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Home My WebLink About22-100 Water Activity Enterprise Approving Blackburn Communities, LLC Native Water Credit Purchase 09-28-2022RESOLUTION NO.22-100 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, ACTING BY AND THROUGH ITS WATER ACTIVITY ENTERPRISE, APPROVING THE BLACKBURN COMMUNITIES 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, final development plan and/or receiving a building permit ("Water Rights Dedication"); and WHEREAS, Blackburn Communities, 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 December 10, 1998, and described as the Crossroads Annexation ("Annexation Agreement"), and must actually dedicate those "water rights" and/or "shares" prior to recording a final subdivision plat, final development plan or receiving a building permit; and WHEREAS, on or before December 26, 2022, Buyer expects to become the owner of and seeking to develop certain lands within the Town of Firestone, as more fully described and depicted on the attached Exhibit 1 ("Property") which is made a part of this resolution; and WHEREAS, Buyer has need for "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, acting by and through its Water Activity Enterprise, and Blackburn Communities, 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 28th day of September, 2022. TO�S'1'O E�DO rro I -1i /mental, Move Pro Tic M ATT 'T: APPROVED AS TO FORM: Mi na Gonzalez, Asst. Town Clerk William P. Hayashi, To�orney NATIVE WATER CREDIT PURCHASE AGREEMENT ��y This Native Water Credit Purchase Agreement ("Agreement"), made and entered into this lxday of v _ � 2022 ('Effective Date"), by and between the Town of Firestone acting y and through its Water Activity Enterprise ("Firestone") and Blackburn Communities, LLC whose address is 310 Enterprise Dr., Oxford, MS 38655 ("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 ne cemh er In , i qqg("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, on or before December 26, 2022, Buyer expects to become the owner of certain lands within the Town of Firestone, as more fully described and depicted on Exhibit l (the `Property"), which Buyer is seeking to develop; and WI IF.REAS, 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: I. Recitals. The foregoing Recitals are incorporated herein as if fully set forth. 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 party. 3. Purchase Price. Buyer agreed to pay the Purchase Price for 84 Native Water Credits purchased, for a total Purchase Price of $3,700,000.00.1be Purchase Price is due and payable within sixty-three (63) days of the Effective Date of this Agreement. 4. Dedication. The Native Water Credits purchased by Buyer herein shall be deemed automatically dedicated to Firestone, at the execution of this Agreement, to fulfill the water dedication requirement necessary for Buyer to obtain a final plat for the Property. 5. Buy Back of Native Water Credits. Buyer, and/or its successors and assigns, are currently under contract for the purchase of the Property and Buyer expects to close on the Property on or before December 26, 2022. Firestone and Buyer hereby acknowledge and agree that in the event Buyer, its successors or assigns, do not close on the Property on or before December 26, 2022, Firestone shall buy back the Native Water Credits being the subject of this Agreement for the entirety of the Purchase Price provided herein. In this regard, if Buyer does not close on the Property on or before December 26, 2022, Buyer shall notify Firestone of the same within seven (7) days of such occurrence. Firestone shall have thirty (30) days from the receipt of said notice to buy back the Native Water Credits from Buyer by refunding the Purchase Price to Buyer or grant an agreed upon extension by both parties that would coincide with new closing date on the property. If buyback of the Native Water Credits from the Buyer by refunding the Purchase Price to Buyer is successful, at which time this Agreement shall be terminated in its entirety. 6. No Assignment. This Agreement, and dedication of Native Water Credits provided herein shall not be assigned by Buyer without written approval from Firestone. The Native Water Credits described herein are non -transferable and may only be assigned due to a sale or conveyance of the Property by Buyer or otherwise upon written approval by Firestone. 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. 7. 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. 8. 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. 9. Seyerability. 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 he written, construed, and enforced as so limited. 10. 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- 1 I . 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 Patties hereto have executed this Agreement on the date and year first above written. TOWN OF FIRESTONE, acting by and through its Water Activity Enterpri 1 .. By: Print ffit,w Pro?�o. Title: BLACKBURN COMMUNITIES, LLC By: ........... hc+1C'liurr� Print: A a er Title: