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Home My WebLink About20150845.tiff RESOLUTION RE: APPROVE AGREEMENT REGARDING LAMAR CONSTRUCTION BANKRUPTCY AND REIMBURSEMENT OF WELD COUNTY FOR FEES PAID IN RELATION TO IMPROVEMENTS AND AUTHORIZE CHAIR TO SIGN - WEATHERFORD ARTIFICIAL LIFT SYSTEMS, LLC WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with an Agreement Regarding the Lamar Construction Bankruptcy and Reimbursement of Weld County for Fees Paid in Relation to Improvements between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Planning Services, and Weatherford Artificial Lift Systems, LLC, commencing March 30, 2015, with further terms and conditions being as stated in said agreement, and WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Agreement Regarding the Lamar Construction Bankruptcy and Reimbursement of Weld County for Fees Paid in Relation to Improvements between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Planning Services, and Weatherford Artificial Lift Systems, LLC, be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. Oa: r`�L(mm/Tp >CR(h" 2015-0845 PL0073 AGREEMENT REGARDING LAMAR CONSTRUCTION BANKRUPTCY AND REIMBURSEMENT OF WELD COUNTY FOR FEES PAID IN RELATION TO IMPROVEMENTS -WEATHERFORD ARTIFICIAL LIFT SYSTEMS, LLC PAGE 2 The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 30th day of March, A.D., 2015. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: crlcfiaa/ tisC.Lto;cA �� 2tit ti arbara Kirkmeygr, Chair Weld County Clerk to i thrar 1 � � ,�� Mike Freeman, Pro-Tem BY �t i .I��`�i� Deputy rk to the Bo �— �p eanP. onwC ayAPPROVAS TO FOR ,1 i..t t(#è' I ;' ,/�_� �r� ,AulieA. Cozad County Attorney 14/1?)/ISSteve Moreno Date of signature: 2015-0845 PL0073 • AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS FOR .WELD COUNTY,.CO. AND WEATHERFORD ARTIFICIAL LIFT SYSTEMS LLC REGARDING FEES PAID IN RELATION TO IMPROVEMENTS LOCATED AT 4080.CAMELOT CIRCLE. WELD COUNTY, CO 411 THIS AGREEMNT'("Agreement'') is entered into this 2.ID E day of March,2015, by and between the Board of. County Commissioners of the County of Weld ("County") and Weatherford Artificial Lift Systems ("Weatherford"). County and Weatherford may be referred to collectively as the"Parties." RECITALS • WHEREAS, Weatherford is the owner of parcel 120723203001 located at 4080 Camelot Circle, Weld County, CO ("Property"); and WHEREAS, Lamar Construction Company ("Lamar") filed for Chapter 7 bankruptcy on July 11, 2014,in the United States Bankruptcy Court for the Western District of Michigan under case number 14-04719 BO;and WHEREAS, Weatherford contracted with Lamar to construct certain improvements on the Property prior to Lamar filing for bankruptcy; • WHEREAS, Weatherford tendered $83,965.63 to Lamar to allow Lamar to purchase a • building permit front the County on Weatherford's behalf and for the Property owned by Weatherford. WHEREAS, on June 20, 2014, Lamar gave a check in its own name, check number 146407, in the amount of$83,965.63 ("Payment") to the Weld County Planning and Building Department for the issuance of building permit BCR14-00265;and • WHEREAS, the Payment was for the following County fees: Building Permit Fee$5,086.50 • • Electrical Fee by Job Cost$4,131.00 • RIF Area3 Manufacturing/Industrial Fee$50,075.00 Major Building Plan Review Fee$3,306.23 Facility Impact Manufacturing/Industrial Fee$3,726.00,and • Stormwater Drainage Fee Non-Dwelling Structure$17,640.90; and WHEREAS, building permit BCR14-00265 was issued in the name of Weatherford; and • Page 1 oforages 616 2015-0845 R0073 • • WHEREAS, the Weld County Treasurer's Office received a letter on February 20,2015, from the trustee ("Trustee") in bankruptcy case 14-04719 BG asserting that the Payment constituted a preference pursuant to 11 U.S.C. 547 and demanding that the Payment be sent to the Trustee; and • WHEREAS, construction of the improvements for which the Payment was made has been substantially completed and Weatherford is requesting that a temporary certificate of occupancy, and ultimately a certificate of occupancy, be issued; and WHEREAS, there exist good faith bases under 11 U.S.C. 547 to assert that the Payment did not constitute a preference; and WHEREAS, the County does not intend to send the money to the Trustee absent a court order or as part of a negotiated settlement, however, the outcome of potential litigation in the bankruptcy court regarding whether all or a portion of the Payment was a preference is unclear; and WHEREAS, should the County send all or part of the Payment to the Trustee, payment for building permit BCR14-00265 would then be insufficient;and • • WHEREAS, should all or part of the Payment be paid to the Trustee, Weatherford wishes to ensure that the County be reimbursed for any such amount paid to the Trustee. NOW, THEREFORE, in consideration of the mutual promises of the Parties and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. The above recitals shall be incorporated herein as though fully set forth. 2. Despite the possibility that all or part of the Payment will need to be paid to the Trustee resulting in payment for building permit BCR14-0O265 being insufficient, County agrees to issue a temporary certificate of occupancy, and subsequently a certificate of occupancy, for the improvements that are the subject of building permit BCR14-00265 and in exchange,Weatherford agrees to the following conditions: A. Weatherford shall complete all necessary requirements for issuance of the temporary certificate of occupancy, and subsequent certificate of occupancy, to the satisfaction of the Weld County Planning and Building Department prior to any such issuance. No term or condition of this Agreement shall limit the County's ability to withhold, suspend, revoke, or otherwise initiate enforcement actions related to the temporary certificate of occupancy or certificate of occupancy for violations of applicable Jaws and regulations. Page 2 ofiPages tb‘Uv • • • B. In the event the County is sued by the Trustee, enters into settlement negotiations with the Trustee and/or contemplates settling with the Trustee for reimbursement of all or part of the Payment, the County agrees to immediately notify Weatherford. 'l'he County will not enter into a settlement agreement and/or tender a payment to the Trustee without prior notification to Weatherford,in order to afford Weatherford the opportunity to present evidence that would assist the County in defeating the Trustee's claims and/or minimizing the County's liability. • C. Should the County pay to the Trustee all or a portion of the Payment as a result of a bankruptcy court order, negotiated settlement, or otherwise, Weatherford agrees to • pay to the County the full amount paid to the Trustee within forty-five days of such payment by the County to the Trustee. Should such payment not be made within forty-five days, the County shall have the right to revoke any temporary certificate of occupancy or certificate of occupancy then issued. • D. Weatherford shall reimburse the County for all costs associated with hiring local counsel licensed to practice law before the Western District of Michigan Bankruptcy Court in which the Lamar bankruptcy has been filed, should such local counsel be necessary in the sole discretion of the County in order to resolve the • issue whether the Payment was a preference. The County shall notify • Weatherford of its decision to retain local counsel prior to County doing so. • • 3. Term. The term of this Agreement begins upon the date of the execution of this Agreement by County and shall continue through and until the issue as to whether the Payment constitutes a preference in the United States Bankruptcy Court for the Western District of Michigan case number 14-04719 BC is no longer an issue whether because such case has been closed or whether all or a portion of the Payment has been paid to the trustee as a • result of a court order,negotiated settlement,or otherwise. 4. Entire Agreement/Modifications. This Agreement contains the entire agreement between the parties with respect to the subject matter contained in this Agreement. This instrument supersedes all prior negotiations, representations, and understandings or agreements with respect to the subject matter contained in this Agreement. This Agreement may be changed or supplemented only by a written instrument signed by both parties. 5. Severability. If any term or condition of this Agreement shall be held to be invalid,illegal, or unenforceable by a court of competent jurisdiction,this Agreement shall be construed and enforced without such provision, to the extent that this Agreement is then capable of execution within the original intent of the parties. t, Governmental Immunity. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, Page 3 oft Pages • • protections or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 • - • et seq.,as applicable now or hereafter amended. 7: No Third Party Beneficiary. It is expressly understood and agreed that the enforcement of f' the terms and conditions of this Agreement, and all lights of action relating to such enforcement, shall be strictly reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of action whatsoever by arty other person not included in this Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this • Agreement shall be an incidental beneficiary only. 8. Board of County Commissioners of Weld County Approval. This Agreement shall not be • valid until it has been approved by the Board of County Commissioners of Weld County, Colorado or its designee. 9:. Choice of Law/Jurisdiction. Colorado law, and rules and regulations established pursuant thereto,shall be applied in the interpretation,execution,and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be null and void. in the event of a legal dispute between the Parties, the Parties agree that the Weld County District Court shall have exclusive jurisdiction to resolve said dispute. 10. Attorneys Fees/Legal Costs. In the event of a dispute between the Parties concerning this Agreement,the Parties agree that each party shall be responsible for the payment of attorney fees aad/or legal costs incurred by or on its own behalf. 11. Binding Arbitration Prohibited: Weld County does not agree to binding arbitration by any extra-judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference shall be null and void. 12. This Agreement shall be deemed a contract and shall bind the parties and shall extend to and bind their heirs,executors,administrators,legal representatives,successors,and assigns. Page 4 of 1 Pat,:cs IN WITNESS WHEREOF, the parties hereto have subscribed their names this day of 2015. WEATHERFORD ARTIFICIAL LIFT SYSTEMS LLC Nani. :Jo- nne Busic ICier> Title:Director of Global Real Estate and Construction 3Jt116 • • Page 5 of 6 Pa fes ATTEST: detat4) uldt0;ei BOARD OF COUNTY COMMISSIONERS Weld u ty erk to the Board WEED COUNTY, COIGORADO BY: ~ �J7AhA Deputy Clerk to e Board vJ arbara Kirlcmeyer,Chair AR 3 0 2015 ,,, PROVED TO • PROVED AS TO SUBSTANCE:40 Controller /1,1\ Elected Official o Departure t Head 14- APPROVED AS TO FORM: C Director o p/ann(ry elv County Attome �J V 48:6-8577-8722, v. Page 6 of jPages oZ0/�- liC`�y EXHIBIT A HANN FERNANDO L. BEDEVIA PERSINGER JENNIFER A. DEYOUNG ROBERT C. HAMILTON ANNA C.WHITE P• C MARCIA R. MEOLI ' RICHARD D. PERSINGER DONALD H. HANN ATTORNEYS AT LAW ROBERT E. SCHREUR Or COUNSEL www.hannpersinger.com MAIL ADDRESS STREET ADDRESS P.O. BOX 1559 503 CENTURY LANE HOLLAND, MICHIGAN 49422.1559 HOLLAND, MICHIGAN 49423 • PHONE (616)396-1245 FAX(616)396.9638 February 20,2015 • President or Legal Department WELD COUNTY PO BOX 458 GREELEY CO 80632-0458 Re: LAMAR CONSTRUCTION COMPANY, Debtor Case No.: 14-04719 BG Date of Filing:July 11, 2014 Ladies and Gentlemen: I am the trustee in the above bankruptcy proceeding. I understand that you received transfer(s)from the above debtor. See attached list. Based upon the facts before me, it appears that these transfers constitute preferences, avoidable by the court pursuant to 11 USC 547. In simple terms, a preference is a payment of an old debt within a period prior to the bankruptcy date of filing. I hereby demand upon you to immediately pay to me,as trustee of the above bankruptcy estate,the amount of$83,965.63. Also please send to me a written record of all payments received on the debtor's account within 90 days prior to the Date of Filing. I^ If you dispute my analysis of this matter, I welcome a communication from you explaining your dispute. I look forward to receiving your payment within 10 days from the date of this letter. We request responses in writing.Telephone messages are often inadequate to respond to these matters. 1 . Thank you, Marcia R. Meoli,Trustee mmeoli@hannpersinger.com Enclosure:Table of transfers found in the debtor's records TRANSFERS FOUND IN THE DEBTOR'S RECORDS LAMAR CONSTRUCTION COMPANY 14-04719-BG WELD COUNTY Ck No. Ck date Amount Clear$ Clear date 146407 6-20-2014 $83,965.63 $83,965.63 6-24-2014 Rafaela Martinez From: Brad Yatabe Sent: Thursday, March 26, 2015 3:40 PM To: Rafaela Martinez Cc: Esther Gesick Subject: agenda item for Monday Rafaela, Can you place an agenda item on for Monday titled "Lamar Construction Bankruptcy, Weatherford Agreement to Reimburse Weld County." I almost had the copy of the agreement in my hands but there were a couple of tweaks and I should have it to you by the end of the day or tomorrow at the latest. Thanks. BRAD YATABE ASSISTANT WELD COUNTY ATTORNEY 1 1 50 O STREET MAILING ADDRESS: P.O. Box 758, GREELEY, CO 80632 TEL: (970) 356-4000 EXT. 4396 FAX: (970) 352-0242 ajj,er STATEMENT OF CONFIDENTIALITY & DISCLAIMER: THE INFORMATION CONTAINED IN THIS EMAIL MESSAGE AND ANY ATTACHMENTS IS ATTORNEY-CLIENT PRIVILEGED, CONFIDENTIAL, AND INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS EMAIL IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS EMAIL IN ERROR, PLEASE CEASE VIEWING THE CONTENTS, NOTIFY THE SENDER IMMEDIATELY BY REPLY EMAIL, AND PERMANENTLY DELETE THIS EMAIL AND ANY ATTACHED MATERIALS. 1 Hello