BARGAIN AND SALE DEED
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This Bargain and Sale Deed (the "Deed") is dated the 11th day of April,
1996, among the State of Colorado, acting by and through the State Board of Land
Commissioners (the "Land Board"), whose address is 620 Centennial Building, 0000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, and Rangeview Metropolitan District, a
quasi-municipal corporation and political subdivision of the State of Colorado,
acting by and through its water activity enterprise ("Rangeview"), whose address
is 000 Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000 (Rangeview and Land
Board being collectively referred to herein as "Grantors"), and Pure Cycle
Corporation, a Delaware corporation ("Grantee"), whose address is 0000 Xxxx
Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000.
WITNESSETH, that Rangeview, for and in consideration of delivery from Pure
Cycle to Rangeview of Rangeview Metropolitan District Water Revenue Bonds,
Series 1988M, Rangeview Metropolitan District Water Revenue Notes, Series
0000X-X, Xxxxxxxxx Xxxxxxxxxxxx Xxxxxxxx Xxxxx Revenue Notes, Series 1987A-L,
and other good and valuable consideration, the receipt of which is hereby
acknowledged by Rangeview; and the Land Board, for and in consideration of (a)
Rangeview's agreement to obtain and extinguish all said notes and bonds, (b)
other consideration contained in the Amended and Restated Lease Agreement No.
S-37280, dated April 11, 1996 between Rangeview and the Land Board, which Lease
is recorded with the Arapahoe County Clerk and Recorder at Book No. A6097802,
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Page No. _______ (Reception No. A6097802) (the "Lease"), and (c) other good and
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valuable consideration, the receipt of which is hereby acknowledged by the Land
Board; do hereby severally grant, bargain, sell, convey, assign and confirm unto
Grantee, its successors and assigns forever, the Export Water (as that term is
defined in the Lease) which is located on and under that certain real property
consisting of approximately 24,567.21 acres, more or less, according to U.S.
Government survey, in Arapahoe County, Colorado, more particularly described as
follows (the "Xxxxx Range"):
Township 5 South, Range 64 West of the 6th P.M.,
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Sections 7 through 10: all;
Sections 15 through 22: all;
Sections 27 through 34: all.
Township 4 South, Range 65 West of the 6th P.M.,
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Sections 33: all and 34: all.
Township 5 South, Range 65 West of the 6th P.M.,
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Section 3: all; Sections 10 through 15: all, less certain
surface rights granted for the Aurora Reservoir (but
including the water under the Aurora Reservoir) in Section
15; Sections 22 through 27: all, less certain surface rights
granted for the Aurora Reservoir (but including the water
under the Aurora Reservoir) in Section 22; Sections 35 and
36: all; Section 34: north 2,183.19 feet.
Township 5 South, Range 66 West of the 6th P.M.,
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Section 36: all
(a street address of the Xxxxx Range does not exist);
TOGETHER WITH all rights afforded to the Export Water under the Lease;
SUBJECT TO the reservations, exceptions, terms, and conditions, including,
without limitation, provisions concerning royalty payments, quality of water,
abandonment, shared use of transmission lines and facilities, default and
termination of rights to Export Water, set forth in the Lease, which
reservations, exceptions terms and conditions, and the rights of the Land Board
and Rangeview with respect thereto, shall not be modified or superseded by any
provision in this Deed, it being understood and agreed that the provisions
hereof are merely cumulative of the provisions of the Lease;
FURTHER SUBJECT TO rights of first refusal, if any such rights exist, to
the Export Water which may be held by the County of Arapahoe, Colorado, or East
Cherry Creek Valley Water and Sanitation District;
AND SUBJECT FURTHER TO the covenants, conditions and restrictions set forth
herein and in the water decrees by which such water is adjudicated, which
decrees shall remain in the name of the Land Board subject to the provisions of
the Lease;
TO HAVE AND TO HOLD the Export Water, and its appurtenances, unto Grantee,
its successors and assigns forever.
ARTICLE I
Decrees
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Rangeview represents that the following water decrees currently adjudicate
the water rights of which the Export Water is a part:
Case Nos. 83CW330, 83CW373, 89CW048, and 00XX000, Xxxxxxxx
Xxxxx, Xxxxx Division 1, and plan for augmentation to allow
use of not nontributary Denver aquifer groundwater as
pending in Case No. 94CW048, and application to change
decreed well locations as pending in Xxxx Xx. 00XX000,
Xxxxxxxx Xxxxx, Xxxxx Division 1.
ARTICLE II
Royalties and Reporting
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2.1 Payment to Land Board. As between Rangeview and Grantee, Grantee
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shall be responsible for and shall timely pay directly to the Land Board all
royalties payable to the Land Board by the Export Water Purchaser (as that term
is defined in the Lease) pursuant to the Lease. Notwithstanding the foregoing,
Rangeview may, at its option, pay to the Land Board any royalties due but not
paid by Grantee on the Export Water in order to prevent a default under the
Lease. In such case, Rangeview shall be entitled to interest on any royalties
paid by Rangeview on the Export Water at the rate of two percent (2%) per month
from the date paid by Rangeview and Rangeview may exercise any other remedies it
may have, including its termination rights under Section 6.6 of the Lease.
2.2 Reporting. In addition to any requirements under the Lease,
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Grantee shall prepare the following reports:
(a) Grantee shall report to Rangeview the quantity of Export Water
delivered (including any recharged or stored water pursuant to Section 6.2(a) of
the Lease), the exact amount of Gross Revenues or, if applicable, Retail Sales
Price (as those terms are defined in the Lease) relating to the sale or other
disposition of Export Water, and the entity to whom the Export Water was
delivered. The report shall be due within twenty (20) days after the end of
each calendar year, until such time as Rangeview notifies Grantee that
production of Export Water and Non-Export Water (as defined in the Lease) has
reached 500 acre feet in a calendar year, and thereafter, on or before the
twentieth (20th) day following the end of each calendar quarter during the term
of the Lease.
(b) Grantee shall prepare and keep full, complete, and proper
books, records and accounts of all Export Water (including any recharged or
stored water pursuant to Section 6.2(a) of the Lease) sales or dispositions and
shall document such transactions as may be required by law. Said books, records,
and accounts of Grantee shall be open at all reasonable times, upon ten (10)
days' prior written notice, to the inspection of Rangeview, the Land Board and
their respective representatives who may, at Rangeview's or the Land Board's
expense, as applicable, copy or extract all or a portion of said books, records,
and accounts for a period of up to five (5) years after the date such books,
records and accounts are made. The Land Board's right to inspection shall not
prejudice the Land Board's right to collect payments due pursuant to the Lease.
Rangeview or the Land Board may, upon no less than fourteen (14) days' prior
written notice to Grantee, cause a partial or complete audit of the entire
records and operations of Grantee for a five (5) year period preceding the date
of the audit relating to the use of Export Water pursuant to this Deed to be
made at Rangeview's or the Land Board's expense, as applicable, by an auditor
selected by Rangeview or the Land Board, as applicable. Within fourteen (14)
days following Rangeview's or the Land Board's notice, as applicable, Grantee
shall make available to Rangeview's or the Land Board's auditor, as applicable,
the books and records the auditor reasonably deems necessary or desirable for
the purpose of making the audit. Any deficiency in the payment of royalties
determined upon such audit shall be immediately due and payable to the Land
Board, together with interest thereon at the rate of two percent (2%) per month
from the date or dates such amounts should have been paid. If such deficiency is
in excess of two percent (2%) of the royalty previously paid, then Grantee shall
pay to the auditing party the actual cost of the audit at the time the
deficiency is paid.
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ARTICLE III
General Provisions
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3.1 Notice. All notices required by this Deed or the Lease shall be in
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writing and shall be delivered to the person to whom the notice is directed at
the address set forth below, either in person, by courier service or by United
States mail as a certified item, return receipt requested, addressed to the
address stated below. Notices delivered in person or by courier service shall
be deemed given when delivered to the person to whom the notice is directed.
Notices delivered by mail shall be deemed given on the date of delivery as
indicated on the return receipt. The parties may change the stated address by
giving ten (10) days' written notice of such change pursuant to this Section.
If to Rangeview:
Rangeview Metropolitan District
000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
If to the Land Board:
Board of Land Commissioners
Attention: President
620 Centennial Building
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
and
Office of the Attorney General
Attention: State Land Board Attorney
0000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
If to Grantee:
Pure Cycle Corporation
0000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: President
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3.2 Construction. Where required for proper interpretation, words in
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the singular shall include the plural, and the masculine gender shall include
the neuter and the feminine, and vice versa, as is appropriate. The article and
section headings are for convenience and are not a substantive portion of this
Deed. This Deed shall be construed as if it were equally drafted in all aspects
by all parties. All capitalized terms herein not otherwise defined shall have
the same meaning as provided with respect to such terms in the Lease.
3.3 Severability. If any clause or provision of this Deed is illegal,
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invalid or unenforceable under present or future laws, then, and in that event,
it is the intention of the parties hereto that the remainder of this Deed shall
not be affected thereby. It is also agreed that in lieu of each clause or
provision of this Deed that is illegal, invalid or unenforceable, there shall be
added as a part of this Deed a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
3.4 Governing Law. This Deed shall be governed by and construed in
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accordance with the laws of the State of Colorado and applicable federal law.
(a).a No Oral Amendment or Modifications. No amendments, waivers or
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modifications of the terms and provisions contained in this Deed, and no
acceptances, consents or waivers by the Land Board or Rangeview under this Deed,
shall be valid or binding unless in writing and executed by the party to be
bound thereby. Any covenant, condition or restriction contained in this Deed
may be terminated, extended, modified or amended, as to the whole of the Export
Water or any portion thereof, only by the written consent of the Land Board and
Rangeview. No such termination, extension, modification or amendment shall be
effective unless and until a proper instrument in writing has been executed and
recorded in the records of the Clerk and Recorder of Arapahoe County.
(a).b Binding Effect. This Deed shall be binding upon and inure to the
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benefit of the parties hereto and their respective successors and assigns. The
covenants, conditions, and restrictions contained in this Deed and, where
applicable, the Lease, shall be construed as covenants running with the Export
Water, and every person who now or hereafter owns or acquires any right, title,
estate or interest in or to the Export Water is and shall be conclusively deemed
to have consented and to have agreed to every covenant, condition, and
restriction contained in this Deed and, where applicable, the Lease, whether or
not any reference to such covenant, condition, or restriction is contained in
the instrument by which such person acquires an interest in the Export Water.
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IN WITNESS WHEREOF, the Land Board has caused this Deed to be executed by
the State Board of Land Commissioners and sealed with the official seal of the
Land Board. Rangeview has similarly executed this Deed this 11th day of April,
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1996.
STATE OF COLORADO
STATE BOARD OF LAND COMMISSIONERS
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, President
APPROVED AS TO FORM:
XXXX X. XXXXXX, Attorney General
XXXXXXX X. XXXXXXXXXX, Chief Deputy Attorney General
XXXXXXX X. XXXXXXXXX, Solicitor General
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Special Deputy Solicitor General
State of Colorado
RANGEVIEW METROPOLITAN DISTRICT,
ACTING BY AND THROUGH ITS WATER
ACTIVITY ENTERPRISE
ATTEST:
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Title: Secretary Title: President
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STATE OF COLORADO )
) ss.
COUNTY OF_Denver )
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The foregoing instrument was acknowledged before me this 9th day of April,
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1996 by Xxxxxx X. Xxxxxxx, as President, of the State of Colorado, State Board
of Land Commissioners.
Witness my hand and official seal.
My commission expires: July 28, 1997
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/s/ Xxxxxxxx X. Xxxx
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Notary Public
STATE OF COLORADO )
City and ) ss.
COUNTY OF Denver )
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The foregoing instrument was acknowledged before me this 9th__day of
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April, 1996 by Xxxxxx X. Xxxxx , as President, and by Xxxx Xxxxxxx , as
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Secretary, of Rangeview Metropolitan District.
Witness my hand and official seal.
My commission expires: July 17, 1996
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/s/ Xxxx X. Xxxxxxx
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Notary Public
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