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HomeMy WebLinkAboutPSA RMWE_to_Rexburg_66.8ac_20260827AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 1 OF 15 AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT __________________________________________________________ THIS AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT (this “Agreement”) is made and entered to be effective as of the day of September, 2026 (the “Effective Date”), by and between the following entities: 1. Rocky Mountain Water Exchange, LLC, an Idaho limited liability company, whose address is 482 Constitution Way, Suite 303, Idaho Falls, Idaho 83402 (hereinafter “Seller”); and 2. Acting on behalf of Seller, Keller Williams Realty East Idaho, an Idaho limited liability limited partnership whose address is 3525 Merlin Dr., Idaho Falls, Idaho 83404, with Kevin E. Ward acting as Agent for the Broker (hereinafter “Broker”). 3. City of Rexburg, a municipality, whose address is PO Box 280, Rexburg, ID 83440 (hereinafter “Buyer”); Buyer, Seller, and Broker are individually a “Party” and together the “Parties”. RECITALS: A. Seller currently has the legal right and option to sell Water Right No. 22-14743 and 22- 14744(the “Water Right”), which were decreed on April 6, 2010 and April 30, 2010 in the Snake River Basin Adjudication by the District Court for the Fifth Judicial District of Idaho for irrigation purposes with priority dates of March 4, 1974 and January 25, 1965, respectively. B. The Water Rights were split from parent rights 22-13958 and 22-13797 through Transfer No. 90230, wherein the Water Rights were converted from 66.8 irrigated acres to be used for Municipal purposes by the City of Rexburg. The Water Rights are no longer described with an acreage component, but for the purposes of this Agreement, the original acre- equivalent is used for representation. The current description of the Water Right is more fully set forth in the reports provided by the Idaho Department of Water Resources (“IDWR” or the “Department”) following the recent Transfer and attached hereto as Exhibit 1. C. Seller desires to sell, and Buyer desires to buy the 66.8-acre portion of the Water Rights. Buyer has agreed to purchase the portion of the Water Rights from Seller as set forth in the terms and provisions of this Agreement. AGREEMENT: IN CONSIDERATION of the mutual representations, warranties, and covenants contained herein, the Parties, intending to be legally bound hereby, agree as follows: AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 2 OF 15 1. Property Purchased. Seller hereby agrees to sell to Buyer, and Buyer agrees to buy from Seller, on the terms and conditions herein specified, the following-described portion of the Water Right: Water Right No.: 22-14743 Purpose: Municipal Priority: March 4, 1974 Quantity (Diversion Rate): 0.320 cfs Quantity (Volume): 86.2 acre-feet per annum Water Right No.: 22-14744 Purpose: Municipal Priority: January 25, 1965 Quantity (Diversion Rate): 0.700 cfs Quantity (Volume): 86.2 acre-feet per annum Combined Elements of 22-14743 & 22-14744 Quantity (Diversion Rate): 1.02 cfs Quantity (Volume): 86.2 acre-feet per annum The above-described portions of the Water Rights are referred to hereafter as the “Purchased Water Right.” 2. Property Retained. Other than the Purchased Water Right, Seller reserves and retains unto Seller any other water rights that may be appurtenant to the authorized place of use for the Water Right. No land, easements, or other property interests, other than the Purchased Water Right, are included in this Agreement. 3. Purchase Price. The purchase price for the Purchased Water Rights is Seven Hundred Fifty Thousand Dollars ($750,000.00) (the “Purchase Price”). The basis of the price is approximately 75% of the offered $15,000.00 per original irrigated acre for the purchase of the 66.8 acres-worth of the transferred water right. 4. Earnest Money Deposit. Contemporaneous with the execution of this Agreement, Buyer shall deliver to Pioneer Title Co., 1655 Elk Creek Dr. #100, Idaho Falls, ID 83401 earnest money in the amount of Seventy-Five Thousand Dollars ($75,000.00) (the “Earnest Money”) or the entirety of the purchase price defined in Section 3 above. The Earnest Money shall be applied towards the Purchase Price at closing, or otherwise disposed of as provided herein. 5. Transfer Application. No transfer application is required for this agreement. 6. Transfer Contingencies. (a) Unstacking of Water Rights. Not applicable. (b) Lien Release. Not applicable. AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 3 OF 15 (c) No Protests. Not applicable. (d) Protest Filed. Not applicable (e) Option Agreement. If Seller is unable to obtain title to the Water Right through the exercise of Seller’s option to purchase the Water Right because of a breach by the other party to the Option Agreement, Seller may elect to terminate this Agreement within 180 days of the breach. In such event, Closing on this Agreement shall be stayed for said 180 days pending resolution of the dispute over the Option Agreement or termination by Seller. 7. Closing. (a) Closing Date. Closing shall occur with 14 days after execution of this agreement. Notwithstanding, the Parties may mutually agree to another date for the Closing. (b) Closing Location. The Closing shall occur at the offices of Pioneer Title Co., 1655 Elk Creek Dr. #100, Idaho Falls, ID 83401, or another location mutually agreed by the Parties. (c) Documents to be delivered at Closing. (1) At Closing, Buyer shall deliver the Purchase Price less the Earnest Money. (2) At Closing, Seller shall deliver to Buyer the Special Warranty Deed (the “Deed”) substantially in the form attached to this Agreement as Exhibit 2 for the Purchased Water Right, and any lien release or other documents reasonably requested to confirm the conveyance of the Purchased Water Right free and clear of encumbrances. (d) Fees and Costs of Closing. The fees and costs of processing the closing including recording the deed after closing and preparation and fee for a Change of Ownership application shall be paid by Buyer. All other expenses not specifically referenced in this Agreement but related to the Transfer and incurred by Seller or Buyer with respect to this transaction shall be borne and paid exclusively by the Party incurring the same, without reimbursement. 8. Default. In addition to either Party’s failure to perform any material term or condition of this Agreement or a Party’s breach of any of such Party’s representations or warranties (in which event the non-defaulting party may pursue any available remedy, including equitable relief), Buyer shall be deemed in default hereof if Buyer files a petition in bankruptcy or is adjudicated bankrupt or insolvent, Buyer makes an assignment for the benefit of its creditors, or consents to the appointment of a receiver of itself or of its property, or institutes proceedings for its reorganization, in which case, in addition to any other remedies or rights Seller might have, Seller shall have the power and authority to notify the Department that the Application for Transfer has been withdrawn. 9. Seller’s Representations and Warranties. Seller hereby represents and warrants to Buyer, AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 4 OF 15 as of the Effective Date and again as of the Closing as follows: (a) Authority. Seller has the full legal right, power and authority to enter into and perform this Agreement, and will obtain good marketable title to the Purchased Water Right in fee simple, and Seller (at its expense) shall remove, or shall exercise commercially reasonable efforts to cause to be removed, all liens, claims, or encumbrances, whether of record or not, upon or affecting the Purchased Water Right on or before Closing. If, after exercising commercially reasonable efforts, the liens, claims, or encumbrances are not removed by Closing, Seller may terminate this Agreement. (b) Conveyance. Seller shall then convey the Purchased Water Right free and clear of all liens, encumbrances and restrictions, except such restrictions on the use of water as may appear on the Water Right Report contained at Exhibit 1. (c) Appurtenance. The Purchased Water Right is already appurtenant to the City of Rexburg service area for municipal use consistent with Idaho law. (d) Not Forfeited. No portion of the Purchased Water Right has been forfeited or abandoned in whole or in part. (e) No Representation or Warranty Concerning Suitability for Buyer’s Intended Use. Seller has not made, and hereby makes, no representation or warranty to Buyer except as expressly contained in this Agreement. 10. Buyer’s Representations and Warranties. Buyer hereby represents and warrants to Seller as of the Effective Date and again as of the Closing for the Purchased Water Right, as follows: (a) Authority. Buyer has the legal power, right and authority to enter into this Agreement and to perform Buyer’s obligations hereunder. (b) Buyer’s Due Diligence. Buyer and Buyer’s consultants and counsel have had a full opportunity to review all documents, records and other information made available to Buyer by Seller and/or otherwise reasonably available to Buyer through public or other sources, related to the nature and extent of the Purchased Water Right, the laws and rules affecting their transfer and use by Buyer, and the suitability or fitness of the Purchased Water Right for Buyer’s intended purposes. 11. Warranties to Survive Closing. All representations and warranties made by the Parties herein are also covenants, and each Party shall take all such actions as may be required to satisfy said covenants and to cause the representations and warranties to be true on and as of the Closing. The Parties’ respective obligations to close and consummate the transaction contemplated herein are contingent upon the representations, warranties and covenants contained in this Agreement being true, valid and satisfied on and as of the Closing. All such representations and warranties shall survive the Closing. 12. Broker. AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 5 OF 15 (a) No Buyer’s Premium for this closing. (b) Consent To Limited Dual Representation And Assigned Agency. The undersigned Buyer has received, read and understand the Agency Disclosure Brochure (prepared by the Idaho Real Estate Commission). The undersigned Buyer understands that the brokerage involved in this transaction may be providing agency representation to both the Buyer and the Seller. The undersigned Buyer understands that, as an agent for both Buyer/client and Seller/client, a brokerage will be a limited dual agent of each client and cannot advocate on behalf of one client over another, and cannot legally disclose to either client certain confidential client information concerning price negotiations, terms, or factors motivating the Buyer/client to buy or the Seller/client to sell without specific written permission of the client to whom the information pertains. The specific duties, obligations, and limitations of a limited dual agent are contained in the Agency Disclosure Brochure as required by § 54-2085, Idaho Code. The undersigned Buyer understands that a limited dual agent does not have a duty of undivided loyalty to either client. The undersigned Buyer further acknowledges that, to the extent the brokerage firm offers assigned agency as a type of agency representation, individual sales associates may be assigned to represent each client to act solely on behalf of the client consistent with applicable duties set forth in § 54-2087, Idaho Code. In an assigned agency situation, the designated Broker (the broker who supervises the sales associates) will remain a limited dual agent of the client and shall have the duty to supervise the assigned agents in the fulfillment of their duties to their respective clients, to refrain from advocating on behalf of any one client over another, and to refrain from disclosing or using, without permission, confidential information of any other client with whom the brokerage has an agency relationship. (c) Buyer Notification and Consent to Release from Conflicting Agency Duties. Buyer acknowledges that Broker as named above has disclosed the fact that at times Broker acts as agent(s) for other buyers and for sellers in the sale of the property. Buyer has been advised and understands that it may create a conflict of interest for Broker to introduce Buyer to a Seller client’s property because Broker could not satisfy all of its client duties to both Buyer client and Seller client in connection with such a showing or any transaction which resulted. Based on the understandings acknowledged, Buyer makes the following election. (Make one election only.) ______ / ______ Initials Buyer DOES want to be introduced to Seller client’s property and hereby agrees to relieve Broker of conflicting agency duties, including the duty to disclose confidential information known to the Broker at the time and the duty of loyalty to either party. Relieved of all conflicting agency duties, Broker will act in an unbiased manner to assist the Buyer and Seller in the introduction of Buyer to such Seller client’s property and in the preparation of any contract of sale which may result. Buyer authorizes AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 6 OF 15 Limited Dual Agency and / or Assigned Agency OR Broker to act in a limited dual agency capacity. Further, Buyer agrees that Broker may offer, but is not obligated to offer, assigned agency representation, and if offered by the Broker, Buyer authorizes Broker to act in such capacity. ______ / ______ Initials Single Agency Buyer DOES NOT want to be introduced to Seller client’s property and hereby releases Broker from any responsibility or duty under the agency agreement. Broker shall be under no obligation or duty to introduce the Buyer to any Seller client’s property. 13. Miscellaneous. (a) Attorneys’ Fees. If either party commences any legal action or proceeding to enforce any of the terms of this Agreement (or for damages because of an alleged breach hereof), the prevailing party therein shall be entitled to recover from the other, in addition to any other relief granted, its reasonable attorney's fees, costs and expenses incidental to such legal action. (b) Notices. Any notice under this Agreement shall be in writing and be delivered in person, by U.S. Mail, by private courier, or by facsimile. Notice shall be provided to the following: Seller Buyer Rocky Mountain Water Exchange, LLC 482 Constitution Way Suite 303 Idaho Falls, ID 83402 Email: rog.rmea@gmail.com City of Rexburg PO Box 280 Rexburg, ID 83440 Email: keithd@rexburg.org Seller’s Representative Buyer’s Representative W. Roger Warner Rocky Mountain Water Exchange, LLC 482 Constitution Way Suite 303 Idaho Falls, ID 83402 Email: rog.rmea@gmail.com Keith Davidson Same as address above. keithd@rexburg.org (c) Merger. This Agreement supersedes any and all other written or verbal agreements between the Parties hereto regarding the Purchased Water Right. Neither Buyer AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 7 OF 15 nor Seller shall be bound by any understanding, agreement, promise, representation or stipulation, express or implied, not specifically contained herein. (d) Remedies Cumulative. Upon any breach, any and all rights and remedies which either Party may have under this Agreement or by operation of law or equity, shall be distinct, separate and cumulative and shall not be deemed inconsistent with each other. No such right or remedy, whether exercised by said Party or not, shall be deemed to be in exclusion of any other right or remedy, any two or more of all such rights and remedies may be exercised at the same time or separately as desired. (e) Further Documents. The Parties hereby agree that they shall sign such other and further documents as may be required to carry into effect the terms and conditions of this Agreement. (f) Enforceability. The validity or enforceability of any term, phrase, clause, paragraph, restriction, covenant, agreement or other provision hereof, shall in no way affect the validity or enforcement of the remaining provisions, or any part hereof. (g) Counterparts. This Agreement may be executed in any number of counterparts for all the convenience of the Parties, all of which, when taken together and after execution by all Parties hereto, shall constitute one and the same Agreement. (h) Governing Law. This Agreement shall be governed by the laws of the State of Idaho. (i) Successors. This Agreement is for the benefit only of the Parties hereto and shall inure to the benefit of and bind their respective heirs, agents, personal representatives, successors and assigns. (j) Essence of Time. Time is of the essence in this Agreement. AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 8 OF 15 IN WITNESS WHEREOF, the undersigned have duly executed this Agreement effective on the date set forth above. “SELLER” ROCKY MOUNTAIN WATER EXCHANGE, LLC By: W. Roger Warner Its: Managing Member “BROKER” KELLER WILLIAMS EAST IDAHO By: Kevin E. Ward, Its: Agent for Broker “BUYER” CITY OF REXBURG By: __________________ Its: ___________________ AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 9 OF 15 Exhibit 1 The “Water Right” AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 10 OF 15 AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 11 OF 15 AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 12 OF 15 AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 13 OF 15 Exhibit 2 Form of the Deed RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Kristin Moore Rocky Mountain Environmental Associates, Inc. 482 Constitution Way, Suite 303 Idaho Falls, ID 83402 (Space Above for Recorder’s Use) SPECIAL WARRANTY DEED FOR WATER RIGHTS Bradley Jensen, doing business as B & B FARMS, whose address is 2509 South 5500 West Rexburg, Idaho 83440 and Lana Rae Jensen, as Personal Representative of the Estate of Byron Grant Jensen, with the estate pending in the Seventh Judicial District, Madison County, Idaho, under Case no. CV-2016-334 (hereinafter “Grantors”) do hereby grant, bargain, sell, assign, and convey unto CITY OF REXBURG, a municipality, whose address is PO Box 280, Rexburg, Idaho 83440 (hereinafter “Grantee”) and to Grantee’s heirs and assigns forever, all of Grantors’ right, title, and interest in water rights described on Exhibit A attached hereto (hereinafter the “Water Right”). Grantors hereby covenant and warrant to Grantee as follows: (A) Grantors are the owner of the Water Right; (B) Grantors have not conveyed any of the Water Right, or any interest or security interest therein, to anyone other than Grantee; (C) The Water Right is free from all liens, claims, or encumbrances; and (D) Grantors have the authority to convey the Water Right to Grantee. Grantors make no other covenants or warranties as to the Water Right. DATED this ________ day of September, 2026. AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 14 OF 15 “GRANTORS” Bradley B. Jensen dba B & B Farms Lana Rae Jensen, Personal Representative of the Estate of Byron Grant Jensen STATE OF IDAHO ) )ss. County of Bonneville ) This record was acknowledged before me on the _____ day of September, 2026, by Bradley B. Jensen, dba B&B Farms. __________________________________ Notary Public for Idaho My Commission Expires:______________ STATE OF IDAHO ) )ss. County of Bonneville ) This record was acknowledged before me on the _____ day of September, 2026, by Lana Rae Jensen, as Personal Representative of the Estate of Byron Grant Jensen. __________________________________ Notary Public for Idaho My Commission Expires:______________ AGREEMENT FOR PURCHASE AND SALE OF WATER RIGHT BUYER AND SELLER’S INITIALS: ______ / ______ DATE: ________________ PAGE 15 OF 15 Exhibit A [INSERT WATER RIGHT REPORTS]