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HomeMy WebLinkAboutFinal Adoption of Ordinance No. 1841, Lease of property for grazing, Part8.pdf1 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Craig Woolard, Director of Public Works Chris Kukulski, City Manager SUBJECT: Final Adoption of Ordinance No. 1841 authorizing the City Manager to enter into a 3-year ground lease with Steven Dayhuff for the lease of Water Treatment Plant property near Mystic Heights Subdivision for the purpose of grazing. MEETING DATE: September 24, 2012 AGENDA ITEM TYPE: Consent RECOMMENDATION: Authorize the City Manager to enter into a 3-year lease with Steven Dayhuff for the purpose of grazing on 18 acres of the Water Treatment Plant property near Mystic Heights Subdivision. BACKGROUND: Ordinance No. 1841 was provisionally adopted on September 10, 2012. The City of Bozeman has leased the Water Treatment Plant property to Steven Dayhuff since 1995. 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 1841 Water Treatment Plant Property Lease Report compiled on: August 16, 2012 88 ORDINANCE NO. 1841 Page 1 of 3 ORDINANCE NO. 1841 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 89 ORDINANCE NO. 1841 Page 2 of 3 The City Commission hereby authorizes the City Manager to enter into the attached 3-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 1841 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. 90 ORDINANCE NO. 1841 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 10th of September, 2012. ____________________________________ SEAN A. BECKER 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 24th of September, 2012. The effective date of this ordinance is October 24th, 2012. _________________________________ SEAN A. BECKER Mayor ATTEST: _______________________________ STACY ULMEN, CMC City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 91 Dayhuff – Water Treatment Plant Property lease Page 1 of 5 AGRICULTURAL LEASE THIS AGREEMENT, made and entered into this ______ day of ______, 2012, 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. Lessee acknowledges the Lessor will apply sludge from the Water Treatment Plant to the above-referenced premises in accordance with the Montana Department of Environmental Quality Beneficial Use Approval. This will occur in the fall of 2012 after harvest has been completed, and at other future dates. Lessor shall notify Lessee in advance of all applications. 2. Term: To have and to hold said premises according to the provisions hereof for a period of (3) years 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. 92 Dayhuff – Water Treatment Plant Property lease Page 2 of 5 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 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 93 Dayhuff – Water Treatment Plant Property lease Page 3 of 5 be paid, or at its option, Lessor may cancel this lease and re-enter and re-take possession. 11. Access: 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. 94 Dayhuff – Water Treatment Plant Property lease Page 4 of 5 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. 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 ___________________, 2012, 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 ______________________ 95 Dayhuff – Water Treatment Plant Property lease Page 5 of 5 LESSEE: _______________________________________ Steven G. Dayhuff STATE OF MONTANA ) ) ss. County of Gallatin ) On this ____________ day of _____________________, 2012, 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 ______________________ 96