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HomeMy WebLinkAboutFinal Adoption of Private Access Easement and agreement with Northwestern Energy at Lower Yards Commission Memorandum TO: Honorable Mayor and City Commission FROM: Brian Heaston, Project Engineer Craig Woolard, Director of Public Services SUBJECT: Finally adopt Ordinance No. 1860 - An ordinance of the City Commission of the City of Bozeman, Montana, authorizing the City Manager to sign a private access easement and agreement granting NorthWestern Energy legal access across a certain portion of the City of Bozeman Lower Yards property, Tract 2 of C.O.S. 2818, to the south end of the existing NorthWestern Energy gas gate station facility, Tract 1 of C.O.S. 2818. MEETING DATE: March 11, 2013 AGENDA ITEM TYPE: Consent Item RECOMMENDATION: Finally adopt Ordinance No. 1860 - An ordinance of the City Commission of the City of Bozeman, Montana, authorizing the City Manager to sign a private access easement and agreement granting NorthWestern Energy legal access across a certain portion of the City of Bozeman Lower Yards property, Tract 2 of C.O.S. 2818, to the south end of the existing NorthWestern Energy gas gate station facility, Tract 1 of C.O.S. 2818. BACKGROUND: NorthWestern Energy desires to obtain a private access easement from the City of Bozeman across a certain portion of its Lower Yards property at 1812 North Rouse Avenue to access the south end of its existing gas gate station facility at 2008 North Rouse Avenue. The location of the easement generally covers the existing access driveway from North Rouse that has historically provided access to the south end of the gas gate station across a small portion of the Lower Yards property as depicted upon ‘Exhibit A’ to the attached Private Access Easement. Although this access driveway has existed for many years, an easement providing legal access has never been recorded with the Gallatin County Clerk & Recorder. City Charter requires adoption of an ordinance to convey lands owned by the City. The attached ordinance, once effective, will provide authorization for the City Manager to execute the private access easement. NorthWestern energy has consented to the easement language. The ordinance was provisionally approved by the City Commission on February 25, 2013. UNRESOLVED ISSUES: None. ALTERNATIVES: As recommended by the Commission. FISCAL EFFECTS: None Attachments: Ordinance No. 1860; Private Access Easement and Agreement w/Exhibit A Report compiled on: February 7, 2013 86 ORDINANCE 1860 Page 1 of 4 ORDINANCE NO. 1860 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, AUTHORIZING THE CITY MANAGER TO SIGN A PRIVATE ACCESS EASEMENT GRANTING NORTHWESTERN ENERGY LEGAL ACCESS ACROSS A CERTAIN PORTION OF THE CITY OF BOZEMAN LOWER YARDS PROPERTY, TRACT 2 OF C.O.S. 2818, TO THE SOUTH END OF THE EXISTING NORTHWESTERN ENERGY GAS GATE STATION FACILITY, TRACT 1 OF C.O.S. 2818. WHEREAS, the City of Bozeman owns real property known as the Lower Yards located at 1812 North Rouse Avenue, with a legal description of Tract 2 of C.O.S. 2818, NE¼ Section 6, T2S, R6E, P.M.M., City of Bozeman, Gallatin County, Montana; and WHEREAS, NorthWestern Corporation, dba NorthWestern Energy owns real property containing a natural gas gate station facility at 2008 North Rouse Avenue with a legal description of Tract 1 of C.O.S. 2818, NE¼ Section 6, T2S, R6E, P.M.M., City of Bozeman, Gallatin County, Montana; and WHEREAS, Northwestern Energy desires to obtain a private access easement over, through, and across that certain access driveway as it currently exists on the above described City of Bozeman real property connecting North Rouse Avenue to the south end of the above described NorthWestern Energy real property; and WHEREAS, a private access easement reflects the City of Bozeman’s intent to allow use of the access driveway by NorthWestern Energy while assuming certain responsibilities; and WHEREAS, Section 2.11 of the Bozeman City Charter requires adoption of an ordinance when the City “convey[s]… or authorize[s] the conveyance… of any lands of the city”. 87 ORDINANCE 1860 Page 2 of 4 NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 The Bozeman City Commission hereby accepts and authorizes the City Manager to sign the private access easement which is attached to this Ordinance as ‘Attachment 1’. By accepting this offer the Commission authorizes the conveyance of the attached private access easement to NorthWestern Energy. 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 Instruction. The provisions of this Ordinance shall not be codified in the Bozeman Municipal Code; rather, this Ordinance shall be maintained by the City Clerk in an indexed file of all Ordinances not to be codified. 88 ORDINANCE 1860 Page 3 of 4 Section 6 Effective Date. This ordinance shall be in full force and effect 30 days after final adoption. PROVISIONALLY PASSED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 25th day of February, 2013. ____________________________________ SEAN A. BECKER, Mayor ATTEST: _______________________________ STACY ULMEN, CMC City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 89 ORDINANCE 1860 Page 4 of 4 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 11th day of March, 2013. The effective date of this ordinance is the 10th day of April, 2013. _________________________________ SEAN A. BECKER, Mayor ATTEST: _______________________________ STACY ULMEN City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 90 Return to: City Clerk PO Box 1230 Bozeman, MT 59771-1230 Private Access Easement and Agreement This private access easement and agreement is made and entered into this day of , 2013, in consideration of $1.00 and for other and valuable considerations, receipt of which is hereby acknowledged, by and between the City of Bozeman, GRANTOR, a municipal corporation of the State of Montana, with offices at 121 North Rouse Avenue, Bozeman, Montana 59715, , and NorthWestern Corporation, dba NorthWestern Energy, GRANTEE, a Delaware corporation, with offices at 40 East Broadway, Butte, Montana 59701. Recitals WHEREAS GRANTOR is the owner of the following described real property: Tract 2 of Certificate of Survey No. 2818, located in the NE1/4 Section 6, T2S, R6E, P.M.M., Gallatin County, Montana, according to the official plat thereof, filed in the office of the Gallatin County Clerk & Recorder as Document No. 2415648. WHEREAS GRANTEE is the owner of the following described real property: Tract 1 of Certificate of Survey No. 2818, located in the NE1/4 Section 6, T2S, R6E, P.M.M., Gallatin County, Montana, according to the official plat thereof, filed in the office of the Gallatin County Clerk & Recorder as Document No. 2415648. WHEREAS GRANTEE desires to obtain a private access easement over, through, and across that certain access driveway as it currently exists on the GRANTOR’S real property connecting North Rouse Avenue to the south end of GRANTEE’S real property. WHEREAS a private easement reflects the GRANTOR’S intent to allow use of the access driveway by GRANTEE while assuming certain responsibilities. NOW, THEREFORE, in consideration of the mutual covenants, conditions, terms and agreements contained herein, the parties agree and covenant as follows: 1. Private Access Easement. GRANTOR hereby grants to GRANTEE, its successors and assigns, the right to use that access driveway, as it currently exists, connecting North Rouse Avenue to the south end of GRANTEE’S real property. The access driveway is 91 generally depicted upon ‘Exhibit A’ which by this reference is made a part hereof. This private access easement shall run with the land, shall be exclusive to the GRANTEE, its agents and licensees, in no way shall limit the authority of the GRANTOR to use easement for its own purposes so long as such use does not unreasonably hinder GRANTEE’S use, and shall be binding upon the parties for the term set forth below. 2. Maintenance of Access Driveway. GRANTEE shall have the right and responsibility to maintain the access driveway as is necessary to allow access to its property. GRANTEE agrees to coordinate its maintenance activities with GRANTOR prior to beginning maintenance work on the access driveway. GRANTEE shall repair at its expense any damage to GRANTOR’S property resulting from the maintenance of the access driveway to a like or similar condition as it existed prior to performing the maintenance activity causing the damage. 3. Indemnification/Waiver. GRANTEE, its successors and assigns, shall indemnify,hold harmless, and defend GRANTOR, its directors, officers, employees, contractors and agents, from and against all claims, demands, losses, damages, fines, penalties, costs and fees (including reasonable attorney fees and court costs incurred enforcing this indemnity obligation or defending a third-party claim through any final appeal) arising from the alleged negligence or intentional conduct of GRANTEE, its employees, contractors, agents, or licensees. The indemnification obligation of GRANTEE shall survive the termination of this agreement. GRANTEE waives any and all claims and recourse against the GRANTOR or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with the use of this private access easement except responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent per 28-2-702, MCA. 4. Term and Release of Easement. So long as the access driveway is used to access GRANTEE’S real property as generally depicted upon ‘Exhibit A’, this easement shall continue in effect. If at a future date access to GRANTEE’S real property is abandoned or reconfigured from that generally depicted upon ‘Exhibit A’, this easement shall cease to be effective and the GRANTEE shall execute and record a release of its rights, granted hereunder, to the extent of the abandonment or reconfiguration. 5. Time and Parties. Time of performance is of the essence with this agreement. All terms and provisions shall extend to and be binding upon GRANTEE’S and GRANTOR’S heirs, personal representatives, successors and assigns. 6. Entire Agreement. This agreement supersedes all prior discussions and agreements between the parties with respect to the subject matter hereof and contains the sole and entire agreement between the parties. 7. No Third Party Beneficiary. The terms and provisions of this agreement are intended solely for the benefit of each party and their respective successors or assigns. It is not the parties’ intent to confirm third part beneficiary rights upon any other person or entity. 92 8. Headings. The headings used in this agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof. The parties have executed this instrument on the date first above written. NorthWestern Corporation, dba NorthWestern Energy, a Delaware CITY OF BOZEMAN corporation BY: By: Its: City Manager Its: Attest: Its: City Clerk STATE OF MONTANA ) ) ss. County of Gallatin ) On this day of , 2013, before me, 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 for 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 seal on the day and year first above written. (SEAL) Notary Public for the State of Montana (Printed Name) Residing at Bozeman, Montana My Commission Expires: / /20 93 STATE OF ) ) ss. County of ) On this day of , 2013, before me, a Notary Public for the State of , personally appeared, , known to me to be the of NorthWestern Corporation, dba NorthWestern Energy, a Delaware corporation and the person whose name is subscribed to the within instrument and acknowledged to me that they executed the within instrument for and on behalf of NorthWestern Corporation, dba NorthWestern Energy, a Delaware corporation. 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) Residing in My Commission Expires / /20 94 N ROUSE AVE .0 100 200 300 40050Feet Exhibit APrivate Access Easement 1:1,200 Tract 2 COS 2818Tract 1 COS 2818Private Access Easement 95