HomeMy WebLinkAbout009 Ditch Relocation Agreement - Glenn David Cowles Trust DITCH RELOCATION AGREEMENT
This Ditch Reiocation Agreement (:`Agreememt") is entered into this 9 day of
Mr>.Y 2022, by and between the Bradley Family Revocable Trust, with an address of
5912 Our Way, Citrus Heights, CA 95610-6709, Gordon & Jacklyn Bradley Family Trust, with
an address of 3852 46th Ave. NE, Seattle, WA 98105; and Glenn David Cowles Trust, with an
address of 5912 Our Way, Citrus Heights, CA 95601-6709 (hereinafter collectively referred to as
"Water Right Owner") and Buffalo Run Bozeman, LLC, a Colorado limited liability company of
5400 Fowler Lane, Bozeman, MT 59718 (hereinafter referred to as "BRB") and collectively
referred to as "the Parties".
WHEREAS, the Middle Creek Ditch Company and the West Gallatin Canal Company
(hereinafter "Ditch Companies") are the owners of an irrigation ditch system located in the
southwest area of Bozeman and more particularly between Blackwood Road and Stucky Road
(hereinafter referred to as the "Ditch");
WHEREAS, the Ditch Companies have established a ditch easement for the Ditch for the
purpose of conveying irrigation water to their members' real property;
WHEREAS, the Water Right Owner owns private water right number 41 H 35506-00, which
is conveyed through the Ditch;
WHEREAS, the Ditch runs parallel to Fowler Lane on both the east and west side of
Fowler Lane;
WHEREAS, BRB desires to relocate the east-side portions of the Ditch and improve the
west-side portions of the Ditch to facilitate the improvements to Fowler Lane in accordance with
approved plans required by the City of Bozeman and prepared by Morrison Maierle; and
WHEREAS, the Parties are desirous of formalizing an agreement between them which
will define the terms and conditions under which BRB might relocate and improve the Ditch;
NOW, THEREFORE, the Parties mutually covenant and agree as follows:
Ditch Relocation Agreement Page 1 of 7
1. All recitals are incorporated herein as if fully set forth.
2. The Water Right Owner, subject to the terms and conditions set forth herein, shall permit
BRB to relocate and improve the Ditch in accordance with approved plans prepared by Morrison
Maierle and as set forth on Exhibit A attached hereto, which exhibit shall become an integral part
of this Agreement.
3. Upon execution of this Agreement, the Water Right Owner shall review any and all
plans, specifications, and drawings prepared by BRB or any engineer, agent, contractor, or other
person on behalf of BRB which specify the nature of such construction methods and materials for
the relocation and improvement of the Ditch including, but not limited to; description of materials,
re-grading, cleaning, clearing of vegetation, realignment, or culverts which BRB intends to
construct and which will encroach upon or in any way interfere with the Ditch. BRB shall provide
the aforementioned plans, specifications, and drawings to the Water Right Owner as soon after
execution of this Agreement as practicable. BRB acknowledges Water Right Owner may hire, at
BRB's expense, a qualified, third party professional engineer to review any plans, specifications,
or drawings to determine if the same, once constructed, will provide for the adequate transport of
water through the Ditch without jeopardizing the integrity of the Ditch. In the event the Water Right
Owner shall determine the proposed relocation or improvement of the Ditch, once constructed,
will not provide for the adequate transport of water through the new Ditch and/ or will jeopardize
the integrity of the water conveyance, the Water Right Owner shall give notice of the same,
together when any other findings, to BRB within fourteen (14) days of receipt of the
aforementioned plans, specifications, and drawings. BRB shall have the right to cure the issues
raised by the Water Right Owner.
5. During relocation and improvement of the Ditch, BRB shall be responsible for
stabilizing
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J Qvlllr:ll i'-.,. i.i' \.111'vl Utwl i'. G71 vi.1�IIU any �.1i�V v�' — r.:i� .i1�'v :J F.:t i�•�r�J J�J ...i�:uyI i.i]tJ�. V-ivur:).
6. BRB agrees to reimburse Water Right Owner for any and all expenses it may incur in
the preparation and recording of this Agreement including, but not limited to Water Right Owner
staff time, reasonable attorney fees incurred by Water Right Owner to review this Agreement or
any and all plans, drawings, or specifications for construction work or changes which BRB
undertakes pursuant to this Agreement. All fees and expenses to be paid under this Agreement
shall be invoiced to BRB by the Water Right Owner no later than forty-five (45) days after the
expense is incurred. BRB shall pay the Water Right Owner's invoice(s) within forty-five (45) days
of presentation to BRB by Water Right Owner.
Ditch Relocation Agreement Page 2 of 7
7. BRB agrees the Water Right Owner may enter upon the Ditch and ditch easement
during construction of the new Ditch for purposes of inspection, repair, operation and maintenance
of the Ditch. However, at no time shall such entry interfere with the construction of the new Ditch
or the on-going operations on the Property.
8. Under no circumstances shall BRB interrupt or in any way interfere with the flow of
water through the Ditch at any time without prior written consent of the Water Right Owner.
Permission to interrupt the flow of water will be granted based on the sole discretion of the Water
Right Owner, but will not be unreasonably withheld and be consistent with achieving the purpose
of this Agreement.
9. Upon BRB's completion of the relocation and improvement of the Ditch, the Water
Right Owner shall have the opportunity to inspect and confirm the relocated and improved Ditch
operates and performs as expected. Once the Water Right Owner confirms the relocated and
improved Ditch operates as expected, the Parties agree BRB shall have no further obligation to
inspect, maintain, or repair the new Ditch. The Water Right Owner's confirmation shall not be
unreasonably withheld.
10. BRB hereby agrees to indemnify and hold the Water Right Owner harmless from any
and all claims, causes of action, costs, and reasonable attorney fees which the Water Right Owner
may sustain by reason of or in connection with any claim filed against it for any event which may
occur during BRB's relocation and improvement of the Ditch or as a result of any action by BRB,
its successors, agents, assigns or property owner(s).
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 Water Right
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
Ditch Relocation Agreement Page 3 of 7
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 Water Right Owner nor any permission to use water conveyed in the Ditch
pursuant to a water right in any manner not consistent with Montana law. BRB is expressly
prohibited from seeking to change any elements of Water Right Owner's water rights without the
express written consent of Water Right Owner.
15. This Agreement may be signed in counterparts, paper or electronic, each of which
shall constitute an original, and all of which will be collectively deemed to constitute one document.
16. The Parties represent and warrant that they have read this Agreement, and each a^d
every part thereof; that they understand the terms and conditions; and have consulted with
counsel with respect thereto; and that they accept, agree to and intend to be bound by the terms
and conditions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this Agreement the day and
year above first written.
[Signatures on Pages Immediately Following]
Ditch Relocation Agreement Page 4 of 7
BRADLEY FAMILY REVOCABLE TRUST
X-v ZI., /By:
Its:
STATE OF )
ss.
COUNTY OF
This instrument was acknowledged before me on 2022, by
as_. of Bradley Family Revocable Trust.
Notary State of
(seal) Printed Name:
GORDON &JACKLYN BRADLEY FAMILY
TRUST
By:
Its:
STATE OF )
ss.
COUNTY OF )
This instrument was acknowledged before me on 2022, by
as of Bradley, Gordon & Jacklyn Family Trust.
Notary State of
(seal) Printed Name:
Ditch Relocation Agreement Page 5 of 7
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of .S14 C4-l,iY moo )
On OS/Qgf 7-0ZZ before me, 3,902W ,n&4 >4c / C-
(insert name and title of the officer)
personally appeared R o 4 6 kf-1A trc-'-j I." ,
who proved to me on the basis satisfactory a idence to be the p son(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
" A SAMUEL QUINLAN
WITNESS my hand and official seal. _' ,......1 Comm.#2314932
N Notary Public-California n
>•. Placer County
Comm.Expires Oec 8,2023
Signature (Seal)
GLENN DAVID COWLES TRUST
4zloow�
By: �r�s
Its:
STATE OF ) Sc,- a-,A cc C 1�d
ss.
COUNTY OF )
This instrument was acknowledged before me on 2022, by
as of Cowles, Glenn David Trust.
Notary State of
(seal) Printed Name:
Ditch Relocation Agreement Page 6 of 7
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Y&ra-vyLcA -o )
On 0�/0�r 2ozZ before me, JG( I/'e� �� ( No' t f-I � G
(insert name and title of the o cer)
personally appeared �oy (7arc.1 /3roLd ke—!t
who proved to me on the basis of iatisfactoryievidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
SAMUEL QUINLAN
WITNESS my hand and official seal. ,< Comm.#2314932
w = Notary Public.California
- Placer County
Comm.Expires Dec 8,2023
Signature (Seal)
BUFFALO RUN BOZEMAN, LLC:
BY:"' ; !
Its: Manager
STATE OF MONTANA )
ss.
COUNTY OF GALLATIN )
This instrument was acknowledged before me on ��,�u�� 2022, by
L>rek W;\gams , as Manager of Buffalo Run Bozeman, LLC.
CYNTHIA M EDGMOND r�1.
,. Ct�P...Q "' Notary Public
z- o< Notary State of Mo tana _
(Seal) =c'i:NOTARiq�.o-_for the State of Montana
*. *_ Residing at: Printed Name: �1 j �4
.SEAL.=Q Bozeman, Montana
My Commission Expires:
December 8,2024
Ditch Relocation Agreement Page 7 of 7
LEGEND
PROPOSED WEST SIDE DITCH IMPROVEMENTS FOR COMB PRESERVE EXISTING CMP
WED FLOW CULVERTS UNDER STUCKY ROAD
ALONG COUNTY ROAD SECTIONS ON EACH SIDE OF FOWLER LANE
® PROPOSED WEST SIDE DITCH OPTION THROUGHOUT PROPERTY FRONTAGE
NEW CULVERT OF SPECIFIED SIZE(FLOW DIRECTION FROM WEST TO EAST) STUCKY ROAD
NEW CULVERT OF SPECIFIED SIZE(FLOW DIRECTION FROM EAST TO WEST)
NEW NO`EQUIVALENT ARCH PIPE CMP
CULVERT TO BE ANGLED AT 45'ANGLE TO
ROAD IN DIRECTION OF ROW TO MINIMZE
ENERGY/WATER LOSS AND MINIMIZE
DEBRIS BUILDUP.
CULVERT INSTALLED TO PROVIDE
DIVERSION FOR MSU WATER RIGHTS
O
m
k
m
MAINTAIN EXISTING DIVERSION
FOR BRADLEY PROPERTY
NEW CULVERT TO CONVEY LOCAUZED STORM
RUNOFF FROM EAST SIDE DITCH.INSTALL 1S-CMP
AT 45'ANGLE TO ROAD IN DIRECTION OF FLOW
BUFFALO RUN BOZEMAN
PROPERTY
NEW 36'EQUIVALENT ARCH CMP CULVERT
CROSSING.INSTALL CMP AT 45-ANGLE TO
ROAD IN DIRECTION OF FLOW TO MINIMIZE
ENERGY,WATER LOSS AND MINIMIZE DEBRIS
BUILDUP.
ALL IRRIGATION WATER CONVEYED WEST TO
COMBINED DITCH
BLACKWOOD ROAD
NO MODIFICATIONS TO EXISTING
CULVERTS BENEATH BLACKWOOD
ROAD AT INTERSECTION
NO MODIFICATIONS TO EXISTING
DITCHES SOUTH OF BLACKWOOD ROAD
PRESERVE EXISTING CMP CULVERT
TO EAST TO MAINTAIN WATER
ACCESS TO REAL RED LLC PROPERTY
N.T.S.
■Morrison
■. BO'^^"wT u.�e xow.�. NEW -
UFFALCRUNN-OFFSITES
E IMPROVEMEN cn Na
�Maierle �_ A�rs.or: BOZEMAN use
mm.r MONTAI
•vw� mR FOWI FP I ANF IR�Irer�nu nirru ocn...-.,..�..- :icuaE wu-