Loading...
HomeMy WebLinkAbout22-134 Fifth Amend. Water Credit Purchase Agrmt. Mortgage Consultants, LLC 12-14-2022RESOLUTION NO. 22-134 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, APPROVING THE FIFTH 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 advised Firestone that it had entered into a contract to sell certain property ("Property") described in the Annexation Agreement to Alberta Development Partners LLC, ("Alberta") which contract was 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 requested Firestone extend the Expiration Date to May 10, 2021; and WHEREAS, Mortgage Consultants also requested that Firestone consent to an assignment of the Agreement, as amended, to Alberta in connection with Alberta's purchase of the Property; and WHEREAS, Firestone consented to such requests which the parties memorialized in entering into the Second Amendment to Water Credit Purchase Agreement; and WHEREAS, Mortgage Consultants has therefore assigned the Agreement and the remaining 74.67 water credits to Alberta; and WHEREAS, Alberta to facilitate development of the Property requested that the Expiration Date be extended from May 10, 2021 to May 10, 2022 and Firestone consented to such request upon its adoption of the Thrid Amendment to the Water Credit Purchase Agreement upon the condition that Alberta would not request an additional extension of the Expiration Date; and WHEREAS, Alberta again approached the Town and acknowledged that it could not meet the Thrid Amendment extension deadline and needed additional time to facilitate development of the Property and requested that the expiration date be extended to December 31, 2022 and affirmed that would be its final extension request; and WHEREAS, though the Town granted Alberta's request as set forth in the Fourth Amendment to the Water Credit Purchase Agreement, Alberta once again acknowledges that it can't meet the December 31, 2022 deadline and requests that the expiration date be extended to June 30, 2023; and WHEREAS, Alberta further agrees to assume all benefits and burdens and be bound by the terms and conditions of the Agreement, as amended. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: The Fifth 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 Fourth Amendment on behalf of the Town. INTRODUCED, READ AND ADOPTED this 14'd day of December 2022. SEAL AT T ST: onzalez, Acting Town Clerk TO FIRES s7NE, COLORADO Drew Alan Peterson, Mayor APPRO D AST RM: uAkffiftA Was William P. Hayashi, Attorney FIFTH AMENDMENT TO WATER CREDIT PURCHASE AGREEMENT BETWEEN THE TOWN OF FIRESTONE AND MORTGAGE CONSULTANTS, LLC. (Cottonwood Hollow) WHEREAS, Alberta Development Partners, LLC ("Alberta), is a "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, Mortgage Consultants, LLC ("MC"), predecessor in interest to Alberta, placed a successful bid and was awarded the right to and did purchase 131 Water Credits from Firestone; and WHEREAS, Firestone, in its sole discretion, agreed to accept the Water Credits to fulfill MC's 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 MC on February 8, 2018, and as required under the Annexation Agreement; and WHEREAS, of the 131 Water Credits which are the subject of the Agreement, MC dedicated 56.33 Water Credits leaving 74.67 Water Credits available for Buyer (as defined below) to dedicate pursuant to the Agreement; and WHEREAS, MC assigned the Agreement as it pertains to the remaining 74.67 Water Credits to Alberta or one or more affiliates of Alberta as the term affiliate is defined in the Second Amendment to this Agreement (Alberta and its affiliate(s) is hereinafter now referred to collectively as "Buyer") in connection with the remainder of the Property as described in Exhibit 1 to the Agreement (the "Property") which was owned by MC (and is now owned by Buyer), which assignment was approved by the Town pursuant to Section 6 of the Agreement and subject to Firestone and Buyer's approval of the Third Amendment; and WHEREAS, Buyer agreed to bound to the terms and conditions of the Agreement as amended; and WHEREAS, Section 8 of the original Agreement provided: 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, MC and Firestone entered into a Second Amendment to the Agreement which, among other things, extended the Expiration Date until March 8, 2021; and WHEREAS, to facilitate the development of the Property, MC and Firestone entered into the Third Amendment to the Agreement which extended the Expiration Date to May 10, 2022; and WHEREAS, to once again facilitate the development of the Property, Buyer and Firestone entered into the Fourth Amendment to the Agreement which extended the Expiration Date to December 31, 2022; and WHEREAS, Buyer desires to again extend the Expiration Date to June 30, 2023, to facilitate its development of the Property; 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 apart of this Fifth Amendment, the parties agree as follows: 1. Section 8, "Expiration" of the Water Credit Purchase Agreement is amended to read as follows: Expiration. The Water Credits described herein shall expire on June 30, 2023 (`Expiration Date'l 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 to Firestone prior to the Expiration Date. Buyer shall not be entitled to any proceeds or reimbursement from any sale of the Water Credits subsequent to the Expiration Date. Buyer may only obtain an extension of the Expiration Date if its failure to dedicate the Water Credits prior to the Expiration Date is directly due to the occurrence of a Force Majeure event, as that term is defined herein, provided that: a) Buyer gives Firestone written notice describing the particulars of the Force Majeure event and details how it impacts Buyer's ability to dedicate the Water Credits; b) suspension of Buyer's obligation to dedicate the Water Credits and extension of the Expiration Date shall be of no longer duration than is required by the Force Majeure event; and c) Buyer proceeds with reasonable diligence to remedy its inability to dedicate the Water Credits. As used herein, "Force Majeure" shall mean events occurring beyond the reasonable control of the Buyer which would prevent it from completing the requirements which are necessary preconditions to dedicating the Water Credits to Firestone including acts of God, epidemic or pandemic, delays in obtaining any necessary government approval or permits beyond normal process times and which delays are not the result of Buyer's actions or inactions, war or terrorism. 2. All other terms and conditions of the Agreement, as amended, remain in full force and effect. Signatures transmitted or effected electronically are agreed by the parties to be treated as original. This Fifth Amendment may be executed in counterparts. IN WITNESS R'HE OF, the parties have executed this Fifth Amendment with an effective date of November 2022. TOWN FIREST NE, COLORADO Drew Peterson, Mayor i �i ALBERTA DEVELOPMENT PARTNERS, LLC r i By: