HomeMy WebLinkAbout21-09 Second Amdt Water Credit Purchase Agmt Mortgage Consultants 01-13-2021RESOLUTION N0.21-09
A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF
FIRESTONE, COLORADO, APPROVING THE SECOND AMENDMENT TO
THE WATER CREDIT PURCHASE AGREEMENT BETWEEN THE TOWN OF
FIRESTONE AND MORTGAGE CONSULTANTS, LLC
WHEREAS, Mortgage Consultants, LLC, ("Mortgage Consultants") pursuant to an
Annexation Agreement, agreed to dedicate water rights/shares to the Town of Firestone
("Firestone"), which water rights and or shares must be dedicated prior to the first recording of a
final plat, final subdivision or final development plan or receiving a building permit; and
WHEREAS, Firestone obtained water supplies and in accordance with its procedures
sought bids and Mortgage Consultants was the successful bidder and awarded the right to and
purchased 131 water credits to fulfill its dedication requirement; and
WHEREAS, Firestone in its sole discretion agreed to accept the water credits to fulfill
Mortgage Consultants dedication requirement and on February 18, 2018 the parties entered into a
Water Credit Purchase Agreement ("Agreement") which specified in part that the water credits if
not dedicated to Firestone by February 7, 2020, would expire and that the Agreement was not
assignable; and
WHEREAS, Mortgage Consultants advised Firestone that as a result of contractual
difficulties it would be unable to meet the February 7, 2020 dedication deadline but could meet
the deadline if it was extended for one year; and
WHEREAS, Firestone and Mortgage Consultants entered into the First Amendment of the
Agreement which in part, extended the Expiration Date to February 7, 2021; and
WHEREAS, Mortgage Consultants has advised Firestone that it has entered into a contract
to sell certain property ("Property") described in the Annexation Agreement to Alberta
Development Partners LLC, which contract is set to close after the February 7, 2021 Expiration
Date, which would result in forfeiture of Mortgage Consultants remaining 74.67 water credits and
any claim to proceeds or reimbursement and subsequent sale by Firestone of the forfeited water
credits; and
WHEREAS Mortgage Consultants requests Firestone extend the Expiration Date to (May
10, 2021); and
WHEREAS, Mortgage Consultants also requests that Firestone consent to an assignment
of the Agreement, as amended, to Alberta Development Partners, LLC in connection with its
purchase of the Property; and
WHEREAS, Mortgage Consultants in consideration of such extension agrees that it will
not seek an additional extension of the Expiration Date.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE
TOWN OF FIRESTONE, COLORADO:
The Second Amendment to the Water Credit Purchase Agreement between the Town of
Firestone and Mortgage Consultants, 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 Second Amendment on behalf of the Town.
INTRODUCED, READ AND ADOPTED this 13th day of January, 2021.
TOWN OF FIRESTONE, COLORADO
B i Sind , Mayor
APPROVED AS TO FORM:
SECOND AMENDMENT TO WATER CREDIT PURCHASE AGREEMENT BETWEEN
THE TOWN OF FIRESTONE AND MORTGAGE CONSULTANTS, LLC,
WHEREAS, Mortgage Consultants, WY"subdivider,or developer" as that
term is defined in Section 16.11.3 of the Firestone Development Code ("Code"), who agreed to
dedicate "water rights" and/or "shares" to the Town of Firestone ("Firestone") pursuant to an
Annexation Agreement dated January 16, 1999 ("Annexation Agreement"), and who must actually
dedicate those "water rights" and/or "shares" prior to the first recording of a final plat, final
subdivision, or final development plan or receiving a building permit; and
WHEREAS, Firestone obtained certain water supplies and made these water supplies
available to Bidders pursuant to the Firestone Municipal Water Credit Bidding Rules and
Procedures ("Bidding Rules and Procedures") as Water Credits; and
WHEREAS, Buyer placed a successful bid and was awarded the right to and purchase of
131 Water Credits from Firestone; and
WHEREAS, Firestone, in its sole discretion, agreed to accept the Water Credits to fulfill
Buyers dedication of "water rights" and/or "shares" requirement as outlined in the Code and
specified in the Water Credit Purchase Agreement ("Agreement") entered into by Firestone and
Buyer on February 8, 2018; and
WHEREAS, Buyer has dedicated 56.33 of the 131 Water Credits which are the subject of
the Agreement leaving 74.67 Water Credits available pursuant to the Agreement; and
WHEREAS, Section 8 of the Agreement provides:
Expiration. The Water Credits described herein shall expire on February 7, 2020
("Expiration Date") if not dedicated to Firestone prior to the Expiration Date. All of
Buyer's rights in and to the Water Credits, and/or to dedicate said Water Credits, shall
extinguish if not dedicated prior to the Expiration Date. Buyer shall not be entitled to any
proceeds or reimbursement from any sale subsequent to the Expiration Date; and
WHEREAS, Buyer and Firestone entered into a First Amendment to the Agreement which,
among other things, extended the Expiration Date until February 7, 2021; and
WHEREAS, Buyer has advised Firestone that, Buyer intends to enter into a contract to sell
the property described in Exhibit 1 to the Agreement which it still owns (the "Property") to Alberta
Development Partners, LLC or one of its affiliates ("Alberta"). AS used in this Second
Amendment, an "affiliate of Alberta" means an entity of which Donald G. Provost is, directly or
indirectly, a member and manager. Said contract is set to close after the February 7, 2021
Expiration Date, which would result in forfeiture of its Water Credits and any claim to proceeds
or reimbursement from any subsequent sale by Firestone of the forfeited Water Credits; and
WHEREAS, Buyer requests Firestone include an extension of the Expiration Date; and
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WHEREAS, Buyer requests Firestone indicate its willingness to consent to an assignment
of the Agreement, as amended, to Alberta Development Partners, LLC in connection with their
purchase of the Property; and
WHEREAS, Firestone as an accommodation to Buyer is willing to grant aone-time
extension of the Expiration Date till May 10, 2021; and
WHEREAS, in consideration of such extension, Buyer agrees that it shall not request any
additional extension of the Agreement's Expiration Date; and
WHEREAS, Section 9 of the Agreement provides that it may be amended by a writing
signed by both parties.
THEREFORE, in consideration of the terms and conditions set forth herein, including the above
recitals which are included herein and made a part of this Second Amendment, the parties agree
as follows:
Section One: Section 8, "Expiration" of the Water Credit Purchase Agreement is amended to
read as follows:
Expiration. The Water Credits described herein shall expire on May 10, 2021 ("Expiration
Date") if not dedicated to Firestone prior to the Expiration Date. All of Buyer's rights in
and to the Water Credits, and/or to dedicate said Water Credits, shall extinguish if not
dedicated prior to Firestone or assigned to Alberta concurrently with title to the Property
prior to the Expiration Date. Buyer shall not be entitled to any proceeds or reimbursement
from any sale subsequent to the Expiration Date; and
Section Two: Firestone hereby consent to an assignment of the Agreement, as amended herein,
to Alberta if Alberta acquires the Property from Buyer prior to the Expiration Date and pursuant
to terms of the Third Amendment attached here to as Exhibit A
Section Three: Section 6, "No Assignment" of the Water Credit Purchase Agreement is
amended to read as follows:
No Assignment. This Agreement shall not be assigned by Buyer except in connection with
the sale of the Property and only upon the prior written consent of Firestone which may be
withheld in its sole discretion. The Water Credits described herein are otherwise non-
transferable. If unforeseen circumstances occur that result in Buyer needing less than all of
the Water Credits acquired by this Agreement, the Water Credits shall be re -assigned to
Firestone in a timely fashion. Should Firestone, in its sole discretion, re -sell the Water
Credits described herein prior to the Expiration Date of the Water Credits, the associated
proceeds will be reimbursed to Buyer, up to, but not exceeding the Purchase Price
described herein. This Paragraph shall in no way require Firestone to re -sell any Water
Credits re -assigned to Firestone, and shall not entitle Buyer to any reimbursement for
Water Credits re -assigned to Firestone that are not re -sold prior to the Expiration Date of
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the Credits. Any purported transfer or assignment in violation of this provision shall be
void.
Section Four: All other terms and conditions of the Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Second Amendment with an
effective date of January IB4 2021.
TOWN OF FIRESTONE, COLORADO
f
Bobbi Sindelar, Mayor
ATTEST:
Jglssic� Koenig,
APPROVED AS TO
MORTGAGE CONSULTANTS, LLC.
By: SAG Management, LLC
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its Manager ;phen A. Grove,