HomeMy WebLinkAbout20150855.tiff RESOLUTION
RE: APPROVE PURCHASE AND SALE AGREEMENT FOR GEISERT RESERVOIR AND
AUTHORIZE CHAIR TO SIGN - CENTRAL COLORADO WATER CONSERVANCY
DISTRICT AND GROUNDWATER MANAGEMENT SUBDISTRICT
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, on March 18, 2015, the Board was presented with a Purchase and Sale
Agreement for the Geisert Reservoir between the County of Weld, State of Colorado, by and
through the Board of County Commissioners of Weld County, on behalf of the Department of
Public Works, and the Central Colorado Water Conservancy District and Groundwater
Management Subdistrict, commencing upon execution of signature with further terms and
conditions being as stated in said agreement, and
WHEREAS, at said meeting the Board deemed it advisable to continue the matter to
March 30, 2015, to allow additional time to review the terms regarding mineral rights and
reclamation related to the agreement, and
WHEREAS, after review, the Board deems it advisable to approve a revised agreement, a
copy of 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 revised Purchase and Sale Agreement for the Geisert Reservoir
between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, on behalf of the Department of Public Works, and the Central
Colorado Water Conservancy District and Groundwater Management Subdistrict, be, and hereby
is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to
sign said agreement.
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2015-0855
EG0072
PURCHASE AND SALE AGREEMENT FOR GEISERT RESERVOIR - CENTRAL COLORADO
WATER CONSERVANCY DISTRICT AND GROUNDWATER MANAGEMENT SUBDISTRICT
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 30th day of March, A.D., 2015.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, O 'ORADO
ATTEST: li, .ii2 aid .kto, i� %�
rbara Kirkmeyer Chair
Weld Count-rk to the Board
Mike Freeman, Pro-Tern
1
BY:►���,
Deputy Cle to the Board � � �f ..)
��� can P. Conway
APPROVED AS TO FORM:I 361 (ig „a,/ !�r
f V
County Attorney �I� , ,` •\
I I��� ♦ Steve Moreno
Date of signature: I
2015-0855
EG0072
ROBERT J. FRICK
1861 !- . WELD COUNTY ATTORNEY
DEPARTMENT OF LAW
..EL
—• �' Assistant County Attorneys
Bob Choate* Linda Goff*Tomi Hanson * Frank Haug
11 G o U N ¶ Y Thomas Joaquin * David Skarka * Brad Yatabe
March 27, 2015
TO: Weld County Board of Commissioners
FROM: Brad Yatabe, Assistant Weld County Attorney
Re: Contract for Sale of Geisert Pit to Central Colorado Water Conservancy
District
Pursuant to the Board's direction, the current version of the contract signed by the
Central Colorado Water Conservancy District ("CCWCD") reserves to the County all mineral
rights with the exception of sand and gravel. The changes made to the prior version of this
contract were with regard to Sections 1.2.2 and 1.3. No other changes were made to the
contract and CCWCD had no issues with the change.
"Providing quality legal services to Weld County Government in
a responsive,innovative,and cost-effective manner."
General Services Division Human Services Division
1150"0"Street—P. O. Box 758 315 N. 11th Avenue—P. 0. Box A
Greeley,CO 80632-0758 Greeley,CO 80632
Phone: (970) 356-4000 * Facsimile (970)352-0242
PURCHASE AM) SALE AGREEMENT
THIS AGREEMENT ("Agreement") is entered into this50 day of Pate* , 2015
("Effective Date") by and between the Board of County Commissioners of the County of Weld
("Seller") and the Central Colorado Water Conservancy District and Groundwater Management
Subdistrict of the Central Colorado Water Conservancy District ("Buyer"). Buyer and Seller
may be referred to collectively as the "Parties."
WITNESSETH
WHEREAS, the Seller owns certain real property located in Section 31, Township 6
North, Range 65 West of the 6a' P.M. in Weld County. Colorado (the "Property"); and
WHEREAS, within the boundaries of the Property is situated portions of a former gravel
pit, known as the"Geisert Pit"; and
WHEREAS, the Seller has created the ability to store approximately 1.200 acre-feet of
water (definite number to be determined by final survey) within the portion of the Geisert Pit
located within the Property by installing a slurry wall liner around what are identified as Cells 3
and 4 as shown on Figure "1," attached hereto and incorporated into this Agreement (Cells 3
and 4 shall be referred to collectively hereinafter as "Geisert Reservoir"), which liner was
approved on August 3, 2012 as meeting the performance standards required by the Colorado
Division of Water Resources; and
WHEREAS, Weld County is Colorado's leading producer of cattle, grain, and sugar
beets and the county ranks as the third leading agricultural area in the United States. Nearly 78%
of the county's land area is farmland; and
WHEREAS, Buyer augments approximately 1000 wells of which, as of the Effective
Date, approximately ninety percent (90%) are irrigation wells which irrigate farm ground within
Weld County; and
WHEREAS, the parties acknowledge the importance of agriculture to Weld County and
recognize that the sale of Geisert Reservoir by the Seller to Buyer will benefit agricultural lands
within Weld County by providing an additional water supply which Buyer may use to augment
diversions from wells included in its augmentation plan;
WHEREAS, the Seller desires to sell and Buyer desires to purchase the Property upon the
terms and conditions set forth herein.
In addition, the Well Augmentation Subdistrict of the Central Colorado Water Conservancy District (WAS) may
also use water from Geisert Reservoir. WAS currently augments approximately 250 wells of which, as of the
Effective Date, approximately ninety percent (90%) are irrigation wells which irrigate farm ground within Weld
County. Nothing herein is intended to limit Buyer's use of the water stored in the Geisert Reservoir solely for
agricultural purposes, and the parties acknowledge that the percentage of irrigation wells Buyer augments is subject
to change in the future.
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NOW, THEREFORE, in consideration of the mutual promises of the parties and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
ARTICLE I
PROPERTY AND OTHER INTERESTS
1.1 Property and Other Interests. Buyer agrees to buy and Seller agrees to sell on the terms
and conditions set forth in this Agreement the "Geisert Property," as more fully
described in this paragraph, together with all rights, easements, and benefits appurtenant
thereto.
1.1.1 Geisert Property. The Geisert Property consists of three parcels as follows:
(i) That parcel identified as Lot 1 of the "Greeley Saddle Club Subdivision"
("Parcel 1") as shown on the attached Figure 2.
(ii) That parcel identified as Parcel 2 of the "Geisert Pit Subdivision" ("Parcel
2") as shown on the attached Figure 3.
(iii) That parcel identified as Parcel 3 of the "Geisert Pit Subdivision" ("Parcel
3) as shown on the attached Figure 3.
1.1.2 Final Survey and Subdivision. Figure 2 and Figure 3 shall serve as references for
purposes of this Agreement only and represents the Parties' understanding of the
parcels to be conveyed to Buyer. Seller and the City of Greeley are in the process
of completing the respective Geisert Pit Subdivision and Greeley Saddle Club
Subdivisions necessary to accomplish the transfer of the Parcels as contemplated
in this Agreement. A final survey shall be used to describe the boundaries of the
parcels comprising the Geisert Property for purposes of conveying title to the
same ("Survey"). Once the Survey and subdivision are completed, a copy of the
survey and a legal description of the Geisert Property shall be provided to Buyer
indicating that land which will be included in the deed conveying title to the
same. Once the subdivision processes are complete, Parcel 1 shall be within the
city limits of the City of Greeley and Parcels 2 and 3 shall be in unincorporated
Weld County. Closing under this Agreement shall not occur until such time as the
subdivision processes are completed; however, this Agreement is contingent on
Seller acquiring such title.
1.2 Inclusions. Unless specifically excluded by the operation of Section 1.3 below, the
Geisert Property includes the following:
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1.2.1 All improvements, and any easements, servitudes, permits, licenses, and leases
appurtenant to the Geisert Property;
1.2.2 All title, right, interest, claim and demand in and to all sand and gravel
appurtenant to the Geisert Property and owned by Seller, together with any and all
surface use, access easements, and all rights in connection therewith;
1.2.3 All of Seller's interest in water, wells, well rights, well permits, springs,
appurtenant to and/or enjoyed in connection with the Geisert Property, together
with all of Seller's interest, if any, in easements or rights-of-way, appurtenant
thereto or used in connection therewith, as well as all fixtures, apparatus and
ancillary equipment, appurtenant thereto or used in connection with said water
rights, specifically including any water conveyance structures, inlets, outlets and
pumps. The Seller is currently prosecuting an Application for Storage Rights and
Plan for Augmentation in Case No. 12CW304. After Closing, as defined below,
the Parties agree that they shall take all steps necessary to bifurcate Case No.
12CW304, with Buyer assuming all responsibility for the prosecution of the
storage rights component associated with Geisert Reservoir and the Seller
maintaining all responsibility for the prosecution of the augmentation plan
component associated with the unlined cells within the Geisert Pit. The Seller and
Buyer shall cooperate in good faith to successfully prosecute each component,
including the sharing of information as reasonably required by either party. The
storage rights component of Case No. 12CW304 and all other water rights
appurtenant to and/or enjoyed in connection with the Property as described in this
paragraph shall be referred to hereinafter as the "Water Rights." The Water
Rights include any water impounded in the Geisert Reservoir at the time of
Closing.
1.3 Exclusions. The Geisert Property does not include the Seller's Dust Control Well #1,
permitted under Well Permit No. 50246-F, located on the Property and decreed in Case
No. 04CW359 ("County Well"). Furthermore, Seller shall retain all mineral rights it
currently owns in the Geisert Property including, but not limited to, oil, gas, natural gas,
and any other form of hydrocarbon and any and all surface use, access easements, and all
rights in connection therewith, but excluding sand and gravel as described in 1.2.2 of this
Agreement.
1.4 Capacity of Geisert Reservoir. The Parties anticipate the available storage capacity in
Geisert Reservoir to he approximately 1,200 acre-feet. Prior to the Closing, the actual
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storage capacity of the Geisert Reservoir shall be determined by the Survey and
development of a stage area capacity curve. To the extent the actual storage capacity of
Geisert Reservoir is greater or less than 1,200 acre-feet as shown by the Survey and
stage-area capacity curve, the Parties shall cooperate in good faith to make modifications
to this Agreement, if any. Any modification shall be in a writing signed by both Parties.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The purchase price for the Geisert Property is One Million, Five Hundred
Thousand and no/100 Dollars ($1,500,000.00) ("Purchase Price").
2.1.1 As a good faith deposit and part payment of the Purchase Price, Buyer will
deposit the sum of Five Thousand and no/100 Dollars ($5,000.00) in an interest
bearing account at Land Title Guarantee Company ("Deposit"). The Deposit will
be made within three (3) business days of the Effective Date. The Deposit shall be
for the benefit of the Buyer and shall be credited towards the Purchase Price.
2.1.2 The balance of the Purchase Price plus the Buyer's share of closing costs will be
paid at Closing, as defined below.
ARTICLE III
TITLE AND CLOSING
3.1 Time and Place of Closing. Subject to and in accordance with the provisions of this
Agreement, closing of the purchase and sale of the Geisert Property ("Closing") shall be
held at the offices of Land Title Guarantee Company ("Title Company") not less than
thirty (30) and not more than sixty (60) days from the date Seller acquires title all lands
included in Parcel 1 ("Closing Date").
3.2 Title Insurance. Within thirty (30) days of the Effective Date, Seller shall deliver to
Buyer one or more commitment(s) for an ALTA Owners Policy of Title Insurance
("Commitment") committing the Title Company to issue a policy insuring title to the
Geisert Property in accordance with the Commitment in the name of the Buyer. The
Commitment shall bear an effective date subsequent to the Effective Date and shall
include complete, legible copies of all documents referred to herein. Buyer hereby agrees
that Seller may satisfy its obligation to deliver the Commitment by delivery of a
commitment which is subject to approval of the Title Company's underwriter but which
otherwise satisfies the conditions of the Commitment; provided that if the final
Commitment issued by the title company includes additional exceptions to title then
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Buyer shall be entitled to object to such additional matters as provided for herein and the
dates for title review, objection, and response shall be similarly extended at Buyer's
discretion.
3.3 Objections. Within seven (7) business days of receiving the Commitment, Buyer shall
deliver to Seller written notice of Buyer's objections to title, if any. Permissible
exceptions to title shall include only (together, "Permitted Exceptions"): (i) zoning
laws and building ordinances; and (ii) title exceptions shown on the Commitment to
which Buyer has not objected or is deemed to have accepted by failing to object; and (iii)
an easement for the City of Greeley's water line through the Geisert Property at a
location to be shown on the Survey. If Buyer fails to so deliver a title objection notice
on or before the above-stated date then Buyer shall be deemed to have waived its rights to
object to the exceptions listed in the Title Commitment.
3.4 Cure. If Seller will not cure or remove or commit to removing the objections or
otherwise fails to respond to Buyer's notice of title objections on or before seven (7)
business days following Buyer's notice of objections, then Buyer may terminate this
Agreement by written notice to Seller on or before the date which is two (2) business
days after the end of such seven (7) day period, whereupon the Deposit shall be
returned to Buyer and the Parties shall be released from all further obligations
hereunder. In the event Buyer does not so terminate this Agreement, Buyer shall be
deemed to have waived such objections (other than any objections Seller has
agreed in writing to cure), and such objections shall be deemed Permitted Exceptions
hereunder.
3.5 Title Insurance Policy. A title insurance policy consistent with the Commitment
shall be issued or committed to be issued by the Title Company as of the date of
Closing and shall show no exceptions other than the Permitted Exceptions (the "Title
Policy"). Notwithstanding anything to the contrary in this Agreement, Seller shall
pay off or obtain releases of all existing mortgages and other lien indebtedness with
respect to the Geisert Property at Closing, and such matters shall not be deemed
Permitted Exceptions.
3.6 Delivery of Documents and Purchase Price. On or before the Closing Date, Seller and
Buyer shall accomplish the following:
3.6.1 Seller shall deliver or cause to be delivered to Title Company:
(i) A special warranty deed conveying the Geisert Property, mineral rights
appurtenant to the Geisert Property, and any improvements to Buyer, duly
executed and acknowledged by Seller, free and clear of all taxes and
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assessments and other liens and encumbrances except non-delinquent
general property taxes for the year of Closing and the Permitted
Exceptions.
(ii) A special warranty deed transferring and assigning to Buyer all of Seller's
interest in the Water Rights, together with any easements or rights-of-way
appurtenant thereto or used in connection with the Water Rights.
(iii) An agreement granting to Buyer the following casements: (1) an easement
for access to the Geisert Property from "H Street," including as necessary,
an easement to cross Seller's adjoining property in the N '/z of Section 31,
Township 2 North, Range 65 West of the 6th P.M.; (2) an easement for
access over, through, and under the Poudre River Trail Pathway, which
borders the Geisert Property to the west and south, for purposes of
accessing, constructing, operating, maintaining, and repairing inlet and
outlet structures to divert water to and from the Poudre River and Geisert
Reservoir, and said easement shall include the right of Buyer to access the
Poudre River Trail Pathway to reinforce the river channel as necessary or
advisable for maintaining the integrity of the Geisert Reservoir as a water
storage vessel and Buyer's water conveyance structures, subject to the
permission from other parties to install such reinforcements on the river
channel, including the Poudre Trail Authority or successor entity charged
with management of the Poudre River Trail Pathway; and (3) and an
easement to access, operate, maintain, and repair the existing pipeline
between the Geisert Reservoir and the Poudre River under the Poudre
River Trail Pathway. The location and extent of such easements shall be
shown in the Survey. The easement agreement shall substantially take the
form of Exhibit A, attached hereto ("Easement Agreement").
(iv) Any other documents required to be executed by Seller pursuant to the
terms of this Agreement or requested by Title Company in connection
with the transaction contemplated hereunder or as may be required
pursuant to applicable law.
3.6.2 Buyer shall deliver or cause to be delivered to Title Company:
(i) The Purchase Price calculated pursuant to the terms of Section 2.1 herein.
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(ii) The Easement Agreement granting to Seller the necessary casements for
Seller to (1) access, operate, maintain repair, and replace the County Well,
as described in Section 1.3;(2) store up to 20 acre-feet of water in the
Geisert Reservoir ("County Water"); and (3) install, access, operate,
maintain, and repair a temporary water pump and water conveyance
structures to transfer County Water from the Geisert Reservoir across the
Geisert Property to property Seller owns in the W Yz of NE % of Section
31,Township 6 North, Range 65 West of the 6th P.M. in Weld County for
purposes of maintaining wetlands on that property.
3.7 Closing Costs. The Title Policy premium shall be paid by Buyer. The cost of any transfer
fees, taxes or escrow fees and charges shall be shared equally between the parties. Buyer
and Seller shall sign and complete all customary or required documents at or before
closing. Fees for real estate closing services shall be paid by Buyer.
3.8 Payment of Encumbrances. Any encumbrances required to be paid shall be paid at or
before Closing from the proceeds of this transaction or from any other source.
ARTICLE IV
CONDITIONS TO CLOSING
4.1 Buyer's Conditions. Buyer's obligation to purchase the Geisert Property is subject to the
fulfillment prior to Closing of each of the following conditions, each of which is for the
benefit of buyer and any of which may be waived by Buyer at its sole option:
4.1.1 Document Review. Buyer's review and approval of the following documents and
materials with thirty (30) days of the Effective Date of this Agreement, which
documents Seller shall use its best efforts to cause to be delivered to Buyer
contemporaneously with the execution of this Agreement, but no later than fifteen
(15) days after the date of execution of this Agreement:
(i) Seller shall provide Buyer with a current ALTA preliminary title report for
the Geisert Property, accompanied by copies of all documents referred to
in such reports, or if not available as of the deadline required by this
paragraph, copies of all work completed by the title company;
(ii) Copies of all applications, permits, licenses, certificates, or agreements
relating to zoning, operation, occupancy or use of the Geisert Property;
especially as the same relate to storage of water in Gesiert Reservoir; and
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(iii) Copies of any surveys, soils and/or engineering reports, feasibility studies,
site plats and plans, and other reports, studies or documents relating to the
Geisert Property.
4.1.2 Physical Inspection. Buyer's inspection, review and approval of the physical and
environmental condition of the Geisert Property within twenty-one (21) days of
the Effective Date of this Agreement.
4.1.3 Approvals. This Agreement shall have been approved by the Board of Directors
of the Central Colorado Water Conservancy District ("Central Board"), and in
the event this Agreement is not approved in its entirety by the Central Board,
neither the Buyer nor Seller shall be bound by the terms of this Agreement.
4.1.4 Subdivision Completed. The Seller and the City of Greeley shall complete their
respective subdivision processes such that the Geisert Property can be fully
conveyed to Buyer.
4.1.5 Closing Obligations. Seller shall have complied with the Closing procedures set
forth in Article III herein.
4.2 Seller's Conditions:
4.2.1 Approvals. This Agreement shall have been approved by the Board of County
Commissioners of the County of Weld ("County Board"), and in the event this
Agreement is not approved in its entirety by the County Board, neither the Buyer
nor Seller shall be bound by the terms of this Agreement
4.2.2 Closing Obligations. Buyer shall have complied with the Closing procedures set
forth in Article III herein.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Seller represents and warrants as follows:
5.1 Encumbrances. From the Effective Date of this Agreement until the Closing, except
for the Permitted Exceptions defined herein, Seller will not encumber the
Geisert Property or other interests in any way nor grant any property or
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contractual rights relating to the Geisert Property o r other interests without the
prior written consent of Buyer.
5.2 Compliance with Governmental Regulations. To the best of Seller's current, actual
knowledge there are no orders or directives of any city, county, state, or federal authority
for repairs, maintenance work, or improvements to be performed on the Geisert Property.
To the best of Seller's current, actual knowledge Seller has received no written notice
from any municipal, state, or other statutory authority relating to defects in any
improvement or noncompliance with any building code or restriction, applicable to the
Property that has not been correct, or any threat of or impending expropriation or
condemnation of the Property.
5.3 Condition of Property. Seller will provide Buyer with a Seller's property disclosure
form completed by Seller to the best of Seller's actual knowledge as of the date
thereof To the best of Seller's current, actual knowledge, Seller is not aware of any
material defect or condition affecting the use, development or value of the Property
including the presence of any hazardous wastes, toxic or other contamination. To the
best of Seller's current actual knowledge, the Property is not used and has not been
used in the past as a waste disposal or landfill for hazardous materials or sanitary
landfill purposes.
5.4 Litigation. To the best of Seller's current, actual knowledge, no litigation is pending, or
to the best of Seller's knowledge, proposed, threatened, or anticipated with respect to any
matter affecting the Property;
5.5 Contracts, Leases, and Agreements. Except as otherwise shown in the Commitment,
there are no leases, subleases, contracts, or other agreements, written or oral, regarding
the Property, or granting to any party or parties the right to use or occupy the Property,
which will survive Closing. From the Effective Date through the Closing Date, Seller
shall not enter into any lease or contract with respect to the Property without Buyer's
written consent;
5.6 Compliance with Law. To the best of Seller's current, actual knowledge, Seller has
complied in all material respects with all laws, rules, regulations, ordinances, orders,
judgments, and decrees applicable to the Property, and Seller has no current actual
knowledge of any proposed order, judgment, decree, governmental taking, or other
proceeding applicable to Seller which might materially and adversely affect the Property.
5.7 Utilities. Seller has not received any written notice of the curtailment of any utility
service supplied to the Property.
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5.8 Mining Reclamation. The Gesiert Pit is the result of previous mining operations
conducted on the Property pursuant to Permit No. 78-210 issued by the Colorado Mined
Land Reclamation Board, as amended or reissued, including any reclamation plans
("Geisert Mining Permit"). Though mining operations within the Property will be
completed prior to Closing, Seller shall remain responsible for the timely completion of
any remaining reclamation obligations required by the Geisert Mining Permit, except that
Buyer and Seller shall cooperate in good faith regarding the reseeding of the area
immediately adjacent to the inlet and outlet structures to be constructed by Buyer to
transfer water to and from the Poudre River to the Gcisert Reservoir. Buyer's installation
of such inlet and outlet structures and the reseeding of such area may require a technical
revision to the Geisert Mining Peimit. The Parties agree further to cooperate in good faith
to complete and submit the technical revision to the Geisert Mining Permit, as necessary,
to include these activities. Buyer shall reimburse the Seller for the costs incurred to file
and submit the technical revision up to $216.00. All reclamation required to be done
below the water line of the Geisert Reservoir shall be completed on or before Closing
such that Buyer can commence storage of water in the Geisert Reservoir on that date.
Additional reclamation which does not prevent Buyer from using the Geisert Reservoir
for its intended purpose of water storage shall be completed within 5 years of the final
seeding which occurred in December 2014, except the installation of Buyer's inlet and
outlet structures and the reseeding around such structures are not required to be
completed by this date.
5.9 As-Is. Except for the representations and warranties set forth herein or in the documents
delivered at Closing, Seller disclaims the making of any representations or warranties,
express or implied, regarding the Gciscrt Property or matters affecting the Geisert
Property, including but not limited to its physical condition, title to or the boundaries of
the Geisert Property, soil conditions, hazardous waste, toxic substance or other
environmental matters. compliance with building, health, safety, land use, environmental
laws, regulations and orders, the ability to develop the Geisert Property for any purpose,
and all other information pertaining to the Gciscrt Property. Buyer, moreover,
acknowledges that, except for the representations and warranties set forth herein or in the
documents delivered at Closing: (1) Buyer has entered into this Agreement with the
intention of relying upon its own investigation of the physical, environmental, economic,
and legal condition of the Property and (ii) Buyer is not relying upon any statements,
representations, or warranties made by Seller or anyone acting or claiming to act on
Seller's behalf concerning the Property. Except for the representations and warranties
set forth herein or in the documents delivered at Closing, Buyer shall purchase the
Property in its "AS-IS, WHERE-IS" condition as of Closing.
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5.10 Condemnation. In the event any portion of the Geisert Property is condemned or access
thereto shall he taken or proceedings or negotiation therefor are commenced prior to
Closing, if Buyer, in Buyer's sole discretion, concludes that such taking renders the
remainder of the Geisert Property unsuitable for Buyer's purposes, and Buyer notifies
Scllcr in writing of such conclusion prior to Closing, then this Agreement shall terminate
and the Deposit shall be refunded to Buyer. If the Agreement is not so terminated, the
Purchase Price shall not be affected, and (I) if a condemnation award is paid prior to the
Closing, then at Closing. Seller shall assign such award to Buyer, and (2) at Closing,
Seller shall assign all claims to Buyer, and Buyer shall have the right to contest the
condemnation of the Geisert Property and/or the award resulting therefrom.
ATRICLE VI
MISCELLANEOUS
6.1 Fees and Expenses Apportionment. Except as otherwise expressly set forth in this
Agreement, the Buyer and Sellers hereto will bear its own expenses in connection with
transaction contemplated by this Agreement.
6.2 Possession of Property. Possession of the Geisert Property and Water Rights shall he
delivered to Buyer at Closing. In accordance with Paragraph 5.8, Seller and/or Seller's
agent(s) may access the Property after the Closing Date, upon reasonable notice to Buyer,
for the purpose of conducting reclamation work necessary to release the Geisert Mining
Permit.
6.3 Default.
6.3.1 Buyer's remedies for Sellers's breach or default hereunder, or in the event, that, at
the Closing, any condition precedent to Buyer's obligations hereunder is not fully
satisfied as herein required, Buyer not being in breach or default hereunder. Buyer
may elect one of the following remedies to be exercised by or on behalf of the
Buyer, as Buyer's sole and exclusive remedy:
(i) Terminate this Agreement by giving Seller timely written notice of such
election prior to or at Closing, and thereupon this Agreement shall
terminate and Buyer shall be entitled to the return of the Deposit, and all
parties hereto or mentioned herein shall be relieved and released of all
further obligations, claims and liabilities hereunder except those that
expressly survive any such termination of this Agreement; or
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(ii) Waive, prior to or at the Closing, the applicable objection, default, or
condition and proceed to close the transaction contemplated hereby in
accordance with the remaining terms hereof without any adjustment in the
Purchase Price, and Buyer shall have the right to specific performance
thereof.
(iii) The right to specific performance of this Agreement on the terms and
conditions herein.
6.3.2 If Buyer breaches its obligations pursuant to this Agreement, Seller shall have , as
its sole and exclusive remedy, the right to receive from the Title Company the
Deposit as liquidated damages and not as a penalty in full satisfaction of Seller's
claim (including attorney's fees) against Buyer.
6.4 Notice. Any notice required or permitted to be given under this Agreement shall be in
writing and shall be deemed given and effective when delivered by electronic mail,
Express Mail, Federal Express, or like service, or on the third mail delivery day after it is
deposited in the United States mail, postage prepaid by certified or registered mail, return
receipt requested, addressed to the parties as follows:
If to Buyer: Central Colorado Water Conservancy District
3209 W. 28th Street
Greeley, CO 80634
If to Seller: Board of County Commissioners of the County of Weld
c/o Weld County Attorney's Office
1150 O Street
Greeley, CO 80631
6.5 Risk of Loss. Seller shall be responsible for all risks of damage, loss, or injury to the
Geisert Property and all property-owner liability prior to Closing. In the event any
material damage occurs to the Geisert Property between the Effective Date and the
Closing Date, Buyer may declare this Agreement null and void and receive a refund of
the Deposit.
6.6 Brokerage. Seller and Buyer hereby warrant to each other that no real estate agent or
other broker or finder is involved in this transaction. Each party agrees to indemnify and
hold hannless the other against any and all claims based in whole or in part on act of such
indemnifying party for commissions, fees, or other compensation made by any such real
Page 12 of 13
estate agent, broker, or finder as the result of the sale of the Geisert Property
contemplated hereby.
6.7 Governing Law. This Agreement shall he governed by Colorado law. Any warranties or
covenants by and between the parties agreed to herein shall survive the Closing and
transfer of title to Buyer and shall not be merged with the deeds delivered at Closing.
6.8 Entire Agreement. This Agreement, including its exhibits and schedules, which are
hereby incorporated herein. shall constitute the entire agreement between Seller and
Buyer and supersedes any other written or oral agreements betw een Seller and Buyer.
This Agreement may be modified only by the written agreement of both parties.
6.9 Assignment. This Agreement shall be binding upon, and shall inure to the benefit of,
Seller and Buyer and their respective successors and assigns. Neither party may assign its
interest under this Agreement without the prior written consent of the other party.
IN WITNESS WI IEREOF. the parties hereto have duly executed this Agreement as of the date
set forth below:
BUI(ER:
kTEa,doh, J465WiliY
0,6 /6-
SELLER:
ATTEST: datedgai ;ese BOARD OF COUNTY COMMISSIONERS
WIII D COUNTY. COLORADO
Weld ti t 'Icrk to the Boa d
/N. //
13 Q) !T3 U _ � It ati
)eputy C k to he rd )ala Kirkmey r, Chair AR 3 0 2015
�VFD yS T U / 7 I APPROVED AS TO SUBSTANCE:
Ck
Controller/Finance irector Fl c l 1real or partinent I
APPROVE) AS TO FORM:
Count At _rnev
Page 13 of 13
/ 5- 0(155a)
EXHIBIT A
EASEMENT AGREEMENT
This EASEMENT AGREEMENT ('Agreement") is entered into this day of
mAk_a fl , 2015 ("Effective Date") by and between the Central Colorado Water
Conservancy District and Ground Water Management Subdistrict of the Central Colorado Water
Conservancy District ('`Central") and the Board of County Commissioners of the County of
Weld ("County"). Central and County may he referred to individually as a "Party" or
collectively as the "Parties" in this Agreement.
WITNESSETH
WHEREAS. Central has purchased from County interests in certain property (the
"Transaction"), such property being located in Section 31, Township 6 North, Range 65 West
of the 6th P.M. in Weld County, Colorado (the "Property"), as described in Exhibit A, attached
hereto and incorporated herein, and within the boundaries of the Property is situated a former
gravel pit, two of the cells of such pit have been lined with a slurry wall liner and such lined cells
arc known as the Geisert Reservoir ("Geisert Reservoir"); and
WHEREAS, in connection with the Transaction, the Parties have agreed to grant each
other certain easements; and
WHEREAS, the Parties wish to enter into this Agreement to define the nature and extent
of such easements and the terms and conditions of their use.
NOW, THEREFORE, in consideration of the mutual promises of the Parties and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties hereto agree as follows:
SECTION I: EASEMENTS GRANTED BY CENTRAL TO COUNTY
1. Storage Easement. Central hereby conveys to County an easement to store up to twenty
(20) acre-feet of water in the Geisert Reservoir ("County Water"), including an
easement for such pumps, and water conveyance structures as necessary to carry the
County Water to the wetlands located in the West %z of the Northeast 1/4 of Section 31,
Township 6 North, Range 65 West of the 6th P.M. in Weld County, Colorado (hereinafter
the "Wetlands"). At any time County is storing less than 20 acre-feet of water in the
Geisert Reservoir, Central shall be permitted to make use of the additional storage space
resulting from the County not storing the maximum amount of County Water. The
County may use Central's inlet, outlet, and conveyance structures to divert and transport
County Water between the Cache la Poudre River and the Geisert Reservoir, upon
reasonable advanced notice to Central and subject to reimbursement of costs and
expenses incurred in delivering the County Water to and from the Cache la Poudre River.
Page 1 of 5
The County Water shall bear a proportionate amount of evaporation and/or seepage
losses assessed on water stored in Geisert Reservoir. Central shall perform and maintain
all accounting records associated with water stored in the Geisert Reservoir, including
County Water. County shall be entitled to receive, upon reasonable notice to Central,
duplicate copies of any accounting records Central maintains regarding the delivery of
County Water to and from the Geisert Reservoir.
2. County Well and Walking Path Easement. Central hereby conveys to County, for the
purposes of access, operation, installation, maintenance, repair, and replacement of all or
a portion of a groundwater well decreed to the County in Case No. 04CW359 , located in
the NE ' of the SW % of Section 31, Township 6 North, Range 65 West of the 6th P.M.
("County Well") casements for ingress and egress across the Property to the County
Well as described herein:
2.1 Rights-of-way to the County Well and to the facilities used to deliver water from
the Geisert Reservoir to the Wetlands.
2.2 The right-of-way to the County Well shall include an casement for the Weld
County Walking Trail. The Weld County Walking Trail is for the benefit of Weld
County employees to use for exercise and recreational purposes. The Parties
agree that operations of the Geisert Reservoir and/or repairs to the slurry wall
liner may require that use of the Weld County Walking Trail be temporarily
suspended for the safety and welfare of the Weld County employees. The Parties
agree to work cooperatively to minimize the closure of the Weld County Walking
Trail and to make repairs to and replace the same in the event it becomes
necessary or advisable to repair the slurry wall in areas beneath the Weld County
Walking Trail.
2.3 The exact location of the rights-of-way described in this section are shown in the
survey attached hereto as Exhibit B ("Survey"). All portions of the Property not
included within the exact legal description of such rights-of-way shall be released
back to Central and no longer included within the easement granted herein.
2.4 The easements for ingress and egress conveyed by this Agreement are
nonexclusive and Central may use such rights-of-way or may license or grant
easements to others to use such rights-of-way, but only upon prior written
approval by County.
Page 2 of 5
2.5 Utility easement for power to the County Well and, if necessary, to the facilities
used to deliver water to the Wetlands. The location of the utility easement is
shown in the Survey.
SECTION II: EASEMENTS GRANTED BY COUNTY TO CENTRAL
3. Access to Property. The Property is landlocked and County grants to Central an easement
to access the Property from that street currently known as "H Street" (the "Central
Access Easement"). The Central Access Easement shall be for the benefit of Central and
its authorized agents and contractors to access the Property and to make full use thereof
as contemplated by the Transaction. The Central Access Easement may include access
across County's adjoining property in the N %z of Section 31, Township 2 North, Range
65 West of the 6th P.M. Should the name of H Street be changed in the future, such
change shall not affect the rights granted herein. The exact location of the Central Access
Easement is shown on the Survey.
4. Water Conveyance Structures. The Poudre River Trail Pathway borders the Property on
the west and south, as shown on the Survey. Central shall have an easement over, under,
and through the Poudre River Trail Pathway adjacent to the Property for the purposes of
constructing, accessing, operating, maintaining, repairing and replacing all or a portion of
any inlet, outlet, and conveyance structures used to divert water to and from the Poudre
River and Geisert Reservoir and the slurry wall liner around the Geisert Reservoir (the
"Central Water Conveyance Easement"). The dimensions and legal description of the
Central Water Conveyance Easement are shown in Exhibit C, attached hereto. The
Central Water Conveyance Easement shall include Central's right to access, operate,
maintain, repair, and replace all or a portion of the existing water conveyance structures
crossing the Poudre River Trail Pathway adjacent to the Property for the purposes of
conveying water between the Geisert Reservoir and the Cache la Poudre River. The
Central Water Conveyance Easement includes Central's right to access, cross and make
use of that much of the Poudrc River Trail Pathway as necessary to install, remove, and
maintain reinforcement structures and or materials necessary or advisable for the
purposes of protecting the slurry wall surrounding the Geisert Reservoir and or Central's
water conveyance structures. Central shall be solely responsible for obtaining, as needed,
permission from other parties to install such reinforcements on the river channel,
including the Poudre Trail Authority or successor entity charged with management of the
Poudre River Trail Pathway. Central's operations in exercising its rights under the
Central Water Conveyance Easement may result in the temporary closure of the Poudrc
River Trail Pathway in the vicinity of the Property. Central and County agree to
cooperate in good faith to minimize disturbance to the Poudre River Trail Pathway in this
Page 3 of 5
area; however, Central shall have an obligation to repair the Poudre River Trail Pathway
for damages caused by Central's operations under this Agreement.
SECTION III. GENERAL TERMS
5. Neither party will take any other action that causes or may cause damage to or
interference with the operation of the slurry wall, integrity of the Geisert Reservoir as a
storage vessel, diversion of water to and delivery of water from Geisert Reservoir or the
water diverted and stored in Geisert Reservoir.
6. Notwithstanding the Storage Easement, under no circumstances shall Central be
obligated to maintain and raise or lower the water level in the Geisert Reservoir to
accommodate County's use.
7. Neither Party shall install any fences or other structures which would obstruct or interfere
with either Parties' use of their respective properties and corresponding reservation of
rights therein in a manner not inconsistent with the easements granted by this Agreement
without the express written consent of the other Party.
8. Each Party shall be responsible for its own acts of negligence.
9. Perpetual Easements. All Easements conveyed by this Agreement shall be perpetual.
10. Neither Central nor County waives their rights, protections or privileges under the
Colorado Constitution and the Governmental Immunity Act.
11. Entire Agreement. This Agreement represents the complete agreement of the parties and
no oral modification shall be effective. Any amendments or additions to this Agreement
shall be made in writing and shall be signed by both parties hereto.
12. Assignment. This Agreement is binding upon the Parties, their successors, and assigns.
IN WITNESS WHEREOF, this Agreement is hereby executed by a duly authorized
representative of Central and County. as of the Effective Date.
Central Colorado Water Conservancy Board of County Commissioners of the
District and Groundwater Management County of Weld:
Subdistrict of the Central Colorado
Water Conservancy District:
Page 4 of 5
DATE DATE
STATE OF COLORADO
) ss.
COUNTY OF WELD
Subscribed and sworn to before me this day of , 2014,
by , as for the Board of County
Commissioners of the County of Weld.
WITNESS my hand and official seal.
My Commission Expires:
Notary Public
STATE OF COLORADO
)ss.
COUNTY OF WELD )
Subscribed and sworn to before me this day of , 2014,
by , as for the Central Colorado Water
Conservancy District and Groundwater Management Subdistrict of the Central Colorado Water
Conservancy District.
WITNESS my hand and official seal.
My Commission Expires:
Notary Public
Page 5of5
Exhibit A
(1 of2)
PROPERTY DESCRIPTION
A strip of land,Thirty(30)feet in width,being part of the North Half of the Southeast Quarter(N1/2 SE1/4)
of Section Thirty-one(31),Township Six North(T.6N.),Range Sixty-five West(R.65 W.)of the Sixth
Principal Meridian(6t°P.M.),County of Weld,State of Colorado,and being more particularly described as
follows:
COMMENCING at the Center Quarter(C1/4)corner of said Section 31 and assuming the North line of the
Southeast Quarter(SEl/4)of said Section 31,being monumentalized by a#6 rebar with a 3'/"diameter
aluminum cap stamped"LS22098,2003"at the West end and by a#6 rebar with a 3'/d'diameter aluminum
cap stamped"LS34176,2012"in a monument box at the East end,as bearing North 89°00'11"East,being a
Grid Bearing of the Colorado State Plane Coordinate System,North Zone,North American Datum 1983,a
distance of 2667.10 feet,with all other bearings contained herein relative thereto:
THENCE North 89°00'11"East along the North line of the Southeast Quarter(SEl/4)of said Section 31 a
distance of 666.78 feet to the Northwest corner of Lot I,RS-1023,Resubdivision of Union Colony
Subdivision,recorded March 6,2003 as Reception No.3039498 of the records of the Weld Comity Clerk
and Recorder;
THENCE South 00°14'23"East along the West line of said Lot 1 a distance of 1067.52 feet to a
Southwesterly corner of said Lot 1;
The following Two(2)courses and distances are along the Southerly lines of said Lot I:
THENCE North 70°08'58"East a distance of 3.68 feet to the Southwesterly corner of that parcel of land
described in that Quit Claim Deed recorded January 24,1978 in Book 820 as Reception No. 1742421 of the
records of the Weld County Clerk and Recorder;
THENCE North 43°52'48"East along the Northwesterly line of that parcel of land described in said Quit
Claim Deed a distance of 25.26 feet to the POINT OF BEGINNING;
THENCE continuing North 43°52'48"East along the Northwesterly line of that parcel of land detcribed in
said Quit Claim Deed,also continuing along the Southerly line of said Lot I, a distance of 68.40ifeet
THENCE South 69°53'41"West a distance of 71.08 feet;
THENCE South 85°37'37'West a distance of 267.29 feet;
THENCE South 14°32'30"East a distance of 30.48 feet;
THENCE North 85°37'37"East a distance of 266.05 feet
THENCE North 69°53'41"East a distance of 13.76 feet to the POINT OF BEGINNING.
Said strip of land contains 9,273 sq.ft.or 0.213 acre,more or less(±),and may be subject to any rights-of-
way or other easements of record or as now existing on said described strip of land.
SURVEYOR'S STATEMENT
I,Michael Chad Dilka,a Colorado Licensed Professional Land Surveyor do hereby state that this Property
Description was prepared under my personal supervision and checking and that it is true and correct to the
best of my knowledge and belief.
;P IDO L/ F\111
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Michael Chad Dilka-on behalf of King Surveyors
Colorado Licensed Professional Land Surveyor#38106
KING SURVEYORS
650 East Garden Drive
Windsor,Colorado 80550
(970)686-5011
JN:2014666-A
R:A2014666Aproperty descriptionsADEERE&AULT XCEL WELD COUNTY EASEMENT.doc
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MEMORANDUM
T
TO: Esther Gesick, Clerk to the Board DATE: March 16, 2015
IP1
- G O -T T_ FROM: Clay Kimmi, P.E., CFM, Public Works
SUBJECT: Geisert Gravel Pit Contract with Central
Please place the attached contract on the BOCC Agenda for Wednesday, March 18, 2015. Once the
contract has been signed, please return one signed copy back to me so I can return it to Central Colorado
Water Conservancy District.
Please see the attached email showing the contract has been reviewed by Don Warden and Brad
Yatabe. I have also reviewed the contract document.
Page I or 1
M Clay Water Rights Geise6-Getsert Pit Contract Memo 3-16-1s docx 6600-7
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PURCHASE AND SALE AGREEMENT
ifi
THIS AGREEMENT ("Agreement") is entered into this /a day of �r , 2015
("Effective Date") by and between the Board of County Commissioners of the County of Weld
("Seller") and the Central Colorado Water Conservancy District and Groundwater Management
Subdistrict of the Central Colorado Water Conservancy District ("Buyer"). Buyer and Seller
may be referred to collectively as the "Parties."
WITNESSETH
WHEREAS, the Seller owns certain real property located in Section 31, Township 6
North, Range 65 West of the 6th P.M. in Weld County, Colorado (the "Property"); and
WHEREAS, within the boundaries of the Property is situated portions of a former gravel
pit, known as the "Geisert Pit"; and
WHEREAS, the Seller has created the ability to store approximately 1,200 acre-feet of
water (definite number to be determined by final survey) within the portion of the Geisert Pit
located within the Property by installing a slurry wall liner around what are identified as Cells 3
and 4 as shown on Figure "1," attached hereto and incorporated into this Agreement (Cells 3
and 4 shall be referred to collectively hereinafter as "Geisert Reservoir"), which liner was
approved on August 3, 2012 as meeting the performance standards required by the Colorado
Division of Water Resources; and
WHEREAS, Weld County is Colorado's leading producer of cattle, grain, and sugar
beets and the county ranks as the third leading agricultural area in the United States. Nearly 78%
of the county's land area is farmland; and
WHEREAS. Buyer augments approximately 1000 wells of which, as of the Effective
Date, approximately ninety percent (90%) are irrigation wells which irrigate farm ground within
Weld County; and
WHEREAS, the parties acknowledge the importance of agriculture to Weld County and
recognize that the sale of Geisert Reservoir by the Seller to Buyer will benefit agricultural lands
within Weld County by providing an additional water supply which Buyer may use to augment
diversions from wells included in its augmentation plan;
WHEREAS, the Seller desires to sell and Buyer desires to purchase the Property upon the
terms and conditions set forth herein.
In addition, the Well Augmentation Subdistrict of the Central Colorado Water Conservancy District (WAS) may
also use water from Geisert Reservoir. WAS currently augments approximately 250 wells of which, as of the
Effective Date, approximately ninety percent (90%) are irrigation wells which irrigate farm ground within Weld
County. Nothing herein is intended to limit Buyer's use of the water stored in the Geisert Reservoir solely for
agricultural purposes, and the parties acknowledge that the percentage of irrigation wells Buyer augments is subject
to change in the future.
Page 1 of 13
Sea
NOW, THEREFORE, in consideration of the mutual promises of the parties and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
ARTICLE I
PROPERTY AND OTHER INTERESTS
1.1 Property and Other Interests. Buyer agrees to buy and Seller agrees to sell on the teiins
and conditions set forth in this Agreement the "Geisert Property," as more fully
described in this paragraph, together with all rights, easements, and benefits appurtenant
thereto.
1.1.1 Geisert Property. The Geisert Property consists of three parcels as follows:
(i) That parcel identified as Lot 1 of the "Greeley Saddle Club Subdivision"
("Parcel 1") as shown on the attached Figure 2.
(ii) That parcel identified as Parcel 2 of the "Geisert Pit Subdivision" ("Parcel
2") as shown on the attached Figure 3.
(iii) That parcel identified as Parcel 3 of the "Geisert Pit Subdivision" ("Parcel
3) as shown on the attached Figure 3.
1.1.2 Final Survey and Subdivision. Figure 2 and Figure 3 shall serve as references for
purposes of this Agreement only and represents the Parties' understanding of the
parcels to be conveyed to Buyer. Seller and the City of Greeley are in the process
of completing the respective Geisert Pit Subdivision and Greeley Saddle Club
Subdivisions necessary to accomplish the transfer of the Parcels as contemplated
in this Agreement. A final survey shall be used to describe the boundaries of the
parcels comprising the Geisert Property for purposes of conveying title to the
same ("Survey"). Once the Survey and subdivision are completed, a copy of the
survey and a legal description of the Geisert Property shall be provided to Buyer
indicating that land which will be included in the deed conveying title to the
same. Once the subdivision processes are complete, Parcel 1 shall be within the
city limits of the City of Greeley and Parcels 2 and 3 shall be in unincorporated
Weld County. Closing under this Agreement shall not occur until such time as the
subdivision processes are completed; however, this Agreement is contingent on
Seller acquiring such title.
1.2 Inclusions. Unless specifically excluded by the operation of Section 1.3 below, the
Geisert Property includes the following:
Page 2 of 13
1.2.1 All improvements, and any easements, servitudes, permits, licenses, and leases
appurtenant to the Geisert Property;
1.2.2 All mineral rights associated with and/or appurtenant to the Geisert Property and
owned by Seller, including, but not limited to, all title, right, interest, claim and
demand in and to all oil, gas, natural gas, sand, gravel and hydrocarbons
appurtenant to the Geisert Property, together with any and all surface use, access
easements, and all rights in connection therewith;
1.2.3 All of Seller's interest in water, wells, well rights, well permits, springs,
appurtenant to and/or enjoyed in connection with the Geisert Property, together
with all of Seller's interest, if any, in easements or rights-of-way, appurtenant
thereto or used in connection therewith, as well as all fixtures. apparatus and
ancillary equipment, appurtenant thereto or used in connection with said water
rights, specifically including any water conveyance structures, inlets, outlets and
pumps. The Seller is currently prosecuting an Application for Storage Rights and
Plan for Augmentation in Case No. 12CW304. After Closing, as defined below,
the Parties agree that they shall take all steps necessary to bifurcate Case No.
12CW304, with Buyer assuming all responsibility for the prosecution of the
storage rights component associated with Geisert Reservoir and the Seller
maintaining all responsibility for the prosecution of the augmentation plan
component associated with the unlined cells within the Geisert Pit. The Seller and
Buyer shall cooperate in good faith to successfully prosecute each component,
including the sharing of information as reasonably required by either party. The
storage rights component of Case No. 12CW304 and all other water rights
appurtenant to and/or enjoyed in connection with the Property as described in this
paragraph shall be referred to hereinafter as the "Water Rights." The Water
Rights include any water impounded in the Geisert Reservoir at the time of
Closing.
1.3 Exclusions. The Geisert Property does not include the Seller's Dust Control Well #1,
permitted under Well Permit No. 50246-F, located on the Property and decreed in Casc
No. 04CW359 ("County Well").
1.4 Capacity of Geisert Reservoir. The Parties anticipate the available storage capacity in
Geisert Reservoir to be approximately 1,200 acre-feet. Prior to the Closing, the actual
storage capacity of the Geisert Reservoir shall be determined by the Survey and
development of a stage area capacity curve. To the extent the actual storage capacity of
Page 3 of 13
Geisert Reservoir is greater or less than 1,200 acre-feet as shown by the Survey and
stage-area capacity curve, the Parties shall cooperate in good faith to make modifications
to this Agreement, if any. Any modification shall be in a writing signed by both Parties.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The purchase price for the Geisert Property is One Million, Five Hundred
Thousand and no/100 Dollars ($1,500,000.00) ("Purchase Price").
2.1.1 As a good faith deposit and part payment of the Purchase Price, Buyer will
deposit the sum of Five Thousand and no/100 Dollars ($5,000.00) in an interest
bearing account at Land Title Guarantee Company ("Deposit"). The Deposit will
be made within three (3)business days of the Effective Date. The Deposit shall be
for the benefit of the Buyer and shall be credited towards the Purchase Price.
2.1.2 The balance of the Purchase Price plus the Buyer's share of closing costs will be
paid at Closing, as defined below.
ARTICLE III
TITLE AND CLOSING
3.1 Time and Place of Closing. Subject to and in accordance with the provisions of this
Agreement, closing of the purchase and sale of the Geisert Property ("Closing") shall be
held at the offices of Land Title Guarantee Company ("Title Company") not less than
thirty (30) and not more than sixty (60) days from the date Seller acquires title all lands
included in Parcel 1 ("Closing Date").
3.2 Title Insurance. Within thirty (30) days of the Effective Date, Seller shall deliver to
Buyer one or more commitment(s) for an ALTA Owners Policy of Title Insurance
("Commitment") committing the Title Company to issue a policy insuring title to the
Geisert Property in accordance with the Commitment in the name of the Buyer. The
Commitment shall bear an effective date subsequent to the Effective Date and shall
include complete, legible copies of all documents referred to herein. Buyer hereby agrees
that Seller may satisfy its obligation to deliver the Commitment by delivery of a
commitment which is subject to approval of the Title Company's underwriter but which
otherwise satisfies the conditions of the Commitment; provided that if the final
Commitment issued by the title company includes additional exceptions to title then
Buyer shall be entitled to object to such additional matters as provided for herein and the
Page 4 of 13
dates for title review, objection, and response shall be similarly extended at Buyer's
discretion.
3.3 Objections. Within seven (7) business days of receiving the Commitment, Buyer shall
deliver to Seller written notice of Buyer's objections to title, if any. Permissible
exceptions to title shall include only (together, "Permitted Exceptions"): (i) zoning
laws and building ordinances; and (ii) title exceptions shown on the Commitment to
which Buyer has not objected or is deemed to have accepted by failing to object; and (iii)
an easement for the City of Greeley's water line through the Geisert Property at a
location to be shown on the Survey. If Buyer fails to so deliver a title objection notice
on or before the above-stated date then Buyer shall be deemed to have waived its rights to
object to the exceptions listed in the Title Commitment.
3.4 Cure. If Seller will not cure or remove or commit to removing the objections or
otherwise fails to respond to Buyer's notice of title objections on or before seven (7)
business days following Buyer's notice of objections, then Buyer may terminate this
Agreement by written notice to Seller on or before the date which is two (2) business
days after the end of such seven (7) day period, whereupon the Deposit shall be
returned to Buyer and the Parties shall be released from all further obligations
hereunder. In the event Buyer does not so terminate this Agreement, Buyer shall be
deemed to have waived such objections (other than any objections Seller has
agreed in writing to cure), and such objections shall be deemed Permitted Exceptions
hereunder.
3.5 Title Insurance Policy. A title insurance policy consistent with the Commitment
shall be issued or committed to be issued by the Title Company as of the date of
Closing and shall show no exceptions other than the Permitted Exceptions (the "Title
Policy"). Notwithstanding anything to the contrary in this Agreement, Seller shall
pay off or obtain releases of all existing mortgages and other lien indebtedness with
respect to the Geisert Property at Closing, and such matters shall not be deemed
Permitted Exceptions.
3.6 Delivery of Documents and Purchase Price. On or before the Closing Date, Seller and
Buyer shall accomplish the following:
3.6.1 Seller shall deliver or cause to be delivered to Title Company:
(i) A special warranty deed conveying the Geisert Property, mineral rights
appurtenant to the Geisert Property, and any improvements to Buyer, duly
executed and acknowledged by Seller, free and clear of all taxes and
assessments and other liens and encumbrances except non-delinquent
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general property taxes for the year of Closing and the Permitted
Exceptions.
(ii) A special warranty deed transferring and assigning to Buyer all of Seller's
interest in the Water Rights, together with any easements or rights-of-way
appurtenant thereto or used in connection with the Water Rights.
(iii) An agreement granting to Buyer the following easements: (1) an easement
for access to the Geisert Property from "H Street " including as necessary,
an easement to cross Seller's adjoining property in the N ''A of Section 31,
Township 2 North, Range 65 West of the 6th Y.M.; (2) an easement for
access over, through, and under the Poudre River Trail Pathway, which
borders the Geisert Property to the west and south, for purposes of
accessing, constructing, operating, maintaining, and repairing inlet and
outlet structures to divert water to and from the Poudre River and Geiscrt
Reservoir, and said easement shall include the right of Buyer to access the
Poudre River Trail Pathway to reinforce the river channel as necessary or
advisable for maintaining the integrity of the Geisert Reservoir as a water
storage vessel and Buyer's water conveyance structures, subject to the
permission from other parties to install such reinforcements on the river
channel, including the Poudre Trail Authority or successor entity charged
with management of the Poudre River Trail Pathway; and (3) and an
easement to access, operate, maintain, and repair the existing pipeline
between the Geisert Reservoir and the Poudre River under the Poudre
River Trail Pathway. The location and extent of such easements shall be
shown in the Survey. The easement agreement shall substantially take the
form of Exhibit A, attached hereto ("Easement Agreement").
(iv) Any other documents required to be executed by Seller pursuant to the
terms of this Agreement or requested by Title Company in connection
with the transaction contemplated hereunder or as may be required
pursuant to applicable law.
3.6.2 Buyer shall deliver or cause to be delivered to Title Company:
(i) The Purchase Price calculated pursuant to the terms of Section 2.1 herein.
(ii) The Easement Agreement granting to Seller the necessary easements for
Seller to (1) access, operate, maintain repair, and replace the County Well,
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as described in Section 1.3;(2) store up to 20 acre-feet of water in the
Geisert Reservoir ("County Water"); and (3) install, access, operate,
maintain, and repair a temporary water pump and water conveyance
structures to transfer County Water from the Geisert Reservoir across the
Geisert Property to property Seller owns in the W 1/2 of NE '/a of Section
31, Township 6 North, Range 65 West of the 6th P.M. in Weld County for
purposes of maintaining wetlands on that property.
3.7 Closing Costs. The Title Policy premium shall he paid by Buyer. The cost of any transfer
fees, taxes or escrow fees and charges shall be shared equally between the parties. Buyer
and Seller shall sign and complete all customary or required documents at or before
closing. Fees for real estate closing services shall be paid by Buyer.
3.8 Payment of Encumbrances. Any encumbrances required to be paid shall be paid at or
before Closing from the proceeds of this transaction or from any other source.
ARTICLE IV
CONDITIONS TO CLOSING
4.1 Buyer's Conditions. Buyer's obligation to purchase the Geisert Property is subject to the
fulfillment prior to Closing of each of the following conditions, each of which is for the
benefit of buyer and any of which may be waived by Buyer at its sole option:
4.1.1 Document Review. Buyer's review and approval of the following documents and
materials with thirty (30) days of the Effective Date of this Agreement. which
documents Seller shall use its best efforts to cause to be delivered to Buyer
contemporaneously with the execution of this Agreement, but no later than fifteen
(15) days after the date of execution of this Agreement:
(i) Seller shall provide Buyer with a current ALTA preliminary title report for
the Geisert Property, accompanied by copies of all documents referred to
in such reports, or if not available as of the deadline required by this
paragraph, copies of all work completed by the title company;
(ii) Copies of all applications, permits, licenses, certificates, or agreements
relating to zoning, operation, occupancy or use of the Geisert Property;
especially as the same relate to storage of water in Gesiert Reservoir; and
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(iii) Copies of any surveys, soils and/or engineering reports, feasibility studies,
site plats and plans, and other reports, studies or documents relating to the
Geisert Property.
4.1.2 Physical Inspection. Buyer's inspection, review and approval of the physical and
environmental condition of the Geisert Property within twenty-one (21) days of
the Effective Date of this Agreement.
4.1.3 Approvals. This Agreement shall have been approved by the Board of Directors
of the Central Colorado Water Conservancy District ("Central Board"), and in
the event this Agreement is not approved in its entirety by the Central Board,
neither the Buyer nor Seller shall be bound by the terms of this Agreement.
4.1.4 Subdivision Completed. The Seller and the City of Greeley shall complete their
respective subdivision processes such that the Geisert Property can be fully
conveyed to Buyer.
4.1.5 Closing Obligations. Seller shall have complied with the Closing procedures set
forth in Article III herein.
4.2 Seller's Conditions:
4.2.1 Approvals. This Agreement shall have been approved by the Board of County
Commissioners of the County of Weld ("County Board"), and in the event this
Agreement is not approved in its entirety by the County Board, neither the Buyer
nor Seller shall be bound by the terms of this Agreement
4.2.2 Closing Obligations. Buyer shall have complied with the Closing procedures set
forth in Article III herein.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Seller represents and warrants as follows:
5.1 Encumbrances. From the Effective Date of this Agreement until the Closing, except
for the Permitted Exceptions defined herein, Seller will not encumber the
Geisert Property or other interests in any way nor grant any property or
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contractual rights relating to the Geisert Property o r other interests without the
prior written consent of Buyer.
5.2 Compliance with Governmental Regulations. To the best of Seller's current, actual
knowledge there are no orders or directives of any city, county, state, or federal authority
for repairs, maintenance work, or improvements to be performed on the Geisert Property.
To the best of Seller's current, actual knowledge Seller has received no written notice
from any municipal, state, or other statutory authority relating to defects in any
improvement or noncompliance with any building code or restriction, applicable to the
Property that has not been correct, or any threat of or impending expropriation or
condemnation of the Property.
5.3 Condition of Property. Seller will provide Buyer with a Seller's property disclosure
form completed by Seller to the best of Seller's actual knowledge as of the date
thereof To the best of Seller's current, actual knowledge, Seller is not aware of any
material defect or condition affecting the use, development or value of the Property
including the presence of any hazardous wastes, toxic or other contamination. To the
best of Seller's current actual knowledge, the Property is not used and has not been
used in the past as a waste disposal or landfill for hazardous materials or sanitary
landfill purposes.
5.4 Litigation. To the best of Seller's current, actual knowledge, no litigation is pending, or
to the best of Seller's knowledge, proposed, threatened, or anticipated with respect to any
matter affecting the Property;
5.5 Contracts, Leases, and Agreements. Except as otherwise shown in the Commitment,
there are no leases, subleases, contracts, or other agreements, written or oral, regarding
the Property, or granting to any party or parties the right to use or occupy the Property,
which will survive Closing. From the Effective Date through the Closing Date, Seller
shall not enter into any lease or contract with respect to the Property without Buyer's
written consent;
5.6 Compliance with Law. To the best of Seller's current, actual knowledge, Seller has
complied in all material respects with all laws, rules, regulations, ordinances, orders,
judgments, and decrees applicable to the Property, and Seller has no current actual
knowledge of any proposed order, judgment, decree, governmental taking, or other
proceeding applicable to Seller which might materially and adversely affect the Property.
5.7 Utilities. Seller has not received any written notice of the curtailment of any utility
service supplied to the Property.
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5.8 Mining Reclamation. The Geiiert Pit is the result of previous mining operations
conducted on the Property pursuant to Permit No. 78-210 issued by the Colorado Mined
Land Reclamation Board, as amended or reissued, including any reclamation plans
("Geisert Mining Permit"). Though mining operations within the Property will be
completed prior to Closing, Seller shall remain responsible for the timely completion of
any remaining reclamation obligations required by the Geisert Mining Permit, except that
Buyer and Seller shall cooperate in good faith regarding the reseeding of the area
immediately adjacent to the inlet and outlet structures to be constructed by Buyer to
transfer water to and from the Poudre River to the Geisert Reservoir. Buyer's installation
of such inlet and outlet structures and the reseeding of such area may require a teelmical
revision to the Geisert Mining Permit. The Parties agree further to cooperate in good faith
to complete and submit the technical revision to the Geisert Mining Permit, as necessary,
to include these activities. Buyer shall reimburse the Seller for the costs incurred to file
and submit the technical revision up to $216.00. All reclamation required to be done
below the water line of the Geisert Reservoir shall be completed on or before Closing
such that Buyer can commence storage of water in the Geisert Reservoir on that date.
Additional reclamation which does not prevent Buyer from using the Geisert Reservoir
for its intended purpose of water storage shall be completed within 5 years of the final
seeding which occurred in December 2014, except the installation of Buyer's inlet and
outlet structures and the reseeding around such structures are not required to be
completed by this date.
5.9 As-Is. Except for the representations and warranties set forth herein or in the documents
delivered at Closing, Seller disclaims the making of any representations or warranties,
express or implied, regarding the Geisert Property or matters affecting the Geisert
Property, including but not limited to its physical condition, title to or the boundaries of
the Geisert Property, soil conditions, hazardous waste, toxic substance or other
environmental matters, compliance with building, health, safety, land use. environmental
laws, regulations and orders, the ability to develop the Geisert Property for any purpose,
and all other information pertaining to the Geisert Property. Buyer, moreover,
acknowledges that, except for the representations and warranties set forth herein or in the
documents delivered at Closing: (1) Buyer has entered into this Agreement with the
intention of relying upon its own investigation of the physical, environmental, economic,
and legal condition of the Property and (ii) Buyer is not relying upon any statements,
representations, or warranties made by Seller or anyone acting or claiming to act on
Seller's behalf concerning the Property. Except for the representations and warranties
set forth herein or in the documents delivered at Closing, Buyer shall purchase the
Property in its "AS-IS, WHERE-IS" condition as of Closing.
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5.10 Condemnation. In the event any portion of the Geisert Property is condemned or access
thereto shall be taken or proceedings or negotiation therefor are commenced prior to
Closing, if Buyer, in Buyer's sole discretion, concludes that such taking renders the
remainder of the Geisert Property unsuitable for Buyer's purposes, and Buyer notifies
Seller in writing of such conclusion prior to Closing, then this Agreement shall terminate
and the Deposit shall be refunded to Buyer. If the Agreement is not so terminated, the
Purchase Price shall not be affected, and (1) if a condemnation award is paid prior to the
Closing, then at Closing, Seller shall assign such award to Buyer, and (2) at Closing,
Seller shall assign all claims to Buyer, and Buyer shall have the right to contest the
condemnation of the Geisert Property and/or the award resulting therefrom.
ATRICLE VI
MISCELLANEOUS
6.1 Fees and Expenses Apportionment. Except as otherwise expressly set forth in this
Agreement, the Buyer and Sellers hereto will bear its own expenses in connection with
transaction contemplated by this Agreement.
6.2 Possession of Property. Possession of the Geisert Property and Water Rights shall be
delivered to Buyer at Closing. In accordance with Paragraph 5.8, Seller and/or Seller's
agent(s) may access the Property after the Closing Date, upon reasonable notice to Buyer.
for the purpose of conducting reclamation work necessary to release the Geisert Mining
Permit.
6.3 Default.
6.3.1 Buyer's remedies for Sellers's breach or default hereunder, or in the event, that, at
the Closing, any condition precedent to Buyer's obligations hereunder is not fully
satisfied as herein required, Buyer not being in breach or default hereunder, Buyer
may elect one of the following remedies to be exercised by or on behalf of the
Buyer, as Buyer's sole and exclusive remedy:
(i) Terminate this Agreement by giving Seller timely written notice of such
election prior to or at Closing, and thereupon this Agreement shall
terminate and Buyer shall be entitled to the return of the Deposit, and all
parties hereto or mentioned herein shall be relieved and released of all
further obligations, claims and liabilities hereunder except those that
expressly survive any such termination of this Agreement; or
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(ii) Waive, prior to or at the Closing, the applicable objection, default, or
condition and proceed to close the transaction contemplated hereby in
accordance with the remaining terms hereof without any adjustment in the
Purchase Price, and Buyer shall have the right to specific performance
thereof.
(iii) The right to specific performance of this Agreement on the terms and
conditions herein.
6.3.2 If Buyer breaches its obligations pursuant to this Agreement. Seller shall have , as
its sole and exclusive remedy, the right to receive from the Title Company the
Deposit as liquidated damages and not as a penalty in full satisfaction of Seller's
claim (including attorney's fees) against Buyer.
6.4 Notice. Any notice required or permitted to be given under this Agreement shall be in
writing and shall be deemed given and effective when delivered by electronic mail,
Express Mail, Federal Express, or like service, or on the third mail delivery day after it is
deposited in the United States mail, postage prepaid by certified or registered mail, return
receipt requested, addressed to the parties as follows:
If to Buyer: Central Colorado Water Conservancy District
3209 W. 28th Street
Greeley, CO 80634
If to Seller: Board of County Commissioners of the County of Weld
c/o Weld County Attorney's Office
1150 O Street
Greeley, CO 80631
6.5 Risk of Loss. Seller shall be responsible for all risks of damage, loss, or injury to the
Geisert Property and all property-owner liability prior to Closing. In the event any
material damage occurs to the Geisert Property between the Effective Date and the
Closing Date, Buyer may declare this Agreement null and void and receive a refund of
the Deposit.
6.6 Brokerage. Seller and Buyer hereby warrant to each other that no real estate agent or
other broker or finder is involved in this transaction. Each party agrees to indemnify and
hold harmless the other against any and all claims based in whole or in part on act of such
indemnifying party for commissions, fees, or other compensation made by any such real
Page 12 (31.13
estate agent, broker, or finder as the result of the sale of the Geisert Property
contemplated hereby.
6.7 Governing Law. This Agreement shall be governed by Colorado law. Any warranties or
covenants by and between the parties agreed to herein shall survive the Closing and
transfer of title to Buyer and shall not be merged with the deeds delivered at Closing.
6.8 Entire Agreement. This Agreement, including its exhibits and schedules, which are
hereby incorporated herein, shall constitute the entire agreement between Seller and
Buyer and supersedes any other written or oral agreements between Seller and Buyer.
This Agreement may be modified only by the written agreement of both parties.
6.9 Assignment. This Agreement shall he binding upon, and shall inure to the benefit of,
Seller and Buyer and their respective successors and assigns. Neither party may assign its
interest under this Agreement without the prior written consent of the other party.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date
set forth below:
BUYS ' G SELL . : Board of Weld County
attl, ail Commiss ' ners
Barbara K kmeyer, Chair
3 "S"-
DATE DATE
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