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HomeMy WebLinkAbout7 Brew - 5002 Kipling Street - PIA - January 20252025003176 1 /21 /202510:31 AM PGS 18 $98.00 DF $0.00 Electronically Recorded Jefferson County, CO Amanda M Gonzalez, Clerk and Recorder TD1000 N PUBLIC IMPROVEMENT AGREEMENT THIS AGREEMENT made this of : - , : (the "Effective Date"), by and between the CITY OF WHEAT RIDGE, COLORADO, a home rule municipal corporation (the "City"), and WBK KIPLING RE, LLC (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 5002 Kipling Street. B. On'don L,ar , � the City, after the required review process, approved a Site Plan for the Property, titled 7 Brew 5002 Kipling Street. C. 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 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 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 and are not intended to supersede any requirements contained therein. 2. Related City Agreements and Approvals. The Property will be subject to future review and the approval of site plan(s), civil construction documents, right-of-way permit application(s), site work permit application(s), and building permit application(s). Through such approvals, the City will review and approve the final design any development of the Property and the Public Improvements related thereto. This Agreement is based on information available at the time of approval of the subdivision plat and shall not constitute approval of the Public Improvement designs. 3. Fees. The Developer hereby agrees to pay 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. 4. Reserved. 5. Title Policy. Prior to recording of this Agreement, a title commitment for all those portions of the Property, as well as any other interests in real property (easements, etc.) to be reserved for public purposes or dedicated to the City shall be provided to the City. The title commitment shall show that all such property is or shall be, subsequent to the execution and recording of this Agreement, free and clear of all liens and encumbrances (other than real estate taxes which are not yet due and payable) which would make the dedication or reservation unacceptable as the City determines in its reasonable discretion. The City, in its sole discretion, may accept any dedication regardless of encumbrances. The title policy evidenced by the title commitment shall be provided within thirty (30) days after the recording of this Agreement, in an amount equal to the fair market value of the property so dedicated or 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 may 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; to protect lot buyers and builders; and to protect the citizens of the City from hardship and undue risk. These remedies include, but are not limited to: (a) The refusal to issue any building permit or certificate of occupancy; (b) 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; (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, 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 notice. 7. Installation of Public 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 as shown on the approved development plan and the associated construction documents (the "Public Improvements" or "Improvements") 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 the first Building Permit. RIA (b) The itemized costs of the Public Improvements required by this Agreement and shown on the construction documents approved by the Director are set forth on Exhibit C. All Public Improvements covered by this Agreement shall be made in accordance with the construction documents 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 may be general in nature, and that reasonable modifications of the scope, nature, costs, and similar aspects of the Public Improvements may be necessary 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. Additional Public Improvements may be required, and the Developer shall be responsible for submitting construction documents for review of all Public Improvements and/or revisions to the construction documents 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"). Specifically, but not by way of limitation, the Developer shall warrant the following: (a) That the title conveyed shall be marketable and its transfer rightful; (b) Any and all Public Improvements conveyed shall be free from any security interest or other lien or encumbrance; and (c) Any and 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 Developer and its successors and assigns, to maintain the required landscaping in perpetuity. 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 the first certificate of occupancy. 9. Reserved. 10. Observation, Inspection and Testin. (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 3 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. (d) The Director shall make all determinations of amounts and quantities of work performed hereunder. To assist them in this work Developer shall make available for inspection any records kept by Developer. (e) The Director and his or her 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 the Agreement. (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 plans and specifications. 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. (g) Inspectors may be appointed to inspect materials used and work done. 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 February 31 2027, and proper application for acceptance of the Public Improvements shall be made on or before such date. Upon completion of construction by the Developer of such Improvements, the Director, shall inspect the Improvements and certify with specificity its conformity or lack thereof to the City's specifications. The Developer shall make all corrections necessary 4 to bring the Improvements into conformity with the City's specifications. Once approved by the Director, the City shall accept said Improvements upon conveyance; 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. 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 an itemized cost estimate for required landscaping and irrigation. The itemized cost for required landscaping and irrigation shall be accepted at the discretion of the Community Development Director prior to acceptance of the escrow account. Should the required landscaping not be properly installed upon the expiration of the escrow account, 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 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 or employees of the City. The Developer shall adequately 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 site of Developer's 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 Improvements, 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. 5 (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 a period of twenty-four (24) months following acceptance by the City, as provided above. 16. Performance Guarantee for Public Im rovements. (a) In order to secure the construction and installation of the Public Improvements the 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. (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 1.0 of Exhibit C, if applicable to secure the performance and completion of the Public Improvements as required by Sections 26-110 (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 obtain the L KSRI or-ALM] I VAU mx�j 1#1 In] agirm fill orm K01 1114 (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 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 *f security required at all time shall relate to the cost of required Public Improvements not yet constructed. ............... ......... - "FT MOT cri Mer noia Mcn-T-Inas -as, Isec, I 7"_i r,3717or "7aQcJ-__o"_MS-AgreeMeM 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 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 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 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 Improvements. 17. Indemnification. 0 (a) 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, 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 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 portion of the Property dedicated 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 *bjections 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 itr resolutions adopting this Agreement. 19. Third Party Beneficiaries. There are and shall be no third party beneficiaries to this Agreement. 20. 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 communication representations, or agreements, either verbal or written, between the Parties. The shall be no modification of this Agreement except in writing, executed with the saml- 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 b legally bound by the representations of any of its agents or their designees except accordance with the City of Wheat Ridge Code of Laws and the laws of the State o Colorado. 22. Captions. The captions to this Agreement are inserted only for the ,vurpose of convenient reference and in no way define, limit, or prescribe the scope or mtent 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. LIOLZM . - 0 - IYANUEZ300111 I - Lei 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 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. 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 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 seventy-two (72) hours after deposit in the United States mail 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: WBK KIPLING RE, LLC 1130 Madison Street Denver, CO 80206 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. 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 9 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 and strikes. 30. Assignment or Assignments. 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. 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] 10 WHEREFORE, the Parties hereto have executed this Agreement on the day and year first above written. ATTEST: 4` to tEitfi, City Clerk APP OI,G -AS TO FORM: G CITY OF WHEAT RIDGE, COLORADO By: �(J YA Bud Starker, Mayor 11 DEVELOPER WBK KIPLING RE, LLC d f�l d Name: Fred C6uzens Title:�� STATE OF COLORADO ) SS. COUNTY OF 1 S'ej"D ) The foregoing instrument was acknowledged before me this `�day of Witness my hand and official seal. My commission expires: Aja LPUBLIC 401501 :,STATE OF DO ES P IL (SEAL) 12 Notary Public EXHIBIT A Legal Description of Developer Property LOT 1, KIPLING 5000 PLAZA SUBDIVISION, COUTY OF JEFFERSON, STATE OF COLORADO 13 EXHIBIT B Phasing Plan for Public Improvements The public and on -site improvements for the property shall be installed in one phase as outlined below: All improvements to the Kipling Street frontage and corner connecting to W. 50tn Avenue shall be completed prior to Certificate of Occupancy for this property, in accordance with the approved plan set for the right-of-way improvements. This includes the completion of the sidewalk, ramp modifications, street/pedestrian lighting, necessary relocation of existing improvements, and landscaping restoration and new plantings. Installation of landscaping, street trees, and irrigation is not required prior to Certificate of Occupancy of issuance if C.O. occurs outside of the planting season, generally October to June. Refer to Section 12 of this Agreement. 14 EXHIBIT C Cost Estimate for Public Improvements (see attached) 15 ENGINEERING DIVISION APPROVED FOR: 0 DRAINAGE ❑ SIDEWALK '.. 0 CURB d GUTTER ❑ STREET. Project Name Date ''. NMISCELLANEOUS CI PLAT 7 Brew - 5002 Kipling St 12/9/2024 COMMENT Demolition Iwona Dumin 12(10i24 Estimate Item Item Quantity Quantity Unit Unit Cos CIVIL ENGINEER DATE Sidewalk 60 SY $30 SUBJECT TO FIELD INSPECTIONS `. Curb and Gutter 65 LF $20 $1,300 Asphalt 15 ITONS $13 $195 Trucking and Dump Fees 2 LOADS $500 $1,000 TOTAL $4,295 Site Features Estimate Item Item Quantity Quantity Unit Unit Cost Total Cost Sidewalk 210 SY 87 $18,270 Curb and Gutter 94 LF 52 $4,888 Asphalt 15 TONS 400 $6,000 Pedestrian Lights 5 EA 4550 $22,750 Pull Boxes 5 EA 2500 $12,500 Electrical Conduit 300 LF 30 $9,000 Electric Meter 1 EA 8500 $8,500 ADA Ramps 2 EA 2500 $5,000 18" RCP 23 LF 282 $6,486 5tormceptor Device (Inlcudes concrete structure) 1 EA 12000 $12,000 4' Manhole 1 EA 17100 $17,100 Modify Manhole 1 EA 2000 $2,000 Traffic Control 3 DAYS 1000 $3,000 TOTAL $127,494 EXHIBIT D Letter of Credit Template (see attached) 16 LETTER OF CREDIT # (L.O.C. #) BENEFICIARY: The City of Wheat Ridge ADDRESS: 7500 West 29"' Avenue, Wheat Ridge, CO 80033 DATE: (Date of Issue) EXPIRY DATE: (Exp. Date) For: (Developer's Name) (Developer's Address) Gentlemen: Ma I I I . . . . . . . . . . by your drafts at sight accompanied by your signed statement that the above is: 1) drawn in payment 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 document for The (Project Name) (the "Project"), and/or 2) drawn in payment of storm drainage improvements including, but not limited to, detention pond grading, detention pond outlet structure(s), storm sewer the Project. Drafts must be accomy,�xX a sig , ht draft:_2�. a signed statement b1i an authorize r of the Beneficiary stating as follows: �'We hereby certify that the amount of our draft represents fundl owed to the City of Wheat Ridge for payment obligations pursuant to the conditions stated above, between (Developer's Name) and the City of Wheat Ridge." 3) This original Letter of C,,redit. iix,oh draft must bear uyon its face a clause "Drawn under Letter of Credit No. ',L.0 of Issue). Vkis IRREVOCABLE STANDBY 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 (Exp. Date). Except as otherwise expressly stated herein, this Letter of Credit and all negotiations hereunder are subject to all applicable provisions of Uniform Customs and Practices for Documentary Credits, 2007 Revision, International Chamber of Commerce Publication No. 600. Sincerely, (BANK NAME) By: (Name and Title of Bank Officer) DFN-132644-2