HomeMy WebLinkAbout037.07 - Appendix FF - ROW Option AgreementOPTION FOR RIGHT OF WAY EASEMENT
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OPTION FOR RIGHT-OF-WAY EASEMENT
THIS OPTION FOR RIGHT-OF-WAY EASEMENT (“Option”) is made and entered into this
8th day of August, 2024 (“Effective Date”), by and between TURNROW HOLDINGS LLC,
a Montana limited liability company, of P.O. Box 1070, Bozeman, MT 59771
(“Owner”), and NORTHWESTERN CORPORATION, a Delaware Corporation d/b/a
NORTHWESTERN ENERGY, of 11 East Park Street, Butte, Montana 59701-1711
(“NorthWestern”) and provides as follows:
Recitals
A. Owner is the owner of certain real Property, located in Gallatin County, Montana,
which is described as follows:
The West Half of the Southwest Quarter of the Northeast Quarter (W½SW¼NE¼)
and the West Half of the East Half of the Southwest Quarter of the Northeast
Quarter (W½E½SW¼NE¼) of Section Twenty-seven (27), Township One (1)
South, Range Five (5) East, M.P.M., Gallatin County, Montana. Also, all that part
of the West Half of the Northwest Quarter of the Northeast Quarter
(W½NW¼NE¼) and of the West Half of the East Half of the Northwest Quarter
of the Northeast Quarter (W½E½NW¼NE¼) of said Section Twenty-seven (27),
Township One (1) South, Range Five (5) East, M.P.M., Gallatin County, Montana,
lying South and the right of way of Interstate 90 and the access road to the South
thereof, heretofore deeded to the State of Montana. (Deed Reference: Film 8, Page
1756)
(the “Real Property”).
B. NorthWestern is interested in acquiring an option to acquire an easement over, under
and across a portion of the Real Property (the “Easement Area”) for construction and use
of a natural gas district regulator valve station, natural gas pipelines, communications
systems, and necessary appurtenances, along with access to and from the same.
C. Owner is willing to grant NorthWestern an option, pursuant to the terms and
conditions of this Option.
Option
Now therefore, for and in consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1.Owner hereby gives and grants unto NorthWestern, its successors and assigns, the
exclusive option to acquire an easement over, under and across the Easement Area as
specified on Exhibit “A” attached hereto and made a part hereof, for construction
and use of a natural gas district regulator valve station, natural gas pipelines,
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communications systems, and necessary appurtenances, along with access to and
from the same, in the form attached hereto as Exhibit “A”. The parties acknowledge
and agree that the Easement Area will be located adjacent to the lift station to be
constructed by the City of Bozeman in a separate public utility easement granted by
Grantor to the City. The approximate location of such public utility easement is
shown on Exhibit “A”. The final location of the public utility easement will be
determined after the Effective Date. Accordingly, the parties agree that the final
location of the Easement Area contemplated herein will be mutually agreed by
Grantor and Grantee at the time of exercise of this Option, and will be shown and
illustrated on the Exhibit “A” page to be attached to the recordable execution copy
of the pipeline easement at that time. Grantee shall fully cooperate with Grantor
and the City of Bozeman in finalizing the location of the Easement Area so as to avoid
any conflict with the public utility easement for the lift station.
2.Exercise of Option. NorthWestern may exercise this Option by providing to Owner
written notice of such exercise at any time after the Effective Date and during the
Term (defined below). The written notice anticipated by this Section shall be sent via
certified mail to Owner at the address as set forth on the first page of this Option, and
shall be effective from the time of its deposit in the U.S. Mail. In the event Owner
changes address, it shall, in writing, advise NorthWestern of its new address. Any
notice sent to its old address before this is done shall be valid and fully effective.
Within thirty (30) days thereafter, the parties shall execute and record the pipeline
easement in substantially the form attached hereto as Exhibit “A” including the
location of the Easement Area which shall be attached to such pipeline easement.
3.Term of Option. This Option shall expire on the date that is two (2) years from the
date hereof (the “Term”).
4.Inspections. During the Term, NorthWestern may conduct such inspections and
investigations of the Real Property, as it shall deem appropriate. Such inspections and
investigations may include, but are not limited to, environmental assessments, soil
borings, title searches, surveys and any other such inspections and investigations so
NorthWestern may determine the suitability of the Real Property for NorthWestern’s
purposes in connection with the Option and easement. Any invasive testing or
borings shall be subject to the prior written approval of Owner. Owner shall have
the right to have a representative present during any and all inspections and
investigations. NorthWestern shall be responsible for all costs associated with its
inspections and investigations by NorthWestern. Owner shall, upon reasonable prior
notice, permit NorthWestern, its employees, agents and contractors, who are
involved in the inspections and investigations reasonable access to the Real Property.
Prior to NorthWestern’s, or its employees’, agents’ or contractors’ entry onto the Real
Property, NorthWestern shall deliver to Owner a certificate of insurance with limits
of at least $2,000,000 per occurrence and $2,000,000 in the aggregate naming
Owner an additional insured. NorthWestern shall indemnify and hold the Owner and
its heirs, executors, administrators, successors, and assigns, harmless from any and
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all claims, actions, causes of action, losses, expenses (including reasonable attorney’s
fees) damages, and any and all other liabilities of any character whatsoever arising
out of any negligent or intentionally wrongful act and /or omission of NorthWestern
or its agents, representatives or employees occurring, arising and resulting from
NorthWestern’s access to the Real Property, its inspections and investigations, unless
caused by the willful misconduct or gross negligence of the Owner. NorthWestern
shall be responsible for any damage caused by its activities, inspections and
investigations. Provided, NorthWestern, its employees, agents and contractors, shall
not be liable for any existing defects, contamination, or other conditions discovered
as result of NorthWestern’s inspections and investigations.
5.Representations/Disclosures. Owner covenants with NorthWestern that Owner is
lawfully seized and possessed of the Real Property; that the Owner has a good and
lawful right to convey an easement in the Real Property; and that the Real Property
is free and clear of any liens, mortgages, or judgments or that if the Real Property is
subject to any liens, mortgages or judgments that the Owner, at its sole cost, shall
obtain subordinations from the holders of such liens, mortgages or judgments, to the
easement anticipated herein upon the request of NorthWestern. NorthWestern
acknowledges that it has examined the Real Property which is the subject of this
Option and acknowledges that it enters into this Option in reliance upon such
examination, upon inspections conducted by the professional inspectors of its choice.
NorthWestern understands that it is acquiring the easement, "AS IS" without any
warranty or representation as to its condition.
6.Entire Agreement and Modifications. This Option supersedes all prior agreements,
contracts and understandings between the parties pertaining to this particular
easement. It may not be modified or terminated orally. No modification, termination
or attempted waiver shall be valid unless in writing signed by both parties.
7.Time. Time is of the essence in this Option and all clauses herein. Provided, that in
the event an act is required to occur upon a Saturday, Sunday or legal holiday in the
State of Montana that said act may be performed on the next business day.
8.Assignment. This Option is binding upon the parties, their respective heirs, successors,
and assigns.
9.Remedies.
a.NorthWestern’s Remedies. In the event NorthWestern exercises its Option and the
Owner refuses or neglects to execute and record the pipeline easement within
the time period provided in this Option, NorthWestern may demand that Owner
specifically perform Owner’s obligations under this Option.
b.Owner’s Remedies. In the event NorthWestern exercises its Option and
NorthWestern refuses or neglects to consummate the transaction within the time
period provided in this Option, the Owner may demand that NorthWestern
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specifically perform NorthWestern’s obligations under this Option, or demand that
NorthWestern pay monetary damages for NorthWestern’s failure to perform the
terms of this Option.
10.Controlling Law. This Option shall be interpreted under the laws of the State
of Montana.
11.Interpretation. This Option has been reviewed by both parties, each of whom has
had the opportunity to consult with independent counsel regarding it and has done
so to the extent that such party desired. No stricter construction or interpretation of the
terms hereof shall be applied against either party as the drafter hereof.
12.Attorney’s Fees. In the event either party finds it necessary to employ Counsel in order
to enforce or rescind any term or provision of this Option, including any proceeding
in bankruptcy, before any officer or judge of the U.S. Bankruptcy Court or any
proceeding pertaining thereto, the prevailing party shall be entitled to recover from
the other party in addition to costs and disbursements allowed by law, the prevailing
party's reasonable attorney’s fees.
13.Electronic Signatures and Counterparts. The parties agree that an electronic copy of
this Option which contains the parties’ respective signatures shall be considered an
original. Further, this Option may be executed in counterparts, each of which when
taken together shall constitute a fully executed agreement. The pipeline easement,
which shall be recorded, is excepted from this provision.
14.Notice of Option. The Owner agrees that it shall enter into a Notice of Option for
Right-of-Way Easement, if requested by NorthWestern, which Notice may be recorded
in the records of the County Clerk and Recorder, for the county in which the Real
Property is located.
15.Certification. Each party hereto represents that he or she is eighteen (18) years of age
or older, of sound mind, and legally entitled at this time to transfer or receive title to
the Real Property. If any party to this Option is a corporation, limited liability company,
partnership or another non-human entity, the person signing on its behalf represents that he or she is duly authorized to enter this Option on behalf of such entity.
THE PARTIES HERETO HAVE EXECUTED THIS OPTION ON THE DATES SHOWN:
TURNROW HOLDINGS LLC, a Montana limited liability company
By:
Rob Lateiner (Date)
Its: Principal
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After Recording, Return To:
NorthWestern Energy
Land & Permitting Department
11 East Park St. Butte, MT 59701
EXHIBIT “A” TO OPTION FOR RIGHT-OF- WAY EASEMENT
PIPELINE EASEMENT
TURNROW HOLDINGS LLC, a Montana limited liability company, of P.O. Box 1070,
Bozeman, MT 59771, ("Grantor"), in consideration of $1.00 and other good and valuable
consideration, in hand paid, the receipt of which is acknowledged, does grant and convey to
NORTHWESTERN CORPORATION, a Delaware corporation, d/b/a NORTHWESTERN
ENERGY, of 11 East Park St., Butte, MT 59701, ("Grantee"), and to its successors,
assigns and apportionees, a perpetual pipeline easement ten (10) feet in width, and a
natural gas district regulator valve station forty (40) feet by forty (40) feet in size, upon which
to construct, operate, maintain, replace, upgrade, and remove a gas district regulator valve
station, natural gas pipelines, communications systems, and necessary appurtenances,
over, under, along and across a portion (the “Easement Area”) of that certain real property
located in Gallatin County, Montana, which is described as follows:
The West Half of the Southwest Quarter of the Northeast Quarter (W½SW¼NE¼)
and the West Half of the East Half of the Southwest Quarter of the Northeast
Quarter (W½E½SW¼NE¼) of Section Twenty-seven (27), Township One (1)
South, Range Five (5) East, M.P.M., Gallatin County, Montana. Also, all that part
of the West Half of the Northwest Quarter of the Northeast Quarter (W½NW¼NE¼)
and of the West Half of the East Half of the Northwest Quarter of the Northeast
Quarter (W½E½NW¼NE¼) of said Section Twenty-seven (27), Township One (1)
South, Range Five (5) East, M.P.M., Gallatin County, Montana, lying South and the
right of way of Interstate 90 and the access road to the South thereof, heretofore
deeded to the State of Montana. (Deed Reference: Film 8, Page 1756)
(the “Real Property”)
For an illustration of the location of the Easement Area, see Exhibit “A” attached
hereto and by this reference made a part hereof.
TOGETHER with reasonable right of access to and from the Easement Area over
such portion of the Real Property reasonably necessary to access such Easement Area,
using existing roads and trails whenever practicable; the right to use and keep the
Easement Area free and clear of any and all obstructions or structures, except fences;
and the right to clear and remove all timber, brush, or vegetation from the Easement Area
that may, in the Grantee’s reasonable opinion, endanger the safety or efficacy of the
pipeline or necessary appurtenances. Grantor may landscape the Easement Area with
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shrubs and vegetation without large trees if not directly over the pipeline and Grantee
shall restore the same to substantially the same condition as prior to any work performed by Grantee upon completion of Grantee’s work. The Grantee may temporarily use an
additional workspace of up to thirty (30) feet in width as reasonably needed adjacent to the
Easement Area during the construction of the pipeline, and district regulator valve station.
GRANTOR covenants with the Grantee that the Grantor is lawfully seized and
possessed of the Real Property above-described, and that the Grantor has a good and
lawful right to convey it, or any part thereof.
DATED this day of , 20 .
TURNROW HOLDINGS LLC, a Montana limited liability company
By:
Rob Lateiner (Date)
Its: Principal
On this day of , 20 , before me, a notary public in and for said
State, personally appeared , known to me to be a
of TURNROW HOLDINGS LLC, a Montana limited liability company, the limited
liability company that executed his document and acknowledged to me that such limited
liability company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the date first above
written.
(NOTARY SEAL)
Print Name:
Notary Public for the State of Residing at:
My Commission Expires:
Project: Turnrow Subdivision
Agent: Jeffrey Harmon
Engineer: Tanner Reynolds
SAP No: 24168892-4410
QRM#
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EXHIBIT “A”
See attached.
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