Loading...
HomeMy WebLinkAbout21-110 Approving Native Water Dedication Agreement with Cottonwood Colorado Residential LLC 11-10-2021 with agreementRESOLUTION N0.21-110 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, ACTING BY AND THROUGH ITS WATER ACTIVITY ENTERPRISE, APPROVING A NATIVE WATER DEDICATION AGREEMENT WITH COTTONWOOD COLORADO RESIDENTIAL LLC 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" in conjunction with the development of land in the Town of Firestone; and WHEREAS, the Code allows the Town of Firestone Board of Trustees ("Board of Trustees") to enter into agreements for the dedication of water rights other than Colorado Big Thompson (CBT)units or "water credits," as that term is defined in Section 1.08.050 of the Code; and WHEREAS, the Board of Trustees has adopted the Firestone Native Water Dedication Policy ("Dedication Policy"), which authorizes the Town Manager and the Manager's designee to negotiate Native Water Dedication Agreements on behalf of the Town of Firestone ("Town"); 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 plat or final subdivision and/or final development and/or before receiving a building permit or water connection to the Town's water system; and WHEREAS, Cottonwood Colorado Residential LLC ("Developer") has agreed to dedicate "water rights" and/or "shares" to the Town pursuant to an Annexation Agreement dated December 10, 1998, and described as the Del Camino East PUD Annexation ("Annexation Agreement"), and must dedicate those "water rights" and/or "shares" prior to the first recording of a final plat, final subdivision or final development plan; and WHEREAS, the Annexation Agreement covers certain lands owned by Developer as described in Exhibit A. attached hereto to this resolution ("Developer's Lands"); and WHEREAS, Developer must dedicate approximately 300 acre-feet of raw water to comply with the water dedication requirements of the Code for the currently anticipated development of Developer's Lands and the requirements of the Annexation Agreement ("Dedication Requirement"); and WHEREAS, Developer is the owner of certain native water rights, as described in Exhibit B attached hereto this resolution ("Native Water"), and Developer has agreed to dedicate for purposes of Developer's compliance with Section 13.08.010 of the Code, in conformance with the Dedication Policy; and WHEREAS, Developer has provided the Town with all the information and documentation described and required in Addendum A of the Dedication Policy regarding the Native Water. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: The Native Water Dedication Agreement including Exhibit A ("Developer's Lands") and Exhibit B ("Native Water") between the Town of Firestone, acting by and through its Water Activity Enterprise, and Cottonwood Colorado Residential 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 thislV day of N C , 2021. TOWN OF FIRESTONE, COLORADO VC4 bbi Sindelar, Mayor ATTEST: J s ca Koenrg, APPROVED AS TO \' %IIICII��if�iL f.Y�7:'�YI�1�l�Ii �'�;::. � • NATIVE WATER DEDICATION AGREEMENT This Native Water Dedication Agreement ("Agreement"), is made and entered into this 1 Oth day of November, 2021 ("Effective Date"), by and between the Town of Firestone acting by and through its Water Activity Enterprise, ("Firestone") and Cottonwood Colorado Residential, LLC, a Colorado limited liability company ("Developer") c/o Alberta Development Partners, LLC whose address is 5750 DTC Parkway, Suite 210, Greenwood Village, CO 801115 WHEREAS, the Firestone Municipal Code (the "Code") requires land developers to agree to dedicate a certain amount of "water rights" and/or "shares" in conjunction with the development of land in Firestone; and WHEREAS, the Code allows the Board of Trustees to enter into agreements for the dedication of water rights other than CBT units or "water credits" as that term is defined in Section 1.08.050 of the Code; and WHEREAS, The Board of Trustees has adopted the Firestone Native Water Dedication Policy (the "Dedication Policy"), which authorizes the Town Manager and the Town Manager's designee to negotiate Native Water Dedication Agreements on behalf of the Town of 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 plat or final subdivision and/or final development and/or before receiving a building permit or water connection to the Town water system, and WHEREAS, Developer has agreed to dedicate "water rights" and/or "shares" to Firestone pursuant to an Atmexation Agreement dated December 10,1998 and described as the Del Camino East PUD Annexation (the "Annexation Agreement"), and must actually dedicate those "water A ights" and/or "shares" prior to the first recording of a final plat, final subdivision or final development plan; and WHEREAS, The Annexation Agreement covers certain lands owned by Developer and more particularly described on Exhibit A, attached hereto (the "Developer's Lands"); and WHEREAS, Developer must dedicate approximately 300 acre-feet of raw water to comply with the water dedication requirements of the Code for the currently anticipated development of Developer's Lands and the requirements of the Annexation Agreement (the "Dedication Requirement'); and WHEREAS, Developer is the owner of certain native water rights which are further described on Exhibit B, attached hereto (the "Native Water"), that Developer has agreed to dedicate for purposes of Developer's compliance with Section 13.M.010 of the Code, in conformance with the Dedication Policy; and WHEREAS, Developer has provided Firestone with all of the information and documentation described and required in Addendum A of the Dedication Policy regarding the Native Water. 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. 2. Investigation Period. After the Effective Date of the Agreement, Firestone will have 42 days to conduct an investigation of the Native Water (the "Investigation Period"). The purpose of the investigation is to determine whether the Native Water can be used within Firestone's overall water system to increase the yield of water which can be used to satisfy the demands of Developer's Lands. The investigation will include, but is not limited to, investigation of. 2.1. Sufficienc>> of Native Water for Dedication. As soon as practicable after the execution of this Agreement and payment of the Native Water Dedication Fee by Developer, Firestone shall investigate whether the Native Water can be used to satisfy, in whole or in part, the Dedication Requirement for Developer's Lands. In order to complete such investigation Firestone acknowledges that Developer has supplied the information and documentation described on Addendum A of the Dedication Policy as is in Developer's possession or control at or prior to the execution of this Agreement. Developer agrees to reasonably cooperate with Firestone to provide all historical use information in its possession or control associated with the Native Water and Developer hereby agrees to assist Firestone in obtaining any other necessary information proving the historical use of the Native Water, not already provided. If at any time during the Investigation Period Firestone detennm' es that the Native Water will not be usable by Developer to meet the Dedication Requirement for Developer's Lands, Firestone will promptly notify Developer of such determination and the parties shall treat this Agreement as terminated as further described below, and Firestone shall return the unused portion of the Native Water Dedication Fee as set forth in Section 7 below. 2.2. Native Credit. During the Investigation Period, Firestone will work with its consultants to provide Developer with the amount of credit that will be available from Developer's dedication of the Native Water, which Developer may utilize towards Developer's Dedication Requirement. The amount of credit so determined by Firestone shall be Developer's "Native Credit." Such determination shall be made by Firestone, in its sole discretion, based on the results of its inquiries during the Investigation Period. Firestone agrees to provide notice to Developer of Firestone's determination of the Native Credit at least 14 days prior to the scheduled Credit Closing. 2.3. Determination of Storm=e and Infrastructure Investment Fee. In connection with the dedication of the Native Water at the Credit Closing, Developer agrees to pay Firestone at the Credit Closing, a Storage and Infrastructure Investment Fee which shall be $17,500.00 per acre-foot of dedicated Native Water as determined by Firestone Resolution 2141. Firestone agrees to provide notice to Developer of the Storage and Infrastructure Investment Fee required for the Native Water at least 14 days prior to the scheduled Credit Closing, 3. Water Conveyance. Within 14 days after the expiration of the Investigation Period Firestone and Developer shall have a closing at which Developer shall convey the Native Water to Firestone by Special Warranty Deed and a good and sufficient water stock assignment or such other documents as are necessary to convey title, fiee and clear of all encumbrances arising by, through or under Developer, from Developer to Firestone ("Credit Closing"). Developer, at no cost to Developer, agrees to execute such other customary documents or take any other actions as may be necessary to effectuate the conveyance of the Native Water, including conveyance of any structures or easements, to the extent they are owned or held by Developer at the time of the Credit Closing, necessary for Firestone to take delivery of the Native Water. At the Credit Closing, Developer shall deliver Firestone any original stock certificate(s) evidencing ownership of the Native Water. 4. Warranty of Title to Dedicated Native Water. Developer hereby warrants that title to the Native Water will be conveyed to Firestone free and clear of all liens, encumbrances, assessments, and leases of any kind arising by, through or under Developer. Developer agrees to warrant and forever defend Firestone against all and every person claiming any interest in the Native Water by, through or under Developer. This warranty shall survive conveyance of the Native Water to Firestone. 5. Dedication. The Native Water dedicated to Firestone shall allow Developer to meet part of the Dedication Requirement for Developer's Lands to be served by Firestone's municipal water service, as necessary for Developer to obtain a final plat for the Property. 6. Assessments &Stock Transfer Fee. All assessments levied on the Native Water in to the date of the Credit Closing shall be paid by Developer. Any assessments levied on the Native Water beyond the date of the Credit Closing shall be paid by Firestone. Any fees imposed by a thud party for the purposes of completing the transfer of the Native Water to Firestone shall be paid by Developer. 7. Native Water Dedication Fee. At the Effective Date of this Agreement, Developer• has delivered to Firestone a "Native Water Dedication Fee" of $200,000.00. Developer, by this [c3 Agreement agrees to pay the Native Water Dedication Fee with the understanding that the fee is non-refundable, unless this Agreement is terminated by either party prior to the Credit Closing. In the event this Agreement is terminated prior to the Credit Closing, any portion of the Native Water Dedication Fee which was not spent by Firestone on actual third -party fees and expenses during the Investigation Period under this Agreement will be remitted to Developer together with a reasonable accounting therefor (which obligation shall expressly survive termination of this Agreement). Payment of the Native Water Dedication Fee by Developer in no way guarantees that Firestone will ultimately accept dedication of the Native Water for compliance with Developer's Dedication Requirement at the Credit Closing, 8. Excess Native Credit. In the event the Native Credit available to Developer exceeds the Dedication Requirement for Developer's Lands, Developer has the option of: 1) dedicating the excess portion of the Native Credit to a separate property within Firestone's municipal boundary for compliance with the water dedication requirements to comply with the Code; or 2) accepting an offer from Firestone to purchase the remainder of the Native Credit from Developer. 9. Affidavit of Historical Use. At or before the Credit Closing Developer shall use reasonable efforts to provide Firestone with an affidavit by a person or persons with knowledge regarding the manner in which the Native Water was historically used. Developer agrees to cooperate with Firestone, to develop any additional information regarding the historical use of the Native Water, including cooperation at trial in a change of use of the Native Water. 10. Dry -up Covenants. Developer shall provide Firestone, at the Credit Closing executed dry up covenants in a form acceptable to Firestone, for the land historically irrigated by the Native Water. Developer shall be responsible for acquiring all necessary agreements to ensure. any liens or encumbrances are subordinate to the dry up covenants or shall otherwise reasonably prove that the dry up has been physically accomplished via development or other means to the reasonable satisfaction of Firestone. To the extent required by law, Developer or its designee shall be responsible for any revegetation of the historically irrigated property. 11. Plant Investment Fee. While the dedication of the Native Credit to the Town will satisfy Developer's Dedication Requirement, in order to receive taps for building pei�nits on Developer's Lands, Developer or future owner shall pay a Plant Investment Fee and/or Tap Fee. Developer or future owner's obligation to pay such fees are in no way affected by the execution of this Agreement. 12. Contin,2encies. The Parties' obligations under this Agreement are expressly contingent upon: 12.1. Any third party which may have an option to purchase or a right of first refusal to acquire the Native Water waiving or choosing not to exercise such rights and authorizing the dedication contemplated in this Agreement; !1 12.2. The satisfaction of any "Catlin" approval process in which a ditch or reservoir company has the power to deny the contemplated Change Case. 13. Force Maieurea No party to this Agreement shall be liable for any delay or failure to perform under this Agreement due to conditions or events of force majeure. Force majeure events shall be those beyond the reasonable control of the Party including: acts of God, strikes or work stoppages directly affecting the Party, unavailability or delay in receiving labor or materials, material adverse weather conditions or stop -work action of governmental authorities. 14. Ternunation. At any time prior to the Credit Closing, Developer may choose to terminate this Agreement, at which time Firestone shall distribute any un-spent portion of the Native Water Dedication Fee (pursuant to Section 7 above) which remains to Developer. At any time prior to the Credit Closing, Firestone may choose to terminate this Agreement, at which time Firestone shall distribute any un-spent portion of the Native Water Dedication Fee which remains to Developer (pursuant to Section 7 above). If at any time during the Investigation Period Firestone determines that the Native Water is unsuitable for dedication to Firestone to meet the Dedication Requirement for the Developer Lands the parties hereby agree to treat this Agreement as terminated and Firestone shall distribute any un-spent portion of the Native Water Dedication Fee which remains to Developer. 15. Binding.. Effect and Transferability. This Agreement shall be binding upon and inure to the benefit of the Town as well as Developer, its heirs, personal representatives, successors, transferees, assigns and successors in interest as fee title owner(s) of all or portions of the Developer's Lands. Any Native Water dedicated by Developer shall be used solely on Developer's Lands for the Dedication Requirement unless otherwise agreed to by Firestone at its sole discretion. Developer may only assign the Native Credit to another party in connection with the transfer of the Developer's Lands (or as authorized under Section 8 above). Firestone will provide Developer with a form Native Credit Transfer at the Credit Closing to be used in connection with the transfer of any Native Credit by Developer. 16. 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. 17. 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 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. 18. 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, unless Parties determine the matter is a "water matter" within the jurisdiction of Colorado's water courts, in which instance venue shall be in the Division One Water Court. 5 19. AUthoritY. Developer and its undersigned signatory expressly represent and warrant to the Town that Developer has authority to enter into this Agreement and that its undersigned signatory on this Agreement has the authority to bind Developer to the terms of this Agreement 20. Recordinb. This Agreement may be recorded in the office of the Weld County Clerk and Recorder. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first above written TOWN OF FIRESTONE • 'bj COTTONWOOD COLORADO RESIDENTIAL, LLC: By: