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
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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”.
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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
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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
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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
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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.
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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
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N ROUSE AVE .0 100 200 300 40050Feet
Exhibit APrivate Access Easement
1:1,200
Tract 2 COS 2818Tract 1 COS 2818Private Access Easement
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