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Home My WebLink About24-74 Water Enterprise Approving a Purchase and Sale Agreement 07-24-2024I 'a 6T11K1JK1X1Kr111, vim R DIC411101111 [110911 a VON I a 11111.11 IN 1 II = V VDI Willi "Ara WOW-10 I k1lawlim- Im, 1406111 IOWA V APPRO 7 111 G A F'Ji RUAANE AIALF SALE AGAEUTIE11T VITA AIT11J. FEILI11 G A GUY W. GRIGSBY WHEREAS, Amy J. Feiling and Guy W. Grigsby 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. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THI TOWN OF FIRESTONE, COLORADO: 1, The Purchase and Sale Agreement ("Agreement") between the Town of Firestone, acting by and through its Water Activity Enterprise ("Buyer"), and Amy J. Feiling and Guy W. Grigsby ("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 New Consolidated Lower Boulder Reservoir and Ditch Company, filing an application in the Division One Water Court and prosecuting the same to completion. M 0 Carranco, Deputy Town Clerk RM: IrSTM1 "s Jr, 111" Iii,iii,li , ii liiii� Irm""T-01313 1013 (Water Rights) This Purchase and Sale Agreement ("Agreement") by and between the Amy J. Feiling and Guy W. Grigsby ("Sellers"), and the Town of Firestone, acting by and through its Water Activity Enterprise ("Buyer"). Sellers and Buyer may be referred to individually as a "Party" or collectively as "Parties." 11,4010JIV-1 1 WHEREAS, Sellers own and wish 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: Description of Water Rights. The Sellers are the owners five (5) shares of Common Stock in the New Consolidated Lower Boulder Reservoir & Ditch Company represented by Share Certificate No. 135 (the "Ditch Shares"). The Ditch Shares have been historically used on the property located in the NW V4of Section 33, Township 2N, Range 68W of the 6'h P.M. (also known as 6870 WCR 5) in Weld County, Colorado (the "Property). Seller hereby agrees to sell four of the five Ditch Shares to Buyer pursuant to the terms of this Agreement. 2. Historical Use & Transfer. As further consideration, Sellers, or Sellers' agent agrees to provide Buyer any and all due diligence materials, on or prior to the date of approval by the Board of the Town of Firestone ("Effective Date'), stating the manner in which the Ditch Shares have been used by Sellers, identifying which acreage has been historically irrigated with the Ditch Shares, the method of irrigation and what crops have historically been irrigated on the acreage with the Ditch Shares. Sellers, or Sellers' agent agrees to cooperate and participate in good faith with any request necessary to complete any Catlin approval process of the New Consolidated Lower Boulder Reservoir & Ditch Company or any court proceedings as may be required to change the use of the Ditch Shares. 3. Purchase Price. The Purchase Price for four of the five Ditch Shares shall be one hundred and ten thousand dollars ($110,000.00). 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) ("Earnest Money"), which shall become nonrefundable upon completion of the Due Diligence Period as defined in Paragraph 7 of this Agreement. The Earnest Money shall be applied to the purchase price at closing. 5. Dry -Up Covenant. Attached as Exhibit A to this Agreement is the form of a dryup covenant acceptable to Buyer (the "Dry -Up Covenant"),, The Dry -up Covenant includes a permanent restriction of irrigation on the Property with water from the New Consolidated Lower Boulder Reservoir & Ditch Company except it allows continued irrigation of a parcel of approximately 6 acres described in the Dry -Up Covenant. Sellers shall record the Dry -Up Covenant prior to any sale of the Property if that sale occurs prior to Closing of this transaction or, if the Property is not sold prior to Closing of this transaction, the Dry -Up Covenant shall be recorded prior to Closing ofthis transaction. At Closing, Sellers shall assign all the right to enforce the Dry -Up Covenant and all benefits of the Dry -Up Covenant to Buyer. Sellersmarrant that any and all liens or encumbrances on property are subordinate to the Dry -up Covenant and Sellers shall be responsible for acquiring all necessary agreements to ensure any liens or encumbrances are subordinate to the Dry -up Covenant. Sellers and/or Sellers successors and assigns shall be responsible for any revegetation of the property historically irrigated by the Water Rights and ensure the Property is kept free of any noxious weeds as defined by C.R.S. §35-5.5-101, et seq. 6. Warranty and Title. Sellers warrant that the title to the Ditch Shares will be conveyed free and clear of all liens, encumbrances, assessments, and leases of any kind. Sellers agree to warrant and forever defend the Buyer against all and every person claiming any interest in the Ditch Shares by and through Sellers. 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, Sellers shall execute and deliver a Special Warranty Deed and Stock Assignment for the Ditch Shares to Buyer at the date of closing. 7. Due Diligence. Buyer shall have 46 days following the deposit of the Earnest Money ('Due Diligence Period") to terminate this Agreement if Buyer is dissatisfied with the Ditch 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 Ditch Shares if Buyer fails to send written notice to Sellers to the contrary on or before the expiration of the Due Diligence Period. 8. Assessments. All assessments levied by the New Consolidated Lower Boulder Reservoir & Ditch Company for the year 2024 and prior years shall be paid by Sellers. Assessments for the year 2025 and future years shall be paid by the Buyer. 9. Transfer and Escrow Fees.. Any fees by New Consolidated Lower Boulder Reservoir& Ditch Company to complete the transfer of the Ditch Shares shall be paid by the Buyer. Sellers and Buyer agree to equally pay escrow fees to Land Title Guarantee Company. 10. Delivery of the Stock Certificate. Possession of the original certificate evidencing ownership of the Ditch Shares shall be delivered to the Buyer at the time of closing together with properly executed and notarized assignments, Special Warranty Deed, Stock Assignment, and any and all other documents necessary to effectuate the transfer of the Ditch Shares from Sellers to Buyer. 11. Closing, The closing of the purchase and sale of the Ditch Shares ("Closing")" will take place on or before September 20, 2024, subject to the New Consolidated Lower Boulder Reservoir & Ditch Company's action to waive its right of first refusal occurring prior to this date. In the event the New Consolidated Lower Boulder Reservoir & Ditch Company exercises its right of first refusal to purchase the Ditch Shares, the Agreement shall automatically terminate, 12. 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. 13, 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. This contract shall be contingent upon a waiver by the New Consolidated Lower Boulder Reservoir & Ditch Company of the right of first refusal for the Ditch Shares. 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 Ex penses. 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 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 9950 Park Ave. Firestone, CO 80504 Guy W Grigsby 6,870 WCR 5 Weld County, CO 80516 Amy J. Feiling 6870 WCR 5 Weld County, CO 80516 16. 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. 17. 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. 18. 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. 19. Counterparts. The Parties may execute this Agreement in counterparts which, when taken together, shall constitute one agreement. 20. 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. ,% i FIEN I �'!, 1� ININI -Imill lig iiiiii�ill�ll TOWN OF FIRESTO By: Title: A 4982271 09/13/2024 10:35 AM Total Pages: 3 Rec Fee: $23.00 Carly Koppes - Clerk and Recorder, Weld County, CO Special Warranty Deed (Water Rights) This Deed, made on this 5 day of 2024between Amy 1IFIelingand Guy W. Grigsby ("Grantors"} and the Town of Firesto e Water Ac&ity Enterprise ("Grantee"), whose address is 9950 Park Ave., Firestone, -CO 80504, County of Weld, and State of Colorado. WrMSSETH, that the Grantors, for and in consideration of the sumof 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. Four (4) Shares of Common Stock in the New Consolidated Lower Boulder Reservoir and Ditch Company ("Ditch Shares") represented by share certificate no. 135; and TOGETHER will, all and singular the rights associated with ownership of the above referenced shares in and to the New Consolidated Lower Boulder Reservoir and 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, tide, interest, claim and demand whatsoever of the Grantors, either in law or equity, of in and to the above bargained premises, with the hereAtaments and appurtenances; TO HAVE AND TO HOLD the said water rights above bargained and described unto the Grantee, its successors and assigns forever. The Grantors for themselves, their heirs and personal representatives or successors, do covenant and agree that they 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 Grantors. IN WrMSS WHEREOF, the Grantors have executed this deed on the date set forth 01A 0 Amy Oii Deedl made on iftis �� doy o j1014 betiiiveeti Amy 1 FWing and Vl� Gripby (4�0�7) aW the !)I" otl lr:estoe *Ater AtO4 tnteMrise m4oge oid� i��0050 Park tkga� CO 80504of mid State of �Lolqra&. III ll�p�pllqll igplq� TO"THER will a and sihOar tht rights ass6eiAted WM 4wner�hip 6f the above TO HAVE AND TO HOLD the said water rights above bargained and described unto &&hd the �boVe bat9aified WaW ti� in quid 4W poIle po��sioh oforoftie, itg heirs, successors and as�sips, against all and every person or persons elauning ihe whole or any p4d fhe� b% troto or under flip Grantors. ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTYOF SCA,Vj Mcgo On 54h 2024, before me, EdqtkrdV Leqj in Notary Public, personally appeared Guy W. Grigsby, who proved to me on the basis of satisfactory evidence -to be the person whose name -is subscribed -to the within instrument and acknowledged to me that he executed the same in his authorized capacity; and that by his signature on the instrument the person, orthe entity upon behalf ofwhich the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. or r EDUARDO LEON Notary Public - California A San Diego County Commission # 2407283 My Comm. Expires Jun 7, 2026 UNA A notary public or other officer completing this certificate verifies only the identity of the individual whosigned. the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document On Sq A. 54% 2024, before me, F—d%Atkt dZ I.eo A Notary Public, personally appeared Amy I Fiefing, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature .on the instrument the person, .or the entity upon behalfof which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. it I. 14 - I DUARDO LEON s.,aryPubIIc - California Sari Diego County Commission # 2407283 14Y Comm,Expires Jun 7, �Zj all Notary -Public 4982270 09/13/2024 10:35 AM Total Pages: 7 Rec Fee: $43.00 Cady Koppes - Clerk and Recorder, Weld County, CO III 11,41dej;&IKIIIII 010VU I This Dry -Up Covenant CCovenant") is made and entered into on this 5- day of 2024, by Amy I Fieling and Guy W Grigsby ("Property Owners"). The term Prop* Owners shall include any successors and assigns; of the Property Owners. WHEREAS, Property Owners own the property located in the NW V4of Section 33, Township 2N, Range 68W of the Vh P.K (Parcel No. 131333201004) in Weld County, Colorado (the "Property") that was historically irrigated by five shares of Common Stock in the New Consolidated Lower Boulder Reservoir and Ditch Company; WHEREAS, the Property owners intend to remove four (4) of the five (5) shares of Common Stock in the New Consolidated Lower Boulder Reservoir & Ditch Company represented by Share Certificate No. 135 (the four (4) of the five (5) shares are referred to as the "Ditch Shares") from the Property; WHEREAS, Property Owners desire to record a perpetual dry -up covenant requiring a portion of the property described in the attached Emit A (the "Dry -Up Property") be removed from irrigation, except as otherwise provided in this Covenant, and WHEREAS, the remainder of the Property not described in Exhibit A may continue to be irrigated by water from the New Consolidated Lower Boulder Reservoir & Ditch Company including the one share of Common Stock in the New Consolidated Lower Boulder Reservoir & Ditch Company; and WHEREAS, the Dry Up Property shall. be permanently removed from irrigation supplied by the New ConsohdatedLowerBoulderReservoir& DitchCompany subjeetthe exceptions listed in Section 4 below; and WHEREAS, the Property Owners intend to sell the Ditch Shares to the Town of Firestone ("Firestone?'); and WHEREAS, Firestone intends to submit a Water Court application and/or Substitute Water Supply Plan approval request to change the beneficial use of the Ditch 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, Property Owners execute this Covenant to require Dry -Up Property be permanently removed from irrigation, except as provided herein, to ensure the consumptive use of irrigation water on the DryabLYroperty ceases for the benefit of Firestone's change in use of the Ditch Shares. NOW TBIRUORE, in consideration ofthe above fact and the covenants set forth below, Property Owners covenant the following: E-RECORM D WHEREAS� the tvin4ffid6 be krigiiW by waWr fiont the New C6nsWWAW Lowd Boulder Reservoir & W6 Compaq ffid)*q the *ue �hare *f Cmnm Stod in the N�w CbmolUAW Lower B"ia Reservoir Diteh CoftVany; ud W"O�EAS, the Dry-o� PrqW� shall be pqmuen* removed ftom OgM* su*W • Ditch Shares. 1. Property Owners covenant for themselves and all future owners of the Dry Up Property that hereafter the Dry -Up Property shall be dried up and shall not be irrigated except as otherwise provided for under this Covenant The purpose of this covenant is to ensure that the owners ofthe Ditch Shares can claim the full amount of historic consumptive use credit associated with the use of the Ditch Shares on the Dry -Up Property. Property Owners further warrant and represent that this Covenant shall entitle the owner ofthe Ditch Shares to the first and prior right to claim credit for the dry -up or non -irrigation of the Dry -Up Property. 2. The foregoing covenant is intended to be a real covenant burdening the Dry -Up Property for the benefit ofthe Ditch Shares, running with the Dry -Up Property and the Ditch.Shares alike, inuring to the benefit of the owners(s) the Ditch Shares, and to the limitation of Property Owners and future owners of the Dry -Up Property. 3. Property Owners and future owners ofthe Dry -Up Property shall take any action necessary to eliminate any consumptive use of water for irrigation purposes on the Dry Up 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 Ditch Shares, and except as hereinafter may be specifically allowed, the Dry Up 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. If all or part of the Dry -Up Property is not developed, then, Property Owners and any future owners of the Dry Up Property shall plant and sustain vegetation cover of the type permitted in this paragraph on the Dry Up Property, which will be watered solely via natural precipitation and/or the irrigation sources described in paragraph 4 below, including by way of example and not limitation: a dryland grass cover or dryland agricultural crops. Property Owners and any future owners of the Dry -Up Property shall comply with the provisions of the Colorado Noxious Weed Act, C.R.S. § 35-5.5-101, et seq., including protecting the Dry -Up Property from noxious weeds. 4. Unless otherwise required by any decree ofthe Water Court, this covenant shall not prohibit Property Owners and any future owners of the Dry -Up Property from: a) irrigating the Dry - Up Property with water rights which may in the future be transferred to Dry -Up Property and approved for such use through an appropriate Water Court proceeding; b) irrigating the Dry -Up Property with water which is not tributary to the South Platte River or its tributaries including not-nontributary water that is duly augmented-, c) irrigating the Dry -Up Property with treated water supplied by a municipality, water district or the treated water provider and d) irrigating the Dry -Up Property with water from wells; provided all such wells are authorized to pump pursuant to a Water Court approved plan for augmentation and only to the extent those structures(s) are fully augmented as required under the plan authorizing them to pump. 't 5. The terms and provisions of this covenant shaft not expire and shall be perpetual unless specifically released in writing by any owner of the Ditch Shares. Guy W. Grigsby ACKNOWLEDGE WENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfiilness, accuracy, or validity of that document On SeC4. E4h , 2024, before me, EdatkrtLo. . LeCIFA I Notary Public, personally appeared Amy I Fieling, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. EDUARDO LEON Notary Public - Ca,,,.,,., - San Diego County Commission # 2407203 my Comm. Expires Jun 7, 2026 W 4W W 45 WX MI Notary Public V * A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document COUNTY OF ytkn On So A - ah 2024, before me, E dkl^ (AG L Pc, yj Notary Public, personally appeared Guy W. Grigsby, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. a ro T. rag IWT W'' EDUARDO LEON Notary Public - California San Diego County Commission # 2407283 *my Comm, Expires Jun 7,1026 # . .. ... .. ...... 'o EHRHART IL-AINI,") SURVEYING 11111 1 N imiffm MI I oFmet 303V8k-3M * P.O. Box M - Ede, Cdorado 80516 wwwd�na&ts�� - **WorW616-600� • k I iI w 000 o(k 528.74! PARCEL I POINT OF BEGINNING - w '10 PARCEL 1 w . .—Z. %.w ;r 11101 �ZA 0;0 an --1OINT OF COMMENCEMENT ARCR S 1 & 2 fit 200$ 20, 411 EHRHART LAND SURVEYING P.O. Box 930 e Erie, Colorado 80516 (303) 828-3340 - www.cotoradols.com PARCEL EXHIBIT SITUATED IN THE NW 1/4 OF SEC. 33, T2N, R68W OF THE 6TH P.M. WELD COUNTY, COLORADO DATE: SCALE JOB NO.: DRAWN: CHECKED: 7/5/24 1 1`--200` S205025 I OLB I JPE