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HomeMy WebLinkAbout036-Final Easement Water and Sewer SEWER AND WATER PIPELINE AND ACCESS EASEMENT AND AGREEMENT Dixson and CompanyInc..the GRANTOR(S), inconsideration of $1.00 and other good and valuable consideration,receipt of which is acknowledged, grant(s)to The City of Bozeman, GRANTEE,its successors and assigns, a perpetual easement to lay, construct and maintain sewer and water pipelines with the usual services, valves, connections, accessories and appurtenances for the purpose of transmitting sanitary sewer and water in,through,and across a strip of land situated in Gallatin County,Montana, 30 feet wide to be located on the following described real property: Lot 4A and Lot 4B of Amended Plat of Lot 4 Block 12 Cattail Creek Subdivision Phases 2A and 2B ("Lot 4A and Lot 4B"). The foregoing scope of the easement shall not be expanded without the express written consent of GRANTOR. The location of the easement is more particularly described and depicted on the attached Exhibit X-1 which by this reference is made a part hereof. The location and dimensions of the easement shall not be increased nor relocated without the express written consent of GRANTOR. This grant includes the right of the GRANTEE, its successors,permittees, licensees, and assigns and its and their agents and employees,to enter at all times upon the above- described land by using existing roads or trails or otherwise by a route causing the least damage and inconvenience to the GRANTOR(S)in order to survey and establish the route and location of the easement and the pipeline and to: (1) Construct, operate,patrol,repair, substitute,remove, enlarge,replace, and maintain the pipeline, services, connections, accessories and appurtenances; (2) Trum,remove, destroy, or otherwise control any trees and brush inside or immediately outside the boundaries of the easement which may, in the opinion of the GRANTEE, interfere or threaten to interfere with or be hazardous to the construction, operation and maintenance of the pipeline; (3) Grade the land subject to this easement and extend the cuts and fills of this grading into and on the land adjacent to that which is subject to this easement to the extent GRANTEE may find reasonably necessary; and (4) Support the pipeline across ravines and water courses with structures which GRANTEE deems necessary. GRANTOR expressly reserves the following rights over Lot 4A and Lot 4B and the easement area as depicted on Exhibit A,subject to the foregoing:the right to use the easement as right-of-way for unpaved access or trails,planting of vegetation and landscaping, except trees and installation of irrigation, lighting,signs, and fences,and the reservation of all rights to have utility crossings through the granted easement to or for the benefit of Lot 4A and Lot 4B. GRANTOR further reserves to GRANTOR, and its successors and assigns,all other rights arising out of the ownership of Lots 4A and 4B,including,without limitation,the right to engage in,or permit,or invite others to engage in, all uses of Lot 4A and Lot 4B not otherwise expressly prohibited and not inconsistent with the terms of this agreement,provided that GRANTOR shall not take any action or permit any activities which unreasonably interferes with GRANTEE'S use of the easement in accordance with the terms of this agreement. THE GRANTEE AGREES: (1) That,in connection with the construction,operating,patrolling,repairing, substituting,removing, enlarging,replacing,and maintaining of said water and sewer pipeline(s), it will repair or replace, at its sole expense,or pay to GRANTOR(S)the reasonable value of any damages to growing crops, existing fences, ditches and other appurtenances of said land that may be disturbed by its operation. In advance of the construction,operating,patrolling,repairing, substituting,removing, enlarging, replacing,and maintaining activities related to the easement,the GRANTEE shall provide advance notice to GRANTOR,its successors and assigns of any of the foregoing activities to occur in the easement area,which notice shall be in writing and delivered not less than 3 days before any such activities. (2) That,during operations involving excavation,it will remove the topsoil from the trenched area to a depth of one foot, or to the full depth of the topsoil,whichever is less, and stockpile said top soil for replacement over the trench. It will remove from the site any large rocks or surplus excavating material or any debris that may have been exposed by the excavation and remains after backfilling is completed. And,it will leave the finished surface in substantially the same condition as existed prior to the beginning of operations except that the surface of backfilled areas may be mounded sufficiently to prevent the formation of depressions after final settlement has taken place. THE GRANTOR(S)AGREES: (1) At no time will they build,construct,erect or maintain any permanent structure within the boundaries of said easement without the prior written consent of GRANTEE. (2) At no time will they modify the finished grade of the land over the pipeline by removal of existing soil or by placement of fill material within the boundaries of said easement without the prior written consent of the GRANTEE. (3) Access is available to the GRANTEE via existing paved subdivision roads at each end of the easement. (4) The GRANTORS)warrants that they are lawfully seized and possessed of the real property described above,that they have a lawful right to convey the property, or any part of it, and that they will forever defend the title to this property against the claims of all persons. (5) The GRANTEE may peaceably hold and enjoy the rights and privileges herein granted without any interruption by the GRANTOR(S). The terms,covenants and provisions of this easement and agreement shall extend to and be binding upon the heirs,executors,administrators,personal representatives, successors and assigns of the parties hereto. (6) GRANTEE shall indemnify and hold GRANTOR harmless from all liabilities, damages,causes of action, suits,reasonable attorneys fees, costs,losses, and expenses,to the extent arising from or related to GRANTEE's use of the easement as set forth herein,including such activities by GRANTEE's agents, contractors and employees,except those arising from negligent or intentional acts of GRANTOR, its agents, successors or assigns. Notwithstanding any terms,provision, conditions, of any other documents to the contrary,this agreement constitutes the entire agreement among the parties hereto as to the subject matter hereof, supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter, and the parties do not rely on any statement, promise, or representation not herein expressed. The parties have participated jointly in the negotiation and drafting of this agreement. In the event of ambiguity or if a question of intent or interpretation arises,this agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring either party by virtue of the authorship of any of the provisions of this agreement. If any provision contained herein is found to be invalid,illegal or unenforceable by a court of competent jurisdiction,the remaining provisions shall nevertheless continue in full force and effect and be binding on the parties,their successors and assigns,and the parties shall negotiate in good faith and attempt to agree to another provision(in lieu of the provision held to be invalid, illegal or unenforceable)that is valid, legal and enforceable and carries out the parties intentions as closely as possible to effect the original intent and purpose. Each party shall be responsible for and bear its own attorneys' fees,expert fees and other costs expended in connection with the execution of this agreement. However, in the event of future legal action concerning the interpretation or application of this agreement,the prevailing party in any such action shall be entitled to their reasonable attorneys' fees and costs,including fees and costs on appeal. This agreement may not be amended except by a written instrument signed by the GRANTOR and GRANTEE. The parties agree that this Agreement shall be governed by,construed and enforced in accordance with the law of the State of Montana. DATED this - day of ,20 7 Z-. i G Did' INDIVIDUAL STATE OF MONTANA )ss. County of Gallatin ) On this day of 20 ,before me the undersigned,a Notary Public for the State of Montana,personally appeared 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 above written. (SEAL,) Notary Public for the State of Montana (Printed Name) Residing at My Commission Expires CORPORATE STATE OF MONTANA ) )ss. County of Gallatin ) On this , ekday of 201L before me the undersigned,a Notary Public of i f Fe State of Mo personally appeared, known to me to be the &�!VJZI'd7 of and the person whose name is subscribed to the within instrument and acknowledged tome that he executed the within instrument for and on behalf of @ n or 740 IN WITNESS WHEREOF,I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) tart'Public for the State of Montana Dili iN,ililiJl,JJ,r�J TRACI GILBERTSON (Printed Name) ��. h','-., Notary Public Residing in 't,O;ARIA <_for the State of Montana My Commission Expires C ? 120 *: —_ _ Residing at: d;.SE a Bozeman, Montana +,� ? My Commission Expirar. 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