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HomeMy WebLinkAbout22-69 Water Activity Enterprise Purchase & Sale Lee Keith & Mandi Brook Hagler 05-25-2022RESOLUTION NO. 22-69 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 LEE KEITH AND MANDI BROOK HAGLER WHEREAS, Lee Keith and Mandi Brook Hagler desu•es 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 terns 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 beriveen the Town of Firestone, acting by and through its Water Activity Enterprise ("Buyer"), and Lee Keith and Mandi Brook Hagler ("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 25th day of May, 2022. ATTEST: TOWN O IRESTO , COLORADO Drew Peterson, Mayor William P. Hayashi, Town Attorney PURCHASE AND SALE AGREEMENT (Water Rights) This Purchase and Sale Agreement ("Agreement") is entered into thisd,.T). day of MA , 2022 by and between LEE KEITH & MAND1 BROOK HAGLER ("Seller"), and the TOWN OF FIRESTONE 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 WHEREAS, Buyerdesires to acquire said water rights pursuant to the terms 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 owner of 80 shares of the New Coal Ridge Ditch Company represented by certificate no. Z�Z , which are hereinafter referred to as "Shares" or "Water Rights." 2. Purchase Price. The Purchase Price for the Water Rights and all rights appurtenant to the Water Rights shall be $1,150,000. 3. Agreement Dates. The following dates are defined for this Agreement: a. "Effective Date" of this Agreement shall be the date on which this Agreement has been mutually executed by the Parties. b. "Waiver Date" shall be the date on which the Seller notifies the Buyer that the New Coal Ridge Ditch Company has waived its right of first refusal to match the sale terms to acquire the Water Rights, which shall be within five (5) days of Seller's receipt of such waiver. c. "Closing Date" shall be the date on which the purchase and sale of the Water Rights will take place, which shall be a date 45 days after the Waiver Date. 4. Dry Up Covenant. 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 by the Water Rights. 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 Page 1 of 5 any revegetation of the property historically irrigated by the Water Rights to the extent that is necessary. S. Warran#v of Title. Seller warrants that title to the Water Rights will be conveyed to Buyer free and clear of all 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 Water Rights. 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, Seller shall execute and deliver a Special Warranty Deed for the Water Rights to Buyer at the date of closing. If title to the Water Rights is not merchantable and notice of the 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 up to 30 days following the Waiver Date ("Due Diligence Period") to terminate this Agreement if Buyer is dissatisfied with the Water Rights to be acquired hereunder for any reason. It shall be conclusively presumed that Buyer is satisfied with the Water Rights if Buyer fails to send written notice to Seller to the contrary on or before the expiration of the Due Diligence Period. If Buyer sends notice of its dissatisfaction with the Water Rights, Seller shall have 10 days following actual receipt of such notice of dissatisfaction to either to (1) give notice that Seller elects to cure some or all of the issues described in the notice, or (2) give notice that Seller elects to not cure such issues. If Seller elects not to cure all such issues Buyer shall have as its exclusive remedies, the right to terminate this Agreement, or to waive any issues Seller has elected not to ctue. 7. Ditch Com an Ri ht of First Refusal. The New Coal Ridge Ditch Carnpany holds a right of first refusal to match the terms of this Agreement to acquire the Water Rights. Seller is required to submit the terms of the Buyer's offer to the New Coal Ridge Ditch Company for their consideration. This Agreement shall be void if the New Coal Ridge Ditch Company exercises its right of first refusal and enters into a contract to acquire the Water Rights under the same terms as defined herein. 8. Assessments. All assessments Levied by the New Coal Ridge Ditcli Company for year 2022 shall be paid by Seller. Assessments far the year 2423 and future years shall be paid by Buyer. �. Transfer Fee. Any fees imposed by New Coal Ridge Ditch Company to complete the ' transfer of the Water Rights shall be paid by Buyer. Page 2 of 5 U. Delivery of Stock Certificate. Possession of the original certificate(s) evidencing ownership of the Water Rights shall be delivered to the Buyer at the time of closing together with properly executed and notarized assignments, Special Warranty Deed and any and all other documents necessary to effectuate the transfer of the Water Rights from Seller to Buyer. 11. C1051riu. The closing for the purchase and sale of the Water Rights will take place on or before the Closing Date defined herein. 12. Default. Tune 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 full force and effect, the Buyer shall have the right to an action for specific performance and damages. I3. Historical Use & TransFer. Seller, or Seller's agent, agrees to meet with Buyer, or Buyer's agent, within 30 days of the EffectiveDate for the purpose of providing Buyer with information concemitig the historic use of the Water Rights, which may include the following: a. Affidavits stating the marurer in which the Water Rights have been used by Seller or its predecessors in title, identifying which acreage has been historically irrigated with the Water Rights represented by the shares, the method of irrigation and what crops have historically been irrigated on the acreage with the Water Rights. b. Information showing the historical use of the Water Rights. c. Seller's cooperation and participation in goad faith with any requests necessary to complete any Catlin approval process of the New Coal Ridge Ditch Company or any court proceedings as may be required to change the use of the shares. 14. Notices. All notices and operational communications under this agreement shall be in writing except as otherwise provided far in this Agreement. AU 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 shall be delivered by US Mail to the following addresses unless otherwise agreed upon by the Parties: Buyer: Page � o� 5 Town of Firestone Attn: Julie Pasillas 9950 Park Ave. Firestone, CO 80504 SeIler: Lee Keith & Mandl Brook Hagler 9875 County Road 24 Fort Lupton, CO 80621-9723 15. inure Agreement. This Agreement represents the complete agreement between the Parties and no oral modification sha11 be recognized. Any amendment or additions shall be made in writing signed by both parties. 16. Survival of Closin . The representations, warranties and indemnities 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. 17. Binding Effect. This Agreement shall be binding upon and inure to the benefifi 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 S IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first above written BUYER: TOWN OF FIRESTONE By: F�RF Print: e 'NOsees and cf :o Titl( IL" �h co���P SELLER: LEE KEITH HAGLER Title: 66W4t ( MANDI BROOK HAGLER Pagc5of5