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HomeMy WebLinkAboutbocc.ord.005.2026ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS (“BOCC”) OF PITKIN COUNTY, COLORADO AUTHORIZING ACQUISITION OF SHARES IN THE TWIN LAKES RESERVOIR & CANAL COMPANY AND THE FOUNTAIN MUTUAL IRRIGATION COMPANY ORDINANCE NO. 005- 2026 RECITALS: WHEREAS, Pursuant to 30-35-301 C.R.S., the Board of County Commissioners (“BOCC”) of Pitkin County, Colorado a Home Rule County is authorized to make and publish ordinances for carrying into effect or discharging the powers and duties conferred upon such counties by law and as seems necessary, and; WHEREAS, Pursuant to Section 2.8.1 of the Home Rule Charter (“HRC”), the BOCC is authorized to take official action by Ordinance for certain matters where action is prescribed pursuant to the Colorado Revised Statutes as amended, and; WHEREAS, the Voters of Pitkin County and the BOCC established a Healthy Rivers and Stream Fund in 2008 which is funded through a local sales tax, and established a Healthy Rivers & Streams Board of Trustees to guide the expenditure of those funds, and; WHEREAS, the Healthy Rivers and Streams Program is charged with protecting, defending, and enhancing the waters of the Roaring Fork Watershed; and; WHEREAS, waters tributary to the Roaring Fork River are transported to the eastern slope of the Continental Divide as part of the Independence Pass Transmountain Diversion Project, and; WHERAS, there is a shortage of water available for beneficial uses on the Roaring Fork and Colorado Rivers, particularly during the irrigation season, and; WHEREAS, water from the shares in the Twin Lakes Reservoir and Canal Company is decreed for multiple uses on the Roaring Fork and Colorado Rivers, and; WHEREAS, water delivered to the Roaring Fork River will have an incidental benefit of improving the health of the Roaring Fork River upstream of its place of use, and: WHEREAS, the County has negotiated the purchase of sixty (60) shares of the Twin Lakes Reservoir and Canal Company (the “Twin Lakes Shares”) from Castle Concrete and thirty-four (34) shares of the Fountain Mutual Irrigation Company (the “Fountain Mutual Shares”) from Castle Concrete’s corporate parent, Riverbend Industries, Inc., for a purchase price of Six Million Five Hundred Thousand Dollars ($6,500,000.00), and; ORDINANCE NO. 005- 2026 WHEREAS, it was a condition of the purchase of the Twin Lakes Shares that the County also purchase the Fountain Mutual Shares, and; WHEREAS, the Pitkin County Healthy Rivers and Streams Board voted in favor of the acquisition on January 15, 2026; and, WHEREAS, The BOCC finds that adoption of this ordinance is in the best interest of the citizens of Pitkin County. NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that it hereby adopts an Ordinance Authorizing the Acquisition of Shares in the Twin Lakes Reservoir and Canal Company and Fountain Mutual Irrigation Company and authorizes the Chair or the Chair’s designee to sign the Ordinance and upon the satisfaction of the County Attorney as to form, execute the contract (appended hereto as Exhibit A) and any other associated documents necessary to complete this matter. Further, that the Chair or the Chair’s designee shall be authorized to: 1. Approve an expenditure of up to $6,500,000.00 for the purchase of the Twin Lakes Reservoir and Canal Company and Fountain Mutual Irrigation Company and transaction costs up to $335,000.00; and 2. Execute such other documents as necessary to complete the transaction upon approval of the form by the County Attorney. ORDINANCE NO. 005- 2026 INTRODUCED AND FIRST READ ON THE 28TH DAY OF JANUARY, 2026 AND SET FOR SECOND READING AND PUBLIC HEARING ON THE 11TH DAY OF FEBRUARY 2026. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE ORDINANCE PUBLISHED IN THE ASPEN DAILY NEWS ON THE 29TH DAY OF JANUARY, 2026. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) ON THE 29TH DAY OF JANUARY 2026. ADOPTED AFTER FINAL READING ON THE 11TH DAY OF FEBRUARY 2026. POSTED BY TITLE AND SHORT SUMMARY AFTER ADOPTION, ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com ) AFTER ADOPTION, ON THE 19TH DAY OF FEBRUARY 2026. PUBLISHED BY TITLE AND SHORT SUMMARY AFTER ADOPTION, IN THE ASPEN DAILY NEWS ON THE 19TH DAY OF FEBRUARY, 2026. ATTEST: BOARD OF COUNTY COMMISSIONERS By By: _ Sam Engen Jeffrey H. Woodruff, Chair Deputy County Clerk Date: _______________________ APPROVED AS TO FORM: MANAGER APPROVAL Richard Y. Neiley, III, Kara Silbernagel, County Attorney Interim County Manager Feb-12-2026 1 36419726 PURCHASE AND SALE AGREEMENT (Water Rights) This Purchase and Sale Agreement (“Agreement”) is entered into ____________________, (“Effective Date”) by and between Castle Concrete Company, a Colorado corporation (“Seller”), and the Board of County Commissioners of Pitkin County, Colorado, a body corporate and politic (“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 sixty (60) shares of the Twin Lakes Reservoir and Canal Company, represented by Share Certificate No. 8999 (the “Twin Lakes Shares”). Riverbend Industries, Inc., a Delaware Corporation (“Riverbend”), which is the corporate parent of Seller, is the owner of thirty-four (34) shares of the Fountain Mutual Irrigation Company represented by Share Certificate No. 1705 (the “Fountain Mutual Shares”). The Twin Lakes Shares and the “Fountain Mutual Shares are collectively referred to herein as the “Ditch Shares.” Seller has historically used the Twin Lakes Shares for augmentation at that certain gravel pit operation, known as the Grisenti Pit (Division of Reclamation, Mining, and Safety under File No. M-2001-005) pursuant to a substitute water supply plan in accordance with C.R.S. 37-92-308 (the “Grisenti Pit SWSP”). Seller has historically used the Fountain Mutual Shares for gravel washing and processing. 2. Historical Use & Transfer. As further consideration, Seller, or Seller’s agent, agrees to provide Buyer any and all due diligence materials within the possession of Seller regarding the manner in which the Ditch Shares have been used by Seller. Seller has provided such materials that are responsive to Buyer’s requests prior to the Effective Date. Seller shall provide any additional materials that come into Seller’s possession after the Effective Date and, Seller shall make ancillary information related to the Ditch Shares available at the offices of Seller’s legal counsel upon request. Seller, or Seller’s agent agrees to cooperate and participate in good faith with any request necessary to complete any transfer approval process of the Ditch Shares or any court proceedings as may be required to change the use of the Ditch Shares and provide affidavits as to Seller’s use of the Ditch Shares. Seller shall cooperate at no cost to Seller. Docusign Envelope ID: D762CEF9-4843-463C-9568-8A72BA7CF664 1/8/2026 2 36419726 3. Purchase Price. The Purchase Price for the combined Ditch Shares is Six Million Five Hundred Thousand and 00/100 Dollars ($6,500,000.00). 4. Earnest Money. Within five (5) days following the execution of this Agreement, Buyer shall deposit into an interest bearing escrow account (the “Escrow Account”) administered by Land Title Guaranty Company through its offices located at 3033 East First Avenue, Suite 600, Denver, Colorado 80206 or such other escrow agent as selected by Buyer (the “Escrow Agent”) the amount of One Hundred Thousand and 00/100 Dollars ($100,000.00) (the “Earnest Money”). Provided this Agreement has not been terminated, the Earnest Money shall be released to Seller as non-refundable at the end of the Due Diligence Period defined in Paragraph 6, below. The Earnest Money shall be applied to the Purchase Price at Closing. 5. Title and Conveyance. 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. At Closing, Seller shall convey the Twin Lakes Shares to Buyer pursuant to a special warranty deed substantially in the form attached hereto as Exhibit A (the “Share Deed”) and shall also execute and deliver an assignment for the Twin Lake Shares in such form as required by the applicable issuing ditch company. At Closing, Seller shall cause Riverbend to convey the Fountain Mutual Shares to Buyer pursuant to a special warranty deed substantially in the form of the Share Deed and shall also cause Riverbend to execute and deliver an assignment for the Fountain Mutual Shares in such form as required by the applicable issuing ditch company. 6. Due Diligence. Buyer shall have 45 days following the Effective Date (“Due Diligence Period”) to terminate this Agreement if Buyer, in Buyer’s sole and absolute discretion, is dissatisfied with the Ditch Shares to be acquired hereunder for any reason whatsoever, in which case the Earnest Money deposit shall be immediately returned to Buyer. Buyer will act in good faith and will expend monies and effort during the Due Diligence Period for the purpose of verifying the suitability of the Ditch Shares for Buyer’s intended purpose(s). Seller shall cooperate with Buyer as reasonably necessary to facilitate Buyer’s examination of the due diligence materials and, if requested, the records of the applicable issuing ditch companies. 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. If Buyer sends notice of its dissatisfaction with the Ditch Shares, Seller shall have 10 days following actual receipt of such notice of dissatisfaction to either (1) give notice that Seller elects to cure some or all of the issues described in the notice, or (2) give notice that Seller elects to not cure such issues. It shall be conclusively presumed that Seller has elected not to cure any of the issues described in Buyer’s notice if Seller fails to send written notice in response to Buyer’s notice within the 10-day response period provided above. If Seller elects, or is deemed to have elected, not to cure all such issues, Buyer shall have the right to terminate this Agreement, or to Docusign Envelope ID: D762CEF9-4843-463C-9568-8A72BA7CF664 3 36419726 waive any issues Seller has elected not to cure. The Seller shall not accept or consider other offers for the Property during the Due Diligence Period. 7. Right of First Refusal. Amrize Ltd. f/k/a Holcim Group (“Amrize”) holds a right of first refusal to match the terms of this Agreement to acquire the Ditch Shares pursuant to that certain Water Lease and Right of First Refusal dated February 1, 2019 (the “ROFR Agreement”). Seller has submitted the terms of the Buyer’s offer consistent with this Agreement to Amrize for their consideration pursuant to the terms of the ROFR Agreement. This Agreement shall be void if Amrize exercises its right of first refusal and enters into a contract to acquire the Ditch Shares under the same terms as defined herein. In such event, the Earnest Money shall immediately be returned to the Buyer and Seller shall pay Buyer Fifty Thousand and 00/100 Dollars ($50,000.00) in consideration of Buyer’s expenditures in pursuit of the Ditch Shares. As of the Effective Date, Amrize has not exercised its right of first refusal and the time for it to do so expired as of December 18, 2025 8. Title Assurances. During the Due Diligence Period, Seller will request share traces for the Ditch Shares from the respective issuing ditch companies and provide such evidence that Seller may have in its possession and control to demonstrate to Buyer’s satisfaction that Seller holds and can transfer clear and marketable title to the Ditch Shares, free from any liens, encumbrances, or other restrictions, except those expressly permitted by Buyer. Buyer acknowledges and agrees that the Twin Lakes Shares are subject to and pledged for use under the Grisenti Pit SWSP until the end of the current extension term of the Grisenti Pit SWSP which expires on March 31, 2026. Seller covenants that it shall not pledge the Twin Lakes Shares for an extension of the Grisenti Pit SWSP or any other purpose after the end of the current extension term of the Grisenti Pit SWSP. 9. Cooperation. Seller agrees to cooperate with Buyer in obtaining any regulatory approvals to transfer and use the Ditch Shares, and Seller will, at Buyer’s request, sign any applications necessary for approval of said transfers. In response to any questions or requests by Buyer for additional information pertaining to the Ditch Shares, Seller will cooperate by providing such additional information or documents in Seller’s possession and by consenting to Buyer’s access to any records held by the respective issuing ditch companies with respect to the Ditch Shares, and other reasonable actions. 10. Assessments. All assessments levied by the Twin Lakes Canal and Reservoir Company and the Fountain Mutual Irrigation 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. 11. Transfer and Escrow Fees. Any fees by Twin Lakes Canal and Reservoir Company and/or the Fountain Mutual Irrigation Company to complete the transfer of the Ditch Shares shall be paid by the Buyer. Likewise, any escrow fees shall be paid by the Buyer. Docusign Envelope ID: D762CEF9-4843-463C-9568-8A72BA7CF664 4 36419726 12. Closing Deliveries. Seller shall deliver the original certificates evidencing ownership of the Ditch Shares to the Escrow Agent on or before the Closing Date together with properly executed and notarized special warranty deeds in the form of the Share Deed, stock assignments and any and all other documents required by the respective ditch companies as necessary to effectuate the transfer of the Ditch Shares from Seller to Buyer or such other documents as Seller has agreed in writing to deliver at Closing. 13. Closing. The closing of the purchase and sale of the Ditch Shares (“Closing”) will take place within five (5) days following end of the Due Diligence Period or such other date as the Parties may agree. The Closing will take place at the offices of the Escrow Agent on April 2, 2026 or such later date as the Parties may agree (the “Closing Date”). 14. 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 available at law specifically excluding any special, consequential or punitive damages. 15. Costs and Expenses. Each Party shall pay their own consulting, attorney, and brokerage fees and costs incurred as part of this transaction, subject to, however, Seller’s agreement to pay Buyer $50,000 in the event Amrize exercises its right of first refusal for the Ditch Shares as described in Paragraph 7, above. 16. 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: Board of County Commissioners of Pitkin County, Colorado Attn: Pitkin County Attorney 530 E. Main Street, Suite 301 Aspen, CO 81611 attorney@pitkincounty.com Docusign Envelope ID: D762CEF9-4843-463C-9568-8A72BA7CF664 5 36419726 Seller: Castle Concrete Company Attn: Ronald J. Gidwitz and Brian Kobylinski 110 N. Wacker Drive, Suite 3300 Chicago, IL 60606 rgidwitz@riverbendindustries.com bkobylinski@riverbendindustries.com with copies to: Mr. Craig Knot cknot@riverbendindustries.com and Andrew L. Meyers ameyers@bhfs.com 17. Amendment. This Agreement may only be amended by the written, signed mutual agreement of the Parties. 18. 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. 19. 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. 20. 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. Neither Party may assign its rights or delegate its duties under this Agreement without the prior written consent of the other Party. 21. Counterparts. The Parties may execute this Agreement in counterparts which, when taken together, shall constitute one agreement. 22. 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 Pitkin. Docusign Envelope ID: D762CEF9-4843-463C-9568-8A72BA7CF664 6 36419726 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement by the Effective Date. BUYER: SELLER: Board of County Commissioners of Castle Concrete Company Pitkin County, Colorado _______________________ __________________________ By: Jeffrey Woodruff By: Brian Kobylinski Board Chairman President Docusign Envelope ID: D762CEF9-4843-463C-9568-8A72BA7CF664 A-1 36419726 Exhibit A Form of Special Warranty Deed WHEN RECORDED RETURN TO: _____________________________ ________________________ _____ ATTN: ________________________ Special Warranty Deed (Water Rights – [______] Shares) THIS DEED, made this day of ____________, 202_, between _________________, a _________________, whose address is ___________________ (“Grantor”), and _________________, a _________________, whose address is ___________________ (“Grantee”). WITNESSETH, that Grantor, for the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey, and confirm unto Grantee, Grantee's heirs and assigns forever all of the water rights described below (“Water Rights”): The water rights represented by _____________ (__) shares of the capital stock of the _____________, represented by Certificate No[s]. ________ (“Shares”) and the water derived therefrom. All beneficial right, title and interest, if any, in all water, water rights, ditches, ditch rights, reservoirs, reservoir rights, canals, canal rights, headgates and all other assets, rights, title or interests represented by said Shares, and in addition, and in no way limited by the foregoing, any and all other right, title or interest in the ____________ [insert ditch company name] represented by said Shares. TOGETHER with all and singular hereditaments and appurtenances thereto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title interest, claim and demand whatsoever of the Grantor, either in law or equity, of, in and to the above bargained Water Rights, with the hereditaments and appurtenances. TO HAVE AND TO HOLD the said Water Rights above bargained and described with the appurtenances, unto Grantee and Grantee's heirs and assigns forever. Grantor, for the Grantor and Grantor's successors and assigns, does covenant and agree that Grantor shall WARRANT AND FOREVER DEFEND the above-bargained Water Rights in the quiet and peaceable possession of Grantee and Grantee's successors and assigns, against all and every person or persons claiming the whole or any part thereof, by, through or under Grantor. Docusign Envelope ID: D762CEF9-4843-463C-9568-8A72BA7CF664 A-2 36419726 IN WITNESS WHEREOF, Grantor has executed this Special Warranty Deed on the date set forth above. GRANTOR: _________________, a _________________ By: ___EXHIBIT -- DO NOT EXECUTE_ Name: Title: State of _____________ ) ) ss. County of _____________ ) The foregoing Special Warranty Deed was acknowledged before me this _____ day of ______________, 202_ by ___________ as _________________ of _________________, a _________________. Witness my hand and official seal Notary Notary Public My Commission Expires: (SEAL) Docusign Envelope ID: D762CEF9-4843-463C-9568-8A72BA7CF664