HomeMy WebLinkAbout21- Temp Road Permit-Access & Reimbursement Agreement - Liebmann - Irrigation Infrastructure Improvements k
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Temporary Road Permit/Access and Reimbursement Agreement for Irrigation
Infrastructure Improvements
(Liebmann Property — 8518 Nash Road)
THIS AGREEMENT is made and entered into this `� day of May, 2021, E
between Marianne Liebmann and Steve Llebmann (collectively, Liebmann), who, as
trustees, own the real estate described in Recital A, below, with a mailing address of 7177
Jade Hill Ln, Bozeman, MT 59715-8398 and the City of Bozeman (City), a self-governing
municipal corporation, with a mailing address of P.O. Box 1230, Bozeman, MT 59771.
RECITALS
A. Whereas, between them, Marianne Liebmann and Steve Liebmann, as
trustees, own the real estate described below (hereafter, the "Property"):
Tract 1 and Tract 3 of Certificate of Survey No. 392, located in the SE % and
SW 1/4 of Section 6 and the NE %, NW 1/, SE '/4 and SW % of Section 7,
Township 3 South, Range 6 East, M.P.M.,Gallatin County, Montana, according
to the official plat thereof on me and of record in the office of the County Clerk
and Recorder of Gallatin County, Montana.
B. Whereas, the City gets 80% of its municipal water supply from the Gallatin
Range between Hyalite Creek and Reservoir and Sourdough Creek (aka Bozeman
Creek); and
C. Whereas, the City owns approximately 4,000 acres of timbered forest in a
checkerboard pattern with United States Forest Service (USFS) land in the Sourdough
Creek watershed; and
D. Whereas, in order to ensure a clean, reliable and sustainable water supply
in the event of a wildland fire, and to limit the impact on the Bozeman Water Treatment
Plant in the event of a wildland fire, the City will complete the Sourdough Fuels Reduction
Project (the "City Project") on its lands surrounding the Sourdough municipal water supply
intake — an irregularly shaped property of approximately 380 acres that adjoins the j
Property on portions of its southern and eastern flanks. The City's current planned fuels
reduction activities on its described property will consist of approximately 77 acres of
commercial fuels treatment units, and 249 acres of non-commercial fuels treatment acres
prescribed by its professional consultant forester. The Sourdough Fuels Reduction
Project has been developed and timed to coincide or occur consecutively with the USFS's
Bozeman Municipal Watershed Fuels Reduction Project (the "Service Project") treating
approximately 4,700 acres of USFS land in the Hyalite and Sourdough Creek drainages;
and
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E. Whereas, to the extent they involve use of the Property, the City and the
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USFS plan to have the City Project proceed first and, upon its completion, have the
Service Project commence through completion of the work it contemplates; and
F. Whereas, attached to this Agreement as Exhibit A is a map showing the
sections of land in Township 3S, Range 6E, M.P.M., Gallatin County, Montana, depicting
the Property in portions of Sections 6 and 7, City property to be utilized in the City Project
in Section 18, the Liebmann existing private road running south from Nash Road in
Section 6 and ending in Section 7, and also depicting the proposed spur road from the
end of the Liebmann existing private road to the City of Bozeman property in the
southeastern portion of Section 7, and other features, some of which are described or
referred to in this Agreement. Liebmann and the City agree that Exhibit A is, generally,
an accurate depiction of the Property and land to be used and utilized in connection with
the City Project; and
G. Whereas, to minimize the impact of multiple logging roads, shorten the
interruption of the public's enjoyment of the popular Sourdough Canyon Trail recreation
area, and remove commercial timber in accordance with their respective Projects, both
the City and the USFS plan to contract for helicopter and conventional logging to remove
accumulated commercial fuels within the prescribed fuels treatment units for their
respective Projects. Commercial fuels of the City Project are depicted as Phase 1:
Ground-Based Treatment, and Phase 2: Helicopter Treatment areas in Exhibit A; and
H. Whereas, the City plans to contract for non-commercial fuels treatments
involving the use of hand crews to treat ladder fuels, dead and downed timber, and slash
generated from commercial fuels logging within Phase 3: Hand Crew Treatment and
Future Phase: Hand Crew Treatment areas generally depicted on Exhibit A. Logging
trucks are not required for the non-commercial fuels treatment work.
I. Whereas, an adequate helipad, log stack, and staging areas (Sites) have
been identified by the City and the USFS on the described property owned by the City (as
depicted as 'Helicopter Landing Sites' on Exhibit A). To access the western Site, the City,
its contractors and designees will need to travel across an existing private road on the
Property (the "Liebmann Existing Road") and also construct an extended road from the
Liebmann Existing Road onto City property. This to be newly constructed extended road
will be approximately 2,800 feet in length, of which approximately 550 feet will be located
on the Property (the "Spur Road") with the remainder on the City's property. The City, its
contractors and designees, necessarily require access on the Liebmann Existing Road
and Spur Road to support the removal of commercial fuels and non-commercial fuels
depicted upon Exhibit A. The Liebmann Existing Road and the Spur Road are also
depicted on Exhibit A; and
J. Whereas, Liebmann has existing irrigation infrastructure on the Property
that needs improvements in order to withstand the increased impact of heavy equipment
and logging trucks using the Liebmann Existing Road to access the Site. These irrigation
improvements (the "Irrigation Improvements") are estimated to cost$29,222.00. The City
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agrees the irrigation Improvements are necessary and the quoted cost an appropriate
amount for them; and
K. Whereas, timber from the Property will need to be cut and removed to
improve the Liebmann Existing Road and construct the Spur Road. The net value of this
removed timber after gross mill receipts having been deducted for logging labor and haul
costs is estimated by the City's consultant forester to be approximately $400.00; and
L. Whereas, Liebmann and the City desire to enter into this Agreement to
provide the terms and conditions by which Liebmann is granting the City a non-exclusive
temporary road access to access, use, improve, construct, reconstruct and repair the
Liebmann Existing Road and the Spur Road to make them suitable for the City Project to
provide for payments for the Irrigation Improvements and timber to be removed from the
Property as part of the City Project; to describe the work to be done to construct the Spur
Road and to maintain the Spur Road and the Liebmann Existing Road over the course of
the City Project; to confirm the coordination and cooperation the City intends to extend to
and with the USFS in conjunction with the completion of the City Project and the Service
Project; and to provide for and specify other terms and provisions between Liebmann and
the City as set forth in the terms and provisions of this Agreement.
Now therefore, in consideration of the mutual promises, terms and provisions of
this agreement, Liebmann and the City agree as follows:
1. Recitals: Liebmann and the City agree that the recitals to this Agreement
are intended, generally, to describe the basis for it and the underlying intentions of
the parties in entering into it, and agree further that they may be used to inform the
interpretation, construction, and application of this Agreement.
2. Property: Liebmann represents and warrants that they own the Property in
trust, are trustees of those trusts, and that they have the right to grant the
temporary road permit and access with respect to the Liebmann Existing Road and
Spur Road as described herein. They warrant further that the Property is free and
clear from any covenants or other restrictions which limit their right to enter into
this Agreement or otherwise limit or affect the City's rights to utilize the Property in
the manner granted by the Liebmanns in this Agreement.
3. Temporary Road Permit and Right of Access: Liebmann hereby grants the j
City, its designees and contractors engaged by it to perform the work necessary
to complete the City Project, the non-exclusive temporary right and privilege to
access the Site by ingress and egress over the Property via the Liebmann Existing
Road and the Spur Road as generally depicted in Exhibit A. In addition, Liebmann
hereby grants the City, its contractors and designees, the non-exclusive right to
access the Property to improve, construct, reconstruct, and maintain the Liebmann
Existing Road and the Spur Road in coordination with the USFS to make and
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maintain these roads in a manner sufficient to permit the work to be done in
connection with the City Project to be accomplished.
4. The City and the USFS have agreed that their respective projects shall
proceed in the following fashion, and the City promises and agrees with Liebmann
that they will:
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A. When this Agreement is signed, the City contractors will undertake to
prepare the Liebmann Existing Road and cause the construction of the j
Spur Road and complete these roadways so that they meet the design
and standards agreed to by the City and the USFS for the logging work
contemplated in both of their respective Projects. The City agrees to
coordinate with the USFS on design and standards for the roads to be
constructed. The City and USFS will provide, with a copy to Liebmann, a
written statement confirming that the Liebmann Existing Road and the
Spur Road have been constructed in a fashion which meets USFS
standards and that these roadways are suitable for the commencement
for the logging work and traffic contemplated in the City and the Service
Projects (the "Certification"),
B. During the City Project, the City, its contractors and designees, will be
solely responsible for the maintenance and, as necessary, repair of the
Liebmann Existing Road and Spur Road,
C. The City will coordinate with the USFS as needed to provide that, at the
completion of the City's Project, all slash, waste, debris, moved soils and
rocks, and the like are disposed of so that they do not remain on the
Property (except for use in the ultimate decommissioning of the Spur Road
by the USFS) following completion of the City Project. The parties agree
that slash generated from the construction of the Spur Road may be burned
on the Liebmann property as described in Paragraph 4D of this Agreement.
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D. The City will burn slash generated from its work on the Spur Road in the
space depicted on the insert in Exhibit A in the following manner: Slash will
be burned when it has cured appropriately. The slash pile shall be located
at least 100 feet, or as far as site conditions allow, from live standing trees
to prevent additional mortality. The slash pile shall be constructed to have
the smallest possible footprint and least disturbance to surrounding soils
and vegetation. Following burning, pile and underlying soil shall be hand
raked to distribute ash and improve growing conditions prior to seeding.
The burn pile area shall be re-seeded with a diverse mix of native grass and
forb species appropriate for the site. Dormant season seeding is preferred
if practicable, typically prior to April 15th in the spring or after October 15th in
the fall, when seed will have sufficient spring moisture available for
establishment.
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E. When the City has completed the commercial logging of its land which
requires logging trucks to travel the Spur Road and the Liebmann Existing
Road, it shall notify Liebmann and the USFS in writing of that fact. As soon j
as possible thereafter, the City and the USFS shall inspect the Spur Road
and the Liebmann Existing Road and accomplish any and all work
necessary to bring those roadways up to the same condition they were at
the giving of the Certification. The City shall ensure that Liebmann receives
a copy of the statement by the USFS that the roadways have met this
condition (which, in a separate agreement between Liebmann and the
USFS, would be a condition precedent to the USFS commencing the
Service Project and utilizing the Property).
5. Following the conclusion of the City Project, as denoted by the issuance
and receipt of notices as described in this Agreement, the City's right to access its
property pursuant to this Agreement shall continue until the Service Project is
completed or terminated. Such access shall be designated for City personnel and
the City's agents and designees to access City property for inspection and
consultation purposes as the Service Project proceeds.
6. During the time the City Project is underway, the City shall install a gate at
the boundary of the Property and the City's property at the intersection of Sections
7 and 18 as depicted on Exhibit A. This gate shall be secured by a key or
combination lock and maintained and operated by the City and its contractors or
designees. The City shall give Liebmann a copy of this gate key or combination
code. The City shall give the USFS a key or combination code to the lock for its
use in the Service Project.
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7. At the conclusion of the City and the Service Projects or Liebmann's
termination of access as provided for in its access agreements with the City or
with the Service, the City shall ensure and cause the Spur Road to be
decommissioned. Decommissioning will follow USFS guidelines as described in
Exhibit B to this Agreement. The City will consult Liebmann prior to the
commencement of decommissioning activities in order to address the specifics
of Exhibit B and any additional concerns or requests of Liebmann regarding the i
decommissioning. The decommissioning of the Spur Road shall be completed
within (six) 6 months of the event requiring it. Further, as part of the
decommissioning, the City shall ensure and cause to be installed a fence of
approximately 40 yards at the property boundary between the Liebmann property
and City property where the Spur Road was constructed.
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The City intends to complete its Project for which access is granted to it in this
Agreement in 2022. The parties anticipate the Service to begin the Service Project
in 2023. In the event the Service does not begin its Project in 2023 for any reason,
or if its Project is cancelled or suspended for more than a year for any reason after
it begins, Liebmann may, upon notice to the City, terminate all access to the
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Property and demand that the City decommission the Spur Road in the manner
provided for in this Agreement and its Exhibits.
8. The City and Liebmann agree to coordinate and cooperate reasonably
together to accomplish the roadwork, maintenance and the logging operation
entailed by the City Project as it runs its course. This includes cooperating with
one another to stop trespassers or other unauthorized users of the Liebmann
Existing Road and the Spur Road during the course of the City Project, to include,
but not limited to, posting appropriate signage; creation of additional gates across
roadways; cooperation with appropriate law enforcement personnel to deter and,
if necessary, apprehend trespassers. The City's right to access and utilize the
Property and roadways on it as set forth in this Agreement is non-exclusive and
Liebmann reserves the right to allow their invitees to access the Property and the
roadways provided, however, that such access does not interfere with the
operation of the City Project.
9. The right of access granted in the Agreement does not permit the City, its
contractors or designees, to park or store vehicles, machinery, and equipment on
the Property, except when they are being actively used to construct, maintain, or
repair roadways on the Property or otherwise specifically authorized by Liebmann.
10. During the time the City Project is underway, the City will actively manage
and control noxious weeds along the Llebmann Existing Road and the Spur Road.
This includes, but is not necessarily limited to, killing noxious weeds before they
develop to the point where seeds are dispersed or the weeds are otherwise able
to propagate.
11. Reimbursement: Liebmann has completed the Irrigation Improvements
described in the Recitals to this Agreement, at a cost of $29,222.00, which
Liebmann has paid. Within thirty days after this Agreement is fully executed, the
City will pay $29,222.00 to reimburse Liebmann for these Irrigation improvements.
12. Timber Reimbursement Within thirty days after this Agreement is
executed, the City shall pay Liebmann $400.00 for the marketable timber
anticipated to be removed from the Property in connection with work on the
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Liebmann Existing Road and the construction of the Spur Road. The City will sell
and keep any proceeds from the sale of this timber. `
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13. Representatives and Notices: For the purposes of giving and receiving
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notices and approvals in conjunction with this Agreement, the City's
representatives for these purposes are the following:
Anna Saverud
Assistant City Attorney
City of Bozeman
121 N. Rouse
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P.O. Box 1230
Bozeman, MT 59771
asaverud@bozeman.net
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Director of Public Works
City of Bozeman
20 E. Olive Street
P.O. Box 1230
Bozeman, MT 59771
mreister@bozeman.net
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Brian Heaston i
Senior Engineer
City of Bozeman
20 E. Olive Street
P.O. Box 1230
Bozeman, MT 59771
bheaston@bozeman.net
Representatives of Liebmann for these purposes are the following:
Steve Liebmann
7177 Jade Hill Lane
Bozeman, MT 59715
siiebmann7177@earthlink.net
Tom Stonecipher
Tarlow Stonecipher Weamer& Kelly, PLLC
1705 W. College Street
Bozeman, MT 59715 j
tstonecipher@lawmt.com
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In addition, the City and Liebmann agree to designate a person, updated as j
necessary, who can be contacted at any time to receive communication, complaints,
suggestions, and the like from the other party so that they may maintain an active,
ongoing line of communication about the City Project, Communications between these
designated persons (each an "Informal Contact") shall not be official notices or approvals ;
to be given in conjunction with this Agreement but, rather, will be party representatives
who can actively communicate as the City Project is ongoing about issues and matters
which arise involving it. The parties anticipate that the Informal Contact for each may
change over time, and each party agrees to inform the other about such changes when i
they occur. For the purposes of this Agreement, the Informal Contact for Liebmann is
Steve Liebmann at the address and email above, with a telephone number of (406) 581-
2017. For the City, the Informal Contact, including address, email and telephone number
is the following:
Bozeman Watershed Access Agreement j
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Brian Heaston, Senior Engineer
City of Bozeman
20 E. Olive Street
P.O. Box 1230
Bozeman, MT 59771
bheaston@bozeman.net
Office: 406-582-2282
Cell: 406-599-2581
All notices, approvals, and any formal communications between the parties shall
be made to each of their representatives either by means of a writing delivered or mailed
to them at the addresses set forth for them or by an email. The communication shall be
considered completed when it is either personally delivered to the representative, two
days after it is mailed to the representative via First Class Mail, or the day it is received
as an email by the representative.
The City and Liebmann may add or delete a representative and an Informal
Contact by giving written notice of that fact in the manner provided in this section of the
Agreement to the other party.
14. Indemnification. The City agrees to indemnify Steve and Maryanne
Liebmann, individually and as trustees of the Trusts owning the Property, and
those Trusts themselves, from any and all liabilities of any kind whatsoever
arising from claims made by agents of the City or its designees, contractors,
representatives, or any other agent in connection of any kind with the City Project
.(other than those caused by Liebmanns' action which do not involve the state or
condition of the Property). This indemnification pertains to any and all liabilities
which may be assessed against those parties indemnified by this paragraph and
also any and all of their costs of defense arising from such claims.
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15. Entire Agreement: This Agreement constitutes the entire agreement
between Liebmann and the City. No alterations, modifications, or additions to
this Agreement shall be binding unless reduced to writing and signed by the
parties to be charged herewith. No covenant, term or addition to this Agreement
shall be deemed waived by either party unless such waiver shall be reduced to
writing and signed by the parties.
16. Amendments: The terms and conditions of this Agreement may not be
modified or amended except by an instrument in writing executed by each of the E
parties hereto. No oral modification shall be enforceable.
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17. Default: Failure of or unreasonable delay by either party to perform any
term or provision of this agreement shall constitute a default hereunder. In the
event of alleged default or breach of any term or condition of this agreement, the
party alleging such default or breach shall give the other party not less than thirty
(30) days' written notice specifying the nature of the alleged default and the
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manner in which it may be satisfactorily cured. The party charged shall not be
considered in default for purposes of termination or instigation of legal
proceedings during any such 30-day period. Failure of a party to cure a default
after the 30-day cure period can result in the termination of the access granted
herein, if the City defaults, or appropriate legal remedy as allowed by law if
Liebmann defaults.
18. Severability: If any portion of this Agreement is held to be void or
unenforceable, the balance thereof shall continue in effect.
19. Applicable Law: The parties agree that this Agreement is governed in all
respects by the laws of the state of Montana.
20. Binding Effect: This Agreement is binding upon the heirs, trustees, legal
representatives, successors, and assigns of the parties.
21. Electronic Signatures and Counterparts: The Parties agree that they may
conduct and execute this Agreement pursuant to the Uniform Electronic
Transaction Act, § 30-18-101, MCA, et seq. Signatures made on this Agreement
electronically and transmitted electronically shall be effective in all respects as
originals. The Parties agree that this Agreement may be executed in
individual counterparts, whether by original or electronic signature, all of which,
when taken together, shall constitute one fully signed and delivered Agreement.
#### END OF AGREEMENT EXCEPT FOR SIGNATURES ####
City of Bozeman
_ Date:
J lich, City Manager
Steve Liebmann, Trustee Marianne Liebmann, Trustee
Date:
Bozeman Watershed Access Agreement
Page 9
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manner an-which may be satisfactanty cured. The party
charged shall not be
consI* are d in default far purposes of. aerminatlon o legal
r instigation
e a default
proceedings du any such 30-day period, .Failure of a party to c
after the 30-day sure period can result In the termination of the access granted
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herein, if the city defaults, or approprla#e Legal remedy as allowed by
Llebmann defaults.
18, vats ' If any portion of ibis Agreement is held to be void or
unenforceable;the balance thereof,sholi continue in effect.
119. Applicable Law: The parties agree that this Agreement is governed in all
respects by the laws of the state of.Montana
20. Binding Effect: This Agreement is.:binding upon the heirs, trustees, legal
representatives, successors; and assigns`of the parties.
21. Eiec#ronie•Sicna#urea and Countervarts: The Parties agree that they may
conduct and =execute #his ..Agreement.. pursuant to the Uniform Electronic
Transaction Act; § 30-18-101,MCA, of seq. ;Signatures made on this Agreement
eiectrohtcailci:and transmitted electronically `shall be effective in all respects as
o1rl�inaCs ']'he Parties agree that this Agreement may be executed in
individual counterparts, whether by,original or electronic signature, all of which,
when takers tageiher shall constitute one fully signed and delivered Agreement.
Af
irhfA OF AGRi EM#rNT EXCEPT FOR SIGNATURES
mm
City of;Bc an
Date:
Jeff � ch, { it i Manager
Steve Llebmann,Trustee Marianne Liebrnann, Trustee
Date:
Bazernan Watershed,Access Agreement
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Exhibit A to Temporary Road
Permit/Access Agreement t
Liebmann Property - 8518 Nash Road f'
Nash Rd
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12 p7 _ 0� r
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'lam f
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� ! �,.:......._...,.__T„mow.........,.-,-
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pQ7 0 500 1,000 2,000 Feet
Y 1 I ,
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{ r Liebmann Property N I
g -- Liebmann Existing Road
Spur Road
PublicLands 1
S € is City Government
19 [� US Forest Service f
Sourdough Fuels Treatment Areas
Phase 1:Ground-Based Treatment
Phase z:HelicopterTreatment
� 0 100 200 400 feet � j
i Phase 3:Hand CrewTreatment
Future Phase:Hand CrewTreatment
Helicopter Landing Sites
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Exhibit B !
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Roadway Decommissioning and Recontourina
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Description. This Exhibit describes the work to be done to decommission,recontour, and
monitor grass growth and weed control of the Spur Road denoted on Exhibit A to this
Agreement,
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Road Recontouring. The areas where the Spur Road was constructed will be recontoured to .
original ground contours.
Excavate embankment materials and place on roadway backslopes. Break down large material
clumps. Compact material with excavator bucket then lightly scarify the surface for a
appropriate seed-bed. Avoid over-smoothing, It is expected that a minimum of 80%of the
original embankment material will be recovered and placed on the backslopes. Excavated
materials shall be placed within the original roadway limits.
Gather all then-available slash and woody debris from slash windrows or within machine reach
of the edges of disturbance and distribute debris in a random manner over the recontoured
ground surface to minimize soil erosion.
If directed by Liebmann, utilize standing trees to supplement available ground slash. Knock
down and place trees in a stable manner on recontoured slopes. Breakdown tops and limbs and
scatter. i
Apply grass seed uniformly or as directed by Liebmann; Liebmann shall approve grass seed mix
and application rates. The City or the Sei vice, as appropriate pursuant to their Agreements with
Liebmann for access, shall monitor the decommissioned roadway for three years following
completion of its decommissioning for reseeding if necessary and for weed control,at its
expense.
Culvert removal, Remove culverts, if any, identified by Liebmann. Culverts located within
stream channels or staked on the ground shall be excavated using a track-mounted excavator. In
the progress of work,the excavator may cross the stream channel but shall not"sit"within the f
channel during excavation. All fills shall be removed to closely mimic the original lines and
grades of the stream channel and drainage bottom. Drainage bottom width shall mimic that
found immediately upstream and downstream as approved by Liebmann. Excavated material
shall be placed within the road prism on both sides of the channel sides and contoured to mimic f
original ground lines,unless otherwise allowed by Liebmann. Conserve rock during excavation
for use as streambed and bank material. Construct streambed to mimic size, slope, and bed
material of adjacent natural channel.
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Ditch relief culverts outside of stream channels shall be removed as pall of the recontouring,
Dispose of all culverts off Landowner property in a responsible manner.
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