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HomeMy WebLinkAbout24-96 Acting through its Water Activity Enterprise Approving a Purchase and Sale Agreement with Michelle and Brian Heritage 10-23-2024RESOLUTION NO, 24-96 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, ACTING BY AND THROUGH ITS WATER ACTIVITY ENTERPRISE APPROVING A PURCHASE AND SALE AGREEMENT WITH MICHELE AND BRIAN HERITAGE WHEREAS, Michele and Brian Heritage desire to convey certain Water Rights which the Town of Firestone ("Town"), acting by and through its Water Activity Enterprise, desires to purchase, subject to the terms and conditions set forth in a Purchase and Sale Agreement, and WHEREAS, upon purchase ofthe Water Rights, the Town will need to go through the adjudicatory catory process in the State's Water Court to change the use of the water from irrigation to municipal use. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: I. The Purchase and Sale Agreement ("Agreement") between the Town of Firestone, acting by and through its Water Activity Enterprise ("Buyer"), and Michele and Brian Heritage ("Seller") for Water Rights is approved in substantially the same form as the copy attached hereto and made a part of this resolution, and the Mayor is authorized to execute the Agreement. 2. The Town Manager and other officers, employees and agents of the Town are further authorized to execute and deliver al I documents necessary in connection with the closing of the purchase of the Water Rights, and to do all things necessary on behalf of the Town to perform all obligations of the Town under the Agreement, including without limitation the execution and delivery of all documents necessary or required with closing. 3. The Town Manager and other officers, employees and agents of the Town are further authorized. to do all things necessary on behalf of the Town to adjudicate a change in use of the Water Rights, by filing an application in the Division One Water Court and prosecuting the same to completion. INTRODUCED, READ, AND ADOPTED this 23rd day of October, 2024. TOWN OF FIRESTONE, COLORADO Don C nyac Jr� ayo ATTEST: � m Missy Carranco, Deputy Town Clerl APPROVED S TO F William P. ayahz, To ttorney PURCHASE A.D SALE. M1REE\-W\T aterRights) This Purchase and Sale Agreement ("Agreement") is entered into this day of 2024 by and between Michele and Brian Heritage ("Seller" ), and the Town of Firestone Water Activity Enterprise ("t uyer ), Seller and Buyer may hc referred to individually as a `Party" or coectve•":s "Parties." RECITALS WHEREAS, Seller owns and wishes to convey certain water rights as described below to Buyer; and WHEREAS , Buyer desires to acquire said water rights pursuant to the terms and conditions contained hereafter; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties hereby agree as follows. 1. Description of Water Ri his. Seller is the owner of1 shares of the New Coal Ridge Ditch Company, historically used on 11609 Hcnden Ln., Fort Lupton, CO 80621 represented by certificate no, 243, which are hereinafter referred to as "Shares" or "Water Rights." 2. Purchase Price. The Purchase Price for the Water Rights and all rights appurtenant to the Water Rights shall be ten thousand dollars ($10,000). 3. A gee e t Dates. The following dates are defined for this Agreement: . "Effective Date" of this Agreement shall ht he date on which this Agreement has been mutually executed b the Parties. b. "Closing Date" shall be December~ 16, 2024 or such earlier elate as agreed upon b the Parties. 4; \'.a:: of I'. Seller warrants that title to the Water lights will be conveyed t Buyer free and clear o all liars, encumbranc s, assessments. amid leases of any Seller agrees to warrant and forever defend the Buyer against i ud every person claiming arty interest in the Water Rights b and through Seller. This Tarrant shall survive the closing o the transaction and continue in full force md effect subsequent to such closing. Subject to pa ment as above provided, and in compliance with the other to s and conditions b Buyer, Seller shall execute and deliver a Special Warranty Deed for the 4a er Rights to Buyer on theClosing Date. If title to the Water Rights is not merchantable and notice of the defect(s) i given b Buyer or Buyer's agent to Seller or Seller's agent on or before closing and such title shall not be rendered merchantable within 30 days of such notice, then this Agreement, at Buyer's option, shall be void and of no effect and each Party shall be released from all obligations hereunder. 5.. Due Dili ence. Buyer shall have up to 45 days following Effective Date of this Agreement to terminate this Agreement if Buyer is dissatisfied with the Water Rights to be acquired hereunder for any reason. Buyer may terminate the Purchase and Sale Agreement at any time and for any reason prior to the end of the Due Diligence Period. It shall be conclusively presumed that Buyer is satisfied with the Water Rights if Buyer fails to send written notice to Seller to the contrary on or before the expiration of the Due Diligence Period. If Buyer sends notice of its dissatisfaction with the Water Rights. Seller shall have 10 days following actual receipt of such notice of dissatisfaction to either to (1) give notice that Seller elects to cure some or all of the issues described in the notice, or (2) give notice that Seller elects to not cure such issues. If Seller elects not to cure all such issues Buyer shall have as its exclusive remedies, the right to terminate this Agreement, or to waive any issues Seller has elected not to cure. The Seller shall not accept or consider other offers for the Property during the Due Diligence Period. 6. Ditch Company Right of First Refusal. The New Coal Ridge Ditch Company holds a right of first refusal to match the terms of this Agreement to acquire the Water Rights. Seller is required to submit the terms of the Buyer's offer to the New Coal Ridge Ditch Company for their consideration. This Agreement shall be void if the New Coal Ridge Ditch Company exercises its right of first refusal and enters into a contract to acquire the Water Rights under the same terms as defined herein, 7. Assessments. All assessments levied by the New Coal Ridge Ditch Company for year 2024 shall be paid by Seller. Assessments for the year 2025 and future years shall be paid by Buyer. S. Transfer Fee. Any fees imposed by New Coal Ridge Ditch Company to complete the transfer of the Water Rights shall be paid by Buyer. Deliveryof Stock Certificate. Possession of the original certificate(s) evidencing ownership of the Water Rights shall be delivered to the Buyer at the time of closing together with properly executed and notarized assignments, Special Warranty Deed and any and all other documents necessary to effectuate the transfer of the Water Rights from Seller to Buyer. 10. gin'. The closing for the purchase and sale of the Water Rights will take place on or before the Closing Date defined herein. 11. Default. Time is of the essence herein and if any payment or any other condition thereof is not made, tendered or performed by either party, then this Agreement, at the option of the Party who is not in default, may be terminated in, which case the non -defaulting party, in the event of such default by Seller, where Buyer elects to treat this Agreement as being in full force and effect, the Buyer shall have the right to an action for specific performance and damages, In the event of default by Buyer, Seller agrees that the Purchase Price shall represent the full amount of damages recoverable for such default by Buyer. 12. Historical Use & Transfer. Seller; or Seller's agent, agrees to meet with Buyer or Buyer's agent, within 30 days of the Effective Date for the purpose of providing Buyer with information concerning the historic use of the Water Rights, which may include the following: a, Information showing the historical use of the Water Rights, b. Seller's cooperation and participation in good faith with any requests necessary to complete any Catlin approval process of the New Coal Ridge Ditch Company or any court proceedings as may be required to change the use of the shares, 13. Costs and Expenses. Each party shall pay their own consulting anti atto eys fees and casts incurred as part o this transaction. 1. Notices. All notices and operational communications under this agreement shall be in writing except as otherwise provided for in this Agreement. All such notices and communications shall be deemed to have been duly given on the date of service, if delivered and served personally, or served via e-mail on the person to whom notice is given. All notices shall be delivered by US Mail to the following addresses unless otherwise agreed upon by the Parties: Buyer: To of Firestone Attn: Julie Pallas 9950 Park Ave, Firestone, CO 80504 Seller; Michele and Brial Heritage 1 1 609 Harpenden Ln., Fort Lupton, CO 80621 1 . l mire Agreement, This Agreement represents the complete agreement between the Parties and no oral modification shall be recognized. Any amendment or additions shall be made in writing signed by both parties. 16. pvival Survival of It s n . The representations, warranties and indemnities made by the parties to this contract and the covenants and agreements to be performed or complied with by the respective parties under this contract before the closing date shall be deemed to be continuing and shall survive the closing. 1 7. f3indin lffct. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, administrators, successors and assigns. 18. Jurisdiction and Venue, This Agreement shall be governed and its terms construed under the laws of the State of Colorado and venue shall be in the County of Weld, IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first above written BUYER: SELLER: TOWN OF I IRESTONE By. £, Ii l ele H ita e t I icrltae Title