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HomeMy WebLinkAboutForterra_Kittitas County MOA_CleanMEMORANDUM OF AGREEMENT FOR LAND ACQUISITION This Memorandum of Agreement ("Agreement") is entered into on this____ day of __________, 2018, by and between Kittitas County, a Washington County, (“County”) and Forterra, a Washington non-profit organization, (“Forterra”) (sometimes collectively referred to as the “parties” or individually as a “party”) to establish the principles under which the parties will endeavor to acquire a conservation easement on certain agricultural property, as desired by Kittitas County. WHEREAS, The County has adopted Comprehensive Plan GPO 2.1, with the goal to maintain and enhance Kittitas County's natural resource industry base, including but not limited to productive agriculture resources; and WHEREAS, The County has identified that the acquisition of conservation easements on working farms and ranches is one method to support its agriculture industry base and ensure that agricultural lands are not converted to incompatible uses; and WHEREAS, Forterra has as its mission the conservation of land with significant conservation value, including the preservation of working farms and forests; and WHEREAS, Forterra and the County have identified that property commonly known as Hairpin Ranch, legally described on Exhibit A hereto, as a valuable agricultural property; and WHEREAS, The County and Forterra agree that Hairpin Ranch would be a worthy candidate for acquisition of a conservation easement, in support of the County’s natural resource industry goals and other land use and economic interests of the County; and WHEREAS, Forterra has begun negotiations with the owners of Hairpin Ranch and the owners are willing sellers of a conservation easement provided the purchase price is acceptable to them; and WHEREAS, Forterra has pursued and secured a grant award under a state farmland preservation programs for funding to conserve the land, and Forterra and the County have a joint application pending for a matching grant award under a federal farmland preservation program; and WHEREAS, The parties desire to establish an agreed arrangement under which Forterra continues to serve as project and grant applicant lead and otherwise takes the project all the way through closing of the purchase and sale of a conservation easement on and over Hairpin Ranch. and the County signs on as a co-applicant with Forterra on the state grant and ultimately serves as co-holder of the conservation easement with primary easement monitoring responsibilities as further detailed in this Agreement. NOW, THEREFORE, The County and Forterra agree as follows: 1. Forterra shall continue to work with the owners of Hairpin Ranch and endeavor to negotiate a purchase and sale agreement and easement terms for a conservation easement on approximately 273acres of the 300-acre property (hereafter, the “Project”). The County shall have final approval of a) the Purchase and Sale Agreement before Forterra executes it; and b) the conservation easement terms before Forterra and the County both execute the easement. 2. Forterra shall continue to coordinate funding for the Project through the federal Natural Resources Conservation Service (NRCS) farmland protection program, the Washington State Recreation and Conservation Office (RCO) farmland protection program, and, if necessary, through such other grant and funding programs as Forterra in its discretion determines are reasonable avenues to obtain funding for the Project. 3. Pending the County signing the attached “Applicant Authorizing/Resolution” form, Forterra, the County and RCO will enter into a contract for funding to secure the State grant award for the Project. If Forterra’s application for federal grant funding is successful, Forterra agrees to enter into a contract with NRCS to secure the federal grant award for the Project. If monies bestowed from the State and Federal grants for this Project are not the original amount that was promised when the grant agreements were executed, the County reserves the right to terminate the Project, this Agreement, and any further negotiations with the property owner. 4. Forterra agrees to continue serving as the coordinating agent between itself, the landowner, the state and federal grant agencies, and the County, in pursuing the Project. Forterra agrees to undertake the negotiation and drafting of the purchase and sale agreement and conservation easement. Forterra agrees to provide staff support to guide the Project through acquisition, including title review and escrow coordination. 5. The County understands and agrees that Forterra will seek coverage from one or both of the grants to cover Forterra’s staff time and actual expenses to the extent possible. Forterra understands and agrees that the County is not responsible for any costs or expenses in pursuit of the Project. 6. In the event there is sufficient grant funding to complete the Project and the owners of Hairpin Ranch have accepted the appraised fair market value as the purchase price, the County shall review and, within the County’s discretion, approve (with such approval not unreasonably withheld) the terms and language of a conservation easement on Hairpin Ranch. Upon the County’s approval of the conservation easement, Forterra and the County agree to complete the acquisition and serve as co-holders of the conservation easement. 7. Forterra agrees that the County is not responsible any for expenses associated with the Project, and that Forterra is responsible for seeking coverage of any Project costs, including for environmental assessments, title commitments and policies, etc., that are reimbursable under the State grant. 8. The conservation easement terms shall provide, among other things, that the County and Forterra serve as co-holders of the easement; the County is the grantee primarily responsible for annual stewardship/monitoring of the easement, and Forterra, the County, RCO and NRCS shall each have the authority to enforce the terms of the easement. 9. If terms of the purchase and sale agreement and/or the conservation easement do not meet the County’s approval, Forterra will work with all parties to modify the agreement and/or easement. If the terms of the purchase and sale agreement and the conservation easement cannot be agreed upon by the parties, the County reserves the right to terminate this Agreement and its involvement with the Project as described below. 10. This Agreement shall expire when the Project closing occurs, or December 31, 2019, whichever occurs latest. The parties agree that the term of this Agreement may be extended in writing by mutual agreement. 11. Either Party may terminate this Agreement and its involvement with the Project upon fifteen (30) days written notice either personally delivered or mailed postage-prepaid by certified mail, return receipt requested, to the Party’s last known address for the purposes of giving notice under this paragraph; provided, however, that sections 5 and 7 shall survive termination of this Agreement for all costs incurred by Forterra through the date of termination. 11. Miscellaneous Provisions (a) AUTHORITY. Each party to this Agreement, and each individual signing on behalf of each party, hereby represents and warrants to the other that it has full power and authority to enter into this Agreement and that its execution, delivery, and performance of this Agreement has been fully authorized and approved, and that no further approvals or consents are required to bind such party. (b) AFFILIATES, SUCCESSORS, AND ASSIGNS. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. (c) INTEGRATED AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter and supersedes all prior negotiations and representations. This Agreement may not be modified except in writing signed by the parties. (d) INTERPRETATION. Each party acknowledges that it and its legal counsel have reviewed this Agreement. The parties agree that the terms and conditions of this Agreement shall not be construed against any party on the basis of such party’s drafting, in whole or in part, of such terms and conditions. (e) CHOICE OF LAW & VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington without regard to conflict of law provisions. In the event that any litigation should arise concerning the construction or interpretation of any of the terms of this Agreement, the venue of such action of litigation shall be in the Superior Court of the State of Washington in and for the County of Kittitas. (f) ATTORNEYS' FEES. Should any legal action or proceeding be commenced by either party in order to enforce this Agreement or any provision hereof, or in connection with any alleged dispute, breach, default, or misrepresentation in connection with any provision herein contained, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred in connection with such action or proceeding, including costs of pursuing or defending any legal action, including, without limitation, any on appeal, discovery or negotiation and preparation of settlement arrangements, in addition to such other relief as may be granted. (g) SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable, such provision will not affect or invalidate the remainder of this Agreement, and to this end the provisions of this Agreement are declared to be severable. If such invalidity becomes known or apparent to the parties, the parties agree to negotiate promptly in good faith in an attempt to amend such provision as nearly as possible to be consistent with the intent of this Agreement. (h) COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which counterparts together shall constitute the same instrument which may be sufficiently evidenced by one counterpart. Execution of this Agreement at different times and places by the parties shall not affect the validity thereof so long as all the parties hereto execute a counterpart of this Agreement. (i) ADMINISTRATION. The Director of Public Works shall administer this Agreement on behalf of the County. (j) TREATMENT OF ASSETS AND PROPERTY. No fixed assets or personal or real property will be jointly or cooperatively, acquired, held, used, or disposed of pursuant to this Agreement. (k) IMPROPER INFLUENCE. Each party agrees, warrants and represents that it did not and will not employ, retain or contract with any person or entity on a contingent compensation basis for the purpose of seeking, obtaining, maintaining or extending this Agreement. Each party agrees, warrants and represents that no gratuity whatsoever has been or will be offered or conferred with a view towards obtaining, maintaining or extending this Agreement. (l) MAINTENANCE AND AUDIT OF RECORDS. Each party shall maintain books, records, documents and other materials relevant to its performance under this Agreement. These records shall be subjected to inspection, review and audit by either party or its designee, and the Washington State Auditor’s Office. Each party shall retain all such books, records, documents and other materials for the applicable retention period under federal and Washington law. (m) CONFLICT OF INTEREST. The elected and appointed officials and employees of the parties shall not have any personal interest, direct or indirect, in this Agreement which gives rise to a conflict of interest. (n) INDEMNIFICATION. Each party agrees to be responsible and assume liability for its own wrongful and/or negligent acts or omissions or those of their officials, officers, agents, or employees to the fullest extent permitted by law, and further agrees to save, indemnify, defend, and hold the other party harmless from any such liability. It is further provided that no liability shall attach to the parties by reason of entering into this contract except as expressly provided herein. (o) HEADINGS. The headings of sections and paragraphs of this Agreement are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections or paragraphs. remainder of this page intentionally left blank IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated below. DATED: ___________________ DATED: ___________________ FORTERRA BOARD OF COUNTY COMMISSIONERS, KITTITAS COUNTY, WASHINGTON ___________________________ ____________________________ NAME: Laura Osiadacz, Chairman ________________________ TITLE ____________________________ Obie O’Brien, Vice Chair ADDRESS: 901 5th Avenue Suite 2200 Seattle, WA 98164 ___________________________ Cory Wright, Commissioner ATTEST: By: _________________________ Julie Kjorsvik, Clerk of the Board Date: ________________ APPROVED AS TO FORM: By:_________________________ Stephanie U. Happold Deputy Prosecuting Attorney Date: _______________