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Home My WebLink About21-109 Water Enterprise Purchase Agreement Water Rights Barefoot, LLC_11-17-2021RESOLUTION N0.21-109 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 BAREFOOT LLC WHEREAS, Barefoot 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, NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, 1. The Purchase and Sale Agreement between the Town of Firestone, acting by and through its Water Activity Enterprise ("Buyer"), and Barefoot 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. 2. The Town Manager and other officers, employees and agents of the Town are rther authorized to execute and deliver all documents necessary i fun 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. INTRODUCED, READ, AND ADOPTED this( day of �% ; 2021. ATTEST: J sica Koenig, CMC T TOWN OF FIRESTONE, COLORADO A. Jimenez, Mayor Pro Tem APPROVED AS T Clerk William P. Hayashi, T Attorney PURCHASE AND SALE AGREEMENT (Water Rights) This Purchase and Sale Agreement ("Agreement") is entered into this J.Llay of �, 2021 ("Effective Date") by and between BAREFOOT LLC, a Colorado Limited Liability Company ("Seller"), and the Town of Firestone, acting by and through its Water Activity Enterprise ("Buyer"). 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 WI3EREAS, Buyer desires to acquire said water rights pursuant to the teens 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 Rights. Seller is the o��rner of tluee (3) Shares of the Rural Ditch Company represented by Share Certificate Nos. 391, 393 and 394 (the "Rural Shares"). Seller wishes to sell the three (3) Rural Shares to the Buyer. 2. Purchase Price. The Purchase Price for the Rural Shares shall be $840,000.00 ($280,000.00 per share), payable by wire transfer to Seller on the Closing Date, as defined below. 3. Warranty of Title. Seller warrants that title to the Rural Shares will be conveyed free and clear of all liens, encumbrances, assessments, and leases of any kind. Subject to payment as above provided, and in compliance with the other terms and conditions by Buyer, Seller shall execute and deliver a Bargain and Sale Deed for the Rural Shares to Buyer at the Closing. 4. Due Diligence. Buyer shall have S6 days following the Effective Date of this Agreement ("Due Diligence Period") to terminate this Agreement if Buyer is dissatisfied with the Rural Shares to be acquired hereunder for any reason. It shall be conclusively presumed that Buyer is satisfied with the Rural Shares if Buyer fails to send written notice to Seller to the contrary on or before the expiration of the Due Diligence Period. S. Assessments. All assessments levied by the Rural Ditch Company for year 2021 shall be paid by Seller. Assessments for the year 2022 and fiihire years shall be paid by Buyer. 6. Transfer Fee. Any fees imposed by Rural Ditch Company to complete the transfer of the Rural Shares shall be paid by Buyer. Page 1 of 4 7. Delivery of Stock Certificate. Possession of the original certificates) evidencing ownership of the Rural Shares shall be delivered to the Buyer at the time of closing together with properly executed and notarized assigiunents, Bargain and Sale Deed and any and all other documents reasonably necessary to effectuate the transfer of the Rural Shares from Seller to Buyer. 8. CIOSln. The closing for the purchase and sale of the Rural Shares will take place on the first business day that is at least 70 days after the Effective Date of this Agreement at: 9950 Park Avenue. Firestone, CO 80504. At the Closing, Buyer shall tender the purchase price by wire transfer to Seller and Seller shall tender the documents described in Section 7, above. Seller shall provide Buyer with wire transfer instructions at least seven (7) days prior to the Closing Date. Buyer shall pay for the costs of the wire transfer. 9. 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. In the event of such default by Seller, where Buyer elects to treat this Agreement as being in fiill force and effect, the Buyer shall have the right to an action for specific performance and damages. 10. Court Proceeding. Seller, or Seller's agent agrees to cooperate in good faith with any information requests reasonably necessary to complete a count proceeding as may be required to change the use of the shares. 11. Waiver of ROFR. Buyer and Seller are parties to that certain Agreement Granting a Right of First Refiusal, by and between the Town of Firestone (the Town) and Barefoot LLC (Barefoot), recorded on September 2, 2016(the "ROFR"). The ROFR encumbers certain water rights owned by Seller, including Seller's rights in the Hayseed Ditch. As consideration for Seller's performance under this Agreement, Buyer hereby waives all ROFR rights in the Hayseed Ditch water in relation to any offer received by Seller to purchase the Hayseed Ditch water for a cash at closing price of at least One Million Five Hundred Thousand and no/100 Dollars ($1,500,000.00). Such waiver shall be effective only for a sale of the Hayseed Ditch water that occurs prior to June 30, 2022. Should Seller desire to accept any offer for the Hayseed Ditch water for a price below 1,500,000.00, the provisions of the ROFR shall remain in effect, however, the Town must make its election, if any, to purchase the Hayseed Ditch water within fourteen (14) days of receipt of notice from Barefoot in relation to any offers received prior to June 30, 2022. This paragraph shall not apply if the offer includes water rights other than the Hayseed Ditch water. 12. Notices. All notices and operational corrnnunications under this agreement shall be in writing (including electronic form) except as otlrer•�vise provided for in this Agreement. All such notices and communications shall be deemed to have been duly Page 2 of 4 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 addresses unless otherwise agreed upon by the Parties: Buyer: Town of Firestone Attn: Julie Pasillas 9950 Park Ave. Firestone, CO 80504 Seller: BAREFOOT LLC Attn: Jeff McGoveni Brookfield Residential Properties 6465 S. Greenwood Plaza Blvd, Suite 700 Centennial, CO 80111 With copy to: Lyons Gaddis Attn: Cameron A. Grant, Esq. PO Box 978 515 Kinnbark Street, 2nd Floor Longmont, CO 80502 13. Entire Agreement. This Agreement represents tlne cornnplete agreement between the Parties and no oral modification shall be recognized. Arty amendment or additions shall be made in writing signed by both parties. This Agreement may be executed in one or more counterparts and facsimile signatures shall be considered to be originals. 14. Survival of Closing. The representations and warranties 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. 15. 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. 16. 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. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Page 3 of 4 IIr WITNESS irst above written WHEREOF, the Parties hereto have executed this Agreement on the date and year f �TTVF.R • er, r r r, n. T B N T B N r Page 4 of 4