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HomeMy WebLinkAboutBRITTANY KNOLLS PUD - Filed OA-OTHER AGREEMENTS - 2003-05-28MEMORANDUM OF UNDERSTANDING Nebarado Construction Inc., a Colorado corporation ("the Developer"), is the developer of certain real property located in the City of Fort Collins know as North- brook Patio Hornes P.U.D. The City has approved an Erosion Control Plan dated Septembe , 1994 ("the Plan"), for the PUD and, pursuant to Section 2.2 of the City's Sto rainage Design Criteria ("the Criteria"),the City has agreed to accept an ZS ?L/ ovocable letter of credit in the amount of Six Thousand Seven Hundred Twenty -Seven Dollars and Fifty Cents ($6727.50) (the Cash Escrow") from the Developer to guarantee the proper installation and maintenance of the erosion control measures shown on the Plan and described in the Criteria. The Cash Escrow has been received by the City. If, at any time, the Developer fails to abide by the provisions of the Plan or the Criteria, the Cite may enter upon the premises described in the PUD for the purpose of making such improvements and undertaking such activities as may be necessary to ensure that the provisions of the Plan and the Criteria are properly enforced. The City may apply such portion of the Cash Escrow as may be necessary to pay all costs incurred by the City in undertaking the administration, construction and/or installation of the erosion control measures required by the Plan and the Criteria. Upon acceptance by the City of the initial installation of the erosion control measures required by the Plan and the Criteria, the Cash Escrow shall be reduced to twenty-five (25) percent of the actual cost of such measures. The balance of the Cash Escrow shall be held by the City to guarantee the continued maintenance and replacement of such measures for a period not to exceed two (2) years from the date of installation of the erosion control measures. Upon the expiration of said two (2) year period, or the date of certification by the City that the required measures have been fully completed and maintained in accordance with the Plan, whichever occurs first, the balance of the Cash Escrow shall be refunded to the Developer and the right of access granted to the City under this Memorandum of Understanding shall be of no further force and effect. Until such time, the rights of the parties under this Memorandum of Understanding shall run with the PUD and be binding upon any subsequent owner thereof, as well as any assignee in interest of the Developer. Dated this 27th day of September, 1994. DEVELOPER: THE CITY OF FORT COLLINS, COLORADO, a municipal corporation Nebarado Construction Inc., a Colo a corpQtion BY Mike Herzi Dev nt Gary ackey g, Project Representative Engineering Manager RCPT_1 # 87029772 26/87 10:36:50 # OF T. S - 2 FEE - $6.00 RODE.VBER 3ER, 1;.ECO.._ R - LARI AER COU_1TY, CO S,,. fE DOC FEE $ .00 J, SITE AND LANDSCAPE COVENANTS FOR Brittany Knolls P.U.D. Situate in the City of Fort Collins; Zounty of Larimer, State of Colorado • The undersigned, fee owner of gr;X Knolls. P.U.D. (The Property) located in the City of Fort CoolIiris, County o Larimer, State of - Colorado, does hereby make the following declarations as limitations, restrictions and uses to which the Property may be put. and hereby speci- fies that these declarations shall constitute covenants to run with all of the Property and shall be binding on all parties and all persons claiming under them, and for the benefit of and limitations on all future owners of all or part of the Property, this declaration being signed for the purpose of guaranteeing that the Property will be developed and landscaped ini- tially an.1 kept in desirable condition in the future as herein specified. "Oviner" shall include the signator to this document and all successors or assigns of said signator. The landscape improvements, parking areas, sidewalks, open spaces and site amenities including, without limitation. energy generation or con- servation amenities, as described in the site and landscape plans submitted to the City of Fort Collins and on record therewith shall be made anal distilled in the manner as described in said plans unless anended pursuant to the approval of the City of Fort Collins. With the exception of lands necessary for construction, the owner shall cause the property to be developed according to the site and landscape plan submitted to and ap- proved by the City of Fort Collins. It is further understood and agreed that the cr4ner of the Property, or its assigns or successors in interest, shall be responsible for the maintenance and care (including necessary replacement of dead grasses, plants,, trees or shrubsl•Of ali"plant:ed and landscaped" areas and other amenities within said P.U.D. together with- landscaped" parking. sidewalks and open space areas and all areas othe►vi.se uti- lized for buffering energy conservation ur other site amenity. Should the owner fail in any respect to comply with the terms of this Agreement, the,. City of Fort Collins upon notifying said owner in writing of the matters in regard to which default is asserted and should the owner• fail either to cure said default within thirty (30) days after receipt of such notice or to commence within twenty (20) days to rectify such default until it is fully rectified or cured, then the City of Fort Collins shall have the right (1) to obtain, in the District Court of Larimer County, Colorado, a mandatory injunction requiring rectification of the default, or (2) to enter upon said property and perform the work necessary -to. -replace said improvements or maintain the same and the owner shall'pay.or cause to be paid to the City of Fort Collins such sums necessary to reimburse said City of Fort Collins for the labor and material expended to complete or maintain said improvements which payment shall be made within ten (10) days after receipt of billing. The sum due and unpaid shall accrue interest at the statutory rase for judgements from the date that such sum is due. If said billing is not paid, then the City of Fort Collins pursuant to the author- ity granted by these covenants,. shall have a lien on the above described property and improvements thereto. Said lien to be exercisable by filing a notice of said lien against said property and improvements thereto; pro- vided, however, that the City of Fort Collins shall not have a lien against any single-family lots and improvements thereto within the Property, if applicable. The City of Fort Collins shall be entitled to all rights of foreclosure or other remedies existing pursuant to Colorado law for en- forcement of liens against real property and may also, at its discretion, without waiving any other rights it may have pursuant to law, proceed directly with legal action against the owner, its assigns or successors in interest, to collect payment of the reasonable amounts so expended pursuant to the teals hereof. ., The undersigned, its successors and assigns, hereby expressly reserve the right, with the consent of the City of Fort Collins, Colorado, to amend or restate these Covenants, by including the provisions contained herein within the, Protective Covenants for the real property platted as "ihe Brittany Knolls P.U.D." which real property shall include the property subject to these Covenants. DATED this /.� day of �� 19 ATTEST: Secretary STATE OF COLORADO ) )Ss COUIITY OF LARWER ) Owner MSP INVESTMENT CO., a Colorado General Partnersh' By ,ener Partner The foregoing instrument was ackn=dged before me this . !3 '_day of by �_ _ a srr� and as Secr ary of D� My Commission expires: ;" ,+_',,.• Witnessiny hand and official seal. t as ary Public ,- -Z- I 71 ,: BRITTANY KNOLLS P.U.D., FILING NO-1 AMENDMENT AGREEMENT NO-1 THIS AMENDMENT AGREEMENT, made and entered into this ���, Id z day of 4_, of 1995 , by and between the CITY OF FORT COLLINS, COLORADO,- municipal corporation, ("City") and BRITTANY KNOLLS LAND LIMITED LIABILITY COMPANY, a Colorado limited liability company, ("Developer"), is an amendment to that certain Development Agreement dated the loth of August, A.D. 1994, 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 are presently desirous of modifying 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 is hereby acknowledged, the parties agree as follows: Subheading II. Special Conditions; section C. Storm Drainage Lines and Appurtenances shall be modified by adding the following paragraphs: 4. 'The Developer and the City agree that it is important that certain lots be graded to drain in the configuration shown on the approved plans for this development. For this reason the following additional requirements shall be followed for building on Block 1, Lots 16 through 25: Prior to the issuance of a certificate of occupancy for each of said lots the Developer shall provide the City with certification that the lot has been graded correctly ( including the grading of any minor swales, if applicable) ; the lot corner elevations specified on the approved plans are correct and in accordance with the approved plans; and the minimum floor elevation for all buildings constructed on said lot has been completed in accordance with the approved plans. Said certification shall be completed by a Colorado licensed professional engineer and shall be submitted to the City at least two weeks prior to the date of issuance of the desired certificate of occupancy. 5. The Developer and the City agree that the storm drainage system for this development contains some features that make it important to construct the facilities in accordance with the plans and Ito ensure that the facilities are maintained and kept operational throughout the buildout of this development. For this reason the following additional requirements shall be followed for building on Block 1, Lots 21 through 25, and Block 2, Lots 1 through 8 and 11 through 16: The portions of the drainage improvement system required to be constructed on any of the above lots and other portions necessary for the system serving said lots to function shall be completed in accordance with the approved utility plans and said completion shall be certified as being completed in accordance with said plans by a licensed professional engineer. Said certification shall be received by the City prior to the issuance of a building permit for any of the above lots. A certification by such engineer that the drainage systems' function and adequacy to serve its purpose has not been impaired by the construction and landscaping on said lot shall be submitted to the City prior to the issuance of a certificate of occupancy for each of the above lots. 6. In addition the Developer shall be required to file a notice with -the Larimer County Clerk and Recorder describing the landscaping and fencing restrictions that exist for the drainage easements on each of Lots 21`through 25 in Block 1, and Lots 1 through 8, 11 through 16 and 21 through 25 in Block 2. Said notice shall reference the location of the specific restrictions shown on plans and notes in the approved utility plans for this development. Said notice shall be filed in a City approved form prior to the sale of any lots affected by such restrictions. Except as herein modified, the Development Agreement shall continue in full force and effect. This Agreement and the Development Agreement constitute the entire understanding of the parties. IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first above written. THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: I ity Manage ATTEST: 'U� t APPROVED AS TO CONTENT: i ector of ngi eer APPROVED AS TO FORM: City Attorney DEVELOPER: BRITTANY KNOLLS LAND LIMITED LIABILITY COMPANY, a Colorado limited liability company By: Colorado Land Source, Ltd., a Colorado corporation, Manager By: James`R. mdCory, President ATTEST: By: _— Shar on Timmermann, Secretary t ASSIGNMENT MSP INVESTMENT CO., a Colorado General Partnership ("Assignor"), does hereby assign to HOME FEDERAL SAVINGS AND LOAN ASSOCIATION OF THE ROCKIES ("Home Federal") its following rights and interest, subject to the terms and con- ditions set: forth herein, to -wit: 1. Assignment. Assignor does hereby assign to Home Federal all of Assignor's right, title and interest in and to any reimbursements, rebates, or other payments payable to Assignor as a result of any "agreements" related to the installation, construction, or improvement done by the Assignor, or any of its agents, subcontractors, or other third parities working through or under Assignor (all hereinafter sometimes referred to as "agents"), related to any utilities, including, but not limited to, gas, electri- city, telephone, water, or sanitation, and all systems related thereto, and all curbs, gutters, sidewalks, and streets. Such "agreements" shall include, but not be limited to, those entered into between Assignor, and any of its agents, and any of the following, to -wit: City of Fort Collins, Public Service Company of Colorado, Mountain States Telephone and Telegraph Company, and any other corporation, municipality, quasi -municipality, or other entity with (all hereinafter sometimes referred to as "such entity") related to improvements on or adjacent to any of the properties described on Exhibit A attached hereto (subject property), and which provides for payment to Assignor or its agents for over improvement, oversizing, or other work or installation for which Assignor or its agents may receive a rebate, reim- bursement, or similar payment (hereinafter sometimes referred to generally as reimbursements). Notwithstanding that this is a present Assignment, Assignor and Home Federal agree that Assignor may continue to collect all such reimbursements, so long as Assignor is not in default under the deed of trust which secures the "subject property", or any other security agreements, loan documents or loan agreement between Assignor and Home Federal related to "subject property". Upon Home Federal determining that such a default exists, Home Federal may so notify any of the above -referenced entities and upon deli- very of such notification, all reimbursements otherwise due from any of such entities to Assignor pursuant to "agreements" as described above, shall be payable directly to Home Federal. 2. Obligations Secured. This Assignment is given to secure the payment of the Note executed by Assignor and payable to Home Federal which is secured by the above - referenced deed of trust, and all other obligations referenced in that certain Loan Agreement dated this same , -1- i t date between Assignor and Home Federal which relates to the acquisition and development of subject property. 3. Representations. Assignor states, warrants, and represents as follows: a. Assignor has not executed any prior assignment of any of Assignor's rights being conveyed by this Assignment; b. Assignor has not done anything which might pre- vent Home Federal from or limit Home Federal in the exercise of any of Home Federal's rights or remedies under this Assignment; C. All agreements between Assignor and the entities referenced in Paragraph 1 above have been submitted to Home Federal. d. Assignor is not in default under any of such agreements, and the same are binding and enforceable according to the terms contained therein, and no payments have been made except as provided thereunder, nor have the same been altered or amended except as indicated thereon; 4. Remedies. If Assignor shall default under any of the obligations referenced in Paragraph 2 above, Home Federal may exercise any or all of the following rights and remedies in its sole discretion. The failure to exercise any such right or remedy will not be construed as a waiver or release of the right or remedy: a. Home Federal may give notice of such default to any or all of the entities referenced in Paragraph 1 above, and collect all payments which may otherwise be due Assignor under any of the referenced agreements. b. Home Federal may, either in its name or in the name of Assignor institute, prosecute, settle, or compromise any summary or legal proceedings for the "reimbursements". 5. Indemnity and Authority. n�-oY -w-ill---�demnif� :� - Feral - aga i rest and- old --Herne -F-ederal—tr&r-mi-es-s---from, - and -a 1 —1-i a� r�-rty�o -az--damage -min i�i� T aft-�tray pa-r-t iees�anci � s-�o�-�bj-e ereof and n as}� p g 3e f-r�-an-y- aiid----a-14-- ----- la ms and --demands w�aa �oever- relattd t ex_a Xcep-t_.Lor- a-ny e1 }m-e dema --a is3ne� €€ext-em-act of v .... , kw,a4, Assignor further indemnifies and holds harmless any entity which makes payments to Home Federal pursuant to Home Federal giving such entity the notice provided for in Paragraph 4a above from any claims Assignor may otherwise -2- �n �, I have in regard to such payments. Upon Home Federal giving such notice and presenting a copy of this Assignment to any "such entity", such entity has Assignor's authorization and instruction to thereafter make such "reimbursement" payments to Home Federal. 6. Miscellaneous. a. Upon full payment and complete performance of the obligations referenced in Paragraph 2 above, as evi- denced by a release of the deed of trust securing the pro- perty described on Exhibit A, this Assignment will become void. b. This Assignment will inure to the benefit of, and bind, the parties, their successors and transferees, is specifically enforceable, is construed under the laws of Colorado, and may be modified only in writing. Dated this g day of — 1988. Attest: STATE OF COLORADO ss. COUNTY OF LARIMER ASSIGNO' MSP INVESTMENT CO., a Colorado General Partnershi By •Marc S ."�P k w' tt&4 Partner Marcus B. Palkowits'h, Individually HOME FEDERAL SAVINGS AND LOAN ASSOCIATIJDN OF THE ROCKIES Y: Its The foregoin instrument was acknowledged before me this day of' 6 _, 1988, by Marcus S. Palkowitsh, Individually aLx3d (as Partner of MSP Investment Co., a Colorado General Partnership. My commission expires: Notary./Public -3- i STATE OF COLORADO ) ss. COUNTY OF LARIMER ) Svbscribed and sworn to before me —this day of 988, by as L`,�c_✓�; t f Home Federal Savings and Loan Association of the Rockies. My commission expires: Notary; ,'Publi c QE Exhibit A Attached to and a part of Assignment dated July 8, 1988 for MSP Investment Co., a Colorado General_ Partnership. PARCEL 1: LOTS 26 THRU 40. INCLUSIVE, BLOCK 1; AND LOTS 3 THRU 7. INCLUSIVE, BLOCK 3; AND LOTS 1 ThRU 6, INCLUSIVE, BLOCK 5, BRITTANY KNOLLS P.U.D. FILING 1, CITY OF FORT COLLINS, COUNTY OF PLAT 1tiEREU1 RtCURUED LARIMER. STATE OF COLORADO, ACCORDING TO THE APRIL 27, 1987 AT RECEPTION NO. 87023710. PARCEL 2: A TRACT OF LAND, LOCATED IN THE SOUTHEAST QUARTER OF sECfION 12, TOWNSHIP 6 NORTH, RANGE 69 WEST OF THE 6TH P.M., LAkIMFk COUNTY, COLORADO, MORE PARTICUULARLY DESCRIBED AS FOLLOWS: CONSIDERING THE EAST LINE OF THE SAID SOUTHEAST QUARTER OF SECTION 12 AS BEARING NORTH 00 DEGREES 00' 00" EAST AND WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 12: THENCE NORTH 00 DEGREES 00' 00" EAST ALONG THE EAST LINE OF SAID SLCIIUN 12 '517.25 FEET TO THE EASTERLY PROLONGATION OF THE SOUTHERLY RIGHT OF WAY OF THE PROPOSED BRITTANY STREET AND TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION: THENCE ALONG THE SAID PROPOSED SOUTHERLY RIGHT OF WAY THE FOLLOWING FIVE (5) COURSES AND DISTANCES; (1) NORTH 90 DEGREES 00' 00" WEST 101.72 FEET TO A PUINI' OF CURVATURE; (2), 151.84 FEET ALONG A CURVE TO THE RIGHT HAVING is RAIJIU`.,' OF 2%4.00 FEET, A CENTRAL ANGLE OF 31 DEGREES 45' UO A CHORD LENufh OF 149.90 FEET AND A CHORD BEARING OF NORTH 74 DEGREES 07' 30" WEST TO A POINT OF TANGENCY; (3) NORTH 58 DEGREES 15' 00" WEST 176.UU FEET TO A POINT OF CURVATURE; (4) 725.94 FEET ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 346.00 FEET, A CENTRAL ANGLE OF 120 DEGREES 12' 40", A CHORD LLNGTH OF 599.93 FEET, AND A CHORD BEARING OF SOUTH 61 DEGREES 38' 40" WLjI TO A POINT OF TANGENCY; (5) SOUTH 01 DEGREES 32' 20" WEST 341.00 FEET TO THE SOUfli LINE OF THE SAID SOUTHEAST QUARTER OF SECTION 12; THENCE ALONG THE SAID SOUTH LINE OF THE SOUTHEAST QUAk*1ER, NORTH 88 DEGREES 27' 40" WEST 510.94 FEET; THENCE LEAVING, 1HE :,AID SUUfH LINE OF THE SOUTHEAST QUARTER, NORTH 00 DEGREES OO' UU" EAST 2042.92 FEET TO fHE BOUNDARY OF THAT CERTAIN TRACT OF LAND AS DESCRIBED IN BOOK 2106 AT PAGE 10411 RECORDS OF THE CLERK AND RECORDER OF THE SAID LARIMER COUNTY; THENCE ALONG THE SAID BOUNDARY SOUTH 81 DEGREES 33' 54" EAST 656.25 FEET; THENCE CONTINUING ALONG THE SAIL, uUUNDARY, SOUTH 87 DEGREES 34' 09" EAST 258.UO FEET TO THE BOUiotiRY OF THAT CERTAIN TRACT OF LAND AS DESCRIBED IN BOOK 2239 AT PAL, 669 RECORDS OF THE SAID CLERK AND kL1-'Uk0LN- 111LNCE ALONh I11L ; MIU BOUNDARY SOUTH 00 DEGREES 00' GO" WLSf t:14.37 FEET TO Ifit BOUNDARY OF THAT CERTAIN TRACT OF LAND AS DESCRIBED IN 000K 2239 AT PAGE 671 RECORDS OF THE SAID CLERK AND RECORDER; THENCE ALONG THE SAID BOUNDARY, SOUTH 90 DEGREES 00' 00" EAST ti3U.UU FEET TO THE SAID EAST LINE OF THE SOUTHEAST QUARTER; THENCE ALONG THE SAID EAST LINE, SOUTH 00 DEGREES 00' OU" WEST 911.25 FEC1 10 THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION OF THE ABOVE DESCRIBED PARCEL THAT IS MORE PARTICULARLY DESCRIBED AS "BRITTANY KNULL:i P.U.D- FILING 1, CITY 27 F1987COLLAT RECtP1"'IONRDING 870'23TO THE PLAT 11iERCOF RECORDED APRIL PARCEL 3: LOTS 41 1HRU 43, BLOCK 1; LOTS 1 AND 2 AND LOTS 8 THRU 14. BLOCK 3; LOTS 1 THRU 9, BLOCK 4; AND LOTS 7 THRU 9, BLOCK 5. BRITTANY KNOLLS P.U.D. FILING 1,ACCORDING l0U THETPLATLIH KtUUURECORDED LARIAL-R, STATE OF COLORADO, APRIL 27. 1987 AT RECEPTION NO. 87023710.