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HomeMy WebLinkAboutRes-2021-077 Mitigation CertBOARD OF COLINTY COMMISSIONERS COTJNTY OF KITTITAS STATE OF WASHINGTON RESOLUTION NO. ZON - 'Q}V Resolution to Authorize Execution of a Contract for Services between Kittitas County and Nelson Gelbvieh Ranch, LLC for the Sale of Mitigation Certificates WHEREAS: Kittitas County operates a water banking program that provides for the sale of mitigation certificates in the form of a package "A" and a package "B" (o'County water mitigation certifi cate"); and WHEREAS: Kittitas County requires a water mitigation certificate as one of the means to show adequate provision of potable water for the issuance of a building permit; and WHEREAS: As required by Kittitas County Code 13.40.030 Kittitas County operates a metering program to monitor water consumption as a condition of purchasing a County water mitigation certificate from Kittitas County; and WHEREAS: Kittitas County owns its own water rights and Trust Water Right Agreements and has contracted with other non-County water banking entities to sell their water mitigation certificates as part of Kittitas County's water banking program; and WHEREAS: Mitigation certificates offered through the Kittitas County Bank are backed by water rights Kittitas County has purchased that are held in the trust water program administered by the Department of Ecolog and subject to a Trust Water Rights Agreement; and WHEREAS: Kittitas County wishes to offer through the Kittitas County water banking program mitigation certificates backed by water rights from other private water banks that are held in the trust water program administered by the Department of Ecology ("Ecology") and subject to a Trust Water Rights Agreement; and WHEREAS: Nelson Gelbvieh Ranch, LLC ("NGR") owns water rights held by Ecology in the State Trust Water Right Program and is authorized to provide offsetting mitigation for third parties seeking 1) to mitigate for existing groundwater withdrawals, 2) water budget neutral determinations, or 3) permits for new County service areas and sell up to 25 aqe-feet of consumptive use water which is subject to NGR's Trust Agreement; and WHEREAS: Kittitas County desires to contract with NGR and NGR desires to contract with Kittitas County for Kittitas County to sell water mitigation certificates associated with the NGR Water Right under the terms of the attached contract; NOW' THEREFORE BE IT RESOLVED that the Board of County Commissioners authorizes execution ofthe contract attached hereto and incorporated herein. DATED this 18th day of May 202I, at Ellensburg, Washington. n Deputy Clerk of the Board- Mandy Buchholz BOARD OF COUNTY COMMISSIONERS KITTITAS COUNTY,SHINGTON Brett th, Chairman Vice-Chairman Cory Wright, Commissioner -".."":i.):l |i I iii;;:, ---- $i.9').. 'h"= =ii \s-d> :F:ZAI .-e-d :orr: 7 c\". *'alrtrist: S''r,:ii-." "...."' . i |'S'trrr,, Vr,A._, ^\\{-r\' .,\ /ii: eriir tn. Board- Julie Kj orsvik Contract for Services Sale of Water Mitigation Certificates This Contract for Services for the Sale of Water Mitigation Certificates (this "Agreement") is entered into and between KITTITAS COUNTY ("the County"), a political subdivision of the State of Washington, and NELSON GELBVIEH RANCH, LLC ("NGR") (hereinafter collectively referred to as the "Parties"), as of this 5 il8 ,202L (the "Effective Date"). WHEREAS, the County operates a water banking program that provides for the sale of mitigation certificates in the form of a package "A" and a package "8" ("County water mitigation certificate"); and WHEREAS, the County requires a water mitigation certificate as one of the means to show adequate provision of potable water for the issuance of a building permit; and WHEREAS, as required by Kittitas County Code L3.40.030 the County operates a metering program to monitor water consumption as a condition of purchasing a County water mitigation certificate from the County; and WHEREAS, the County owns its own water rights and Trust Water Right Agreements and has contracted with other non-County water banking entities to sell their water mitigation certificates as part of the County's water banking program; and WHEREAS, mitigation certificates offered through the County Bank are backed by water rights the County has purchased that are held in the trust water program administered by the Department of Ecology and subject to a Trust Water Rights Agreement; WHEREAS, the County wishes to offer through the County water banking program mitigation certificates backed by water rights from other private water banks that are held in the trust water program administered by the Department of Ecology and subject to a Trust Water Rights Agreement; WHEREAS, NGR owns water rights held by the Washington State Department of Ecology ("Ecology") in the State Trust Water Right Program and is authorized to provide offsetting mitigation for third parties seeking 1) to mitigate for existing groundwater withdrawals, 2) water budget neutral determinations, or 3) permits for new surface and groundwater uses, as authorized in the Trust Water Right Agreement, attached hereto as Exhibit A and incorporated by reference ("NGR's Trust Agreement"); and WHEREAS, NGR desires that the County market and sell up to 25 acre-feet of consumptive use water associated the water right identified in Exhibit B attached hereto and incorporated by reference ("NGR Water Right"), which is subject to NGR's Trust Agreemen! and WHEREAS, the County desires to contract with NGR and NGR desires to contract with the County for the County to sell water mitigation certificates associated with the NGR Water Right under the terms of this Agreement. NOW THEREFORE, the Parties agree as follows: 1. Scope of services to be performed by the County. a. The County will sell water mitigation certificates associated with the NGR Water Right in the form of a County water mitigation certificate, at the same prices and under the same terms as those offered by the County's water banking program. b. The County will require purchasers buying water mitigation certificates associated with the NGR Water Right to pay the necessary fees and agree to the terms for being a part of the County's water banking and metering program, as referenced in Exhibit C and subject to change by approval of the Kittitas County Board of County Commissioners. c. The County shall be responsible for all processing and servicing of the sales of County water mitigation certificates associated with the NGR Water Right sold pursuant to this Agreement, as provided herein. d. For sales of water mitigation certificates associated with the NGR Water Right in the areas depicted as the so called "green zones" in NGR's Trust Water Right Agreement, and except as provided in paragraphs (e), (f) and (g), the County shall sell the water mitigation certificates associated with the NGR Water Right in proportionate share with County or other non-County water banks with similar agreements with the County that have similar mitigation suitability before selling water mitigation certificates associated with a County-owned Trust Water Right Agreement. The County shall determine, in its sole discretion, which water banks to sell water mitigation certificates from to purchasers in the areas depicted as the so called "yellow zones" in NGR's Trust Water Right Agreement. e. The Parties acknowledge that the County has entered into a similar agreement with the Reecer Creek Water Bank in which the County agreed to sell at least 25 water mitigation certificates associated with the Reecer Creek Water Bank before the County sells water mitigation certificates from the County water bank or other non-County water banks. The County agrees that it shall not enter into any further agreements that would include a preference to sell a certain number of water mitigation certificates from one non-County water bank before any other non- County water bank. f. Until the County's agreement with the Reecer Creek Water Bank expires on May 7,2023, the County shall first sell at least 25 water mitigation certificates associated with the Reecer Creek Water Bank. Thereafter, the County will sell water mitigation certificates from the non-County water banks with which the County has agreements on a rotational basis with each individualwater mitigation certificate alternatively coming from water associated with a non-County water bank. The rotational order among non-County entities will be determined by the order in which each non-County water bank first entered into a Contract with the County for Services for the Sale of Water Mitigation Certificates. g. After May 7 , 2023, the County shall sell mitigation certificates from the County water bank and each non-County water bank on a rotational basis with each individual water mitigation certificate alternatively coming from water associated with the different County and non-County water banks. The rotational order will first be the County water bank and then the order in which each non-County water bank first entered into a Contract with the County for Services for the Sale of Water Mitigation Certificates. For example, if there were two-non County water banks, then the rotation would be as follows: (L) County, (2) Non-County Bank that was first to contract with the County, (3) Non-County Bank that was second to contract with the County, then repeat. The County may elect, at its own discretion, to forego certificate sales out of the County water bank. h. ln areas for which the NGR Water Right has a "green zone" suitability and the other non-County water banks do not have the same "green zone" suitability, the County shall sell the NGR Water Right prior to selling any water from the County water bank. 2. Obligations of NGR a. NGR agrees to reserve 25 acre-feet of consumptive use water associated with the NGR Water Right for the County's use under this Agreement for the Term, defined below in paragraph 3. b. NGR shall not sell the NGR Water Right or other water associated with the NGR Trust Agreement for water mitigation certificates that could be obtained through the County's water banking program during the Term. However, NGR retains the remainder of the NGR Water Right and all other water associated with the NGR Trust Water Rights for its own use, and can sell or lease that water to other parties for any purposes other than water mitigation certificates that could be obtained through the County's water banking program. 3. Time of Performance. The term of this contract shall be for five (5) years beginning the Effective Date (the 'Term"), with possibility of extending the length of the term on the mutual written agreement of the Parties. 4. Compensation. The County shall pay NGR the amount received for each water mitigation certificate associated with the NGR Water Right sold, less the same administrative fee the County charges for sales of County water mitigation certificates, and less Five Hundred Dollars (SSOO.OO; per water mitigation certificate for the County's in-lieu fee (lLF) program which contributes funding from each certificate sold by the County to accounts dedicated to water supply and instream improvements, as described in the Settlement Agreement between the Department of Ecology, Futurewise, and Kittitas County, dated May L5, 2014. 5. Quarterly Accounting and Payment. The County shall remit to NGR the total balance due to NGR, on a quarterly basis (to the extent there is any balance due in the particular quarter) with a full accounting of sales and fees withheld. The County shall also be responsible for reporting all sales and metering data to Ecology as required by the County's Trust Water Right Agreements and the County's Over-the Counter mitigation certificate processing proposal as approved by Ecology. 5. Hold Harmless and lndemnification. NGR agrees to protect, save harmless, indemnify and defend, at its own expense, the County, its elected and appointed officials, employees and agents, from any loss or claim for damages of any nature whatsoever arising out of the performance of this Agreement, including claims by NGR's employees, volunteers or third parties, except for those damages solely caused by the negligence of willful misconduct of the County, its elected and appointed officials, employees or agents. 7. Termination. a. Either the County or NGR may terminate this Agreement upon ninety (90) days written notice for any reason other than otherwise provided herein in which case the County shall pay NGR for all amounts due in performing the contract to the date of termination. b. The invalidity or unenforceability of any particular provision of this Agreement shall not affect other provision hereof and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted. 8. Exercise of rights or remedies. Failure of either party to exercise any rights or remedies under this Agreement shall not be a waiver of any obligation by either party and shall not prevent either party from pursuing that right at any future time. 9. Governing Law and Venue. This shall be governed by and interpreted under the law of the State of Washington. Any action, suit, or judicial proceedings for the enforcement of this Agreement shall be brought in the Superior Court of the State of Washington in Kittitas County, Washington. 10. Documents lncluded in Agreement. This Agreement constitutes the entire agreement between the parties and includes the following documents: a. This Agreement. b. Exhibit A: NGR Trust Water Right Agreement c. Exhibit B: NGR Water Right d. Exhibit C: Fee Schedule 11. Condition Precedent. This Agreement and its terms must be approved by Ecology and the Water Transfer Working Group ("WTWG"), including but not limited to Ecology and WTWG approval of the issuance of water mitigation certificates from the NGR Water Right through the County's "Over-the-Counter" Program, and without such approval this Agreement is null and void. The County agrees to prepare the necessary documentation for Ecology and WTWG review and approval, and NGR agrees to cooperate with the County in seeking and obtaining Ecology and WTWG review and approval. 12. Assignment. NGR may assign its interest in this Agreement to another person or entity by providing written notice to the County. NGR shall not assign its interest in this Agreement to another entity without assigning the NGR Water Right to the same person or entity. 13. Notices. Notices and payments under the terms of this Agreement shall be sent to: a. Nelson Gelbvieh Ranch, LLC: Jim Nelson Nelson Gelbvieh Ranch, LLC L6234 6th Ave NW Shoreline, WA 98177 (206) 3ee-4ees With Copy To: Jessica Kuchan Confluence Law, PLLC 110 Prefontaine Pl. S., Ste 304 Seattle, WA 98104 (206) 5O2-44O1. b. Kittitas County Kittitas County 205 W. 5th Ave., Suite 108 Ellensburg, WA 98926 lN WITNESS WHEREOF, the Parties have executed this Agreement thislffiaV d@,202t. By:Afu^4 A'f,+'* l{^*rNel$on, Member ^[/*l=( #^^^ ilj,kt"* Nolson Gelbvleh Rnnch, LLC BOARD OF COUNTY COMMI$$IONER,$ KITTITAS COUNTY, UI'A$HINGTOI{ By: Name: Commissioner Brett Wachsmith Ey: Name: Commissioner Cory Wright Name er Laura Osiadacz Clerk of the Board Approved as to Form: Deputy Frosecuting Attomey Name: E. Date: By: Name Date: : Lynn;[.r*r, ;;;;-Y l tlln{*t By: Exhibit A (Trust Water Right Agreement) Trust Water Right Agreement ThisTrustWaterRightAgreementismadeandentered intothis{dayof ,ja,weul,K#,'rrandbetween the Washington State Department of Ecology ("Ecology") and Nelson Gelbvieh Ranch LLC, a Washington limited liability corporation ("NGR") (collectively referred to as the "Parties"). l. Recitals A, WHEREAS, Ecology is the trustee of the Yakima River Basin Trust Water Right Program, as authorized under Chapters 90.38 and 90.42 RCW ("Trust"); B, WHEREAS, Ecology has entered into a Water Storage and Delivery Contract with the U.S. Bureau of Reclamation to assist in managing water resources in the Yakima River Basin ("Reclamation- Ecology Contract"); C. WHEREAS, NGR is the owner of certain water rights from Reecer Creek, a tributary of the Yakima River as more particularly described and confirmed under Claim07447 in the Final Decree, dated May 9, 2019, in Ecology v. Acquavella, Yakima County Superior Court Cause Na.77-2-O1,484-5, more particularly described in Exhibit A (hereinafter described as the "Mitigating Water Rights"); D. WHEREAS, NGR has temporarily donated the Mitigating Water Rights to the Trust, the Parties now intend to terminate the temporary donation and convey the Mitigating Water Rights permanently to the Trust, as provided herein; E. WHEREAS, NGR has requested that Ecology hold the Mitigating Water Rights for instream flow and mitigation purposes to be used to offset or mitigate future water uses; F. WHEREAS, NGR intends to enter into a Contract for Services regarding the Sale of Water Mitigation Certificates with Kittitas County ("County") forthe Countyto market and sell water underthis Agreement to its citizens consistent with the County's water banking G. WHEREAS, subject to the terms of this Agreement, E authorized to hold the Mitigating Water Rights in Trust as provided I ll. Agreement NOW, THEREFORE, in consideration of the foregoing recitals, incorporated by reference, the mutual covenants and undertakings as hereinafter set forth, and other good and valuable consideration, the receipt of which is hereby acknowledged, Ecology and NGR hereby agree as follows: 1". Purpose. The purpose of this Agreement is to allow NGR to use the Mitigating Water Rights to offset or mitigate for its own mitigated permits or for third parties as provided herein. 2. Closing. NGR agrees to convey, through a Quit Claim Deed, the Mitigating Water Rights to Ecologyto be placed in Trust, in a form substantially in the form provided in Exhibit B. 3. Authorizing the Use of the Mitigoting Wdter Rights. Following recording of the Quit Claim Deed, NGR may allocate the Mitigating Water Rights to provide an offset or mitigation for existing groundwater withdrawals, water budget neutral determinations or permits for surface and groundwater uses as provided herein. These uses will be mitigated or offset, in whole or in part, by way of a permanent assignment of a portion of the Mitigating Water Rights as is reasonably required to ensure no impairment to totalwater supply available in the Yakima River Basin ("TWSA") or other water rights. NGR and Ecology agree the Mitigating Water Rights can provide a senior water right as off-setting mitigation, in whole or in part for the following' t'- -1' --,, .^- .L_ *.,__, _ 1 : 't"' t'.,.,)iii :,: i.: r.tl:., .,.: C*iltr";:i :.: .',*,..-,,oi t 1i.1,.,. program; and :ology confirms it is willing, able and rerein. 3.1. To mitigate for NGR's own water use, including on formerly appurtenant property after following the process specified in Section 4 of this Agreement. 3.2. To mitigate for third party water uses in Reecer Creek in accordance with the suitability depicted on Exhibit C, up to 5.65 acre-feet of annual new water uses. 3.3. To mitigate for third party water uses within the Yakima River basin in accordance with the suitability depicted in Exhibit D, attached hereto and incorporated herein and according to the process specified in Section 4 of this Agreement, 4. Process for Allocations of the Mitigating Woter Rights. 4.L. NGR may enter into a contract with the County to market and sell the Mitigating Water Rights to mitigate for existing groundwater withdrawals water budget neutral determinations, permits or leases as provided herein. NGR and the County will report the use of the mitigating water rights in accordance with the agreements between the County and Ecology. 4.2. NGR may propose or enter into contracts with other third parties to provide a portion of the Mitigating Water Rights as mitigation for water budget neutral determinations, permits or leases on such terms consistent with this Agreement as NGR may elect. The Parties will continue to work in good faith to refine the suitability in accordance with Chapters 90.03, 90.38, 90.42 and 90.44 RCW. Ecology will process each new application or modification to an existing mitigation program administered by a local government, utilizing such portion of the Mitigating Water Rights, as reasonably needed, together with any other proposed mitigation measures, to address the impacts of the proposed use. 4.2.L lf necessary or appropriate, Ecology will present the proposed use of the Mitigating Water Rights to the Water Transfer Working Group ("WTWG"). Ecology, in consultation with the U.S. Bureau of Reclamation, will determine if some or all of the Mitigating Water Rights will be assigned to the Reclamation-Ecology Contract. NGR will ensure that any fees associated with the Reclamation-Ecology Contract for the Mitigating Water Rights are paid to Ecology. 4.2.2. Ecology will investigate the proposed use of the Mitigating Water Rights and recommend issuance ordenial of the use based on applicable policy, rules, and law. 4.2.3. lf Ecology approves the proposed use of the Mitigating Water Rights for a local government, Ecology, NGR and the local government will work in good faith to complete the process necessary for the new use. 4.2.4. lf Ecology approves the proposed use of the Mitigating Water Rights for a non-local government third party, NGR shall cause an escrow account to be opened upon the execution of an agreement between NGR and the third-party. Closing of the escrow shall not occur until the following events have been completed: (1) mutual execution of all agreements and documents contemplated by or collateral to this Agreement; (2) NGR's deposit of an executed document in a form acceptable to Ecology permanently allocating a portion of the then available Mitigating Water Rights to the proposed use; (3) completion of all required public notices; {4) expiration of all notice, comment and appeal periods related to Ecology's authorizations; (5) deposit of all funds, documents and things relevant to close; and (6) participation in Kittitas County's metering program, if the new use is in Kittitas County. 2 L"Iq d.1 : . 1.,1 I I : J.,;lij 0::.;i;,.,i,":;:a:::i;1;y S*i$tridi r,ir::1;*i:i Uifi{:$ 5. Management of Trust Water Rights. Ecology shall hold and manage the Mitigating Water Rights pursuant to Chapters 90.38 and 90.42 RCW and this Agreement as part of TWSA. Ecology: 5.L, Shall take no position and make no assertions that the quantities and beneficial use of the Mitigating Water Rights is other than as provided in Exhibit A; 5.2. Shall, in addition to the protections against relinquishment afforded through the Trust Water Rights Program, at alltimes during the Term manage, maintain, preserve and protect for the benefit of NGR and its successors, designees and assigns all aspects and attributes of the Mitigating Water Rights, including, but not limited to, the priority date, total diversionary right, instantaneous quantity and annual consumptive quantity from impairment, challenges and claims; 5.3. Shall process all new applications and requests to use the Mitigating Water Rights consistent with other agreements to which Ecology may be subject, including, but not limited to memorandums of agreements and rules; and 5.4, Shall not assess or charge NGR any costs of fees for maintaining the Mitigating Water Rights, provided that Ecology may charge third parties its regular costs and fees for water right applications, transfers and investigations or costs attributable to assignment of a portion of the Mitigating Water Rights to the Reclamation-Ecology Contract. 6. Term. The term of this Agreement shall be for as long as any portion of the Mitigating Water Rights is available to be assigned to new and/or existing uses ("Term"). 7. Representations and Warronties. ln keeping with the purpose of this Agreement and as a material part of the consideration of this Agreement upon which its execution is dependent: 7.1. NGR makes the following undertakings, representation and warranties to Ecology; 7.1.L. NGR is a Washington limited liability company duly formed and authorized and fully able to enter into and perform all its obligations in this Agreement according to its terms; 7.L.2. Each individual executing this Agreement on behalf of NGR is duly authorized to execute and deliver this Agreement; 7.L.3. Upon its full execution, this Agreement is binding upon NGR in accordance with its terms; and 7.t.4. NGR shall use its best efforts to fully and timely perform its obligations and actions contemplated by this Agreement. 7.2. Ecology makes the following undertakings, representations and warranties to NGR: 7.2.1. Ecology is a division of the State of Washington duly formed and authorized and fully able to enter into and perform all its obligations in this Agreement according to its terms; 7.2.2. The individual executing this Agreement on behalf of Ecology ls duly authorized to execute and deliver this Agreement; 7.2.3. Upon its full execution, this Agreement is binding upon Ecology in accordance with its terms; and i.,, 3 ti {t a t d._. 1.lrir'j { i 1_rr=;J ,.. ii;i:;:li: u' '.,,-:rilr -..., {.;:;r:irirl djicgi';: t",:r d:;'ii i:: 7.2.4. Ecology shall use its best efforts to fully and timely perform its obligations and actions contemplated by this Agreement. 8. Termination and Default. NGR shall have the right at any time to withdraw a pending new application, terminate this Agreement and remove from the Trust any portion of the Mitigating Water Rights that has been permanently assigned as mitigation for other water uses as set forth in this Agreement. ln the event NGR terminates this Agreement, then Ecology shall, without delay, re-convey the unallocated portion of the Mitigated Water Rights back to NGR using a quit claim deed. Ecology shall also have the right at any time to terminate this Agreement and remove from the Trust any portion of the Mitigating Water Rights that have not been permanently assigned as mitigation for otherwater uses as set forth in this Agreement. ln the event Ecology terminates this Agreement, then Ecology shall, without delay, re-convey the unallocated portion of the Mitigating Water Rights to NGR using a quit claim deed. lf either party defaults in its obligations under this Agreement; or if this Agreement, or a material portion thereol be declared illegal or unenforceable; or, if either party, through no fault or action by such party, should be incapable or prevented from performing any material obligations or actions, the non-defaulting party in the event of a default or either party in any other event shall have the right to the following: 8.1. As the computation of damages may be difficult, continue this Agreement and bring an action to specifically perform this Agreement, 8.2. Declare the Agreement null and void, whereupon the Parties shall cooperate to end the trust water right relationship in an orderly manner as follows: 8.2.1,. NGR shall identify all in-process designation agreements and inform Ecology of the status of pending agreements. NGR shall not make representations regarding in-process designations and shall in each instance work with Ecology to determine whether an assignment should be completed. lf Ecology agrees, the permit process will be completed promptly in accordance with applicable policies, rules and law. 8.2.2. Ecology shall promptly convey to NGR or its designee the portion of the trust water right not yet designated and assigned as mitigation for water uses. Ecology may use its unassigned portion of the Mitigating Water Rights set aside to address uncertainty associated with the then existing mitigation water uses. 8.2.3. Each party shall be responsible for its own costs associated with termination of this Agreement. 8.3, Pursue any other remedy now or hereafter available. 8.4. ln no event shall the termination of this Agreement alter or affect any portion of the Mitigating Water Rights allocated for mitigation for new water uses. 9. This Agreement may be assigned by NGR upon the giving of written notice to Ecology and Ecology's written concurrence of the assignee's suitability, which shall not be unreasonably withheld. This Agreement is binding upon and inures to the benefit of the Parties to the ,Agreement as well as upon and to the benefit of their respective heirs, personal representatives, assignees and other successors-in- interest. 10. Any notice or communication required by this Agreement between NGR and Ecology shall be given to the addresses set forth below: To Ecology: Water Resources Section Manager Washington Department of Ecology 4 il.,, a rr ar.-,.-l, .-. )': : ;..:.1.,r_, l-:r '- -- ' '.-.,'.r.""-,-. ,1., _-rt! ri. 'l3\..-i-.1 1 r' ,x-si rlij-dt $.i+{-;;{:! }1, ;:.;iiji)t: Central Regional Office 1250 West Alder Street Union Gap, WA 98903 To NGR:Jim Nelson Nelson Gelbvieh Ranch LLC L6234 6th Ave NW Shoreline, WA 98177-3735 With Copy to Jessica Kuchan Confluence Law, PLLC 110 Prefontaine Pl. S., Ste 304 Seattle, WA 98104 tt. No provision of this Agreement is severable from any and all other provisions of the Agreement. Should any provision of this Agreement be unenforceable for any reason outside the control of the Parties and subject to the provisions of this Agreement, the party finding itself unable to enforce the provision may, at its sole discretion, declare this entire Agreement to be null and void. 72. lf either party fails to exercise its rights under this Agreement, it will not be precluded from subsequent exercise of its rights under this Agreement. A failure to exercise rights will not constitute a waiver of any other rights under this Agreement, unless stated in a letter signed by an authorized representative of the party and attached to the original Agreement. 13. Amendments to this Agreement must be in writing and signed by an authorized representative of each of the Parties. 14. This Agreement will be governed and enforced under the State of Washington. Venue for any action arising under or related to this Agreement shall be in Kittitas County, Washington. 15. This Agreement may be executed in counterparts, each of which shall be deemed to be an original instrument. All such counterparts together shall constitute a fully executed Agreement. This Agreement is executed os of the dote first written above Signatures on the following page l--l-',:-t **-- --- i4f" i: ,."-..\.',:t; li j,"i.,-li t-;l:. , - l-.vr!*,...-" Sc;illri;l ;,,.. r "]",''l',1' . 5 STATE OF WASHINGTON DEPARTMENT OF ECOLOGY NELSON GELBVIEH RANCH, LLC Wfu-,"4 l"de**-By: Trevor Hutton, Its: Central Region Water Resources Director By: E. James ,#,ron Its: Member By: U Lynn Whimpey Its: Member \t F"r r*r -;:*,ia Fr: $ Ee:r} 'aI JAfrj f ? :i.l:ij *-kiH:u*11?1.*u#,* 5 i Name: Wann RlcHr DEscRtploN Water Right Number: Source: Current Use: Period of Use: Place of Use: Polnt of Diversionl Priority Date: I nstantaneous Qsantity Annual quantity Exhibit A Mitigating Water Rights Nelson Gelbvieh Ranch, LLC s4-83627-J Reecer Creek lnstream Flow March 25 to October 15 Primary Reach: lnstream flows in Reecer Creek from the historic point of diversion downstream to the confluence with Currier Creek. Secondary Reach: lnstream flows in Reecer Creek commencing from the confluence with Currier Creek downstream to the confluence of Reecer Creek with the Yakima River, within the Yakima River downstream to the confluence with the Columbia River. L5 feet south and 75 feet east of the north quarter corner of Section 28; being within the NW1/4NW1/4NE1/4 of Section 28,r, t9 N., R, 18 E.W,M. June 30, 1873 0.097 cfs 18.88 (11.33 consumptive) acre feet per year i . -: "J I -r a]J 4,y tj,.' 7 "r.j;l,j i 1 Z*l{} * hi',ii *r ll*lo:i*eiu ucr ; :r;.i Siugicna; diliee Name: WATER RIGHT DESCRIPTIoN Water Rlght Number: Source: Current Use: Period of Use: Place of Use: Point of Diversion Prlority Date: lnstantaneous Quantity AnnualQuantity Nelson 6elbvieh Ranch, LLC s4-83639-J Reecer Creek lnstream Flow March 25 to October 15 Primary Reach: lnstream flows in Reecer Creek from the historic point of diversion downstream to the confluence with Currier Creek. Secondary Reach: lnstream flows in Reecer Creek commencing from the confluence with Currier Creek downstream to the confluence of Reecer Creek with the Yakima River, within the Yakima River downstream to the confluence with the Columbia River. 540 feet south and 650 feet west of the center of Section 21, being within the NE1/4SWV4 of Section2t,T.19 N., R. 18 E.W.M. June 30, 1881 0.L77 cfs 16.09 (9.552 consumptive) acre feet per year 8 F-I PJ ry z:,., E lr- iJ .i,ff'd f t ;$2$ ^ ill:.;_'t sf Er:i}l<l51ruori ii.i?t Ftcgior ral i.liiico Name: WATER RrGHT DEscRtpnoN Water Right Number: Source: Current Use: Period of Use: Place of Use: Point of Diversion: Prlority Date: lnstantaneous Quantity AnnualQuantity Nelson Gelbvieh Ranch, LLC s4-85160-J Reecer Creek lnstream Flow March 25 to October 15 Primary Reach: lnstream flows in Reecer Creek from the historic point of diversion downstream to the confluence with Currier Creek. Secondary Reach: lnstream flows in Reecer Creek commencing from the confluence with Currier Creek downstream to the confluence of Reecer Creek with the Yakima River, within the Yakima River downstream to the confluence with the Columbia River. 540 feet south and 650 feet west of the center of Section 2L, being within the NEL/4SW1/4 of Section2L,T.19 N., R. L8 E.W,M. June 30,1881 0.5715 cfs L27.35 (76.41. consumptive) acre feet per year F?l{l Its 1"_ th ,:.: =*:t\,r: 9 -Nii"i 3: $A$ *', :-,: l.:' lJ.^r.1,- *"-f\.c, ,-'r ".;" :-" *":1ri;,{w,.r,"" *. ;_{L;i*x.ii {)ffi#s Exhibit B (Quit Claim Deed) Upon Recording Return to Confluence Law, PLLC 110 Prefontaine Pl. 5., Suite 304 Seattle, Washington 98104 DOCUMENT TITLE: GRANTOR: GRANTEE: PARTIAT tEGAt DESCRIPTION; ASSESSOR'S TAX PARCEL NOS.: QU|T CrArM DEED (AS TO WATER RTGHTS) NELSON GELBVIEH RANCH LtC WASH]NGTON DEPARTMENT OF ECOLOGY PTNS OF SECTIONS 27 AND 28,T.!9 N., R, 18 E.W.M. 954949,603337 & 028234 QUIT CLAIM DEED (as to Water Rights) THE GRANTOR, NELSON GELBVIEH RANCH LLC, a Washington Limited Liability Company, for and in consideration of mutual promises in hand paid, conveys and quit claims to the WASHINGTON STATE DEPARTMENT OF ECOLOGY, Grantee, as a trust water right in the State Trust Water Right Program, established under chapter 90.42 Rcw, all rights, title and interest the Grantors may have in a portion of the water rights arising under or related to Claim No.01447 as confirmed in the Conditional Final Order Subbasin No. 7 (Reecer) in State of Washinston v. Acquavella. et al, Yakima County Superior Court Cause No,77-2-01484-5, more fully described in Exhibit A, attached hereto and incorporated by reference, which l! .:ii a d s1,-.\ "i,''i.; $ I r,_i"t,:*j ,ia ., .. ..-.j "-, .:;-ri. iJ. -.1;.:. _.1; {_n""4,.j.r :. -' ,i'"# \,. ra! Li i: ' :rttr, r I I J !r t;^. , 10 water rights formerly were appurtenant to the real property situated in the County of Kittitas, State of Washington, legally described in Exhibit B, attached hereto and incorporated by reference. The water right shall be used and made available for use in accordance with the Trust Water Right Agreement between NELSON GELBVIEH RANCH LLC and the WASHINGTON STATE DEPARTMENT OF ECOLOGY, attached hereto as Exhibit C and incorporated by reference. Dated this _ day of _,2020, Signotures on the following two pages f+,9 fs+ E"'::' '8B f,Fqt !f :I+'Ri,Jtt Nelson Gelbvieh Ranch LLC a Washington limited liability company By: Name: Lynn Whimpey Its: Member Date:fe STATE OF WASHINGTON COUNW OF KING t.+' On this )i'' day of tXrp"',1.CJ020, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared LYNN WHIMPEY, to me known to be a Member of NELSON GELBVIEH RANCH LLC, a Washington limited liability company that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act of said company, for the uses and purposes therein mentioned, and on oath stated that they are aqthorized to execute the said instrument, Dated :,(Name NOTARY PUBLIC for the State of WFshinstory residing at lttA-l,a'\v^,*JA My appointment expires:o: /rQ i"o*-* iss. ) 5UE JIN LEE Notary Pubtic Stete of warhlngton Commlcsion # .l58364 My Comm, ExPires lAar 19,20?4 Nelson Gelbvieh Ranch LLC a Washington limited liability company E: d-" By: Name: E. James Nelson Its: Member /)" , .r d. fildDate STATE OF WASHINGTON iss, COUNTY OF KING ) ,l On this X,/ho' a^v of i3*, ,2ozo,before me, the undersigned, a Notary public in andfortheStateof Washington, dulycommissioned and sworn, personallyappeared E.iAMES NELSON, to me known to be a Member of NELSON GELBVIEH RANCH LLC, a Washington limited liability company that executed the foregoing instrument, and acknowledged the said instrument to be the free a nd voluntary act of said company, for the uses and purposes therein mentioned, and on oath stated that they are authorized to execute the said instrument. Dated 4 Name: NOTARY PU the of residing at My appointment expires: r-'-. r 1-,i i' ' ..1 .' ..' I .r : { {.1.,_..' t*..-,. ;rl-'-1:r;lt ,...-t _.," - .--*.-.b"-,. {J,..,# $TANLNY OTA $TA R"gr\/ HI RN ht [)I PU m L}* SFtu wASi{lN0tCIN C OMM r$$toN trk XPIRHS MA R cFt 1 ?0r Name: WATER Rl6HT DESCRIPTIoN Water Right Number: Source: Current Use: Period of Use: Place of Use: Point of Diversion: Priority Date: Instantaneous Quantity Annual Quantity EXHIBIT A to the Quit Claim Deed (Water nights) Nelson Gelbvieh Ranch, LLC s4-83627-J Reecer Creek lnstream Flow March 25 to October 15 Primary Reach: lnstream flows in Reecer Creek from the historic point of diversion downstream to the confluence with Currier Creek. Secondary Reach: lnstream flows in Reecer Creek commencing from the confluence with Currier Creek downstream to the confluence of Reecer Creek with the Yakima River, within the Yakima River downstream to the confluence with the Columbia River, L5 feet south and 75 feet east ofthe north quarter corner of Section 28; being within the NWil4NW1/4NE1/4 of section 28, T, 19 N., R. 18 E.W.M. June 30, 1873 0.097 cfs 18.88 (11.33 consumptive) acre feet per year ffiag#:i33 8/,f 1 { d ts!4frr "iii.i I ! *i.ilU -, D-rii-ii ieerlogy u#ft{firi l,i;;.:;n;l frffice 14 Name: Waren RIGHT DESCRIPTIoN Water Rlght Number: Source: Current Use: Period of Use: Place of Use; Point of Diversion: Priority Date: I nstantaneous Quantity Annual Quantity Nelson Gelbvieh Ranch, LLC s4-83639-J Reecer Creek lnstream Flow March 25 to October 15 Primary Reach: lnstream flows in Reecer Creek from the historic point of diversion downstream to the confluence with Currier Creek. Secondary Reach: lnstream flows in Reecer Creek commencing from the confluence with Currier Creek downstream to the confluence of Reecer Creek with the Yakima River, within the Yakima River downstream to the confluence with the Columbia River. 540 feet south and 650 feet west ofthe center of Section 21, being within the NE1/4SW1/4 of Sectio n 2L,T.19 N., R. 18 E.W.M. June 30, 1881 O.t77 cfs 16.09 (9.652 consumptive) acre feet per year Filnrll:EaI :: .'-1_.1-*--:j-,-:_- -:J1 l,':n1 4 d .n,1.Jn.': ; i dtJdLf - f,;;t..i Ecolai:,y usft tral l,tcglonal Sfii**r 15 Name: WATER Rrern DEscRtpnoN Water Right Number: Source: Current Use: Period of Use: Place of Use: Point of Diversion: Priority Date: lnstantaneous Quantity Annual Quantity Nelson Gelbvieh Ranch, LLC s4-85L60-J Reecer Creek lnstream Flow March 25 to October 15 Primary Reach: lnstream flows in Reecer Creek from the historic point of diversion downstream to the confluence with Currier Creek. Secondary Reach: lnstream flows in Reecer Creek commencing from the confluence with Currier Creek downstream to the confluence of Reecer Creek with the Yakima River, within the Yakima River downstream to the confluence with the Columbia River, 540 feet south and 650 feet west of the center of Section 21, being within the NE1/4SW1/4 of Section 2!,T.19 N., R. 18 E.W.M. June 30, 1881 0.5715 cfs L27.35 (76.41 consumptive) acre feet per year lt;i4i! 1'l ,i"t 4 q ^^.1qrr*iv I ! ltijij ilr;ri r$ Fr. ..'*,..," s;enrr*j n*si*ii'Ciil*,, 16 Exhibit B to the Quit Claim Deed (Formerly Appurtenant Lands for the Water Rights in Exhibit A) That portion of Parcel E3 of that certain survey in Book 34 of Surveys, pages 2L2 and 213, records of Kittitas County, Washington lying within the N1/2NE1/4 of Section 28, T. 19 N., R. 1"8 E.W.M. That portion of the N1/2Nt/zNW7/4, ParcelA of Survey No. 574136, Book 20, Page 97 lying within the WL/INWL/A of Section 27,T.!9 N., R.18 E.W.M. That portion of the NWl/4 lying within the WL/2NW1/4 of Section 27,'1. 19 N., R, L8 E.W.M. All within Kittitas County, State of Washington. t*.-,': ';;1:*-\ t; . j ._" ! . '. ,4,i-------:--_-..^--- :' - . - :J l4'1t d I .\r,^.r"i,!iiii iiol,u;lj n,.-' - .. -Virr-.. r I r.3n:n*?' sentrii li u; ;,iil:.;'.-., l; :,'- 77 Exhibit C to the Quit Claim Deed (Trust Water Right Agreement) ,;'; ; r.-...,1 18 EXHIBIT C Suitability within Reecer Creek Subbasin (not to exceed 5,65 acre-feet annually) .f,'..; 3 'r ;ii;fi ; ...._"1r-,...-... e;r. -;*l ll,a:i*r;' +r;*ie** it Diversion Point f]] Parcet1e126 - l ParcelslnwatorArea - KRD Canals ffi5 sritaoitityArea 19 0 5 10 20 Mil.tI',rL'!l N**' s -E v,*it, """tn Suitablllty for watar from bank ffi8 ut"tysrtt"uu Need AddiUonal lntormalion f unsuitabtc =-1:,:l: No Mltigation ncsiUte_ : Yskamd Resoruallon f urbanAroas f srn"uuu EXHIBIT D Suitability within Yakima River Watershed 1, 'a F,'i1 ",a F- "': .'-.,'-'] . ..,.t 20 Exhibit B (Water Right) Up to 25 acre-feet of consumptively used water under the following described water right: Name: Nelson Gelbvieh Ranch, LLC WATER RIGHT DESCRIPTIoN Water Right Number: S4-85160-J Source: Reecer Creek Current Use: lnstream Flow Period of Use: March 25 to October 15 Place of Use: Primary Reach: lnstream flows in Reecer Creek from the historic point of diversion downstream to the confluence with Currier Creek. Secondary Reach: lnstream flows in Reecer Creek commencing from the confluence with Currier Creek downstream to the confluence of Reecer Creek with the Yakima River, within the Yakima River downstream to the confluence with the Columbia River. Point of Diversion:540 feet south and 650 feet west of the center of Section 21, being within the NE1/4SWL/4 of Section 21,f .19 N., R. 18 E.W.M. Priority Date: I nstantaneous quantity Annualquantity June 30, 1881. 0.5715 cfs 127.35 (76.4L consumptive) acre feet per year Exhibit € (County's Fee Schedule) Fee Breakout Cost Recovery $1,897 $z,Brz ln lieu $soo $soo Adrninistration $1,+95 St,+95 Auditor / finance (S3 I