I5. Resolution 5762 - Covenant of Dedication - Leisure Drive® 7 Kalispell
of
W
Charles A. Harball Office of City Attorney Tel 406.758.7709
City Attorney 201 First Avenue Past Fax 406.758.7771
P.O. Box 1997 charball@kalispell.com
Kalispell, NIT 59903-1997
TO: Doug Russell, City Manager l
Charles Uarball, City Attor e,
SUBJECT: Resolution No. 5762 — Approving the Application of a Covenant
of Dedication on City Owned Property
propertyBACKGROLTND: The City of Kalispell owns a 6.27 acre parcel of unimproved riparian
g portion
has been approved by the Army Corps of Engineers as a mitigation site for .
protection measures the City y employed elsewhere along the Stillwater
mitigation plan includes
dedicationcovenant of o,
includinginto the future. Adoption of the mitigation plan, the covenant
will provide credits to supportmeasureson
property
developedcovenant of dedication is riparian wetlands that cannot otherwise be reasonably
improved or and is currently used primarily as greenspace. The form
CorpsCovenant of Dedication, including a full description of the property burdened and to be
approved by the Army ..purpose
resolution as a .*,.
RECOMMENII)ATION:
offered resolution to provide needed mitigation credits for City streambank
ownedefforts along City property on River.
T t Upon consideration of the proposal the Council may reject the
resolution.
RESOLUTION NO.5762
WHEREAS, the City of Kalispell owns a 6.27 acre parcel of unimproved riparian property in the
Leisure Heights No. 1 Subdivision, a portion of which has been approved by the Army
Corps of Engineers as a mitigation site for streambank protection measures the City has
employed elsewhere along the Stillwater river; and
WHEREAS, the mitigation plan includes tree and shrubbery planting as well as the application of a
covenant of dedication to protect the streambank of that portion of the Stillwater Diver
into the future; and
WHEREAS, adoption of the mitigation plan will provide credits to support the City's streambank
protection measures taken on City property elsewhere on the Stillwater river; and
WHEREAS, EAS, the City owned property subject to the covenant of dedication is riparian wetlands that
cannot otherwise be reasonably improved or developed and is currently used primarily as
greenspace; and
WHEREAS, the form of the Covenant of Dedication, including a full description of the property
burdened, to be approved by the Army Corps of Engineers for its intended purpose and is
attached hereto as Exhibit "A" and fully incorporated herein by this reference.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL
AS FOLLOWS:
SECTION 1. The City Council hereby finds that it is in the best interests of the City of
Kalispell to place the Covenant of Dedication upon the city owned property
herein described for the purposes of mitigating streambank protection measures
taken by the City to safeguard other properties of the City.
SECTION 2. The City Manager is hereby authorized to execute the attached Covenant of
Dedication and cause it to be recorded with the Clerk and recorder of Flathead
County, Montana.
PASSED AND APPROVED BY THE CITY COUNCIL l SIGNED BY THE MAYOR OF THE
Mark Johnson
Mayor
Aimee Brunckhorst, CMC
City Clerk
Return to:
City Clerk
P.O. Box 1997
Kalispell, MT 59903
COVENANT OF DEDICATION
CITY OF KALISPELL now stipulates to the following statements of fact, and further agrees to restrict
the use and title of the realty described in Attachment 1 to this document (hereinafter referred to as the
"Land") in accordance with the terms and conditions set forth herein.
1. That CITY OF KALISPELL is the applicant for Department of the Army permit number
NWO-2011-00090-MTM and NWO-2011-01004-MTM to place fill material in the wetlands located
in Section 6, Township 28 North, Lange 21 West, P.M.M. Flathead County, Montana; and that the U.S.
Army Corps of Engineers has regulatory jurisdiction over the discharge of dredged or fill material into said
wetlands pursuant to Section 404 of the Clean Water (33 USC 1344).
2. That CITY OF KALISPELL is the owner in fee of the real estate described in Attachment 1.
3. That CITY OF KALISPELL and the Omaha District of the U.S. Army Corps of Engineers have reached
an agreement whereby CITY OF KALISPELL will be permitted to discharge fill material in wetlands in
accordance with the terns and conditions of Department of the Army permit number W®-2011-00090-
MTM and NWO-2011-01004-MTM; and that in consideration for said discharge of fill material in the
wetland, CITY OF IAA _,ISPELL, will provide mitigation for the adverse environmental effects resulting
from the placement of fill material in the wetland by dedicating the realty described in Attachment 1 for
perpetual use as a conservancy area in accordance with the terms and conditions of this document and the
above -mentioned permit.
4. That the above -mentioned dedication shall consist of the execution of this document by all parties
necessary to restrict the use and title of the land; and that this document shall be recorded in the Office of the
Register of Deeds for Flathead County, Montana.
5. That upon receipt of a certified copy of this document, as recorded in the Office of the County register
of Deeds for Flathead County, Montana, the District Engineer of the Omaha District of the U.S. Army
Corps of Engineers will issue a validated permit, number NWO-2011-00090-MTM and NWO-2011-
01004- TM to CITY OF ISPELL; and that said permit shall be issued in consideration for the
execution of this Covenant.
6. That the terms and conditions of this Covenant of Dedication shall, as of the date of execution of this
document, bind CITE' OF KALISPELL to the extent of his legal and/or equitable interest in the land; and
that this Covenant shall run with the land and be binding on CITE' OF KALISPELL and its successors and
assigns forever.
7. That the terms and conditions of this Covenant shall be both implicitly and explicitly included in any
transfer, conveyance, or encumbrance of the Land or any part thereof, and that any instrument of transfer,
conveyance, or encumbrance affecting all or any part of the Land shall set forth the terms and conditions of
this document either by reference to this document or set forth in full text.
8. That the Kalispell City Council fully considered the terms of the restrictions contained herein,
determined such restrictions to be in the best interest of the City of Kalispell and by resolution No, ,
enacted on the day of , 2016 granted approval to the City Manager to execute said Covenant
of Dedication.
CITY OF KALISPELL hereby warrants that it is the owner in fee of the realty described in Attachment 1;
and that the Land is hereby dedicated in perpetuity for use as a conservancy area.
CITY CAP KALISPELL hereby agrees to restrict the use and title of the Land as follows:
1. There shall be no construction or placement of structures or mobile homes, fences, signs, billboards or
other advertising material, or other structures, whether temporary or permanent, on the land.
2. There shall be no filling, draining, excavating, dredging, raining, drilling or removal of topsoil, loam,
peat, sand, gravel, rock, minerals or other materials.
?. 'There shall be no building of roads or paths for vehicular or pedestrian travel or any change in the
topography of the land.
4. There shall be no removal, destruction, or cutting of trees or plants; spraying with biocides, insecticides,
or pesticides; grazing of animals, farming, tilling of soil, or any other agricultural activity. Management
activities are acceptable upon approval from the Corps.
5. There shall be no operation of all -terrain vehicles or any other type of motorized vehicle on the land.
6. This Covenant of Dedication may be changed, Modified or revolved only upon written approval, of the
District Engineer of the Omaha District of the U.S. Array Corps of Engineers. To be effective, such
approval must be witnessed, authenticated, and recorded pursuant to the law of the State of Montana.
This Covenant needs to be reviewed by the Corps of Engineers prior to signature to assure compliance
with permit conditions.
COE representatives initial
7. This Covenant is made in perpetuity such that the present owner and its assigns forever shall be bound by
the terms and conditions set forth herein.
CIA
1
Doug Russell, City Manager
STATE OF MONTANA }
}:ss
County of Flathead }
Can this day of _ , 2016, before rye, a :Notary Public in and for the State
of Montana, personally appeared DOUG RUSSELL, known to me to be the City Manager of the
City of Kalispell, a municipality, that executed the within instrument, and acknowledged that
such City Manager subscribed, sealed and delivered said instrument as the free and voluntary act
of said municipality, for the uses and purposes therein set forth, and that he was duly authorized
to execute the same on behalf of said municipality.
IN WITNESS WHEREOF, I have hereunto set nay hand and affixed racy Notarial Seal,
the day and year first above written.
Notary Public, State of Montana
Printed Name
Residing at
My Commission Expires
Legal Description
That portion of Homeowners Park, Leisure Heights No. 1, lying in the Northwest 1/4 of the
Northwest 1/4 of Section 21, Township 28 North, Mange 21 West, P.M.,M., Flathead County,
Montana, described as follows:
Beginning at the Northeast Corner of Homeowners Park, Leisure Heights No. 1;
Thence along the East line of said Homeowners Park, South 00'09' 13" East 578.24 feet;
Thence South 40°40'45" West 5.95 feet;
Thence South 30°57' 10" West 37.08 feet;
Thence South 20°35'32" West 54.12 feet;
Thence North 68°21'51" West 30.29 feet;
Thence North 54°15'18" West 24.64 feet;
Thence North 51 ° 15' 02" West 61.27 feet;
Thence North 49'56' 18" West 46.92 feet;
`Whence North 51 °08' 09" West 109.76 feet;
Thence North 51'59' 18" West 36.64 feet;
Thence North 41 ° 11 ' 50" West 38.18 feet;
Thence North 56°32'53" West 49.60 feet;
Thence North 32° 18' 12" Nest. 45.74 feet;
Thence North 68°53'27" East 12.36 feet;
Thence North 21°06'33" West 36.36 feet;
Thence South 68°53'27" West 7.57 feet;
Thence North 10'30' 17" East 6.30 feet;
Thence North 10°42'43" West 64.38 feet;
Thence North 03°52'49" East 74.92 feet;
Thence North 24°26'35" East 47.36 feet;
Thence North 16°4444" East 63.59 feet;
Thence North 14'19'26" East 5 9.5 1 feet;
Thence North 16°23' 15" East 46.05 feet to the North line of Homeowners bark, Leisure Heights No.
1,
Thence along said North line, South 89°51'49" East 326.32 feet to the Point of Beginning, containing
4.71 acres of land.