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Home My WebLink About013 Ditch Maintenance Agreement After recording return to: Middle Creek Ditch Company CIO Kevin Haggerty P.O. Box 2 Bozeman, MT 59771 DITCH RELOCATION & EASEMENT AGREEMENT This Agreement is entered into this JT,7 day of 2022 by and between the Middle Creek Ditch Company, a Montana corporation of P.O. Box 2, Bozeman, MT 59771, (hereinafter referred to as "the Ditch Company") and Blackwood Land Fund, LLC, a Delaware limited liability company c/o 115 West Kagy Blvd, Ste. L, Bozeman, MT 59715 (hereinafter referred to as "Blackwood"). WHEREAS, the Ditch Company is the owner of an extensive irrigation ditch system located in the area generally known as southern portion of the Gallatin Valley, Gallatin County Montana; WHEREAS, the Ditch Company has established a ditch easement for its ditch for the purpose of conveying irrigation water to its members' real property (hereinafter referred to as "Ditch"); WHEREAS, the Ditch Company's Ditch traverses operty which is now owned by Blackwood, more specifically described as ISLE Frk7l, ;8 T _ — as "RF&ReAY=}+- J WHEREAS, Blackwood desires to now develop the Property for purposes of a mixed use residential and commercial development with the municipal limits of the City of Bozeman; and WHEREAS, the Ditch Company and Blackwood acknowledge that the Middle Creek Company may convey water through the portion of the Middle Creek Ditch and laterals which is addressed by this Agreement and that this Agreement; and WHEREAS, the parties are desirous of formalizing an agreement between them which will define the terms and conditions under which Blackwood might relocate the Ditch and under which the relocated portion of the Ditch will be maintained in the event it is relocated; NOW, THEREFORE, the parties mutually covenant and agree as follows: 1. All recitals are incorporated herein as if fully set forth. 2. The Ditch Company, subject to the terms and conditions set forth herein, shall permit 1 Blackwood to relocate the Ditch over and across the Property to a new location as set forth on Exhibit A attached hereto, which exhibits shall become an integral part of this Agreement. In the event the Ditch is relocated and/or piped, Blackwood expressly agrees to convey to Ditch Company a five-foot (6) easement on either side of the centeriine of the relocates! Ditch and/or pipe. 3. Blackwood will provide for the adequate transport of water through the ditch, including piped sections, without jeopardizing the integrity of the Ditch. Blackwood shall have the right to cure the issues raised by the Ditch Company. 4. Blackwood shall be responsible for the removal of all debris from either end of any culvert or pipeline opening located on the Property, so as to cause no restriction to water flow in the Ditch. In addition, Blackwood shall be responsible for stabilizing the ditch bank around any culvert or pipeline openings so no sloughing occurs. 5. Blackwood agrees the Ditch Company may enter upon the Property for purposes of inspection, repair, operation and maintenance of the ditch at any time. Blackwood shall assume full responsibility for all repair and maintenance of the Ditch as it traverses the Property including portions which are not re-located or reconstructed by Blackwood, and, in particular, for any portion of the ditch which is located in a pipeline or culvert installed by Blackwood. In the event Blackwood does not promptly and properly maintain and repair the Ditch as needed, the Ditch Company reserves the right to perform any repair and maintenance work as may be necessary and all costs incurred by the Ditch Company will be reimbursed by Blackwood. At no time shall such entry interfere with the construction of the new Ditch or the on-going operations on the Property. 6. Prior to conducting any repair or maintenance work to the ditch or easement which is not immediately required, the Ditch Company shall give Blackwood 10 calendar days prior notice of such repair and/or maintenance work and provide Blackwood with the opportunity to perform the repair or maintenance work within 10 calendar days after Ditch Company's notice. If this maintenance and/or repair work is not completed within the within 10 calendar days after the Ditch Company's notice or within the time agreed to between the parties in writing, the Ditch Company may undertake the completion of the required repair and/or maintenance work and submit an invoice for the same to Blackwood which shall be paid by Blackwood within 10 calendar days of receipt of the invoice. In the event Blackwood fails to pay the invoice, the Ditch Company shall have a right to place a lien on any or all of the Property to secure payment for repair and/or maintenance work. 7. Under no circumstances shall Blackwood interrupt or in anyway interfere with the flow 2 of water through the Ditch at any time without prior written consent of the Ditch Company. Permission to interrupt the flow of water will be granted based on the sole discretion of the Ditch Company. 9. Blackwood hereby agrees to indemnify and hold the Ditch Company harmless from any and all claims, causes of action, costs, and reasonable attorney fees which the Ditch Company may sustain by reason of or in connection with any claim filed against it for any event which may occur on the Property or as a result of any action by Blackwood, its successors, agents, assigns or property owner(s). Blackwood further agrees that it shall insure it's above described Property for general liability in an amount not less than One Million Dollars ($1,000,000.). This insurance policy must identify the Ditch Company as an additional insured. Evidence of said insurance policy shall be provided by Blackwood on an annual basis to the Ditch Company. 10. This agreement shall be binding on the successors in interest and assigns of each party. 11. All covenants and agreements herein contained shall extend to and be binding upon the heirs, personal representatives, assigns, or successors of the respective parties hereto and shall run with the title of the property in perpetuity unless rescinded in writing by the Ditch Company. Blackwood's rights and responsibilities shall specifically inure to all of the future owners of the property. 12. This Agreement constitutes the entire agreement and understanding between the parties hereto and supersedes all prior and contemporaneous agreements and understandings of the parties in connection herewith which conflict with the expressed terms, covenants, and conditions of this Agreement. Covenant, representation, or condition not expressed in this Agreement shall not be effective to interpret, change, or restrict the express provisions of this Agreement unless specified in writing and signed by both parties hereto. 13. If it becomes necessary for either party hereto to bring suit to enforce their rights under this Agreement and if that party shall prevail in such action, the other party agrees to pay all of the costs of the action as allowed by the Court together with reasonable attorney fees. 14. Nothing in this Agreement is intended to convey any ownership interest in the water rights owned by Ditch Company nor any permission to use water conveyed in the Ditch pursuant to a water right in any manner not consistent with Montana law. Blackwood is expressly prohibited from seeking to change any elements of Ditch Company's water rights without the express written consent of Ditch Company. 3 IN WITNESS WHEREOF, the parties hereto have signed and sealed this Agreement the day and year above first written. Middle rJCreek Ditch Company By: ` : Its: Pr4eiont STATE OF MONTANA ) ss. COUNTY OF GALLATIN ) 11 This instrument was acknowledged before me on _ _MWA 2022, by �Qlikfi � j rJ , as President of Middle Creek Ditch Company. Notary State of Pontanau, (seal) Printed Name: 1 BLACKWOOD LAND FUND, LLC: °PAY Pgyti-, MARY PAYNE Notary Public BY: F :'a0sAR1y4': for the state of Montana _ ' Its: Mana =* SEAL : = Residing at: 9• Bozeman, Montana Y M Commission Expires: March 05,2023 C STATE OF MONTANA ) ss. COUNTY OF GALLATIN ) This instrument was acknowledged before me on V�V't. 2022, by }n. , as Manager of Blackwood Springs, LLC. "y Notary State of ontana P A '� (s o ap Notary ry Pub TINE Printed Name: ti R14z: for the State of * "_ Montana 9.SEAS,.."*,= Boze Residing at: man Montana " OF M ' ''00f,i 1.0,01P y o hi$ion Expfre�. 2023 4 ** * ** Exhibit A * qbt* * ALTA COMMITMENT Property Description The S112SW114 of Section 24 and the N112N112NW114 of Section 25,Township 2 South,Range 5 East,P.M.M.,Gallatin County, Montana. (Deed Reference: Book 80 of Deeds, Page 358) EXCEPTING THEREFROM that portion conveyed to the State of Montana in Bargain and Sale Deed, recorded November 5, 1963 in Book 144 of Deeds,Page 148,records of Gallatin County,Montana. This page is only a part of a 2016 ALTA Commitment for Title Insurance, This Commitment is not valid without the Notice;the Commitment to Issue Policy;the Commitment Conditions;Schedule A;Schedule B, Part I-Requirements;and Schedule B,Part 11-Exceptions. ALTA Commitment for Title Insurance Old Republic National Title Insurance Company Page 2 of 6