HomeMy WebLinkAbout880920.tiff RESOLUTION
RE: APPROVE AGREEMENT FOR PURCHASE OF ONE SHARE OF THE CAPITAL
STOCK OF LUPTON BOTTOM DITCH COMPANY AND AUTHORIZE CHAIRMAN
TO SIGN
WHEREAS, the Board of County Commissioners of Weld County,
Colorado, pursuant to Colorado statute and the Weld County Home
Rule Charter, is vested with the authority of administering the
affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with an Agreement
between Donald A. and Jacque Forchette and Weld County for the
purchase of one share of capital stock of Lupton Bottom Ditch
Company, and
WHEREAS, the terms and conditions are as stated in said
Agreement, and
WHEREAS , after review the Board deems it advisable to approve
said Agreement, a copy which is attached hereto and incorporated
herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County
Commissioners of Weld County, Colorado, that the Agreement between
Donald A. and Jacque Forchette and Weld County for the purchase of
one share of capital stock of Lupton Bottom Ditch Company be, and
hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chairman be, and
hereby is , authorized to sign said Agreement.
The above and foregoing Resolution was , on motion duly made
and seconded, adopted by the following vote on the 19th day of
September, A.D. , 1988 .
n ( BOARD OF COUNTY COMMISSIONERS
ATTEST: ��Y:Z.ul,ksc et,ct/1 (p,�n� WE COUNTY, COLORADO
/�
Weld County .lerk and Recorder o f, Ik�J,ac t
and Clerk to the Board Gene R. Brantner, Chairman
� -� °b
C.W. Kirby, Pr Tem
eputy County lerk ��
APPROVED AS TO FORM: Ja que • e nn
Gor rr 1
County Attorney
Frank amaguchi
880920
AGREEMENT
THIS AGREEMENT is made this 19th day of September
19 88 by and between Donald A. g Jacque Fonchette
(hereinafter referred to as "Seller") , and Wad County, Colonado
(hereinafter referred to as "Purchaser") ,
W I T N E S S E T H :
WHEREAS, Seller is the owner of the following water stock or
water rights: Lupton Bottom Ditch Company
represented by Certificate No. 314 in the amount of One ( 1)
shares of the capital stock of Lupton Bottom Ditch Company
, a Colorado mutual ditch
corporation, together with all rights, ditch rights, easements
and other appurtenances; and
WHEREAS, Seller desires to sell and convey to Purchaser and
Purchaser desires to purchase from Seller One ( 1) 4hare ol .the
Luptom Bottom Ditch Company
(hereinafter referred to as the "water stock" or "water rights") ,
NOW, THEREFORE, in consideration of the mutual promises
hereinafter contained, the parties hereto agree as follows:
1. Seller agrees to sell and Purchaser agrees to purchase,
free and clear of all liens, taxes, assessments and encumbrances,
except: None
and subject to the conditions hereinafter set forth, the water
stock or water rights.
2 . The purchase price shall be $90,000.00
per
share for a total purchase price of $90,000.00
payable
as follows:
$ -0- in the form of certified
funds to be held by Jacobucci Water Brokers, Inc. , in
its escrow account as earnest money and as part payment
for the water rights.
The remaining balance of $ 90.000.00 shall be
payable in cash or 00,t/t/01lptp/,ftylXyi,6 upon closing or as
County Dnab.t
880920
follows: - - -
3 . Seller shall allow Purchaser, a period of 30 days from
the date of this agreement, to investigate the water rights to be
conveyed hereunder. Purchaser may commission, at its own
expense, an engineering report, attorney opinion, or any other
study it deems necessary. Seller shall cooperate in furnishing
any information which Seller may have with respect to the water
rights and shall grant Purchaser the right to enter upon the
historically irrigated property for the purposes of surveying or
otherwise inspecting said property and water rights.
4 . Said 30-day inspection period shall expire at midnight
on Octobers 19 , 19 88 . Prior to that time, Purchaser
may terminate this agreement by written notice given pursuant to
paragraph 13, below and all earnest money shall be returned to
Purchaser. Upon expiration of the 30-day period described above,
this instrument shall become a contract between Seller and
Purchaser and shall inure to the benefit of the heirs, successors
and assigns of the parties. If after the 30-day period has
expired, Purchaser does not perform its obligations under this
agreement, Seller may retain the earnest money described in
paragraph 2 , above, and terminate this agreement. Alternatively,
Seller may elect to pursue damages and/or specific performance
pursuant to paragraph 16, below.
5. Title to the water rights shall be merchantable in the
Seller and Seller shall be able to provide Purchaser with
merchantable title upon execution of the proper documents.
Seller shall provide a copy of the stock certificate(s) or
decree(s) , whichever is applicable, to Purchaser or Purchaser' s
agent upon acceptance of this contract. Seller shall execute and
deliver an assignment of water stock and/or a deed or other
appropriate instrument conveying free and clear title to
Purchaser at the closing hereof.
6. Seller warrants that title to the water rights will be
conveyed free and clear of all liens, prior or pre-emptive rights
to purchase, encumbrances and assessments, including assessments
for the current water year if this agreement is dated subsequent
to, but not including, March 31 of any calendar year, and leases
of any kind except None
7 . If Purchaser desires to file an application with a
court of competent jurisdiction for the change of this water
right, the Seller covenants that it will cooperate with
Purchaser, its agents, representatives and assigns, for no
additional consideration, in establishing information relevant to
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880920
the historical use of the subject water rights, including the
execution of appropriate affidavits and/or the furnishing of
testimony in appropriate administrative or judicial proceedings
with respect to said water rights. However, Purchaser agrees to
reimburse Seller for any out-of-pocket expenses incurred in
obtaining or giving such testimony or other information. Seller
further covenants and agrees that it will neither challenge nor
oppose any such water court application filed by or on behalf of
the Purchaser for the above-described change of water rights.
8. Purchaser shall bear all expenses of water court or
other proceedings, if necessary, to obtain permission for
Purchaser to make use of the water derived from the subject
shares. Purchaser agrees to pay any stock transfer fee to
transfer any certificate which is the subject of this agreement
or any recording fees for this instrument or any other instrument
necessary pursuant to this agreement.
9. Seller represents that the following water rights:
One 1) shake oA Lupton Bottom Ditch Company have been used
to irrigate approximately 45 acres of land, described as
follows: a pant oA .the W1/2, SE' , Sec. 2, T2N, R67W o4 .the 6th P.M.
These water rights have been used to irrigate the following crops
since 1947 . : cokn, a.2,,at{a and pao.twie
10. Seller covenants and agrees that subsequent to the
closing on this agreement, it will permanently remove from
irrigation a proximately „13"s 3 acres described as follows:
the southe/tj acn.es 06 -theW1/2, t%, Sec. 2, R67W ob the 6th P.M.
---- 1/4.57.9 P4,r ' .,3 .
%9
Said land shall not irrigated in the future except with water
from an exempt well, water supplied by a municipal or a quasi-
municipal entity, or pursuant to an appropriate decree of the
water court, or unless Purchaser leases or sells water rights to
Seller for such purpose. Seller agrees to execute a separate
non-irrigation covenant for no additional consideration, if
required by the Purchaser. Said non-irrigation covenant, whether
in a separate document or as described in this document, shall
run with the land described above.
11. The closing under this agreement shall take place at
2:00 (WI I.4 (P.M. ) , on Octobek 21,
19 88 , at Jacobucci. (Uatek Bk0faeks, Inc.
or at such other time and place as the parties may mutually
agree. At said closing, Seller shall execute and deliver any
appropriate documents which are required to convey the subject
water rights to Purchaser, including a non-irrigation covenant,
if required by the Purchaser. Purchaser shall simultaneously
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880920
deliver to Seller cash or certified funds in the amount of
$ 90,000.00 as described in paragraph 2 above.
12 . seller shall have the right or option to lease from
Purchaser all or part of the water rights which are the subject
of this agreement pursuant to the following terms and conditions:
N/A
13 . Any notices required or permitted to be delivered here-
under shall be in writing and shall be deemed to be delivered
when personally delivered to the parties hereto at the addresses
hereinafter stated or when deposited in the U. S. Mail, postage
prepaid, certified or registered mail, return receipt requested,
addressed to the parties hereto as follows:
Purchaser:
Weld County
P.O. Box 758
Greeley, CO 80632
Seller:
Donald A. & Jacoue Fonchette
10564 Wad Cauntu Road 241/2
Ft. Lupton. CO 80621
Notice of any change in the addresses to be used for notifi-
cation hereunder shall be provided in the same manner.
14 . This agreement constitutes the entire agreement between
the parties hereto, and pertaining to the subject matter hereof
and supersedes all prior agreements and understandings of the
parties with respect to the subject matter hereof. All prior and
contemporaneous conversations, negotiations, possible and alleged
agreements, representations, covenants and warranties concerning
the subject matter of this agreement are merged herein.
15. Time is of the essence hereof and if any payment or
other condition hereof is not made, tendered or performed by
either the Seller or the Purchaser as herein provided, then this
contract, at the option of the party who is not in default, may
be terminated by such party, in which case the non-defaulting
party may recover such damages as may be proper. In the event of
default by either party, nothing herein shall be construed to
prevent the non-defaulting party from requiring specific
performance of this contract.
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880920
16. If any judicial proceeding may hereafter be brought to
enforce any of the provisions hereof, including an action for a
specific performance and/or damages, the prevailing party shall
be entitled to recover the costs of such proceedings, including
reasonable attorneys fees and expert witness fees.
17 . The provisions of this agreement shall survive any
closing and deed or other conveyance of the subject water rights
hereunder.
18. Jacobucci Water Brokers represents the Sete&e
The Seffeh6 shall pay to Jacobucci Water
Brokers, Inc. , a commission in the amount of
purchase 7 % of the
price or $ - - - for services rendered in this
transaction and agrees that in the event of forfeiture by the
Buyer of anything of value hereunder, such things of value shall
be evenly divided between them, but Jacobucci Water Brokers, Inc.
shall not receive more than the commission described above.
19 . If this proposal is accepted by .the Puachahek
by virtue of signature(s) below and ,the SeLte&
receives notice of such acceptance on or before the close of
business on Coptembek 20, , 1988 , this instrument shall
become a contract between Seller and Purchaser and shall inure to
the benefit of the heirs, successors and assigns of such parties.
IN WITNESS WHEREOF, the parties have executed this agreement
in duplicate original counterparts the day and year first above
written.
SELLER: PURCHASER:
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Dat `- � � ate:;
F
�a e: C' Data:
Date: Date:
ATTEST:
(
Weld County Clerk and Recorder
and Clerk to the Board
JJ /
BY: C L‘-.-7(Dputy County Cler
5
680920
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