HomeMy WebLinkAboutA3. Easement Northwestern Energy
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Carolyn Poissant – Trails, Open Space and Parks
Design and Development Manager
Mitch Overton – Director of Parks and Recreation
SUBJECT: Easement Modification Agreement with NorthWestern Energy for Revised Pipeline Alignment in Story Mill Community Park
MEETING DATE: January 25, 2016
AGENDA ITEM TYPE: Action
RECOMMENDATION: Approve the Easement Modification Agreement with NorthWestern
Energy for a revised pipeline alignment in Story Mill Community Park; approve the License
Agreement with NorthWestern Energy for a revised pipeline alignment in Story Mill Community
Park; and authorize the City Manager to sign the appropriate documents. It is also recommended
that the compensation for the easement be allocated for use in the construction of sitework improvements for the Story Mill Community Park Trails, Open Space, and Parks Bond project.
RECOMMENDED MOTION No. 1: I hereby move to approve the Easement Modification
Agreement with NorthWestern Energy for a revised pipeline alignment in Story Mill Community
Park and authorize the City Manager to sign the appropriate documents.
RECOMMENDED MOTION No. 2: I hereby move to approve the License Agreement with NorthWestern Energy for a revised pipeline alignment in Story Mill Community Park and
authorize the City Manager to sign the appropriate documents.
RECOMMENDED MOTION No. 3: I hereby move to approve the allocation of $60,250, the
amount of compensation received for the Northwestern Energy pipeline easement, for use in the
construction of sitework improvements for the Story Mill Community Park Trails, Open Space, and Parks Bond project.
BACKGROUND: NorthWestern Energy (NWE) holds an existing easement for a gas pipeline,
which serves northeast Bozeman and vicinity and traverses the southern portion of Story Mill
Park. NWE has submitted a proposal to abandon a portion of the existing easement and obtain an additional easement for a new pipeline installation. The proposal includes compensation in the amount of $60,250 for the additional easement, which is in accordance with a fair market value
appraisal provided by Northwestern Energy dated December 15, 2015.
Parks and Legal staff and representatives from Trust for Public Land have met several times with
NWE personnel to review the proposed pipeline alignment and to discuss the terms of the
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Easement Modification Agreement (Attachment A). A separate License Agreement (Attachment
B) covers the terms of, and construction access restrictions for, the pipeline installation.
Construction activities will impact the park, including portions of the wetland restoration
recently completed by Trust for Public Land. The terms of the License Agreement state that NWE and its subcontractors shall comply with the specifications that were utilized for the wetland restoration project and that all disturbed areas shall be returned to the existing condition
of the satisfaction of the City. NWE agreed to adjust the pipeline alignment in order to avoid a
grove of mature cottonwood trees and the section where the pipeline is to be bored will not cause
any significant disturbance of existing vegetation. There is an additional provision requiring the posting of a performance bond in the amount of 125% of the cost of all reclamation work in the park. This will help ensure that a qualified landscape contractor (to be hired by NWE) will
complete the reclamation work properly and to the satisfaction of the City.
ATTACHMENTS: Attachment A – Easement Modification Agreement
Attachment B – License Agreement for Use of Park Property
UNRESOLVED ISSUES: Parks Department staff will continue to coordinate with Northwestern Energy throughout the pipeline construction project to monitor site conditions.
ALTERNATIVES: As Directed by Commission.
FISCAL EFFECTS: The compensation of $60,250 for the easement will result in a total of
$1,910,043 for the Story Mill Community Park construction project.
Report compiled on: January 15, 2016
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EASEMENT MODIFICATION AGREEMENT PAGE 1 OF 10
ATTACHMENT A
EASEMENT MODIFICATION AGREEMENT
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EASEMENT MODIFICATION AGREEMENT PAGE 2 OF 10
After Recording, Return To:
NorthWestern Energy
Lands & Permitting Dept.
40 East Broadway
Butte, MT 59701
EASEMENT MODIFICATION AGREEMENT
This Easement Modification Agreement (“Agreement”), dated the ___ day of
__________, 2016, is made and entered into by and between NorthWestern
Corporation, d/b/a NorthWestern Energy, a Delaware corporation, with a mailing
address of 40 East Broadway, Butte, Montana 59701-9394 (“NorthWestern”), and the City
of Bozeman, a self-governing municipality operating pursuant to its Charter and the laws
of the State of Montana, with a mailing address of P.O. Box 1230, Bozeman, MT 59771
(“Owner”), and provides as follows:
Recitals
1. Owner is the owner of certain real property, located in Gallatin County, Montana,
which is described as follows:
Tract 1
Parcel 8 of Certificate of Survey No. 2865, located in Sections 31 & 32, Township
1 South, Range 8 East, and Sections 5 & 6, Township 2 South, Range 6 East,
M.P.M., Gallatin County, Montana, according to the official plat thereof on file
and of record in the office of the County Clerk and Recorder of Gallatin County,
Montana.
Tract 2
Parcel 7 of Certificate of Survey No. 2865, located in Sections 31 & 32, Township 1
South, Range 8 East, and Sections 5 & 6, Township 2 South, Range 6 East,
M.P.M., Gallatin County, Montana, according to the official plat thereof on file
and of record in the office of the County Clerk and Recorder of Gallatin County,
Montana.
Tract 3
Parcel 3 of Certificate of Survey No. 2865, located in Sections 31 & 32, Township 1
South, Range 8 East, and Sections 5 & 6, Township 2 South, Range 6 East,
M.P.M., Gallatin County, Montana, according to the official plat thereof on file
and of record in the office of the County Clerk and Recorder of Gallatin County,
Montana.
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EASEMENT MODIFICATION AGREEMENT PAGE 3 OF 10
Tract 4
Parcel 2 of Certificate of Survey No. 2865, located in Sections 31 & 32, Township 1
South, Range 8 East, and Sections 5 & 6, Township 2 South, Range 6 East,
M.P.M., Gallatin County, Montana, according to the official plat thereof on file
and of record in the office of the County Clerk and Recorder of Gallatin County,
Montana.
(the “Real Property”)
2. NorthWestern is the holder of an easement for a natural gas pipeline, affecting
Tract 1 of the Real Property, dated June 17, 1931 and recorded on June 23, 1931 in
Miscellaneous Book 11, at Page 188, in the records of the Gallatin County Clerk and
Recorder (the “Easement”).
3. NorthWestern desires to relocate a segment of the natural gas pipeline from its
present location on the Real Property, subject to the terms and conditions of this
Agreement.
Agreement
Now therefore, in consideration of not less than the appraised value and other good and
valuable consideration in hand paid, the receipt and sufficiency of which is hereby
acknowledged, NorthWestern and Owner agree as follows:
1. Relocation of Pipeline. The segment of the pipeline to be relocated, including both
the existing location to be abandoned (the “Abandoned Easement”) and the new
location where the pipeline will be built (the “Relocated Easement”), are depicted
on the attached Exhibit “A”. Subject to the other provisions of this Agreement,
NorthWestern shall use best efforts to ensure that the relocation of the pipeline
segment is completed by December 31, 2016. All costs and expenses of relocating
the segment of the pipeline shall be paid for by NorthWestern. It is understood
that the existing pipeline, now located underneath the area to be abandoned, shall
remain buried in the ground and that NorthWestern shall have no obligation to
remove it.
2. Release of Easement. Effective immediately at the time the relocated pipeline is
put into operation NorthWestern shall be deemed to release, remise and quitclaim,
without warranty of any kind, that segment of the Easement located upon the Real
Property and depicted on Exhibit “A” as “Abandoned Easement” and shall record
at the Gallatin County Clerk and Recorder’s Office, within a reasonable time
thereafter, a legal document satisfactory to the Bozeman City Attorney evidencing
the release. The pipeline in the Abandoned Easement will be evacuated of all
natural gas and will be filled and capped in accordance with a separate agreement
between the Parties.
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EASEMENT MODIFICATION AGREEMENT PAGE 4 OF 10
Nothing herein shall be deemed to release or in any way affect any other easement
which may benefit NorthWestern, other than the Easement as expressly identified
herein, and then solely as is described herein. Further, nothing herein shall affect
the Easement in the event it should burden lands other than the Real Property.
3. Grant of Easement. Owner hereby grants unto NorthWestern, for its benefit, and
that of its successors, assigns and permittees, a perpetual, non-exclusive easement
forty (40) feet in width, upon which to construct, operate, maintain, replace,
upgrade and remove one natural gas pipeline, no more than sixteen (16) inches in
diameter, and necessary appurtenances, over, under, along and across those
portions of the Real Property which are depicted on the attached Exhibit “A” as
“Relocated Easement”, together with reasonable right of access to and from the
easement area over lands of the Owner using existing roads and trails, which are
also depicted on the attached Exhibit “A”; the right to use and keep the easement
area free and clear of any and all obstructions or structures, except fences; and the
right to clear and remove all timber, brush, or vegetation from the easement area
that may in Grantee’s opinion endanger the pipeline, or necessary appurtenances.
Before conducting any maintenance or repair of the pipeline, and before clearing
or removing any timber, brush or vegetation from the easement area,
NorthWestern shall provide notice to the Owner’s Director of Parks and Recreation
or its designee at least ten (10) days in advance unless exigent circumstances
require a shorter notice period. It is agreed that the pipeline, and necessary
appurtenances shall all be located within the forty (40) foot easement area, and
other than the signage and cathodic protection test leads as required under federal
regulation, the pipeline, and appurtenances shall be buried. NorthWestern further
agrees that when maintenance and repair activities are undertaken all vehicles,
equipment and personnel involved in such activities will be contained within the
forty (40) foot easement area or within such other area for which Owner may give
prior consent in writing, which consent shall not be unreasonably withheld. Owner
reserves all right to utilize its Real Property provided such use does not
unreasonably interfere with the easement granted herein.
4. Reclamation. NorthWestern shall at its own cost and expense and promptly
following initial construction of the pipeline and any subsequent maintenance or
repairs to the pipeline, replace or repair all roads, drainage, fences, vegetation, and
other property damaged by the construction, maintenance or repairs to a condition
substantially the same as existed prior to such work and acceptable to the Owner’s
Director of Parks and Recreation or its designee.
5. Abandonment. If at any time after the pipeline is put into operation,
NorthWestern, its successors or assigns, intentionally and voluntarily ceases to
operate the pipeline for a period of more than five (5) years, the easement as
granted herein shall terminate and be of no further force or effect.
6. Indemnification. NorthWestern agrees to release, defend, indemnify and save
Owner, its agents, representatives, employees and officers (collectively, “City”)
harmless from:
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EASEMENT MODIFICATION AGREEMENT PAGE 5 OF 10
a. any and all claims, demands, costs, expenses, damages and liabilities for
injury, loss or damage to any person, entity or property arising out of,
resulting from, or occurring in connection with NorthWestern’s, its
contractor’s, and subcontractor’s, use of the easement granted herein for the
construction, installation, testing, operation, maintenance or repair to the
pipeline and any appurtenances;
b. any and all claims, demands, costs, expenses, damages, and liabilities
directly caused by the abandoned pipeline; and
c. any and all claims, demands, costs, expenses, damages, and liabilities
arising out of, resulting from, or occurring in connection with any labor
problems or disputes or any delays or stoppages of work associated with
such problems or disputes.
Nothing in this Agreement shall obligate NorthWestern to remove the abandoned
pipeline. Should the City be required to remove the abandoned pipeline by law,
court order, or any federal or state regulatory authority determination,
NorthWestern agrees to reimburse the City for all expenses related to such
removal.
Such obligations shall not be construed to negate, abridge, or reduce other rights
or obligations of indemnity that would otherwise exist. The indemnification
obligations of this Section must not be construed to negate, abridge, or reduce
any common-law or statutory rights of the indemnitee(s) which would otherwise
exist as to such indemnitee(s).
NorthWestern’s indemnity under this Section shall be without regard to and
without any right to contribution from any insurance maintained by Owner.
Should any indemnitee described herein be required to bring an action against
NorthWestern to assert its right to defense or indemnification under this
Agreement or under NorthWestern’s applicable insurance required below the
indemnitee shall be entitled to recover reasonable costs and attorney fees
incurred in asserting its right to indemnification or defense but only if a court of
competent jurisdiction determines NorthWestern was obligated to defend the
claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any
portion(s) thereof.
In the event of an action filed against Owner resulting from the Owner’s
obligations under this Agreement, the Owner may elect to represent itself and
incur all costs and expenses of suit.
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EASEMENT MODIFICATION AGREEMENT PAGE 6 OF 10
NorthWestern also waives any and all claims and recourse against the Owner 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 or incident to the performance of this Agreement 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” as per 28-2-702,
MCA.
These obligations shall survive termination of this Agreement.
7. Insurance. NorthWestern maintains insurance, including self-insured retention
and excess coverage, as set out on Exhibit “B”. At no time during the term of this
Agreement shall NorthWestern reduce its self-insured retention and excess
coverage as set out in Exhibit “B” or permit its insurance coverage insuring the
indemnification obligations assumed by NorthWestern in Section 7 fall below the
limits set out below:
Workers’ Compensation – statutory;
Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
Commercial General Liability - $1,000,000 per occurrence; $2,000,000
annual aggregate;
Automobile Liability - $1,000,000 property damage/bodily injury;
$2,000,000 annual aggregate
Subcontractors hired by NorthWestern to provide services related to the gas
pipeline on the Park Property shall carry insurance in the above amounts and
shall name the City of Bozeman as an additional insured.
8. Modifications and Assignments. 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 with respect to such
subject matter. This Agreement may not be modified or terminated unless in
writing signed by the party against whom the same is sought to be enforced.
9. Controlling Law. This Agreement shall be interpreted under and governed by the
laws of the State of Montana, without regard to conflict of law rules.
10. Interpretation. This Agreement has been reviewed by both parties, each of whom
has had the opportunity to consult with independent counsel regarding it and has
done so to the extent that such party desired. No stricter construction or
interpretation of the terms hereof shall be applied against either party as the
drafter hereof.
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EASEMENT MODIFICATION AGREEMENT PAGE 7 OF 10
11. Severability. The invalidity or unenforceability of any provision of this Agreement
shall not affect the other provisions hereof, and this Agreement shall be construed
in all respects as if such invalid or unenforceable provisions were omitted.
12. Headings. The headings of sections and paragraphs of this Agreement are for
convenience of reference only and are not intended to restrict, affect or be of any
weight in the interpretation or construction of the provisions of such sections or
paragraphs.
13. Certification. Owner represents that it is the sole owner of the Real Property, and
has the right to enter into this Agreement. NorthWestern represents that it is the
owner of the Easement, and has the right to enter into and perform this
Agreement. Further, the individuals signing for the parties each hereby represent
that they are duly authorized and empowered to execute this Agreement on behalf
of the party for whom each signs, and that once signed that this will be binding on
the parties hereto.
14. Attorneys’ Fees. In the event either party finds it necessary to employ counsel in
order to enforce or rescind any term or provision of this Agreement, including
any proceeding in bankruptcy before any officer or judge of the U.S. Bankruptcy
Court or any proceeding pertaining thereto, the prevailing party shall be entitled
to recover from the other party in addition to costs and disbursements allowed by
law, the prevailing party's reasonable attorneys’ fees, to include fees, salary and
costs of in-house counsel including those in the office of the Bozeman City
Attorney. Attorneys’ fees shall include any attorneys services rendered prior to
the institution of litigation or proceedings in bankruptcy and include all matters
pertaining to litigation, or proceedings in bankruptcy and include all matters
pertaining to litigation, or proceedings in bankruptcy as may be necessarily
incurred in such proceedings and shall include an estimate of the attorneys’ fees
to be incurred by the prevailing party following any initial decision or judgment
entered in connection with that matter.
15. Effect. The Easement, as modified hereby, and the additional grants and
agreements made by the parties shall run with the land and shall be binding on
and shall inure to the benefit of the parties to this Agreement and their respective
successors, assigns and permittees. Except as expressly set forth herein, the
Easement remains unchanged and in all other respects any other easements held
by NorthWestern which are not referenced herein remain unchanged.
* * * * *
Signatures and Notary Acknowledgements on Next Page
* * * * *
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EASEMENT MODIFICATION AGREEMENT PAGE 8 OF 10
City of Bozeman, a political subdivision
of the State of Montana
By: ______
Chris Kukulski
Its:_City Manager_______________
_
NorthWestern Corporation d/b/a
Northwestern Energy a Delaware Corporation
By: __
Patrick Asay
Its: Manager - Land & Permitting
STATE OF MONTANA )
).ss
COUNTY OF SILVER BOW )
This instrument was acknowledged before me on _____________, 2016, by
Patrick Asay, known to me to be the Manager - Land & Permitting for NorthWestern
Corporation, d/b/a NorthWestern Energy.
______ _
Printed Name: ___________________
Notary Public for the State of Montana
Residing at: _____________________
My Commission Expires: ____________
STATE OF MONTANA )
)ss.
COUNTY OF GALLATIN )
This instrument was acknowledged before me on , 2016,
by Chris Kukulski, known to be the City Manager for The City of Bozeman, a Montana
municipal corporation.
______ _
Printed Name: ___________________
Notary Public for the State of Montana
Residing at: _____________________
My Commission Expires: ____________
Project: Bozeman East Dry Creek Pipeline
Agent: Jeff Harmon
SAP No: PR 108813 - 6017262-0110
E#
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EASEMENT MODIFICATION AGREEMENT PAGE 9 OF 10
EXHIBIT “A”
Modified Easement Map
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EASEMENT MODIFICATION AGREEMENT PAGE 10 OF 10
EXHIBIT “B”
Proof of Self-Insurance Coverage’s 2014-2015 NorthWestern Corporation (dba NorthWestern Energy)
Insurance Coverage’s NorthWestern Corporation
Is a large publicly traded (Delaware) corporation:
o Federal Tax ID number: 46-0172280
Is self-insured to $1 million for property and property of others in our care, custody, and control
Is self-insured to $2 million for general liability
Is self-insured to $1 million for auto liability
Is self-insured to $2 million for workers compensation liability and is duly registered with the State
of Montana as a self-insured entity
Maintains excess liability coverage above the self-insured amounts for catastrophic situations
Additional info may be obtained from:
Chad Wilde
Risk Analyst
NorthWestern Energy
600 Market St. W
Huron, SD 57350
605-353-7620
Cell 605-354-2705
chad.wilde@northwestern.com
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NorthWestern Energy License Agreement for the Story Mill Community Park Page 1 of 12
ATTACHMENT B
LICENSE AGREEMENT
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NorthWestern Energy License Agreement for the Story Mill Community Park Page 2 of 12
LICENSE AGREEMENT FOR THE USE OF CITY PARK PROPERTY
BY NORTHWESTERN ENERGY
This License Agreement (the “Agreement”) is an agreement between the City of Bozeman, a
self-governing municipality operating pursuant to its Charter and the laws of the State of
Montana, with a mailing address of P.O. Box 1230, Bozeman, MT 59771 (the “City”) and
NorthWestern Corporation, d/b/a NorthWestern Energy, a Delaware corporation, with a mailing
address of 40 East Broadway, Butte, MT 59701-9394 (hereinafter the “Licensee”, and together
with the City the “Parties”).
In consideration of Licensee’s promises herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
1. Purpose. The City desires to authorize Licensee to temporarily access a portion
of Story Mill Park, located south of Griffin Drive between Story Mill Road and N. Rouse
Avenue (“Park Property”) for purposes of installing a re-routed section of a gas utility pipeline in
the Park Property, which generally consists of the following work and at the locations illustrated
in Exhibit A (“Pipeline Access and Layout Diagram”) and Exhibit B (“Construction Access
Restrictions”):
a. Accessing the construction area via the existing gravel road south of Griffin Drive
depicted on Exhibit A;
b. Excavation of an approximately 435 linear feet by 18 feet wide trench for direct
bury of a section of the pipeline as depicted on Exhibit A;
c. Assembly of the pipeline in an area of approximately 95,072 ft² = 2.18 acres as
depicted on Exhibit A;
d. Boring approximately 833 linear feet to install the pipeline, crossing below the
East Gallatin River to the edge of the Park Property at Story Mill Road as
depicted on Exhibit A;
e. Accessing and performing construction-related activities within the Easement as
described in the Easement Modification Agreement attached hereto as Exhibit C
and incorporated herein by reference; and
f. Reclamation activities as needed to return all impacted areas of the Park Property
to the existing condition and to the satisfaction of the City.
2. Description of Park Property. The Park Property consists of the real Property as
described in Exhibit D.
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NorthWestern Energy License Agreement for the Story Mill Community Park Page 3 of 12
3. Title. Licensee hereby acknowledges this license grants a privilege and not an
interest in the Park Property and the title of the City to the Park Property, and Licensee agrees
never to deny such title or claim, at any time, or claim any interest or estate of any kind or extent
whatsoever in the Park Property by virtue of this Agreement or Licensee’s occupancy or use
hereunder. The City may enter the site at any time to assert its real Park Property interest or for
other purposes which do not unreasonably interfere with the activities of the Licensee. Provided
nothing in this Agreement shall limit, negate or abrogate the interests and rights of the Licensee
arising pursuant to that certain Right-of-Way Easement, dated June 17, 1931 and recorded on
June 23, 1931 in Miscellaneous Book 11, at Page 188, in the records of the Gallatin County
Clerk and Recorder, as modified by that certain Easement Modification Agreement entered into
contemporaneously with this Agreement.
4. License. The City hereby grants permission to construct the pipeline,
revocable and terminable as provided herein, during the period commencing July 15, 2016
until December 31, 2016 on the terms and conditions set forth herein, which Licensee promises
to comply with and abide by. Such permission shall include the permission of Licensee to
use the Park Property to fulfill its obligations and for no other purpose. Provided however,
Licensee shall have permission to enter the Park Property by foot traffic only prior to July 15,
2016 to conduct surveys or other such pre-construction activities as may be needed.
Additionally, if Licensee is able to confirm with the City’s Representative that no nesting
Sandhill Cranes will be disturbed by the initiation of the pipeline construction prior to July 15,
2016, then Licensee may begin the pipeline construction on July 11, 2016. The term of this
License may be extended by mutual agreement of the Parties in writing.
Licensee agrees to comply with all City ordinances and other rules and regulations regarding
permits and approvals related to operations on the Park Property as well as those of any other
governmental entity having jurisdiction.
5. New Pipeline Installation.
a. Licensee agrees to consult with the City’s Representative prior to advertising
for construction bids for the construction and installation of the relocated
pipeline in order to confirm construction access areas and restrictions.
b. Construction access restrictions are shown on Exhibit B. NorthWestern will
protect each existing cottonwood tree in the areas depicted on Exhibit B with
orange safety fencing, to a height of four feet. Wooden lath with tied survey
tape flagging shall also be installed in the locations shown on Exhibit B.
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c. These construction access restrictions will be included in all contracts between
Licensee and its subcontractors who will be performing the construction and
restoration work.
d. The area where the pipeline will be installed by a trenching operation and the
area where the pipeline will be installed by a horizontal directional drilling
operation are shown on Exhibit A. In the area of the Park Property where the
pipeline will be installed by a trenching operation, Licensee will bury the
pipeline to a depth of at least 42 inches below the surface of the ground to the
top of the pipeline. In any other parts of the Park Property where the pipeline
will be installed by a horizontal directional drilling operation, the pipeline will
be installed below 42 inches deep to such depths sufficient to accommodate
the engineering requirements of a horizontal directional drill, and to
adequately protect any stream riparian areas, including the bottom of the East
Gallatin River.
e. Within a reasonable time after completion of the pipeline construction,
Licensee will provide a drawing acceptable to the City including GPS
coordinates detailing the specific location of the new pipeline and the pipeline
appurtenances on the Park Property.
6. Reclamation Work. Licensee agrees to meet with the City’s Representative
prior to advertising for construction bids for the reclamation work in order to review the scope of
work required by the City to meet NorthWestern’s reclamation obligations in the Easement
Modification Agreement.
a. In order to return the area to its current condition, NorthWestern shall follow
and comply with the specifications utilized by Trust For Public Land in its
wetlands expansion project. City’s Representative will provide these
specifications to NorthWestern.
b. Licensee shall restore any other disturbed area to its existing condition and to
the City Representative’s satisfaction.
c. Licensee or its subcontractor shall provide an estimate of the cost of reclamation
work and a performance bond guaranteeing completion of such work in amount equal
to 125% of the estimated cost of such work with a guarantee on all plant material
installations for one year from date of substantial completion.
7. Abandonment of Existing Pipeline. Upon abandonment in place of the existing
pipeline on the Park Property, Licensee will evacuate all natural gas from the abandoned
pipeline, then cut and plate the pipeline at the Park Property southeast boundary line of Parcel 8
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NorthWestern Energy License Agreement for the Story Mill Community Park Page 5 of 12
of Certificate of Survey No. 2865. The abandoned pipeline will then be filled with bentonite or
other such similar substance from the southeast boundary line of the Park Property in Parcel 8 of
Certificate of Survey No. 2865, southeasterly through the Idaho Pole Penta contamination
ground water control area to prevent ground water from moving through the abandoned pipeline back onto the Park property, and in compliance with the United States Environmental Protection
Agency and Montana Department of Environmental Quality requirements.
8. Indemnification/Insurance. The insurance and indemnification provisions of the
Easement Modification Agreement entered into contemporaneously with this Agreement, shall
apply equally to the terms of this Agreement.
9. Construction/Restrictions/Repair and Maintenance.
a. Licensee shall, at its sole cost and expense, install and maintain in good condition
a barrier fence or other suitable and customary barrier around the perimeter of any
portion of the Park Property currently under construction by Licensee. The barrier
shall be installed pursuant to a plan, approved in advance by the City’s Director of
Parks and Recreation, or its designee. Any such barrier shall be provided for in a
manner to ensure emergency responders’ access.
b. For the use of any public rights-of-way or any real Park Property of the City other
than the Park Property the Licensee shall obtain an encroachment permit from the
City’s Director of Public Works or other applicable approvals.
c. Licensee shall keep the adjacent public properties including streets, alleys, and
sidewalks free from construction debris, snow, ice, and other materials stored or
located on the Park Property. Sediment, rock, mud, ice, snow, and other debris
entering upon public property outside the Park Property from the Licensee’s
project shall be cleaned or removed immediately.
d. Licensee agrees to immediately repair any damage caused by Licensee, its agents,
invitees, guests, contractors or subcontractors to any public property outside the
Park Property including but not limited to streets, curbs, sidewalks, and other
infrastructure to, for public infrastructure, the current City standard for that
infrastructure. Licensee agrees to timely comply with any request of the City to
perform maintenance and repairs to streets, curbs, sidewalks and other
infrastructure damaged by Licensee or Licensee’s agents, invitees, guests,
contractors, or subcontractors.
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e. Any damage to the Site shall be repaired to a condition acceptable to the City.
Maintenance or repair work to the Park Property shall be performed to the City’s
reasonable satisfaction.
10. Waste, Nuisance, and Unlawful Use Prohibited. Licensee shall not commit, or
suffer to be committed, any waste on the Park Property, nor shall Licensee maintain, commit, or
permit the maintenance of any nuisance on the Park Property or use the Park Property for any
unlawful purpose. Licensee shall not do or permit anything to be done in or about the Park
Property which shall in any way conflict with any law, ordinance, rule, or regulation affecting
the occupancy and use of the Park Property, which are or may hereafter be enacted or
promulgated by any public authority.
11. Hazardous Materials. Licensee agrees and represents that it shall not store or
dispose of on the Site any “Hazardous Materials” as defined by Federal, State or local law as
from time to time amended.
12. Signage. Licensee, nor any of its agents may not install any signage except as
approved by the City’s Representative or as required by federal regulation.
13. Termination.
a. If Licensee fails to comply with any condition of this Agreement at the time or in
the manner provided for, the City may, at its option, terminate this Agreement and
be released from all obligations if the Licensee’s default is not cured within sixty
(60) calendar days after written notice of the default is provided by the City to the
Licensee. Said notice shall set forth the items to be cured. Notices shall be
provided in writing and hand-delivered or mailed to the parties at the addresses
set forth in the first paragraph of this Agreement. Failure to cure any default may
result in an order by the City’s Representative for the Licensee to cease all
operations and remove all personal Park Property from the Park Property
immediately.
b. Licensee may terminate this Agreement upon thirty (30) days prior written notice
to City. Upon termination, Licensee shall remove its equipment and
improvements, and will restore the site to substantially the condition existing as of
the commencement date of this Agreement, normal wear and tear excepted.
14. Due Diligence. Licensee shall at all times exercise due diligence in the protection
of the City’s Park Property at the Park Property against damages.
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15. Nondiscrimination. Licensee agrees that all hiring by Licensee of persons
performing this Agreement shall be on the basis of merit and qualifications. The Licensee shall
not 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. The Licensee shall require these nondiscrimination terms of its agents and sub-
contractors providing services under this Agreement.
16. Amendment. Any amendment or modification of this Agreement or any
provision herein shall be made in writing or executed in the same manner as the original
document and shall after execution become a part of this Agreement.
17. Assignment. Licensee may not assign this Agreement in whole or in part and
may not sublet all or any portion of the Park Property without the prior written consent of the
City. No assignment will relieve Licensee of its responsibility for the performance of the
Agreement (including its duty to defend, indemnify and hold harmless). This license shall not
run with the land.
18. Waiver of Claims. Licensee waives all claims against City for injury to persons
or Park Property on or about the Park Property or from its use of the Park Property 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” as per 28-2-702, MCA. It shall be understood that
the responsibility for protection and safekeeping of equipment and materials on or near the Park
Property will be entirely that of the Licensee and that no claim shall be made against the City by
reason of any act of an employee, officer, or, agent of the City or any trespasser.
19. Representatives.
a. City’s Representative. The City Representative for the purpose of this
Agreement shall be Carolyn Poissant, Manager of Trails, Open Space, and Parks
Development, or her successor or designee. Whenever approval or authorization
from or communication or submission to City is required by this Agreement, such
communication or submission shall be directed to the City’s Representative and
approvals or authorizations shall be issued only by such Representative; provided,
however, that in exigent circumstances when City’s Representative is not
available, Licensee may direct its communication or submission to other City
personnel or agents and may receive approvals or authorization from such
persons.
b. Licensee’s Representative. The Licensee’s Representative for the purpose of
this Agreement shall be Patrick Asay or his successor or designee. Whenever
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direction to or communication with Licensee is required by this Agreement, such
direction or communication shall be directed to Licensee’s Representative;
provided, however, that in exigent circumstances when Licensee’s Representative
is not available, the City may direct its direction or communication to other
designated employees or agents of Licensee.
20. Permits. Unless otherwise agreed to in writing by the parties, Licensee shall
provide all notices, comply with all applicable federal, state, and local laws, ordinances, rules,
and regulations, obtain all necessary permits, licenses, and inspections from applicable
governmental authorities, and pay all fees and charges in connection therewith.
21. Intoxicants; DOT Drug and Alcohol Regulations. Licensee shall not permit or
suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the Park
Property. Licensee acknowledges it is aware of and shall comply with its responsibilities and
obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug
and alcohol misuse prevention plans and related testing. The City shall have the right to request
proof of such compliance and Licensee shall be obligated to furnish such proof. The City may
order removal from the Park Property of any employee or agent of Licensee or any of its
subcontractors for use of intoxicants on the Park Property.
22. Liens and Encumbrances. Licensee shall not permit any liens or encumbrances
to be filed on the Park Property related to the Licensee’s use of the Park Property. Prior to the
expiration of this Agreement or termination by the City or Licensee as provided herein Licensee
shall furnish the City with satisfactory proof that there are no outstanding liens or encumbrances
in connection with the Licensee’s use of the Park Property.
23. Dispute Resolution. Any claim, controversy, or dispute between the Parties, their
agents, employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the Parties, the Parties may invite an independent, disinterested mediator to assist
in the negotiated settlement discussions. If the parties are unable to resolve the dispute within
thirty (30) days from the date the dispute was first raised, then such dispute shall be resolved in a
court of competent jurisdiction in compliance with the Applicable Law provisions of this
Agreement.
24. Survival. Licensee’s indemnification obligations shall survive the termination or
expiration of this Agreement for the maximum period allowed under applicable law.
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25. Headings. The headings used in this Agreement are for convenience only and are
not be construed as a part of the Agreement or as a limitation on the scope of the particular
paragraphs to which they refer.
26. Waiver. A waiver by City of any default or breach by Licensee of any covenants,
terms, or conditions of this Agreement does not limit City’s right to enforce such covenants,
terms, or conditions or to pursue City’s rights in the event of any subsequent default or breach.
27. Severability. If any portion of this Agreement is held to be void or
unenforceable, the balance thereof shall continue in effect.
28. Applicable Law. The Parties agree that this Agreement is governed in all
respects by the laws of the State of Montana. Jurisdiction for any dispute or claim raised under
this Agreement or proceeding brought to interpret the Agreement shall lie solely in the State of
Montana, Gallatin County.
29. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
30. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party except the City.
31. Counterparts. This Agreement may be executed in counterparts, which together
constitute one instrument.
32. Authority. Each party represents that it has full power and authority to enter into
and perform this Agreement and the person signing this Agreement on behalf of each party has
been properly authorized and empowered to sign this Agreement.
33. Independent Contractor. The Parties agree and acknowledge that in the
performance of this Agreement Licensee shall not be considered an agent, representative,
subcontractor, or employee of the City. The Parties further agree that all individuals and
companies retained by Licensee at all times will be considered the agents, employees, or
independent contractors of Licensee and at no time will they be the employees, agents, or
representatives of the City.
34. Integration. Except as otherwise provided, this Agreement constitutes the entire
agreement of the Parties. Except as otherwise provided, covenants or representations not
contained therein or made a part thereof by reference, are not binding upon the parties. Except
as otherwise provided, there are no understandings between the parties other than as set forth in
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this Agreement. Except as otherwise provided, all communications, either verbal or written,
made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically
made a part of this Agreement by reference.
########### End of Agreement except for signatures ###########
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NorthWestern Energy License Agreement for the Story Mill Community Park Page 11 of 12
Executed this _____ day of __________________, 2016.
City:
By: _____________________
Bozeman City Manager
STATE OF MONTANA )
: ss.
County of Gallatin )
This instrument was acknowledged before me on the _____ day of ________________, 20___
by Chris A. Kukulski, as City Manager for the City of Bozeman, Montana.
__________________________________________
Notary Public for the State of Montana
Printed Name: _____________________________
(SEAL) Residing in________________________________
My Commission Expires:_____________________
_____________________________________________________________
Name of Entity (Licensee)
By: _______________________
STATE OF MONTANA )
: ss.
County of Gallatin )
This instrument was acknowledged before me on the _____ day of ________________, 20___
by Patrick Asay, as Manager – Lands and Permitting of NorthWestern Corporation.
__________________________________________
Notary Public for the State of Montana
Printed Name: _____________________________
(SEAL) Residing in________________________________
My Commission Expires:_____________________
399
Exhibit A – NorthWestern Energy License Agreement for the Story Mill Community Park
EXHIBIT A
(Pipeline Access and Layout Diagram)
400
Exhibit A – NorthWestern Energy License Agreement for the Story Mill Community Park
401
Exhibit B – NorthWestern Energy License Agreement for the Story Mill Community Park
EXHIBIT B
(Construction Access Restrictions)
402
Exhibit B – NorthWestern Energy License Agreement for the Story Mill Community Park
403
Exhibit C – NorthWestern Energy License Agreement for the Story Mill Community Park
EXHIBIT C
(Easement Modification)
404
Exhibit C – NorthWestern Energy License Agreement for the Story Mill Community Park
EXHIBIT C – Easement Modification
405
Exhibit D – NorthWestern Energy License Agreement for the Story Mill Community Park
EXHIBIT D
(Legal Description of Park Property)
Legal Description
1. Parcel 2 of COS 2865 (Tract A of COS 2505 and COS 2547);
2. Parcel 3 of COS 2865 (Tract 1 of COS 2503 and COS 2547); 3. Parcel 7 of COS 2865 (Tract 5A of COS 1147B); 4. Parcel 8 of COS 2865 (Tract 17 of COS 2479A and COS 2547); and
5. Parcel 9 of COS 2865 (Tract A of Subdivision Plat J-42 and COS J-42-B)
All located within Sections 31 & 32, T1S, R6E, and Sections 5 & 6 T2S, R6E, P.M.M., City of Bozeman, Gallatin County, Montana.
406