EXHIBIT 10.9
A DEVELOPMENT AGREEMENT
Between
The City of Westminster
and
Community Builders, Inc.
Related to the
73RD AVENUE/XXXXXX BOULEVARD AREA
REDEVELOPMENT PROJECT
This Agreement is made and entered into this 23rd day of December,
2002, by and between the CITY OF WESTMINSTER (City) and COMMUNUY BUILDERS, INC.
(Developer).
WHEREAS, the City has indicated its desire to improve and redevelop the
area in the immediate vicinity of Xxxxxx Boulevard and 73rd Avenue, including
the property known as the Aspen Care Nursing Home property, and whereby the
Westminster Economic Development Authority (WEDA) selected a developer to
prepare redevelopment plans for the area; and,
WHEREAS, the Developer has prepared and submitted redevelopment plans
in accordance with standard development review procedures established by the
Westminster Municipal Code, and,
WHEREAS, the Developer has fulfilled its obligations relative to the
pre-development agreement approved by WEDA and the City on December 18, 2001;
and,
WHEREAS, the Developer has all of the property, either in ownership or
under contract to purchase, that is necessary to proceed with the first phase of
development; and,
WHEREAS, the City and the Developer wish to set forth the terms upon
which the Developer shall proceed with development activity;
NOW, THEREFORE, in consideration of the above premises, covenants,
promises, and agreements set forth below, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
1. DEFINITIONS
REDEVELOPMENT PARCELS shall mean Site I, Site II, and Site III, as
legally described in Exhibit A attached hereto.
DEFAULT means those occurrences or events specified and defined in
section 9 of this Agreement.
FEES shall mean: the required development and building-related fees and
taxes applicable to the Project, including but not limited to:
a. Planning and Engineering Processing Fees, as applicable and
more specifically detailed in Exhibit B;
b. Building Permit Fees, as applicable and reflected in
Exhibit C;
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c. Construction-related Use Tax;
d. School Land Dedication Fee;
e. Park Improvement Fee; and,
f. Park Land Dedication Fee
FORCE MAJEURE means damages or destruction by fire or other casualty,
strike, shortage of material, unusually adverse weather condition such as, by
way of illustration and not limitation, snow storms which prevent outdoor work
from being accomplished, severe rain storms, severe hail storms, or below
freezing temperatures of abnormal degree or for an abnormal duration, or
tornadoes, earthquakes, floods, or other events or conditions beyond the
reasonable control of the party affected, which shall not include the party's
inability to pay its debts, which in fact prevents the party from discharging
its respective obligations hereunder.
PROJECT shall mean the development of the Redevelopment Parcels in
compliance with all requirements of:
a. Preliminary and Official Development Plan, 0000 Xxxxxx
Xxxxxxxxx -Site I
b. Preliminary and Official Development Plan, 0000-0000 Xxxxxx
Xxxxxxxxx -Site II
c. Preliminary and Official Development Plan, 0000-0000 Xxxxx
Xxxxxx -Site III
OFFICIAL DEVELOPMENT PLAN shall include the three Preliminary and
Official Development Plans listed under the definition of Project
SITES shall mean:
a. Site I - 7490 Xxxxxx Boulevard (the Aspen Care Site)
b. Site II - 7383-7395 Xxxxxx Boulevard (the Xxxx Xxxxxx Site)
c. Site III - 0000-0000 Xxxxx Xxxxxx (the Xxxxx Site)
2. LAND ACQUISITION AND FINANCIAL CONSIDERATIONS
2.1 The Developer shall be responsible for the purchase of all
the property required to complete the Project at a cost of $1,600,964, as
negotiated and agreed to between the Developer and the respective property
owners, inclusive of all costs associated with real estate commissions and
closing as applicable.
a. The Developer agrees to pay $700,000.00 towards
acquisition of the land required for development;
b. The City shall contribute no more than $900,964.00
towards the cost of land acquisition, which shall be made available on the date
of the Developer's closing on the Redevelopment Parcels.
2.2 The Developer further agrees to conduct the environmental
remediation and demolition of structures approved for demolition by the City,
and the City shall provide funding of not more than $184,549 for this work. This
contribution is in addition to the contribution to land acquisition costs stated
in 2.1.b above. The Developer shall document its costs to the City's
satisfaction prior to receipt of the City's reimbursement.
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2.3 The City shall assume the cost of relocating the single
family structure and accessory buildings as deemed by the City to be
appropriate, located at 0000 Xxxxxx Xxxxxxxxx, referred to as the Xxxxxx House.
2.4 The Developer shall pay all Fees and Taxes in lump-sum
payments for each Site as follows:
a. Site One - Fees and Taxes shall be paid prior to
issuance of the certificate of occupancy for the last building on the Site
b. Site Two - Fees and Taxes shall be paid prior to
issuance of certificate of occupancy for the last building on the Site
c. Site Three - Fees and Taxes shall be paid prior to
issuance of building permits
2.5 The City will assist the Developer to secure low-interest
loan funds from the Colorado Brownfields Revolving Loan Fund to assist in
environmental remediation efforts as applicable and deemed necessary by the
Developer and permissible pursuant to U.S. Environmental Protection Agency
regulations.
2.6 The Developer agrees to support WEDA and the City in
including all three Sites into the Westminster Urban Renewal Area following
acquisition by the Developer.
3. SUBDIVISION AND PROPERTY OWNERSHIP
3.1 Upon payment by the City, as provided for in Section 2.1.b
above, the Developer shall convey to the City that property described in Exhibit
D, and to be more specifically described on the required subdivision plat for
that portion of the project located on Xxxxx Street between 72nd Avenue and 73rd
Avenue ("the Waltmeyer Property").
3.2 The Developer shall retain a right of first refusal to
negotiate repurchase of the Waltmeyer Property for a period of three years from
the date of Official Development Plan (ODP) approval by City Council. If the
City receives and accepts an offer to purchase the Waltmeyer Property from a
prospective buyer other than the Developer, the Developer has 30 days from the
date of the City's written notification to exercise the right to purchase
property at a value of equal or better value. In the event the Developer chooses
not to exercise the right, the City may proceed to sell the Waltmeyer Property
at its discretion.
3.3 The City Council has passed or will consider passage of an
ordinance to vacate the westerly 10 feet of Xxxxx Street right-of-way
immediately contiguous to the east boundary of Site III, which will result in
title to the 10-foot strip vesting in the adjacent Redevelopment Parcel.
4. DEVELOPMENT ALLOWANCES AND AFFORDABLE HOUSING
4.1 The Developer agrees to sell no less than 20 percent of the
units (ten units) at a base price not to exceed $170,000.
4.2 The Developer shall partner with one or more qualified
non-profit organizations to identify prospective qualifying homebuyers for the
ten affordably priced units.
4.3 The City shall designate $50,000 in 2003 HUD HOME funds,
through the Xxxxx County Housing Authority, towards purchase of the townhouse
units by qualifying first-time homebuyers.
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The funds shall be made exclusively to homebuyer prospects for a period of 12
months from the date of issuance of the first building permit.
5. OFF-SITE PUBLIC IMPROVEMENTS
5.1 The Developer shall be responsible for the cost of making all
off -site improvements along Xxxxxx Boulevard as required per concept and
construction plans prepared in conjunction with the Xxxxxx Boulevard Enhancement
Project, with the exception of undergrounding of overhead utility lines along
the street frontages which shall be improved as provided for in Section 5.3
below.
5.2 The City shall reconstruct the length and both sides of Xxxxx
Street between 72nd Avenue and 73rd Avenue.
a. The City shall bid and contract for all improvements
in Xxxxx Street including water and sewer lines, curb, gutter and sidewalk, and
landscaping.
b. The Developer shall contribute a proportional share of
the cost related to the improvements, excluding water and sewer line
installation, not to exceed $50,000. Such payment shall be due upon completion
of the Xxxxx Street improvements and prior to issuance of building permits on
Site Three.
5.3 Off-site improvements pertaining to the undergrounding of
overhead utility lines along both Xxxxx Street and Xxxxxx Boulevard shall be
coordinated with and paid for by the City using the "1% underground set-aside"
account with Xcel Energy.
6. WATER AND SEWER SERVICE
6.1 The City agrees to provide the necessary "service
commitments" to serve the number of townhomes approved on the ODP.
6.2 The Developer shall pay the full cost of City water and sewer
taps for all 50 of the townhouse units based on the rate schedule effective at
such time building permits are issued.
7. REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES BY THE DEVELOPER.
The Developer represents and warrants to the City that:
a. The Developer is a corporation duly organized, validly
existing and in good standing and authorized to operate in the State of
Colorado; has the legal capacity to enter into and perform its obligations under
this Agreement and the documents to be executed and delivered pursuant hereto;
the execution and delivery of this Agreement and such documents and the
performance and observance of their terms, conditions and obligations have been
duly and validly authorized by all necessary action on its part to make this
Agreement and such documents and that such performance and observance are valid
and binding upon the Developer. The execution and delivery of this Agreement,
the documents required hereunder and the consummation of the transactions
contemplated by this Agreement will not (i) conflicts with or contravene any
law, order, rule or regulations applicable to the Developer or the Developer's
governing documents; (ii) result in the breach of any of the terms or provisions
of, or constitute a default under, any agreement or other instrument to which
the Developer is a party or by
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which it may be bound or affected; or (iii) permit any party to terminate any
such agreement or instrument or to accelerate the maturity of any indebtedness
or other obligation of the Developer.
b. The Developer knows of no action, suit, proceeding or
governmental investigation that is threatened or pending contesting the powers
of the City, WEDA, the Developer or any of its principals with respect to the
Project or this Agreement that has not been disclosed in this Agreement.
c. The Developer has the necessary financial and legal
ability to perform this Agreement and to construct the Improvements.
7.2 REPRESENTATIONS AND WARRANTIES OF THE CITY.
The City represents and warrants to Developer that:
a. The City is a home-rule governmental subdivision of
the State of Colorado and has the power to enter into and has taken all actions
required to date to authorize this Agreement and to carry out its obligations
hereunder.
b. The activities of the City in the Project area are
undertaken for the purpose of eliminating and preventing the development or
spread of blight and revitalizing the physical and economic structure of the
community.
c. The City knows of no litigation, threatened
litigation, proceeding, initiative, referendum or investigation or threat or any
of the same contesting the powers of the City or its officials with respect to
the Project or this Agreement that has not been disclosed in this Agreement.
d. The execution and delivery of this Agreement and the
documents required hereunder and the consummation of the transactions
contemplated by this Agreement will not (i) conflict with or contravene any law,
order, rule or regulation applicable to the City or to the City's governing
documents, (ii) result in the breach of any of the terms or provisions or
constitute a default under any agreement or other instrument to which the City
is a party or by which it may be bound or affected, or (iii) permit any party to
terminate any such agreement or instruments or to accelerate the maturity or any
indebtedness or other obligations of the City.
e. The City is a political subdivision of the State of
Colorado and is exempt from the payment of property taxes levied pursuant to
Section 3, Article X of the Colorado Constitution.
8. INSURANCE; INDEMNIFICATION
8.1 INSURANCE. At all times while the Developer is engaged in the
Project, the Developer will provide the City with proof of payment of premiums
and certificates of insurance showing that the Developer is carrying, or is
causing its prime contractor to carry, the builder's risk, comprehensive general
liability and worker's compensation insurance policies in amounts and coverages
reasonably satisfactory to the City. Such policies of insurance shall be placed
with financially sound and reputable insurers, require the insurer to give at
least 30 days advance written notice to the City in the event of cancellation or
change in coverage and shall name the City as an additional insured specifying
that the insurance shall be treated as primary insurance.
8.2 INDEMNIFICATION. The Developer shall defend, indemnify,
assume all responsibility for and hold the City and its elected officials,
consultants, officers and employees harmless
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(including, without limitation, attorneys' fees and costs) from all claims or
suits for and damages to property and injuries to persons, including accidental
death, that may be caused by any of the Developer's activities, and not caused
by the City's activities, under this Agreement or while making tests or surveys
on the Project area, whether such activities are undertaken by the Developer or
anyone directly or indirectly employed by or under contract to the Developer and
whether such damage shall accrue or be discovered before or after completion or
termination of this Agreement.
9. EVENTS OF DEFAULT AND REMEDIES
9.1 DEFAULT BY THE DEVELOPER. Default by the Developer shall mean
one or more of the following events:
a. The Developer abandons construction of the Project.
Abandonment of construction occurs if construction activities on a Site cease
for a period of thirty (30) consecutive days at any time after issuance of
building permits for that Site; provided however, that a temporary cessation of
construction activities resulting from Force Majeure shall not be deemed to be
abandonment for the duration of such Force Majeure.
b. The Developer fails to pay promptly any uncontested
cost or expense required to be paid by the Developer under the terms of this
Agreement. Developer may contest any cost or expense so long as adequate
security is provided to the City.
c. The Developer transfers or assigns its interest in
this Agreement or in any Site or the Improvements, or any interest in the
Developer is transferred or assigned, without the written consent of WEDA.
d. The Developer commences a voluntary bankruptcy case
under any applicable federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or is the subject of any involuntary case of
such nature not dismissed within ninety (90) days after such is filed, or
consents to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, or sequestrator (or other similar official) of the
Developer or of any substantial part of its property, or the Developer makes any
general assignment for the benefit of creditors or generally fails to pay its
debts as they become due or takes any action in furtherance of such action.
e. The Developer fails to substantially observe or
perform any covenant, obligation or agreement of the Developer as provided in
this Agreement.
9.2 DEFAULT BY THE CITY. Default by the City means the failure of
the City to substantially observe or perform any covenant, obligation or
agreement required under this Agreement.
9.3 NOTICE OF DEFAULT. No Default under paragraph 9.1 or
paragraph 9.2 shall constitute an event of Default until actual notice of such
Default shall be given by the non-defaulting party in accordance with paragraph
13.9 to the defaulting party and the defaulting party shall have had thirty (30)
days after the receipt of such notice to correct said Default or cause said
Default to be corrected, and shall not have corrected said Default or caused
said Default to be corrected within the applicable period. If said Default be
such that it cannot be corrected within the applicable period, it shall not
constitute an Event of Default if corrective action is instituted within the
applicable period and diligently pursued until the Default is corrected and is
completed no later than ninety (90) days after receipt of notice. No party, nor
any successor in interest or permitted assigns, shall be considered in breach
of, or in default of, its obligations under this Agreement in the event of any
delay caused by Force Majeure.
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9.4 REMEDIES IN THE EVENT OF DEFAULT
a. REMEDIES OF THE CITY. In the event of default by the
Developer, the City may do any or all of the following:
(1) Seek any available remedy at law, including
damages.
(2) Seek enforcement of any of the Developer's
obligations hereunder by any equitable remedy, including specific performance or
injunction.
(3) Suspend performance hereunder.
(4) Cure the Default, for which the Developer agrees
to indemnify the City.
(5) Elect to terminate this Agreement.
(6) Exercise the Option to Purchase provided for in
section 10.
b. REMEDIES OF DEVELOPER. In the event of default by the
City, the Developer may do any or all of the following:
(1) Seek any available remedy at law, but under no
circumstances shall City be liable for consequential or punitive damages.
(2) Seek enforcement of any of the City's obligations
hereunder by any equitable remedy, including specific performance or injunction.
(3) Under no circumstances may the Developer suspend
its own performance hereunder or seek or elect to terminate this Agreement in
the event of Default by the City.
9.5 COOPERATION BY DEVELOPER'S LENDER. Developer shall requires
its lender, if any, to execute a Lender Cooperation Agreement in substantially
the form attached hereto as Exhibit E.
10. THE CITY'S OPTION TO PURCHASE. In addition to any other remedies
provided in paragraph 9.4, upon Default by the Developer which is not cured
under paragraph 9.4, the City shall have an option to repurchase any Sites that
have not been completed and any improvements constructed or under construction
and to receive an assignment of any leases for any of the improvements or Sites,
subject to any encumbrances incurred by the Developer and approved by the City.
In the event the City exercises its option to purchase a Site and any
improvements or leases by written notice in accordance with paragraph 11,
Developer shall deliver to the City within fifteen days of receipt of the notice
a deed reconveying the Redevelopment Parcel(s) to the City and all necessary
documents assigning Developer's interest in any leases or contracts for the
Improvements.
11. RESALE OF REDEVELOPMENT PARCELS. After conveyance of the
Redevelopment Parcel(s) and assignment of any leases to the City pursuant to
paragraph 10, the City will use its best efforts to resell the Redevelopment
Parcel in accordance with applicable law to a qualified and responsible party or
parties who will assume the obligation of completing the Project in accordance
with the approved development plans. The proceeds of such resale shall be
applied first to repay any
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outstanding private-lending encumbrances secured by the Redevelopment Parcel,
then to repay the City for all amounts expended pursuant to this Agreement, and
then to pay costs of the City incurred by the Default, by the exercise of the
option to purchase pursuant to paragraph 10, and by the resale of the
Redevelopment Parcel. Any sums remaining following reimbursement as noted shall
then be paid to the Developer.
12. RESTRICTIONS ON ASSIGNMENT AND TRANSFER
12.1 NO SALE OR TRANSFER WITHOUT CONSENT. Prior to the issuance
of certificates of occupancy, the Developer shall not close on any total or
partial sale or transfer in any form of the Agreement, the Redevelopment
Parcels, or any part thereof or any interest therein, without the prior written
approval of the City, which approval shall not be reasonably withheld.
Notwithstanding any other provision of this Agreement, the City acknowledges
that the Developer may assign its interests in this Agreement to an affiliated
entity for the purpose of constructing and operating the Project. The City will
consent to such assignment upon submission by Developer of all documents related
to the assignment and approval by the City indicating that all conditions of
this Agreement have been satisfied.
12.2 CONDITIONS TO THE CITY'S CONSENT. The City may require as a
condition to its approval any or all of the following:
a. Any transferee shall have the qualifications and
financial responsibility, as reasonably determined by the City, necessary to
fulfill the obligations of the Developer under the Agreement.
b. Any transferee, by instrument satisfactory to the
City, shall assume all of the obligations of the Developer under this Agreement
and agree to be subject to the conditions and restrictions to which the
Developer is subject or such different obligations approved by the City. The
fact that any such transferee or successor has not assumed such obligations or
so agreed shall not relieve such transferee or successor from such obligations,
conditions or restrictions, or limit any rights or remedies of the City with
respect to the Redevelopment Parcels. No transfer of ownership of all or any
part of the Redevelopment Parcel or any interest therein, however occurring and
whether voluntary or involuntary, shall limit City's rights, remedies or
controls provided in this Agreement.
c. The Developer shall submit to the City for review all
instruments and other legal documents involved in effecting transfer, and, if
approved by the City, its approval shall be indicated to the Developer in
writing.
d. The Developer and its transferee shall comply with
such other reasonable conditions as the City may reasonably require to safeguard
the purposes of the revitalization efforts and the Westminster Urban Renewal
Plan.
12.3 NO TRANSFER WITHOUT CONSENT. In the absence of specific
written agreement by the City, no transfer of the Redevelopment Parcel prior to
the completion of the Project shall relieve the Developer or any party bound by
the Agreement or otherwise, from any of its obligations.
13. MISCELLANEOUS
13.1 CONTROLLING LAW AND VENUE. The laws of the State of Colorado
shall govern the interpretation and enforcement of this Agreement. Venue for any
action arising under this
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Agreement or any amendment or renewal thereof shall be in the District Court of
Xxxxx County, Colorado.
13.2 ATTORNEYS' FEES. In any proceeding brought to enforce the
provisions of this Agreement, the prevailing party therein shall be entitled to
an award of reasonable attorneys' fees, actual court costs and other expenses
incurred.
13.3 TITLES OF SECTIONS. Any titles of the several part sections
of this Agreement are inserted for convenience of reference only and shall be
disregarded in construing or interpreting any of its provisions.
13.4 CONFLICTS OF INTEREST. None of the following shall have any
interest, direct or indirect, in this Agreement: any member of the governing
body of the City; an employee of the City who exercises responsibility
concerning the project or any agreement implementing the Westminster Urban
Renewal Plan, or an individual or firm providing consulting or legal services in
connection with the project. None of the above persons or entities shall
participate in any decision relating to this Agreement that effects his or her
personal interest or the interest of any corporation, partnership or association
in which he or she is directly or indirectly interested.
13.5 TIME OF THE ESSENCE. Time is of the essence hereof, and
every term, covenant, and condition shall be deemed to be of the essence hereof.
13.6 SEVERABILITY. If any provision, covenant, agreement or
portion of this Agreement, or its application to any person, entity or property,
is held invalid, such invalidity shall not effect the application or validity or
any other provisions, covenants or portions of this Agreement and, to that end,
any provisions, covenants, agreements or portions of this Agreement are declared
to be severable, and there shall be substituted for each such provision,
covenant, agreement, or portion a valid, binding and enforceable provision that,
as nearly as possible reflects the intent of the parties.
13.7 GOOD FAITH OF THE PARTIES; CONSENT OR APPROVAL. In
performance of this Agreement or in considering requests for extension of time,
the parties agree that each will act in good faith and will not act
unreasonably, arbitrarily, capriciously or unreasonably withhold or delay any
approval required by this Agreement. Except as otherwise provided in this
Agreement, whenever consent or approval of either party is required, such
consent or approval shall not be unreasonably withheld, conditioned or delayed.
The Developer agrees and acknowledges that in each instance in this Agreement or
elsewhere where City is required or has the right to review or give its approval
or consent, no such review, approval or consent shall imply or be deemed to
constitute an opinion by the City, nor impose upon the City, any responsibility
for the design or construction of building elements, including but not limited
to the structural integrity or life/safety requirement or adequacy of budgets or
financing or compliance with any applicable federal or state law, or local
ordinance or regulation, including the environmental laws. All reviews,
approval, and consent by City under the terms of this Agreement are for the sole
and exclusive benefit of the Developer and no other person or party shall have
the right to rely thereon.
13.8 SURVIVAL. No representations or warranties whatever are made
by any party to this Agreement except as specifically set forth in this
Agreement. The representations, warranties and indemnities made by the parties
to this Agreement and the covenants and agreements to be performed or complied
with by the respective parties under this Agreement before Closing shall be
deemed to be continuing and shall survive the Closing. Nothing in this Section
shall affect the obligations and indemnities of the parties with respect to
covenants and agreements contained in this Agreement that are permitted or are
required to be performed in whole in part after the Closing.
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13.9 NOTICES. A notice, demand, or other communication under this
Agreement by any party to the other shall be in writing and shall be
sufficiently given, delivered in person, by prepaid overnight express mail or
express courier, or if it is dispatched in writing by registered or certified
mail, postage prepaid, return receipt requested:
City of Westminster and WEDA
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: J. Xxxxx XxXxxx, City Manager
Telephone: (000) 000-0000
Fax: (000) 000-0000
Community Builders
0000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
13.10 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one in the same instrument.
13.11 INCORPORATION OF EXHIBITS. All exhibits attached to this
Agreement are incorporated into and made a part of this Agreement.
13.12 NO THIRD PARTY BENEFICIARIES. No third party beneficiary
rights are intended or created in favor of any person not a party to this
Agreement.
13.13 ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof and replaces in their entirety any agreements, understandings,
warranties, or representations between the parties. This Agreement shall not be
amended except by written instrument. Each amendment, which is in writing and
signed and delivered by the parties, shall be effective to amend this Agreement.
13.14 FURTHER ASSURANCES. The parties agree to execute such
documents and take such action as shall be reasonably requested by the other
party to confirm or clarify the intent of the provisions of this Agreement and
to effectuate the provisions and intent of this Agreement.
13.15 ESTOPPEL CERTIFICATE. The parties agree to execute such
documents as the other party shall reasonably request to verify or confirm the
status of this Agreement and of the performance of the respective obligations of
the parties and such other matters as the requesting party shall reasonably
request.
13.16 WAIVER. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement, or
to exercise any right or remedy consequent upon a breach of this Agreement shall
constitute a waiver of such breach or of any other covenant, agreement, term or
condition. Any party by giving notice to the other parties may, but shall not be
required to, waive any of its rights or any conditions to any of its obligations
under this Agreement. No waiver shall effect or alter the remainder of this
Agreement, but each and every covenant, agreement,
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term and condition of this Agreement shall continue in full force and effect
with respect to any other then existing or subsequent breach.
13.17 THE CITY WEDA NOT A PARTNER; DEVELOPER NOT THE AGENT OF THE
CITY. Notwithstanding any language in this Agreement or any other agreement,
representation or warranty to the contrary, the City shall not be deemed or
constituted a partner or joint venturer of the Developer, the Developer shall
not be the agent of the City and the City shall not be responsible for any debt
or liability of the Developer.
13.18 NONLIABILITY OF CITY OFFICIALS AND EMPLOYEES. No councilor,
commissioner, Board member, official, employee, agent or consultant of the City
shall be personally liable to the Developer in the event of default, or breach
or event of a default by the City or for any amount that may become due to the
Developer under the terms of this Agreement.
13.19 CITY COOPERATION. The City will cooperate with Community
Builders to obtain the City's approval of the ODP, any amendment to the ODP, and
the City's issuance of any permits, licenses, or commitments necessary for the
Project; provided, however, that approval or issuance of such permits, licenses
or commitments lies in the sole and exclusive discretion of the City.
13.20 RECORDING. This Agreement shall be recorded in the public
records of the Clerk and Recorder of Xxxxx County, Colorado.
CITY OF WESTMINSTER COMMUNITY BUILDERS, INC.
--------------------------- ----------------------------
J. Xxxxx XxXxxx Xxxxx Xxxxx
City Manager President
ATTEST: APPROVED AS TO FORM:
--------------------------- ----------------------------
City Clerk
WESTMINSTER ECONOMIC
DEVELOPMENT AUTHORITY
---------------------------
J. Xxxxx XxXxxx
Executive Director
ATTEST: APPROVED AS TO FORM:
---------------------------- ----------------------------
Secretary City Attorney's Office
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EXHIBIT A
LEGAL DESCRIPTIONS OF THE REDEVELOPMENT PARCELS
EXHIBIT B
PLANNING AND ENGINEERING PROCESSING FEES
EXHIBIT C
BUILDING PERMIT FEES
EXHIBIT D
LEGAL DESCRIPTION OF THE WALTMEYER PROPERTY
EXHIBIT E
LENDER COOPERATION AGREEMENT
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Exhibit A
Legal Description of the Redevelopment Parcels
Site No. 1 - Aspen Care Nursing Home
Legal Description:
PART OF THE NW 1/4 SW 1/4 SECTION 32. T2S, R68W OF THE 6TH PM AKA 0000
XXXXXX XXXX; XXXXXXXXXXX, XX BEGINNING AT A POINT FROM WHICH THE SW
CORNER OF THE NW 1/4 SW 1/4 OF SAID SECTION BEARS S00808'09"E 360.49
FEET AND S89851'51"W 30.00 FEET, THENCE ALONG THE FOLLOWING SIX (6)
COURSES: 1) N00808'09"W 293.34 FEET ALONG THE EAST RIGHT-OF-WAY OF
XXXXXX BLVD.;
2) THENCE N89851'51"E 234.00 FEET; 3) THENCE S00808'09"E 118.00 FEET;
4) THENCE S89851'51"W 24.22 FEET; 5) THENCE S00808'09"E 175.34 FEET; 6)
THENCE S89851'51"W 209.78 FEET TO THE POINT OF BEGINNING. SAID PARCEL
CONTAINS APPROXIMATELY 64,395 SQUARE FEET, OR 1.48 ACRES. THE BEARINGS
ARE BASED UPON THE WEST LINE OF SAID SECTION BEING N00808'09"W.
Site Xx. 0 - Xxxx Xxxx xx Xxxxxx Xxxxxxxxx
Legal Description:
PARCEL 1:
XXX 0, XX. XXXXX SUBDIVISION FILING XX.0, XXXXXX XX XXXXX, XXXXX XX XXXXXXXX.
PARCEL 2:
XXXX 00 XX 00, XXXXXXXXX, XXXXX 1 XXXXXX'X SUBDIVISION, COUNTY OF XXXXX,
STATE OF COLORADO.
Site Xx. 0 - Xxxx Xxxx xx Xxxxx Xxxxxx
LOTS 7 TO 17. INCLUSIVE, XXXXX'X SUBDIVISION OF THE EAST HALF OF BLOCK 42,
XXXXXX PARK, COUNTY OF XXXXX, STATE OF COLORADO.
AND;
A ten foot wide strip of land adjacent to lots 7 through 17 inclusive,
Xxxxx'x Subdivision of the east half of Block 00, Xxxxxx Xxxx, Xxxx xx
Xxxxxxxxxxx, Xxxxxx of Xxxxx, State of Colorado, described as follows:
Beginning at the northeast xxxxx of said Lot 7: Thence east 10.00 feet along
the easterly prolongation od the north line of said Lot 7; thence south along
a line parallel with and 10.00 feet east, when measured at right angles, from
the east line of said lots 7 through 17; thence west 10.00 feet along said
prolongation to the southeast xxxxx of said lot 17; thence north along the
east line of said Lots 7 through 17 inclusive, to the point of beginning.
Containing approximately 2,750 square feet.
EXHIBIT B
NOTICE
Please note, effective September 1, 1998, City of Westminster Planning and
Engineering processing fees will increase to the rates specified below.
City of Westminster
Planning and Engineering Processing Fees
PLANNING PROCESSING FEES
===================================================================================================
Plan Review:
PDP or Amendment $350 (x) sq. rt. of acres ($350 min.)
ODP or Amendment $400 (x) sq. rt. of acres ($400 min.)
Combined PDP/ODP (Including Amendments) $550 (x) sq. rt. of acres ($550 min.)
Rezoning $500
Annexation $300
Comprehensive Land Use Plan Amendment $500
Minor Administrative Amendment $200
Public Hearing $350
ODP Waiver $250
Special Use Permit $450
Temporary Use Permit $100
Conditional Use $250
Zoning Verification Letter $25
Affidavit of Correction $100
Recording Fees $20/Page
Comprehensive Land Use Plan $25
Plan Submittal Document $10
Northeast Comprehensive Development Plan $5
ENGINEERING PROCESSING FEES
=================================================================================================
Construction Drawing Review * $750 + $75 (x) the sq. rt. of acres
($1,125 max.)
Minor Replat (Lot Line Adjustment) $300
Vacations (R.O.W. and Easements) $300
Land Disturbance Permit $250
R.O.W./Street Cut Permit $50
Flood Plain Information (Non-Residents Only) $20
Blueline Copies $5/Sheet
*Construction Drawing Review includes: Final Plat, Address Plat, Construction
Drawings and Public Improvements Agreements (PIA)
EXHIBIT C
WESTMINSTER
BUILDING PERMIT FEE SCHEDULE
(Effective September 1, 2002)
TOTAL VALUATION FEE
$1 to $500 $17.00
$501 to $2,000 $17.00 for the first $500 plus $2.30 for each additional $100, or fraction
thereof, to and including $2,000
$2,001 to $25,000 $51.50 for the first $2,000 plus $10.35 for each additional $1,000, or
fraction thereof, to and including $25,000
$25,001 to $50,000 $289.55 for the first $25,000 plus $7.45 for each additional $1,000, or
fraction thereof, to and including $50,000
$50,001 to $100,0000 $475.80 for the first $50,000 plus $5.15 for each additional $1,000, or
fraction thereof, to and including $100,000
$100,001 to $500,000 $733.30 for the first $100,000 plus $4.00 for each additional $1,000, or
fraction thereof, to and including $500,000
$500,001 to $1,000,000 $2,333.30 for the first $500,000 plus $3.45 for each additional $1,000, or
fraction thereof, to and including $1,000,000
$1,000,0001 and up $4,058.30 for the first $1,000,000 plus $2.30 for each additional $1,000 or
fraction thereof
OTHER PERMIT FEES
Miscellaneous Permit Fees: Miscellaneous RESIDENTIAL Permit Fees:
-------------------------- --------------------------------------
Mobile Home Set-up w/elec $125.00 Detached Storage Shed $17.00
Construction trailer w/elec $125.00 Re-Siding $17.00
Banners $25.00 Re-Roofing $17.00
Bus Bench $25.00 Water Heater Replacement $17.00
Election Sign $25.00 Air Conditioner* $17.00
Permanent Sign Per Fee Schedule Furnace Replacement* $17.00
Evaporative Cooler* $17.00
Lawn Irrigation Sprinkler $17.00
Aboveground Pool $37.00
Spas/Hot Tub* $17.00
Gas Log $17.00 **
Fence $17.00
FIRE DEPARTMENT FEES
1. Operational permits, per event 50.00
2. Construction permits Based on valuation and assessed in
accordance with the building permit fee schedule.
OTHER INSPECTIONS AND FEES:
1. Inspections outside of normal business hours $50.00 per hr.
(minimum charge of two hours)
2. Reinspection fees $50.00
3. Inspections for which no fee is specifically indicated $50.00 per hr.
4. Additional plan review required by changes, $50.00 per hr.
additions, or other revisions to plans.
5. For use of outside consultants for plan actual costs***
review and inspection, or both
6. Copies of previously issued Certificate of Occupancy $5.00 each
7. Letter of code compliance $25.00
8. Removal of stop work order $250.00
9. Temporary Certificate of Occupancy 5% of building permit fee but not less than $100.00
10. Plan Review Fee 65% of building permit fee
11. Estimated Use Tax 3-1/4% of 50% of total valuation
* May also require an electrical permit fee.
** See Section 11-9-3(E) 2 for exceptions.
*** Actual costs are those above and beyond the plan review fee as established
by Section 11-9-3(E) 4.
Exhibit D
Legal Description of the Waltmeyer Property
Legal Description:
The West 1/3 of Lot 18, also Lots 19 and 20, Xxxxx'x Re-Subdivision of Xxxxx 00,
Xxxxxx Xxxx, Xxxxxx xx Xxxxx, Xxxxx of Colorado
DRAFT
REDEVELOPMENT COOPERATION AGREEMENT
THIS AGREEMENT, entered into this ______ day of December, 2002, is made
between the City of Westminster (hereinafter "the City"), Community Builders,
Inc. (hereinafter "Developer"), and _________________________ hereinafter
"Bank")
WHEREAS, the City and Developer entered into a Disposition and
Development Agreement, dated December ___, 2002, (hereinafter "DDA"), and all
capitalized terms herein are defined in the DDA; and
WHEREAS, in the DDA, the City agreed to contribute $900,964.00 for
Developer's land acquisition costs and up to $184,549.00 for certain other costs
necessary to accomplish the Project; and
WHEREAS, Bank has agreed to loan to Developer $______________ in
connection with the development of the Project; and
WHEREAS, Developer has given Bank a note and deed of trust secured by
the Redevelopment Parcels as security for the Bank's loan; and
WHEREAS, the deed of trust defines a Default by Developer under the DDA
as an event of default on the deed of trust; and
WHEREAS, the DDA allows the City to exercise an option to purchase
pursuant to paragraph 9 of the DDA in the event of a Default by Developer, which
option to purchase allows, but does not require, the City to acquire the
Redevelopment Parcel subject to any encumbrances incurred by the Developer and
approved by the City; and
WHEREAS, in the event of an exercise of the option to purchase, the
City will need an adequate period in which to find a new developer to complete
the Project as approved in the Official Development Plan.
NOW THEREFORE, in consideration of the premises recited herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. In the event of a Default by Developer pursuant to the DDA, the City
shall give notice of the Default to Bank within forty-eight (48) hours of
knowledge of the Default. In the event of a default by Developer pursuant to the
note and deed of trust, Bank shall give notice of the default to the City within
forty-eight (48) hours of knowledge of the default.
2. The City shall provide Bank with a copy of any notice of default
sent to Developer pursuant to paragraph 8.3 of the DDA, and the City shall
consider any cure of a default pursuant to paragraph 8.3 of the DDA by the Bank
as a cure of the default by the Developer.
EXHIBIT E
3. The City shall give notice to Developer and Bank of its intent to
exercise its option to purchase pursuant to paragraph 9 of the DDA not later
than thirty (30) days following an event of default as defined in paragraph 8.3
of the DDA.
4. In the event of an issuance of a notice of intent to exercise the
option to purchase, Developer shall convey to the City and the City shall accept
a conveyance of the Redevelopment Parcels that are the subject of the
Developer's default, subject to the Bank's note and deed of trust. The City
shall give notice to Bank of receipt of the deed for the Redevelopment Parcels
from Developer within forty-eight hours of receipt of the deed for the
Redevelopment Parcel.
5. Upon receipt of notice of receipt of the deed for the Redevelopment
Parcel, Bank shall notify the City within five (5) business days of the amounts
drawn from the loan proceeds through and including the date of the conveyance
from Developer to the City, including accrued interest and any other charges or
expenses due to Bank under the loan documents, and shall notify the City of the
amount of monthly interest to be paid on the outstanding amounts on the loan.
6. The City agrees to pay the outstanding amounts due under the loan
documents and the monthly interest on the outstanding amounts monthly on the
first of each month for a period of six (6) months following receipt of the
deed.
7. So long as the City pays the amounts due pursuant to paragraph 6
above, Bank agrees not to exercise its rights to foreclose pursuant to the deed
of trust. In the event the City discontinues monthly interest payments at any
time prior to the end of the six-month period, Bank may exercise its rights to
foreclose and the City agrees not to oppose such foreclosure.
8. Bank may agree at its sole discretion to not exercise its rights to
foreclose beyond the six-month period in order to allow the City to extend the
six-month period in paragraph 6 by continuing to make monthly interest payments
to the Bank.
9. In the event that the City, or any entity acting pursuant to a
contract with the City, tenders to Bank full payment of any and all outstanding
amounts, including principal, accrued interest and any other charges under the
loan documents, Bank shall transfer its note from Developer to the City and
shall release the deed of trust. Any charges related to the transfer shall be
borne by the City or its assigns.
10. During such period that the City holds title to the Redevelopment
Parcels, the City shall maintain insurance on any improvements existing or under
construction and shall take such reasonable measures to insure that any
improvements under construction are not damaged or do not deteriorate and will
maintain the Redevelopment Parcel and improvements in good condition. The City
shall pay all ad valorem property taxes, if any, due and owing on the
Redevelopment Parcel as a result of the City's ownership of the Redevelopment
Parcel.
11. All notices, demands, requests and other communications required or
permitted hereunder shall be in writing and shall be deemed to be delivered when
actually received or, regardless of whether actually received, two (2) business
days after deposit in a regularly maintained receptacle for the United States
Mail, registered or certified mail, return receipt requested, postage fully
prepaid, or on (1) business day after deposited with a nationally recognized
overnight courier, addressed to the addressee at its address set forth below or
at such
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other address as such party may have specified theretofore by notice delivered
in accordance with this paragraph and actually received by the other party:
If to Developer:
Community Builders, Inc.
0000 X. Xxxxxx Xxxxxxx
Xxxxxxxxx XX 00000
Attention: Xxxxx Xxxxx, President
Facsimile: (000) 000-0000
If to [BANK]:
With a copy to:
If to the City:
City of Westminster
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: J. Xxxxx XxXxxx, City Manager
Facsimile: 000-000-0000
With a copy to:
Xxxxxx X. XxXxxxxxxx
City Attorney
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Facsimile: 000 000 0000
SIGNATURE BLOCKS
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