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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 tl,- .J'tchi b !. d .• v. ....t ..r el'nc o;-. � o no sic„� . . 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 frH Reloca 47bn 4- itcAe MtA C-b- a 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 Pte loco iron Tree Pun 4- (aA(h>� �r e f 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-