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HomeMy WebLinkAbout24-28 Approving Water Activity Enterprise Purchase and Sale Agreement with Cottonwood Land and Farms LLC 02-28-2024RESOLUTION NO.24-28 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 COTTONWOOD LAND AND FARMS LLC WHEREAS, Cottonwood Land and Farms, 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 Cottonwood Land and Farms, 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. INTRODUCED, READ, AND ADOPTED this 28th day of February 2024. TOWN OF S ONE, COLO Frank Jimenez, May P em Gonzalez, Interim Town Clerk APPRO D AS T William P. Hayashi, wn Attorney PURCHASE AND SALE AGREEMENT (Water Rights) -fL � This Purchase and Sale Agreement ("Agreement') is entered into thisf 3 dap off 2024 ("Effective Date') by and between the Cottonwood Land and Farms. LLC. a Colorado Limited Liability Compan} ("Seller''). and the Town of firestone. acting by and through its Water Activity Enterprise (" 13m er"). Seller and Buyer may he referred to individually as a "Party'' or collectiveh as "Parties:' RECITALS WIIEREAS. Seller owns and wishes to convey certain eater rights as described below to Buyer: and WHEREAS. Buyer desires to acquire said water rights pursuant in 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. Seller is the owner of two (2) Shares of the Godding Ditch Company represented by Share Certificate No. 120 (the "Godding Shares*'). The Godding Shares hac e been historical]\ used on the properq located at SW V, of Section I I. Township 2 North, Range 68 West of the 6"' P.M. in Wcld Count\. Seller wishes to sell all of these shares to the Buyer. 2, Historical Use R Transfer. As further consideration. Seller. or Seller's agent. agrees to provide Buyer an\ and all aftida\its. prior to the time ofclosing specified in Paragraph 10. stating the manner in which the Godding Shares ha\e been used by Seller. identifying which acreage has been historically irrigated with the Godding Shares. the method of irrigation and what crops have histuricalh been irrigated on the acreage \t ith the Godding Shares. Seller aurces to cooperate and participate in good faith with any request made by Buyer to Seller concerning am change in use approval process of the Godding Ditch Company or any related subsequent court proceedings as may be required to change the use of the shares. 3. Purchase Price. The Purchase Price tier the Godding Shares shall be two -hundred thousand dollars ($200.000.00). 4. Earnest Money. The day that the Buyer executes this Agreement. Buyer shall deliver and deposit with Land Title Guarantee Company camest 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 \% ill be conveyed free and clear of all liens. encumbrances. assessments. and leases of any kind. Seller agrees to warrant and lbrever defend the Buyer against all and ever\ person claiming any interest in the Godding Shares by and through Seller. -I his warrant\ shall survive the closing 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 Bu} er. Seller shall execute and deliver a Special Warranty Deed for the Godding shares to Bud cr at the date of closing. If the title to the Godding Shares is not merchantable and notice ofthe defect(s) is given by Buyer or 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. 6. Due Diligence. Buyer shall have 27 days follo\\ ing the 1 ticcti%e Date of this Agreement ("Due Diligence Period") to terminate this Agreement it Bu\ cr is dissatisfied with the Godding Shares to be acquired hereunder fix any reason. It shall be conclusively presumed that Buyer is satisfied with the Godding Shares il' Bud cr fails to send written notice to Seller to the contrarn on or before the expiration ofthe 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 (I ) 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 lu cure such issues. I I' Seller elects not to cure all such issues Buyer shall have as its exclusi\ e remedies. the right to terminate this Agreement or to waive any issues the Seller has elected not to cure. 7. Assessments. All assessments levied by the Godding Ditch C'ompam Ibr the year 2024 shall be prorated up to the date ofclosing ofthe transaction specified in Paragraph 10 and be paid by Seller. along with outstanding assessments from \ cars prior to 2024. if anN. The prorated assessment after closing ofthe transaction spectfied in Paragraph 10 for the year 2024 and for the year 2025 and future } cars shall be paid by the Buyer. 8. Transfer and EscrowPees. Any tees by Ciodding Ditch Company to complete the transfer ofthe Godding Shares shall be paid by the Buyer. Buyer shall pay escrow fees to Land Title Guarantee Company. 9. Delivery ofthe Stock Certificate. Possession of the original certificate evidencing ownership ofthe Godding Shares shall be delivered to the Bu.\ er at the time of closing Wgcther with properly executed and notarized assignments. Special Warranty Deed and am 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 on April 3. 2024 (the "Closing Date"). 11. Default. Time is of the essence herein and if any payment or any other condition thereof is not made. tendered or perrormed by either party. then this Agreement. at the option of the Party %kho is not in default. may be terminated and each Party shall be released from all obligations hereunder. 12. Contingencies• Delivery and Consumptive Use. Iltis 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 deices necessary liar the deli\ ery and use of this water being undamaged and in good working condition. Should any of 'these cited contingencies not be met beu\cen the f.Itectiee Date and the Closing Date. this Agreement may. at the option of the Buy el'. he declared null and void and each Party shall be released from all obligations hereunder. 13. Costs and Fxpenses. Each part\ 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 Conn (i.c._ electronic mail)) except as otherwise provided for in this Agreement. All such notices and Communications shall be deemed to hay e been duly given on the date of service. it (Icli\cred and served personally. or scncd \ia c-mail on the person to whom notice is given. All notices which are delivered by US Mail shall be addressed to the follo\\ ing address unless otherwise agreed upon b) the Parties: Buyer: Town of Firestone Attn: Julie Pasillas 9950 Park Ave. Firestone. CO 80504 Seller: Cottonwood Land and Fanns. LLC William McDowell PO Box 229. Boulder. CO 80306. US 15. Entire At reement. phis 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 b} both parties. 16. Survival of Closing. The representations. warranties and indemnities made by the parties to this Agreement and the co%enants and agreements to he performed or complied with by respective parties under this Agreement before the Closing Date shall be deemed to be continuing and shall sun ive the closing. 17. Binding ERcct. 1-his Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respccli%e 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 he in the County of Weld. IN WITNESS WFIEREOF, the Parties hereto have executed this Agreement on the date and year first above written. BUYER: TOWN OF FIRESTONE SELLER: ('OT'fONWOt 1) 1, AND AND FARMS. LLC Name. Aa� Title: 4951977 03/29/2024 01:10 PM Total Pages: 2 Rec Fee: $18.00 Carly Koppes - Clerk and Recorder, Weld County, CC Special Warranty Deed (Water Rights) This Deed, made on this 2--)day of March 2024 between Cottonwood Land and Farms, LLC, a Colorado limited liability company ("Grantor"), whose address is P.O. Box 229. Boulder, CO 80306, 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: Two (2) Shares of capital stock in the Godding Ditch Company ("Godding Shares") represented by share certificate no. 320; 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. above. IN WITNESS WHEREOF, the Grantor has executed this deed on the date set forth Cottonwood Land and Farms, LLC By�r ✓'/� Special Warranty Deed ' �y ( Water Rights) This Deed, made on this 27 day of March 2024 between Cottonwood Land and Farms, LLC, a Colorado limited liability company ("Grantor'), whose address is P.O. Box 229, Boulder, CO 80306, 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: Two (2) Shares of capital stock in the Godding Ditch Company ("Godding Shares") represented by share certificate no. 320; 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. above. IN WITNESS WHEREOF, the Grantor has executed this deed on the date set forth CA Z J ?1 D 2 2 Cottonwood Land and Farms, LLC BY' Title:—.-~ 16*✓ State of Colorado County of /.l%� �Ju-r j ss. The foregoing instrument was acknowledged before me on this day of March?? h2024 b} :��Q a„ac�- c��cxa l rtness my an an o Al sea My Commission expires: -// LORI LEINGANG NOTARY PUBLIC STATE OF COLORADO NOTARY ID 10924008106 My Commission Expires: March 11, 2025