HomeMy WebLinkAboutNEW BELGIUM BREWERY FOURTH LOT 1 AGREEMENT #1 - Filed DA-DEVELOPMENT AGREEMENT - 2009-01-22RECEPTION#: 200900011372, 01113/20o9 at
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Scott Doyle, Larimer County, CO
LOT 1 OF NEW BELGIUM BREWERY FOURTH FILING
AMENDMENT AGREEMENT NO. 1
THIS AMENDEMENT AGREEMENT, is made and entered into this , YrN day
of =X , - 2008, by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City"; and NEW BELGIUM
BREWING COMPANY INC., a Colorado Corporation, hereinafter referred to as the
"Developer", is an amendment to that certain Development Agreement dated June 16,
2006 by and between the City and the Developer, hereinafter referred to as the
"Development Agreement."
WHEREAS, the City and the Developer previously executed the Development
Agreement; and;
WHEREAS, the parties presently desire to modify the Development Agreement
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree to amend the terms and conditions of the
Development Agreement as follows:
A. Subheading II (Special Conditions) Paragraphs D.1-3 shall be replaced with the
following paragraphs to read as follows:
1. The Developer has previously provided to the City an escrow in the
form of a 3 year letter of credit in the amount of $1,058,892,00. Said letter of credit was
originally intended to cover the cost of improvements for Phase 2 of the Development
(`Phase 2 Improvements") as specified on the Final Development Plan Documents.
The cost of this improvement was originally intended to include all costs necessary to
relocate the Coy Ditch outside of Buckingham Street; and to design and construct the
Buckingham Street improvements, the First Street improvements and the utility and the
storm drainage facilities made necessary by the improvements to the Development; and
any outstanding design and permitting costs necessary to complete full City approval
needed in order to commence construction of the Phase 2 Improvements.
2. a. Since the time in which the City has received and accepted
said letter of credit, both parties agree that the design of the Phase 2 Improvements
shall be completed within 2 years of the date of this Amendment Agreement No. 1 and
the construction of the Phase 2 Improvements shall be completed within 3 years of the
date of this Amendment Agreement No. 1, provided that a new letter of credit is
received and approved by the City as further outlined below.
b. Since tl
$1,058,892.00 expires prior to the
new 3 year letter of credit shall be
ie aforesaid 3 year letter of credit in the amount of
specified 3 years from the date of this Agreement, a
provided by the Developer. Both parties, recognize
Irtt+ 010W S '10ffiCe. +'Or. "a;j ils. 'JOiOrc%C
and agree that the escalation of design and construction costs make it necessary to
revise the originally estimated cost from $1,058,892.00 to $1,195,330.00. This revised
cost of the Phase 2 Improvements is described on Exhibit "C" and includes all costs
necessary to relocate the Coy Ditch outside of Buckingham Street; and to design and
construct the Buckingham Street improvements, the First Street improvements and the
utility and the storm drainage facilities made necessary by the improvements to the
Development; and also any outstanding design and permitting costs necessary to
complete full City approval needed in order to commence construction of the Phase 2
Improvements.
C. Upon the City's receipt of this new 3 year letter of credit in
the amount of $1,195,330.00, the City shall release the previous letter of credit in the
amount of $1,058,892.00. Failure by the Developer to provide the new 3 year letter of
credit in the amount of $1,195,330.00 shall result in the Developer's forfeiture of the
right to the timeframe of the design and construction of the Phase 2 Improvements
being completed within 2 and 3 years, respectively, of the date of this Agreement (as
prescribed in II.D.2.b above) and shall instead default to the Developer completing
construction of the Phase 2 Improvements by June 16, 2009.
d. Should the Developer be unable to complete the Phase 2
Improvements within the 3 year timeframe (as prescribed in II.D.2.b) or June 16, 2009
(as prescribed in II.D.2.c), the City reserves the right to call on the letter of credit on file
with the City in order to have the improvements constructed (which may then be
constructed by the City from the proceeds of the letter of credit or a third party). If the
Phase 2 Improvements are constructed by the City or a third party, neither the City nor
the third party shall be bound to complete the Phase 2 Improvements within said 3 year
timeframe (or June 16, 2009 as applicable). The City shall be under no obligation to
construct said Phase 2 Improvements.
3. If the Developer is the party that constructs said Phase 2
Improvements (and upon the issuance of a Development Construction Permit for Phase
2, which requires the Developer to provide construction security as prescribed in
3.3.2(C)(1) of the Land Use Code) the City shall release the letter of credit to the
Developer. In addition, the Developer shall be eligible for reimbursement of the
oversizing of public street improvements for Buckingham Street as described below:
a. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street
improvements along Buckingham Street for those portions of
said street abutting the Property as shown on the Final
Development Plan Documents. Reimbursement for
Buckingham Street shall be for oversizing the street from local
(access) standards to collector standards. Sidewalk
reimbursement along Buckingham Street shall be for oversizing
the sidewalk from local standards (4.5' in width) to collector
standards (5' in width). The City shall make reimbursement to
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the Developer for the aforesaid oversized street improvements
in accordance with Section 24-112 of the Code of the City. The
Developer agrees and understands that the City shall have no
obligation to make reimbursement payments for street
oversizing unless funds for such payments shall first have been
budgeted and appropriated from the Street Oversizing Fund by
the City Council; and the Developer further understands that to
the extent that funds are not available for such reimbursement,
the City may not, in the absence of the Developer's agreement,
require the construction, at the Developer's expense, of any
oversized portion of streets not reasonably necessary to offset
the traffic impacts of the Development. The Developer does
hereby agree to construct the aforesaid oversized street
improvements with the understanding that the Developer may
not be fully reimbursed by the City for the cost of such
construction. The Developer further agrees to accept payment
in accordance with Section 24-112 (d) of the Code of the City as
full and final settlement and complete accord and satisfaction of
all obligations of the City to make reimbursements to the
Developer for street oversizing expenses. It is anticipated by
the City that the City's reimbursement, in accordance with
Section 24-112 (d), would not be less than fifty percent (50%) of
the Developer's actual expenses incurred and will be calculated
in accordance with the formula as set forth in Section 24-112
(d).
b. It is understood that the improvements that are to be
constructed in the public right-of-way as described in this
Section II(D) are "City improvements" (as defined below) and,
as such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds
the sum of Thirty Thousand Dollars ($30,000), the contract for
the construction of the same must be submitted to a competitive
bidding process resulting in an award to the lowest responsible
bidder; and evidence must be submitted to the City prior to the
commencement of the work showing that the award was given
to the lowest responsible bidder. If the cost of such
improvements exceeds Fifty Thousand Dollars ($50,000), the
contract for the construction of the improvements must be
insured by a performance bond or other equivalent security. For
purposes of this paragraph, the term "City improvements" shall
mean either (1) existing improvements owned by the City that
are to be modified or reconstructed, or (2) any improvements
funded in whole or in part by the City.
B. Exhibit "C" shall be replaced with the following attachment as follows:
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EXHIBIT C
The first Letter of Credit amount for this work was determined by taking 1.5 x $705,928
(the June 8, 2006 estimate by Swinerton Builders).
New Belgium spoke with Bill Pigg, the head of The Neenan Company's estimating
department in September of 2008. He stated that The Neenan Company's historical
costs of construction have escalated over the last few years as follows:
2007 Costs: 5.5% higher than 2006
2008 Costs: 7% higher than 2007
This Letter of Credit per Amendment Agreement No. 1 shall be determined by using the
escalation factors provided by The Neenan Company.
$705,928 x 1.055 x 1.07 x 1.5 = $1,195,330.
Therefore, the final amount of the Letter of Credit shall be: 1 195 330.
C. All other terms and conditions of the Development Agreement shall remain
unchanged and in full force and effect, except as expressly amended in this
Amendment Agreement No. 1.
In WITNESS WHEREOF, the parties hereto have set their hands the day and
year first above written.
TTEST:
City Clerk
APPROVED AS TO CONTENT:
f .City Engines
APPROVEQ-A�3 TO FORM:
Df3pfify City Attorney
THE CITY OF FORT COLL NS, COLORADO,
a Municipal Corpor ion
By: i
Ci 7vFdnager
DEVELOPER:
New Belgium Brewing Company, Inc.,
a Colorado
j Corpor ion
By:VadUUI�
Kimberly Jordan,(glhief Executive Officer
ATTEST:
BY:
Christine Perich, Chief Financial Officer