HomeMy WebLinkAboutProvisionally Adopt Ordinance No. 1815, Lease to Dayhuff for Water Treatment Plant property for grazing.pdf1
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Debbie Arkell, Director of Public Service
Chuck Winn, Assistant City Manager
SUBJECT: Ordinance No. 1815 authorizing the City Manager to enter into a 1-year
ground lease with Steven Dayhuff for the lease of Water Treatment Plant property near Mystic
Heights Subdivision for the purpose of farming.
MEETING DATE: August 22, 2011
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Authorize the City Manager to enter into a 1-year lease with Steven
Dayhuff for the purpose of farming on 18 acres of the Water Treatment Plant property near
Mystic Heights Subdivision.
BACKGROUND: The City of Bozeman has leased the Water Treatment Plant property to
Steven Dayhuff since 1995. Per the lease, Mr. Dayhuff is required to control noxious weeds.
Section 2.11 of the Bozeman City Charter requires the Commission to adopt an ordinance any
time the Commission “convey(s), lease(es) or authorize(s) the conveyance or lease of any lands
of the city.”
Section 7-8-4201, Montana Codes Annotated (MCA) authorizes the City to lease property upon a
vote of two-thirds (2/3) of the Commission which requires an affirmative vote of four members
of the five member Bozeman City Commission.
This Ordinance is not codified but will be kept by the City Clerk and entered into a disposition
list in numerical order with all other ordinances of the City and shall be organized in a category
entitled “Conveyances and Leases of City Land.”
FISCAL EFFECTS: The property is used for grazing purposes and the lessee controls weeds so
the City does not incur the costs for maintenance. Lessee pays $400.00 per year of use of the
land.
ALTERNATIVES: As suggested by the City Commission.
Attachments: Ordinance 1815
Water Treatment Plant Property Lease
280
ORDINANCE NO. 1815
Page 1 of 3
ORDINANCE NO. 1815
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A 1-YEAR
GROUND LEASE WITH STEVEN G. DAYHUFF FOR THE LEASE OF WATER
TREATMENT PLANT PROPERTY NEAR THE MYSTIC HEIGHTS SUBDIVISION,
FOR THE PURPOSE OF FARMING.
WHEREAS, the City of Bozeman desires to lease property at the Water Treatment Plant
for farming purposes as it has done since 1989; and
WHEREAS, said lease allows land to be grazed and/or farmed; and
WHEREAS, Steven Dayhuff has indicated his desire to renew said lease; and
WHEREAS, the lease of this property benefits the public interest because the land is
used for agricultural purposes and lessens the City’s resources to maintain it; and
WHEREAS, Section 2.11 of the Bozeman City Charter requires the Commission to
adopt an ordinance when the Commission "convey(s), lease(es)or authorize(s) the conveyance or
lease of any lands of the city;" and
WHEREAS, Section 7-8-4201, MCA, authorizes the City to lease property upon a vote
of 2/3 of the Commission which requires an affirmative vote of four members of the five
member Bozeman City Commission; and
WHEREAS, should this Ordinance never be finally adopted by the City Commission, the
lease shall have no binding effect.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
Section 1
282
ORDINANCE NO. 1815
Page 2 of 3
The City Commission hereby authorizes the City Manager to enter into the attached 1-year
ground lease (Exhibit A) with Steven Dayhuff for lease of Water Treatment Plant Property
near Mystic Heights Subdivision, Bozeman, MT. The lease is incorporated herein by
reference and made a part of this Ordinance.
Final execution of the lease is dependent upon final adoption of this Ordinance 1815 and as
such the City Manager cannot execute the lease until 30 days after second reading of this
Ordinance.
Section 2
Repealer.
All provisions of the ordinances of the City of Bozeman in conflict with the provisions of
this ordinance are, and the same are hereby, repealed and all other provisions of the
ordinances of the City of Bozeman not in conflict with the provisions of this ordinance
shall remain in full force and effect.
Section 3
Savings Provision.
This ordinance does not affect the rights and duties that matured, penalties that were
incurred or proceedings that were begun before the effective date of this ordinance. All
other provision of the Bozeman Municipal Code not amended by this Ordinance shall
remain in full force and effect.
Section 4
Severability.
That should any sentence, paragraph, subdivision, clause, phrase or section of this
ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not
affect the validity of this ordinance as a whole, or any part or provision thereof, other than
the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity
of the Bozeman Municipal Code as a whole.
Section 5
Codification.
This Ordinance shall not be codified but shall be kept by the City Clerk and entered into a
disposition list in numerical order with all other ordinances of the City and shall be
organized in a category entitled “Conveyances and Leases of City Land.”
Section 6
Effective Date.
This ordinance shall be in full force and effect thirty (30) days after final adoption.
283
ORDINANCE NO. 1815
Page 3 of 3
PROVISIONALLY PASSED by the City Commission of the City of Bozeman, Montana,
on first reading at a regular session held on the 22nd of August, 2011.
____________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
____________________________________
STACY ULMEN, CMC
City Clerk
FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City
of Bozeman, Montana on second reading at a regular session thereof held on the 12th of
September, 2011. The effective date of this ordinance is __________, __, 2011.
_________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
_______________________________
STACY ULMEN, CMC
City Clerk
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney
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Dayhuff – Water Treatment Plant Property lease
Page 1 of 5
AGRICULTURAL LEASE
THIS AGREEMENT, made and entered into this ______ day of ______, 2011, by and
between the City of Bozeman, a municipal corporation located at 411 East Main Street, Bozeman,
Montana 59715, hereinafter referred to as LESSOR, and Steven G. Dayhuff of
6981 Bristol Lane, Bozeman, Montana, hereinafter referred to as LESSEE.
WITNESSETH:
1. Premises Leased:
For and in consideration of the rents to be paid and the covenants to be performed by
Lessee as hereinafter set forth, Lessor does hereby demise, lease and let unto Lessee those certain
lots, pieces or parcels of real property situated, lying and being in the County of Gallatin, State of
Montana, and more particularly described as follows:
The South Half of the Southeast Quarter of the Southeast Quarter
(S1/2SE1/4SE1/4) of Section 1, Township 3 South, Range 5 East, M.P.M.,
containing approximately 18.5791 acres, more or less, according to a plat and
survey thereof entitled Mountain Shadows Estates Masterplan, a Subdivision in
Gallatin County, Montana, filed in the office of the County Clerk and Recorder of
Gallatin County, Montana, on the 6th day of October, 1970.
2. Term:
To have and to hold said premises according to the provisions hereof for a period of (1)
year from and after the date first above written, and unless terminated upon notice in writing
given by either party to the other not less than sixty (60) days prior to the end of the initial term or
any annual extension thereof, unless sooner terminated as herein provided.
3. Consideration:
Lessee shall pay to the Lessor, as rental for the demised premises, the sum of $400 per
year. This payment shall be made to Lessor annually on or before the first day of July and shall be
paid to Lessor at its principal offices in Bozeman, Montana.
4. Repairs and Improvements:
Lessee agrees to protect all improvements upon said premises and to keep the same in as
good condition and state of repair as the same shall be at the time this Lease is executed,
reasonable wear, tear, and damage by the elements excepted. Any new improvements made
during the term of this Lease shall remain on the land as property of the Lessor unless otherwise
excepted by the terms of this Lease.
The parties further agree that as of the date of this Lease Agreement, the fences which
surround the leased premises may need repair and/or replacement during the term of this Lease.
In this connection, and provided that it is mutually agreed upon by the parties in writing, such
repair and/or replacement shall be accomplished during the term of this Lease. Lessor shall bear
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Dayhuff – Water Treatment Plant Property lease
Page 2 of 5
the cost of the materials necessary to effect this repair/replacement and Lessee shall provide the
labor.
5. Use of Premises:
Lessee agrees to utilize said premises in a good farmer-like manner and according to the
ordinary methods of husbandry employed in the area and to commit no waste upon the property.
Lessee agrees that he will not use, or permit to be used, any part of said premises for any other
purpose than normal farming or grazing purposes without the prior written consent of the Lessor.
Lessee further agrees to comply with all State of County laws and regulations regarding the
control of noxious weeds.
6. No Assignment or Sublease:
Lessee agrees that he will not assign this Lease nor will he sublet the premises, or any part
thereof, without the prior written consent of the Lessor.
7. Surrender of Premises to Lessor:
Lessees further agrees that at the termination of this Lease, whether by expiration of its
term, by default, or as otherwise provided herein, he will immediately surrender possession of
said premises to Lessor with the improvements thereon in as good condition and repair as the
same now are, reasonable wear, tear and damage from the elements alone excepted.
8. Lessor’s Right to Terminate:
Lessor hereby reserves, and Lessee grants to Lessor, the right to terminate this Lease at
any time upon sixty (60) days written notice; provided, however, that if the Lessee has seeded and
fertilized the premises and said sixty (60) days run prior to grain harvest or first cutting, this
Lease shall be extended until the harvest or first cutting has been completed.
9. Notice to Lessee:
Notice many be given by Lessor to Lessee by mailing the same to Lessee at the address
provided herein. Notice shall be deemed delivered when the notice is deposited with the United
States Post Office, first class postage prepaid.
10. Defaults:
Should Lessee default in the payment of any rental, or otherwise default in the
performance of any term or condition of this agreement, Lessor may immediately re-enter and
re-take possession of the premises, or any part thereof, without notice and without the necessity of
resorting to any legal action whatsoever, without such re-entry working a forfeiture of the rents to
be paid, or at its option, Lessor may cancel this lease and re-enter and re-take possession.
11. Access:
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Dayhuff – Water Treatment Plant Property lease
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There is further reserved unto the Lessor, its successors and assigns, the right of access
and entry upon the lands to make field inspections, examinations, soil tests, and other evaluations
in connection with a determination of the highest and best use of the lands herein leased.
12. Hold Harmless - Liability Insurance:
Lessor shall not be liable in any manner to the Lessee, or to any other party or parties, for
any loss, cost, damage or injury arising out of or in any manner connected with the use of said
leased premises, or any part thereof, or arising out of or in any manner connected with the
condition thereof or the previous maintenance thereof. Lessee shall indemnify and hold Lessor
harmless from any and all injury, cost, loss, liability, expense or damage, or claim thereof.
13. Anti-Discrimination:
Lessee agrees not to discriminate in the fulfillment of this agreement on the basis of race,
color, religion, creed, sex, age, marital status, national origin, or actual or perceived sexual
orientation, gender identity or disability.
14. Miscellaneous Covenants and Provisions:
a. Lessee agrees that he will not use or permit the use of the demised premises
contrary to any valid laws of the State of Montana or ordinance of the County of Gallatin and City
of Bozeman and will save Lessor harmless from any and all claims for damages which may be
sustained by reason of anything which may occur upon said premises or arise from the use or
occupancy thereof by the Lessee.
b. The covenants and conditions of this Lease shall be deemed continuing and any
forbearance by Lessor to enforce forfeiture on the occasion of one or more breaches thereof shall
not be construed as a waiver of the right to enforce such forfeiture on any subsequent breach.
c. It is mutually agreed and understood that in the event either party hereto shall
bring any legal action against the other to enforce any right or obligation based upon this Lease,
the successful party in such legal action shall be entitled to recover in such action a judgment for
all costs and expenses of any kind and nature whatsoever incident to the prosecution or defense of
such action or the preparation thereof, including reasonable attorney’s fees.
d. It is mutually understood and agreed that time shall be of the essence of this
agreement and that the terms hereof shall bind the heirs, personal representatives, successors and
assigns of the parties hereto, but nothing in this paragraph shall be construed as a consent by the
Lessor to any assignment of this Lease, or any interest therein by the Lessee, except as provided
in paragraph 6 of this Lease.
e. It is mutually understood and agreed that all prior understandings of the parties,
either written or oral, are merged herein and this document constitutes the entire understanding of
the parties.
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Dayhuff – Water Treatment Plant Property lease
Page 4 of 5
IN WITNESS WHEREOF, the parties hereto have set their hands and seal the day and
year first above written.
LESSOR:
CITY OF BOZEMAN
By: ________________________________
Chris A. Kukulski
City Manager
ATTEST:
___________________________
Stacy Ulmen
City Clerk
STATE OF MONTANA )
) ss.
County of Gallatin )
On this __________ day of ___________________, 2008, before me, the undersigned a
Notary Public for the State of Montana, personally appeared CHRIS A. KUKULSKI and STACY
ULMEN, known to me to be the City Manager and City Clerk, respectively, of the City of
Bozeman and the persons whose names are subscribed to the within instrument and
acknowledged 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 Notarial Seal the
day and year first above written.
(SEAL)
__________________________________________
Notary Public for the State of Montana
__________________________________________
(Printed Name of Notary Public)
Residing at ________________________________
My commission expires ______________________
LESSEE:
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Dayhuff – Water Treatment Plant Property lease
Page 5 of 5
_______________________________________
Steven G. Dayhuff
STATE OF MONTANA )
) ss.
County of Gallatin )
On this ____________ day of _____________________, 2008, before me, the
undersigned, a Notary Public for the State of Montana, personally appeared STEVEN G.
DAYHUFF, known to me to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the
day and year first above written.
(SEAL)
__________________________________________
Notary Public for the State of Montana
__________________________________________
(Printed Name of Notary Public)
Residing at ________________________________
My commission expires ______________________
289