MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOU") is entered into as of the Effective Date by and between the Crooked River Ranch Club and Maintenance Association, located at 5195 SW Clubhouse Dr., Crooked River Ranch, Oregon 97760 (the "Association") and Crooked River Ranch Water Company, located at 13845 SW Commercial Loop, Crooked River Ranch, Oregon 97760 (the "Water Company"). The Association and the Water Company are referred to collectively as the "Parties," and each individually as a “Party.”
The Parties enter into this MOU to confirm their intentions to operate and manage their respective land, facilities, and related equipment and other interests in a manner that respects the distinct purpose, roles, and responsibilities each Party possesses and to identify and take advantage of opportunities to manage such interests for the benefit of the other when the Parties agree such an approach is in the best interests of the Parties and the residents of the Crooked River Ranch.
The Water Company is now a rate-regulated utility under the jurisdiction of the Oregon Public Utilities Commission (“OPUC”), and the parties acknowledge that all conduct associated with the operation of the Water Company’s water system must be reasonable and prudent and non-discriminatory as determined by the OPUC.
TERMS AND CONDITIONS
1. Equipment and Services. In order to provide for the safe and continuous operation of each Party’s land, facilities and related equipment, the Parties agree that it is in the Parties’ best interest to make available to each other the use of equipment, facilities, supplies, other personal property and services (collectively “Equipment and Services”). When the Parties mutually agree that one Party will make a specified portion of its Equipment and Services available to the other Party, the Party requesting use of the other Party’s Equipment and Services shall reimburse the other Party for all costs associated with the provision of such Equipment and Services. In order to facilitate the provision of Equipment and Services among the Parties, the Parties agree to execute any and all documents as the Parties deem necessary to allocate costs, responsibilities and liabilities in making the Equipment and Services available.
2. Access to Real Property. In the event either Party must obtain approval from the other Party for temporary or permanent access on, across or over the real property of the other Party, such approval shall be subject to the written approval of the Board of Directors of the other Party. Such approvals, together with the execution of any easements, licenses, leases, or other documents as necessary to memorialize (1) the scope and purpose of such access, (2) the Parties’ respective responsibilities in the use of the affected property, or (3) the acquisition of appropriate permits or other approvals as may be required from county and/or state authorities, shall be completed in advance of any construction, operation, maintenance or repair of facilities of any kind or the carrying out of other new activities on the affected property. In order to further the Parties’ intent to properly document any such access and use of affected properties, the Parties also agree to provide copies of all current and future as-built drawings as have been completed or need to be completed for all improvements currently located on a Party’s affected property or, as the Parties agree, may be located on a Party’s affected property in the future.
3. Dissolution of Water Company. The Parties agree to pursue in good faith options for ensuring that all assets of the Water Company shall be distributed to the Association in case of the Water Company’s dissolution.
4. Provision of Water Supply under Water Right Certificate No. 75144. The Parties agree that, as the owner of that water right identified in the records of the Oregon Water Resources Department as Water Rights Certificate No. 75144 (the “Water Right”), the Association is currently limited to (a) withdrawing such Water Right for the purpose of irrigation of 4.4 acres in the area of the RV Park and (b) that such withdrawals must be developed from the Water Company’s Well No. 2. The Association agrees to reimburse the Water Company for all costs associated with the Water Company’s operation and maintenance of its Well No. 2 and other facilities necessary for the purposes of delivering to the Association its water and Water Right to the RV Park for irrigation purposes or such other beneficial uses as may be permitted as a matter of law. Such costs shall be as determined by the Water Company’s then-applicable published rate as approved by the OPUC. On the occasion that the Water Company ever chooses to shut down Well No. 2 and not replace it with a new well in the same area, the Parties agree to negotiate in good faith to secure an alternate point of appropriation to allow for the Association’s use of its Water Right to the extent such cannot be reasonably achieved by use of one of the Association’s existing wells.
5. Standpipe Agreement. The Association’s current standpipe for filling water delivery vehicles is supplied from the Association’s Well No. 1. The Parties agree that when and if the Water Company completes a new well and/or storage facility in the vicinity of the Fire Hall, the Water Company will include a standpipe facility that will be accessible to the Association for the filling of water delivery vehicles. The Association will pay the applicable rate for the use of any water from the standpipe, which rate will include the costs for the construction, maintenance and operation of the standpipe as determined by the Water Company’s then-applicable published rate as approved by the OPUC.
6. Water Tower Leases. The Water Company currently has lease agreements with Webformix and T-Mobile for equipment installations on the Water Company’s water tower (the “Tower Leases”). The Parties agree to execute such documents as necessary to confirm in the Association a 50% interest in all net proceeds associated with the Tower Leases as well as seek changes in the future administration of the Tower Leases and placement of the Webformix and T-Mobile equipment installations as the Parties may agree. Nothing in this MOU shall require the Water Company to maintain or to renew the Tower Leases or to enter into any new similar leases in the future.
7. Entire Agreement. This MOU constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces any prior or contemporaneous written or oral agreements or understandings between the Parties.
8. Periodic Review. This MOU shall be subject to the Parties' periodic review to ensure ongoing consideration of the operation, scope, and maintenance of thisPeriodic reviews shall occur at such times as the Parties may agree, provided, however, that the first periodic review shall begin no later than two years from the Effective Date of this MOU with each subsequent periodic review to begin no later than two years from the completion of the prior periodic review.
9. Amendment; Waiver. No term of this MOU will be amended, supplemented, waived or modified except in writing referring to this MOU and signed by the Parties. No delay or omission in the exercise of any right or remedy will be deemed a waiver of any right or remedy. No waiver will constitute a waiver of any other provision, breach, right or remedy, nor will any waiver constitute a continuing waiver.
10. Assignment. The Parties may not assign any of their rights, delegate any of their duties, or subcontract all or any part of this MOU, whether by transfer, merger, operation of law or otherwise.
11. Severability. Should any part of this MOU for any reason be declared by any court or administrative agency of competent jurisdiction to be invalid, it is the Parties’ intention that such decision not affect the validity of any or all remaining portions of this MOU and that such provisions remain in full force and effect.
12. Governing Law. This MOU will be governed by and construed in accordance with the applicable laws of Oregon.
13. Authority. Each Party represents, warrants, and agrees that the person who has executed this MOU on its behalf has the full right and authority to enter into this MOU on behalf of that party and bind that party to the terms of the MOU.
14. Binding Effect. This MOU is binding on the Parties hereto and their respective successors, legal representatives, or any other person(s) claiming a right or interest through the Parties. No provision of this MOU shall be construed to create any right or obligation in a third party not a Party to this MOU.
15. Execution. This MOU may be executed in multiple counterparts, each of which shall be deemed an original and all of which shall constitute one agreement, binding on the Parties. Delivery of an executed signature page to this MOU by facsimile transmission is effective as delivery of an original signed counterpart of this MOU.
16. Effective Date. This MOU shall be effective as of the date both Parties have executed this MOU.
CROOKED RIVER RANCH WATER COMPANY
By: Dennis Kirk, President
Date: April 10th, 2012
CROOKED RIVER RANCH CLUB AND MAINTENANCE ASSOCIATION
By: Ben Johnson, President
Date: April 9th, 2012