HomeMy WebLinkAbout24-38 Approving Purchase & Sale Agreement Dillon Family, LLC. Water Activity Enterprise 04-24-2024RESOLUTION NO. 24-38
A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF
FIRESTONE, CC LC ACTING BY AND THROUGH ITS WATER
ACTIVITY ENTERPRISE APPROVING A PURCHASE AND SALE
AGREEMENT WITH DILLON FAMILY LLC
Wf IEREAS, Dillon Family, LLC desires to convey certain water rights which the Town of
Firestone ("ToNvii"), acting by and through its Water Activity Enterprise, desires to purchase,
suhject to the terms and conditions set forth in a Purchase and Sale Agreement.
NOW, TnEREFORE, BE IT RESOLVED BYTHE BOARD OF'FRUSITS OF TICE
TOWN OF FIRf,-STONE, COLORADO:
1. The Purchase and Sale Agreement ("Agreement") between the Town of Firestone,
acting by and through its Water Activity Enterprise ("Buyer"), and Dillon Family, 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
11irther 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 neccssary or required with closing.
INTRODUCED, READ, AND ADOPTED this 24th day of April, 2024.
TOWN OF FlRESTONf,,, COLORADO
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ATTEST:
yMiaCa:t�inzalez, InterimFown —Clerk-
PURCHASE AND -SALE AGREEMENT
(Water, Rights)
This Purchase and Sale Agreement ("Agreement") is entered into this 11day of -ZAL"—X
9— -iibili
am Colorado Liability
2024 C'Effective Date) by and between the Dillon F ily, 1I!1Cj a Colo do Limited L
Company (°'Sellet"), and the Town of Firestone, acting by and through its Water Activity
i '
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
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. Seller is the owner of three (3), Shares of the Godding,Ditch
Company represented by Share Certificate No. 30T(the "Godding Shares"). The
Godding Shares have been historically used on the property located at Parcel Account
No. R4712207 in Weld County, Colorado. Seller wishes to sell the Godding Shares. to
2. ,Historical Use & Transfer. As further consideration, Seller, or Seller's agent, agrees to
provide Buyer any and all affidavits stating the manner• in which the Godding Shares
jA
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 oranycourt proceedings as may be
required to change the use of the shares.
1 Purchase Price. The Purchase Price for the Godding Shares shall be three -hundred
thousand dollars ($300,000.00).
4. Earnest MonM. The day that the Buyer executes this Agreement, Buyei 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 7 of this Agreement.
5. DmUKovcnant. Seller shall provide Buyer, at'least 10 days before the Closing Date, an
executed dry -up covenant in a form acceptable to'Buyer, for the lands historically irrigated
the Witta RigW Tbe B40 Aall provitle in the dr«OP covenant, a pdrmane
Inal ully um
covenant and Seller Aall be tespotiMble fi�r acquiting Wl neccss� qrremcbts to t�lis
any liens or ine s4bordinatt to ft dryO OveilAnt. Sellet "I
to the xtent that is necessary,
"ggWgnt:All"s »ents 164ed by thd Goddiog M6 COutpuy f4t yea 2024 and
prior years Aall be paid by Bityet Assessraents fbt the )tAr 105 and f4ture yean "I
be p4id by t1te Buyer,
=1111"Ol ull I .« 2 ?mmiall§ 2um Im-my-ImImmWKI
any and all other documents necessary to effectuate the transfer of the Godding Shares
from Seller to Buyer.
I I. Closing,. The closing of the purchase and sale of the Godding Shares will take place on
or before May 31, 2024.
12. Re_fault. 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 Parry who is not in default, may be terminated in which case the non -defaulting party
may recover such damages as may be proper.
13. Confineencies. Belie ry 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.
14. Costs and Expenses. Each party shall pay their own consulting, attorney, and brokerage
fees and costs incurred as part of this transaction.
15. 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
Thorn 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:
Dillon Family, LLC
Margaret C. Dillon & Ryan Dillon
138 South Downing St,
Denver, CO 80209
t
t EnfimAgNogg This Agreement ent represents the complete agreement ent between the
parties and no oral modification shall be recognized, Any'amendment, oradditions shall
be made in writing and signed by both parties
17. Survival o-Closin : The representations, warranties and indemnities made by the Parties
to ails contract and the covenants and agreements to e performed or complied with y
respective parties under this contract before the closing date shall be deemed to be
continuing and shall survive the c 0sm&
18. Rin�� This Agreement AtJI be binding upon And low to 'he bencfr of the
Parties hereto aud their respective Wrs, administrators, and assigns.
19. eemefft sluill be governed and its terms MlStTued under
'uri will venne shall be In tht County of
the
IN WITNESS WIEIRg the Parties hereto have executed this Agreement on the date and year
first above written.
BUYER:
SELLER:
Title:
4978551 08/26/2024 11.31 AM
Total Pages: 2 Rec Fee: $18.00
Carly Koppes - Clerk and Recorder, Weld County, CO
Special Warranty Deed
(Water Rights)
This Deed, made on this ' day of r" _ 2024 between Dillon Family, LLC, a
Colorado limited liability company ("Grantor") and the Town of Firestone Water Activity
Enterprise ("Grantee"), whose address is 9950 Park Ave., Firestone, CO 80504, County of
Weld, and State of Colorado.
WITNESSETH, that the Grantor, for and in consideration of the sum of Ten Dollars
($10.00) and Other Good and Valuable Consideration in hand paid, the receipt and sufficiency of
which is hereby acknowledged, has granted, bargained, sold and conveyed, and by these presents
does grant, bargain, sell, convey and confirm unto the Grantee, its successors and assigns
forever, the water and water rights, described as follows:
Three (3) Shares of capital stock in the Godding Ditch Company ("Godding Shares")
represented by share certificate no. ; and
TOGETHER will all and singular the rights associated with ownership of the above
referenced shares in and to the Godding Ditch Company and all associated rights in and to
ditches, easements, reservoirs and structures associated with delivery of the water and water
rights, all hereditaments and appurtenances thereunto belonging, or in any way appertaining, the
reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the
estate, right, title, interest, claim and demand whatsoever of the Grantor, either in law or equity,
of, in and to the above bargained premises, with the hereditaments and appurtenances;
TO HAVE AND TO HOLD the said water rights above bargained and described unto
the Grantee, its successors and assigns forever. The Grantor for itself, its heirs and personal
representatives or successors, does covenant and agree that it shall warrant and forever defend
the above bargained water rights in quiet and peaceable possession of Grantee, its heirs,
successors and assigns, against all and every person or persons claiming the whole or any part
thereof, by, through or under the Grantor.
IN WITNESS WHEREOF, the Grantor has executed this deed on the date set forth
above.
0)5ilk 1
0
Dillon Family, LLC
Title: `i ; c r.
4978551 08/26/2024 11.31 AM
Page 2 of 2
State of Colorado
My Commission expires:
this day of ,
`Z 71 2024 by
P
'iA AHYIU SAPU R.
N106TAR1t PUBLIC
SSTATE OF COLORWO
NOTARY ID 20224047=
W CO Aio�ISSM � g
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Notary Public
4978550 08/26/2024 11.31 AM
Total Pages: 4 Rec Fee: $28.00
Carly Koppes - Clerk and Recorder, Weld County, CO
DRY -UP COVENANT
This Dry -Up Covenant ("Covenant") is made and entered into on this "ay of
4ice` 2024, by and between Dillon Family, LLC ("Grantor") in favor of the Town of
Fstone acting by and through its Water Activity Enterprise ("Firestone").
RECITALS 1 1
WHEREAS, Firestone intends to purchase the Water Rights described in that certain
Purchase and Sale Agreement dated March 11, 2024, being three (3) Shares of the Godding
Ditch Company represented by Stock Certificate No.: K ("Shares"), -
WHEREAS, Grantor is the owner of approximately 1.69 acres of the property located in
the S '/z of the SE 1/4 of Section 15, Township 2 North, Range 68 West of the 6`h P.M., Weld
County, which is a portion of the property generally described as 3725 Bella Rosa Pkwy,
Frederick, CO 80504 and which was historically irrigated by the Shares as depicted in Exhibit 1
attached hereto (hereinafter the "Property");
WHEREAS, Grantor desires to impose a perpetual Covenant on the Property so that the
Shares described above are forever separated from the Property and so that the Shares may be
used by Firestone for other purposes, including municipal and augmentation purposes;
WHEREAS, Firestone intends to submit a Water Court application and/or Substitute
Water Supply Plan approval request to change the beneficial use of the Shares to include
municipal uses and other beneficial uses in such locations as it may determine to be in its best
interest as provided by Colorado law, and
WHEREAS, Grantor executes this Covenant to dry -up the Property to ensure the historic
consumptive use of water on the Property attributable to the Shares ceases.
NOW THEREFORE, in consideration of the above facts and the covenants set forth
below, and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
COVENANTS
Grantor covenants that hereafter the Property shall be dried up and shall not be irrigated
by the Shares. The purpose of this Covenant is to ensure that the consumptive use credit
of the Shares will not be impaired in any way. Grantor further warrants and represents
that this Covenant shall entitle Firestone to the first and prior right claim credit for the
dry -up or non -irrigation of the Property, and agrees to provide Firestone with all
assistance Firestone may reasonably require in regard to the above -referenced change of
the Water Rights, including but not limited to, the provision of testimony before the
Water Court in any proceeding involving change of use.
2. The foregoing covenant is intended to be a real covenant burdening the Property for the
benefit of the Shares, running with the Property and the Shares alike, inuring to the
4978550 08/26/2024 11.31 AM
Page 2 of 4
benefit of Firestone and Firestone's heirs, successors, and assigns, and to the detriment of
Grantor's heirs, successors, and assigns.
3. Grantor warrants that title to the Property is free and clear of all liens, assessments,
leases, and encumbrances of any kind or shall be specifically subordinated to this
Covenant.
4. Grantor shall take any action necessary to eliminate any consumptive use of water for
irrigation purposes on the Property as may be determined and/or required by the Water
Court or other court or tribunal of competent jurisdiction in the judgement and decree
entered in any case involving the change or exchange of any of the Shares, and except as
hereinafter may be specifically allowed, the Property shall no longer be irrigated. This
may include the elimination of crops or other vegetation which consume water via
subirrigation, if any, which may be present on the Property.
5. Grantor agrees to comply with all limits on irrigation of the Property which are required
by the Water Court in any decree involving the Shares. Unless otherwise required by any
Court Decree, this Covenant shall no prohibit Grantor, or their successors and assigns
from: a) irrigating the Property with water rights which may in the future be transferred
to such Property and approved for such use through an appropriate Water Court
proceeding; b) irrigating the Property with water which is not tributary to the South Platte
River or tis tributaries, including not-nontributary water that is duly augmented; c)
irrigating the Property with treated water supplied by a municipality or a water district; d)
irrigating the Property with water supplied by wells; provided all such wells are
authorized to pump pursuant to a Water court approved plan for augmentation and only to
the extent those structure(s) are fully augmented as required under the plan authorizing
them to pump. The Property will not be planted with crops or vegetation which are
capable of extending roots into the underlying groundwater.
6. Grantor agrees that they shall cease irrigation of the Property except as permitted under
Paragraph 5 above. If all or part of the Property is not developed, then, at Grantor's sole
cost and expense, Grantor shall plant and sustain a vegetative cover of the type permitted
under Paragraph 5 on the Property, which will be watered by such permitted sources in
Paragraph 5 or natural precipitation. Grantor shall comply with provisions of the
Colorado Noxious Weeds Act, C.R.S. §35-5.5-101, et seq.
7. Grantor hereby conveys and transfers to Firestone a non-exclusive, perpetual easement
for the purpose of access to and over the Property as may be necessary to take actions to
effectuate and enforce this Covenant, including, but not limited to, the conducting of any
monitoring or testing activity that may be required by the State Engineer, the Water Court
or by any court or tribunal of competent jurisdiction. If Grantor should fail or refuse to
comply with the revegetation terms required in Paragraph 6 above, then Firestone shall
4978550 08/26/2024 11.31 AM
Page 3 of 4
have the right to come upon the land and take all measures to accomplish the required
revegetation, and Grantor shall reimburse Firestone for the costs incurred by Firestone.
8. The terms and provisions of this Covenant shall not expire and shall be perpetual unless
specifically released in writing by Firestone or any successor in interest to the Shares.
GRANT.
By:
Title - ,� -... ,..
Dillon Family, LLC
STATE OF COLORADO
) ss.
COUNTY OF ___ ,)CC )
The fo egoing instrument was ackno ledged before me on this `Z-L day of 5> f2024
's, —'A
P
WITNESS my hand nd official seal
My commission expires
WAHYJJ SAPUTRA
r PUBLIC
N!Jfi�OF
l'F �A 424047626
AYcQ4ul 10N PIRES 12-2
1-2028 l
4978550 08/26/2024 11.31 AM
Page 4 of 4
EXHIBIT 1