CITY COUNCIL AGENDA MEMORANDUM

Transcription

1 City and County of Broomfield, Colorado CITY COUNCIL AGENDA MEMORANDUM To: Mayor and City Council From: Charles Ozaki, City and County Manager Prepared by: Kevin Standbridge, Deputy City and County Manager Tami Yellico, Deputy City and County Attorney Meeting Date Agenda Category Agenda Item # June 12, 2012 Consent Agenda 5 ( d ) Proposed Resolution No , Acknowledging and Approving Three Agenda Title: Statements of Rights and Obligations, all Pertaining to the Anthem West Development Summary On December 29, 2011, the PulteGroup, Inc. ("Pulte") completed the sale of land in the Anthem West subdivision to Wheelock Street Capital LLC ("Wheelock"), conveying the remaining developed and undeveloped land in the 1,700 acre master planned community that includes Anthem Highlands and Anthem Ranch. Wheelock is a private real estate investment firm founded in 2008 by Merrick R. Keeman and Jonathan H. Paul and headquartered in Greenwich, Connecticut, and Boston, Massachusetts, which focuses on real estate investments and has acquired more than 10,000 residential lots within masterplanned communities in the past two years. City Council approved three statements of rights and obligations to transfer Pulte's rights and obligations under the Anthem West Managed Growth and Development Agreement, the Anthem West PUD Plan and Preliminary Plat, and the Anthem West Subdivision and Improvement Agreements to Wheelock. Wheelock has requested the approval of three Statements of Rights and Obligations that provide that Wheelock will remain solely responsible for all duties and obligations under the applicable subdivision improvement agreements for Filings 6, 13, and 21, if platted subdivision lots are sold to third party purchasers to construct homes for resale, unless the City approves a statement of rights and obligations that transfers any of Wheelock's obligations to such purchaser of lots. Wheelock represents that such agreements are necessary to market lots within the subdivision to various developers with the assurance that such developers will not be taking on any of the Subdivision Improvement Agreement obligations to the City. There are 5 lots remaining in Filing 6, 2 lots remaining in Filing 13, and approximately 220 lots remaining in Filing 21 (some of which are finished lots and some of which are partially developed). The proposed Filing 21 Statement of Rights and Obligations does require another Statement of Rights and Obligations approved by the City in the event of a bulk sale of the remaining lots to a new developer. Prior Council Action May 24, 2005 Resolution Approving Subdivision Improvement Agreement- Anthem Filing 6 May 23, 2006 Resolution Approving Subdivision Improvement Agreement- Anthem Filing 13 Sep 2, 2008 Resolution Approving Subdivision Improvement Agreement- Anthem Filing 21 Oct 27, 2009 Resolution Approving First Amendment to Subdivision Improvement Agreement- Anthem Filing 21 Feb 28, 2012-Resolution Acknowledging and Consenting in Part to Two Statements of Rights and Obligations and in Part to One Amended and Restated Statement of Rights and Obligations, All Pertaining to the Anthem West Development Financial Considerations N/A Alternatives Council could choose to not adopt the resolution. Proposed Actions/Recommendations Based on the above, it is recommended THAT Resolution No be adopted. 5 (d) - Page 1

2 RESOLUTION NO A RESOLUTION ACKNOWLEDGING AND APPROVING THREE STATEMENTS OF RIGHTS AND OBLIGATIONS, ALL PERTAINING TO THE ANTHEM WEST DEVELOPMENT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY AND COUNTY OF BROOMFIELD, COLORADO: Section 1. The Statement of Rights and Obligations, City and County of Broomfield Subdivision Improvement Agreements, by WS-ACB Development, LLC regarding Anthem Filing No. 6, attached hereto, is hereby acknowledged and approved. Section 2. The Statement of Rights and Obligations, City and County of Broomfield Subdivision Improvement Agreements, by WS-ACB Development, LLC regarding Anthem Filing No. 13, attached hereto, is hereby acknowledged and approved. Section 3. The Statement of Rights and Obligations, City and County of Broomfield Subdivision Improvement Agreements, by WS-ACB Development, LLC regarding Anthem Filing No. 21, attached hereto, is hereby acknowledged and approved. Section 4. The mayor or mayor pro tem is authorized to sign and the city and county clerk is authorized to attest the Statements of Rights and Obligations, in forms approved by the city and county attorney. Section 5. This resolution is effective upon its approval by the City Council. APPROVED on June 12, THE CITY AND COUNTY OF BROOMFIELD, COLORADO ATTEST: Mayor City and County Clerk APPROVED AS TO FORM: City and County Attorney ) 5 (d) - Page 2

3 STATEMENT OF RIGHTS AND OBLIGATIONS CITY AND COUNTY OF BROOMFIELD SUBDIVISION IMPROVEMENT AGREEMENTS THIS STATEMENT OF RIGHTS AND OBLIGATIONS ("Statement") is made effective as of June, 2012 ("Effective Date"), by WS-ACB DEVELOPMENT, LLC, a Delaware limited liability company ("WS-ACB"). RECITALS A. WS-ACB is the Owner is the of that real property which is described on Exhibit A attached hereto and incorporated herein by this reference ("Property"). The Property is a part of the Anthem West P.U.D. Plan and Preliminary Plat (the "Anthem West PUD") and is subject to the City and County of Broomfield Subdivision Improvement Agreement that is identified on Exhibit B attached hereto and made a part hereof ( "SIA"). B. Pursuant to that Amended and Restated Statement of Rights and Obligations effectively dated December 28, 2011 and recorded March 29, 2012 at Reception No (the "Amended SRO") in the real property records of the City and County of Broomfield ("City"), Colorado, WS-ACB is the "Developer" under the SIA. C. In the event all or part of the Property is conveyed, the SIA and City requirements currently impose joint and several liability on the seller and buyer for performance of the obligations contained in the SIA unless, WS-ACB, as seller, and the buyer of any portion of the Property allocate between them the various rights and obligations contained in the SIA and such allocation is approved by the City Council of the City and County of Broomfield. D. As set forth below, WS-ACB desires to make this Statement, with the consent of the City, for the purpose of establishing, notwithstanding the provisions of the SIA, that upon the conveyance by WS-ACB of title to any platted subdivision lot or lots to any third-party purchaser to construct homes for resale (the "Buyer"), WS-ACB shall retain and remain solely liable for performance of the obligations contained in the SIA unless WS-ACB and Buyer enter into a separate Statement of Rights and Obligations, approved by the City, that allocates the various rights and obligations contained in and arising under the terms and provisions of the SIA among WS-ACB and such Buyer. STATEMENT NOW, THEREFORE, in consideration of the premises and covenants contained herein, the Consent of the City attached hereto, and for other good and valuable consideration, WS-ACB hereby declares and states as follows: 1. Statement of Rights and Obligations. If WS-ACB transfers or has transferred title to one or more platted lots within the Property to any Buyer, WS-ACB will retain and remain solely liable for the performance of the duties and obligations (collectively, the "Obligations") contained in the SIA in accordance with WS-ACB's acceptance and assumption of such { A DOC;1 } 5 (d) - Page 3

4 Obligations pursuant to the terms and provisions of the Amended SRO and the Buyer shall not be liable for any such Obligations. By making this Statement, it is the intent of WS-ACB that any person who purchases or has heretofore purchased one or more platted subdivision lots within the Property from WS-ACB shall not have liability for the performance of the Obligations contained in the SIA, unless and except to the extent WS-ACB and the Buyer enter into a separate Statement of Rights and Obligations, approved by the City, that provides for the assignment and transfer of some or all of WS-ACB's Obligations to such Buyer, and the acceptance and assumption by such Buyer of the Obligations being assigned. 2. Miscellaneous Provisions. a. This Statement is construed and enforced in accordance with the substantive laws of the State of Colorado, both statutory and decisional. b. This Statement shall be binding upon WS-ACB, its successors and assigns, and inure to the benefit of the City. This Statement may not be waived, changed, modified or discharged in whole or in part except in a writing signed by WS-ACB, with the written consent of the City. c. If a court of competent jurisdiction determines that any provision of this Statement is invalid or unenforceable, then the invalid or unenforceable provision is severable and the remainder of this Statement remains in full force and effect. WS-ACB has executed this Statement on the date first set forth above. STATE OF ) ss. COUNTY OF ) WS-ACB Development, LLC, a Delaware limited liability company By: Name: Title: Authorized Signatory The foregoing instrument was acknowledged before me this day of, 2012 by, as Authorized Signatory of WS-ACB Development, LLC, a Delaware limited liability company. WITNESS my hand and official seal. My commission expires: Notary Public { A DOC;1 } 2 5 (d) - Page 4

5 CONSENT This Statement of Rights and Obligations is acknowledged and approved by the City and County of Broomfield, Colorado ("City") this day of, ATTEST: CITY & COUNTY CLERK CITY AND COUNTY OF BROOMFIELD, COLORADO By: Title: Date: APPROVED AS TO FOR /^2^2f Gv 1 /^ CITY & COUNTY ATTORNEY 1 STATE OF COLORADO ) ) ss. COUNTY OF BROOMFIELD ) The foregoing instrument was acknowledged before me this day of 2012, by, as for the City and County of Broomfield, Colorado. Witness my hand and official seal. My Commission expires: Notary Public { A DOC;1 } 3 5 (d) - Page 5

6 EXHIBIT A Property LOTS 1, 2, 3, 12 and 13, ANTHEM FILING NO. 6, CITY AND COUNTY OF BROOMFIELD, STATE OF COLORADO. { A DOC;1 } 4 5 (d) - Page 6

7 EXHIBIT B SIA SIA Anthem Filing No. 6 dated May 24, 2005, recorded September 6, 2005 Reception No in the real property records of the City and County of Broomfield, Colorado. { A DOC;1 } 5 5 (d) - Page 7

8 STATEMENT OF RIGHTS AND OBLIGATIONS CITY AND COUNTY OF BROOMFIELD SUBDIVISION IMPROVEMENT AGREEMENTS THIS STATEMENT OF RIGHTS AND OBLIGATIONS ("Statement") is made effective as of June, 2012 ("Effective Date"), by WS-ACB DEVELOPMENT, LLC, a Delaware limited liability company ("WS-ACB"). RECITALS A. WS-ACB is the Owner is the of that real property which is described on Exhibit A attached hereto and incorporated herein by this reference ("Property"). The Property is a part of the Anthem West P.U.D. Plan and Preliminary Plat (the "Anthem West PUD") and is subject to the City and County of Broomfield Subdivision Improvement Agreement that is identified on Exhibit B attached hereto and made a part hereof ( "SIA"). B. Pursuant to that Amended and Restated Statement of Rights and Obligations effectively dated December 28, 2011 and recorded March 29, 2012 at Reception No (the "Amended SRO") in the real property records of the City and County of Broomfield ("City"), Colorado, WS-ACB is the "Developer" under the SIA. C. In the event all or part of the Property is conveyed, the SIA and City requirements currently impose joint and several liability on the seller and buyer for performance of the obligations contained in the SIA unless, WS-ACB, as seller, and the buyer of any portion of the Property allocate between them the various rights and obligations contained in the SIA and such allocation is approved by the City Council of the City and County of Broomfield. D. As set forth below, WS-ACB desires to make this Statement, with the consent of the City, for the purpose of establishing, notwithstanding the provisions of the SIA, that upon the conveyance by WS-ACB of title to any platted subdivision lot or lots to any third-party purchaser to construct homes for resale (the "Buyer"), WS-ACB shall retain and remain solely liable for performance of the obligations contained in the SIA unless WS-ACB and Buyer enter into a separate Statement of Rights and Obligations, approved by the City, that allocates the various rights and obligations contained in and arising under the terms and provisions of the SIA among WS-ACB and such Buyer. STATEMENT NOW, THEREFORE, in consideration of the premises and covenants contained herein, the Consent of the City attached hereto, and for other good and valuable consideration, WS-ACB hereby declares and states as follows: 1. Statement of Rights and Obligations. If WS-ACB transfers or has transferred title to one or more platted lots within the Property to any Buyer, WS-ACB will retain and remain solely liable for the performance of the duties and obligations (collectively, the "Obligations") contained in the SIA in accordance with WS-ACB's acceptance and assumption of such { A DOC;2 } 5 (d) - Page 8

9 Obligations pursuant to the terms and provisions of the Amended SRO and the Buyer shall not be liable for any such Obligations. By making this Statement, it is the intent of WS-ACB that any person who purchases or has heretofore purchased one or more platted subdivision lots within the Property from WS-ACB shall not have liability for the performance of the Obligations contained in the SIA, unless and except to the extent WS-ACB and the Buyer enter into a separate Statement of Rights and Obligations, approved by the City, that provides for the assignment and transfer of some or all of WS-ACB's Obligations to such Buyer, and the acceptance and assumption by such Buyer of the Obligations being assigned. 2. Miscellaneous Provisions. a. This Statement is construed and enforced in accordance with the substantive laws of the State of Colorado, both statutory and decisional. b. This Statement shall be binding upon WS-ACB, its successors and assigns, and inure to the benefit of the City. This Statement may not be waived, changed, modified or discharged in whole or in part except in a writing signed by WS-ACB, with the written consent of the City. c. If a court of competent jurisdiction determines that any provision of this Statement is invalid or unenforceable, then the invalid or unenforceable provision is severable and the remainder of this Statement remains in full force and effect. WS-ACB has executed this Statement on the date first set forth above. STATE OF ) ss. COUNTY OF ) WS-ACB Development, LLC, a Delaware limited liability company By: Name: Title: Authorized Signatory The foregoing instrument was acknowledged before me this day of, 2012 by, as Authorized Signatory of WS-ACB Development, LLC, a Delaware limited liability company. WITNESS my hand and official seal. My commission expires: Notary Public { A DOC;2 } 2 5 (d) - Page 9

10 CONSENT This Statement of Rights and Obligations is acknowledged and approved by the City and County of Broomfield, Colorado ("City") this day of, ATTEST: CITY & COUNTY CLERK CITY AND COUNTY OF BROOMFIELD, COLORADO By: Title: Date: APPROVED AS TO FORM: CITY & COUNTY ATTORNEY STATE OF COLORADO COUNTY OF BROOMFIELD ) ss. The foregoing instrument was acknowledged before me this day of 2012, by, as for the City and County of Broomfield, Colorado. Witness my hand and official seal. My Commission expires: Notary Public { A DOC;2 } 3 5 (d) - Page 10

11 EXHIBIT A Property LOTS 188 and 189, ANTHEM FILING NO. 13, CITY AND COUNTY OF BROOMFIELD, STATE OF COLORADO. { A DOC;2 } 4 5 (d) - Page 11

12 EXHIBIT B SIA SIA Anthem Filing No. 13 dated May 23, 2006, recorded August 7, 2007 Reception No in the real property records of the City and County of Broomfield, Colorado. { A DOC;2 } 5 5 (d) - Page 12

13 STATEMENT OF RIGHTS AND OBLIGATIONS CITY AND COUNTY OF BROOMFIELD SUBDIVISION IMPROVEMENT AGREEMENTS THIS STATEMENT OF RIGHTS AND OBLIGATIONS ("Statement") is made effective as of May 1, 2012 ("Effective Date"), by WS-ACB DEVELOPMENT, LLC, a Delaware limited liability company ("WS-ACB"). RECITALS A. WS-ACB is the Owner is the of that real property which is described on Exhibit A attached hereto and incorporated herein by this reference ("Property"). The Property is a part of the Anthem West P.U.D. Plan and Preliminary Plat (the "Anthem West PUD") and is subject to the City and County of Broomfield Subdivision Improvement Agreement that is identified on Exhibit B attached hereto and made a part hereof ( "SIA"). B. Pursuant to that Amended and Restated Statement of Rights and Obligations effectively dated December 28, 2011 and recorded March 29, 2012 at Reception No (the "Amended SRO") in the real property records of the City and County of Broomfield ("City"), Colorado, WS-ACB is the "Developer" under the SIA. C. In the event all or part of the Property is conveyed, the SIA and City requirements currently impose joint and several liability on the seller and buyer for performance of the obligations contained in the SIA unless, WS-ACB, as seller, and the buyer of any portion of the Property allocate between them the various rights and obligations contained in the SIA and such allocation is approved by the City Council of the City and County of Broomfield. D. As set forth below, WS-ACB desires to make this Statement, with the consent of the City, for the purpose of establishing, notwithstanding the provisions of the SIA, that upon the conveyance by WS-ACB of title to any platted subdivision lot or lots to any third-party purchaser to construct homes for resale (the "Buyer"), WS-ACB shall retain and remain solely liable for performance of the obligations contained in the SIA unless WS-ACB and Buyer enter into a separate Statement of Rights and Obligations, approved by the City, that allocates the various rights and obligations contained in and arising under the terms and provisions of the SIA among WS-ACB and such Buyer. STATEMENT NOW, THEREFORE, in consideration of the premises and covenants contained herein, the Consent of the City attached hereto, and for other good and valuable consideration, WS-ACB hereby declares and states as follows: 1. Statement of Rights and Obligations. If WS-ACB transfers or has transferred title to one or more platted lots within the Property to any Buyer, WS-ACB will retain and remain solely liable for the performance of the duties and obligations (collectively, the "Obligations") contained in the SIA in accordance with WS-ACB's acceptance and assumption of such { A DOC;4 } 5 (d) - Page 13

14 Obligations pursuant to the terms and provisions of the Amended SRO and the Buyer shall not be liable for any such Obligations. By making this Statement, it is the intent of WS-ACB that any person who purchases or has heretofore purchased one or more platted subdivision lots within the Property from WS-ACB shall not have liability for the performance of the Obligations contained in the SIA, unless and except to the extent WS-ACB and the Buyer enter into a separate Statement of Rights and Obligations, approved by the City, that provides for the assignment and transfer of some or all of WS-ACB's Obligations to such Buyer, and the acceptance and assumption by such Buyer of the Obligations being assigned. This Section 1 shall not apply to the bulk transfer or sale of all of the Lots within the Property to a Buyer in a single transaction, which would require WS-ACB and the Buyer enter into a separate Statement of Rights and Obligations, approved by the City. 2. Miscellaneous Provisions. a. This Statement is construed and enforced in accordance with the substantive laws of the State of Colorado, both statutory and decisional. b. This Statement shall be binding upon WS-ACB, its successors and assigns, and inure to the benefit of the City. This Statement may not be waived, changed, modified or discharged in whole or in part except in a writing signed by WS-ACB, with the written consent of the City. c. If a court of competent jurisdiction determines that any provision of this Statement is invalid or unenforceable, then the invalid or unenforceable provision is severable and the remainder of this Statement remains in full force and effect. WS-ACB has executed this Statement on the date first set forth above. STATE OF ) ss. COUNTY OF ) WS-ACB Development, LLC, a Delaware limited liability company By: Name: Title: Authorized Signatory The foregoing instrument was acknowledged before me this day of, 2012 by, as Authorized Signatory of WS-ACB Development, LLC, a Delaware limited liability company. WITNESS my hand and official seal. My commission expires: Notary Public { A DOC;4} 2 5 (d) - Page 14

15 CONSENT This Statement of Rights and Obligations is acknowledged and approved by the City and County of Broomfield, Colorado ("City") this day of, ATTEST: CITY & COUNTY CLERK CITY AND COUNTY OF BROOMFIELD, COLORADO By: Title: Date: APPROVED AS TO FORM: CITY & COUNTY ATTORNEY STATE OF COLORADO COUNTY OF BROOMFIELD The foregoing instrument was acknowledged before me this day of, 2012, by, as for the City and County of Broomfield, Colorado. Witness my hand and official seal. My Commission expires: Notary Public { A DOC;4} 3 5 (d) - Page 15

16 EXHIBIT A Property LOTS 14 THROUGH 38, INCLUSIVE, 41 THROUGH 44, INCLUSIVE, 71 THROUGH 90, INCLUSIVE, 98 THROUGH 110, INCLUSIVE, 125 THROUGH 185, INCLUSIVE, 195, 196, 198, 230 THROUGH 255, INCLUSIVE, ANTHEM FILING NO. 21, CITY AND COUNTY OF BROOMFIELD, STATE OF COLORADO. LOTS 256 THROUGH 272, INCLUSIVE, 275, 279, 281 THROUGH 282, INCLUSIVE, 284 THROUGH 301, INCLUSIVE, 305 THROUGH 314, INCLUSIVE, LOTS 316 THROUGH 333, INCLUSIVE, ANTHEM FILING NO. 21, REPLAT "A", CITY AND COUNTY OF BROOMFIELD, STATE OF COLORADO. { A DOC;4} 4 5 (d) - Page 16

17 EXHIBIT B SIAs SIA Anthem Filing No. 21 dated September 2, 2008, recorded July 16, 2009 Reception No ; First Amendment recorded January 12, 2010 Reception No { A DOC;4 } 5 5 (d) - Page 17