Filed by Bowne Pure Compliance






Exhibit 10.23




PURCHASE AND SALE AGREEMENT

(Farmers Reservoir and Irrigation Company Marshall Lake Division Shares)




THIS PURCHASE AND SALE AGREEMENT (“Agreement”) is entered into by the Parties this 31st
day of December, 2007, by and between Ron Opatril, whose address for the purposes of the agreement
is 5326 W. Mohave Street, Phoenix, AZ 85043 (hereinafter, “Seller”), and Eldorado Artesian Springs,
Inc., whose address for the purposes of the agreement is Post Office Box 445, Eldorado Springs, CO
80025(hereinafter, “Purchaser”), as follows:



RECITALS




WHEREAS, the Seller owns water rights represented by 4.925 shares of the Capital stock of the
Farmers Reservoir and Irrigation Company Marshall Lake Division, evidenced by the following Share
Certificates (the “Shares”):




• Certificate No. 8145



WHEREAS, Seller desires to grant, sell, transfer, assign, convey and deliver said Shares to
the Purchaser, and Purchaser desires to purchase, acquire and accept the Shares from Seller
pursuant to the terms and provisions of this Agreement.



NOW, THEREFORE, IN CONSIDERATION of the foregoing Recitals, which are a substantive and
enforceable part of this Agreement, and for the mutual promises and covenants set forth herein,
together with other good and valuable consideration acknowledged and received, the Parties agree as
follows:




1.
Purchase and Sale. Subject to the terms and provision of this Agreement,
at Closing the Seller agrees to grant, sell, transfer, assign, convey and deliver to
Purchaser, and Purchaser agrees to purchase and accept the water rights represented by 4.925
shares of Capital Stock of the Farmers Reservoir and Irrigation Company Marshall Lake
Division, as evidenced by the above-referenced Certificate No. 8145 free and clear of all
liens, encumbrances and assessments, and together with any and all carrier ditch rights or
stock associated therewith; any and all storage rights; and any and all other rights or
interests appurtenant to the subject Shares (collectively hereinafter, the “Shares”).




2.
Purchase Price. The Parties agree that the purchase price for the Shares
shall be Ninety-Eight Thousand Five Hundred Dollars ($98,500) payable as follows:




Within 2 business days after the mutual execution of contract Purchaser shall deliver
an earnest money deposit in the amount of Five Thousand Dollars ($5,000.00), funds
made payable to Seller, in care of Security Title Guaranty Company (the “Closing
Agent”), to be held by the Closing Agent in trust for the Purchaser and Seller until
Closing, and as otherwise set forth herein.




The balance of the Purchase Price, Ninety Three Thousand Five Hundred Dollars
($93,500) shall be paid by Purchaser at closing.




3. Farmers Reservoir and Irrigation Company Marshall Lake Division Assessments,
Transfer Fees, Closing Costs and Other Related Fees. All of the current assessments on
said Shares shall be paid in full by Seller at Closing, up to and including the date of
Closing. All assessments accruing on said shares after the date of Closing shall be paid by
the Purchaser. Also at Closing, Purchaser shall pay all transfer fees or other fees
required for the issuance of new stock certificates to the Purchaser.




Purchaser agree any costs related to the closing of this transaction incurred from the
Closing Agent shall be Paid by the Buyer.


 


 









 






Seller shall be solely responsible for any and all fees which may be incurred from a Seller’s
Agent related to this transaction. Seller agrees to indemnify and hold Purchaser harmless from the
claims of any person or entity for commissions, finder’s fees, or any similar fees in connection
with this transaction




4.
Date and Time of Closing. Closing shall be no more than ten (10) days after the
expiration of the due diligence period, and will take place at the offices of the Closing Agent,
or at a different time and place as mutually agreed upon by the Parties. At Closing, Seller shall
transfer, convey and otherwise assign to Purchaser all of Seller’s right, title and interest in
and to the Shares, and shall transfer, assign and deliver the Shares to Purchaser at Closing, as
evidenced by Farmers Reservoir and Irrigation Company Marshall Lake Division Certificate No. 8145
together with an appropriate stock assignment, duly executed by Seller, in form and substance
acceptable to the Purchaser and the Farmers Reservoir and Irrigation Company Secretary, and
sufficient to allow transfer of the Shares to Purchaser on the books and records of Farmers
Reservoir and Irrigation Company Marshall Lake Division.




5.
Additional Documents and Dry-up Covenant. The Seller agrees in good faith to
execute and deliver any additional documents or instruments as are requested or required or such
as is necessary to effectuate the transaction as contemplated herein; including, but not limited
to, a covenant to permanently dry-up and remove from irrigation all land irrigated using the water
rights represented by the Shares.




6.
Water Court Proceedings. At any time after the Closing, Purchaser may file in
the Water Court an application seeking to change the use of the water rights represented by the
Shares and use them in a plan for augmentation or otherwise to allow the uses that the Purchaser
deems appropriate. Seller shall not in any manner, either directly or indirectly, object to any
such change proceeding, or any such plan for augmentation, and will, at the request of Purchaser
provide information or testimony regarding the historical use of the water rights represented by
the Shares.




7.
Seller’s Representations and Warranties. Seller warrants and represents that it
will have good and marketable title to the subject Shares prior to closing and shall convey such
title to Purchaser, free and clear of all liens and encumbrances.




8.
Binding Effect. This Agreement shall be binding upon the heirs, personal
representatives, successors and assigns of the Parties.




9.
Attorneys Fees and Costs. In the event that a dispute arises between the
Parties out of this Agreement, which cannot be resolved by the Parties amicably, then the
substantially prevailing party in any litigation or other adversary proceeding brought to enforce
this Agreement shall recover from the non-prevailing Party its reasonable attorneys fees and
costs.




10.
Counterparts and Facsimile Signatures. This Agreement may be executed in
counterparts, and facsimile signatures are acceptable as original signatures, until original
signatures are obtained.




11.
Due Diligence. The Purchaser shall have sixty (60) days from the mutual
execution of this Agreement to complete any and all due diligence. Within ten (10) days from the
mutual execution of this Agreement the Seller shall provide Purchaser all information in Seller’s
possession and control regarding title to and historical use of the subject Shares. Seller agrees
to truthfully and completely answer questions and inquiries regarding the subject shares during
the due diligence period and shall take all reasonable steps to aid Purchaser in making due
diligence inquiries, which may include answering inquiries from Purchaser’s water engineer or
others. The Purchaser’s obligation to consummate the transaction contemplated by this Agreement is
expressly conditioned upon the Purchaser obtaining the documentation required by this paragraph
and obtaining opinions of the Purchaser’s counsel or other consultants on or before 20 days before
Closing regarding, or waiver by the Purchaser of, the following conditions:




11.1
Valid Decrees: That the water rights represented by the subject Shares are
validly decreed, and that there is no litigation pending or threatened as to the validity of
the said water rights, or seeking to declare the same abandoned, changed in point of
diversion changed in point of use, changed in manner of use; or otherwise changed.




11.2
Abandonment. That there is no governmental investigation pending or
threatened as to the abandonment or potential abandonment of the rights represented by the
subject Shares.




11.3
Adverse Claims. That there are no claims which have been asserted nor
which could be asserted by any third party claiming any right of ownership or use of the
rights represented by the subject
Shares, whether by conveyance, adverse possession, or otherwise.



 


 









 








11.4
No Agreements. That there are no operating agreements, management
agreements, other contracts or understandings between Seller or Seller’s predecessors in
title and third parties as to the manner of use, time of use, place of use, point of
diversion, means of diversion, maintenance, repair, or other facet of the water rights
represented by the subject Shares and the physical facilities for their diversion and use.




11.5
Ownership in Fee; Encumbrances. That Seller is the record owner of the
subject Shares in fee simple absolute, free and clear of all liens, mortgages, and
encumbrances of every kind of character whatsoever.




11.6
No Prior Sales. That neither Seller nor Seller’s predecessors have
conveyed the subject Shares nor the land upon which the subject Shares were used in such a
manner that a buyer of said lands could claim to be legally entitled to the ownership of the
subject shares as an appurtenance to said lands or otherwise.




11.7
Historical Use. That an adequate record of historical use of the shares
can be documented to the satisfaction of the Buyer.




12.
Notice of Defect: Cure; Termination. If Purchaser does not obtain documentation
as required by paragraph 11 or if Purchaser does not obtain the opinions identified in
subparagraphs 11.1 through 11.6 on or before the required dates, Purchaser may, by written
notice given to Seller, within three business days after the relevant date, terminate this
Agreement, and Purchaser’s earnest money deposit shall be returned to Purchaser if Seller
does not cure noticed defects as provided below. If Purchaser does not give such notice,
said conditions shall be deemed accepted or waived. In the event of such notice, Seller
shall have seven days from the date of notice to cure any noticed defects and provide
documentary evidence of such cure to Purchaser. Purchaser shall have three business days
from receipt of such evidence of cure to accept same or terminate this Agreement by written
notice to Seller, in which case Purchaser’s earnest money deposit shall be returned to
Purchaser.




IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first
above written.



	 	 	 	 	 	 	 	 	 	 	 
	SELLER:	 	 	 	PURCHASER:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	RON OPATRIL	 	 	 	ELDORADO SPRINGS	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Ron Opatril
 

	 	 
	 	By:
	 	/s/ Douglas A. Larson
 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	December 14, 2007	 	 	 	January 11, 2008	 	 





 


 









 





DRY-UP COVENANT




A. On and after December 31, 2007, Ron Opatril (the “Grantor”), covenant and agree that the
water and water rights withdrawn and used represented by 4.925 shares of the capital stock of
Farmers Reservoir and Irrigation Company—Marshal Lake Division (the “Water Rights”), that were
historically used to irrigate 30 acres of real property owned by Grantors in the NW/4, Section 32
Township 1 South, Rage 68 West of the 6th P.M. in Adams County, Colorado (the
“Property”), shall not again be used to irrigate the Property; nor shall the Property again be
irrigated without the express written permission of Eldorado Artesian Springs, Inc., (“Grantee”),
its successors or assigns, which permission may be withheld in Grantee’s sole discretion.



B. Grantors further covenant and agree to take those actions reasonably necessary to eliminate
any consumptive use of water for agricultural or commercial irrigation purposes on the Property.
Grantors may apply to the Water Court for permission to re-irrigate the Property from sources other
than the Water Rights.



C. Grantors agree to permit Grantee to file the necessary applications with the water court
and the State Engineer to change the Water Rights and not to object to such a proceeding.



D. This Covenant may be enforced by Grantee or by any party having any right, title or
interest in the Water Rights, or any part thereof, its heirs, successors, and assigns, or by the
State Engineer of the State of Colorado, at any time in any action at law or in equity. This
Covenant shall bind Grantors, their heirs, successors and assigns and shall run with and burden the
Property and the Water Rights.




Dated as of the date first above written.



	 	 	 	 	 
	 	             /s/ Ronald Opatril
 	 
	 	 Ronald Opatril
 	 



	 	 	 
	STATE OF ARIZONA
	 	 
	 

	 	) SS.
	COUNTY OF MARICOPA )
	 	 






The foregoing instrument was acknowledged before me this 26th day of March, 2008, by
Ronald Opatril.



WITNESS my hand and official seal.




My commission expires: November 8, 2008




	 	 	 
	/s/ Terri L. Norton
 

Terri L. Norton