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Home My WebLink About015 West Gallatin Canal Agreement - signed DITCH RELOCATION AGREEMENT This Ditch Relocation Agreement ("Agreement") is entered into this day of 2022, by and between the West Gallatin Canal Company, a Montana corporation with address of P.O. Box 553, Gallatin Gateway, MT 59730, (hereinafter referred to as "the Ditch Company") 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 Ditch Company is the owner 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 Company has established a ditch easement for the Ditch for the purpose of conveying irrigation water to its members' real property; 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 1 of 5 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 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 Ditch Company 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 Ditch Company as soon after execution of this Agreement as practicable. BRB acknowledges Ditch Company 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 Ditch Company 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 Ditch Company 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 Ditch Company. 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 Ditch Company for any and all expenses it may incur in the preparation and recording of this Agreement including, but not limited to Ditch Company staff time, reasonable attorney fees incurred by Ditch Company 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 Ditch Company no later than forty-five (45) days after the expense is incurred. BRB shall pay the Ditch Company's invoice(s) within forty-five (45) days of presentation Page 2 of 5 to BRB by Ditch Company. 7. BRB agrees the Ditch Company 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 Ditch Company. Permission to interrupt the flow of water will be granted based on the sole discretion of the Ditch Company, 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 Ditch Company shall have the opportunity to inspect and confirm the relocated and improved Ditch operates and performs as expected. Once the Ditch Company 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 Ditch Company's confirmation shall not be unreasonably withheld. 10. BRB 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 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 Ditch Company. 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. Page 3 of 5 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. BRB is expressly prohibited from seeking to change any elements of Ditch Company's water rights without the express written consent of Ditch Company. 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. WEST GALLATIN CANAL C MPANY By: Its:. 3e C,/I fr�& iy (-,C G STATE OF MONTANA ) : ss. COUNTY OF GALLATIN ) This instrument was acknowledged before me on fCpYi` � 2022, by AW1O {�--De& y4-,rdLi S , as 55C05 I TrfA1;. • of West Gallatin Canal Company. ,,o�SEGGFy,<; S EGGEN Notary State of nta (seal) Notary Public Printed a e :NoTnaigi• for the State of Montana *= Residing at: uj.SEAL.�Q Bozeman, Montana %, � :• MY Commission Expires: October 06,2022 Page 4 of 5 BUFFALO RUN BOZEEMAN, LLC: By: Dfigef..)g- j a A,nj A, Its: Manager STATE OF MONTANA ) ss. COUNTY OF GALLATIN ) This instrument was acknowledged before me on 2022, by Decck�:l�,r�s , as Manager of Buffalo Run Bozeman, LLC. CYNTHIA M EDGMOND Notary Public Notary State of M ntana seal =U•, pTAR/qZ°yo=_for the State of Montana (seal) _-_ Printed Name: �, ;�VYt. t�c�r.�,r►o�c1 *. *` Residing at: �;.SEAL Q_ Bozeman, Montana My Commission Expires: M,,,, ° December 8,2024 Page 5 of 5 LEGEND ` .:.. PRESERVE EXISTING CMP PROPOSED WEST SIDE DITCH IMPROVEMENTS FOR COMBINED FLOW CULVERTS UNDER STUCKY ROAD ALONG COUNTY ROAD SECTIONS IT ON EACH SIDE OF FOWLER LANE PROPOSED WEST SIDE DITCH OPTION THROUGHOUT PROPERTY FRONTAGE £z NEW CULVERT OF SPECIFIED SIZE(FLOW DIRECTION FROM WEST TO EAST) -f - __- — STUCKY ROAD - --- NEW CULVERT OF SPECIFIED SIZE(FLOW DIRECTION FROM FAST TO WEST) OhS35,M. 9 NEW 30"EQUIVALENT ARCH PIPE CMP ;:- CULVERT TO BE ANGLED AT 45'ANGLE TO ROAD IN DIRECTION OF FLOW TO MINIMIZEtN "' ENERGY/WATER LOSS AND MINIMIZE " -- DEBRIS BUILDUP. CULVERT INSTALLED TO PROVIDE DIVERSION FOR MSU WATER RIGHTS :: - e e TO m m z m m MAINTAIN EXISTING DIVERSION FOR BRADLEY PROPERTY NEW CULVERT TO CONVEY LOCALZED STORM RUNOFF FROM EAST SIDE DITCH.INSTALL 15"CMP AT 45°ANGLE TO ROAD IN DIRECTION OF FLOW t BUFFALO RUN BOZEMAN �. PROPERTY 1' NEW 36"EQUIVALENT ARCH CMP CULVERT CROSSING.INSTALL CMP AT 45"ANGLE TO _ MINIMIZE ROAD IN DIRECTION OF FLOW TO MINIMIZE ENERGY!WATER LOSS AND MINIMIZE DEBRIS ypG HOLDIK� BUILDUP. ALL IRRIGATION WATER CONVEYED WEST TO COMBINED DITCH N�OtiEL,�,,9E BLACKWOOD ROAD FIS N w NO MODIFICATIONS TO EXISTING CULVERTS BENEATH BLACKWOOD ROAD AT INTERSECTION NO MODIFICATIONS TO EXISTING DITCHES SOUTH OF BLACKWOOD ROAD PRESERVE EXISTING CMP CULVERT r, TO EAST TO MAINTAIN WATER ACCESS TO REAL RED LLC PROPERTY KKR i 'N`ysSO P:.. N.T.S. ■ duwH ev:Morrison o �a a�'"` BUFFALO RUN-OFFSITE IMPROVEMENTS i�OJE�"o BOZEMAN oscn.ev: �'600J Maierle �� MONTANA FOWLER LANE IRRIGATION DITCH REALIGNMENT cicuaE mimeEn OPTION#Z FX-A