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HomeMy WebLinkAbout3.2_Stormwater Easement June 9, 1999 STORM WATER DRAINAGE EASEMENT AGREEMENT' w The agreement is entered into between Philip Saccoccia, Jr., whose address is 991 East Beach, Pass Christian, Mississippi 39571 (referred to in this deed as "Saccoccia"), and Bridger Peaks, LLC, a limited liability company formed under the laws of the state of Delaware whose address is P.O. Box 16101, Missoula, Montana 59802 (referred to in this deed as the "Grantee"). WHEREAS,Saccoccia is the ownerof the real property located in Gallatin County,Montana, described as follows (which property is referred to in this deed as the "Saccoccia Property"): Tract 4B-1 of Certificate of Survey No. 1215D, located in the NW'/4 of Section 1, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana. Tract 1B of Certificate of Survey No. 1215A, located in the NW'/4 of Section 1, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana. WHEREAS, the Grantee is the owner of the real property located in Gallatin County, Montana, which is bordered on the north and the east by the Saccoccia Property, and which is described as follows (which property is referred to in this deed as the "Grantee's Property"): Lots 1-11 of Bridger Peaks Town Center, tracts of land being Tract 4A-1 of Certificate of Survey No. 1215D, located in the NW'/. of Section 1, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana. WHEREAS, the Grantee wishes to obtain a storm water drainage easement across the Saccoccia Property, and Saccoccia is willing to grant such an easement to the Grantee; NOW,THEREFORE,for value received,Saccoccia hereby grants,sells,assigns,transfers, and conveys to the Grantee, and to the successor and assigns of the Grantee, forever, a perpetual nonexclusive easement over and across the Saccoccia Property,in the location,for the purposes,and on the terms and conditions set forth below. Section 1. Purpose of easement. This easement is for the purpose of constructing, installing, maintaining, repairing, improving, replacing, and using a system of underground pipes, underground vaults, manholes, drainage ditches, detention ponds, outlet structures, and related equipment and facilities on the Saccoccia Property(collectively referred to in this agreement as the "Drainage System")for handling storm water and other surface runoff which is discharged onto the Saccoccia Property from storm water drainage systems on the Grantee's Property,or which flows on the surface onto the Saccoccia Property from the Grantee's Property. The purpose of the Drainage System is to convey storm water and other surface runoff from the Grantee's Property across the Saccoccia Property to the Farmers Canal, which runs across the Saccoccia Property. STORM WATER DRAINAGE EASEMENT AGREEMENT,PAGE t f tLr M FIrE M8 Section 2. Description and location of the easement. The location of the various elements of the Drainage System,and the location and dimensions of the easements for those elements of the Drainage System, are shown on the map which is attached to this agreement as Exhibit A. Section 3. The drainage basin served by the Drainage System. Before the construction of improvements on the Grantee's Property,the east half of the Grantee's Property naturally drained to the east across the Saccoccia Property to the Farmer's Canal, and the west half of the Grantee's property naturally drained to the west and away from the Saccoccia Property. Saccoccia grants the Grantee the right to alter the drainage of the Grantee's Property so that all of the Grantee's Property drains to the east across the Saccoccia Property to the Farmer's Canal. Section 4. Capacity of the Drainage System. The underground pipes which are part of the Drainage System will be designed to handle the runoff from the Grantee's Property, and from the portions of the Saccoccia Property located to the west of the Farmer's Canal. which is produced by up to a ten year storm. The Drainage System as a whole will be designed to handle up to 100-year peak storm runoff from the Grantee's Property, and from the portions of the Saccoccia Property located to the west of the Farmer's Canal. The Drainage System will be designed to use ditches and swales as well as underground pipes to handle portions of the runoff from storms which are larger than ten year storms.The Drainage System will be designed in accordance with standard engineering practice and analysis,and in accordance with the City of Bozeman and Gallatin County ordinances and regulations which are in effect on the date of this agreement. Section 5. Use of the easement by Saccoccia. Saccoccia reserves the right to use the area which is subject to this easement for purposes which will not interfere with the Grantee's use of the Drainage System,but will not erect or construct any building or other structure in the easement,will not alter the topography of the ground in the easement in a manner which may affect the functioning of the Drainage System, and will not install roads, landscaping or other improvements in the easement which may affect the functioning of the Drainage System,except as permitted by Section 7 of this agreement. Section 6. Maintenance of the drainage system. The Grantee will be responsible for repairing and maintaining the Drainage System at its sole cost and expense until such time as Saccoccia commences site work preliminary to the construction of buildings on the Saccoccia Property. From that date forward,the Grantee and Saccoccia will be jointly responsible for repairing and maintaining the Drainage System, and will each pay a percentage of the cost of repairs and maintenance which is proportional to the number of square feet in the Grantee's Property,and the number of square feet in the portions of the Saccoccia Property located on the west side of the Farmer's Canal. For the purposes of this section,the costs of repairing and maintaining the Drainage System will include all work that directly affects the functioning of the Drainage System, such as sediment or weed removal,the repair or replacement of culverts and other structures,and the costs of complying with all federal, state, and local water quality regulations which are applicable to existing stormwater drainage systems. The costs of repairing and maintaining the Drainage System will not include routine lawn mowing or landscaping maintenance, or the costs of relocating, modifying,or upgrading the system in connection with the development of the Saccoccia Property. STORM WATER DRAINAGE EASEMENT AGREEMENT,PAGE 2 Section 7. Relocation of the Drainage System. Saccoccia will have the right to relocate, alter,reconstruct,or improve all or portions of the Drainage System,as long as the Drainage System, as altered,reconstructed,or improved,is designed in accordance with standard engineering practice and analysis, and in accordance with the City of Bozeman and Gallatin County ordinances and regulations which are in effect on the date of this agreement,unless the City of Bozeman or Gallatin County require the revised Drainage System to be designed and constructed in accordance with stricter standards, in which case the revised Drainage System will be designed and constructed in accordance with the stricter standards.if Saccoccia wishes to relocate,alter,reconstruct,or improve all or portions of the Drainage System,he must deliver written notice of his intent to relocate,alter. reconstruct, or improve the Drainage System to the Grantee, together with (i) detailed plans and specifications for the changes which he wishes to make to the Drainage System, and (ii) a report from a professional engineer which shows that the changes to the Drainage System were designed in accordance with standard engineering practice and analysis, and in accordance with the City of Bozeman and Gallatin County ordinances and regulations which are in effect on the date of this agreement,unless the City of Bozeman or Gallatin County require the revised Drainage System to be designed and constructed in accordance with stricter standards,in which case the revised Drainage System will be designed and constructed in accordance with the stricter standards. In addition, if Saccoccia relocates any portion of the Drainage System, the parties will execute and record an amendment to this easement or a replacement easement agreement which reflects the revisions to the Drainage System_ Section 8. Construction liens. The Grantee will not permit any construction lien to attach to Saccoccia's Property as a result of any labor or materials which the Grantee obtains in connection with constructing,repairing,or improving the Drainage System_ if any construction liens do attach to Saccoccia's Property as a result of labor or materials which the Grantee obtainsin connection with constructing, repairing, or improving the Drainage System, then (a) the Grantee will defend, indemnify, and hold Saccoccia harmless against all costs and expenses relating to the construction liens, including but not limited to legal fees, and (b) within thirty days after receiving a written demand from Saccoccia,the Grantee agrees to take all actions required to obtain the discharge of the lien by filing a surety bond with the clerk of court. Section 9. Easement to run with the land. The easement described in this deed is a perpetual easement which is for the benefit of the Grantee's Property, which is appurtenant to the Grantee's Property, and which will be binding on Saccoccia and Saccoccia's heirs, executors, representatives, successors, and assigns. The benefits of this easement will run with the title to the Grantee's Property whether or not it is referred to in conveyances of the Grantee's Property,and the burdens of this easement will run with the title to Saccoccia's Property whetheror not it is referred to in conveyances of Saccoccia's Property. Section 10. Attorneys' fees. If either party to this agreement institutes legal proceedings to enforce the terms of this agreement, the parties agree that the unsuccessful party to the proceedings will pay the reasonable attorney's fees and legal costs of the successful party, as they may be approved by the court having jurisdiction over the proceedings. STORM WATER DRAINAGE EASEMENT AGREEMENT,PAGE 3 i Fsly 199�'�E197� Section 11. Modification of agreement. No modification of this agreement will be valid or binding unless the modification is in writing, is signed by all parties to this agreement, and has been recorded. Section 12. Entire agreement. This instrument constitutes the entire agreement between the parties. No party will be bound by any terms,conditions,understandings,warranties,statements or representations,oral or written,not contained in this agreement. Each party hereby acknowledges that the execution of this agreement was not induced or motivated by any promise or representation made by any other party, other than the promises and representations expressly set forth in this agreement. All previous negotiations,statements and preliminary instruments by the parties or their representatives are merged into this agreement,except as expressly provided herein. Section 13. Severability of invalid provisions. If any provision of this agreement is declared or becomes invalid, unenforceable or contrary to law, then the provision will be severed from the remaining provisions of this agreement and will not affect the validity or enforceability of the other provisions of this agreement. Section 14. Applicable law. This agreement will be governed by and construed in accordance with the laws of the State of Montana. Dated Im , 1999. BRIDGER PEAKS, LLC, by H&S Financial Corporation, its managing member B Philip Saccocci ] Harold D. McNee, Jr.,Pr id t STATE OF ) :ss COUNTY O ) This instrument was acknowledged before me on 1999, by Philip Saccoccia,Jr. a t•wMaNy� Notary�icfforthe. o of rResidingat M commission expires mission •s fa a 24,2000 y p STORM'WlCrER DRAINAGE EASEMENT AGREEMENT,PAGE 4 STATE OF —� ) :ss r;i 199 �� 19�71 COUNTY OF This instrument was acknowledged before me on f 1999, by Harold D. MCNPt--as silent of H&S Financial Corporation,the managi� member of Bridger Peaks,LLC. ;or Notary public f r the state of `4> Residing at "' �E• ��i 1% Mycommissionexpires u �„3.Z Z�? W�'� .M STORM WATER DRAINAGE EASEMENT AGREEMENT,PAGE 5 EXHI]Brr "A7 199 rarf 1972 STORM WATER DRAINAGE EASEMENT A TRACT OF LAND BEING PORTIONS OF TRACT 1B OF CERTIFICATE OF SURVEY NO. 1215A AND TRACT 48-1 OF CERTIFICATE OF SURVEY NO. 1215D IN THE NW1/4 OF SECTION 1, T2S, R5E, P.M.M., CITY OF BOZEMAN, GALLATIN COUNTY, MONTANA. OWNER ENGINEER TRACTS 1B COS 1215A MORRISON MAIERLE, INC. AND 4B-1 COS 1215D P.O.BOX 1113 PHILIP SACCOCCIA, JR. BOZEMAN. MT 59771 991 E. BEACH I PASS CHRISTIAN, MS 39571 10' TEMPORARY it EASEMENT 10' \ \ EASEMENT C/L OF 19th. AVENUE eIrTEMPORARY DETENTION HIG WAY RIGHT—OF—WAY POND l' G"T 113 \ 5 DETENTION POND �,Q.S. 121 A I� 2 1'215 I. 1 I 20' STORM WATER 1 EASEMENT NOTE. 1.) 20' STORM WATER DRAINAGE I' EASEMENT ALIGNMENTS jl _ SHOWN APPROXIMATE- 10' EASEMENT IS EACH SIDE OF Q g. 1215D CONSTRUCTED ACTUAL RL1NE AS Ci• till 2.) 10' PERIMETER EASEMENT AROUND STORM 1 WATER DETENTION PONDS, AS I! A 4A CONSTRUCTED `S 1215D p: C.o• • 3 !l I I I C•O.S. 1215 — — — — — — — — — — — — — - — OAK S TREE Tj W114 COR SEC 1 C Q��D .NORTHBRASS CAP MON r li pPLAWAA AM MORRISONGRAPHIC SCALE MAIERLE,INC. � 1146 1�l 300 0 150 300 Soo 900 08 r 11u w FL Iwpk r w7t•nw Wq W-4m As wit ARAM/OY: AR DAiE3 7^W NEMSON OATS: ( IN FEET ) acam er. �e aRAVANc so.: C h = 300 It. No.: i- ?9LT I QE t 393047 THIS INSTRUMENT WAS FILED FOR RECORD IN THIS OFFICE ON THE: 4�_ DAY OF , A.D., 1999 OFFICE OF COUNTY RECORDER ) COUNTY OF GALLATIN ) AT 10: 21 A.M., AND WAS DULY RECORDED IN BOOK Igg STATE OF MONTANA f1_'- ) OF MISCELLANEO S RECORDS, PAGE 1967 Fee $ 36.00 ,��t RECORDER. BY DEPUTY $z.u0 Z"PF RT: AMERICAN LAND TITLE CO.