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HomeMy WebLinkAbout25-27 Water Activity Enterprise Purchase and Sale Agreement Cheryl Whiston 02-26-2025PURCHASE AND SALE AGREEMENT (Water Rights) This Purchase and Sale Agreement ("Agreement") by and between the Cheryl Whist"Ilk "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 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. The Seller is the owner of twenty-three (23) shares of the New Coal Ridge Ditch Company represented by Share Certificate No. 103 (the "Ditch Shares"). The Ditch Shares have been historically used on the property located in the W'/2 of the NE '/4 of Section 4, Township 2N, Range 67W of the 6t" P.M. in Weld County, Colorado (the "Property"). The Parcel No. in Weld County is 131104100005. 2. Historical Use &Transfer. As further consideration, Seller, or Seller's 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 Seller, 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. 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 New Coal Ridge 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 twenty-three (23) Ditch Shares shall be three hundred twenty-two thousand dollars ($322,000.00)a 4. Warranty and Title. The Seller warrants that the title to the Ditch Shares will be conveyed 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 Ditch Shares by and through Seller. 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 the Buyer, Seller shall execute and deliver a Special Warranty Deed and Stock Assignment for the Ditch Shares to Buyer at the date of 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 Coal Ridge Ditch Company. Seller warrants that any and all liens or encumbrances on the Property are subordinate to the 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 and/or Seller 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. Due Dili eg nce. Buyer shall have 46 days following the Effective Date of this Agreement ("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 Seller to the contrary on or before the expiration of the Due Diligence Period. 7. Assessments. All assessments levied by the New Coal Ridge Ditch Company for the year 2025 and prior years shall be paid by Seller. Assessments for the year 2026 and future years shall be paid by the Buyer. 8. Transfer and Escrow Fees. Any fees by New Coal Ridge Ditch Company to complete the transfer of the Ditch Shares shall be paid by the Buyer. 9. 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 Dry -Up Covenant, Special Warranty Deed, Stock Assignment, and any and all other documents necessary to effectuate the transfer of the Ditch Shares from Seller to Buyer. 10. Closin .The closing of the purchase and sale of the Ditch Shares ("Closing") will take place on or before April 30, 2025, provided the New Coal Ridge Ditch Company has waived their Right of First Refusal by then. If the New Coal Ridge Ditch Company has not yet waived their Right of First Refusal by April 30, 2025, the closing of the purchase and sale of the Ditch Shares will take place on the earlier of either the date of waiver of the Right of First Refusal, or May 27, 2025. 11. 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. 12. Contingencies; Delivery 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 date of this contract and the date of Closing, this Agreement may, at the option of the Buyer, be declared null and void. 13. Costs and Expenses. Each at 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 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 Seller: Cheryl Whiston 8638 County Road 26 Fort Lupton, CO 80621 IICI' I iI'co)lo 15. 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. 16. Survival of Closing. The representations, warranties and indemnities made by the Parties to this Agreements 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. 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. 18. Counterparts. The Parties may execute this Agreement in counterparts which, when taken together, shall constitute one agreement. 19. 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. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement by the Effective Date. BiJYER: TOWN OF FIRESTONE Q Uk 0 iZ Title: SELLER: CHERYL WHISTON This Dry -Up Covenant 2025, by Chery DRY -UP COVENANT ("Covenant") is made and entered into on this day of 1 Whiston ("Property Owner"). The term Property Owner shall include any successors and assigns of the Property Owner. RECITALS WHEREAS, Property Owner owns the property located in the W '/2 NE '/4 of Section 4, Township 2N, Range 67W of the 01' P.M. in Weld County, Colorado (the "Property"), Parcel No. 131104100005, that was historically irrigated by twenty-three (23) shares of New Coal Ridge Ditch Company; WHEREAS, the Property Owner intends to sell twenty-three (23) shares of New Coal Ridge Ditch Company represented by Share Certificate No. 103 are referred to as the "Ditch Shares"; WHEREAS, Property Owner desires to record a perpetual dry -up covenant requiring the property described in the attached Exhibit A (the "Dry -Up Property") be removed from irrigation, except as otherwise provided in this Covenant; WHEREAS, the Dry -Up Property shall be permanently removed from irrigation supplied by the New Coal Ridge Ditch Company subject the exceptions listed in Section 5 below; WHEREAS, Property Owner intends to sell the Ditch Shares to the Town of Firestone ("Town"), and the Town 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 Owner executes this Covenant to remove the Dry -Up Property from irrigation and ensure the consumptive use of irrigation water on the Dry -Up Property ceases, subject to the provisions of this Covenant. NOW THEREFORE, in consideration of the above facts and the covenants set forth below, the Property Owner covenants the following: COVENANTS 1. Property Owner covenants for themselves and all future owners of the Dry -Up Property that the Dry -Up Property shall be dried up and shall not be irrigated following the signing date of this Agreement. The purpose of this covenant is to ensure that the Town can claim the full amount of historic consumptive use credit associated with the use of the Ditch Shares on the Dry -Up Property. Property Owner further warrants and represent that this Covenant shall entitle the owner(s) of the 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 of the Ditch Shares, running with the Dry -Up Property and the Ditch Shares alike, inuring to the benefit of the owner(s) of the Ditch Shares, and to the limitation of Property Owner and future owners of the Dry -Up Property, 3. Property Owner and future owners of the 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 after the termination of the lease of the Ditch Shares to Property Owner. 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 Owner 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, including by way of example and not limitation: a dryland grass cover or dryland agricultural crops. Property Owner 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 of the Water Court, this covenant shall not prohibit the Property Owner 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. 5. The terms and provisions of this covenant shall not expire and shall be perpetual unless specifically released in writing by any owner of the Ditch Shares. Cheryl Whiston STATE OF COLORADO, COUNTY OF WELD The foregoing instrument was acknowledged before me on this day of 2025 by WITNESS my hand and official seal My commission expires: Notary Public Exhibit A Legal Description A tract of and located In the Northeast One -Quarter (NE '/a) of Section Four (4)5 Township Two (2) North, Range Sixty -Seven (67) West of the 6t" Principal Meridian, Weld County, Colorado being more particularly described as: Considering the north line of the Northeast One -Quarter (NE '/4) of said Section Four (4) to bear North 88°57'37" West, and all bearings contained herein being relative hereto: Beginning at the North One -Quarter (N '/4) Corner of said Section Four (4) thence along the north line of the Northeast One -Quarter (NE '/4) of said Section Four, South 88°57'37" East, 1564.91 feet; thence leaving the north line of the Northeast One -Quarter (NE '/4) of said Section Four (4), South 01 °02'31" West, 198.00 feet; thence, South 00°00'00" East, 1599.03 feet; thence, North 89030137" West, 176.01 feet; thence, South 00000'00" East, 1005.47 feet to a point on the south line of the Northeast One -Quarter (NE '/4) of said Section Four (4); thence along the south line of the Northeast One -Quarter (NE '/4) of said Section Four (4), North 89°30'37" West, 1387.00 feet to the Center One -Quarter (C '/4) Corner of said Section Four (4); thence, North 00'02' 19" East, 2817.51 feet to the Point of Beginning. The above -described tract contains 96.71 acres, more or less, and is subject to rights -of -way and/or easements along Weld County Road 26 on the northerly side and is subject to rights -of -way and/or easements of record or as may now exist. This property is also described as Lot B in recorded exemption R.E. 3965. Property address: 8638 W.C.R. 26, Fort Lupton, CO 80621.