozeman' and connected, if within the life of the bonds, Grantors or their successor in inter- est shall be responsible for and pay their proportionate share of the installation of the Special Improvement District known and generally described as the Original Farwest Trunk Installation as the same relates to the total cost of construction excluding any interest thereon. 2B. In this regard, the City of Bozeman acknowledges a prior right-of-way agreement with Grant~rs a~d T~e Monta~a Pcwe~ Core?any for an underground cathodic protection system. The sewer project may be placed in the same area of the prior agreement provided the installation shall not interfere with such prior agreement and is compatible therewith. Further, Grantors reserve the right to use the surface area over this easement area for roadway purposes, for its heirs, personal representatives and assigns. 2{a) 5. fiLM 58 PAGE 1478 The Grantor~ hereby c~venants and agrees with the Grantee as follows: 1. That at no time will they build, construct, erect or maintain any permanent structure over or above the said sewer trunk unless such structure is built, constructed and maintained in such a manner that it would not interfere with the operation, use, repair, maintainence, replacement and removal of said sp.wp.r trlln k 2. That the Grantee may peaceably hold and enjoy the rights and privileges herein granted without any interruption by the Grantor...s. or tl1.e.ir successors and assigns. 3. That they have been lawfully seized of said premises; that they have good right and lawful authority to sell the same and that they and their heirs, executors, administrat~rs, successors and assigns, shall warrant and defend the title to said premises unto said Grantee, and its successors and assigns forever, against the lawful claim and demand of all persons whomsoever. It is understood and agreed by and between the parties hereto that this Agreement shall be binding upon the heirs, executors, administrators, successor and assigns of the Grantors and upon the successors and assigns of the Grantee. -3- , , fiLM 58PAGE:t479 IN WITNESS WHEREOF, The said parties of the first part have hereunto set their hands and seals the day and year first above written. STATE OF MONTANA 58 County of Gallatin) On this ~ day of public in and for said State, Ma.rs-. Ell en ...McM..iJ..l an name Rare instrument, and ccknowledged executed the same. . :', r: t' l~._ .,' ~., ", "'~f* ~111.. ~;n.1 .. l. ....? "'~ ~." :,:'1,.-.~ ~ fI",."",r ..~! "' " - r. ,.,'"i.<t ; *; (~..' . ",' t.."" ~ ", ~4, ~"'" ~" r .~ ;"", .' 4., "."", 4 ~. ., ~"..t.".. "', r~ ',,,, "'0....... "l'j ~ r GRANTORS: j( j" ~ - I" ; .,- ( It t '"N ~ f..f,/~ 1i..!I;-=-. Cavour L. McMillan 19X8Q before me, <'1, notarv personally --:pp;:~arc!d .,_.s:a~o!:l,E~~~_~illan known ta me to be the person~ whose subscribed to the within to me that they / . <'-'/ /' ." -.""./ ~- ~~:~-~lLi~::~~~~if~;-nttTl;n Residing at Bozeman, Montana My COHunission Expires"~>;>: ,j/' '. ./ ----..-'~--"--"----,..-.----.-------_t.:_:.:~.--,- . I..; ~ . . . . FILM 58 PAGE:!480 THE CITY OF nOZEh/\i~ ;~y , d-_h~.~/--- ',j~~t '.',/~ 0 r ,'l'iB~;T : ~-'/~ _.- /"'C' ____ /." ("'. . .f=-_:.~_~__ _-:.... ~;r:uc.:;;I~:....._.__ '- P . \i. ,j,'\;',:. (;Ji~:' ~ C::f>r~{ ~f t'"le C-{Ly C":~..Tl;f~ssi.cr~ ,~ ."'1'''" , .\. ~ '\,. '>., '-..,J .- t ~- ~ - - ., -. .-" ~,~p'" - .., .... . .t"/'.......'0.~-.. ,', -~'..1 \\ ' '. "/ ~ !fr, - ',' , 8:J ~.... v _,"II rr', "" 't.. . ,:" t, PPR:YF: . --();I/~- cil::'torney ""!'" " .;>. .I .l STATE OF MONTANA ) as County of Gallatin) Or; tell ':_~Q~ dllY of ._____~~, E\j((\ befNe lOt" the 1.!ndtC,t'f:igl,(>'d il [.:oL"ry Publ'!.c for tb,e Stnte cd' ~':"~Ci"',''l rId, pcr:Wll!:'laL.y. app""'l"<:' &.. . ." ,5, Jill'. j,;..J_. ,. Lv. 1/ (2, (-~j": iUk",,;!, . ,l",,,,,,,_~_,,,,..______,,._._, ~ __JJ.WaJ;".___:r::..____. ..,(['-_...~_.._-..'''-4''1- t.n 'I," to "\ th~ :1ayol: and Cl'''-K-,f thl~ City C,)mr,lir.flUYl respecttvely, <,t t:' (J,~~",' ~~ nC7.;$::r!lfL. W'h0~:"(: ~\1'01..~:,-':; lir_-::' ~.:l~j...i~.-:..' t,}J..':,d t:.() ':..',!'l~~ \-Jithin i,il,'- t:\"'~lnh.:~r\,[ d'rl(( J=jJT..k~~(.~\~.,t,L~lged tL,' ~;j~' tl"'-,:it th,',,:.,:y 0.';"f.'~\,~,u~:,e',~l tl.:,e sam(~ for :"1-:1 ("\, i"il'tH,1.f or f'aid C:!. H: vrTm:~:;S~lnUU::O~:'. l:-wl' h:'c;:: :it.:O :')~~::: ny hw::d "tod ai'r; >',;;.1 [r~, tlcv,ti.n Sf_I! on tLe d<1j '.icd J'e,n:' I.ll Udr, ,:enl;:.l-i,,:;H'(: fir"t dD,~ve ~"TJtt(:>n. , .;\' ~: .! it"", I... ':, \, ~\ 0 ~ ';:"i" ..."....ll, ~ ~ .,...." " .~ '.." V_l'.~... ,.-..,,;1,1.-' I'll.:"? \. . ,l\- H1li.<.!-/I'. ~ -' .' '.lii. ~ -: _.,.SJ5~~) : ,~. .'" .~.;, ,~.~~~.~~:~~.../ " ,g'--,-....---.-...-----.,-- Notary, 'ublic for the State of M(:mt:aHB Residing at Bozpm.:ill. ~'ioql:ana My Cnmmiss:!.on EXjJire~ c-/4.J.........'--~r-,.Js.J t SEE LETTER OF UNDERSTANDING ATTACHED. , 'f.. I ili ~~ r' (7, ~~ ~M lij~ ~ .~ ~ ~ ~ \r) ~ ~ ~ " ~~ ~~\.. \j ~'IJ " ,.... ,,\\J ~ . " ~ ~ ~ [ ~ ~- ~- rQ \, ~ ~ '-oJ ~ ~/&15 . \ ~ ';} t\J ~ NE' CORNER SE.~/OAJ /0 Tl-IOMA S .t1' Rt:>13E. ., ' , , . CO;1/~ T ""'-.4/C' T/ON eA.:1'eMe/\l7' PEA"'MA/Y€/'Ir EA~EMENr 249.!!3,zo' COVSTRUCT/OA/ S45EMENT , , , ~ ~ ~ ~ , -3 ~~ /6' ~~ /s.- \J~ ~.~ /..5' \ri /5' AI ~9" ."I-~'// "u ~~!!o%4 .:iORNERM 58 PAGE:1481 ri"" CF eA XTE"R . I II: T ~5 c:Jc:J/ ~ " /::r' ~ /:5 /6/ '(h ~ /6' ~ ~ ~ ~ " '} 0\ ~ I[) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ \J .4- ~R.44AVEM EA5EMEIVTr30: ~ PERMANEN/ E45EMEMT(30) CON5TRUC770IV EA5~MENT /.3 ..,cO. Zt?' /YO/-.!!tJ:J'Z 7"c CONSTRUCT/ON EASEMENT ~ V1 ~ Cfj ~ ~ ~ ~ ~ ~ 3cf /5' 7-25 RSe: /\/0 '5CALE LEGEA/D COA;5TRUCTIO/V EASc-ME'"NT l PERMAAlGNr .c:::4 ~A--;fE;\.,.I'T" .;t' OF J1/ DU~ Exhibit "A" SEWER TRUNK EA5E/14FNT VALLEY UNIT 5UBD/V/5/0N In consideration for Mr. and Mrs. McMillan's execution of the easement and right-of-way agreement for sewer trunk, it is agreed by the City of Bozeman that in the event McMillan's request con- nection to the sewer trunk being constructed, to their current residence located on a tract of land consisting of 3.54 acres and located in the southeast quarter the southeast quarter of Section 3, Township 2 South, Range 5 East, M.P.M., that the only waiver of protest for an annexation applicable to the McMillans, would be as to the 3.54 acres of property being served and that no waiver of The purpose of this Letter of Understanding is to set forth a specific agreement between the City of Bozeman and Mr. and Mrs. McMillan which agreement would be contained in this Letter rather than in the easement itself. The City of Bozeman has requested of Cavour L. and Mary Ellen McMillan their execution of an easement and right-of-way agreement for sewer trunk to serve various properties located within the Valley Unit Subdivision in the City of Bozeman, which proposed easement was tendered by the engineering firm of Thomas, Dean & Hoskins, Inc. by letter dated May 22, 1980. Thereafter, nego- tiations have been conducted between the parties. As a result, Mr. and Mrs. McMillan have agreed to execute such an easement and right-of-way agreement for sewer trunk subject to a cash settlement with the developer, Virgil Jahnke, and subject to the approval by the City of Bozeman of this Letter of Understanding. LETTER OF UNDERSTANDING Re: Easement and right-of-way for sewer trunk for Valley Unit Subdivision - Cavour L. and Mary Ellen McMillan City of Bozeman City Hall Bozeman, Montana July 3, 1980 TELEPHONE: (405) 585-4311 BOZEMAN. MONTANA 59715 P. O. BOX 1168 JAMES H. MORROW. JR. EDMUND P. SEDIVY, JR. THOMAS A. OLSON JOHN P. SCULLY E, EDWIN ECK, II PROF~SSIDNAI- CORPORATION LOCATION: F'IRSl' SECuRI'1'V aANK BUII...OING 206 EAST MAIN BOZEMAN, MONTANA 59715 MORROW, SEDIVY, OLSON & SCULLY LAW OFFICES . 58 PAGE 1482 fILM , .. It ~~i 7, . /:' ,ll.i(~-?'-~ DATED this 30 day of July, 1980. (~i- J-- )-}-,-", ._ B DATED this 30 day of July, 1980., ----\) /d- 7 ~./ / / ,:1U! it' ,'/1- This agreement shall be binding upon the parties hereto, their heirs, successors, personal representatives and assigns. __ It is further understood and agreed that the McMillans may request connection to their home located on the 3.54 acre tract and that such connection would be approved by the City of Bozeman with waiver of protest for annexation to the 3.54 acre tract. protest of annexation would be enforced against the McMillans, their heirs, personal representatives or assigns as to their remaining lands located in the same vicinity unless and until said remaining lands were being served by the sewer trunk through actual connections. Letter of Understanding Page Two July 3, 1980 . . 58 PAGE 1483 . fllM . , , " .. '. .,..