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HomeMy WebLinkAbout26-33 Approving Purachse and Sale Owens Authorizing Filing of Water Court Application for Change of Water Rights 04-15-2026RESOLUTION NO. 2633- A RESOLUTIONOF 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 JAMES ALAN OWEN AND CANDACE. CARR OWEN; AND AUTHORIZING THE FILING OF A WATER COURT APPLICATION FOR CHANGE OF WATER RIGHTS PERTAINING THERETO WHEREAS, James Alan Owen and Candace Carr Owen 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, the Town Board of Trustees finds that the purchase of the Water Rights from the Owen's will be of benefit to both the Town and the community; and WHEREAS, upon purchase of the Water Rights, the Town will need to go through the adjudicatory process in the State's Water Court to change the use of the water from irrigation to municipal use; and WHEREAS, the Board of Trustees finds it in the best interest of Town of Firestone and its citizens to change the use and seek a decree confirming the change of Water Rights for use in the Town of Firestone"s municipal water system, including by lease to other parties, by filing an application ('Application") with the Division One Water Court. ('Water Court'); and WHEREAS, prosecution of the aforementioned Application is consistent vwith the powers and authority of the Town of Firestone and the furtherance of the public interest. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: Section 1. The Purchase and Sale Agreement ("Agreement") between the Town of Firestone, acting by and through its Water Activity Enterprise ("Buyer"), and James Alan Owen and Candace Carr Owen ("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. Section 2. The Interim Town Manager and/or his or her designee 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. Section 3. The Board of Trustees authorizes the filing of a Division One Water Court Application for the change of Water Rights, upon a successful closing. Section 4. The Interim Town Manger or such person's designated Department Directors further authorized to do all things necessary and desirable can behalf of the To n to file the Application and prosecute the same to completion,including any final settlement with parties or trial before the Water Court, except that Board of Trustees approval shall be required for any appeal of any final decision of the Water Court. PASSED AND ADOPTED this 15th day of Aril, 2 026 ATTE T: i is rana.dos Luna, CMC, Town Clerk APPROVED AS101 0RM: Marshall Keith Martin, Town Attorney O PURCHASE AND SALE AGREEMENT (Water Rights) This Purchase and Sale Agreement ("Agreement") is entered into this 15 day of 2026 by and between James Alan Owen and Candace Carr Owen ("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 HERI AS, Seller owns and wishes to convey certain water rights as described below to Buyer; IEREAS, 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. jescriution of Water R.i hts. Seller is the owner of one (1) share of the New Coal Ridge Ditch Company represented by Share Certificate No. 120 (the "Coal Ridge Share"). Seller wishes to sell I Coal Ridge Share to the Tan of Firestone. The Coal Ridge Share was historically used for irrigation on the property located at SE 1f4 of Section 18, Township 2 North, Range 67 West of the 6th P.M. in Weld County (the "Property"), also known as Weld County parcel number 1 111840 07C.. 2, Historic Use and Transfer. As further consideration, Seller, or Seller's agent, agrees to provide Buyer any and all affidavits, prior to the time of closing specified in Paragraph 9, stating the manner in which the Coal Ridge Share has been used by Seller or Seller's predecessors, the method of irrigation and what crops have been historically irrigated on. the acreage with the Coal Ridge Share. Seller agrees to cooperate and participate in good faith with any request made by Buyer to Seller concerning any change in use approval process of the New Coal Ridge Ditch Company or any related subsequent court proceedings as may be required to change the use of the share, 3. Purchase Price. The Purchase Price for the 1 Coal Ridge Share shall be fifteen thousand dollars (S 15,000.00), 4. Warranty and Title. Seller warrants that the title to the Coal Ridge Share will be conveyed free and clear ofall 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 Coal Ridge Share by and through Seller. This warranty shall survive the closing of Page 1 of the transaction specified in Paragraph 10 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 Coal Ridge share to Buyer at the date of closing. If the title to the Coal Ridge Share is not merchantable and notice of the defect(s) is given to the Buyer° r 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 Dil fence The "Effective Date" of this Agreement shall be the date the Agreement is signed by Buyer. Buyer shall have 42 days following the Effective Date ("Due Diligence Period") to terminate this Agreement if Buyer is dissatisfied with the Coal Ridge Share to be acquired hereunder for any reason. If not provided by the Effective Date of this Agreement, Seller, within 10 days of the Effective Date shall deliver to Buyer the Due Diligence Materials, consisting of. copies of the original share certificate in Seller's possession, receipt of payment for all prior assessments and a showing that Seller and the Coal Ridge Share in Good Standing with the New Coal Ridge Ditch Company, all historical use information in Seller's possession, all liens and encumbrances on the Property and any other documents reasonably requested by Buyer. It shall be conclusively presumed that Buyer is satisfied with the Coal Ridge Share if Buyer fails to send written notice to Seller to the contrary on or before the expiration of the Due Diligence Period. Buyer may terminate the Agreement at any time for any reason prior to the end of the Due Diligence Period. 6. Dry Up Covenants. Seller shall provide Buyer, at least 10 days before the Closing Date, an executed dry -up covenant in the formn acceptable to Buyer, for the, lands historically irrigated by the Water Right. The Seller shall provide in the dry -up covenant a permanent restriction of irrigation of the historically irrigated acres served by the I Coal Ridge Share, with the specific acreage to be identified by legal description and depicted on an exhibit attached to the dry -up covenant, all located in the SE 1/4 of Section 18, Township 2 North, Range 67 West in Weld County. Seller warrants that any and all liens or encumbrances on Property are subordinate to the provided dry -up covenant, and Seller shall be responsible for acquiring all necessary agreements to ensure any liens or encumbrances are subordinate to the dry -up covenant. Seller shall be responsible for any revegetation of the Property historically irrigated by the Water Right, 7. Assessments. All assessments levied by the New Coal Ridge Ditch Company for the year 2025 shall be paid by Seller, along with outstanding assessments from years prior to 2025, if any. The assessments for the year 2026 and in future years shall be paid to the Buyer. Page 2 of 5 S. Transfer and Escrow Fees. Any fees by New Coal Ridge Ditch Company to complete the transfer of the Coal Ridge Share shall be paid by the Buyer. Seller and Buyer agree to equally pay any closing fees. Delivery of the Stock Certificate. Possession of the original certificate evidencing ownership of the Coal Ridge Share shall be delivered to the Buyer at the time of closing, together with properly executed assignments, Special Warranty Deed and any and all other documents necessary to effectuate the transfer of the Coal Ridge Share from Seller to Buyer. 1. Closin . The closing of the purchase and sale of the CoalR.ide Share will take place within l0 business days after the completion of the Due Diligence Period or such other date as the Patties mutually agree upon. The Closing Date may be extended up to 30 days by mutual agreement of the Parties. 1 l . 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 and each Party shall be released from all obligations hereunder. 12. Contingencies;: Deliver and Consumptive Use, This Agreement is contingent on a determination by Buyer, in its sole discretion, that there is adequate consumptive use transferable for the agreed price. This Agreement 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 Effective Date and Closing Date, this Agreement may, at the option of the Buyer, be declared null and void and each Party shall be released from all obligations hereunder. 13. Costs and Expenses. Each Party shall pay its 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: Page 3 of Tee Buyer: Town of Firestone Attu: Julie Pasillas 9950 Park Ave; Firestone, Colorado 80504 To Seller: James Owen and Candace Owen 9477 County Road 15 Firestone, Colorado 80504 IS. Entire A.. reement. 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. Suivival of Closing. The representations, warranties, and indemnities made by the parties to this Agreement and the covenants and agreements to be performed or complied with by respective parties under this Agreement before the Closing Date shall be deemed to be continuing and shall survive the closing. 17. isa in 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. 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. Page 4 of IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first above v ritten. TOWN OF FIRESTONE B Title: SELLER JAMES 0WEN AND CANDACE E."0WFN Page 5 of