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HomeMy WebLinkAbout24-128 Approving a Purchase and Sale Agreement with Brunco Colorado, LLC 12-18-2024WHEREAS, BURNCO Colorado, LLC desires 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. WHEREAS, after purchase of the water rights, the water rights will need to go through the adjudicatory process to change the use from irrigation to municipal use. PIE IV • •, # i •• his 1. The Purchase and Sale Agreement ("Agreement") between the Town of Firestone, acting by and through its Water Activity Enterprise ("Buyer"), and BURNCO Colorado, LLC ("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 on behalf of the Town acting by and through its Water Activity Enterprise. 2. The Town Manager and other officers, employees and agents of the Town are further authorized to execute and deliver all 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, including submitting a request to change the water rights to the Godding Ditch Company, filing an application in the Division One Water Court and prosecuting the same to completion. I in 1 PURCHASE AND SALE AGREEMENT (Water Rights) This Purchase and Sale Agreement ("Agreement") is entered into by and between BURNCO Colorado, LLC, a Colorado Limited Liability Company ("Seller"), and the Town of Firestone, acting by and through its Water Activity Enterprise ("Buyer") effective December 19, 2024 (the "Effective Date"). Seller and Buyer may be referred to individually as a "Party" or collectively as "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 mutual promises and covenants contained herein, the Parties hereby agree as follows: 1. Description of Water Rights. The Seller is the owner of three (3) Shares of the Godding Ditch Company represented by Share Certificate No. 335 (the "Godding Shares"). The Godding Shares have been historically used, in part, on the property located in the NE 1/4 of Section 12, Township 4N, Range 67W of the 6th P.M. in Weld County, Colorado. Seller hereby agrees to sell the Godding Shares to Buyer pursuant to the terms of this Agreement. 2. Historical Use & Transfer. As further consideration, Seller, or Seller's agent, agrees to provide Buyer any and all affidavits, on or prior to Closing, stating the manner in which the Godding Shares have been used by Seller, identifying which acreage has been historically irrigated with the Godding Shares, the method of irrigation and what crops have historically been irrigated on the acreage with the Godding Shares. Seller, or Seller's agent agrees to cooperate and participate in good faith with any request necessary to complete any Catlin approval process of the Godding Ditch Company or any court proceedings as may be required to change the use of the shares. 3. Purchase Price. The purchase price for the Godding Shares shall be three -hundred eighty- five thousand dollars ($385,000.00). 4. Earnest Money. The day that the Buyer executes this Agreement, Buyer shall deliver and deposit with Land Title Guarantee Company earnest money payable in sum of Ten Thousand Dollars ($10,000.00), which shall become nonrefundable upon completion of the Due Diligence Period as defined in Paragraph 6 of this Agreement. 5. Warranty and Title. Seller warrants that the title to the Godding Shares will be conveyed free and clear of all liens, encumbrances, assessments, and leases of any kind. Seller agrees to warrant and forever defend the Buyer against all and every person claiming any interest in the Godding Shares by and through Seller. This warranty shall survive the closing of the transaction and continue in full force and effect subsequent to such closing. Subject to payment as above provided, and in compliance with the other terms and conditions by Buyer, Seller shall execute and deliver a Special Warranty Deed for the Godding shares to Buyer at the date of closing. 6. Due Diligence. Buyer shall have 77 days following the Effective Date of this Agreement ("Due Diligence Period") to terminate this Agreement if Buyer is dissatisfied with the Godding Shares to be acquired hereunder for any reason, in which case the earnest money deposit shall be immediately returned to Buyer. It shall be conclusively presumed that Buyer is satisfied with the Godding Shares 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 Godding Shares, Seller shall have 10 days following actual receipt of such notice of dissatisfaction to either (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 not to 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 the Seller has elected not to cure. Buyer may terminate the Agreement at any time for any reason prior to the end of the Due Diligence Period and Earnest money shall be refunded upon written notice of termination. 7. Assessments. All assessments levied by the Godding Ditch Company for year 2024 and prior years shall be paid by Buyer. Assessments for the year 2025 and future years shall be paid by the Buyer. 8. Transfer and Escrow Fees. Any fees by Godding Ditch Company to complete the transfer of the Godding Shares shall be paid by the Buyer. Seller and Buyers agree to equally pay escrow fees to Land Title Guarantee Company. 9. Delivery of the Stock Certificate. Possession of the original certificate evidencing ownership of the Godding Shares 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 Godding Shares from Seller to Buyer. 10. Closing. The closing of the purchase and sale of the Godding Shares will take place no later than 90 days following the Effective Date of this Agreement, or such other date as the Parties may agree upon in writing. 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 may recover such damages as may be proper. 12. Contingencies; Delivery and Consumptive Use. This contract is contingent on a determination by Buyer, in its sole discretion, that there is adequate consumptive use transferable for the agreed price. This contract shall be contingent on any diversion structures, storage structures or other devices necessary for the delivery and use of this water being undamaged and in good working condition. Should any of the contingencies herein not be met between the date of this contract and the date of closing, this contract may, at the option of the Buyer, be declared null and void. 13. Costs and Expenses. Each Party shall pay their own consulting, attorney, and brokerage fees and costs incurred as part of this transaction. 14. Notices. All notice and operational communications under this Agreement shall be in writing (including electronic form) 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 which are delivered by US Mail shall be addressed to the following address unless otherwise agreed upon by the Parties: Buyer: Town of Firestone Attn: Julie Pasillas PO Box 100 Firestone, CO 80520 Seller: BURNCO Colorado, LLC Attn: Joel Bolduc US Land and Resources Manager 10100 Dallas Street Henderson, CO 80640 15. Entire 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 and signed by both Parties. 16. Survival of Closing. The representations, warranties and indemnities made by the Parties to this contract and the covenants and agreements to be performed or complied with by respective Parties under this contract before the closing date shall be deemed to be continuing and shall survive the closing. 17. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, administrators, successors and assigns. 18. Counterparts. The Parties may execute this Agreement in counterparts which, when taken together, shall constitute one agreement. 19. 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. [Signature page follows.] IN WITNESS WHEREOF, the Parties hereto have executed this Agreement by the Effective Date. jtU ON . 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