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Home My WebLink AboutD Kittitas Treat lease Page 1 of 6 Agreement to Lease Water Between Kittitas County and Treat Agreement to Lease Water for Irrigation This Agreement to Lease Water for Irrigation (“Lease Agreement”) is made and entered into this __ of September, 2018 (“Lease Effective Date”) by and between Kittitas County, a political subdivision of the State of Washington, (“the County”) and Jim and Hazel Treat, a married couple (“Treat”). The County and Treat are collectively referred to herein as the “Parties.” Factual Background A. WHEREAS, Treat owned all of the water under Water Right Certificate No. S4- 84509-J in Co oke Creek, with a priority date of June 30, 1872 (“the Water Rights”), which are more fully described in Exhibit A, attached hereto and incorporated herein; B. WHEREAS, a portion of the Water Rights were sold by Treat to the County (the “County’s Water Rights”) pursuant to a water rights purchase and sale agreement dated June 26, 2017 and modified on June 28, 2018, which close d on August 1, 2018 (the “Treat PSA”). A copy of the Purchase and Sale Agreement and the Statutory Warranty Deed conveying the County’s Water Rights are attached to this Agreement as Exhibit B and incorporated herein; C. WHEREAS, place of use and purpose of use of the Water Rights were changed from irrigation to instream flow and mitigation in the Report of Examination issued by Ecology on June 14, 2018 (“ROE”), which is attached to this Agreement as Exhibit C and incorporated herein; F. WHEREAS , the Parties agreed, in Paragraph 10 of the Treat PSA as amended, that the County will lease to Treat and Treat will lease from the County the County’s Water Rights for t wenty (20) years from August 1, 2018 (“Leaseback Provision”), except in those years in which there is a drought in the Yakima Basin; and H. WHEREAS, the Parties wish to lay out more the process for implementing the Leaseback Provision. Agreement NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth, the Parties agree as follows: 1. Factual Background. The foregoing statements of factual background are true, correct and incorporated into this Lease Agreement by this reference. 2. Term of Agreement. The term of this Lease Agreement shall commence on the Effective Date and continue through August 15, 2038 (“Agreement Term”), unless extended by modification or amendment hereto, as provided in paragraphs 8 and 13. Page 2 of 6 Agreement to Lease Water Between Kittitas County and Treat 3. Annual Lease of Water. The County shall lease to Treat and Treat shall lease from the County the County’s Water Rights each year, except as provided in paragraph 5. 4. Annual Lease Payment Amount. The County and Treat will meet in February of each year during the Agreement Term (“Annual Lease Meeting”) to determine the total annual lease price to be paid by Treat to the County (“Total Annual Lease Payment”) in accordance with the following: 4.1 Treat will pay the County an annual lease price equal to 44.9 acres multiplied by per acre price established by the Kittitas Reclamation District for water for each specific year of the Lease Agreement. 4.2 Treat shall pay the County the Total Annual Lease Payment within thirty (30) days of receipt of an invoice from the County, which shall be issued by the County no earlier than March 15th of each year and no later than May 1st of each year. 5. Drought Year Limitation on Leaseback Water. In accordance with Paragraph 10 of the Treat PSA the County is not obligated to lease to Treat any of the County’s Water Rights in those years during the Lease Term when there is a drought in the Yakima Basin. 5.1 Paragraph 10 of the Treat PSA defines a “drought” for the purposes of the PSA and this Lease Agreement to mean (a) a year, or a portion thereof, when the water supply for the Yakima River Basin is below seventy-five percent of normal, as confirmed by the Bureau of Reclamation, and “junior” (post-1905 priority) water rights are pro- rationed or curtailed, or (b) a year in which the State of Washington declares a drought in all or part of the Yakima River Basin pursuant to WAC 173-166-060. 5.2 In any year in which Sellers have leased the County’s Water Rights before a “drought” has been confirmed or declared under either of the herein definitions, the County shall so notify Sellers of a “drought” and refund Seller’s Total Lease Payment for that year. Immediately upon receipt of the lease payment refund, Sellers shall curtail all additional use of Leaseback Water for the remainder of that year. 6. Notice. Any notice or communication required by this Agreement between the County and Treat shall be given to the addresses set forth below: The County: Kittitas County Board of Commissioners 205 W 5th Avenue, Suite 108 Ellensburg WA 98926-2887 Treat : Page 3 of 6 Agreement to Lease Water Between Kittitas County and Treat Jim Treat 10891 Brick Mill Road Ellensburg WA 98926 7. Advice of Counsel. The parties acknowledge they have had the opportunity to consult with their own legal counsel regarding this Agreement. 8. Entire Agreement; Modifications. This Lease Agreement constitutes the entire agreement of the County and Treat with respect to the Lease of the County’s Water Rights. Any prior correspondence, letters of intent, memoranda, understandings, offers, negotiations and agreements, oral or written, other that the Treat PSA, are replaced in total by this Lease Agreement. This Lease Agreement may not be modified or amended except by a written instrument signed by both parties. 9. Counterparts/Facsimile Execution. This Lease Agreement may be executed in any number of counterparts, each of which will be an original, but all of which will constitute one contract, binding on the County and Treat, even though the signatures of all parties may not appear on any one counterpart. For purposes of this Agreement, original instruments or telephonic or electronic mail facsimiles in any number of counterparts, all of which together shall constitute one and the same of a signed counterpart of this Lease Agreement. 10. Construction. This Lease Agreement will be governed by and construed under the laws of the State of Washington. The captions and paragraph titles used in this Agreement are for reference only and will not be used in the interpretation of this Agreement or any related document. If any provision of this Agreement is determined to be illegal, void or unenforceable, such determination will not affect any other provision of this Agreement and all such other provisions will remain in full force and effect. 11. Governing Law; Venue. This Lease Agreement shall be interpreted, construed and enforced according to the laws of the State of Washington and venue for any disputes arising under this Agreement shall be in Kittitas County, Washington. 12. Assignment; Successors. Neither the County nor Treat may sell, transfer, assign, pledge or encumber its interest in this Lease Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. A purported sale, transfer, assignment, pledge or encumbrance without prior written consent of the other party shall be null and void and of no force or effect. Subject to the restrictions contained herein, the rights and obligations of the County and Treat shall inure to the benefit of and be binding upon their respective estates, heirs, executors, administrators, successors, successors-in-trust and assigns. 13. Amendment. This Agreement may not be modified or amended except by the written agreement of the Parties. Signature page to follow. Page 4 of 6 Agreement to Lease Water Between Kittitas County and Treat This Lease Agreement has been signed by the County and Treat as of the Effective Date. KITTITAS COUNTY: ______________________________ By: Its: TREAT: ______________________________ By: Jim Treat ______________________________ By: Hazel Treat ACKNOWLEDGEMENTS State of Washington County of ______________ I certify that I know or have satisfactory evidence that _____ is the person who appeared before me, and said person acknowledged that she signed this instrument, on oath stated her authority to execute the instrument as the authorized agent for KITTITAS COUNTY, to be the free and voluntary act of such entity for the uses and purposes mentioned in the instrument. Dated: ________________________ Name: NOTARY PUBLIC for the State of , residing at My appointment expires: State of Washington County of ______________ I certify that I know or have satisfactory evidence that Jim Treat is the person who appeared before me, and said person acknowledged that he signed this instrument and acknowledged it to be his free and voluntary act, for the uses and purposes mentioned in the instrument. Dated: __________________________ Name: ________________________________ NOTARY PUBLIC for the State of , residing at___________________ Page 5 of 6 Agreement to Lease Water Between Kittitas County and Treat My appointment expires: __________________ State of Washington County of ______________ I certify that I know or have satisfactory evidence that Hazel Treat is the person who appeared before me, and said person acknowledged that she signed this instrument and acknowledged it to be her free and voluntary act, for the uses and purposes mentioned in the instrument. Dated: __________________________ Name: ________________________________ NOTARY PUBLIC for the State of , residing at___________________ My appointment expires: __________________ Page 6 of 6 Agreement to Lease Water Between Kittitas County and Treat EXHIBITS Exhibit A: Water Rights Certificate Nos. S4-84509-J Exhibit B: Purchase and Sale Agreement and Statutory Warranty Deed Exhibit C: June 14, 2018 Report of Examination