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