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Home My WebLink About23-46 Denmore, Llc. Native Water Credit Purchase Agreement 04-26-2023RESOLUTION NO.23-46 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, ACTING BY AND THROUGH ITS WATER ACTIVITY ENTERPRISE, APPROVING THE DENMORE, LLC NATIVE WATER CREDIT PURCHASE AGREEMENT WHEREAS, Chapter 1.08 of the Firestone Municipal Code ("Code") requires land developers to agree to dedicate a certain amount of "water rights" and/or "shares" before annexing new land into the Town of Firestone; and WHEREAS, pursuant to the Code, a land developer must dedicate "water rights" and/or "shares" in payment of water connection charges and before recording a subdivision plat and/or receiving a building permit ("Water Rights Dedication"); and WHEREAS, Denmore, LLC ("Buyer") is a land use applicant who has agreed to dedicate "water rights" and/or "shares" to Firestone pursuant to an Annexation Agreement dated July 20, 2022 and described as the Denmore Annexation ("Annexation Agreement"), and must actually dedicate those "water rights" and/or "shares" prior to recording a final subdivision plat; and WHEREAS, Buyer is the owner of and seeking to develop certain lands within the Town of Firestone, as more fully described and depicted on the attached Exhibit I ("Property") which is made a part of this resolution; and WHEREAS, Buyer has need for additional "water rights" and/or "shares" to fulfill Buyer's water dedication requirements for the planned development on the Property; and WHEREAS, the Town of Firestone owns certain water rights, which it has offered to Buyer in the form of Native Water Credits to assist Buyer in achieving Buyer's water dedication requirements pursuant to the Code; and WHEREAS, Buyer is interested in purchasing the Native Water Credits from the Town of Firestone as set forth in this Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: The Native Water Credit Purchase Agreement between the Town of Firestone and Detnnore, LLC is approved in substantially the same form as the copy attached hereto and made a part of this resolution, and the Mayor is authorized to execute the Agreement on behalf of the Town. INTRODUCED, READ, AND ADOPTED this 26th day of April, 2023. Gonzalez Deputy Town Clerk TOW�f�F FIRE NE, COLORAD0 Drew Alan Peterson, Mayor 1 NATIVE WATER CREDIT PURCHASE AGREEMENT This Native Water Credit Purchase Agreement ("Agreement"), made and entered into this 9 day of fP-1 L 2023 ("Effective Date"), by and between the Town of Firestone acting by and through its Water Activity Enterprise ("Firestone") and Tri Pointe Homes Holdings, Inc. whose address is 8055 E. Tufts Ave., Denver CO 80237 ("Buyer"); RECITALS WHEREAS, the Firestone Municipal Code ("Code") requires land developers to agree to dedicate a certain amount of "water rights" and/or "shares" before annexing new land into Firestone; and WHEREAS, pursuant to the Code, a land developer must actually dedicate "water rights" and/or "shares" in payment of water connection charges and before recording a subdivision plat and/or receiving a building permit; and WHEREAS, Buyer is a land use applicant who has agreed to dedicate "water rights" and/or "shares" to Firestone pursuant to an Annexation Agreement dated July 20, 2022 ("Annexation Agreement"), and must actually dedicate those "water rights" and/or "shares" prior to recording a final subdivision plat or receiving a building permit; and WHEREAS, Buyer is the owner of (or is under contact to purchase) certain lands within the Town of Firestone, as more fully described and depicted on Exhibit 1 (the "Property"), which Buyer is seeking to develop; and WHEREAS, Buyer has need for additional "water rights" and/or "shares" to fulfill Buyer's water dedication requirements for the planned development on the Property; and WHEREAS, Firestone owns certain water rights, which it has offered to Buyer in the form of Native Water Credits to assist Buyer in achieving Buyer's water dedication requirements pursuant to the Code; and WHEREAS, Buyer is interested in purchasing the Native Water Credits from Firestone as set forth in this Agreement; and AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual agreement, and promises set forth herein, the receipt and sufficiency of which are hereby acknowledged by both Parties, the Parties agree as follows: 1. Recitals. The foregoing Recitals are incorporated herein as if fully set forth. (OtO46704.DOCX; 1) 2. Native Water Credits. A "Native Water Credit" shall be equivalent to one acre-foot of water as needed for Buyer's water dedication requirements pursuant to the code. The Native Water Credits are derived from water rights which are currently owned by Firestone. The Native Water Credits shall be used solely for Buyer's water dedication requirements as described herein and shall not survive termination of this Agreement by either parry. 3. Purchase Price. Provided that Buyer acquires the Property, Buyer agrees to pay the Purchase Price of $16,750,000.00 for up to 238 Native Water Credits being purchased. Provided that Buyer acquires the Property, the Buyer agrees the Purchase Price payment is due and payable no more than 21 days after Final Plat approval, or by June 30, 2023, whichever occurs first. In the event that Buyer does not deliver the Purchase Price by June 30, 2023, this Agreement shall terminate and neither parry shall have any further obligations hereunder. 4. Dedication. The Native Water Credits purchased by Buyer herein shall be deemed automatically dedicated to Firestone, at the execution of this Agreement, to fidfill the water dedication requirement necessary for Buyer to obtain a final plat for the Property. However, Buyer acknowledges that a Final Plat for the Property shall not be recorded unless and until the Purchase Price has been paid in full. 5. No Assignment. This Agreement shall not be assigned by Buyer without written approval from Firestone except that Buyer may, with prior written notice to Firestone, assign all or a portion of its rights and obligations hereunder to an entity that owns a portion of the Property or which controls, is controlled by or is under common control with Buyer or its parent. The Native Water Credits described herein are non -transferable and may only be assigned due to a sale or conveyance of all or a portion of the Property by Buyer to the parry or parties that have acquired all or a portion of the Property. If unforeseen circumstances occur that result in Buyer needing less than all of the Native Water Credits acquired by this Agreement for the final plat of the Property, Buyer hereby agrees that the Native Water Credits shall automatically void upon recordation of a final plat for the Property. If any Native Water Credits are voided due to recordation of final plat of the Property, Firestone shall remit the equivalent of the Purchase Price for each Native Water Credit voided to Buyer. 6. No Third Party Beneficiary Status. Nothing in this Agreement shall be construed as assigning all or any portion of any agreement in which Firestone is a party nor any of the benefits derived therefrom. 7. 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 signed by both parties. 8. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court (01046709.nOCx; 1) finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. 9. 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. 10. 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 Weld. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first above written TOWN OF FIRESTONE, acting by and through its Water Activity Enterp ' e By: f)VIIAl uke5on Print: Mmov, Title: TRI POINTE HOMES HOLDINGS, INC. By: Y.&u.Y 7g Print: pi-JiSWA Pke�Sl64rjr Title: 101046709.nOCx: I I EXHIBIT 1 Property Parcel 1: The SE 1/4 of the NE '/4 of Section 6, Township 2 North, Range 67 West of the 6ch P.M., County of Weld, State of Colorado, which lies east of the right of way of the Union Pacific Railroad, and; Parcel 2• The E %z of the SE 1/4 of Section 6, Township 2 North, Range 67 West of the 6 h P.M., County of Weld, State of Colorado, and; Parcel 3: The SW '/4 of the SE %4, that part of the SE'/4 of the SW %4 and the NW'/4 of the SE'/ of Section 6, Township 2 North, Range 67 West of the 6'h P.M., County of Weld, State of Colorado, which lies east of the right of way of the Union Pacific Railroad. All known as Parcels 131106000006, 131106000007 and 131106000039 in the County of Weld, State of Colorado. Consisting of 139 acres, more or less SPECIFICALLY EXCLUDING ANY AND ALL COMMERICAL OR MULTIFAMILY PROPERTY PROVIDED FOR IN TEE FINAL PLAT t01046709.➢OCX; 11