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TC Res. No. 2003-03!4 Ito - TOWN OF AVON RESOLUTION NO: 03=0.3 Series of 2003 A RESOLUTION APPROVING AMENDMENT70 SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE VILLAGE (AT AVON) FILING 2, TOWN OF AVON, EAGLE COUNTY, COLORADO WHEREAS, Buffalo Ridge Affordable Housing Corporation, a Colorado nonprofit corporation and Buffalo Ridge II LLLP the owner of the applicable portion of The Village (at Avon) has submitted a request to amend paragraph 4. (b). of the Subdivision Improvements Agreement for The Village (at,Avon) Filing 2, Town of Avon, Eagle County, Colorado, as approved April 23, 2002, to, reduce retainage for construction progress payments to ten percent (10%) of fifty percent (50%) of the total value of the public improvements if in the town's opinion the progress and quality of the work is satisfactory; and WHEREAS, the requested amendment is consistent with typical construction contract provisions; and WHEREAS, the requested amendment provides sufficient security to assure completion of public improvements in conformance with the Avon Municipal Code. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, that the Town hereby finds and determines that the attached (Exhibit A) amendment to paragraph 4. (b). of the Subdivision Improvements Agreement for The Village (at Avon) Filing 2 is in conformance,with the applicable development laws, regulations and policies of the Town of Avon and is hereby approved. ADOPTED THIS I~(~h DAY OF January 2003. TOWN COUNCIL t~ GF q TOWN OF AVON, COLORADO i f~ I,-, A L ~ Albert D. Reynolds, Mayo ATTEST: P ty *Kenhy,U 8228521 TO Jerk Page: 1 of 3 Teak J Simonton Eagle, co 370 R 16.00 2/06/20@00 4:46P~ I:\Town Clerk\Council\Resolutions\2003\Resolution No. 03-03 SIA Amend.Doc 1 EXHIBIT A 4. Subdivider Improvements. (b) Progress Payments on Subdivider's Improvements. Subdivider agrees that a separate schedule of values for the Improvements shall be included in the construction contracts for the Buffalo Ridge Apartments. The Subdivider may make progress payments to its contractors on a monthly basis upon (i) the partial completion of itemized improvements for which cost estimates have been set forth in Exhibit B and upon written request to the Town including an itemized statement and certification of the Subdivider of completion and acceptance of itemized improvements by Subdivider's engineer, and (ii) the written approval of the Town or its designee; provided, however, if the Town fails to respond to a disbursement request within seven (7) days such request will be deemed approved.. The itemized statement and certification by the Subdivider shall certify that all work for which progress payments have been requested has been completed in accordance with the the approved plans and specifications. Upon the approval of such progress payments, the amount of collateral shall be reduced by the amount of such payment; provided, however, that in no event will any such reduction cause the amount of remaining collateral to be less than an amount equal to one hundred percent (100%) of the estimated costs of completion of all remaining Subdivider's Improvements. Such progress payments shall be disbursed to the contractor in accordance with the construction contract executed for the construction of the Improvements and approved in-connection with the HUD Financing; provided, however, retainage of ten percent (10%) shall be withheld with respect to all disbursements until 50% of the dollar value of the Improvements listed in Exhibit B have been completed. Provided that the Town is reasonably satisfied with the progress and quality 'of the work, no further retainage shall be, withheld. The 10% retainage may be reinstated if, in the Towns opinion, there is a problem with the progress or quality of the work. Upon completion of all work related to Subdivider's improvements and the Town's acceptance of the completion of Subdivider's Improvements, the entire amount of remaining collateral, less the amounts or other security described in paragraph 5, shall be released. 22852 8 Page: 2 of 3 02/06/2003 04:46P iMkI IISiXNYUNI 16.00 D 0. 00 The parties hereto have executed this Amendment to the Subdivision Improvements Agreement for the Village (at Avon) Filing 2, this I'4* day of ~dadt , 2003. TOWN OF AVON, a Colorado municipal corpo n AT ST: for o Clerk APPROVED AS TO FORM: *ToAttorney ATTEST: aOFic v? ~ J J E AI ~OL05 ® BUFFALO RIDGE AFFORDABLE HOUSING RPORAPON, A Colora d Ge osid By: President H:Wintergreen\Buffalo Ridge\Norm Wood Memo 1-3-02 BUFFALO RIDGE II LLLP, a Colorado. limited liability limited partnership BY: CORUM BUFFALO RIDGE LLC, a Colorado limited liability limited partnership By: J G. F` atnc II, M aging ember BY: WINTERGREEN HOMES- BUFFALO RIDGE LLC, a Colorado limited liability company, General Partner M. 822852 Page: 3 of 3 02/06/2003 04:46P Teak J Simonton Eagle, CO 370 R 16.00 D 0.00 r~ Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Norman Wood, Town Engineer Date: January 6, 2003 Re: Resolution No. 03-03, Series of 2003 - A Resolution Approving Amendment to Subdivision Improvements Agreement for The Village (at Avon) Filing 2, Town of Avon, Eagle County, Colorado Summary: Buffalo Ridge Affordable Housing Corporation and Buffalo Ridge H LLLP, developers of the Buffalo Ridge, The Village (at Avon) Filing 2 Subdivision have submitted the attached request for modification of the Subdivision Improvements Agreement (SIA) for The Village (at Avon) Filing 2. The requested modification would limit the requirement for retainage held on progress payments for the public improvements to 10% of the first 50% of construction costs. No further retainage would be withheld so long as the Town is reasonably satisfied with the progress and quality of the work. This revision is consistent with typical construction contract documents and is also consistent with provisions in The Village (at Avon) Filing 1 SIA. The proposed modification conforms to minimum requirements of the subdivision security provisions in the Avon Municipal Code and with the HUD funding requirements for this project we believe sufficient security for completion of the public improvements will be retained with approval of the requested modification. The attached black lined Exhibit A shows the proposed modifications to the current SIA. Approval of Resolution No. 03-03, Series of 2003, A Resolution Approving Amendment to Subdivision Improvements Agreement for The Village (at Avon) Filing 2, Town of Avon, Eagle County, Colorado is recommended. Recommendation: Approve Resolution No. 03-03, Series of 2003, A Resolution Approving Amendment to Subdivision Improvements Agreement for The Village (at Avon) Filing 2, Town of Avon, Eagle County, Colorado. 1:766 CkrMCmmcill =Iuhom\2003\914 Ammd Memo No M-031)oc ,J Proposed Motions I move to approve Resolution No. 03-03, Series of 2003, A Resolution Approving Amendment to Subdivision Improvements Agreement for The Village (at Avon) Filing 2, Town of Avon, Eagle County, Colorado. Town Manager Comments: Mown aerMCmmM;UsoWdcrj9Q003WA Amend Meow No.03-03.Docs Page 2 O r TOWN OF AVON RESOLUTION NO. 03-03 Series of 2003 A RESOLUTION APPROVING AMENDMENT TO SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE VILLAGE (AT AVON) FILING 2, TOWN OF AVON, EAGLE COUNTY, COLORADO WHEREAS, Buffalo Ridge Affordable Housing Corporation, a Colorado nonprofit corporation and Buffalo Ridge II LLLP the owner of the applicable portion of The Village (at Avon) has submitted a request to amend paragraph 4. (b). of the Subdivision Improvements Agreement for The Village (at Avon) Filing 2, Town of Avon, Eagle County, Colorado, as approved April 23, 2002, to reduce retainage for construction progress payments to ten percent (10%) of fifty percent (50%) of the total value of the public improvements if in the town's opinion the progress and quality of the work is satisfactory; and WHEREAS, the requested amendment is consistent with typical construction contract provisions; and WHEREAS, the requested amendment provides sufficient security to assure completion of public improvements in conformance with the Avon Municipal Code. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, that the Town hereby finds and determines that the attached (Exhibit A) amendment to paragraph 4. (b). of the Subdivision Improvements Agreement for The Village (at Avon) Filing 2 is in conformance with the applicable development laws, regulations and policies of the Town of Avon and is hereby approved. ADOPTED THIS DAY OF January 2003. TOWN COUNCIL TOWN OF AVON; COLORADO Albert D. Reynolds, Mayor ATTEST: Patty McKenny, Town Clerk IATown Clerk\CounciNtesolutions\2003\Resolution No. 03-03 SIA AmendDoc 3 Y EXHIBIT A 4. Subdivider Improvements. (b) Progress Payments on Subdivider's Improvements. Subdivider agrees that a separate schedule of values for the Improvements shall be included in the construction contracts for the Buffalo Ridge Apartments. The Subdivider may make progress payments to its contractors on a monthly basis upon (i).the partial completion of itemized improvements for which cost estimates have been set forth in Exhibit B and upon written request to the Town including an itemized statement and certification of the Subdivider of completion and acceptance of itemized improvements by Subdivider's engineer, and (ii) the written approval of the Town or its designee; provided, however, if the Town fails to respond to a disbursement request within seven (7) days such request will be deemed approved. The itemized statement and certification by the Subdivider shall certify that all work for which progress payments have been requested has been completed in accordance with the the approved plans and specifications. Upon the approval of such progress payments, the amount of collateral shall be reduced by the amount of such payment; provided, however, that in no event will any such reduction cause the amount of remaining collateral to be less than an amount equal to one hundred percent (100%) of the estimated costs of completion of all remaining Subdivider's Improvements. Such progress payments shall be disbursed to the contractor in accordance with the construction contract executed for the construction of the Improvements and approved in connection with the HUD Financing; provided, however, retainage of ten percent (10%) shall be withheld with respect to all disbursements until 50% of the dollar value of the Improvements listed in Exhibit B have been completed. Provided that the Town is reasonably satisfied with the progress and quality of the work, no further retainage shall be withheld. The 10% retainage may be reinstated if, in the Towns opinion, there is a problem with the progress or quality of the work. Upon completion of all work related to Subdivider's improvements and the Town's acceptance of the completion of Subdivider's Improvements, the entire amount of remaining collateral, less the amounts or other security described in paragraph 5, shall be released. The parties hereto have executed this Amendment to the Subdivision Improvements Agreement for the Village (at Avon) Filing 2, this day of , 2003. TOWN OF AVON, a Colorado municipal corporation ATTEST: Town Clerk APPROVED AS TO FORM: Town Attorney By: Mayor ATTEST: BUFFALO RIDGE AFFORDABLE HOUSING CORPORATION, A Colorado nonprofit corporation By: By: Jeffery M. Spanel, Gerald E. Flynn, Vice President President H:Wintergreen\Buffalo RidgeWorm Wood Memo 1-3-02 BUFFALO RIDGE II LLLP, a Colorado limited liability limited partnership BY: CORUM BUFFALO RIDGE LLC, a Colorado limited liability limited partnership By: James G. Fitzpatrick, III, Managing member BY: Vv9=RGREEN HOMES- BUFFALO RIDGE LLC, a Colorado limited liability company, General Partner By: Jeffery M. Spanel, Manager 6 A A.A. o*A& Winter -green {{any' memorandum To: Norman Wood Wintergreen Homes, LLc 77 Metcalf Road, Box 1530 From: Jeff Spanel Avon, Colorado 81620 CC: Art Kleinstein, Gerry Flynn, Jamie Fitzpatrick, 970/949-4120 Katie Payne, Brad Perry & Gregg Davis Fax: 970/949-9940 Date: January 2, 2003 Re: Buffalo Ridge Village (at Avon) Filing 2 Subdivision improvements Agreement - reduction of retainage File: 12.5 Via: Fax I am writing to request a modification to the Subdivision Improvements Agreement (SIA) for the Village (at Avon) Filing 2. Paragraph 4(b) of the Agreement stipulates that retainage in the amount of 10% be withheld from all disbursements until the improvements are 100% complete. We would request that this language be modified to require the 10% retainage until construction is 50% complete, and provided that the Town is reasonably satisfied with the progress and quality of the work, that no further. retainage be withheld. All retainage is to be released upon substantial completion of the required improvements. This change will make the SIA for the Village (at Avon) Filing 2 consistent with other improvements agreements within the Town of Avon. The SIA for the Village (at Avon) Filing 1(paragraph 4 (c)) contains release provisions similar to what is being requested. The reduction of collateral language was not included in the Filing 2 SIA as it was anticipated that all of the public improvements would be completed in 2002, which would have released all of the collateral. The Town requested, and we agreed that there was a benefit in delaying certain of the SIA improvements until spring. The major work delayed was the final lift of asphalt paving. The delay will allow road construction to sit through a freeze - thaw cycle this year, and allow a major portion of building construction to occur prior to placing the final layer of asphalt. By postponing this work any required repairs can be done prior to placing the final layer of asphalt, resulting the best possible appearance of the roadway. In addition, this delay effectively extends the warranty period'for an additional year as one-additional freeze - thaw cycle will occur during the one-year warranty period. Should the Town choose to allow this modification, there will still be adequate.security to guarantee the completion of the public improvements. You will recall that the Buffalo Ridge SIA improvements are effectively "double secured". Buffalo Ridge was financed through HUD guaranteed bond financing. The bond proceeds are sufficient to pay' for all of the improvements (including those required by the SIA), and the bond proceeds are being held in trust with funds released as improvements are completed. HUD requirements would not allow these funds to be pledged as security for the SIA, and a separate source of funds had to be set aside to guarantee the SIA obligation to the Town of Avon. A separate cash deposit was made with Stewart Title to secure the SIA ~9 Norman Wood January 2, 2003 Page 2 of 2 obligations to the Town - hence the "double security". The cash used for this deposit was not excess cash or developer profits, but rather represents a set aside of monies designated for the payment project costs which will occur later in the project. However with this delay, some of these costs will now be incurred before the SIA improvements are completed, and funds released. As additional assurance that the improvements will be satisfactorily completed, I would point out that Colorado First Construction is under contract with Buffalo Ridge to complete the SIA improvements and that obligation is secured with performance and payment bonds. I provided the Town with copies of the Contract Documents, including the bonds, and the Town has determined that they meet the warranty requirements of the SIA (paragraph 5). While this deferral provides benefits to both the Town and the developer, the terms of the SIA requires a corresponding delay in the release of the SIA collateral which will cause a serious cash flow problem for the project, and I would ask that the Town approve the change in progress payments as requested. Please let me know if you require anything further - thank you for your consideration. I EXHIBIT A 4. Subdivider Improvements. (b) Progress Payments on Subdivider's Improvements. Subdivider agrees that a separate schedule of values for the Improvements shall be included in the construction contracts for the Buffalo Ridge Apartments. The Subdivider may make progress payments to its contractors on a monthly basis upon (i) the partial completion of itemized improvements for which cost estimates have been set forth in Exhibit B and upon written request to the Town including an itemized statement and certification of the Subdivider of completion and acceptance of itemized improvements by Subdivider's engineer, and (ii) the written approval of the Town or its designee; provided, however, if the Town fails to respond to a disbursement request within seven (7) days such request will be deemed approved. The itemized statement and certification by the Subdivider shall certify that all work for which progress payments have been requested has been completed in accordance with the the approved plans and specifications. Upon the approval of such progress payments, the amount of collateral shall be reduced by the amount of such payment; provided, however, that in no event will any such reduction cause the amount of remaining collateral to be less than an amount equal to one hundred percent (100%) of the estimated costs of completion of all remaining Subdivider's Improvements. Such progress payments shall be disbursed to the contractor in accordance with the construction contract executed for the construction of the Improvements and approved in connection with the HUD Financing; provided, however, retainage of ten percent (10%) shall be withheld with respect to all disbursements until 50% of the dollar value of the Improvements listed in Exhibit B have been completed. Provided that the Town is reasonably satisfied with the progress and quality of the work, no further retainage shall be withheld. The 10% retainage may be reinstated if, in the Towns opinion there is a problem with the progress or quality of the work. Upon completion of all work related to Subdivider's improvements and the Town's acceptance of the completion of Subdivider's Improvements, the entire amount of remaining collateral, less the amounts or other security described in paragraph 5, shall be released. The parties hereto have executed this Amendment to the Subdivision Improvements Agreement for the Village (at Avon) Filing 2, this day of , 2003.,Ageemenas-a€ ATTEST: Town Clerk APPROVED AS TO FORM: Town Attorney TOWN OF AVON, a Colorado municipal corporation By: Mayor ATTEST: BUFFALO RIDGE AFFORDABLE HOUSING CORPORATION, A Colorado nonprofit corporation By: Jeffery M. Spanel, Vice President Bv: Gerald E. Flynn, President BUFFALO RIDGE II LLLP, a Colorado limited liability limited partnership BY: CORUM BUFFALO RIDGE LLC, a Colorado limited liability limited partnership By: James G. Fitzpatrick, III, Managing member BY: WINTERGREEN HOMES- BUFFALO RIDGE LLC, a Colorado limited liability company, General Partner By: Jeffery M. Spanel, Manager KWintergreen\Buffalo RidgelNorm Wood Memo 1-3-02 l