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Home My Public Portal AboutRES-CC-1999-09Resolution 09-99 RESOLUTION APPROVING THE WATER RIGHTS PURCHASE AND SALE AGREEMENT BY AND BETWEEN THE CITY OF MOAB AND DELBERT O.OLIVER AND GLENNA D. OLIVER. Whereas, the City of Moab currently owns an undivided one-half interest in the Skakel Spring, together with Delbert O. and Glenna D. Oliver ("the Olivers"); and Whereas, the governing body of the City of Moab deems it prudent to purchase the one-half interest owned by the Olivers, in order to reserve water service capacity for future growth and development within City limits, and to provide a back-up water source; and Whereas, the Olivers are willing to sell the City of Moab their one half interest in Skakel Springs; and Whereas, the Water Rights Purchase and Sale Agreement presented to this meeting of the City Council provides for the City of Moab to purchase said one-half interest from the Olivers. NOW THEREFORE, WE, THE GOVERNING BODY OF THE CITY OF MOAB DO HEREBY APPROVE THE AFOREMENTIONED AGREEMENT IN SUBSTANTIALLY THE FORM PRESENTED TO THIS MEETING OF THE CITY COUNCIL, AND AUTHORIZE THE APPROPRIATE PARTIES TO EXECUTE AND DELIVER THE AGREEMENT AND REQUISITE WARRANTY DEED. This resolution shall take effect immediately upon passage. Passed and adopted by action of the Governing Body of Moab City in open session this 23`d day of March, 1999. CITY OF MOAB BY 0.4,..�ri ist/iy^L� T.C.arla R. Hancock Mayor Attest: Q _P `�.Qu�,-- Rachel Ellison City Recorder 0{‘5,A.01 lv 'fit,{ f 1Q E 4476.�3 0S32 P 034 — Date 31- A -19999 15:34pm 3 Fee: Ho Fee Check MERLENE MOSHER, Recorder Filed By JAC For MOAB CITY GRAND COUNTY CORPORATION Water Rights Purchase and Sale Agreement For and in consideration of the performances contained herein, the sufficiency of which both parties acknowledge, the City of Moab (herein, "Buyer") and Portal RV Park and Fishery, Inc , a Utah Corporation (herein "Seller") agree as follows I Recitals a Seller is the owner of certain water rights to a naturally flowing spring in Grand County, Utah known as the Skakel Spnng b Buyer is a Utah municipality owning an undivided one half interest in the Skakel Spnng together with the Seller It is the intent of the parties that Buyer will acquire all of the remaining interest held by the Seller and that the spring will be developed as a municipal culinary water source II Agreement 1 Seller agrees to convey to Buyer all of its nght, title, and interest in the water nghts known as Skakel Spring (herein, "the Water Right"), in the County of Grand and State of Utah, more particularly descnbed as follows S 450 ft W 225 ft from NE corner Sec 35, T25S, R21E, SLB&M The Water Right represents a diversion amount of 201 76 acre feet of water per year, or any additional available quantities, as defined by Water Right 05-2103 (D4312), currently on file, or as subsequently amended, in the records of the State of Utah Department of Natural Resources, Division of Water Rights 2 City agrees to pay the sum of one hundred fifty thousand dollars ($150,000 00), which sum shall be payable in an installment of one hundred thousand dollars ($100,000 00) due upon execution of this agreement, with the balance of fifty thousand dollars ($50,000 00) due no later than July 31, 1999 3 Upon delivery of the first payment Seller shall execute a sufficient deed to the Buyer for two thirds of their total interest in the Water Right Upon payment of the second installment Seller shall execute a deed for their remaining one third interest 4 Seller represents that they are the owner of the Water Right, that their interest in the Water Right is free and clear of all liens and encumbrances, that they have exercised diligence in the development of the Water Right, and that they have not made other or additional conveyances of all or any portion of the Water Right to persons not a party to this agreement. Seller represents that it has no knowledge of claims to the flow from Skakel Spring by persons not a party to this agreement. 5. Seller acknowledges that it has or will file for an overflow water right (herein "the Overflow Right") on the flow from the Skakel Spring. Seller agrees that this Overflow Right shall be junior in time and priority to the Water Right conveyed to Buyer under this agreement, and that any use of water by Seller pursuant to that Overflow Right is subject to the prior and senior call of the Water Right held by Buyer pursuant to this conveyance. Seller acknowledges that the flow from Skakel Spring may be diverted by Buyer in its entirety'upon development of the Water Right conveyed herein, and that lands of the Seller that were formerly irrigated from the flow of Skakel Spring may no longer be subject to irrigation from that source. It is the intention of the parties that so long as Buyer does not develop and use all of the water to which it is entitled under the Water Right for municipal purposes, the amounts not used shall be available for use by Seller through the existing pipeline system. Notwithstanding Seller's application for an Overflow Right, Seller agrees and acknowledges that upon Buyer's development and use of the Water Right the Seller may have no water from the Skakel Spring. 6. The Water Right conveyed by this agreement has been historically applied to beneficial use for irrigation, stock watering, fish ponds, and domestic uses on the lands described below, together with adjacent wetlands to the west. S'/ NW'/ Sec. 26, Lots 1 & 2 (E'/ SE'/a) Sec. 27, Lots 1, 2, 3, and 4, E1/ NW'/a NE'/a SE'/ Sec. 34, N'/ SW'/ Sec 35, T25S, R21E, SLB&M, County of Grand State of Utah. 7. It is expressly understood that upon completion of this transaction the Buyer may apply for change in the point of use and/or purpose of use for the Water Right, and that said application may include a change to municipal culinary water supply. Seller hereby consents to that change to municipal culinary use and irrevocably waives any and all right of objection or protest to the change contemplated by the Buyer, so long as such change does not affect any water rights Seller may retain as a result of Buyer's breach or default under this agreement. The consent of the Seller to this change of use is material, and forms a portion of the consideration exchanged in this transaction. The covenants and warranties in this agreement shall survive the closing and conveyance of the deeds, and shall be binding upon the Seller and Buyer, and each respective successor or assignee thereafter. 9. The place of performance of this contract is Grand County, Utah, and this agreement shall be construed in accordance with the laws of the State of Utah. In 2 E 447633 B 0532 P 035 the case of any legal dispute, venue shall be in the District Court, Grand County, Utah. In consideration of this agreement, both parties irrevocably waive trial to a jury and consent that any dispute shall be tried before a judge only. 10. The failure by any party to perform or honor any of the provisions of this contract shall be deemed a material breach. Prior to instituting any legal action for breach the non -breaching party shall deliver notice of same to the other party at his/her last known address and accord that party five days in which to cure or correct the default. a. In the event of breach by the Seller, the Buyer may obtain a judgement for specific performance and/or monetary damages in a court of competent jurisdiction. b. In the event of breach by Buyer, the Seller may either pursue a claim for monetary damages under the contract or terminate the contract in which case Seller shall be released from any further obligation to perform and neither party shall be liable to the other. However, in the specific event that funds are not lawfully budgeted and appropriated by Buyer to fulfill the payment obligations in this agreement, it is agreed that this contract shall automatically terminate and Seller shall be released from any further obligation to convey Seller's remaining interest in the Water Right. In no event shall the Buyer be held liable for consequential damages. c. In the event of any legal dispute concerning the subjects of this contract the substantially prevailing party shall be entitled to recover reasonable attorney fees and court costs, together with any damages allowed under this contract. 11. Both parties acknowledge that they have entered into this agreement freely, and not as a result of any undue influence or coercion. This contract is a product of mutual bargaining and shall be construed in accordance with its plain meaning, regardless of the extent to which either party contributed to the drafting. Both parties acknowledge that they have consulted with independent and competent legal counsel prior to signing. 12. This contract is the full and complete agreement of the parties. There are no oral promises or agreements not expressly contained herein, and no such representations shall be binding unless reduced to writing lawfully executed by both parties. The parties agree to cooperate in the execution of any and all supplemental documents necessary to give effect to this transaction. 3 E 447633 B O532 P 036 13. No party may assign its interest in this contract, either in whole or in part, without the advance written consent of all parties. 14. This contract may be recorded in the land records in Grand County, Utah and notice of same be provided to the Utah Division of Water Rights as provided by law. 15. Payment by the Buyer is subject to the lawful appropriation by the Moab city Council. Nothing in this contract shall be construed to be a pledge or encumbrance against the 1999-2000 fiscal year municipal budget. Approved and accepted on the dates set forth below. BUYER: City of Moab by ayor Karla Hancock .Aategt: 0 C- -...,,Rachel Ellison, City Recorder 7Y� SELLER: Portal RV Park and Fishery, Inc. Delbert O. Oliver, President rn .04 01 (yl State of Utah pj )SS County of Grand ) 0 (11 N v 0 U Glenna Oliver, Secretary Date 3•�z3-�i9 Date Date The foregoing instrument was acknowledged before me on this 23rd day of March, 1999, by Delbert °. Oliver and Glenna Oliver, acting in behalf of Portal R.V. Park and Fishery, Inc., a Utah corporation, in their capacity as the President and Secretary respect.vely. My commission expi - ir,-1� RACHEL E EWSON Notary Public State of Utah My Comm. Expies Jun 2, 2002 115 W. 200 S. Moab, UT R4i32 at P Rachel E. Ellison, Notary Public State of Utah, Residing in Moab, UT Water Deed For and in consideration of the sum of one hundred thousand dollars ($ 100,000 00) and other good and sufficient consideration, the Grantor, Portal RV Park and Fishery, Inc , a Utah Corporation, whose address is P O Box 906, Moab, UT 84532 in the County of Grand, State of Utah, hereby convey an undivided two thirds (2/3) interest to Grantee, the City of Moab, a Utah municipality, located at 115 West 200 South, Moab, Utah 84532, in the following described water right in the County of Grand and State of Utah as follows S 450 ft W 225 ft from the N E corner, Sec 35, T25S, R21E, SLB&M, more particularly known as the Skakel Spnng, and referenced as Water Right 05-2103 (D4312) in the records of the Utah Department of Natural Resources, Division of Water Rights This conveyance incorporates by reference the pnor covenants and obligations contained in the Water Rights Purchase and Sale Agreement, dated March 23, 1999, between Grantor and Grantee, which covenants and obligations are agreed to survive the closing Executed this JD day of March, 1999 GRANTOR Portal RV Park and Fishery, Inc //4,, ) Delbert O Oliver, President e /21,4.a C6)-4 tPsi Glenna Oliver, Secretary State of Utah ) )s s County of Grand ) The foregoing instrument was acknowledged before me this 3044- — day of March, 1999, by Delbert O Oliver and Glenna Oliver, acting in behalf of Portal RV Park and Fishery, Inc , a Utah corporation, in their capaciy-asthe President and Secretary respectively RACHB_ E EUISON Notary Public State of Utah MyComm awes Jun 2, 2032 115 W 200 S Moab, Ur 84532 My commission expires ( - a- a a o Notary Public, State of Utah Residing at Moab, Utah E 447834 B 0532 P 038 Date 31-MAR-1999 15:35pe Fee: No Fee Check NERLENE MOSHER, Recorder Filed By JAC For MOAB CITY GRAND COUNTY CORPORATION Corrected Water Deed For and in consideration of the sum of Ten Dollars ($10 00) and other good and sufficient consideration, the Grantors, Delbert O Oliver and Glenna F Oliver aka Glenna D Oliver, whose address is P O Box 906, Moab, UT 84532 in the County of Grand, State of Utah, hereby convey all of Grantors' right, title and interest, to Portal RV Park and Fishery, Inc , a Utah Corporation whose address is P 0 Box 906, Moab, Utah 84532, Grantee, in the following described water right in the County of Grand, State of Utah as follows South 450 feet and West 225 feet from the N E Corner, Section 35, T25S, R21 E , SLB&M, more particularly known as the Skakel Spring and referenced as Water Right 05- 2103 (D4312) in the records of the Utah Department of Natural Resources, Division of Water Rights This Corrected Water Deed is made to correct an erroneous description in the Water Deed dated March 24, 1999 between Delbert 0 Oliver and Glenna F Oliver aka Glenna D Oliver as Grantor, and Portal RV Park and Fishery, Inc , a Utah Corporation, as Grantee which was recorded on March 24, 1999 in Book 0531 at Page 483 as Entry No 447569, which deed contained the following erroneous description South 450 feet and West 225 feet from the N E Corner, Section 36, T25S, R21 E, SLB&M, more particularly known as the Skakel Spring and referenced as Water Right 05- 2103 (D4312) in the records of the Utah Department of Natural Resources, Division of Water Rights Executed this 29th day of March, 1999 GRANTORS /,k r7t;& Delbert 0 Oliver 8-e-e 4 ( (d'.00L .1,11- Lpf /' Ct*ije( Glenna F Oliver aka Glenna D Oliver E 447620 B 0531 P 595 _ Date 30-MAR-1999 14128pm MERLENE MOSHE00 Ch eck . Recorder S 7� Filed BY MM For DELBERT OLIVER GRAND COUNTY CORPORATION State of Utah )s s County of Grand The foregoing instrument was acknowledged before me by Delbert O Oliver and Glenna F Oliver aka Glenna D Oliver this 29th day of March, 1999 Witness my hand and official seal Notary Pootto GAIL MARIE BROWN rot Wasiwono \Lab tlla! 24532 ' Ny 4ommhmon Expves 1A2y 24, 2000 State of Utah ota Pub ic, State of Utah Residing at Moab, Utah My commission expires O 5.- Zy-7 (JD E 447620 B 0531 P 596