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PUBLIC IMPROVEMENT AGREEMENT
(The Parallel Public Improvement Agreement)
This Public Improvement Agreement (this "Agreement") made this �9 of
c nwa,,r� , 90j,--26-28-(the "Effective Date"), by and between the CITY OF WHEAT
RIDGE, COLORADO, a home rule municipal corporation (the "City"), and FDG Parallel
Associates, LLC, a Colorado limited liability company (the "Developer"), together referred
to as the "Parties."
RECITALS
A. The Developer is the owner of certain real property located in the City of
Wheat Ridge, Colorado, which is more particularly described in Exhibit A and made a
part hereof (the "Property"), commonly known as The Parallel (previously referred to as
Ward Station Apartments).
B. On October 14, 2020, the City, after the required review process, approved
a Site Plan dated October 6, 2020 for the Property, titled The Parallel ("Site Plan").
C. The approval of the Site Plan cited above is contingent upon the express
condition that all duties created by this Agreement be faithfully performed by the
Developer.
D. A Development Covenant Agreement dated September 21, 2019 and
recorded on September 24, 2018 with the Jefferson County Clerk and Recorder under
Reception Number 2018087432 (the "Development Covenant Agreement') obligates the
Developer to execute this Agreement. Per Section 2 of the Development Covenant
Agreement, this Agreement replaces the Development Covenant Agreement in its entirety
and the Development Covenant Agreement shall be null and void, and of no further force
or effect.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, the sufficiency of which are mutually acknowledged, the
Parties hereto agree as follows:
1. Purpose. The purpose of this Agreement is to set forth the terms, conditions,
and fees to be paid by the Developer upon development of the Property. All conditions
contained herein are in addition to any and all requirements of the City of Wheat Ridge
Charter, any and all state statutes, and any other sections of the City of Wheat Ridge
Municipal Code and are not intended to supersede any requirements contained therein.
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2. Related_ City Agreements and Approvals. The Property is subject to that
certain Concept Plan for the Project titled Hance Ranch Concept Plan recorded with the
Jefferson County Clerk and Recorder under Reception Number 2017040410 (the
"Concept Plan"), and the City's approval of the Site Plan is confirmation that the Site Plan
is compliant with the requirements of the Concept Plan. Notwithstanding the approval of
the Site Plan, ancillary or related documents such as civil construction documents, right-
of-way permit application(s), site work permit application(s), and building permit
application(s) remain subject to the approval of the City (the "Additional Approvals") in
accordance with the Wheat Ridge Code of Laws ("Code of Laws"). Through such
Additional Approvals, the City will review and approve the final design any development
of the Property and the Public Improvements (as defined in Section 7 below) related
thereto. This Agreement is based on information available at the time of approval of the
Site Plan and shall not constitute approval of the Public Improvement designs.
3. Fees. The Developer hereby agrees to pay the City Development Review
fees to the City for engineering, hydrological, surveying, legal, and other services
rendered in connection with the review of the development of the Property. City
Development Review fees shall be consistent with the development review fees as
established by the adopted fee schedule set forth in the Code of Laws.
4. Parkland Dedication Fee -in Lieu. Fees in lieu of land dedication shall be
calculated pursuant to the formula in Section 26-413 of the Code of Laws thereby resulting
in the amount of $566,053.49 and shall be paid at the time of the building permit for any
residential development on the Property is issued.
5. Title Commitment. Prior to recording of this Agreement, a title commitment
for the Property (the "Title Commitment") shall be provided to the City. The Title
Commitment will commit to insure the easement area (the "Easement Area") and
easement rights on the Property granted by the Developer to the City. The Title
Commitment shall show that the Property is or shall be, subsequent to the execution and
recording of this Agreement, free and clear of all liens and encumbrances other than
those approved by the City. To the extent the Property is encumbered by a mortgage or
deed of trust, the holder of such mortgage or deed of trust ("Holder") shall execute either
a subordination or a joinder to any such easements granted to the City in the form
approved by the City attorney agreeing that any foreclosure or enforcement of any other
remedy available to Holder under any such mortgage or deed of trust will not render void
or otherwise impair the validity of the easement agreement. An updated Title
Commitment shall be provided within thirty (30) days after the recording of this
Agreement.
6. Breach by the Developer; the City's Remedies.
(a) In the event of a breach of any of the terms and conditions of this Agreement
by the Developer, the City Council shall be notified immediately and the City may, after
applicable notice and opportunity to cure to the Developer pursuant to Section 6(b), take
such action as permitted and/or authorized by law, this Agreement, or the ordinances and
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Charter of the City as the City deems necessary to protect the public health, safety and J
welfare; and to protect the citizens of the City from hardship and undue risk. These
remedies include, but are not limited to:
1. The refusal to issue any building permit or certificate of occupancy;
2.The revocation of any building permit previously issued under which construction
directly related to such building permit has not commenced, except a building
permit previously issued to a third party;
3. A demand that the security given for the completion of the Public Improvements
be paid or honored; or
4. Any other remedy available at law or in equity.
(b) Unless necessary to protect the immediate health, safety and welfare of the
City or to protect the City's interest with regard to security given for the completion of the
Public Improvements, the City shall provide the Developer thirty (30) days prior written
notice of its intent to take any action under this paragraph during which thirty (30) day
period the Developer may cure the breach described in the written notice; provided that
if the nature of the Developer's default is such that more than thirty (30) days are
reasonably required for its cure, then the Developer shall not be deemed to be in default
if the Developer commences such cure within said thirty (30) -day period and obtains the
consent of the City to such additional time as is needed to complete the cure.
7. Installation of Public and On -Site Improvements.
(a) All storm sewer lines, drainage structures, paved streets, curb, gutter,
sidewalk, amenity zones, street and pedestrian lighting, shared access drives, the
undergrounding of all overhead utilities, and necessary appurtenances (collectively the
"Public Improvements" or "Improvements") as shown on the approved development plan
(the "Development Plan") and the associated construction documents (the "CDs, and
together with the Development Plan, collectively the "Development Plan and CDs") as
approved by the City's Community Development Director or designee ("Director"), shall
be installed and completed at the expense of the Developer within the timeframes set
forth in Section 11 of this Agreement and as outlined in Exhibit B. The Public
Improvements shall be substantially complete, with only such exceptions as shall be
approved in advance by the Director in the exercise of his or her sole discretion, prior to
the issuance of a final Certificate of Occupancy. The Development Plan and CDs for the
Public Improvements are intended to include the following:
• Stormwater Drainage improvements, including, but not limited to, detention/water
quality facilities, pipes, inlets, and channels or other stormwater conveyances;
• Final lift of pavement, curb, gutter, 6' wide detached sidewalk, and 6' wide amenity
zone and furnishings on W. 51 st Avenue to the backside of south curbing (only with
respect to that portion of the foregoing that has not been previously completed by
Remington pursuant to the approved Hance Ranch Civil Construction Drawings);
Curb, gutter, and a 6' wide detached sidewalk with 6' amenity zone and
furnishings, and asphalt pavement extending from the approximate roadway
centerline to the curb & gutter on the west side of Tabor Street; and
• Construction of streetlight and pedestrian lighting along W. 51St Avenue and Tabor
Street frontages as shown on the approved civil construction and lighting plan sets.
(b) Notwithstanding anything to the contrary contained in this Agreement, if there is
any conflict between the foregoing list of improvements and the Development Plan and
CDs for the Public Improvements, then the Development Plan and CDs shall control.
(c) The itemized costs of the Public Improvements required by this Agreement and
shown on the Development Plan and CDs approved by the Director are set forth on
Exhibit C. All Public Improvements covered by this Agreement shall be made in
accordance with the CDs drawn according to regulations and construction standards for
such improvement and approved by the Director. It is understood by the Parties that the
description of the Public Improvements set forth herein may be general in nature, and
that reasonable modifications of the scope, nature, costs, and similar aspects of the
Public Improvements may be necessary on the Development Plan and CDs to secure
final approval of the Public Improvements. The quantities and locations for the Public
Improvements are based on information that was available at the time of approval of this
Agreement. If the Site Plan is amended or modified, then additional Public Improvements
may be required based on such amendment or modification, and the Developer shall be
responsible for submitting CDs for review of all Public Improvements and/or revisions to
the CDs approved by the City.
8. Warranty of Public Improvements. The Developer shall warrant any and all
Public Improvements which are conveyed to the City pursuant to this Agreement for a
period of two (2) years from the date the Director certifies that the same conforms to the
specifications approved by the City (the "Warranty Period"). No such certificate may be
requested or issued until all Public Improvements are fully complete and the Director so
certifies. Specifically, but not by way of limitation, the Developer shall warrant the
following:
(a) That the easement rights granted are transferred rightfully;
(b) All Public Improvements conveyed shall be free from any security interest
or other lien or encumbrance;
(c) All Public Improvements so conveyed shall be free of defects in materials
or workmanship for a period of two (2) years as stated above; and
(d) To the degree the Developer is required to install and maintain landscaping
on public or private property, it is the obligation of the owner of the Property
and its successors and assigns, to maintain the required landscaping in
perpetuity.
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Subject to Section 11 below, the City will finally accept for maintenance all Public
Improvements, exclusive of landscaping materials, after the two-year Warranty Period
has expired provided all warranty work has been completed. The City shall accept for
snow removal purposes only, all dedicated public streets after the City issues any
certificate of occupancy.
9. Reserved.
10. Observation, Inspection and Testing.
(a) The City shall have the right to require reasonable engineering observations
and testing at the Developer's expense. Observation and testing, acquiescence in, or
approval by any engineering inspector of the construction of physical facilities at any
particular time shall not constitute the approval by the City of any portion of the
construction of such Public Improvements. Such approval shall be made by the City, only
after completion of construction and in the manner hereinafter set forth.
(b) The Director is designated by the City to exercise authority on its behalf under
this Agreement and to see that this Agreement is performed according to its terms. Work
under this Agreement may, without cost or claim against the City, be suspended by the
Director for substantial cause.
(c) The Director shall, within a reasonable time after presentation, make decisions
in writing on all claims of the Developer and on all other matters relating to the execution
and progress of the work or the interpretation of this Agreement, the master plan and
specifications. All such decisions of the Director shall be final, subject only to review in
the district court for Jefferson County Colorado.
(d) The Director shall make all determinations of amounts and quantities of work
performed hereunder. To assist in this work, the Developer shall make available for
inspection any records requested by the Director and kept by the Developer, its agents,
contractors, officers, and employees.
(e) The Director and his authorized representatives shall have free access to the
work at all times, and the Developer shall furnish them with facilities for ascertaining
whether the work being performed, or the work which has been completed, is in
accordance with the requirements of this Agreement. Inspections requested by the
Developer shall be upon forty-eight (48) hours prior request.
(f) The Director will make periodic observations of construction (sometimes
commonly referred to as "supervision"). The purpose of these observations and
construction checking is to determine the progress of the work and to see if the work is
being performed in accordance with the approved Development Plan and CDs. The
Director will in no way be responsible for how the work is performed, safety in, on, or
about the job site, methods of performance, or timeliness in the performance of the work.
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(g) Inspectors may be appointed to inspect materials used and work done. LO
Inspections may extend to all or any part of the work and to the preparation or
manufacture of the materials to be used. The inspectors will not be authorized to alter
the provisions of this Agreement or any specifications or to act as foreman for the
Developer. The Inspector will have authority to reject defective materials and to suspend
any work that is being done improperly, subject to the final decision of the Director.
11. Completion of Public Improvements. The obligations of the Developer
provided for in Section 7 of this Agreement and Exhibits C and D, including the
inspections hereof, shall be performed on or before December 31, 2023 (the "Completion
Date"). The proper application for acceptance of the Public Improvements shall be made
on or before the Completion Date. Upon final completion of construction by the Developer
of such Public Improvements, the Director, shall inspect the Public Improvements and
certify with specificity its conformity or lack thereof to the City's specifications. The
Developer shall make all corrections necessary to bring the Public Improvements into
conformity with the City's specifications. Once approved by the Director, the City shall
accept said Public Improvements upon conveyance, which such conveyance shall be
documented by the Consolidation Plat required by the building permit; provided, however,
the City shall not be obligated to accept the Public Improvements until the actual costs
described in this Agreement are paid in full by the Developer, and the City will also issue
a letter of acceptance of the Public Improvements to the Developer.
12. Deferred Installation of Landscaping and Financial Guarantee. If a
Certificate of Occupancy is requested prior to completion of landscaping and irrigation,
an escrow account shall be accepted for the completion of necessary landscaping and
irrigation. Said financial guarantee shall be in the amount of one hundred and twenty five
percent (125%) of the cost of installation. Escrows shall not be released until all planting
and finish materials shown on the approved landscape plan are installed and accepted
and the irrigation is installed and functional. The amount of the escrow shall be based on
the City' standard itemized cost for required landscaping and irrigation. The itemized cost
for required landscaping and irrigation shall be accepted at the discretion of the Director
prior to acceptance of the escrow account. Should the required landscaping not be
properly installed prior to request for CO, the City reserves the right to draw upon the
landscaping escrow to have the required landscaping placed upon the subject premises.
Any costs reasonably incurred by the City in excess of the funds provided by the escrow
shall be recovered by the City through normal lien proceedings.
13. Protection.
(a) Except as expressly set forth herein, the Developer, at its expense, shall
continuously maintain adequate protection of all Public Improvements from damage prior
to acceptance by the City and shall protect the City's property from injury and loss arising
in connection with this Agreement. The Developer shall repair any such damage, and
indemnify the City against any injury or loss except such as may be caused directly by
authorized agents, inspectors or employees of the City. The Developer shall adequately
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protect adjacent property and shall provide and maintain all passageways, guard fences,
lights and other facilities for protection required by public authority or local conditions.
(b) The Developer shall be responsible for damage to any public and private
property on and adjacent to the Public Improvements caused by negligent or willful acts
of the Developer, its agents or contractors. The Developer shall take all reasonable effort
necessary to prevent damage to pipes, conduits, and other underground structures and
to overhead wires, and to water quality. The Developer shall protect carefully from
disturbance or damage all land monuments and property marks until an authorized agent
of the City has witnessed or otherwise referenced their location, and shall not remove
them until directed. When any direct or indirect damage or injury is done to public or
private property by or on account of any act, omission, neglect or misconduct in the
construction of Public Improvements by the Developer, its agents or contractors, or in
consequence of the non -execution thereof on the part of any such parties, such damaged
property shall be restored by the Developer at its own expense to a condition similar or
equal to that existing before such damage or injury.
(c) The Developer shall at all times, whether or not so specifically directed by the
Director, take necessary precautions to insure the protection of the public. The Developer
shall furnish, erect and maintain, at its own expense, all necessary barricades, suitable
and sufficient red lights, construction signs, provide a sufficient number of watchmen, and
take all necessary precautions for the protection of the work and safety of the public
through or around the Property's construction operations as the Developer and the
Director shall deem reasonably necessary.
14. Related Costs - Public Improvements. The Developer shall provide all
necessary engineering designs, surveys, field surveys, testing and incidental services
related to the construction of the Public Improvements at its sole cost and expense,
including final drainage study letter certified accurate by a professional engineer
registered in the State of Colorado.
15. Improvements to be the Property of the City. All Public Improvements for
roads, concrete curb and gutters, public storm sewers and public drainage improvements
accepted by the City shall be dedicated to the City and warranted for the Warranty Period,
as provided above.
16. Performance Guarantee for Public Improvements.
(a) In order to secure the construction and installation of the Public Improvements,
the Developer shall, prior to issuance of any Permits for the Project, furnish the City, at
the Developer's expense, with the Performance Guarantee described herein.
(b) The Performance Guarantee provided by the Developer shall be in the form of
an irrevocable letter of credit in which the City is designated as beneficiary, for one
hundred twenty-five percent (125%) of the estimated costs of the Public Improvements to
be constructed and installed as set forth in Section 1 of Exhibit C, if applicable to secure
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the performance and completion of the Public Improvements as required by Sections 26- g
110 (public dedications and improvements; security) and 26-418 (agreement and financial
security for required improvements), of the Wheat Ridge Code of Laws.
(c) The Developer agrees that approval of this Agreement by the City is contingent
upon the Developer's provision of an irrevocable letter of credit to the City within ninety
(90) days of the execution of this Agreement in the amount and form provided herein.
Failure of the Developer to provide an irrevocable letter of credit to the City in the manner
provided herein shall negate the City's approval of this Agreement. Letters of credit shall
be substantially in the form and content set forth in Exhibit D, if applicable, and shall be
subject to the review and approval of the City Attorney. The Developer shall not start any
construction of any public or private improvement on the Property including, but not
limited to, staking, earthwork, overlot grading or the erection of any structure, temporary
or otherwise, until the City has received and approved the irrevocable letter of credit.
Notwithstanding the foregoing, the Developer may (i) obtain the appropriate permits and
commence demolition and/or remediation of the Property and (ii) may obtain a grading
permit with posting of an appropriate performance guarantee, prior to the City's receipt
and approval of the irrevocable letter of credit.
(d) The estimated costs of the Public Improvements shall be a figure mutually
agreed upon by the Developer and the Director, as set forth in Exhibit C if applicable. If,
however, they are unable to agree, the Director's estimate shall govern after giving
consideration to information provided by the Developer including, but not limited to,
construction contracts and engineering estimates. The purpose of the cost estimate is
solely to determine the amount of security. No representations are made as to the
accuracy of these estimates, and the Developer agrees to pay the actual costs of all such
Public Improvements.
(e) The estimated costs of the Public Improvements may increase in the future.
Accordingly, the City reserves the right to review and adjust the cost estimate on an
annual basis. If the City adjusts the cost estimate for the Public Improvements, the City
shall give written notice to the Developer. The Developer shall, within thirty (30) days
after receipt of said written notice, provide the City with a new or amended letter of credit
in the amount of the adjusted cost estimates. If the Developer refuses or fails to so provide
the City with a new or amended letter of credit, the City may exercise the remedies
provided for in this Agreement; provided, however, that prior to increasing the amount of
additional security required, the City shall give credit to the Developer for all required
Public Improvements which have actually been completed so that the amount of security
required at all time shall relate to the cost of required Public Improvements not yet
constructed.
(f) In the event the Public Improvements are not constructed or completed within
the period of time specified by Section 11 of this Agreement or a written extension of time
mutually agreed upon by the Parties to this Agreement, the City may draw on the letter of
credit to complete the Public Improvements called for in this Agreement. In the event the
letter of credit is to expire within fourteen (14) calendar days and the Developer has not
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yet provided a satisfactory replacement, the City may draw on the letter of credit and
either hold such funds as security for performance of this Agreement or spend such funds
to finish Public Improvements or correct problems with the Public Improvements as the
City deems appropriate.
(g) Upon completion of performance of such Public Improvements and satisfaction
of the conditions and requirements in this Agreement within the required time, the original
letter of credit shall be either reduced or returned to the Developer and if returned to the
Developer, the Developer shall issue a new irrevocable letter of credit to the City in the
amount of twenty-five percent (25%) of the total cost of construction and installation of
the Public Improvements (including the cost of landscaping), to be held by the City during
the Warranty Period. If the Public Improvements are not completed within the required
time, the monies may be used to complete the Public Improvements. If the Public
Improvements require repair or replacement during the Warranty Period and the
Developer fails to complete said repairs or replacement prior to the end of the Warranty
Period, the City may draw on the letter of credit to make required repairs or replacements
to the Public Improvements.
17. Indemnification.
(a) Except the extent caused by the negligence or willful misconduct of the City, its
agents, employees or inspectors, the Developer shall indemnify and hold harmless the
City and its officers, employees, agents or servants from any and all suits, actions, and
claims of every nature and description caused by, arising from or on account of this
Agreement any act or omission of the Developer, its agents, officers, employees, and
contractors, or of any other person or entity for whose act or omission the Developer is
liable, with respect to the Public Improvements; and the Developer shall pay any and all
judgments rendered against the City as a result of any of the foregoing suit, action, or
claim, together with all reasonable expenses and attorney's fees and costs incurred by
the City in defending any such suit, action or claim.
(b) The Developer shall pay all property taxes due on any Easement Areas granted
to the City and shall indemnify and hold harmless the City for any property tax liability in
connection therewith.
18. Waiver of Defects. In executing this Agreement, the Developer waives all
objections it may have concerning defects, if any, in the formalities whereby it is executed,
or concerning the power of the City to impose conditions on the Developer as set forth
herein, and concerning the procedure, substance, and form of the ordinances or
resolutions adopting this Agreement.
19. Third Party Beneficiaries. There are and shall be no third party beneficiaries
to this Agreement, except the Holder who may take a collateral assignment of this
Agreement in connection with any construction loan for development of the Property
pursuant to Section 30 below.
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20. Modifications. This instrument embodies the whole agreement of the
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Parties. There are no promises, terms, conditions, or obligations other than those
contained herein; and this Agreement shall supersede all previous communications,
representations, or agreements, either verbal or written, between the Parties. There shall
be no modification of this Agreement except in writing, executed with the same formalities
as this instrument. Subject to the conditions precedent herein, this Agreement may be
enforced in any court of competent jurisdiction.
21. Release of Liability. It is expressly understood that the City cannot be
legally bound by the representations of any of its agents or their designees in accordance
with the City of Wheat Ridge Code of Laws and the laws of the State of Colorado.
22. Captions. The captions to this Agreement are inserted only for the purpose
of convenient reference and in no way define, limit, or prescribe the scope or intent of this
Agreement or any part thereof.
23. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective heirs, successors, and assigns as the
case may be. Subject to Section 30, if the Developer sells or otherwise conveys the
Property, it shall be released from its obligations under this Agreement from and after the
date of such sale or other conveyance. The foregoing release shall in no event release
the Property from being subject to this Agreement. Any person or entity acquiring, by
sale or other conveyance, direct ownership of the Property (the "Assuming Party")
assumes and agrees to be bound to the obligations under this Agreement. Acceptance
or execution by the Assuming Party of any document that conveys the Property ratifies
the Assuming Party's obligation to be bound by this Agreement.
24. No Waiver. No waiver of any of the provisions of this Agreement shall be
deemed or constitute a waiver of any other provisions herein, nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided, nor shall the waiver
of any default hereunder be deemed a waiver of any subsequent default hereunder.
25. Invalid Provision. If any provision of this Agreement shall be determined to
be void by any court of competent jurisdiction, then such determination shall not affect
any other provision hereof, all of the other provisions shall remain in full force and effect.
It is the intention of the Parties that if any provision of this Agreement is capable of two
constructions, one of which would render the provision void, and the other which would
render the provision valid, then the provision shall have the meaning which renders it
valid.
26. Governing Law. The laws of the State of Colorado (without reference to its
conflict of laws principles) shall govern the validity, performance and enforcement of this
Agreement. Should either party institute legal suit or action for enforcement of any
obligation contained herein, venue of such suit or action shall be in Jefferson County,
Colorado.
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27. Attorneys Fees. Should this Agreement become the subject of litigation to
resolve a claim of default of performance or payment by the Developer and a court of
competent jurisdiction finds in favor of the City, the Developer shall pay the City's
attorney's fees and court costs
28. Notice. All notices required under this Agreement shall be in writing and
shall be hand delivered or sent by (a) registered or certified mail, return receipt requested,
postage prepaid, or (b) overnight delivery or courier, to the addresses of the Parties herein
set forth; provided, however, that each sending party shall in addition to the notice
methods set forth above also send a copy of any notices via email to the receiving
party(ies). All notices so given shall be considered effective upon deposit in the U.S. mail
or delivery to the carrier with the proper address as set forth below. Either Party by notice
so given may change the address to which future notices shall be sent.
Notice to Developer: FDG Project Management Services, LLC
Attn: Kevin Foltz, Rich Wilson,
Andrew Browning and Marc Swerdlow
4500 Cherry Creek Drive South
Suite 550
Denver, Colorado 80246
Email: kfoltz@forumre.com
rwilson@forumre.com
abrowning@forumre.com
mswerdlow@forumre.com
With a copy to:
Fisher & Suhr, P.C.
Attn: Edie M. Suhr, Esq.
Collin Watkins, Esq.
1125 17th Street, Suite 710
Denver, Colorado 80202
Email: esuhr@fishersuhr.com
cwatkins@fishersuhr.com
Notice to City: Community Development Director
7500 West 29th Avenue
Wheat Ridge, CO 80033
Email: kjohnstone@ci.wheatridge.co.us
City Attorney
7500 West 29th Avenue
Wheat Ridge, CO 80033
Email: gdahl@mdbrlaw.com
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29. Force Majeure. Whenever the Developer is required to complete the
construction, repair, or replacement of Public Improvements by an agreed deadline, the
Developer shall be entitled to an extension of time equal to a delay in completing the
foregoing due to unforeseeable causes beyond the control and without the fault or
negligence of the Developer including, but not restricted to, acts of God, weather, fires,
strikes, civil insurrection, war, riots, and governmental preemption in connection with a
national emergency.
30. Assignment or Assignments. (a) Except for a collateral assignment to the
Holder, prior to the completion of the Improvements, there shall be no transfer or
assignment of any of the rights or obligations of the Developer under this Agreement
without the prior written approval of the City, which assignment shall be in the City's sole
and exclusive discretion, and the same shall not relieve the Property from being subject
to this Agreement.
(b) Subject to Paragraph 30(a), the City agrees that Developer may collaterally
assign its rights, title and interest in and to this Agreement to any Holder and that the City
will, promptly after receipt of written request for the same, execute and deliver any
acknowledgment, joinder, consent or other instrument reasonably required by any Holder
to evidence the City's approval of such collateral assignment. Notwithstanding anything
to the contrary contained in this Agreement, no Holder is obligated to complete any of the
work under this Agreement unless such Holder affirmatively elects the same or becomes
the fee owner of the Property and continues development of the Property by requesting
permits, certificates or other approvals from the City, and, in addition, the City consents
to such election. In such event, the work shall be completed pursuant to the terms and
conditions of this Agreement.
31. Recording of Agreement. This Agreement shall be recorded in the real
estate records of Jefferson County and shall be a covenant running with the Property in
order to put prospective purchases or other interested parties on notice as to the terms
and provisions hereof.
32. Title and Authority. The Developer expressly warrants and represents to
the City that it is the record owner of the property constituting the Property and further
represents and warrants, together with the undersigned individual(s) that the undersigned
individual(s) has or have full power and authority to enter into this Public Improvement
Agreement. The Developer and the undersigned individual(s) understand that the City is
relying on such representations and warranties in entering into this Agreement.
[Remainder of Page Intentionally Left Blank]
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WHEREFORE, the Parties hereto have executed this Agreement on the day and
year first above written.
ATTEST:
hen Kirkpatrick, City Clerk
Gerald D.Attorney
CITY OF WHEAT RIDGE, COLORADO
BY aV
Bud Starker, Mayor
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DEVELOPER
FDG Parallel Associates, LLC,
a Colorado limited liability company
By: Forum Management/In, is Manager
By:
Name: Ke ' Foltz
Title: Vice President
STATE OF COLORADO
n SS.
COUNTY OF
The foregoing instrument was acknowledged before me this 19 day of
20 ?.a, by Kevin Foltz as Vice President of Forum Management,
Inc., as Manager of FDG Parallel Associates, LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires: 21 21
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No Rry PubliC
LUKE B. DAVIS
(SEAL) Notary Public
State of Colorado
Notary lD # 20094013222
My Commission Ex fres 04-27-2021
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EXHIBIT A
Legal Description of Developer Property
PARCEL 1
LOT 2, HANCE'S SUBDIVISION REPLAT NO. 1, COUNTY OF JEFFERSON, STATE OF
COLORADO.
PARCEL 2:
A PARCEL OF LAND VACATED BY THE CITY OF WHEAT RIDGE, COLORADO
ORDINANCE NO. 1653, SERIES 2018, RECORDED AUGUST 29, 2018 UNDER
RECEPTION NO. 2018079546 BEING FURTHER DESCRIBED AS FOLLOWS:
A PARCEL OF LAND SITUATED IN THE RIGHT -OF WAY OF WEST RIDGE ROAD,
BEING LOCATED IN THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER
OF SECTION 17, TOWNSHIP 3 SOUTH, RANGE 69 WEST OF THE 6TH PRINCIPAL
MERIDIAN, CITY OF WHEAT RIDGE, COUNTY OF JEFFERSON, STATE OF
COLORADO.
BASIS OF BEARINGS: THE NORTH LINE OF THE SOUTHEAST QUARTER OF
SECTION 17, TOWNSHIP 3 SOUTH, RANGE 69 WEST OF THE SIXTH PRINCIPAL
MERIDIAN, AS MONUMENTED BY A 2" ID PIPE WITH A 3-1/4 INCH ALUMINUM CAP
IN A RANGE BOX STAMPED "PLS13212" AT THE EAST QUARTER CORNER OF SAID
SECTION 17 (COWR PT NO. 12209) AND A NO. 6 REBAR WITH A 2-1/2 INCH
ALUMINUM CAP IN A RANGE BOX STAMPED "PLS 27609" AT THE CENTER
QUARTER CORNER OF SAID SECTION 17 (COWR PT. NO. 12109) TO BEAR SOUTH
89°11'07" WEST, A DISTANCE 2646.95 FEET WITH ALL BEARINGS CONTAINED
HEREIN RELATIVE THERETO.
COMMENCING AT SAID EAST QUARTER CORNER OF SECTION 17:
THENCE S 89011'07" W ALONG SAID NORTH LINE OF THE SOUTHEAST QUARTER
OF SECTION 17 A DISTANCE OF 1058.53 FEET;
THENCE S 00018'02" E A DISTANCE 789.48 FEET TO THE SOUTHWEST CORNER
OF SAID HANCE'S SUBDIVISION AND THE POINT F BEGINNING;
THENCE ALONG THE LINE COMMON OF SAID SUBDIVISION AND NORTHERLY
RIGHT-OF-WAY OF WEST RIDGE ROAD THE FOLLOWING FOUR (4) COURSES:
1) N89°40'56"E A DISTANCE OF 86.44 FEET;
2) N84°17'24"E A DISTANCE OF 70.28 FEET;
3) N84°38'08"E A DISTANCE OF 40.16 FEET;
4) N79041'52" E A DISTANCE OF 158.91 FEET TO A POINT OF CURVATURE
THENCE ALONG THE ARC OF A NON -TANGENT CURVE TO THE LEFT, SAID
CURVE HAVING A RADIUS OF 400.00 FEET, A DELTA ANGLE OF 4°00'44", AND AN
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ARC LENGTH OF 28.01 FEET, WHOSE CHORD BEARS S 09051'42" W A DISTANCE
OF 28.00 FEET;
THENCE S83°20'19" W A DISTANCE OF 236.40 FEET TO A POINT OF CURVATURE;
THENCE ALONG THE ARC OF A TANGENT CURVE TO THE RIGHT, SAID CURVE
HAVING A RADIUS OF 755.00 FEET, A DELTA ANGLE OF 5°50'12", AND AN ARC
LENGTH OF 76.91 FEET, WHOSE CHORD BEARS S86016'13"W A DISTANCE OF
76.88 FEET TO A POINT OF TANGENCY;
THENCE S89016'38" W A DISTANCE OF 36.27 FEET;
THENCE N00018'02"W A DISTANCE OF 20.83 FEET TO THE POINT OF BEGINNING;
EXCEPTING THEREFROM TRACT A OF WARD ROAD STATION SUBDIVISION AS
RECORDED OCTOBER 31, 2014 UNDER RECEPTION NO. 2014092875.
PARCEL 3:
TRACT A OF WARD ROAD STATION SUBDIVISION AS RECORDED OCTOBER 31,
2014 UNDER RECEPTION NO. 2014092875, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID HANCE'S SUBDIVISION
REPLAT NO. 1; THENCE THE FOLLOWING SEVEN (7) COURSES COINCIDENT
WITH THE NORTHERLY, EASTERLY, SOUTHERLY AND WESTERLY LINES OF SAID
TRACT A;
1) NORTH 89°40'56" EAST A DISTANCE OF 86.44 FEET;
2) NORTH 84°17'24" EAST A DISTANCE OF 70.18 FEET;
3) SOUTH 00°17'20" EAST A DISTANCE OF 16.72 FEET;
4) SOUTH 83°20'19" WEST TANGENT WITH THE FOLLOWING DESCRIBED CURVE
A DISTANCE OF 43.65 FEET;
5) ALONG THE ARC OF A CURVE TO THE RIGHT, HAVING A CENTRAL ANGLE OF
5050'11", A RADIUS OF 754.00 FEET, A CHORD BEARING OF SOUTH 86°16'13"
WEST A DISTANCE OF 76.77 FEET, AND AN ARC DISTANCE OF 76.81 FEET;
6) SOUTH 89°16'38" WEST TANGENT WITH THE LAST CURVE A DISTANCE OF
36.60 FEET;
7) NORTH 00°18'02" WEST A DISTANCE OF 19.83 FEET TO THE POINT OF
BEGINNING.
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EXHIBIT B
Phasing Plan for the Public Improvements
The Public Improvements for the Property shall be installed in one phase as outlined
below:
• Prior to issuance of any site work permit, right-of-way permit, or vertical building
permit the irrevocable letter of credit shall be submitted to the City.
• Prior to issuance of building permit the following fees associated with that permit
shall be paid:
o City of Wheat Ridge building use tax
o Building permit and plan review fees
o Fees in lieu of parkland dedication
• Prior to issuance of building permit, a Lot Consolidation plat eliminating lot lines to
accommodate improvements located within the former RTD tract approved under
the Site Plan shall be recorded.
• Prior to issuance of a final Certificate of Occupancy, the following shall be
completed and accepted by the City:
o Stormwater drainage improvements as shown in the approved civil plans;
o 51St Avenue improvements (south side only to back of curbing), including
curb/gutter, sidewalks, asphalt, traffic signs, street lights and pedestrian
lights, as applicable, per the approved civil plans (only with respect to that
portion of the foregoing that has not been previously completed by
Remington pursuant to the approved Hance Ranch Civil Construction
Drawings)
o Tabor Street improvements (west side only), including curb/gutter,
sidewalks, asphalt, and street lights and pedestrian lights, as applicable,
per the approved civil plans;
o Adjacent on-site improvements shall be complete including sidewalks,
drives, parking lot, yard inlets, and associated piping, lighting, landscaping,
and all utilities shall be installed per the approved civil plans.
o Upon completion of on- or off-site drainage improvements, the engineer -of -
record shall provide to the city a letter of certification stating that the various
improvements as defined in the approved final drainage report and plan and
approved civil construction plans have been accurately surveyed to confirm
their construction is in accordance with these documents. The letter of
certification shall be written and stamped by the registered engineer -of -
record and be accompanied by as -built plans in support of the statement(s)
made in the letter. The letter and as-builts shall be submitted for review and
approval by the city.
Exception to the above requirements:
• Installation of landscaping, street "trees, and irrigation is not required prior to
Certificate of Occupancy if issuance of the C.O. occurs outside of the planting
season, generally October to June. Refer to Section 12 of this Agreement.
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EXHIBIT C
Cost Estimate for the Public Improvements
(see attached)
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EXHIBIT C
ENGINEERS ESTIMATE OF PUBLIC IMPROVEMENT CONSTRUCTION COSTS
WARD STATION (PARALLEL) APARTMENTS
10/02/2020
PUBLIC STREETS SUBJECTTO LETTER OF CREDIT (51st sidewalk, and Tabor Street frontage)
Item No:
Description:
Unit
Quantity
Unit Cost
Amount
1
Traffic Control
LS
1
$
13,000.00
$
13,000
2
Road Subgrade 3' Over Excavation
SY
207
$
6.00
$
1,242
3
Road Subgrade 3' Preparation (Fine Grade)
SY
207
$
11.50
$
2,381
4
6" Full -Depth Asphalt (Tabor Street)
TON
60
$
120.00
$
7,200
6
6" Vertical Curb & Gutter
LF
296
$
28.00
$
8,288
8
6" Detached Sidewalk
SY
485
$
50.00
$
24,250
10
6" On -Street Parking
SY
90
$
180.00
$
16,200
11
City Bench and Trash Receptacle on Conc. Pad
EA
7
$
2,285.00
$
15,995
12
City Bench and Trash Receptacle on Conc. Pad
EA
7
$
1,993.00
$
13,951
12
Pedestrian Light Concrete Base
EA
16
$
610.00
$
9,760
12
Pedestrian Light Standard
EA
16
$
1,982.00
$
31,712
12
Pedestrian Light Luminaire
EA
16
$
4,000.00
$
64,000
13
20' Residential Light Pole, and Luminaire
EA
5
$
7,640.00
$
38,200
14
Electrical Conduit
LF
837
$
10.00
$
8,370
15
ELECTRICAL PULL BOX
EA
14
$
500.00
$
7,000
16
Irrigation
SF
2923
$
1.00
$
2,923
17
Irrigated Turf
SF
2923
$
2.00
$
5,846
18
ADS Stormtech Underground Detention System
LS
1
$
85,000.00
$
85,000
19
Street Trees
EA
23
$
836.00
$
19,228
Subtotal
CONTINGENCY (25%)
TOTAL SECURITY AMOUNT=
$
$
$
374,546
93,636
468,182
CITY OF WHEAT RIDGE
ENGINEERING DIVISION
APPROVED FOR:
0 DRAINAGE 13 SIDEWALK
0 CURB & GUTTER O STREET
J6 MISCELLANEOUS 0 PLAT
COMMENT Itemized Engineer's Cost Estimate for PI's
11/30/2020
CIVIL ENGINEER DATE
SUBJECT TO FIELD INSPECTIONS
CITY CSF ��7 IROD09G
EN0I._ j1=_,FRf Q 137-0110OKLOM
DATE 11/30/202(,
RECEIVED 11/30/2020
3rd Submittal
0
EXHIBIT D
Letter of Credit Template
(see attached)
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FirstBank
6355 Ward Road, Arvada, Colorado 80004
LETTER OF CREDIT # 942-3286
BENEFICIARY: The City of Wheat Ridge
ADDRESS: 7500 West 29th Avenue, Wheat Ridge, CO 80033
DATE: December 212020
EXPIRY DATE: December 21, 2021 (subject to renewal as set forth below)
IRREVOCABLE STANDBY LETTER OF CREDIT
For: FDG Parallel Associates, LLC
4500 Cherry Creek Drive, Suite 550
Glendale, CO 80246
Gentlemen:
We hereby open our IRREVOCABLE STANDBY LETTER OF CREDIT (this "Letter of
Credit") in your favor available by your drafts drawn on FirstBank, a Colorado state banking
corporation, with an address of 12345 West Colfax Avenue, Lakewood, Colorado 80215, for
any sum or sums not to exceed in total $468,182.00 (the "Initial Stated Amount"). We hereby
authorize you to draw on us for the account of FDG Associates, LLC, a Colorado limited
liability company ("Developer") up to an aggregate amount of the Initial Stated Amount (125%
engineer's estimated cost of improvements) available by your drafts at sight accompanied by
your signed statement that the above is drawn in payment of public improvements pursuant to
the PIA (as defined below) including, but not limited to, stormwater drainage improvements,
51St Avenue street improvements (south side only to back of curbing), Tabor Street
improvements (west side only), and adjacent on-site public improvements shown on the final
development plan and associated construction documents for The Parallel.
This Letter of Credit is intended to secure the obligations of Developer under that certain Public
Improvement Agreement (The Parallel Public Improvement Agreement) (the "PIA"), to be
recorded in the real property records for Jefferson County, Colorado.
Drafts must be accompanied by (1) a sight draft; (2) a signed statement by an authorized
representative of the Beneficiary stating as follows: "We hereby certify that the amount of our
draft represents funds owed to the City of Wheat Ridge for payment obligations pursuant to the
conditions stated above, between FDG Associates, LLC and the City of Wheat Ridge."; and (3)
a copy of this Letter of Credit. Presentation of the foregoing items (1) through (3) shall be made
at our office referred to above.
Each draft must bear upon its face a clause "Drawn under Letter of Credit No. 942-3286 dated
December 21, 2020.
112860038.4
Pursuant to the terms of the PIA, the amount of this Letter of Credit may be reduced upon
completion of performance of the public improvements by Developer, as more fully set forth
in the PIA. This Letter of Credit may be reduced by an amount equal to 25% of the Initial Stated
Amount upon the execution and delivery of a Request for Amendment or Release of Letter of
Credit in the form attached hereto as Exhibit 1 (the "Reduction Certificate"). Following our
receipt of the Reduction Certificate, we shall execute and deliver to you an amendment or
termination, as the case may be, of this Letter of Credit, which shall amend or terminate, as the
case may be, this Letter of Credit in accordance with the terms set forth in the Reduction
Certificate.
This Letter of Credit is not transferable.
We hereby agree with you that drafts drawn under and in compliance with the terms of the
Letter of Credit will be duly honored if presented to the above mentioned drawee Bank on or
before December 21, 2021 (the "Initial Expiration Date"); provided that the Letter of Credit
will automatically renew for one (1) year periods (each, a "Renewal Expiration Date" and,
collectively with the Initial Expiration Date, the "Expiration Date") unless and until we provide
you with 30 days' written notice prior to the expiration of the then -current term of its intent not
to renew the Letter of Credit. Upon the earlier of (i) our honoring your draft(s) totaling the
Initial Stated Amount in the aggregate presented on or before the Expiration Date, (ii) the
Expiration Date, or (iii) the surrender to us by you of this Letter of Credit for cancellation, this
Letter of Credit shall automatically terminate.
This Letter of Credit shall be subject to the Uniform Commercial Code as in effect in the State
of Colorado and, to the extent not inconsistent with the terms of this Letter of Credit and the
Uniform Commercial Code, all applicable provisions of Uniform Customs and Practices for
Documentary Credits, 2007 Revision, International Chamber of Commerce Publication No.
600.
This Letter of Credit sets forth in full our undertaking, and such undertaking shall not in any
way be modified, amended, amplified or limited by reference to any document, instrument or
agreement referred to herein, except only the certificate and draft(s) referred to herein; and any
such reference shall not be deemed to incorporate herein by reference any document, instrument
or agreement except for such certificate and draft(s).
[Signature Page Follows]
2
112860038.4
Sincerely, 3
FirstBank,
a Colorado state banking corporation
By:
Patrick Riley, Executive Vice President
112860038.4
EXHIBIT 1 0
Request for Amendment or Release of Letter of Credit #942-3286
The City of Wheat Ridge (the "City") certifies that the person signing below is
authorized to execute this Request for Amendment or Release of Letter of Credit on behalf of
the City, and further certifies with respect to the provisions contained in the [Public
Improvement Agreement (The Parallel Public Improvement Agreement) dated ,
2020, and recorded in the real property records for Jefferson County, Colorado on
at Reception No. the following:
[Check applicable boxes.]
❑ The Letter of Credit is to be reduced to $
❑ Release Letter of Credit.
In witness whereof, the undersigned has executed this certificate on behalf of the City
this day of ,
CITY OF WHEAT RIDGE
By:
Printed Name:
Title:
112860038.4
JEFFERSON COUNTY
CLERK & RECORDER'S OFFICE
RECORDING DEPARTMENT
(303) 271-8121
Receipt Time: 01 /12/2021 03:54:27 PM
Issued To: WHEAT RIDGE CITY CLERK
Documents
# Type
1 SUBDIVISION
AGREEMENT
2 PLAT -REGULAR
SUBDIVISION
Receipt #: 5449
# Pages Quantity Reference # Book/Page Amount
24 1 2021005922 $128.00
2 1 2021005923 $23.00
Total: $151.00
Pavments
# Type Payment #
1 ESCROW CHARGE 121
Total Payments:
Balance for Account # 121 as of 01/12/2021 03:55 PM is $802.75
NEW HOURS 7:30AM-5:OOPM M-TH
GEORGE P STERN
CLERK & RECORDER
Amount NSF
$151.00
$151.00