HomeMy WebLinkAboutSUN COMMUNITIES - THE FOOTHILLS - FDP220005 - SUBMITTAL DOCUMENTS - ROUND 3 - LETTER OF INTENT
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AGREEMENT TO NEGOTIATE
THIS AGREEMENT TO NEGOTIATE (“Agreement”) is entered into effective as of July 16,
2021 (“Effective Date”), by and between Jeffrey R. Bundy, Jay M. Bundy, Dwayne Hamar, as
the of an unincorporated lateral ditch (“Ditch Owners”), and SUN ACQ LLC, a Michigan
limited liability company (“Applicant”).
BACKGROUND
A. The Ditch owns and operates an irrigation water delivery system to its owners (the
“Ditch”).
B. Applicant desires the Ditch Owners to consider a proposal from the Applicant to
negotiate with the Ditch Owners for the purposes of entitling and developing the property at 6750
S. College Avenue, Fort Collins, CO by Applicant (“Development of Land”).
C. The proposed Development of Land includes the relocation of a portion of the Ditch
as well as access to property owned by Ditch Owners as depicted on Exhibit A, attached hereto
(the “Relocation Plan”).
D. Ditch Owners conceptually agree to the changes to the Ditch as described in the
Relocation Plan subject to Applicant providing access to the ditch owners’ property from Stony
Brook Road or South College Avenue. This is subject to the negotiation of a final agreement as
set forth herein.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, RECEIPT OF
WHICH IS HEREBY ACKNOWLEDGED, AND IN CONSIDERATION OF THE
BACKGROUND, DITCH OWNERS AND APPLICANT HEREBY AGREE AS FOLLOWS:
AGREEMENT
1. TERM OF AGREEMENT. The term of this Agreement (“Negotiation Period”) shall
commence on the Effective Date and terminate on the earlier of (1) the parties' approval
execution of an acceptable Agreement, or (2) four months after the Effective Date of this
Agreement, or (3) termination of this Agreement in accordance with Section 6 hereof.
Notwithstanding the foregoing, the Ditch Owners, in the Ditch Owners’s sole discretion, may
extend the Negotiation Period for up to an additional thirty days.
2. DEFINITION OF THE PROPOSED DEVELOPMENT OF LAND. Ditch Owners and
Applicant contemplate that the proposed Agreement would address those portions of the land on
which the ditch system of the Ditch Owners to be developed by Applicant for the purposes of
residential construction, as depicted on the Relocation Plan.
3. REIMBURSEMENT OF COSTS. Applicant shall reimburse Ditch Owners for Ditch
Owners' actual and reasonable out-of-pocket expenses, including all costs of engineering,
consultants and attorneys’ fees incurred in connection with the negotiation and preparation of this
Agreement and the proposed Development (collectively, “Ditch Expenses”). Applicant shall be
obligated to pay Ditch Expenses pursuant to this Section 3, regardless of whether the parties enter
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into the proposed Agreement as contemplated by this Agreement. The parties estimate that the
Ditch Expenses will not exceed $10,000.00 (“Expenses Cap”). The parties acknowledge and agree
that Ditch Owners have incurred an estimated $500.00 in Ditch Expenses prior to the Effective
Date. Therefore, concurrently with its execution of this Agreement, Applicant shall submit to Ditch
Owners $500.00 (“Initial Reimbursement”) in the form of a negotiable instrument or other
immediately available funds to be used by Ditch Owners to pay Ditch Expenses incurred prior to
the Effective Date. Ditch Owners shall use any unexpended or uncommitted portion of the Initial
Reimbursement, if any, to satisfy additional Ditch Expenses incurred by Ditch Owners during the
term of this Agreement. Applicant shall remain obligated to reimburse Ditch Owners for Ditch
Expenses incurred which are not satisfied by the Initial Reimbursement funds. Following the
Effective Date, Ditch Owners shall transmit to Applicant, not more frequently than monthly, a copy
of each invoice, bill or other evidence that Ditch Owners have incurred Ditch Expenses. Applicant
shall pay the Ditch Expenses to Ditch Owners in full within ten days after receipt of each invoice,
bill or other evidence of such Ditch Expenses. If Applicant does not pay the Ditch Expenses to
Ditch Owners within such ten-day period, then Ditch Owners may send a second notice and
demand for payment. Applicant’s failure to pay such Ditch Expenses, in full, within five days
following such second notice shall be deemed a default by Applicant hereunder and Ditch Owners
may immediately terminate this Agreement without further notice or opportunity to cure. Ditch
Owners agrees that Applicant’s obligation to reimburse Ditch Owners shall not exceed the
Expenses Cap without Applicant’s written approval. In the event Ditch Owners determines that,
to carry out its obligations under this Agreement, the Ditch Expenses will exceed the Expenses
Cap, Ditch Owners shall request Applicant’s written approval of such increase. If Applicant fails
to provide such written approval within ten business days following Ditch Owners’ request, this
Agreement may be terminated by Ditch Owners in Ditch Owners’ sole discretion. If Ditch Owners
terminate this Agreement as provided in this paragraph, neither party shall have any further rights
against, or liability to, the other under this Agreement, except that Applicant shall reimburse Ditch
Owners for Ditch Expenses incurred within the Expenses Cap prior to the effective date of
termination and Applicant shall remain obligated to indemnify Ditch Owners as provided in Section
9 hereof.
4. NEGOTIATIONS FOR THE AGREEMENT. During the Negotiation Period, Ditch
Owners and Applicant agree to negotiate with each other the terms and conditions of the proposed
Agreement.
5. AGREEMENT TERMS. Ditch Owners and Applicant contemplate that the proposed
Agreement may include, among other terms, the following:
a Easement/ownership area for ditch.
b Capital payment.
c Additional payment.
d Maximum time for construction.
e No work period.
f Release of liability, insurance and indemnity.
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g Surface protection provisions and damage payments.
h Drainage into and out of the ditch.
i Crossings of the ditch/relocation of the ditch.
6. TERMINATION. In addition to the Ditch Owners’ right to terminate this Agreement
pursuant to Section 3, either Ditch Owners or Applicant may, upon the failure of the other to
diligently and in good faith meet its obligations herein, terminate this Agreement on thirty days’
written notice to the non-terminating party which states the terminating party’s reason for its
intention to terminate. If, during such thirty-day period, the non-terminating party has failed to
cure such failure in its performance, this Agreement shall terminate. Except as otherwise provided
herein following such termination, neither party shall have any further rights or liability under this
Agreement.
7. LIMITATIONS.
a. By its execution of this Agreement, Ditch Owners is not committing itself to, or
agreeing to, commit itself to enter into the proposed Agreement or any similar document or to take
any other actions requiring the subsequent independent of discretion by the Ditch Owners. This
Agreement does not constitue a disposition or other transfer of the Property or any interest in the
Property by the Ditch Owners. Execution of this Agreement by Ditch Owners is merely an
agreement to enter into a period of negotiations according the terms and conditions hereof,
reserving final discretion and approval by the Ditch Owners as to any agreement and all
proceedings and decisions in connection therewith.
b. By its execution of this Agreement, Applicant does not commit itself to enter the
Agreement or any other agreement.
8. NO RIGHT OF ACCESS. Applicant shall not have access to the Ditch or Ditch facilities
under the terms of this Agreement.
9. INDEMNIFICATION. Applicant shall indemnify, defend, and hold the Ditch Owners, and
Ditch Owners’ employees, officers, agents, representatives, trustees, volunteers and officials
harmless from and against any claim for damages to person or Property whatsoever arising out of
any activity of Applicant, its employees, officers, agents, representatives, contractors,
subcontractors or consultants, on or about the Property or in any way arising out of this Agreement,
with the exception of the sole negligence or willful misconduct of Ditch.
10. NOTICES. All notices or communications required hereunder between Ditch Owners and
Applicant shall be in writing, and may be given either personally, by a recognized national
overnight courier or by certified United States mail, return receipt requested. If given by United
States mail, the notice shall be deemed to have been given on the date of receipt or rejection as
shown on the receipt, or if no return receipt is requested, three business days afer deposit of the
mail postage prepaid. If personally delivered, notice shall be deemed to have been given on the
date of delivery to the party to whom it was addressed. If by national overnight courier, the notice
shall be deemed to have been given one day after delivery to the courier service. Any party hereto,
by giving ten business days’ written notice to the other, may designate any other address in
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substitution of the address to which the notice or communication shall be given. Notices or
communications shall be given to the parties at the addresses set forth below, unless and until
specified otherwise in writing:
If to Ditch Owners:
Jeff Bundy
740 Victoria Drive
Fort Collins, CO 80525
jrbpal2@hotmail.com
If to Applicant:
Nikki Jeffries
Director of Entitlements
Sunrise Land Group
248.892.0889
njeffries@sunriseland.colm
11. MISCELLANEOUS.
c. This Agreement may not be assigned by Applicant to another party, and any
purported voluntary or involuntary assignment of Applicant's exclusive negotiation rights granted
herein shall be null and void.
d. This Agreement is entered only for the benefit of the parties executing this
Agreement and not for the benefit of any other individual, entity or person.
e. This Agreement may be amended only in writing by the mutual agreement of the
original parties.
f. If any term, provision, covenant, or condition of this Agreement is held by a court
of competent jurisdiction to be invalid, void, or unenforceable, the remaining provision of this
Agreement shall continue in full force and effect.
g. This Agreement shall be construed and enforced in accordance with the laws of the
State of Colorado without reference to choice-of-laws rules.
h. This Agreement constitutes the entire understanding and agreement of the parties
and supersedes all prior understandings, negotiations, or agreements between the parties with
respect to the subject matter hereof.
i. This Agreement has been reviewed by legal counsel for all parties, and no
presumption or rule that ambiguities shall be construed against the party shall apply to the
interpretation or enforcement of this Agreement.
j. Captions at the beginning of each paragraph of this Agreement are for reference
only and shall in no way define or interpret any provision hereof.
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k. Time is of the essence in this Agreement.
l. If legal action is necessary to enforce any terms or conditions of this Agreement,
the prevailing party shall be entitled to recover from the other party its reasonable attorneys’ fees
and costs.
m. This Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same agreement. Applicant and
each person executing this Agreement on behalf of Applicant does hereby covenant and warrant
that (1) Applicant is duly incorporated and validly existing under the laws of Colorado, (2)
Applicant has and is duly qualified to do business in Colorado, (3) Applicant has full corporate
power and authority to enter into this Agreement and to perform all of Applicant’s obligations
hereunder, and (4) each person (and all of the persons if more than one signs) signing this
Agreement on behalf of Applicant is duly and validly authorized to do so.
12. LIST OF EXHIBITS.
Exhibit A – Relocation Plan
IN WITNESS WHEREOF, Ditch Owners and Applicant have entered into this Agreement
as of the Effective Date.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
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SIGNATURES
DITCH OWNERS
_________________________________
Jeffrey R. Bundy
________________________________
Dwayne Hamar
_________________________________
Jay M. Bundy
Jay Bundy (Aug 21, 2021 07:59 MDT)Aug 21, 2021
Jeffrey R Bundy (Aug 23, 2021 10:53 MDT)Aug 23, 2021
Dwayne Hamar (Aug 24, 2021 20:14 MDT)
Dwayne Hamar Aug 24, 2021
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APPLICANT
SUN ACQ LLC, a Michigan limited liability company
By: SUN COMMUNITIES OPERATING
LIMITED PARTNERSHIP, a Michigan
limited partnership, its Sole Member
By: SUN COMMUNITIES, INC., a Maryland
corporation, General Partner
By: _________________________________
John McLaren, President and
Chief Operating Officer
Aug 25, 2021
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EXHIBIT A
TO AGREEMENT TO NEGOTIATE
RELOCATION PLAN &
WALL & SIGN PLAN
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THE FOOTHILLS
IRRIGATION DITCH REALIGNMENT AND PROPERTY ACCESS EXHIBIT
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MATCHLINE, SEE NEXT SHEET
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THE FOOTHILLS
IRRIGATION DITCH REALIGNMENT AND PROPERTY ACCESS EXHIBIT
SHEET 2 OF 2
MATCHLINE, SEE PREVIOUS SHEET
DDDDDDDSTREET ASTREET B
DEBRA DR.RICK DR.RICK DR.STREET CSTREET C
STREET ESTR
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L STREET HSTREET FSTREET DCROWN RIDGE LN.STREET ISTREET K
PORTNER DR.STREET JWETLANDSTRILBY RD.COLLEGE AVE.394041424312345678910111213141516171819202122232425262728293031323334353637384445464748495051525354555960616364656667686970717273747576777879808182838485868788899091929394959697989910010110210310410510610710810911011111211311411511611711811912012112212312412512612712812913013113213313413513613713813914014114214314414514614714814915015115215315415515615715815916016116216316416516616716816917017117217317417517617717817918018118218318418518618718818919019119219319419519619719819920020156575862ACCESS GATEKnow what'sbelow.before you dig.Call120 S. Ash Avenue
Tempe, Arizona 85281
Tel: 480.994.0994
www.rviplanning.com44103/07/2008Original Date of LicensureSTATE OF COLOR
A
DO LICENSED LANDSCAPE ARC
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ITECT
D
OUGLAS CRAIG060'120'240'SCALE: 1" = 120'-0"LEGENDPRIMARY COLUMN @ PERIMETER WALL, REFER TO DETAIL 5 / L3.01SPLIT RAIL FENCE, REFER TO DETAIL 1,3 / L3.01PRIVACY FENCE, REFER TO DETAIL 2,4 / L3.01POOL FENCE, REFER TO DETAIL 5,6,7 / L3.02QTY: (6,346 L.F.)QTY: (4,053 L.F.)QTY: (24 EACH)QTY: (319 L.F.)9.CONCRETE FOOTINGS SHALL BE CONTINUOUS POUR TO GREATEST EXTENTPRACTICAL. STEP FOOTINGS IN EVEN BLOCK INCREMENTS.10.WALL CONTRACTOR TO BE RESPONSIBLE FOR STRUCTURAL CALCULATIONS OFTHE WALLS.11.SUBMIT TEST REPORTS FOR CONCRETE MIX DESIGNS TO LANDSCAPEARCHITECT FOR REVIEW.12.WATERPROOF AND GROUT SOLID RETAINING WALLS TO HIGH GRADE, IFAPPLICABLE.13.ALL IRON/STEEL WORK TO BE OF HIGHEST QUALITY WITH WELDS GROUNDSMOOTH. ALL IRON WORK, EXCEPT WHERE NOTED, TO BE PRIMED AND PAINTED.PAINT COLOR TO BE SELECTED BY OWNER AND/OR LANDSCAPE ARCHITECT.14.VERIFY HEIGHTS AND SLOPES AND TURNDOWNS BEFORE POURING FOOTINGS.15.NEW WALL FINISHES SHALL MATCH EXISTING SURFACES, UNLESS OTHERWISENOTED ON DRAWINGS.16.GROUT SOLID ALL CMU CELLS AND VOIDS BELOW GRADE AND/OR CONTAININGREBAR.ALL WALL LOCATIONS AND ALIGNMENTS ARESCHEMATIC. WALLS SHALL NOT BE INSTALLED INRIGHT-OF-WAYS, UTILITY EASEMENTS, OR SIGHTVISIBILITY TRIANGLES. CONTRACTOR TO STAKE WALLCORNERS AND TURN POINTS AND GET CLIENT AND/ORLANDSCAPE ARCHITECT APPROVAL PRIOR TOINSTALLATION.WALL NOTES1.THESE NOTES ARE GENERAL AND MAY BE SUPERSEDED BY EITHER THESPECIFICATIONS OR LOCAL TRADE PRACTICES.2.FOOTINGS SHALL BEAR ON UNDISTURBED NATIVE SOIL OR COMPACTED FILL.3.THE EXPOSED UPPERMOST SOIL TO RECEIVE FILL SHALL BE SCARIFIED 6" DEEP,MOISTURE CONDITIONED TO ±3% OF OPTIMUM DENSITY CURVE FOR EACH TYPEOF SOIL ENCOUNTERED AND COMPACTED TO 95% OF MAXIMUM DRY DENSITYPER ASTM D-2922 OR D-3017.4.FILL MATERIAL SHALL BE PREDOMINANTLY GRANULAR, NON-EXPANSIVE, CLEANOF ALL ORGANIC OR DETRITUS SUBSTANCES, AND HAVE A PLASTICITY INDEXLESS THAN SEVEN (7). BACKFILL SHALL BE COMPACTED TO 95% OF MAXIMUMDENSITY IN HORIZONTAL 8" LIFTS.5.EXCAVATIONS FOR FOUNDATIONS SHALL BE NEAT TO LINES OF FOOTINGS. ALLLOOSE MATERIAL SHALL BE REMOVED FROM SURFACE TO RECEIVE CONCRETE.6.ALLOWABLE SOIL BEARING PRESSURES AT FOOTING ON COMPACTED SOIL: 1500PSI.7.CONCRETE MIX DESIGN FOR FOOTINGS SHALL BE MAG CLASS 'B' (2500 PSI),UNLESS OTHERWISE NOTED ON DRAWINGS.8.NO PIPES OR DUCTS SHALL BE PLACED IN STRUCTURAL CONCRETE UNLESSSPECIFICALLY DETAILED.OMEGA FENCING, REFER TO AMENITY SCHEDULE / L2.01 THRU L2.03QTY: (395 L.F.)SECONDARY COLUMN @ PERIMETER WALL, REFER TO DETAIL 6 / L3.01QTY: (73 EACH)ACCESS GATE TOMAINTENANCE AREA- If asecurity gate is to be installed, itmust comply with IFC D103.5
Agreement to Negotiate - Louden Ditch & Sun
Communities
Final Audit Report 2021-08-25
Created:2021-08-20
By:Nicole Jeffries (njeffries@sunriseland.com)
Status:Signed
Transaction ID:CBJCHBCAABAApO9YM4xetMwKQTomwXxxUqE3fwZDuMfr
"Agreement to Negotiate - Louden Ditch & Sun Communities" Hi
story
Document created by Nicole Jeffries (njeffries@sunriseland.com)
2021-08-20 - 3:24:21 PM GMT- IP address: 76.112.55.58
Document emailed to Jay Bundy (jaybundy19@gmail.com) for signature
2021-08-20 - 3:28:43 PM GMT
Email viewed by Jay Bundy (jaybundy19@gmail.com)
2021-08-21 - 1:45:28 AM GMT- IP address: 66.102.6.17
Document e-signed by Jay Bundy (jaybundy19@gmail.com)
Signature Date: 2021-08-21 - 1:59:32 PM GMT - Time Source: server- IP address: 174.16.119.152
Document emailed to jeffjrbpal2@hotmail.com for signature
2021-08-21 - 1:59:37 PM GMT
Email sent to jeffjrbpal2@hotmail.com bounced and could not be delivered
2021-08-21 - 1:59:42 PM GMT
Nicole Jeffries (njeffries@sunriseland.com) replaced signer jeffjrbpal2@hotmail.com with Jeffrey R Bundy
(jrbpal2@hotmail.com)
2021-08-21 - 2:22:44 PM GMT- IP address: 76.112.55.58
Document emailed to Jeffrey R Bundy (jrbpal2@hotmail.com) for signature
2021-08-21 - 2:22:44 PM GMT
Email sent to jeffjrbpal2@hotmail.com bounced and could not be delivered
2021-08-21 - 2:22:47 PM GMT
Email viewed by Jeffrey R Bundy (jrbpal2@hotmail.com)
2021-08-22 - 11:50:27 PM GMT- IP address: 172.58.140.90
Document e-signed by Jeffrey R Bundy (jrbpal2@hotmail.com)
Signature Date: 2021-08-23 - 4:53:45 PM GMT - Time Source: server- IP address: 50.232.181.14
Document emailed to Dwayne Hamar (dwayne.hamar@colostate.edu) for signature
2021-08-23 - 4:53:49 PM GMT
Email viewed by Dwayne Hamar (dwayne.hamar@colostate.edu)
2021-08-23 - 5:48:20 PM GMT- IP address: 209.209.104.98
Document e-signed by Dwayne Hamar (dwayne.hamar@colostate.edu)
Signature Date: 2021-08-25 - 2:14:48 AM GMT - Time Source: server- IP address: 209.209.104.98
Document emailed to John McLaren (jmclaren@suncommunities.com) for signature
2021-08-25 - 2:14:52 AM GMT
Email viewed by John McLaren (jmclaren@suncommunities.com)
2021-08-25 - 2:35:29 AM GMT- IP address: 107.5.124.225
Document e-signed by John McLaren (jmclaren@suncommunities.com)
Signature Date: 2021-08-25 - 11:27:11 AM GMT - Time Source: server- IP address: 107.5.124.225
Agreement completed.
2021-08-25 - 11:27:11 AM GMT