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HomeMy WebLinkAboutCondition 12 BVA - Improvements Agreement DRAFT 1 BUFFALO VALLEY SIDEWALK IMPROVEMENTS AGREEMENT THIS BUFFALO VALLEY SIDEWALK IMPROVEMENTS AGREEMENT (“Agreement”) is made and entered into this 13th day of February, 2017, by and between Partners III LLC (“Owner”) and the BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY, COLORADO, acting for the County of Garfield (“County”), State of Colorado, as a body politic and corporate, directly or through its authorized representatives and agents (“BOCC”). Recitals 1. Owner is the owner and developer of Buffalo Valley Apartments which is located on approximately 2.2 acres of land as more particularly described in a deed found at Reception Number 835572 in the records of the Garfield County Clerk and Recorder (the “Property”). The Property is located within unincorporated Garfield County in the Commercial Limited Zone District, approximately one mile south of Glenwood Springs, Colorado, located off of County Road 154, with an address of 3637 Highway 82. 2. In accordance with the County’s adopted Land Use and Development Code (the “LUDC”), multi-unit dwellings may be permitted in the Commercial Limited zone district with a Limited Impact Review. 3. On April 6, 2015, the BOCC, by Resolution No. 2015-18, recorded at Reception Number 861203 of the real estate records of Garfield County, Colorado and incorporated by this reference, approved a land use change permit authorizing a multi-unit dwelling on the Property (the “Resolution”) and said approval was subsequently extended by Resolution No. 2016-14, recorded at Reception Number 874996. 4. As a condition precedent to the approval of the land use change permit, paragraph 12 2 of the Resolution requires the Owner to construct a sidewalk on County Road 154 and enter into this Agreement with the BOCC. 5. Owner has agreed to execute and deliver security in a form satisfactory to the BOCC to secure and guarantee Owner’s performance under this Agreement and has agreed to certain restrictions and conditions regarding the sale of properties and issuance of building permits and certificates of occupancy as more fully set forth below. 6. Owner represents that at the time of recording this Agreement, all taxes and assessments upon the Property are paid in full. NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and promises contained herein, the BOCC and Owner (“Parties”) agree as follows: Agreement 1. Recitals Incorporated Herein. The foregoing recitals are incorporated herein by this reference. 2. Land Use Change Permit Approval. The BOCC hereby accepts and approves the Land Use Change Permit, subject to the terms and conditions of this Agreement and the requirements of the LUDC and any other governmental or quasi-governmental regulations applicable to the Property. 3. Owner’s Performance as to Sidewalk Improvements. a. Completion Date/Substantial Compliance. Owner shall cause to be constructed and installed the sidewalks, paving and gutters as more fully described in the attached Exhibits incorporated herein by this reference (the “Improvements”) at Owner’s expense, including payment of fees required by the County and/or other governmental and quasi-governmental entities with regulatory jurisdiction over the Property. The 3 Improvements shall be completed on or before June 22, 2018 (date certain) or the end of the first full year following execution of this Agreement (the “Completion Date”), in substantial compliance with the following: i. Plans marked “Approved for Construction” for all Improvements prepared by Mountain Cross Engineering and Z Group Architects and submitted to the BOCC on February 13, 2017, such plans being summarized in the list of drawings attached to and made a part of this Agreement by reference as Exhibit A; and the estimate of cost of completion, certified by and bearing the stamp of Owner’s professional engineer licensed in the State of Colorado (“Owner’s Engineer”), attached to and made a part of this Agreement by reference as Exhibit B, which estimate shall include an additional five percent (5%) of the total for contingencies (collectively the “Cost Estimate”); ii. All requirements of the Resolution; iii. All laws, regulations, orders, resolutions and requirements of the County and all special districts and any other governmental entity or quasi- governmental authority with jurisdiction; and iv. The provisions of this Agreement and all other documentation 4 b. Satisfaction of Improvements Provisions. The BOCC agrees that (1) if the Improvements are constructed and installed in accordance with this paragraph 2; (2) the record drawings have been submitted upon completion of the Improvements, as detailed in paragraph 3 below; and (3) all other requirements of this Agreement have been met, then the Owner shall be deemed to have satisfied all terms and conditions of the Resolution and the LUDC, with respect to the installation of the Improvements. 4. Security for Improvements. a. Improvements Security and Substitute Collateral. As security for Owner’s obligation to complete the Improvements, Owner shall deliver to the BOCC, on or before February 13, 2017, a form of security deemed adequate by the BOCC and payable to the County, attached to and incorporated in this Agreement by reference as Exhibit C (“Security”). The Security shall be in the amount equal to the Cost Estimate. The Security shall be valid for a minimum of six (6) months beyond the Completion Date (the "Expiration Date"). b. Security Requirements and Land Use Change Permit. The Land Use Change Permit shall not be issued until the Security has been received by the County and approved by the BOCC. c. Extension of Expiration Date. If the Completion Date is extended by a written amendment to this Agreement, the time period for the validity of the Security shall be similarly extended by the Owner. For each individual extension that is in excess of six (6) months, at the sole option of the BOCC, the cost of completion of the remaining Improvements shall be subject to re-certification by Owner's engineer and review by the BOCC. To the extent the cost of completion of the Improvements, plus an additional ten 5 percent (10%) of such cost for contingencies, differs from the face amount of the remaining Security, the amount of such Security shall be adjusted upwards or downwards, as appropriate. d. Unenforceable Security. Should the Security expire or become void or unenforceable for any reason prior to the BOCC's approval of Owner's engineer's certification of completion of the Improvements, including bankruptcy of the Owner or the financial institution issuing or confirming the Security, this Agreement shall be voidable by action of the BOCC and, upon such action, this Agreement shall be of no further force and effect and the Land Use Change Permit shall be vacated pursuant to the terms of this Agreement. 5. Request for Release of Security. Upon completion of the Improvements and requirements of the Agreement, Owner shall submit to the BOCC, through the Community Development Department: 1) record drawings bearing the stamp of Owner's engineer certifying that all Improvements, including off-site improvements within the jurisdiction of the County, have been constructed in accordance with the requirements of this Agreement and 2) a Written Request for Final Release of Security, in the form attached to and incorporated herein as Exhibit D, along with Owner's engineer's stamp and certificate of final completion of the Improvements. 6. BOCC's Investigation of Completion of Improvements. Upon receipt of Owner’s Written Request for Final Release of Security, the BOCC may inspect and review the Improvements certified as complete to determine whether or not they have been constructed in compliance with relevant specifications, as follows: 6 a. If no letter of potential deficiency or determination that applicable requirements of this Agreement have not been satisfied is furnished to Owner by the BOCC within fifteen (15) business days of submission of Owner's engineer’s certified completion of the Improvements, all Improvements certified as complete shall be deemed approved by the BOCC, and the BOCC shall, within ten (10) business days of such improvements being deemed complete, release the appropriate amount of Security. b. If the BOCC chooses to inspect and determines that all or a portion of the Improvements certified as complete are not in compliance with the relevant specifications or that applicable requirements of the Agreement have not been met, the BOCC shall furnish a letter of potential deficiency to the Owner, within fifteen (15) business days of submission of Owner's engineer’s certified completion of the Improvements. c. BOCC Completion of Improvements and Other Remedies. If the BOCC finds, within the fifteen (15) day period of time defined in subparagraph 6.b. above, that the Improvements are not complete, or if the BOCC determines that the Owner will not or cannot construct the Improvements, or that applicable requirements of the Agreement will not or cannot be met, the BOCC may withdraw and employ from the Security such funds as may be necessary to construct the Improvements in accordance with the specifications up to the face amount of the Security. In such event, the BOCC shall make a written finding regarding Owner's failure to comply with this Agreement prior to requesting payment from the Security, in accordance with the provisions of Section 13-106 of the LUDC. In lieu of or in 7 addition to drawing on the Security, the BOCC may bring an action for injunctive relief or damages for the Owner's failure to adhere to the provisions of this Agreement regarding the Improvements. d. Final Release of Security. The BOCC shall authorize a final release of the Security after the Improvements are certified as final to the BOCC by the Owner's engineer and said final certification is approved by the BOCC. If the BOCC finds that the Improvements are complete, in accordance with the relevant specifications, the BOCC shall release the Security within ten (10) business days following submission of the Owner's Written Request for Final Release of Security accompanied by the other documents required by this paragraph 6. 7. Indemnity. The Owner shall indemnify and hold the BOCC harmless and defend the BOCC from all claims which may arise as a result of the Owner’s installation of the Improvements and any other agreement or obligation of Owner, related to development of the Property required pursuant to this Agreement. The Owner, however, does not indemnify the BOCC for claims made asserting that the standards imposed by the BOCC are improper or the cause of the injury asserted, or from claims which may arise from the negligent acts or omissions of the BOCC or its employees. The BOCC shall notify the Owner of receipt by the BOCC of a notice of claim or a notice of intent to sue, and the BOCC shall afford the Owner the option of defending any such claim or action. Failure to notify and provide such written option to the Owner shall extinguish the BOCC’s rights under this paragraph. Nothing in this paragraph shall be construed to constitute a waiver of governmental immunity granted to the BOCC by Colorado statutes and case law. 8 8. Breach or Default of Owner. A "breach" or "default" by Owner under this Agreement shall be defined as Owner's failure to fulfill or perform any material obligation of Owner contained in this Agreement. In the event of a breach or default by Owner under this Agreement, the County shall deliver written notice to Owner of such default, at the address specified in paragraph 14 below, and Owner shall have sixty (60) days from and after receipt of such notice to cure such default. If such default is not of a type that can be cured within such 60-day period and Owner gives written notice to the County within such 60-day period that it is actively and diligently pursuing such cure, Owner shall have a reasonable period of time given the nature of the default following the end of such 60-day period to cure such default, provided that Owner is at all times within such additional time period actively and diligently pursuing such cure. 9. Building Permits and Certificates of Occupancy. As one remedy for breach of this Agreement, the BOCC may withhold issuance of building permits for any residence or other habitable structure to be constructed within the Property. 10. Consent to Vacate Land Use Change Permit. In the event the Owner fails to comply with the terms of this Agreement, the BOCC shall have the ability to vacate the Land Use Change Permit as it pertains to any lots for which building permits have not been issued. As to lots for which building permits have been issued, the Land Use Change Permit shall not be vacated and shall remain valid. In such event, the Owner shall provide the BOCC a plat, suitable for recording, showing the location by surveyed legal description of any portion of the Property so vacated by action of the BOCC. If such a Plat is not signed by the BOCC and recorded, or if such Plat is not provided by the Owner, the 9 BOCC may vacate the Land Use Change Permit, or portions thereof, by resolution. 11. Enforcement. In addition to any rights provided by Colorado statute, the withholding of building permits and certificates of occupancy, the provisions for release of Security, and the provisions for land use change permit vacation, detailed herein, it is mutually agreed by the BOCC and the Owner, that the BOCC, without making an election of remedies, and any purchaser of any lot within the Property shall have the authority to bring an action in the Garfield County District Court to compel enforcement of this Agreement. Nothing in this Agreement, however, shall be interpreted to require the BOCC to bring an action for enforcement or to withhold permits or certificates or to withdraw unused Security or to vacate the Land Use Change Permit. 12. Notice by Recordation. This Agreement shall be recorded in the Office of the Garfield County Clerk and Recorder and shall be a covenant running with title to the Property. Such recording shall constitute notice to prospective purchasers and other interested persons as to the terms and provisions of this Agreement. 13. Successors and Assigns. The obligations and rights contained herein shall be binding upon and inure to the benefit of the successors and assigns of the Owner and the BOCC. 14. Contract Administration and Notice Provisions. The representatives of the Owner and the BOCC, identified below, are authorized as contract administrators and notice recipients. Notices required or permitted by this Agreement shall be in writing and shall be effective upon the date of delivery, or attempted delivery if delivery is refused. Delivery shall be made in person, by certified return receipt requested U.S. Mail, receipted delivery service, or facsimile transmission, addressed to the authorized representatives of the BOCC and the Owner at the address or facsimile number set forth 10 below: Owner: BOCC: Partners III, LLC 75 Buckskin Dr. Carbondale, CO 81623 w/copy to, Ryan Jarvis Beattie, Chadwick & Houpt, LLP 932 Cooper Ave Glenwood Springs, CO 81601 Garfield County Board of County Commissioners Attn: Community Development Director 108 Eighth Street, Suite 401 Glenwood Springs, Colorado 81601 Phone: (970) 945-8212 Fax: (970) 384-3470 15. Amendment and Substitution of Security. This Agreement may be modified, but only in writing signed by the Parties hereto, as their interests then appear. Any such amendment, including, by way of example, extension of the Completion Date, substitution of the form of security, or approval of a change in the identity of the security provider/issuer, shall be considered by the BOCC at a scheduled public meeting. Before any extension of Completion Date is considered, Owner shall certify that all taxes and assessments on the real property subject to the Agreement are paid in full. If such an amendment includes a change in the identity of the provider/issuer of security, due to a conveyance of the Property by the Owner to a successor in interest, Owner shall provide a copy of the recorded assignment document(s) to the BOCC, along with the original security instrument. Notwithstanding the foregoing, the Parties may change the identification of notice recipients and contract administrators and the contact information provided herein, in accordance with the provisions of that paragraph and without formal 11 amendment of this Agreement and without consideration at a BOCC meeting. 16. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed one and the same instrument. 17. Venue and Jurisdiction. Venue and jurisdiction for any cause arising out of or related to this Agreement shall lie with the District Court of Garfield County, Colorado, and this Agreement shall be construed according to the laws of the State of Colorado. IN WITNESS WHEREOF, the Parties have signed this Agreement to be effective upon the date first written above. BOARD OF COUNTY COMMISSIONERS ATTEST: OF GARFIELD COUNTY, COLORADO _________________________ By: ___________________________ Clerk to the Board Chairman Date: __________________________ 12 OWNER By: ______________________________ Partners III, LLC Norman Bacheldor/ Managing Member _______________________________ (Name and Title) Date: _______________________________ STATE OF COLORADO ) )ss. COUNTY OF GARFIELD ) Subscribed and sworn to before me by ________________________, an authorized representative of __________________, Owner of the Property, this ___ day of __________________, 2017. WITNESS my hand and official seal. My commission expires: ____________________________ _______________________________ Notary Public 13 Exhibit A 14 Exhibit B 15 Exhibit C Security 16 Exhibit D REQUEST FOR FINAL RELEASE OF LETTER OF CREDIT Board of County Commissioners Garfield County, Colorado c/o Community Development Director 108 8th Street, Suite 401 Glenwood Springs, CO 81601 RE: Buffalo Valley Apartments This request is written to formally notify the BOCC of work completed for Buffalo Valley Apartments. On behalf of the Owner, Partners III, LLC, we request that the BOCC review the attached Engineer’s Certificate of Completion and approve a full release of the Letter of Credit in the amount of $____________________. Attached is the certified original cost estimate and work completed schedule, showing that all improvements required by the Improvements Agreement and secured by the Letter of Credit have been completed. Also enclosed is the following, required by the Improvements Agreement dated February 6, 2017 between Owner and the BOCC, recorded as Reception No. ____________ in the Real Estate Records of the Garfield County Clerk and Recorder (the “SIA”): Recorded drawings bearing the stamp of Owner’s Engineer certifying that all improvements have been constructed in accordance with the requirements of the SIA, both in hand copy and digital format acceptable to the BOCC. If further information is needed, please contact: Norman Bacheldor, at (970) 379-7874. __________________________________________ Partners III, LLC, Owner By: ______________________ or _________________________________________ Chris Hale, P.E., Mountain Cross Engineering chris@mountaincross-eng.com Owner’s Representative/Engineer 17