HomeMy WebLinkAbout15- Norton Ranch Subdivision Water Adequacy Requirements Memorandum of UnderstandingMEMORANDUM OF AGREEMENT
FOR
NORTON RANCH SUBDIVISION
WATER ADEQUACY REQUIREMENTS
This AGREEMENT is made and entered into this I day of '2015,
by and between Norton Properties, LLC, hereinafter called the "Subdivider," and the
City of Bozeman, a municipal corporation and political subdivision of the State of
Montana, with offices at 121 North Rouse Avenue, P.O. Box 1230, Bozeman, MT
59771-1230, hereinafter called the "City," for the purpose of addressing the City's water
adequacy requirements for new development.
It is the intent and purpose of the Subdivider and the City to hereby enter into an
Agreement for Subdivider to transfer certain water rights to City in satisfaction of the
required water adequacy obligation related with the property hereinafter described.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, it is hereby agreed as follows:
1. Property Description
This Agreement pertains to, and includes, properties which will be in future
phases of Norton Ranch subdivision located in Section 9, Township 2 South, Range 5
East, PMM, Gallatin County, Montana on file and of record in the office of the Clerk and
Recorder, Gallatin County, Montana (the "Norton Ranch Property"). The proposed place
Norton Ranch Subdivision —Agreement
of use of the water rights to be transferred to the City is a sports park located in Tract
lAl COS 2554B, W1/2 NW1/4, Sec 3, T2S, RSE, PMM, Gallatin County, Montana (the
"City Property")
2. Transfer of Water Rights
Under this Memorandum, the Subdivider has been informed of and agrees to
comply with, the water adequacy requirements of the City of the Bozeman Development
Ordinance. This Agreement specifically includes the transfer of water rights that must
first undergo a water rights change from the DNRC to ensure the transferred water rights
are legally and physically available to serve water demands of the City on the City
Property. Subdivider is the co-owner of three water rights from the West Gallatin
River, 41H 300231118-00, 41H 30023119-00, and 41H 30023120-00 (Subdivider's
interest in such water rights is hereinafter referred to as the "Norton Water Rights"). The
City has determined that, subject to an approved Change Application. the Norton Water
Rights are adequate and useful for City purposes. City acknowledges that Subdivider is
currently in contract to sell a portion of the Norton Water Rights to a third party and the
water rights transferred to the City will be the Norton Water Rights remaining after the
sale to such third party.
The parties agree that the applicable unit value of the Norton Water Rights is
equal to 40.4 % of the City's current Cash in Lieu Unit Cost value, which is expressed in
units of applied acre-feet per year. The Subdivider will therefore receive a credit of
0.404 acre-feet for each acre-foot of applied water effectively transferred to the City. The
term `applied water' for purposes of this Agreement is defined as the amount of water
approved for transfer that was historically applied to the Norton Properties field for
irrigation from the Norton Water Rights. The historic applied water location was the
pump located in the SESW of Section 9 Township 2 South, Range 5 East. The applied
water is the difference between historic diverted volume less conveyance losses.
Norton Ranch Subdivision—Agreement 2
3. Change Application
The Subdivider shall diligently pursue approval of the water right transfer from
the Norton Ranch Property to the City Property and shall, at its sole expense, be
responsible for preparing applications and documents to complete the transfer. Those
documents may include, but are not limited to, DNRC change applications, deeds to
transfer fee simple title of the water rights, DNRC water rights ownership update forms;
and any other documents or forms determined necessary. The applicant shall have
eighteen months from the date this Agreement is fully executed to file a correct and
complete change application(s) with the DNRC, and thirty-six months to complete the
transfer of water to the City. The applicant shall cause the legal transfer of the water to
the City including the execution of any necessary document(s), form(s), or request(s) in
accordance with any applicable and governing documents or laws. In the event the
transfer has not been completed within the thirty-six month term provided, the applicant
will provide cash, or transfer equivalent volume of Middle Creek Water Users"
Association shares, in accordance with Sec. 38.23.180, Bozeman Municipal Code and
the water demands of the Subdivider's approved development, unless the parties
determine that the transfer will be completed within a reasonable time after expiration of
such thirty-six month term and mutually agree to an extension.
4. Financial Guarantee, Time for Transfer of Water Rights
If the Subdivider seeks to file a final plat or other approval which requires
satisfaction of Sec. 38.23.180, prior to completion of the Transfer of Water Rights, this
Agreement shall be secured by a guarantee in a form acceptable to the City of Bozeman.
Such guarantee may be financial or an appropriate pledge of shares in the Middle Creek
Water User' Association. If the DNRC change application process for the water right has
not been completed within the thirty-six month term provided, as the same may be
extended by mutual agreement of the parties, the Subdivider shall have 45 days to pay the
cash in lieu amount, or transfer equivalent volume of Middle Creek Water Users'
Associaiton shares, for all lots platted by the City in reliance on this Agreement. If the
Norton Ranch Subdivision —Agreement 3
Subdivider does not pay such amount in full within such 45 day period, the Subdivider
shall execute all necessary documentation to allow an assessment to be placed against the
Norton Ranch Property then owned by the Subdivider such that the balance of the cash in
lieu amount owed shall be a lien upon such property and invoiced and paid through the
Gallatin County offices in the same manner as other municipal assessments against the
property. This documentation will be forwarded to the City Treasurer for annual
assessment pursuant to 7-13-4309, MCA.
5. Default
Time is of the essence of this Agreement. If the Subdivider shall default in or fail
to fully perform any of its obligations in conformance with the time schedule under this
Agreement, and such default or failure shall continue for a period of thirty (30) days after
written notice specifying the default is deposited in the United States mail addressed to
the Subdivider at 63026 NE Lower Meadow Drive, Suite 200, Bend, Oregon 97701, or
such other address as the Subdivider shall provide to the City from time to time, without
being completely remedied, satisfied, and discharged, the City may elect to enforce any
remedy provided by law.
6. Attorney Fees
If any suit, or action is instituted to interpret or enforce the provisions of this
Agreement, to rescind this Agreement, or otherwise with respect to the subject matter of
this Agreement, the parry prevailing on an issue will be entitled to recover with respect to
such issue, in addition to costs, reasonable attorney fees incurred in the preparation,
prosecution, or defense of such suit, or action as determined by the trial court, and if any
appeal is taken from such decision, reasonable attorney fees as determined on appeal.
Norton Ranch Subdivision —Agreement 4
7. Governing Law
This Agreement shall be construed according to the laws of the State of Montana.
In the event of litigation concerning this Agreement. venue is in the Eighteenth Judicial
District Court, Gallatin County, State of Montana.
8. Modification or Alterations
No modifications or amendment of this Agreement shall valid, unless evidenced
by a writing signed by the parties hereto.
9. Invalid Provision
The invalidity or unenforceability of any provision of this Agreement shall not
affect the other provisions hereof, and this Agreement shall be construed in all respects as
if such invalid or unenforceable provision were omitted.
10. No Assignment
It is expressly agreed that the Subdivider shall not assign this Agreement in
whole, or in part, without prior written consent to City.
11. Successors
This Agreement shall be binding upon, enure to the benefit of, and be enforceable
by the parties hereto and their respective heirs, successors and assigns.
12. Filing
This Agreement shall be recorded in the Office of the Gallatin County Clerk and
Recorder.
Norton Ranch Subdivision —Agreement 5
Norton S division
1
BYE``
(Authorized igner)
STATE OF 19NT )
County of (3 "alp l
On this 1 TTS day of !L 2015, before me a Notary Public of the
State -?f Menr�ersonally appeared Q �'�� _ e1C CDC
�>�' < -
known to met ` be the representatives who executed the foregoing Agreement, and
acknowledged to me that they executed the same for and on behalf of said Subdivider.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial
Seal the day and year first above written.
(SEAL)
* OFFICIAL SEAL
j� TALLIE 1 BELA1
ff
NOTARY PUBLIC• OR
COMMISSION NO. ��i3�r83
ION
OMUS AUGU913.2617
Norton Ranch Subdivision Agreement
Notary Public for the State of -Montana— 1^
Residing at '1 " -+ `� , 1.)
My Commission Expires:
(Use 4 digits for expiration year)
STATE OF MONTANA
:ss
County of Gallatin
THE CITY OF BOZEMAN
5
BY: CRAIG WOOLARD
DIRECTOR OF PUBLIC WORKS
CITY OF BOZEMAN
On this / _ day of / , 2015, before me a Notary Public of the
State of Montana, personally appeared Craig Woolard, known to me to be the person
described in and who executed the foregoing instrument as Director of Public Works for
the City of Bozeman, whose name is subscribed to the within instrument and
acknowledged to me that he executed the same for and on behalf of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial
Seal the day and year first written above.
(SEAL)
KATHERINE MAINES
Notary Public
for the State of Montana
_ Residing at:
Belgrade, Montana
Pv1Ct��P My Commission Expires:
July 22, 2016
Norton Ranch Subdivision —Agreement
Not ublic for the State of Montana
Residing atm
My Commission
(Use 4 digits for