HomeMy WebLinkAbout4544 Resolution - Purchase Water Rights from Wilson Sisters LLCResolution – Water Rights PSA Wilson Sisters, LLC - 1
RESOLUTION NO. 4544
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
AUTHORIZING THE CITY MANAGER TO EXECUTE THE PURCHASE AND
SALE AGREEMENT WITH WILSON SISTERS, LLC TO PURCHASE WATER
RIGHTS.
WHEREAS, the City of Pasco (City) is experiencing rapid population growth and
development, significantly increasing the demand for water resources to sustain both residential
and commercial needs; and
WHEREAS, the City's existing water rights are nearing full utilization, and it is crucial to
secure additional water rights to ensure the continued availability of water for its residents and
future development; and
WHEREAS, the City has identified opportunities to purchase water rights from private
owners, which are essential to supporting the City’s projected growth and maintaining a
sustainable water supply.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PASCO, WASHINGTON:
That the City Council of the City of Pasco approves the terms and conditions of the
Purchase and Sale Agreement between the City of Pasco and Wilson Sisters, LLC, as attached
hereto and incorporated herein as Exhibit A.
Be It Further Resolved, that the City Manager of the City of Pasco, Washington, is hereby
authorized, empowered, and directed to execute said Purchase and Sale Agreement on behalf of
the City of Pasco; and to make minor substantive changes as necessary to execute the Agreement.
Be It Further Resolved, that this resolution shall take effect immediately.
PASSED by the City Council of the City of Pasco, Washington, on this 9th day of
December, 2024.
_____________________________
Pete Serrano
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, MMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
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WATER RIGHTS PURCHASE AND SALE AGREEMENT
THIS WATER RIGHTS PURCHASE AND SALE AGREEMENT (“Agreement”)
is entered into between the City of Pasco, a municipal corporation (“Pasco” or “the City"
or “Buyer”) and Wilson Sisters, LLC, a limited liability company ("Seller"), each a “Party”
and collectively the "Parties" hereto, as of the Effective Date (defined below).
RECITALS
WHEREAS, Seller is the sole owner of the water right described by the Washington
State Department of Ecology (“Ecology”) as Certificate No. CG3-01349(F). Water Right
Certificate No. CG3-01349(F) authorizes the use of 32.58 gallons per minute (“gpm”) and
13 acre-feet per year (“afy”) of water for irrigation purposes. Water Right Certificate No.
CG3-01349(F) is more specifically described in Exhibit A (“Seller’s Certificate”);
WHEREAS, Seller’s Certificate was used on and was appurtenant to land that was
owned solely by Seller, which land is more specifically described in Exhibit B (“Seller’s
Former Land”);
WHEREAS, at the time in 2021 when Seller sold and deeded the Seller’s Former
Land it specifically retained and severed from the land the Seller’s Certificate, and the Title
Report for said conveyance showed at that time there were no encumbrances on said
Seller’s Former Land (“2021 Title Report”);
WHEREAS, the City has authority under RCW 35.92.010 to purchase water rights
and is interested in purchasing a portion of Seller’s Certificate of up to 32.58 gpm and 13
afy, to the extent that such quantity is determined to be valid under the laws of the State of
Washington and approved for change and transfer for use by the City (the “Water Right”);
WHEREAS, Buyer and Seller wish to accomplish all of the foregoing on the terms
set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing Recitals, which are
incorporated herein, and the mutual promises and covenants set forth herein, the receipt
and sufficiency of which are acknowledged by the Parties, the Seller and Buyer agree as
follows:
AGREEMENT
1. Purchase and Sale. Seller agrees to sell and to convey to Buyer and Buyer agrees
to purchase and acquire all of Seller’s right, title, and interests in the Water Right on the
terms and conditions stated in this Agreement. The purchase of the Water Right pursuant
to this Agreement is expressly conditioned on the receipt of all necessary final approval(s)
from Ecology, which approval(s) are beyond the time for filing of any appeal and contain
terms and conditions for change and transfer that are satisfactory to Buyer in its sole
discretion. For clarity and without limitation, Buyer’s obligation to close is subject to
Buyer’s termination rights set forth in Section 11 below.
2. Purchase Price. The purchase price for the Water Right is $4,150 for each afy of
water determined by the Ecology to be valid and authorized under the Seller’s Certificate
(“Purchase Price”).
Exhibit A
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3. Escrow.
3.1 Within five (5) business days of the Effective Date, Seller shall:
3.1.1 Open an escrow account with Pioneer Title Insurance Company
(“Escrow Company”). The individual listed below is the designated officer
for the Escrow Company:
Escrow Company Officer:
Courtney Mitchell
Escrow Officer/LPO
Pioneer Title Company, LLC
1697 N. Western Avenue
Wenatchee, WA 98801
courtney@pioneertitlecompany.com
3.1.2 Deliver a copy of this Agreement to the Escrow Company.
3.2 Within 30 days following the conclusion of the Due Diligence Period,
defined Section 5 below, to the Buyer’s satisfaction, Buyer shall deposit $2,698
into Escrow, which deposit and interest earned in Escrow shall be credited against
the final Purchase Price at Closing (“Earnest Money”).
3.3 The Escrow Company shall hold the Earnest Money in an interest-bearing
account until Closing, unless disbursed earlier pursuant to the terms of this
Agreement.
4. Condition of Title and Title Review.
4.1 Condition of Title. Seller warrants that it has not encumbered Seller’s
Certificate with any liens or claims and will provide a bargain and sale deed to that
effect at Closing. The Parties will conduct title review and complete the title review
process before the conclusion of the Due Diligence Period, as defined Section 5
below. After opening of the escrow account, Seller will deliver, at Seller’s cost and
expense, documents showing that Seller holds exclusive title to Seller’s Certificate
(“Seller’s Documents”).
4.2 Buyer’s Review and Seller’s Obligations. Buyer shall have up to thirty (30)
days after receipt of Seller’s Documents to notify Seller in writing of any objections
to the condition of title of Seller’s Certificate.
4.3 Seller’s Response. If Buyer has objected to the condition of title of Seller’s
Certificate, Seller shall have fifteen (15) days after receipt of Buyer’s objections to
provide written notice to Buyer that it agrees to cure or cause such objections to be
removed on or prior to Closing.
5. Due Diligence.
5.1 Buyer shall have thirty (30) days after Seller’s delivery of supporting
documentation to perform a due diligence review of Seller’s Certificate and water
use information from the Seller (“Due Diligence Period”). Seller acknowledges
that Buyer’s due diligence review of Seller’s Certificate will include evaluation by
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Buyer and consultation with Ecology as to the nature, extent, quantity, and validity
of Seller’s Certificate.
5.2 The Due Diligence Period will commence after Seller has delivered to
Buyer the following items:
5.2.1 The original Columbia East certificate.
5.2.2 The Ecology modification order approving the transfer to May
(2014).
5.2.3 The water right agreement signed by all parties to the Columbia East
certificate (1921).
5.2.4 The statutory warranty deed between Project Oyster, LLC
(Amazon) reserving ownership of the Seller’s Certificate (1921).
5.2.5 Copy of Superseding Certificate of Water Right G3-01349(E).
5.2.6 Copy of the most recent modification order and ACQ following the
second transfer to May.
5.2.7 A true and correct copy of the 2021 Title Report.
5.2.8 Any other documents and information in the possession or control
of Seller and pertaining to the Seller’s Certificate.
If Buyer is unsatisfied with the due diligence investigation, it may terminate this
Agreement with no further commitment or liability to the Seller. If Buyer is
satisfied with the due diligence investigation, Buyer will provide a notice to Seller
to proceed (“Notice to Proceed”) with application to change and transfer the Water
Right and will deposit Earnest Money into Escrow as described in Section 3.2
above.
6. Regulatory Approval Contingency.
6.1 After Buyer has sent a Notice to Proceed to Seller, Buyer and Seller will
have eight (8) months to seek regulatory approval of the change and transfer of the
Water Right for Buyer’s purposes (the “Transfer Application Period”) through an
application for change and transfer with the Franklin County Water Conservancy
Board. Buyer or Seller may extend the Transfer Application Period if the
application has been filed the application and is in process, and the extension is in
writing.
6.2 Buyer will lead the application process for requesting and obtaining
approval of the change and transfer of the Water Right, and Buyer will file the
application and be responsible for managing the application process. Buyer shall
pursue the application(s) diligently and with the goal of maximizing the water
quantities to be changed and transferred. Buyer will pay the application fees of
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Franklin County Water Conservancy Board and all other costs associated with the
application process.
6.3 Seller will cooperate with Buyer in obtaining necessary regulatory
approval(s) and will, at Buyer’s request, sign any applications necessary for such
Ecology approval consistent with this Agreement. Within fifteen (15) days of
mutual acceptance Buyer and Seller will meet and confer regarding application
completion and assembly of supporting information and documentation. Seller will
provide all necessary and useful information, data, maps, and other material to
support Buyer’s application to change and a transfer a portion of Seller’s
Certificate. The Parties agree to work in good faith to provide evidence of water
use under the Water Right and to support the application(s). Buyer will provide
draft(s) of all other pertinent documentation for review and approval by Seller,
which review and approval will not be unreasonably withheld or delayed by Seller.
Buyer shall keep Seller informed of the status of application review and processing
and will share communications and correspondence with the Franklin County
Water Conservancy Board. In response to any questions or requests for additional
information from the Franklin County Water Conservancy Board or Ecology, Seller
will cooperate with Buyer by responding to questions, providing additional
information or documents, and taking other reasonable actions necessary to obtain
the Approval. Seller shall keep Buyer fully apprised of the process and of all
meetings, and Seller shall have the right to participate in all aspects of the process
necessary or appropriate to protect Seller’s interests. Seller or Seller’s
representatives can request additional information from Buyer regarding the
application process, and Buyer will timely respond to Buyer’s request.
6.4 Seller reserves the right to dispute, challenge, or appeal Ecology’s
decision(s) at its own risk and cost expense, unless the Parties agree otherwise by
written agreement. Buyer’s obligation to proceed to Closing and to purchase the
Water Right is expressly contingent on obtaining final approval of the change and
transfer to the Water Right on terms and conditions satisfactory to the City. The
Buyer shall provide the Seller with a Notice stating any objections to terms and
conditions in the recommended decision of the Water Conservancy Board, and if it
fails to do so the Buyer is deemed to accept the same terms and conditions in the
final Ecology approval and shall proceed to Closing; provided, however, that the
foregoing shall not apply in the event that the final Ecology decision changes or
modifies the recommended decision of the Water Conservancy Board.
7. Seller’s Obligation Not to Encumber or Convey. Until the transaction closes,
Seller shall not enter into, or cause to be entered into, any written or oral option agreement,
sale agreement, lease, or other contract or agreement to convey or otherwise encumber
Seller’s Certificate, or any portion thereof.
8. Seller’s Warranties. For the purposes of inducing Buyer to consummate the
transactions contemplated hereby Seller represents and warrants to Buyer, as of the date
hereof and as of the Closing Date, as follows:
8.1 Authority. Seller is a limited liability company qualified to do business in
the State of Washington. Seller was the sole owner of Seller’s Former Land and
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Seller’s Certificate and has full power, authority and legal right to execute, deliver
and perform this Agreement, and all other documents and certificates contemplated
hereby. The Seller has duly authorized the execution, delivery and performance of
this Agreement, and has duly authorized the execution and delivery of this
Agreement by the person signing below.
8.2 Enforceable Agreement. This Agreement constitutes the legal, valid and
binding obligation of Seller, enforceable against Seller in accordance with its terms.
8.3 Title. At Closing, the Seller will deliver good, marketable, and indefeasible
fee simple title to the Water Right being purchased, and the same will be free and
clear of all material liens, claims, encumbrances, and defects of title except as
approved by Buyers under Section 4 of this Agreement. There are no leases, rental
agreements, service contracts, option agreements, mortgages, deeds of trust, or
other written or oral commitments, arrangements, agreements, or obligations of any
kind affecting the Water Right, except as disclosed by Seller in writing to Buyers.
8.4 Reports. All certificates and documents containing factual information to
be delivered by Seller or by Seller’s agents in connection with this Agreement, are
and shall, to the best of Seller’s knowledge, be true and correct and do not and shall
not contain any untrue statement of material fact or omit to state any material fact
the disclosure of which is necessary to make the statements contained therein and
herein, in light of the circumstances under which they are made, not misleading.
8.5 No Other Water Rights. No water rights, other than Seller’s Certificate that
is the subject of this Agreement, are appurtenant to or available for use on Seller’s
Former Land.
8.6 No Takings. To the best of Seller’s knowledge, there are no existing,
proposed, or threatened condemnation or eminent domain proceedings that would
affect Seller’s Certificate.
8.7 No Litigation. To the best of Seller’s knowledge, no litigation, suit,
arbitration, claim, or proceeding, at law or equity, judicial, municipal, or
administrative, is pending or threatened, which does or could materially affect the
purchase, use, or possession of the Water Right, or involve Seller or Buyer due to
their respective use of, and interest in, the Water Right, except as disclosed in
writing to Buyer.
8.8 No Violation of Agreements. This Agreement and the performance of the
Parties hereunder, including, without limitation, the purchase and sale of the Water
Right, or any portion thereof, will not violate any written or oral contract,
agreement, or instrument to which the Seller is a party or that affects any portion
of the Water Right.
8.9 Liquidation/Bankruptcy. None of the following has occurred with respect
to Seller’s Former Land or Seller: (1) appointment of a receiver, liquidator, or
trustee; (2) institution of any proceeding for dissolution or liquidation; (3) filing or
any petition for bankruptcy, or action toward reorganization; (4) notice of default,
trustee’s sale, foreclosure or forfeiture.
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8.10 Unpaid Bills/Claims. There are no unpaid bills, tax assessments, claims, or
liens pending or threatened by mechanics, materialmen, surveyors, or others,
recorded or unrecorded in connection with Seller’s Certificate.
8.11 Patriot Act. Neither Seller nor any direct beneficial owner of Seller: (i) is
listed on the Specially Designated Nationals and Blocked Persons List maintained
by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”)
pursuant to Executive Order No. 133224, 66 Fed. Reg. 49079 (September 25, 2001)
(the “Order”) and/or on any other list of terrorists or terrorist organizations
maintained pursuant to any of the rules and regulations of OFAC or pursuant to any
other applicable orders (such lists are collectively referred to as the “Lists”); (ii) is
a person or entity who has been determined by competent authority to be subject to
the prohibitions contained in the Orders; or (iii) is owned or controlled by, or acts
for or on behalf of, any person or entity on the Lists or any other person or entity
who has been determined by competent authority to be subject to the prohibitions
contained in the Order.
8.12 Foreign Person. Seller is a “United States person” (as defined in Section
7701(a)(30)(B) or (C) of the Code) for the purposes of the provisions of Section
1445(a) of the Code.
8.13 Survival of Warranties. The warranties in Section 8 shall be deemed
restated at Closing and shall survive the Closing and shall be fully effective
thereafter. If Seller breaches any warranty, Buyer shall have the rights and may
exercise, at its option, any of the remedies, provided under Section 12.2 of this
Agreement.
9. Buyer’s Warranties. For the purposes of inducing Seller to consummate the
transactions contemplated hereby Buyer represents and warrants to Seller, as of the date
hereof and as of the Closing Date, as follows:
9.1 Authority. Buyer is a first class city in the State of Washington and has the
power to execute this Agreement, and all requisite action has been taken by Buyer
in connection with entering into this Agreement, the instruments referenced herein,
and the consummation of the transaction(s) contemplated hereby.
9.2 Execution of Agreement. Buyer has duly authorized the execution and
delivery of this Agreement by the person signing below.
9.3 Survival of Warranties. The warranties in Section 9 shall survive the
Closing and shall be fully effective thereafter. If Buyer breaches any warranty,
Seller shall have the rights and may exercise, at its option, any of the remedies,
provided under Section 13 of this Agreement.
10. Closing.
10.1 Closing Date. The closing of the Water Right purchase and sale (“Closing”)
shall be held and delivery of all items to be made at the Closing under the terms of
this Agreement shall be made at the offices of the Escrow Company identified in
Paragraph 3.1.1. Each Party shall execute and deliver to the Escrow Company such
escrow instructions as may be necessary to implement and coordinate the Closing
as set forth in this Agreement. Closing will occur after issuance of all necessary
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final approval(s) by Ecology, which approval(s) are beyond the time for filing of
any appeal, at a mutually agreeable time but in no event later than 100 days after
such final decision (“Closing Date”). All documents shall be deemed delivered on
the date that the Deed conveying the Water Right is recorded.
10.2 Closing Conditions. The following are “Closing Conditions” for the benefit
of Buyer:
10.2.1 The Bargain and Sale Deed is in acceptable form to Buyer and
Seller.
10.2.2 All representations and warranties of the Seller shall be true and
correct in all material respects at the time of Closing.
10.2.3 Seller shall have performed all of its covenants and obligations
hereunder in all material respects, and title shall conform to the
requirements of Section 4 of the Agreement.
10.2.4 Ecology shall have issued a final decision as to change and transfer
of the Water Right, which final decision is beyond the time for filing of any
appeal and is satisfactory in form and substance to Buyer in its sole
discretion.
Buyer may at any time or times on or before the Closing, in its sole and absolute
discretion, waive any of the conditions precedent to Buyer’s obligations under this
Section 10 or otherwise and consummate the sale, but any such waiver shall be
effective only if contained in a writing signed by Buyer and delivered to Seller. In
the event any of the conditions precedent for the benefit of Buyer that are contained
in this Agreement are not completely fulfilled and satisfied and not otherwise
waived by Buyer pursuant to the terms of the preceding sentence, then in addition
to any other rights or remedies Buyer may have, Buyer may terminate its obligation
to purchase the Water Right, and (a) the Earnest Money and all accrued interest
thereon shall immediately be returned to Buyer by Escrow Company without the
necessity of any further instructions from the Parties, (b) Buyer’s obligation to
purchase, and Seller’s obligation to sell, the Water Right shall terminate, and (c)
neither Party shall have any further obligation to the other except as otherwise
provided in this Agreement.
10.3 Seller’s Closing Obligations. At the Closing, Seller will:
10.3.1 Execute, acknowledge and deliver a statutory warranty deed to the
Water Right in form and substance acceptable to Buyer;
10.3.2 Deliver to Buyer, pursuant to Section 1445 of the Internal Revenue
Code of 1986, as amended, an affidavit stating that Seller is not a foreign
person and providing Seller’s United States taxpayer identification number;
10.3.3 A duly executed and acknowledged real estate excise tax affidavit
for the Purchase Price. Seller will pay all real estate excise tax; and
10.3.4 Deliver to Buyer such other instruments or documents as may be
required pursuant to the provisions hereof or as mutually agreed by counsel
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for Seller and Buyer to be necessary to consummate fully the transaction
contemplated hereby.
10.4 Buyer’s Closing Obligations. At the Closing, Buyer will:
10.4.1 Deliver to Seller cash or funds readily available in the amount of the
Purchase Price, less any Earnest Money and other amounts deposited or
paid by Buyer to be credited towards the Purchase Price; and
10.4.2 Deliver to Seller such other instruments or documents as may be
required pursuant to the terms hereof or mutually agreed by counsel for
Seller and Buyer to be necessary to fully consummate the transaction
contemplated hereby.
10.5 Allocation of Closing Expenses. The costs of Closing the transaction shall
be allocated between Seller and Buyer as follows:
10.5.1. Seller’s Costs. Seller will pay:
(a) One-half of the escrow fees of the Escrow Company;
(b) The costs of clearing title and obtaining any other item to be
delivered to Buyer at Closing;
(c) Any and all property taxes and assessments against
Certificate existing as of Closing, whether due and payable before
or after such date;
(d) The real estate excise tax; and
(e) All loans or other sums secured by mortgages, deeds of trust,
or otherwise constituting a lien or other encumbrance on the
Property at Closing.
10.5.2. Buyer will pay:
(a) One-half of the escrow fees of the Escrow Company; and
(b) The cost of recording the special warranty deed and any
other documents that Buyer may choose to record.
10.5.3. All other expenses incurred by Seller or Buyer with respect to
Closing, including but not limited to attorneys’ fees, shall be borne and paid
exclusively by the Party incurring the same unless the Parties expressly
agree in writing to the allocation of part or all of such expenses to one of
the Parties.
11. Termination Rights.
11.1 Following the final decision of Ecology to approve the change and transfer
of the Water Right, the Buyer may terminate this Agreement in the event that Buyer
finds, its sole and discretion, that said final decision contains adverse terms and
conditions as provided in and subject to the terms in Section 6.4. Adverse terms
may include the quantity of the Water Right and the intended purpose of use for the
Buyer. In the event that Buyer exercises its right to terminate this Agreement under
this Section 11.1, then Buyer will provide Notice to Seller and Escrow Company,
whereupon Escrow Company will disburse the Earnest Money to Seller, which will
be the sole and exclusive remedy available to Seller.
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11.2 The Buyer or Seller may terminate this Agreement in the event that Ecology
issues a final decision denying the change and transfer application.
11.3 Following Ecology’s final decision regarding the change and transfer of the
Water Right, the Buyer or Seller may terminate this Agreement in the event that
any appeals are filed or litigation is commenced regarding such final decision.
11.4 The Buyer or Seller may terminate this Agreement in the event that the
Transfer Application Period has expired and Ecology has not issued a final
decision.
11.5 If Buyer is not satisfied after the Due Diligence Period and declines to issue
a Notice to Proceed, then Buyer or Seller may terminate this Agreement.
11.6 If Buyer elects to terminate this Agreement under Sections 11.2, 11.3, or
11.4, then Buyer shall send Notice of the same to Seller and Escrow Company, and
the Earnest Money shall be promptly returned to Buyer by the Escrow Company
and this Agreement will terminate and be of no further force and effect.
12. Seller’s Defaults.
12.1 Seller’s Defaults. Seller shall be deemed to be in default hereunder in the
event Seller fails, for a reason other than Buyer’s default hereunder, to complete
the sale of the Property or to meet, comply with, or perform any covenant,
agreement or obligation on its part required within the time limits and in the manner
required in this Agreement, or there shall have occurred a breach of any
representation or warranty made by Seller.
12.2 Buyer’s Remedies. In the event of default by Seller, Buyer may pursue any
remedy available at law or equity, including:
12.2.1 Enforcing specific performance of this Agreement; or
12.2.2 Bringing suit for damages.
In addition, and without prejudice to the foregoing remedies, Buyer may, if default
occurs prior to Closing, terminate this Agreement. In such event, the Earnest
Money shall be promptly returned to Buyer by the Escrow Company and this
Agreement will terminate and be of no further force and effect.
13. Buyer’s Defaults.
13.1 Buyer’s Defaults. Buyer shall be in default hereunder in the event Buyer
fails, for a reason other than Seller’s default hereunder, without legal excuse to
complete the purchase of the Property or to meet, comply with, or perform any
covenant, agreement or obligation on its part required within the time limits and in
the manner required in this Agreement, or there shall have occurred a breach of any
representation or warranty made by Buyer; provided that, Seller shall not declare a
default or pursue any rights or remedies for breach and default under this
Agreement until it delivers written notice of the alleged breach to Buyer and Buyer
fails to cure such breach within fifteen (15) days after receiving such notice,
provided that if the breach is the failure to close, Buyer shall only have three (3)
business days after receiving notice to cure such breach.
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13.2 Seller’s Remedies. In the event of default by Buyer, Seller’s sole and
exclusive remedy shall be to retain the Earnest Money, to the extent made pursuant
to the terms of this Agreement. Receipt of the Earnest Money shall constitute a
waiver of any other remedies Seller may have under this Agreement, or at law or
equity.
14. Attorneys’ Fees. Should either Party bring an action to enforce or interpret any of
the provisions of this Agreement, or to recover damages for the breach hereof, the
substantially prevailing Party will be entitled to receive, in addition to any other relief
granted, all reasonable attorney’s fees and costs expended in connection therewith.
15. Governing Law and Venue. This Agreement shall be governed and construed in
accordance with the laws of the State of Washington. The venue of any legal action shall
be in Franklin County, Washington.
16. Notices. All notices provided for or permitted to be given under this Agreement
must be in writing (“Notice”). A Notice will be deemed to have been received: (a) if it is
delivered in person or sent by registered or certified mail or by nationally recognized
overnight courier, upon receipt as indicated by the date on the signed receipt; (b) if the
receiving party rejects or otherwise refuses to accept it, or if it cannot be delivered because
of a change in address for which no notice was given, then upon that rejection, refusal, or
inability to deliver; or (c) for notice provided via e-mail, upon receipt by the party providing
Notice of a response from the other party. A Notice is effective when received, unless the
Notice or other communication is received after 5:00 p.m., in which case the Notice will
be deemed received at 9:00 a.m. on the next business day. For purposes of Notice, the
addresses of the Parties shall be as follows, which may be changed with Notice to the other
party:
If to Buyer:
City of Pasco
Richa Sigdel
Deputy City Manager
City Hall
525 N. 3rd Avenue
Pasco, WA 99301
Email: sigdelr@pasco-wa.gov
If to Seller:
Wilson Sisters, LLC
Elinor Magnuson
C/O Robbi Magnuson
1316 E Rockwood Blvd
Spokane, WA 99203
Email: magnusonlaw1960@gmail.com
17. Parties Bound. This Agreement is binding upon, shall inure to the benefit of, and
shall be enforceable by, the Parties and their respective successors and assigns.
18. Full Understanding, Independent Legal Counsel. The Parties each
acknowledge, represent, and agree that they have read this Agreement; that they fully
understand the terms thereof; and that it is executed by them after having had an adequate
opportunity to consult independent legal counsel. This Agreement was the subject of
negotiation between the Parties and therefore any rule of construction requiring that
agreements be construed against the drafter shall not apply to the interpretation of this
Agreement.
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19. Confidentiality. Seller shall hold the existence and terms of this Agreement in
strict confidence and shall not disclose the existence or terms of this Agreement, or the fact
that Buyer is considering the purchase of the Water Right, to any persons other than those
consultants who are assisting the Seller in regard to the purchase and sale, except as
required by law. Seller shall inform its employees, representatives, and consultants of the
requirements of this confidentiality clause and shall require that they comply with it. This
Section shall survive the termination of this Agreement.
20. Time of Essence. Time is of the essence of this Agreement.
21. Headings. The headings in this Agreement are for convenience only and shall not
be deemed to construe or to limit the meaning of the language of this Agreement.
22. Calculation of Time Periods. Unless otherwise specified, in computing any
period of time described in this Agreement, “days” means calendar days, and the day of
the act or event after which the designated period of time begins to run is not to be included
and the last day of the period so computed is to be included, unless such last day is a
Saturday, Sunday, or legal holiday. The final day of any such period shall be deemed to
end at 5 p.m., Pacific Standard or Daylight time, as applicable.
23. Commissions.
23.1 Seller Authorized Commission. Tippett Company is acting as broker for
Seller. Tippett Company does not practice limited dual agency, and in regard to the water
right purchase and sale that is the subject of this Agreement, Tippett Company represents
only Sellers. Seller agrees to indemnify, defend, and hold Buyer harmless from and against
the claims the foregoing broker and any other brokers, finders or agents claiming that Seller
agreed to, entered into, or authorized any finder’s fee or commission in connection with
this Agreement or the sale of the Water Right.
23.2 Buyer Authorized Commission. Buyer warrants to Seller that it has not
engaged any broker, finder or agent on its behalf in connection with the transactions
contemplated in this Agreement. Buyer agrees to indemnify, defend, and hold Seller
harmless from and against the claims of any and all brokers, finders or agents claiming that
Buyer agreed to, entered into, or authorized any finder’s fee or commission in connection
with this Agreement or the sale of the Water Right.
24. Risk of Loss. All risk of loss shall remain with Seller until Closing, including
diminution in the quantity of the Water Right through any cause whatsoever, including
amendment to laws or regulations.
25. Costs and Expenses. Each Party hereto will bear its own costs and expenses in
connection with the negotiation, preparation, and execution of this Agreement, the
application contemplated by this Agreement, and in the performance of its duties
hereunder.
26. Further Documentation. Each of the Parties agrees to execute, acknowledge, and
deliver upon request by the other party any document which the requesting party
reasonably deems necessary or desirable to evidence or effectuate the rights herein
conferred or to implement or consummate the purposes and intents hereof, so long as such
imposes no different or greater burden upon such party than is otherwise imposed
hereunder.
Wilson Sisters, LLC / City of Pasco Purchase and Sale Agreement Page 12 of 17
27. Waiver. A Party may, at any time or times, at its election, waive any of the
conditions to its obligations hereunder, but any such waiver shall be effective only if
contained in a writing signed by such Party. No waiver shall reduce the rights and remedies
of such party by reason of any breach of any other party. No waiver by any party of any
breach hereunder shall be deemed a waiver of any other or subsequent breach.
28. Entire Agreement. This Agreement constitutes the entire agreement between
Seller and Buyer concerning the purchase and sale of the Water Right and supersedes all
prior term sheets, letters of intent, agreements or understandings, written or oral, signed or
unsigned concerning sale of the Water Right.
29. No Merger. The obligations contained in this Agreement, except for those
specifically discharged in escrow (such as conveyance of title to the Water Right and
delivery of money and documents in the escrow), shall not merge with transfer of title but
shall remain in effect until fulfilled.
30. Survival of Terms. The terms and provisions of this Agreement shall survive the
Closing and shall remain in full force and effect thereafter unless otherwise expressly
provided in this Agreement.
31. Severability. If one or more of the provisions of this Agreement or any application
thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions or any other application thereof shall in no way
be affected or impaired.
32. Modification. No waiver, amendment, extension or variation in the terms of this
Agreement shall be valid against a party unless in writing and signed by such party and
then only to the extent specifically set forth in the writing. No failure or delay on the part
of a party in exercising any right, power or privilege under this Agreement, nor any course
of dealing between the Parties, will waive, amend or vary the terms of this Agreement.
33. Force Majeure. In addition to specific provisions of this Agreement, performance
by Buyer hereunder shall not be deemed to be in default, and all performance and other
dates specified in this Agreement shall be extended, where delays or defaults are due to:
war; insurrection; strikes; lockouts; riots; civil disturbances; floods; earthquakes; fires;
casualties; acts of God; acts of the public enemy; epidemics; pandemic; quarantine;
declarations of emergency; restrictions; freight embargoes; lack of transportation;
governmental restrictions or priority; litigation; unusually severe weather; acts or
omissions of the other Party; or any other inability or cause beyond the control or without
the fault of the Buyer. Notwithstanding anything to the contrary in this Agreement, an
extension of time for any such cause shall be for the period of the force majeure delay and
shall commence to run from the time of the commencement of the cause, if Notice by Buyer
is sent to Seller within thirty (30) days of the commencement of the cause. If such Notice
is delivered after such thirty (30) day period, the extension period shall commence to run
from the date of such notice. Times of performance under this Agreement may also be
extended in writing by the mutual agreement of Buyer and Seller.
34. Counterparts. This Agreement may be executed in multiple counterparts, all of
which together shall constitute one agreement.
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35. Effective Date. “Effective Date” means the last date that this Agreement was
signed by the Seller and Buyer.
36. Exhibits. The following exhibits attached hereto are incorporated into and made a
part of this Agreement as if set forth fully herein:
Exhibit A Seller’s Certificate
Exhibit B Legal Description of Seller’s Former Land
SELLER:
_________________________________
Wilson Sisters, LLC
By:
Name:
Title:
STATE OF )
) ss.
COUNTY OF )
I certify that I know or have satisfactory evidence that ______________________
is the person who appeared before me, and that said person acknowledged that he/she
signed this instrument, on oath stated that he/she was authorized to execute the instrument,
to be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
Dated: ______________________, 2024.
Notary Public in and for the State of
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, residing at
My appointment expires:
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BUYER:
_________________________________
City of Pasco, Washington
By:______________________________
Name:____________________________
Title:______________________________
STATE OF )
) ss.
COUNTY OF )
I certify that I know or have satisfactory evidence that ______________________
is the person who appeared before me, and that said person acknowledged that he/she
signed this instrument, on oath stated that he/she was authorized to execute the instrument,
to be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
Dated: ______________________, 2024.
Notary Public in and for the State of
, residing at
My appointment expires:
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EXHIBIT A
SELLER’S CERTIFICATE
Summary of Water Right CG3-01349(F)
Name on Water Right Wilson Sisters, LLC
Priority Date July 11, 1970
Instantaneous Quantity 32.58 gallons per minute
Annual Quantity 13 acre-feet/year
Source 2 Wells
Source Location Well 1: SE¼NE¼ Section 33, Township 9 North,
Range 30 East Willamette Meridian.
Well 2: SW¼NE¼ Section 34, Township 9 North,
Range 30 East Willamette Meridian.
Purpose of Use Irrigation of 3.6 acres
Period of Use March 1 – November 1
Place of Use The place of use includes the Franklin County parcels:
112-520-230. Franklin County parcel No. 112-520-230
replaced parcel Nos. 112-520-264, 112-520-246, 112-
550-282. This consolidation of parcels is described
under AFN #1978474, recorded on September 14,
2023. The three consolidated parcels are referred to as
“Parcel E” in the survey above.
Wilson Sisters, LLC / City of Pasco Purchase and Sale Agreement Page 17 of 17
EXHIBIT B
LEGAL DESCRIPTION OF SELLER’S FORMER LAND
Tract A:
The south 493.89 feet of that portion of the NE¼ of Section 34, T. 9 N., R. 30 E.W.M.,
Franklin County, Washington, more particularly described as follows:
Beginning at the North Quarter Corner of said Section 34; thence S 00°30’15” W along the
North-South center line, a distance of 660.00 feet to the True Point of Beginning; thence S
89°40’35” E a distance of 1,503.01 feet; thence S 19°25’40” E a distance of 1,049.51 feet;
thence N 89°40’35” W a distance of 1,860.79 feet; thence N 00°30’15” E along said center
Section line a distance of 987.77 feet to the True Point of Beginning.
EXCEPTING the following described tract:
Beginning at the North Quarter-Corner of said Section 34, thence S 00°30’15” W along
the center line a distance of 1,647.77 feet to the True Point of Beginning; thence N
68°36’44” E to the North line of former Franklin County Tax Parcel 112- 520-282; thence
N 89°40’35” W a distance of 1,254 feet, more or less, to the centerline of Section 34; thence
S 00°30’15” W 493.89 feet to the True Point of Beginning. Containing 7.5 acres, more or
less.”