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HomeMy WebLinkAbout23 - Easement Type Unknown - Bozeman Fiber Inc., dba Yellowstone Fiber - Park Area 1 & West Park Manor, First Addition, Block 6 Return to: 2799096 City of Bozeman page- 1 of 14 44f14J2023 'ou 02 53 20 PM FeeMISC0.fl0 City Clerk Eric 5emerad - Gallatin County MT PO Box 1230 11111111IIt111 NIII IIII IIIIIII IIIIII IIII IIII IIIsl lllll l h 1111l1l1111IR III, Bozeman, MT 59771-1230 WHEN RECORDED MAIL TO: Yellowstone er 77A Nu t Lane Belgr e,MT 59714 008 APN# CABLE AND FACILITIES EASEMENT This CABLE AND FACILITIES EASEMENT (`'Agreement") is entered into between the City of Bozeman, a Municipal Corporation of the State of Montana,located at 121 N. Rouse Ave, P.O.Box1230, Bozeman, MT 59771-1230("Grantor"), and Bozeman Fiber, Inc,a Montana domestic nonprofit public benefit corporation dba Yellowstone Fiber located at 77A Nugget Lane, Belgrade, Montana 59714 (together with its successors and assigns"Grantee"). Grantor and Grantee may hereinafter be referred to collectively as the "Parties"or singularly as the "Party". RECITALS: A. Grantor is the owner of certain real property located in Gallatin County, Montana,which is legally described as (''Grantor's Property"): Easement Description: Being a portion of Park Area 1, Amended Plat of Park Area&a portion of Block 6 of the West Park Manor, First Addition, located in the northeast 1/4, Section 11, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana, and being more particularly described as follows: Commencing at the east 1/4 corner Section 11, thence WEST a distance of 668.03 feet, thence NORTH a distance of 1247.49 feet to the Point of Beginning; thence N89°26'57"W a distance of 15.00 feet; thence N00°33'03"W a distance of 95.00 feet; thence S89°26'57"E a distance of 15.00; thence S00°33`03"E a distance of95.00 feet,to the Point of Beginning. Said easement contains 0.03 acres (1425 sq_ ft) more or less. 1 CABLE AND FACILITIES EASEMENT 2799096 Page 2 of 10 04/1 4/2023 02.53.20 PM B. Grantee wishes to acquire from Grantor, and Grantor wishes to grant to Grantee, on the terms and conditions set forth herein, a perpetual right and non-exclusive easement as described in Section 2 below, together with the rights of ingress and egress, in, under, through, over, across, above, and upon Grantor's Property. NOW, THEREFORE, for good and valuable consideration provided by Grantee to Grantor as identified on Exhibit B and the mutual covenants, terms, and conditions set forth herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Recitals. The Parties agree that the foregoing recitals are true and correct and are hereby incorporated into this Easement. 2. Grant of Easement. Grantor hereby grants and conveys to Grantee(together with its successors and assigns), a perpetual, non-exclusive easement for the benefit of Grantee, together with the rights of ingress and egress, in, under, through, over, across, above, and upon Grantor's Property subject to all matters of record to, at Grantee's sole cost and expense, locate, survey, conduct environmental surveys for, excavate,construct, entrench, maintain, protect, inspect, operate, repair and replace (collectively referred to as "Grantee's Necessary Actions")the cables and associated system facilities,hardware and equipment (collectively referred to as "Cables and Facilities"), graphically depicted on the drawing attached as Exhibit A and incorporated by reference, in,under,through, over, across, above, and upon Grantor's Property (the"Easement"). The Cables and Facilities permitted to be installed and maintained within the Grantor's Property are specifically described in Exhibit A,as attached hereto. Such Cable and Facilities shall be limited to a concrete pad,generator,and telecommunications shelter, in the size, height, width, dimension and locations specifically set forth in Exhibit A. The Cable and Facilities shall be installed strictly in accordance with the plans set forth in Exhibit A and shall be subject to all the terms and conditions of this Agreement. Grantee shall not construct, erect or install any structures or other improvements within Grantor's Property without the prior approval of Grantor and in accordance with City of Bozeman's Ordinances or other applicable laws, including, but not limited to, site plan review procedures. This Easement shall include the non-exclusive right of individuals or entities with which Grantee contracts to provide necessary services to its Cables and Facilities within Grantor's Property to install, maintain and operate such necessary utility facilities ("Necessary Utility Facilities") in, under, through, over, across, above, and upon Grantor's Property, provided, that such Necessary Utility Facilities comply with all the terms and conditions of this Easement, including all requirements and restrictions regarding Cables and Facilities within Grantor's Property. 2 CABLE AND FACILITIES EASEMENT 2799096 Page 3 of 10 04/1 4/2023 02.53.20 PM 3. Term of Easement. The term of the Easement shall be perpetual from the date of this Agreement. 4. Costs. Grantee shall pay for all costs associated with Grantee's Necessary Actions. Grantee shall also pay for all costs associated with constructing, installing, maintaining,or improving the Cables and Facilities and the Necessary Utility Facilities. 5. Improvements, Restoration, and Repairs. In consultation with the Grantor, Grantee shall have the right to cut, damage or remove ground, trees, plants, landscaping and other improvements within Grantor's Property to the extent reasonable and necessary, during construction,maintenance, repair or replacement of the Cables and Facilities or the Necessary Utility Facilities. If necessary, Grantee shall restore the surface of Grantor's Property to the reasonable satisfaction of Grantor in a timely manner, not to exceed ten (10)business days(or as soon as weather reasonably permits)following the completion of any of Grantee's Necessary Actions, including without limitation, construction, maintenance, repair or replacement of the Cables and Facilities or the Necessary Utility Facilities, or of any other disturbance of Grantor's Property. Grantee shall not damage Grantor's existing facilities, whether underground or overground, and in the event of such damage shall repair or cause to be repaired such damage, at Grantee's sole cost and expense. 6. Easement Conditions. The Easement shall be subject to the following conditions: a. The Parties expressly acknowledge that the Easement is located within public property that may be utilized by the public for park or other purposes. Grantee agrees, that, at all times, this Easement shall be subject to any use of the public property by the Grantor and the public. b. Grantor reserves its existing uses,together with any future uses, of the Easement Property which do not unreasonably interfere with Grantee's use of the Easement Property. C. Any and all rights granted herein are subject to the rights of existing utilities, rights-of-way, easements or other property interests in the Grantor's Property. Grantee shall be responsible, at Grantee's sole cost and expense, for obtaining consents and approvals, including those of the Grantor for relocating or modifying the alignments of existing utilities as of the date of this Agreement, if any, in order to maintain reasonable clearances between such utilities and the Cables and Facilities or the Necessary Utility Facilities. d. The Easement granted herein is subject to the rights of Grantor and its invitees, successors and assigns to use the surface of Grantor's Property, provided such use is reasonably compatible with the use of the Grantor's Property 3 CABLE AND FACILITIES EASEMENT 2799096 Page 4 of 10 04/1 4/2023 02.53.20 PM by Grantee for the purposes described herein. No buildings, structures, walls or other improvements which jeopardize the safety or functioning of the Grantee's Cables and Facilities or the Necessary Utility Facilities or which unreasonably impair Grantee's access to the Cables and Facilities or the Necessary Utility Facilities shall be placed on the Easement Property. Notwithstanding the foregoing, Grantor and its successors and assigns shall have the right to develop the Grantor's Property with driveways, parking areas, landscaping areas, curbs, gutters, and paving as Grantor deems appropriate in its sole discretion; provided, that Grantor first provides Grantee thirty (30) days written notice of its intent to install such developments. e. Grantee shall cause all of its activities hereunder to be performed in a safe manner and shall not cause to exist any dangerous condition within Grantor's Property. Grantee shall, at Grantee's sole cost and expense, perform all maintenance of the Cables and Facilities within the Easement Property. Grantee shall perform such maintenance of the Cables and Facilities in compliance with all applicable zoning laws, regulations and ordinances. Grantee shall remove or paint over any graffiti on the Cables and Facilities within the Easement Property within three (3) business days from written notice from the Grantor. 7. Fencing or Protection of Grantee's Cables and Facilities or Other Pro g . In consultation with the Grantor, Grantee shall have the right to install fencing or other measures of protection from damage or vandalism in or around the Cables and Facilities on Grantor's Property. 8. Abandonment. Grantee may at any time permanently abandon this Easement. Grantee's discontinued use of the Easement and/or the Cables and Facilities for a term of one (1) year shall be deemed a permanent abandonment without regard to Grantee's intent. Upon such abandonment action, Grantee shall remove improvements constructed thereon within sixty (60) calendar days of receipt of written request from Grantor following such abandonment and shall execute and record a reconveyance and release hereof within fifteen (15) business days of receipt of written request from Grantor following such abandonment, whereupon this Easement and all rights and privileges shall be fully cancelled and terminated. Grantee shall restore the surface of Grantor's land to the reasonable satisfaction of Grantor following the removal of the Cables and Facilities. 9. Notice. Unless specifically stated otherwise in this Agreement, all notices, waivers, and demands required or permitted hereunder shall be in writing and delivered to the addresses set forth below, by one of the following methods: (a)hand delivery,whereby delivery is deemed to have occurred at the time of delivery; (b) a nationally recognized overnight courier company,whereby delivery is deemed to have occurred the business day following deposit with the courier;(c)registered United States mail,signature required and postage-prepaid, whereby delivery is deemed to have occurred on the third business day following deposit with the United States Postal Service: or (d) electronic transmission 4 CABLE AND FACILITIES EASEMENT 2799096 Page 5 of 10 04/1 4/2023 02.53.20 PM (facsimile or email) provided that the transmission is completed no later than 4:00 p.m. MST on a business day and the original also is sent via overnight courier or United States Mail,whereby delivery is deemed to have occurred at the end of the business day on which electronic transmission is completed. To Grantor: City of Bozeman 121 N Rouse Ave Bozeman, MT 59715 To Grantee: Yellowstone Fiber 77A Nugget Lane Belgrade, MT 59714 10. Event of Default. if Grantee fails to make the annual payment identified in paragraph 1 of Exhibit A or is in default of any other provision of this Agreement,Grantor may provide written notice to Grantee of such failure to pay or other default. Grantee shall have thirty (30) days from the date of written notice to cure the failure to pay or other default. If Grantee fails to cure the non-payment or default within thirty (30) days, this Easement shall be terminated and Grantee shall execute a record of reconveyance and release hereof within thirty (30) days of the termination date, whereupon this Easement and all rights and privileges other than the removal and indemnification provisions shall be fully cancelled and terminated. 11. Binding on Successors. The provisions of this Agreement, including both the benefits and burdens,and subject to its limitations,shall be appurtenant to and shall run with the title to Grantor's Property and shall be binding upon and inure to the successors and assigns of Grantor. Grantee may assign its rights and obligations under this Agreement this Easement, in whole or in part, subject to Grantor's written permission; provided, however, that notwithstanding the forgoing provision, Grantee shall have no obligation to obtain Grantor's written permission to assign the Easement for purposes of Grantee's financing. 12. Amendment. This Easement may be amended only by written instrument executed by both the Grantor and Grantee. 13. Indemnity. Grantee shall indemnify and hold Grantor harmless from all liabilities, damages, causes of action, suits, reasonable attorney's fees, costs, losses, and expenses to the extent arising from or related to Grantee's use of the Easement, including such activities by Grantors' agents, contractors, and employees, except those liabilities, damages, causes of action, suits, attorney's fees, costs, and expenses arising from the negligent or intentional acts of Grantor, or Grantor's employees, contractors, guests, or invitees. _5 CABLE AND FACILITIES EASEMENT 2799096 Page 6 of 10 04/1 4/2023 02.53.20 PM 14. Entire Agreement. Except as expressly set forth herein, this instrument, including any exhibits, constitutes the entire agreement of the parties and supersedes all prior understandings, representations or agreements of the parties regarding the subject matter in this document. SIGNATURE PAGE TO FOLLOW 6 CABLE AND FACILITIES EASEMENT 2799096 Page 7 of 10 04/1 4/2023 02:53:20 PM GRANTOR: DATED this NAix day of A�f ram; I , 2 OR 3. CITrO OZEMAN � : • • TIT C t-ry MgtJA-&i6V- ACCEPTED: * _ CITY OF BOZEMAN •' J883 -,• Ir by its G a�r y Nlr�rlC��iz ATTEST: STATE OF MONTANA ) ):ss County of Gallatin ) On this day of i , 20Z3, before me, a Notary Public for the State of Montana,personally appe red JEFF M11[ELICH and MIKE MAAS,known to me to be the City Manager and for the City of Bozeman C►•i y p and the persons whose names are subscribed to the within instrument, a3d acknow e ged to me that they executed the same for and on behalf of the City of Bozeman. In witness whereof, I have hereunto set my hand and affixed my seal on the day and year first written above. J w�+ e k c vvi4y— (SEAL) otary public for the state of Montana Residing at Bozeman, Montana JULIE HUNTER My Commission Expires: �J!Lwk Ili Z07- Notary PUbilc �pTARfgj. for the State of Montana Residing at: �.SEAL,-e Bozeman, Montana My Commission Expires: `'• June 11, 2025 7 CABLE AND FACILITIES EASEMENT 2799096 Page 8 of 10 04/1 4/2023 02.53.20 PM GRANTEE: DATED this /0 day of April 2023. BOZEM FIBER, INC a LOWSTONE FIBER TITLE CEO STATE OF MONTANA ) ):ss County of Gallatin ) On this _ t C) day of April 2023, before me, a Notary Public for the State of Montana, personally appeared GREG METZGER, known to me to be the CEO of Bozeman Fiber, Inc dba Yellowstone Fiber and the person whose name are subscribed to the within instrument, and acknowledged to me that they executed the same for and on behalf Bozeman Fiber, Inc. dba Yellowstone Fiber In witness whereof, I have hereunto set my hand and affixed my seal on the day and year first written above. (SEAL) " DAVID PALMER Notary public for the state of Montana Notary Public o Residing at 5,p�� , Montana XUYnRiq�. _for the State of Montana L : *; Residing at: My Commission Expires:* �.S -EAL Bozeman, Montana ��;� •• �'sc' My Commission Expires: June 24,2026 8 CABLE AND FACILITIES EASEMENT 2799096 Page 9 of 10 04/1 4/2023 02.53.20 PM Exhibit A ATTACHED EASEMENT DESCRIPTION Exhibit B 1. An annual sum of One Hundred Dollars and 00/100 ($100.00), payable as mutually agreed by the Parties. 2. At an annual value of$960 an internet connection will be provided at this location as requested by the Grantor. 3. As requested by the Grantor a"wrap"chosen and designed by the Grantor's contractor will be placed on the but (or cabinet if appropriate) to be replaced every eight (8) years. This wrap will typically cost more than $10,000 and/or less than $12,000 for a minimal annualized minimum value of $1,250. This wrap will be graffiti resistant as described by the contractor. 9 CABLE AND FACILITIES EASEMENT 2799096 Page 10 of 10 04/1 4/2023 02:53:20 PM EXHIBIT "A " BZ007 EASEMENT LEGAL DESCRIPTION Being a portion of Park Area 1,Amended Plat of Park Area&a portion of Block 6 of the West Park Manor, First Addition, located in the northeast 1/4, Section 11,Township 2 South,Range 5 East, W BEALL ST P.M.M.,City of Bozeman, Gallatin County,Montana, and being more particularly described as follows: a EXISTING SI6EWALX 8 a Commencing at the east 1/4 corner Section 11, FOUND N$603.66'(M)(M) S g5.00'(M)E(M) S 379 30 (M)(M) FOUND X thence WEST a distance of 668.03 feet, YPC thence NORTH a distance of 1247.49 feet to the IN CONCRETE Point of Beginning thence N 89°26'57"W a distance of 15.00 feet; thence N 00"33'03"E a distance of 95.00 feet; thence S 89°26'57"E a distance of 15.00; EXISTING ASPHALT thence S 00°33'03"W a distance of 95.00 feet feet,to the Point of Beginning Said easement contains 0.03 acres(1425 sq.ft) LEGEND more or less US PUBLIC LANDS SURVEY CORNER w g r> V FOUND MONUMENT AS -n DESCRIBED c d' rn a o 0 O SETJ"x 24"REBAR WITH z rn YELLOW PLASTIC CAP A SET PK NAIL IN ASPHALT =RESTROOM BZ007 12'x22' CERTIFICATE OF SURVEYOR N 89'26'57"w(M) .00'(M) I,the undersigned,Shannon J.Marinko, 15 Registered Land Surveyor,do hereby certify that j Y Z SECTION CORNER between 12/13/2021,and ,2022, 1 a I o SECTIONS 10&11 surveyed,and described the herein easement as A M FOUND ALUMINUM shown. co x CAP DATED this day of ,2022. _ WEST(M) 1� 668.03'(M) Y Shannon J.Marinko#LS-14456 Hyalite Engineers,PLLC. 0 0 "ALITE l N DATE: 01103120 .� � SCALE: AS NOTED ,1 NJFNliHeVU' 21 n ,Eu." M .11-1 (YELLOWSTONE FIBS �� r iiorr L: tTIH SNU zLt rNx) i<c o; o�6,Ie JOB NUMBER: 213741 WEB: www.hyallteeng . com G Feet 2D SHEET: 9 OF 1 N_ 2