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HomeMy WebLinkAboutResolution No. R19-04! ! • ► • !01 OMT 101011 Bill 011214 Wexxv of IUT 10112VA • Of •LA3 IV wall s WHEREAS, the City Council previously approved an Encroachment Permit for C -Store Properties LLC and Innovative Properties LLC ("Property Owners") through Resolution R17-35; and WHEREAS, Rimrock II, LLC approached the Property Owners and entered into an agreement to enable them to become a party to the Encroachment Permit as evidenced by the Agreement attached hereto and incorporated herein; and WHEREAS, the City has reviewed the Agreement and upon requests of the Parties hereby approve the Amended Encroachment Permit with is attached hereto and incorporated herein; and WHEREAS, the terms and conditions of the Encroachment Permit have not been materially or substantially changed other than to add Rimrock II, LLC as a Party to the Encroachment Permit through this resolution. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Laurel that the attached Amended Encroachment Permit is hereby approved for a ten (10) year term which shall automatically renew for an additional ten (10) year term if not terminated by either party as provided in the Amended Encroachment Permit; and BE IT FURTHER RESOLVED, the Mayor is authorized to execute and record the attached Amended Encroachment Permit on behalf of the City of Laurel after the Parties have executed the Permit. Introduced at a regular meeting of the City Council on February 5, 2019, by Council Member Mountsier. 2019. PASSED and APPROVED by the City Council of the City of Laurel this 5t" day of February APPROVED by the Mayor this 5th day of February 2019. Cl Y OF LAUREL T ornas C. Nelson, Mayor BdWm a Ge\Clerk-Treasurer R19-04 Amended Encroachment Permit South Montana Avenue Approved as to form: Sam S. Printer, Civil City Attorney R19-04 Amended Encroachment Permit South Montana Avenue When Recorded Return to: City of Laurel P.O. Box 10 Laurel, Montana 59044 This Encroachment Permit ("Permit") is approved and issued by the City of Laurel, Montana ("City") pursuant to City Council Resolution, for the benefit of C -Stare Properties, LLC, Innovative Properties, LLC, and Rimrock II, LLC hereinafter ("Property Owners"). The City and Property Owners are referred to herein jointly as "Parties." The Permit is specific to that portion of South Montana Avenue shown on the attached map ("Permit Area") that is labeled Exhibit A and attached hereto and incorporated herein by this reference. At all tunes relevant during and after this Permit, South Montana Avenue shall remain a dedicated public right-of-way. The City of Laurel has no intention to vacate the right-of-way and is providing Property Owners the authority to unprove and use the South Montana Avenue right-of-way until this permit expires, terminates or is revoked. Recitals Whereas, the City currently owns and controls a 60' right-of-way constituting a dedicated public street known as South Montana Avenue. South Montana Avenue, in this location, is gravel and not developed and will likely remain undeveloped for the foreseeable future. 2. Whereas, the Property Owners currently own two unimproved lots which are immediately adjacent to the South Montana Avenue right-of-way as shown on Exhibit A. Property Owners intend to improve the lots by paving them for purposes of providing customer parking as well as access for their existing business properties. 3. Whereas, the City has received a number of complaints from nearby property owners regarding excessive dust from the public's use of Property Owners' unimproved lots as well as the unimproved South Montana Avenue for parking and access. As a result of the complaints, the City contemplated closing and fencing off South Montana Avenue to the public by erecting a fence to keep traffic off the right-of-way until it is improved at some time in the future. 4. Whereas, Property Owners approached the City with a plan to resolve the ongoing dust issue by improving their lots. Property Owners improved the lots by designing and constructing a paved parking lot and travel lane. 5. Whereas, the City possesses the authority to regulate the use of its rights-of-way in the best interest of the public, and at this time allowing Property Owners to improve and use the right-of-way pursuant to the tenns and conditions contained in this Permit. 6. The City Council is authorized to approve an Encroachment Permit to regulate the use of streets, sidewalks, and public rights-of-way pursuant to Chapter 12.16.040 of the Laurel Municipal Code, §7-14-4102 MCA, and the City's self-governing powers provided through its Charter. 7. Upon review of this situation and the special facts and circumstances surrounding this situation, the City Council has determined issuance of this Encroachment Permit is appropriate and in the City and Public's best interest. Encroachment Permit Terms and Conditions NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: Incorporation of Recitals. The recitals herein are incorporated into this Permit by this reference. 2. Grant of Encroachment Permit. Under the terms and conditions of this Permit, and pursuant to the Resolution of the City Council, the City hereby permits Property Owners or their successors in title, to utilize the Permit Area for the existing planned improvements. 3. Forebearance. As long as Property Owners and their successors in title comply with the terms and conditions of this Permit, the City shall forbear, any act or action to interfere with the permitted use of the Permit Area described herein 4. Conditions on Use. A. The Permit remains valid so long as Property Owners, or their successors in interest, use of the Permit Area remains in compliance with the terms and conditions of this permit and, the use and/or size of the Permit Area is not expanded, and no hazardous materials or substances may be stored upon or buried within the Permit Area. Subject to the foregoing provisions, nothing herein shall be deemed or considered to prohibit or prevent Property Owners or their K successors in title from using the Permit Area as a paved parking lot. Property Owners shall not allow parking on the Permit Area which shall be utilized for ingress and egress purposes. B. Property Owners acknowledge that the Permit Area contains underground public and private utilities including but not limited to water, sewer, power, and gas. Property Owners shall not deny access to a utility owner requiring access to his/her utility line. The Parties agree that any excavation or work within the Permit Area must comply with Chapter 12.12 of the Laurel Municipal Code. 5. Design, Construction and Maintenance. A. Property Owners obtained a professionally engineered design for their proposed parking lot that addresses storm water drainage, ingress and egress control, striped parking spaces compliant with ADA requirements, and constructed to current City standards. Property Owners obtained all necessary approvals from the City as well as securing a building permit. At all times during this Permit, Property Owners are responsible for sharing the cost of snow removal and weed control. B. Payment. Property Owners have paid the cost of the project not covered by grants obtained for the project. C. Reimbursement of Costs. If any future property owner desires use of the Permit Area, he/she must pay Property Owners a proportionate share of their "out of pocket" project costs before the City issues him/her permission to additionally use the permit area. 6. Termination or Revocation. A. Definition of Default. A Party's failure to comply with any tenn or condition contained in this Permit, shall constitute a default under this Permit. B. Remedies for Default: i. If a Party defaults under this Permit, the other Party may immediately give written notice of such default. ii. If the breaching Party cures the default within thirty (30) days from the date of service of notice, the Permit shall remain valid. iii. If the breaching Party fails to cure the breach within thirty (30) days, the other Party may pursue any appropriate remedy available by law including but not limited to termination or revocation of the Permit. C. If the use of the Permit Area changes, or if future development requires the use of the Permit Area as a City Street, the City may immediately terminate or revoke the Permit and require the Property Owners to surrender the Permit Area to the City. Property Owners shall not remove or disturb any improvement prior to vacating the Pen -nit Area. 7. Indemnification. Property Owners shall indemnify and hold harmless the City, including, without limitation, City's agents, elected officials, and its employees, from any claim, right, or cause of action, arising out of or in any way connected with the negligence or willful act of Property Owners that results in the injury or death of any person or damage to real or personal property arising out of the use of the Permit Area under this Permit. Property Owners shall maintain insurance for the parking lot and Permit Area to cover potential claims or injuries that may occur. 8. Miscellaneous. The following additional conditions apply to this Permit: A. Transfer. This Permit and the rights and obligations hereunder may be transferred to a successor in title to the Property Owners so long as the use of the property remains as permitted. B. Severability. If one or more of the provisions contained herein are declared invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be impaired thereby. C. Waiver. The failure of either Party to insist in any one or more instances upon strict performance of any of the requirements of this Pennit shall not be construed as a waiver or relinquislunent for the future of such requirement, but the same shall continue and remain in full force and erect. D. Headings. The headings and captions of various paragraphs of this Permit are for convenience of reference only and are not to be construed as defining or limiting, in any way, the scope or intent of the provisions therein. E. Amendment. All modifications or changes to this Permit shall be effective only when reduced to writing and signed by Parties hereto, and approved by Resolution of the City Council. F. Applicable Law. This Permit shall be interpreted according to the laws of the State of Montana. G. Entire Agreement. Except as explicitly stated herein, this Permit, attachments, and the Council Resolution constitute the entire agreement between the Parties and subsume and incorporate all prior written and oral statements and understandings. M H. Recording. This Permit shall be recorded in the Office of the Clerk and Recorder in and for Yellowstone County, Montana. I. This Permit shall be effective upon authorization and/or approval by City Council Resolution and Signature by the Mayor of the City of Laurel. The Permit shall be effective for successive terms of ten (10) years unless terminated or revoked by either Party on one of the grounds set forth herein. IN WITNESS WHEREOF, each Party has caused this Permit to be executed in duplicate. Property Dennis Whitmore C -Store Properties, LLC By:. ' -- ``'Steven Barkley Innovative Properties, LLC By: Ann"S�, Member Rinirock 11, LLC City of Laurel: 17 B Mayor r-1 M