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HomeMy WebLinkAbout011 Ditch Relocation Agreement - Bradley Family Revocable TrustMarch 18, 2022 Bradley Family Revocable Trust 5912 Our Way Citrus Heights, CA 95610-6709 RE: Agreement for Relocation of the Middle Creek Ditch along Fowler Lane Dear Water Right Owner: In April of 2021, the Homestead at Buffalo Run project was approved by the City of Bozeman for annexation into the City with a R4 zoning classification. Currently, the project is going through the final stages of Site Plan approval from the City of Bozeman. As part of the Homestead at Buffalo Run project on Fowler Lane, the City of Bozeman is requiring that Fowler Lane be widened to an approved City section for a minor arterial classification (within the property limits of the project). As a result of this requirement, the irrigation ditch that currently runs along the east side of Fowler Lane is proposed to be relocated to the west side of Fowler Lane between Stucky Road and south of Blackwood Road. During the course of designing and engineering the project, our consultant team has been in consistent communication with the ditch companies and most of the private water owners on those same ditches. Calculations and design options have been provided and comments received from multiple parties. Modifications and revisions were made to the originally proposed design as a result of the comments and concerns that were expressed. Attached is an agreement with exhibits that reflect the final proposed design. We are requesting your signature on the attached agreement reflecting that you are in agreement with the proposed design for relocation of the water to be conveyed to the west side of Fowler. Based on calculations and engineering, the amount of water received by the water owners, or the point of diversion will not change and will be the same amount of water as historically received. If you have any questions, I and/or our legal counsel will be happy to answer them for you. Below is the contact information for those parties: • Derek Williams – derek@bridgerdevelop.com, 303-887-4045 • Susan Swimley - swimley@swimleylaw.com, 406-586-5544 • Abigail Brown - abby@mtwaterlaw.com, 406-457-5494 We are requesting the fully signed and executed agreement from you by Friday April 1, 2022. Thank you so much for your time and consideration. Sincerely, Buffalo Run Bozeman, LLC Derek Williams Manager/Member Cc: Susan Swimley Abigail Brown Page 1 of 7 DITCH RELOCATION AGREEMENT This Ditch Relocation Agreement (“Agreement”) is entered into this ______ day of ____________, 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 41H 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: Page 2 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 the ditch bank around any culvert or pipeline openings so no sloughing occurs. 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. Page 3 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 Owner. 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 Page 4 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 and 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] Page 5 of 7 BRADLEY FAMILY REVOCABLE TRUST ________________________________ By:______________________________ Its:______________________________ STATE OF MONTANA ) : ss. COUNTY OF GALLATIN ) This instrument was acknowledged before me on _____________________2022, by ___________________, as _______________ of Bradley Family Revocable Trust. ___________________________________ Notary State of Montana (seal) Printed Name: _______________________ GORDON & JACKLYN BRADLEY FAMILY TRUST ________________________________ By:______________________________ Its:______________________________ STATE OF MONTANA ) : ss. COUNTY OF GALLATIN ) This instrument was acknowledged before me on _____________________2022, by ___________________, as _______________ of Bradley, Gordon & Jacklyn Family Trust. ___________________________________ Notary State of Montana (seal) Printed Name: _______________________ Page 6 of 7 GLENN DAVID COWLES TRUST ________________________________ By:______________________________ Its:______________________________ STATE OF MONTANA ) : ss. COUNTY OF GALLATIN ) This instrument was acknowledged before me on _____________________2022, by ___________________, as _______________ of Cowles, Glenn David Trust. ___________________________________ Notary State of Montana (seal) Printed Name: _______________________ Page 7 of 7 BUFFALO RUN BOZEMAN, LLC: __________________________________ BY:_______________________________ Its: Manager STATE OF MONTANA ) : ss. COUNTY OF GALLATIN ) This instrument was acknowledged before me on _____________________2022, by __________________, as Manager of Buffalo Run Bozeman, LLC. ___________________________________ Notary State of Montana (seal) Printed Name: _______________________ LEGEND PROPOSED WEST SIDE DITCH IMPROVEMENTS FOR COMBINED FLOW ALONG COUNTY ROAD SECTIONS NEW CULVERT OF SPECIFIED SIZE (FLOW DIRECTION FROM WEST TO EAST) PROPOSED WEST SIDE DITCH OPTION THROUGHOUT PROPERTY FRONTAGE FIGURE NUMBER © PROJECT NO.DRAWN BY: DSGN. BY: APPR. BY: DATE: COPYRIGHT MORRISON-MAIERLE, INC.,2022 N:\6475\003 - Offsite Imps - Fowler and S 27th\ACAD\Exhibits\6475.003_DITCH REALIGNMENT VICINITY MAP.dwg Plotted by lee hageman on Mar/11/2022 engineers surveyors planners scientists MorrisonMaierle 2880 Technology Blvd West Bozeman, MT 59718 406.587.0721 www.m-m.net 6475.003 EX-A BUFFALO RUN - OFFSITE IMPROVEMENTS BOZEMAN MONTANA FOWLER LANE IRRIGATION DITCH REALIGNMENT OPTION #2 LRH LRH LRH 03/11/2022 N.T.S. BLACKWOOD ROAD STUCKY ROAD FOWLER LANEHERIZA, T H O M A S J & M A Y L HAGGER T Y F A M I L Y 2B HOLD I N G S GAVIN, W I L L I A M M B & R E N E E R BRADLEY P L A C E KOUNTZ , D A Y L E H CHRISTE N S E N , J O N & E L I Z A B E T H REAL RE D L L C KOUNTZ , D A Y L E H KOUNTZ , D A Y L E H BUFFALO RUN BOZEMAN PROPERTY TOWERS , CHRISTO P H E R R FOWLER L A N E LLC COOK REVOCA B L E TRUST COOK, JE F F E R Y W & SARA H TOWERS , CHRISTO P H E R R PRESERVE EXISTING CMP CULVERT TO EAST TO MAINTAIN WATER ACCESS TO REAL RED LLC PROPERTY PRESERVE EXISTING CMP CULVERTS UNDER STUCKY ROAD ON EACH SIDE OF FOWLER LANE NEW CULVERT TO CONVEY LOCALIZED STORM RUNOFF FROM EAST SIDE DITCH. INSTALL 15" CMP AT 45° ANGLE TO ROAD IN DIRECTION OF FLOW 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 NEW 30" EQUIVALENT ARCH PIPE CMP CULVERT TO BE ANGLED AT 45° ANGLE TO ROAD IN DIRECTION OF FLOW TO MINIMIZE ENERGY/ WATER LOSS AND MINIMIZE DEBRIS BUILDUP. CULVERT INSTALLED TO PROVIDE DIVERSION FOR MSU WATER RIGHTS NO MODIFICATIONS TO EXISTING DITCHES SOUTH OF BLACKWOOD ROAD NEW CULVERT OF SPECIFIED SIZE (FLOW DIRECTION FROM EAST TO WEST) NO MODIFICATIONS TO EXISTING CULVERTS BENEATH BLACKWOOD ROAD AT INTERSECTION BOZEMAN H A U S T W O L L C KDG HOL D I N G S L L C >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>MAINTAIN EXISTING DIVERSION FOR BRADLEY PROPERTY