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2022106726
12/07/2022 00:17:37 AM 26 Page(s)
JEFFERSON COUNTY, Coiorado
SUBDIVISION IMPROVEMENT AGREEMENT
THIS SUBDIVISION IMPROVEMENT AGREEMENT (this "Agreement") is made
as of A odeNbar 14 2022 (the "Effective Date"), by and between the CITY OF WHEAT
RIDGE, COLORADO, a home rule municipal corporation (the "City"), and
EVERGREEN-40TH & CLEAR CREEK CROSSING APARTMENTS, L.L.C., an Arizona
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, which is more particularly described in Exhibit A and made a part hereof
(the "Property"), commonly known as Outlook II at Clear Creek Crossing.
B. On )4*6- , 2022, the Community Development Director of
the City of Wheat Ridge administratively approved a plat for the Property titled Clear
Creek Crossinq Block 5 Replat, Amendment No.1 (the "Resubdivision"). A copy of the
Resubdivision is attached hereto as Exhibit B and incorporated herein and is recorded
with the Jefferson County Clerk and Recorder under reception number
2.0 2.2 i oto "7-2--4 .
C. On March 3, 2022, the Planning Commission of the City of Wheat Ridge,
after holding all required public hearings, approved a specific development plan ("SDP")
for the Property titled Clear Creek Crossing PA-9 Planned Residential Development,
approving multifamily residential development with 250 apartment units (the "Project").
This Agreement is a condition of the SDP approval.
D. The approvals cited above are contingent upon the express condition that
all duties created by this Agreement be faithfully performed by the Developer.
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 certain terms,
conditions in connection with the subdivision and site development of the Property, and
fees to be paid by the Developer upon subdivision of the Property. All conditions
contained herein are in addition to any and all requirements of the City of Wheat Ridge
Subdivision Ordinance and Zoning Ordinance, the City of Wheat Ridge Charter, any
and all state statutes, and any other sections of the City of Wheat Ridge Municipal Code
(collectively, the "City Requirements") and are not intended to supersede any
requirements contained therein. Notwithstanding anything contained in this Agreement
to the contrary, in case of any conflict between the express terms of the Final Approvals
(as defined below), this Agreement and the City Requirements, the Final Approvals
shall control in all respects. Notwithstanding anything contained in this Agreement to
the contrary, if and to the extent an item is not addressed in the Final Approvals, then in
J00240533 Q
case of any conflict between the express terms of this Agreement and the City
Requirements, this Agreement shall control in all respects.
2. Related City Agreements and Approvals. The Property is subject to that
certain Outline Development Plan titled Homestead District Expansion recorded with the
Jefferson County Clerk and Recorder under reception number 2021179811, Design
Pattern Book recorded with the Jefferson County Clerk and Recorder under reception
number 2021179812, and Specific Development Plan for the Property titled Clear Creek
Crossing PA-9 Planned Residential Development approved on March 3, 2022 and
recorded with the Jefferson County Clerk and Recorder under reception no.
Zo ZZ i OGI ZS (collectively, the "Entitlements"). The Property will also be
subject to future review and approval of civil construction documents, right-of-way
permit application(s), site work permit application(s), and building permit application(s)
(collectively, together with the Entitlements, the "Final Approvals"). Through such
approvals, the City will review and approve the final design and any development,
Public Improvements, and non -City acquired public improvements related thereto. This
Agreement is based on information available at the time of approval of the Specific
Development Plan and shall not constitute approval of the Public Improvement designs.
3. Fees and Taxes. The Developer hereby agrees to pay City development
review, building permit and plan 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 as codified in the City Requirements. The project is subject
to use taxes for private horizontal development authorized by a site work permit and for
private vertical construction authorized by a building permit. Upon request, the City
agrees to provide a written accounting of such fees and taxes.
4. Parkland dedication fee -in -lieu. Fees in lieu of land dedication for public
parks and sites shall be calculated pursuant to the formula in Section 26-413 of the City
Code. For this Project, the total required fee -in -lieu of parkland dedication is
$444,464.02. This fee takes into the account the total number of residential units as well
as the on -site dedication of a 16,742 square foot tract (Tract A) for the purposes of
publicly -accessible open space including a trailhead structure, public art, and bicycle
racks. This fee shall be paid at the time of the first building permit for any residential
structure.
5. Reserved.
6. Breach by the Developer: the City's Remedies. 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, following the requisite notice and cure as
provided below, take such action as permitted and/or authorized by law, this
Agreement, or the ordinances and Charter of the City as the City deems necessary to
protect the public health, safety and welfare and to protect lot buyers and builders.
These remedies include, but are not limited to:
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(a) The refusal to issue any building permit or certificate of occupancy;
(b) The revocation of any building permit previously issued to Developer
under which construction directly related to such building permit has not
commenced, except a building permit previously issued to a third party
other than Developer,
(c) A demand that the security given for the completion of the Public
Improvements be paid or honored, or
(d) Any other remedy available at law or in equity.
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 and non -City acquired public improvements, the City shall provide
the Developer thirty (30) days written notice of its intent to take any action under this
paragraph during which thirty -day period the Developer may cure the breach described
in the notice. Notwithstanding the foregoing, if such breach or noncompliance cannot
be reasonably cured within such thirty (30)-day period, Developer shall be granted such
additional time as is reasonably necessary provided that Developer good faith
commences to cure such breach or noncompliance within such thirty (30)-day period
and thereafter diligently completes such cure in good faith within ninety (90) days after
such notice from the City unless the City and Developer otherwise agree to a longer
cure period.
7. Installation and Phasing of Public and On -Site Improvements. The public
improvements to serve the Property are divided into two categories: The "Public
Improvements" (defined to include those improvements to be conveyed to the City) and
all other improvements not to be conveyed to the City (defined as the "non -City -
acquired public improvements"), all as shown on the Final Approvals. The Public
Improvements shall be installed and completed at the expense of the Developer within
the timeframes set forth in Section 10 of this Agreement and as outlined in Exhibit C,
with only such exceptions as shall be approved in advance by the City's Director of
Community Development or designee ("Director") in the exercise of his or her sole
discretion.
For purposes of clarity, the "Public Improvements" required hereunder are
specifically delineated on Exhibit C. In the event of any inconsistency or conflict
between the narrative set forth in this Agreement and the terms of Exhibit C, Exhibit C
shall control in all respects. Exhibit C also lists certain of the non -City -acquired public
improvements. All Public Improvements and non -City -acquired public improvements
covered by this Agreement shall be made in accordance with the Final Approvals and
the City Requirements, subject to the terms of Section 1 above. Developer and the City
hereby contemplate that the Final Approvals will provide for the development of the
Property in multiple phases (each a "Phase" and collectively, the "Phases"). For
purposes of clarity, the Phases, if any hereunder, are set forth on Exhibit CA. The
Phases as set forth on Exhibit CA are in no order and can occur in any order or
100240533 41
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progression as the market and construction conditions demand. As expressly
delineated on Exhibit C, certain of the Public Improvements and the non -City -acquired
public improvements also may be completed in Phases.
The itemized costs of the Public Improvements for each Phase required by this , j�
Agreement and shown on the Final Approvals are set forth on Exhibit D. All Public
Improvements covered by this Agreement shall be made in accordance with the with the
Final Approvals and the City Requirements, subject to the terms of Section 1 above.
Construction of public improvements in City Right -of -Way shall be limited to the
hours of 7:00 a.m. to 5:00 p.m. Monday through Friday. The Developer may request to
perform work in the Right -of -Way outside of these days and/or times, subject to
approval from the Public Works Department, and the Developer shall be liable for any
overtime payments required by the inspector (per Section 21-53a of the City Code).
Construction of private improvements, including construction of buildings,
driveways, private retaining walls, or demolition, and installation of landscaping shall be
limited to the hours of 7:00 a.m. to 7:00 p.m., per Section 5-46 of the City Code.
8. Reserved.
9. Observation, Inspection and Testing. The City shall have the right to
require reasonable engineering observations and testing at the Developer's expense, all
as specified and per the terms set forth in the City Requirements. 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 substantial completion of construction and in the manner
hereinafter set forth.
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. For purposes of this Agreement, "substantial
cause" means a default by Developer under this Agreement, the City Requirement or
the Final Approvals beyond the applicable notice and cure set forth in this Agreement.
The Director shall, within a reasonable time after presentation, but not to exceed
thirty (30) days, make decisions in writing on all claims of Developer and on all other
matters relating to the execution and progress of the Public Improvements or the
interpretation of this Agreement and the Final Approvals. All such decisions of the
Director shall be final. The Parties agree that field design changes or design changes
because of site conditions in the field will be supported by revised construction
documents as determined by the Director.
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The Director shall make all determinations of amounts and quantities of work
performed hereunder. To assist him in this work Developer shall make reasonably
available for inspection any records kept by Developer.
The Director and his authorized representatives shall have reasonable access to
the work on the Public Improvements at all times, subject to any reasonable contractor
rules and regulations required by laws or to preserve the safety of the site.
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 Public Improvements and to
confirm if the Public Improvements are being performed in accordance with the Fina
Approvals. He will in no way be responsible for how the Public Improvements are
performed, safety in, on, or about the job site, methods of performance, or timeliness in
the performance of the work. In furtherance of the foregoing, such supervision shall not
unreasonably and adversely interfere with progress of work, safety in, on, or about the
job site, methods of performance, or timeliness in the performance of such work.
As and to the extent provided in the City Requirements or Final Approvals,
inspectors may be appointed to inspect materials used and work done concerning the
Public Improvements. Inspections may extend to all or any part of the Public
Improvements 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 Developer.
10. Completion of Public Improvements and non -City acquired public
improvements. The obligations of the Developer provided for in Section 7 of this
Agreement and Exhibits C and C.1, the Phasing Plan, including the inspections hereof,
shall be performed on or before the date that is two (2) years from and after the
commencement of construction of the Public Improvements, subject to Force Majeure
(as defined below). Upon completion of construction by the Developer of the Public
Improvements for a Phase, the Director, shall inspect the Public Improvements and
certify with specificity its conformity or lack thereof to the Final Approvals and City
Requirements. The Developer shall make all corrections necessary to bring the
Improvements into conformity with the Final Approvals and City Requirements.
11. Reserved.
12. Deferred Installation of Landscaping and Financial Guarantee. If a
Certificate of Occupancy is requested for a particular Phase prior to completion of those
portions of the Public Improvements comprising landscaping and irrigation in such
Phase, an irrevocable letter of credit or escrow account, with Developer's lender 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. The financial guarantee shall not be released until all planting and
f00240533 41
finish materials shown on the approved landscape plan that is part of the Final
Approvals are installed and accepted and the irrigation is installed and functional. The
amount of the financial guarantee shall be determined by the Director in consultation
with the Developer based upon the final awarded bid costs for the itemized cost be
estimate for the required landscaping and irrigation. Should the required landscaping
not be properly installed upon the expiration of the financial guarantee, the City reserves
the right to use such funds 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 financial guarantee shall be payable by Developer to City within thirty (30) days after
Developer's receipt of invoices and reasonable back up for such excess costs. If
Developer fails to pay such amounts, the same may be recovered by the City by any
lawful means, including certification to the County Treasurer for collection in the same
manner as real estate taxes.
13. Protection. Developer, at its expense, shall continuously use all efforts to
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. Developer shall repair any such damage, injury, or
loss except to the extent caused directly by authorized agents or employees of the City.
Developer shall use commercially reasonable efforts to adequately protect adjacent
property and shall provide and maintain all existing passageways, guard fences, lights
and other facilities for protection required by public authority or local conditions.
Except to the extent caused directly by authorized agents or employees of the
City, Developer shall be responsible for damage to any public and private property on
and adjacent to the site of Developer's Public Improvements caused by negligent or
willful acts of Developer, its agents, or subcontractors. Developer shall take all efforts
necessary to prevent damage to pipes, conduits, and other underground structures and
to overhead wires, all to the extent the same will remain after Developer's completion of
Developer's project, and to water quality. Developer shall use efforts to protect 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 if required by law or City Requirements. When any direct or
indirect damage or injury is done to public or private property by or on account of any
neglect or willful misconduct or acts in the construction of Public Improvements, or in
consequence of the non -execution thereof on his part, such damaged property shall be
restored by Developer at its own expense to a condition similar or equal to that existing
before such damage or injury, ordinary wear and tear excepted.
Developer shall at all times, whether or not so specifically directed by the
Director, take necessary precautions to insure the protection of the public. 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 precautions for the protection of the work and safety of the public through or
f00240533 41
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around the Property's construction operations as Developer and the Director shall deem
reasonably necessary.
14. Related Costs — Public Improvements and non -City acquired public n
improvements. The Developer shall provide all necessary engineering designs, t
surveys, field surveys, testing and incidental services related to the construction of the
Public Improvements and non -City acquired 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 a
period of twenty-four (24) months following acceptance by the City, as provided above.
The Improvements to be conveyed to the City adjacent to the Property will be
completed by the Master Developer; no on -site improvements will be conveyed to the
City.
16. Reserved.
17. Performance Guarantee for Public Improvements. In order to secure the
construction and installation of the Clear Creek Drive extension (the "Extension") as
detailed on the approved construction documents titled Clear Creek Crossing Clear
Creek Drive Extension Construction Drawings and dated September 14, 2022,
Developer shall, within ninety (90) days after the execution of this Agreement, furnish
the City, at the Developer's expense, with the Performance Guarantee described
herein.
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 Extension as set forth
in Exhibit D to secure the performance and completion of the Extension as required by
Section 26-418 Security for Required Improvements, of the Wheat Ridge Subdivision
Regulations.
Letters of credit shall be substantially in the form and content set forth in
Exhibit E and shall be subject to the review and approval of the City Attorney. In this
instance, the approved letter of credit shall serve as Exhibit E. The Developer shall not
start any vertical construction of any structures on the Property until the City has
received and approved the irrevocable letter of credit.
The estimated costs of the Extension shall be a figure mutually agreed upon by
the Developer and the Director, as set forth in Exhibit D. 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
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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 the Extension.
The estimated costs of the Extension 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 Extension, 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 that portion of the Extension
which has actually been completed so that the amount of security required at all time
shall relate to the cost of the Extension not yet constructed.
In the event the Extension is not constructed or completed within the period of
time specified by Section 10 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 Extension 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 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 the
Extension or correct problems with the Extension as the City deems appropriate.
Upon completion of performance of such improvements, conditions and
requirements within the required time, the Developer shall issue an 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 Extension (including the cost of landscaping), to be
held by the City during the Warranty Period. If the Extension is not completed within the
required time, the monies may be used to complete the improvements. If the Extension
requires 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
Improvements.
18. Indemnification. Except to the extent of the negligence or willful
misconduct of the City, the Developer shall indemnify and hold harmless the City
officers, employees, agents, contractors, subcontractors, and independent contractors
from any and all suits, actions, and claims of every nature and description to the extent
caused by, arising from or on account of any negligent act or omission of the Developer,
or of any other person or entity for whose negligent 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 suit, action, or claim, together
t00240533 41
n
with all reasonable expenses and attorney's fees and costs incurred by the City in
defending any such suit, action or claim.
19. 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.
20. Third Party Beneficiaries. There are and shall be no third -party
beneficiaries to this Agreement.
21. Modifications. This instrument embodies the whole agreement of the
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.
22. 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 except in
accordance with the City of Wheat Ridge Code of Ordinances and the laws of the State
of Colorado.
23. 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.
24. 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.
25. 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.
26. 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.
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27. Governing Law. The laws of the State of Colorado 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. o
28. 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 if the City substantially prevails.
29. Notice. All notices required under this Agreement shall be in writing and
shall be hand delivered or sent by registered or certified mail, return receipt requested,
postage prepaid, to the addresses of the Parties herein set forth. All notices so given
shall be considered effective upon receipt. Either Party by notice so given may change
the address to which future notices shall be sent.
Notice to Developer:
Evergreen-40th & Clear Creek Crossing
Apartments, L.L.C.
Attention: Tyler Carlson
1873 South Bellaire Street
Suite 1200
Denver, Colorado 80222
Notice to City: Community Development Director
7500 West 29th Avenue
Wheat Ridge, CO 80033
City Attorney
7500 West 29th Avenue
Wheat Ridge, CO 80033
29. Force Majeure. For purposes hereof, "Force Majeure" shall mean delay
beyond the reasonable control of the party claiming the delay, including, but not limited
to, acts of God, any delay caused by any action, inaction, order, ruling, moratorium,
regulation, statute, condition or other decision of any governmental or quasi -
governmental agency or entity having jurisdiction over any portion of the Public
Improvements, over the construction of the Public Improvements or over any uses
thereof, or by delays caused by any action, inaction, condition or other decision by any
utility company responsible for "dry" utilities, or by delays in inspections or in issuing
approvals or permits by governmental or quasi -governmental agencies, or by fire,
casualty, flood, adverse weather conditions such as, by way of illustration and not
limitation, wind, snow storms or prolonged moisture which prevent outdoor work from
being accomplished, severe rain storms or below freezing temperatures of abnormal
degree or for an abnormal duration, tornadoes, earthquakes, floods, strikes, lockouts or
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other labor or industrial disturbance (whether or not on the part of agents or employees
of either Party hereto engaged in the construction of the Public Improvements), civil
disturbance, order of any government, court or regulatory body claiming jurisdiction or
otherwise, act of public enemy, war, riot, sabotage, blockage, embargo, failure or
inability to secure materials or labor (including labor and materials shortages caused by
national weather or other national events), or other natural or civil disaster, delays
caused by any dispute resolution process provided herein or by the City Requirements,
or any delays by injunctions or lawsuits concerning the overall project. Lack of funds or
inability to obtain internal approvals shall not constitute Force Majeure.
30. Assignment or Assignments. Except as hereinafter provided, this
Agreement shall not be assigned in whole or in part by the Developer without the prior
written consent of the City; provided, however, that the following assignments and
transfers will not require any such consent: (i) subject to a written notice to the City
from the Developer, the Developer may assign some or all of its rights, interests, and
obligations under this Agreement to the successor owner(s) of the Property or portions
thereof provided that Developer directly or indirectly owns at least 50% of the equity
interest in, or has managerial control over or the right to direct the day-to-day operations
of, such successors owner(s); and (ii) subject to a written notice to the City from the
Developer, the Developer may assign some or all of its rights, interests, and obligations
under this Agreement to one or more entities who will develop, own and/or operate all or
a portion of the Property or of the improvements to be constructed thereon and who are
a subsidiary parent company, special purpose entity, affiliate directly or indirectly owned
or controlled by or under common direct or indirect control or ownership with Developer,
or a joint venture entity formed by Developer or with its investors or partners.
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 sole record owner of the property constituting the Property and
further represents and warrants that Developer has full power and authority to enter into
this Subdivision 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.
WHEREFORE, the Parties hereto have executed this Agreement on the day and
year first above written.
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[Remainder of Page Intentionally Left Blank]
11
CITY OF WHEAT RIDGE, COLORADO
ATTEST: X�
Stephen Kirkpatrick, City Clerk
ey
f00240533 4}
Bud Starker, Mayor
12
DEVELOPER
EVERGREEN-40TH & CLEAR CREEK
CROSSING APARTMENTS, L.L.C., an
Arizona limited liability company
By: Evergreen Development
Company-2021, L.L.C., an Arizona
limited liability company
Its: Manager
By: Evergreen Devco, Inc., a
California corporation
Its: Manager
By: A .
�°(
Name:I-IeSS (J; A ro ma l
Its: Req 0 ic,,.. c� t7f�esiC��,-f -1r1v-�ycr., ll�f
STATE OF
)ss.
COUNTY OF �� )
On this the er4 day of � , 2022, before me, the
undersigned Notary Public 'n and for said Count an State, personally appeared
/W��V� , the Public in
of Everareen Devco. Inc.. a
California corporation, as NKanager for Evergreen Development Company - 2021,
L.L.C., an Arizona limited liability company, as Manager for Evergreen-40th & Clear
Creek Crossing Apartments, L.L.C., an Arizona limited liability company, personally
known to me to be the person whose name is subscribed to the within instrument and
acknowledged to me that he or she executed the instrument in such person's authorized
capacity, and that by his or her signature on the instrument the entity on behalf of which
the person acted, executed the instrument.
WITNESS my hand and official seal.
0 mw�
P•1 �H ' _
My Commission Expires: 9A0�
(SEAL) LISA RITTER
FNOTARYLIC - STATE OF COLO]2026
f00240533 4} RY ID 20184019793
SION EXPIRES MAY 9,
13
EXHIBIT A
Legal Description of Developer Property
LOT 1 AND TRACTS A AND B, CLEAR CREEK CROSSING BLOCK 5 LOT LINE
ADJUSTMENT, AMENDMENT NO. 1, CITY OF WHEAT RIDGE, COUNTY OF
JEFFERSON, STATE OF COLORADO
f00240533 41
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100240533 41
EXHIBIT B
Resubdivision
(see attached on following pages)
15
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EXHIBIT C
Phasing Plan for Public Improvements and non -City acquired Improvements
Consistent with the approvals for this Project, non -City acquired Improvements andD
Public Improvements shall be installed as follows:
• The Site Work Permit may be issued upon approval of civil engineering plans,
construction control plan, cost estimates, stormwater management plan (SWMP),
and payment of City of Wheat Ridge use tax.
• Foundation -only building permits may be issued for all buildings upon submittal
of separate foundation -only permit applications and plans to the City and the
appropriate use tax, building permit, and plan review fees paid. These permits
may be issued prior to the completion of the on -site all-weather access required
by West Metro and utility installation required for the issuance of permits allowing
vertical/combustible construction, however, access adequate for conducting
foundation inspections is required.
• Prior to issuance of the first vertical apartment building permit, the parkland
dedication fee -in -lieu shall be paid.
• Prior to issuance of each 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
• Prior to any vertical construction, the following shall be completed and accepted
by the City:
o Applicable foundation inspections have been conducted by the City and
the foundations have passed inspections.
o Written notification to City and West Metro Fire Protection District of intent
to commence combustible vertical construction.
o Installation of water mains and activations of fire hydrants for the
respective phase, with written acknowledgement from Consolidated
Mutual Water District that fire hydrants are active.
o Installation of all-weather primary access and access adequate for
conducting inspections. This access will be located north of existing
trailhead parking lot in area where future Clear Creek Drive extension is
planned. Refer to the access exhibit in Exhibit C.1.
o Installation of all-weather secondary access and access adequate for
conducting inspections. This access will be located at the north access
drive at Clear Creek Drive for PA-7 (Brandt Hospitality Group site).
• Prior to issuance of the first Certificate of Occupancy, the following Public
Improvements shall be completed and accepted by the City:
o Extension of Clear Creek Drive from current cul-de-sac terminus to new
northern terminus, including curb/gutter, sidewalks/trail/ramps, asphalt,
landscaping, traffic signs, street lights, pedestrian lights, and trailhead
f00240533 41
20
parking area, as applicable, per the Final Approvals, and restoration of
former cul-de-sac area.
• Prior to issuance of the first Certificate of Occupancy in each Phase, on -site
improvements, including adjacent sidewalks providing logical and accessible
connections to the public right-of-way (and trail, if applicable), private drives and d�
parking areas, yard inlets and associated piping, lighting, landscaping, fencing,
site furnishings, and all utilities shall be installed based on the enclosed overall
phasing plan in Exhibit C.I.
o Interim striping of access drives and parking areas within a Phase shall be
in place if any CO is sought prior to top lift to accommodate parking and
circulation.
o It is possible to defer landscaping installation to the final CO within a
Phase only if active construction of adjacent buildings within that Phase
prevents installation. If so, a CO may be issued for a building within that
Phase without installed landscaping if a landscape escrow is provided to
the City and the area is appropriately stabilized. All landscaping within
each Phase shall be installed prior to the final CO for that Phase.
• Prior to issuance of the final Certificate of Occupancy, the following shall be
completed and accepted by the City:
o Top lift on all internal roadway systems
o Top lift of connection through PA-7 (Hampton Inn site) to Clear Creek
Drive, except if the Hampton Inn site is still under construction when the
final Certificate of Occupancy is requested. In that case, the responsibility
for the top lift would be required to be completed prior to the Certificate of
Occupancy for Hampton Inn.
o All remaining on -site landscaping, site furnishings, fencing, and lighting
o Trailhead structure and amenities in Tract A. Updated civil construction
drawings shall be provided to the City prior to commencement of
construction of the trailhead structure.
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.
{00240533 41
21
EXHIBIT CA
Overall Phasing Plan for Public Improvements and non -City acquired public
Improvements
The Public Improvements and non -City acquired public improvements for the Property
shall be installed in phases as outlined in the attached Phasing Plan (each being a
"Phase").
N
® !1ARCHITECTURAL SITE PLAN
{00240533 41
1N
MOM
—KME P�A!T
.nn,.,it.Utu 1X
,vNf
MT YCIITYRE STREET
DDNEN OTT, ON
O'en morns an"A; COVANT
EXISIM MATER STORM POND
M
CLEAR CREEK CROSSING PA-9 SDP
c „� 0 8 l= WHEAT RIDGE, COLORADO
�i
EXHIBIT D
Cost Estimate for Extension l
APPROVED
By Jordan Jefferies at 9:50 am, Aug 02, 2022
ENGINEER'S PROBABLE COST ESTIMATE
Clear Creek Drive Extension
Wheat Ridge, CO
712512022
Job No.16.0946
Prepared by:
MARTINIMARTIN CONSULTING ENGINEERS
12499 WEST COLFAX AVENUE; LAKEWOOD, COLORADO 80215
ESTIMATED
QUANTITY
UNIT
UNIT COST
TOTAL COST
1 PUBLIC STREETIPARKING AREA
Asphalt Pavement (7" thick)
1,678
TON
$92.00
$154,376.00
Aggregate Base Course (14" thick)
5,177
TON
$45.00
$232,965.00
6" Curb & Gutter
1,524
LF
$32.50
$49,530.00
Concrete Crosspan
45
SY
$130.00
$5,850.00
Sidewalk (6" depth) (Public & Private)
1,050
SY
$65.00
$68,250,00
12' Wide Maintenance Path
160
SY
$95.00
$15,200.00
Pedestrian Curb Ramps Type 1A
3
EA
$2,450.00
$7,350.00
Bicycle Curb Ramps
27
SY
$65.00
$1,755.00
Crusher Fines
32
TON
$95.00
$3,040.00
Epoxy Pavement Marking
3,073
LF
$12.00
$36,876.00
Preformed Pavement Marking (Bike 10 SF)
5
EA
$410.00
$2,050.00
Traffic Signs
13
EA
$450.00
$5,850.00
MSE Landscape wall
500
SF
$30.00
$15,000.00
Boulder Retaining Wall
270
LF
$150.00
$40,500.00
Bollard
2
EA
$575.00
$1,150.00
Subtotal
$639,742,00
2 STREET LIGHTING
Relocate Light Standard
1
EA
$ 8,350.00
$8,350.00
4Inch Conduit Trenched
1,700
LF
$ 39.00
$66,300.00
Light Standard Foundation
7
EA
$ 2,100.00
$14,700.00
Pull Box 11 x1 7
7
EA
$ 545.00
$3,815.00
Light Standard w/Luminaire L1
5
EA
$ 5,470.00
$27,350.00
Light Standard w/Luminaire L2
2
EA
$ 6,781.00
$13,562.00
Wiring
1
LS
$ 6,980.00
$6,980.00
Meter Pedestal
2
EA
$ 11,015.00
$22,030.00
Mobilization
1
LS
$ 4,800.00
$4,800.00
Subtotal
$167,887.00
3 STORM SEWER
Adjust Storm Manhole Elevation to match Pavement
2
EA
$1,200.00
$2,400.00
Subtotal
$2,400.00
7. CONTINGENCIES
A. Contingency (25% of Total)
$202,507.25
Subtotal
$202,507.25
Grand Total Cost:
1,012,536.25
f00240533 4}
24
EXHIBIT E
Letter of Credit
Comerica Bank
Letter of Credit and Trade Service
2321 Rosecrans Ave. 5th Fi,
El Segundo, CA 90245
Tel: 310-297-2858
Fax: 310-297-2885
SWIFT: MNBDUS6SXXX
Irrevocable
Standby Letter of Credit No.: OSB23022C
LETTER OF CREDIT #
OSB23022C
BENEFICIARY:
The City of Wheat Ridge
ADDRESS:
7500 West 29m Avenue, Wheat Ridge, CO 80033
DATE:
September 1, 2022
EXPIRY DATE:
August 24, 2023
IRREVOCABLE STANDBY LETTER OF CREDIT
Applicant: Evergreen — 40th & Clear Creek Crossing Apartments, LLC 2390 E.
Camelback Rd., Suite 410, Phoenix, AZ 85016
Gentlemen:
We hereby open our IRREVOCABLE STANDBY LETTER OF CREDIT in your favor available by your
draft(s) at sight drawn on Comerica Bank, Intemational Trade Services, 2321 Rosecrans Ave., 5th
Floor, MC 4659, El Segundo, CA 90245, Attn: Standby Letter of Credit Dept. for any sum or sums not to
exceed in total of USD1,012,536.25. We hereby authorize you to draw on us for the account of
Evergreen — 40th & Clear Creek Crossing Apartments, LLC up to an aggregate amount of
USD1,012,536.25 when accompanied by the following documents:
1. The original of this Irrevocable Standby Letter of Credit and Amendment(s) if any.
2. Beneficiary's statement on its letterhead dated and signed by authorized representative of the
Beneficiary indicating name and title of the signer using the wording as follows,
1. "We hereby certify that the amount of our draft represents funds owed to the City of Wheat Ridge
due to non-performance pursuant to the agreement for Outlook Il Clear Creek (the Project)
between Evergreen - 40th & Clear Creek Crossing Apartments, LLC and the City of Wheat Ridge
for 1) of street improvements including, but not limited to, curb, gutter, sidewalk, asphalt patching,
street paving, and other street improvements shown on the final plat and associated construction
documents for the Project".
and/or
OSB23022C
f00240533 41
25
Page 1 of 2
ON
J Comerica Bank
2. "We hereby certify that the amount of our draft represents funds owed to the City of Wheat Ridge
due to non-performance pursuant to the agreement for The Outlook II Clear Creek (the Project)
between Evergreen - 40th & Clear Creek Crossing Apartments, LLC and the City of Wheat Ridge
for payment of storm drainage improvements including, but not limited to, detention pond grading,
detention pond outlet structure(s), storm sewer system, and other drainage facilities shown on the
final plat and associated construction documents for the Project".
This IRREVOCABLE STANDBY LETTER OF CREDIT is not transferable.
All drafts required under this Irrevocable Standby Letter of Credit must be marked: "Drawn under
Comerica Bank irrevocable Standby Letter of Credit no. OSB23022C."
In the case of cancellation, the original Standby Letter of Credit and all Amendments thereto must be
returned to us together with a written request from Beneficiary referencing this Standby Letter of Credit
number and authorizing its cancellation.
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 Comerica Bank International Trade Services, 2321
Rosecrans Ave., 5th FI., El Segundo, CA 90245, Attn: Standby Letter of Credit Dept. on or before
the expiration date of this credit.
Except so far otherwise expressly stated herein, this Standby Letter of Credit is subject to the
"International Standby Practices" (ISP 98), International Chamber of Commerce (Publication No.
590).
Sincerely,
COMERICA BANK
By:
Rhestee Hills - First Level Officer
OSS23022C
26
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