HomeMy WebLinkAboutCouncil Resolutions 1688 RESOLUTION N0.uD v
A RESOLUTION APPROVING AN ASSIGNMENT OF WATER RIGHTS
AGREEMENT BETWEEN CITY, WILD RIVER ORCHARDS, INC AND DEL RIO
VINEYARDS, LLC AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAME
RECITALS:
A. On April 7th, 2004, Wild River executed a "Water Right Sale Agreement" with the
City. Pursuant to the Water Right Sale Agreement,Wild River transferred its water
rights to the City, which thereafter converted them for municipal purposes. Wild
River at the same time secured irrigation water from the U.S. Bureau of
Reclamation from its Lost Creek Reservoir to enable continued irrigation of the
subject property. In exchange for the water rights, the City is obligated to pay to
Wild River and its successors and assigns the yearly charges resulting from the
Contract for Water Services for the initial term of the Contract for Water Services,
which is the period of 2005 through 2045. All of the obligations of the Parties
under the Water Right Sale Agreement have been fulfilled or satisfied, except for
the City's obligation to reimburse Wild River and its successors and assigns for the
yearly charges it pays associated with the initial term of the Contract for Water
Services and the associated Attorney Fee and Notice clauses.
B. Wild River has entered into a Real Estate Sales Agreement dated July 30th, 2021,
whereby Wild River has agreed to sell the subject property to Del Rio. As part of
that agreement, Wild River will assign its water rights to Del Rio Vineyards.
C. Under the terms of the Water Right Sale Agreement,the City remains obligated to
reimburse Wild River's successor, Del Rio, for the yearly charges associated with
the Replacement Contract for Water Services for years 2021 through 2045.
D. The parties have negotiated an Assignment Agreement in which the City consents
to consent to the assignment and acknowledges the City's obligation to continue
the annual payments through 2045.
The City of Central Point resolves:
Section 1.The attached Assignment Agreement—Water Right Sale Agreement (the
"Agreement"), in substantially the form attached hereto as Exhibit "A" is approved.
Section 2. The City Manager is hereby authorized, on behalf of the City and without
further action by the City Council, to execute the attached Agreement and to perform all
necessary acts, sign all necessary documents, and complete any other necessary matters
in order to effectuate this Resolution.
Passed by the Council and signed by me in authentication of its passage this iq
day of October, 2021.
Mayor Hank Williams
ATT
A i iii: .
City Recorder '
Exhibit A to Resolution
Assignment Agreement
Water Right Sale Agreement
THIS ASSIGNMENT AGREEMENT ("Agreement") is executed by Wild
River Orchards, Inc., an Oregon corporation (herein "Wild River"), and Del Rio
Vineyards, LLC, an Oregon limited liability company (herein "Del Rio"),
hereinafter collectively called the "Parties", for themselves, their successors,
grantees, and assigns.
Recitals
A. Wild River is the record owner of certain real property located in
Jackson County, Oregon, commonly known as Township 36 South, Range 2
West, Section 11, Tax Lots 401, 501, and 1801 (herein the "subject property").
B. On April 7th, 2004, Wild River executed a "Water Right Sale
Agreement"with the City of Central Point, Oregon(the "City"), a copy of which
is attached hereto as Exhibit "A". Pursuant to the Water Right Sale
Agreement, Wild River transferred its water rights to the City, which
thereafter converted them for municipal purposes. Wild River at the same time
secured irrigation water from the U.S. Bureau of Reclamation from its Lost
Creek Reservoir to enable continued irrigation of the subject property pursuant
to the Lost Creek Reservoir Contract for Water Services #059E101522
("Contract for Water Services"). In exchange for the water rights, the City is
obligated to pay to Wild River and its successors and assigns the yearly charges
resulting from the Contract for Water Services for the initial term of the
Contract for Water Services, which is the period of 2005 through 2045. All of
the obligations of the Parties under the Water Right Sale Agreement have been
fulfilled or satisfied, except for the City's obligation to reimburse Wild River
and its successors and assigns for the yearly charges it pays associated with
the initial term of the Contract for Water Services and the associated Attorney
Fee and Notice clauses.
C. The Parties have entered into a Real Estate Sales Agreement
dated July 30th, 2021, whereby Wild River has agreed to sell the subject
property to Del Rio. After closing, the Parties will cooperate with each other
such that a Water Services Contract in the name of Del Rio will be issued by
the Bureau of Reclamation to replace Contract No. 059E101522 (the
"Replacement Contract for Water Services"). The Parties hereto and the City
acknowledge and agree that the City will remain obligated under the terms of
the Water Right Sale Agreement to reimburse Del Rio for the yearly charges
Res. No. I(a H8 ; October 14, 2021 Page 3
associated with the Replacement Contract for Water Services for years 2021
through 2045.
D. The Parties desire to enter into this Agreement, and obtain the
City's agreement and consent to the form and terms of this Agreement to
ensure that the City's obligation under the terms of the Water Right Sale
Agreement to reimburse Del Rio the yearly charges associated with the
Contract for Water Services applies to the yearly charges associated with the
Replacement Contract for Water Services, and that after the transfer of the
subject property from Wild River to Del Rio, the City will be obligated to
reimburse Del Rio for all of the yearly charges associated with the Replacement
Water Services Contract for the years 2022 through 2045 ("City's
Reimbursement Obligation").
Agreement
NOW THEREFORE, for valuable consideration, the Parties agree as
follows:
1. Recitals. The above-stated Recitals are incorporated herein and
deemed a material part of this instrument.
2. Effective Date. This Agreement is made concurrently with and as
an incident to the conveyance by Wild River of the subject property to Del Rio.
This Agreement will become effective when Del Rio receives title to the subject
property.
3. Assignment. Wild River hereby sells and assigns to Del Rio,
without representation or warranty, all its rights to the City's Reimbursement
Obligation contained in the Water Right Sale Agreement. Wild River will
deliver to the City a copy of this Agreement so that future notices concerning
the Water Right Sale Agreement are directed to Del Rio at the following
address:
Del Rio Vineyards, Inc.
Attn: Robert Wallace
P.O. Box 906
Gold Hill, Oregon 97525
The Parties agree to execute other documents, including an amendment to
the Contract for Water Services, as reasonably necessary to conclude this
Agreement .
Res. No._IQ ; October 14, 2021 Page 4
4. Acceptance of Assignment of City's Reimbursement Obligation.
Del Rio hereby accepts the assignment of Wild River's rights to the City's
Reimbursement Obligation under the Water Right Sale Agreement.
5. Miscellaneous.
5.1 Attorney Fees. If any suit or action is filed by any party to enforce
this instrument or otherwise with respect to the subject matter of this
instrument, the prevailing party shall be entitled to recover reasonable
attorney fees incurred in preparation or in prosecution or defense of such suit
or action as fixed by the trial court or arbitrator, and if any appeal is taken
from the decision of the trial court or arbitrator, reasonable attorney fees as
fixed by the appellate court.
5.2 Applicable Law and Venue. This instrument has been entered
into in the State of Oregon and the subject property is located in the State of
Oregon. The laws of the State of Oregon will be used in construing this
instrument and enforcing the rights and remedies of the Owners. Venue will
be in Jackson County, Oregon.
5.3 Waiver. A provision of this instrument may be waived only by a
written instrument executed by the party waiving compliance. No waiver of
any provision of this instrument shall constitute a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver. Failure to enforce any provision of this instrument shall not operate as
a waiver of such provision or any other provision.
5.4. Time. Time is of the essence for the performance of all obligations
set forth in this instrument.
5.5. Construction. This instrument will not be construed more strictly
against one party than against the other merely because it may have been
prepared primarily by counsel for one of the Parties.
5.6. Counterparts. This instrument may be executed in any number
of counterparts, each of which will constitute an original, but all of which,
taken together, will constitute but one and the same instrument. For the
purposes of this Agreement, a facsimile or electronic copy of a signature shall
have the same force and effect as an original signature.
5.7. Amendment. This Agreement may be amended only by written
instrument executed by the Parties.
Res. No. ib$Q ; October 14, 2021. Page 5
IN WITNESS WHEREOF, the Parties have executed this instrument
on the dates set forth below:
WILD RIVER ORCHARDS, INC.
Dated:
By: Michael Naumes
Its: President
DEL RIO VINEYARDS, LLC
Dated:
By: Robert Wallace
Its: President
AGREEMENT AND CONSENT TO ASSIGNMENT: Effective as of the
Effective Date, City hereby (a) consents to the assignment effected hereby; (b)
acknowledges the accuracy of Section (b) of the Recitals set forth in the above
Agreement; (c) agrees to recognize Del Rio as the payee under the Water Right
Sale Agreement and thereby establish direct privity of contract with Del Rio;
and (d) acknowledges that the City is obligated to Del Rio under Section 6 of
the Water Right Sale Agreement to reimburse Del Rio for the yearly payments
due under the Replacement Water Services Contract for years 2021 through
2045. In addition, the City acknowledges that upon the transfer of the subject
property to Del Rio, Sections 6, 10 and 11 of the Water Right Sale Agreement
remain in effect with Del Rio Vineyards, LLC substituted for Wild River
Orchards, Inc., and any notice sent to Del Rio Vineyards, LLC pursuant to
Section 10 shall be sent to the following address:
Del Rio Vineyards, LLC
P.O. Box 906
Gold Hill, OR 97525
CITY OF CENTRAL POINT
Dated:
By:
Its:
Res. No.)/028 ; October 14, 2021 Page 6
I fA .40
- i✓)C�°l t�� 1
Water Right Sale Agreement
14-This agreement, made this 1 day of Nr:I , 2004, by and between the City of
Central Point, Oregon(City)and Wild River Orchards, Inc. (Wild River).
,�,�} RECITALS
The contract dated�,
�'b'etween City and Medford Water Commission requires
—
City to obtain water rights independent of Medford Water Commission water right for
City supply;
The water right subject to this agreement will be processed by Medford Water
Commission and delivered to City;
There will be a separate agreement bet City
and agreement;rommission governing
treatment and transport of the watersubject to this
Wild River owns land to which water right certificates 32728, 32734, 32742, 32746 and
32748, or a portion thereof are attached;
Wild River has full right and authority to make application to change the place of use and
the type of use to the Oregon Water Resources Department, and;
It is the desire of City to acquire water right for the municipal water supply for City.
Now,therefore, it is agreed by and among the parties listed herein as follows: ..
1) Wild River shall cause to be transferred e° Citthe
(fi e) yearate
rs pursuat ty to ORS
RWild
River can prove has been used with past 5
540.610, to City for municipal use.
2) City shall pay Wild River$3,SOO:OOf solori acre he total accumwater tulatedsamuoly
unt of
transferred to City as municipal right, g
water transferred to City, in acre feet, throughout
othe calcul tion will begation season lmade by
l to
or greater than 450 acre feet. The acre foot of water
multiplying the number of acres of irrigation right transferred and o ed nvertfod from
irrigation use to municipal
duty
DepartmentpPayment er acre) shall be made in pro
transfer by the Oregon at r Resources
the amount of$110,000 down at the T executhis agreement,ion
water right, tansferred
the
remainder, as calculated at the aboveper acre
owithin 30 day of the issuance of the order transfer of the iof transfer rrom the rigation gation Owateron righator
Resources Department approving the
municipal use by City.
3) It is agreed by all parties that the rate will bee/8atis furthe�agrpeed thaf the season
er second for each
acre of water right converted to municipal use.
of use shall be the same as the originalright,
sthat and its tributaries"eing as ias beingg]pararaph of 36
of the decree of the"waters of Rogue River
April of each year, and terminates before the l s` of November of each year".
4) Wild River will be entering into a contract with the United States Department of
Interior, Bureau of Reclamation for irrigation water from Lost Creek Reservoir
for water right to replace the water right being sold to City. Should acquiring
water right from Lost Creek Reservoir be impracticable, the agreement shall be
null and void.
5) It is anticipated that acquiring water right from Lost Creek Reservoir and the
transfer to City shall occur simultaneously. In the event the contract with the
Bureau of Reclamation is delayed, City agrees that Wild River shall have full use
of the water right for irrigation until the water from Lost Creek Reservoir is
available for use by Wild River.
6) City agrees to pay to Wild River each year the yearly charges from the Bureau of
Reclamation for the Lost Creek Reservoir water storage contract. Said payment
shall be made within 30 days of receipt of a copy of said bill from Wild River for
that year.
7) It is agreed that the costs related to securing the replacement water right from Lost
Creek Reservoir, and the transfer of the water rights listed on the aforementioned
water right certificates to municipal use shall be born 50 percent by Wild River
and 50 percent by City. Wild River shall initiate the application for water right
permit from Lost Creek Reservoir and the transfer of water right to City. City
shall pay the above percentage within 30 days of submission of a bill, properly
documenting the expenses incurred, by Wild River.
8) In the event the transfer of water right is not approved by the Oregon Water
Resources Department or Wild River cancels this agreement according to article
4, Wild River will refund in full the deposit herein paid within 30 days of date of
denial by the Oregon Water Resources Department or notice of cancellation by
Wild River. This agreement shall expire and become null and void two years
from the date listed hereon if the transfer of water right has not been completed,
unless it is mutually agreed to extend the expiration date.
9) Medford Water Commission's Duff water treatment plant intake will be the point
of diversion for the municipal water right subject to this agreement.
10)Notices. Any and all notices required by this agreement or pursuant hereto shall
be in writing and shall be effective when actually delivered by hand, facsimile,
U.S. mail or private currier to the address and or facsimile number stated below:
City of Central Point Wild River.imer04' .v''s ('s
Ike. box(NA6
ftkeA( an-. c7se1
J
11)Attorneys Fees. In the event suit, action or other proceeding is brought to
enforce, of for the breach of,this Agreement, the prevailing party in such suit,
action or other proceeding shall be entitled to recover from the losing party, the
prevailing parties' reasonable attorney fees, including attorney fees on appeal.
Parties have executed this Agreement on the date set forth above.
CITY OF CENTRAL POINT
By: cDO
Its Authorized Representative
- nY
WILD RIVER ORCHARDS, INC.
By: -'74.L S•
Michael D. Naumes, President
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