HomeMy WebLinkAboutTIMBERS PLANNED DEVELOPMENT - Filed DA-DEVELOPMENT AGREEMENT - 2002-07-16DEVELOPMENT AGREEMENT FOR THE TIMBERS PLANNED
DEVELOPMENT (#OI-S1756)
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This Agreement is made thisGL day of 1214 2002 between the Board of
County Commissioners of Larimer County, Color do "County'); and PARAGON
POINT PARTNERS LIMITED PARTNERSHIP, a Colorado Limited Partnership
("Developer').
WHEREAS, Developer is the owner of certain real property situated in Larimer
County, Colorado, described on Exhibit A attached hereto and incorporated herein
("Property"): and
WHEREAS, County has approved the Petition for Rezoning and the Preliminary Plat
of The 'limbers Planned Development by Findings and Resolution dated October 16,
2001, and recorded October 17, 2001. at Reception No. 2001093525 of the Latimer
County records: and
WHEREAS, Developer has submitted to County for approval, execution and
recordation a final plat for The Timbers Planned Development Final Plat; and
WHEREAS, the Property is presently approved to be developed in one phase using a
defined set of improvements; and
WHEREAS, County has considered the final plat, the proposed development and
improvements to the Property, and the requirements to be imposed upon the Property by
reason of the proposed development and improvement of the Property included in the
final plat; and
WHEREAS. County is willing to approve. execute and accept for recordation the
final plat upon the agreement of Developer to the matters described in this Agreement;
and
WHEREAS, County and Developer mutually acknowledge and agree that the matters
described in this Agreement are reasonable conditions and requirements to be imposed by
County in connection with its approval_ execution and acceptance for recordation of the
final plat, and that such matters are necessary to protect, promote and enhance the general
welfare.
NOW. THEREFORE, in consideration of the premises, the mutual covenants herein
contained and the approval. execution and acceptance of the final plat for recordation by
the County_ the parties agree as follows.
1. Title of the Development.
The title of the development is The Timbers Planned Development.
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particular improvement to any other improvement or category of
improvements.
Developer shall post warranty collateral with the County in a foinm
acceptable to the County. The warranty collateral shall be no less than
15% of the costs of the improvements for which collateral must be posted
and shall remain in effect during the entire two-year warranty collateral
period.
Developer shall correct, replace or repair any improvement discovered to be
defective or faulty during the warranty period. Any required correction, repair or
replacement shall be commenced within thirty (30) days of County's written
notice advising Developer of the necessary work.
In the event Developer fails to make the necessary corrections, repairs, or
replacements:
a. County may use the warranty collateral to do the work to the extent of
available funds. Nothing herein shall be construed to require County to
complete the work in the event the warranty collateral funds are
insufficient to finance the work.
b. County and/or any Property owner may commence an action against
Developer for specific performance or for money damages for costs of the
necessary work; and/or pursue any other legal or equitable action against
Developer.
c. County may withhold building permits.
The above remedies shall be cumulative and the election to pursue one shall not
preclude the use of another.
24. Inspections.
No construction shall commence without written approval of the County Engineer
following a pre -construction meeting scheduled by the County Engineer.
Developer shall supply to County a schedule of construction and shall notify the
County Engineer, City Engineering and the City Stormwater Department of
commencement of construction.
On -site inspections of installations of improvements shall be performed by the
City's Engineering Construction Inspection Staff. Inspection reports shall be
available for review by County upon request. County shall have the authority to
halt construction of any portion of the construction that may be found to be out of
compliance with the approved plans and specifications for the development.
Developer shall cause such work to be corrected and brought into compliance
within the time frame set by the County Engineer, and if not so corrected, the
County Engineer may declare Developer in default of this Agreement.
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a. No construction shall commence without written approval of the County
Development Review Construction Inspector in the form of a
Development Construction Permit. The issuance of this permit shall
follow a pre -construction meeting scheduled by the County Development
Review Construction Inspector. Developer shall supply to County
Development Review Construction Inspector a schedule of construction
and shall notify the County Development Review Construction Inspector
of commencement of construction. The Developer agrees to pay the fees
associated with the Development Construction Permit.
25. Issuance of Building Permits.
For purposes of this Agreement. "Building Permit" shall mean any permit to
begin work to construct a building on the Property, including permits for footings
and foundations. Unless othenvise described, Developer acknowledges and
agrees that building permits for individual lots shall only be issued as follows:
a. Footing and Foundation Permits will be issued when all of the following
items are complete:
1. Over lot grading is complete and the County Engineer has
inspected and approved the grading.
2. Final grading of drainage easements and the installation of the
storm water drainage facilities is complete and the County
Engineer has inspected and approved the grading and installation.
3. Construction of the roadway sub -grade and installation of the
aggregate base course. or other all-weather surface, for the
roadway serving the project is completed and inspected and
approved by the County Engineer.
4. Acceptable density tests for the sub -grade and utility trenches have
been submitted to and approved by the County Engineer.
5. Street signs are properly installed at all intersections and have been
inspected and approved by the County Engineer.
b. Full Building Permits will be issued when all of the following items are
complete:
1. Roadway surfacing at least through aggregate base course or plant
mix bituminous base application is complete and the County
Engineer has inspected and approved the surfacing.
2. Density tests for the applied material have been submitted to and
approved by the County Engineer.
3. Public water and sewer systems are completely constructed and
evidence of acceptance by the appropriate water, sewer and fire
protection providers has been submitted to the County Engineer
4. Driveway culverts have been installed and the County Engineer
has inspected and approved the culverts.
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County may restrict the issuance of building permits or Certificates of Occupancy
if construction is not in compliance with an approved schedule, to be agreed upon
by Developer and County.
Developer acknowledges that some or all of the lots in the development include
building envelopes. All structures must be located within the approved building
envelopes as shown on the approved final plat. Developer agrees that prior to
approval of any footings and foundation installation, Developer or the lot owner
or applicant must submit a written certification by a Colorado Licensed Surveyor
verifying that the structure is located within the building envelope. Such
certification shall also be submitted in instances where the structure requires a
County Setback and Use Pennit rather than a building permit.
Developer further agrees that prior to approval of any footings and foundation
installation, Developer or the lot owner or applicant must submit a written
certification by a Colorado Licensed Surveyor verifying that the structure is
located at an elevation that is consistent with all approved drainage plans. Such
certification shall also be submitted in instances where the structure requires a
County Setback and Use Permit rather than a building permit.
26. Fees
Developer shall pay to County at building permit issuance County and Regional
Transportation Capital Expansion Fees, Community and Regional Park Fees In
Lieu of Dedication. School Fees, and DrainaEe Fees. The fees shall be the
amount in effect at the time of building permit issuance. Developer
acknowledges and agrees that such fees are roughly proportional to impacts
created by this development. Developer shall also pay any other applicable
legislatively formulated and duly adopted fees which are in effect and required to
be paid at the time of building permit issuance provided such fees are imposed on
a broad class of property owners.
27. Maintenance of Improvements, Common Areas, and Residual Land
a. During the two-year warranty period, Developer shall be solely
responsible to maintain, repair and replace any and all improvements in
the development (including but not limited to roads, bridges, curbs,
gutters, sidewalks, drainage facilities, sewer systems, utilities,
landscaping) and common areas. Upon expiration of the two-year
warranty period, the property owners, either individually or through a
homeowner's association, shall be solely responsible for such
maintenance, repairs and replacements. County shall have no liability or
obligation for such maintenance, repairs or replacements.
b. Any homeowner's association shall set and collect dues and assessments
from Property owners in an amount sufficient to carry out its maintenance
responsibilities. (Note: the Declaration of Covenants should provide for
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a specific dollar amount assessment ivith annual adjustments for inflation
to be held in a separately designated fund for roads and landscaping
maintenance, repairs and replacements. The Covenants should further
provide that the annual assessments for this purpose can not be decreased
or revoked without the written approval of the Board of County
Connnissioners or the governmental authority having jurisdiction over the
property. The County Engineering Department may be consulted for
advice about the nature and,fr-equency of various road repairs or
replacements, estimates of costs, and the adequacy of the assessment to
provide.for./uture maintenance.)
C. Not Applicable.
In the event the County detennines that the responsible entity/person(s)
has failed to adequately maintain the improvements, common areas or
Residual Land, County shall so notify the responsible entity/person(s) in
writing. Such notice shall specifically state the manner in which the
entity/person(s) has failed to maintain the improvements, common areas or
Residual Land and the steps that must be taken to come into compliance.
The notice shall include a demand that such deficiencies in maintenance
be cured within thirty (30) day s of the date of the notice and shall also
state the time and place of a hearing before the Board of County
Commissioners, which shall be held within fifteen (1 5) days of the notice.
At such hearing, the County may modify the terms of its original notice as to the
deficiencies, and may give an extension of time within which they shall be cured.
If the deficiencies set forth in the original notice, or in the modifications thereof.
are not cured \e ithin said thirty days or any extension thereof, the County, in order
to preserve the taxable values of the property contained within the development,
and to prevent the improvements. common areas, or Residual Land from
becoming a public nuisance and public liability, may undertake to maintain the
same for a period of at least one year.
Before expiration of the maintenance period, the County, upon its initiative or
upon the written request of the responsible entity/person(s) may call a public
hearing before the Board of County Commissioners upon notice to such
responsible entity/person(s) and to the Property owners. At the hearing, the
responsible entity/person(s) shall show cause why maintenance by the County
shall not, at the election of the Count% continue for an additional set period. If the
Board determines that the responsible entity/person(s) is ready and able to
maintain the improvements, common areas, or Residual Land, the County shall
cease to maintain the improvements, common areas, or Residual Land. 1f the
Board determines the responsible entity/person(s) is not ready and able to
maintain the improvements, common areas, or Residual Land, the County may, in
its discretion, continue such maintenance for a succeeding set period subject to a
similar hearing and determination prior to the expiration of such period.
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The cost of such maintenance by the County and the costs of enforcement
incurred by the County, including but not limited to monitoring, inspections, and
legal fees, shall be paid the owners of the Property that have a right to enjoyment
or use of the improvements involved or the Residual Land. Any unpaid costs
shall become a lien upon said properties. The County shall file a notice of such
lien in the office of the County Clerk and recorder upon the properties affected by
such lien and shall certify such unpaid costs to the County Treasurer for
collection, enforcement and remittance in the manner and with the same priority
as provided by law for the collection, enforcement and remittance of general
property taxes.
28. Declaration of Covenants.
Developer certifies that Sections 4 and 14 of Article VIII and Section 1(A) of
Article XIV of the Declaration of Covenants for the Property provide for a regular
maintenance program and adequate funding for maintenance, repairs and
replacements of improvements (including roads, bridges, curbs, gutters,
sidewalks, drainage facilities, landscaping) and common areas and means of
enforcement; continuous safety inspections and immediate follow-up maintenance
to correct unsafe conditions; the receiving and processing of complaints.
Developer agrees that the homeowner's association shall not be dissolved without
the written consent of the Board of County Commissioners of Latimer County
and certify that the Bylaws and Section 3 of Article XVI of the Declaration of
Covenants includes this prohibition.
In the event the ordinance annexing the Property is not effective by July 26, 2002,
then the Developer. within (30) thirty days of the recordation of the subdivision
plat for the Property, shall record the Declaration of Covenants for the Property
and the authorized representative of the homeowner's association for the Property
shall execute this Agreement.
29. Liability/Indemnity.
County's review and approval of any plans, reports, or drawings or County's
inspection and approval of any improvements constructed by Developer under
this Agreement does not constitute a representation, warranty, or guarantee by
County that such improvements are free from defects or will operate adequately
for the purpose intended. Current and successor owners of the Property assume
responsibility for all maintenance, repairs, or replacements of improvements,
including, but not limited to roads, bridges, curbs, gutters, sidewalks, drainage
facilities, sewer systems, utilities, landscaping, common areas and Residual Land.
Developer agrees to indemnify and hold County, its officers, employees and
assigns harmless from and against all claims. costs and liabilities of every kind
and nature, for injury or damage received or sustained by any person or entity in
connection with, or on account of the performance, condition or quality of work at
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the development of the Property pursuant to this Agreement. Developer further
agrees to aid and defend County in the event County is named as a defendant in
an action concerning the performance, condition or quality of work pursuant to
this Agreement, except where such suit is brought by Developer against County.
Developer acknowledges it is not an agent or employee of County.
Nothing in this Agreement shall be construed as a waiver, either express or
implied, of the immunities, rights, benefits, and protections afforded County
under the Colorado Governmental Immunity Act.
30. Default/Remedies/Enforcement.
Upon default of the provisions of this Agreement, the parties agree that this
Agreement may be specifically enforced by any party or any party may proceed in
any other manner authorized by law for a breach of contract. In addition, the
County may:
a. Demand payment under the letter of credit and use the proceeds to
complete the improvements specified herein with or without public letting
as it may deem advisable. In the event the collateral is insufficient to
complete the improvements, County shall be entitled to payment of such
excess in any way permitted by law. Nothing herein shall be construed as
requiring County to complete all of the improvements specified herein in
the event the proceeds of such letter of credit are insufficient to finance all
the improvements.
b. Issue a written notice to Developer to appear and show cause why the
subdivision shall not be vacated. Giving notice shall be deemed complete
upon mailing same certified mail to the address stated herein. The notice
shall designate the date. time and place the Board of County
Commissioners will conduct a hearing to consider vacation of the plat.
The hearing shall be not less than thirty (30) nor more than sixty (60) days
from the date of the notice.
C. Proceed in the manner described in the Latimer County Land Use Code or
State Statutes for a violation of the State or local subdivision regulations.
d. Withhold building permits.
The remedies set forth herein are cumulative and the election to use one shall not
preclude use of another.
In the event of default by Developer, Developer agrees to pay all expenses
incurred by County occasioned by said default, including, but not limited to, a
reasonable attorney's fees in enforcing this Agreement.
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31. Applicability of Other Regulations and Conditions.
This Agreement and the terms, conditions and covenants contained herein shall be
deemed to complement and shall be in addition to the conditions and requirement
of the Latimer County Land Use Code and Supplementary Regulations for the
Fossil Creek Area Reservoir Plan, the Intergovernmental Agreement between the
County and the City and other applicable laws, rules and regulations,
notwithstanding anything contained or referred to the contrary.
32. Periodic Reviews.
County may conduct periodic reviews of the status of the development as
appropriate to monitor and enforce the terms of this Agreement.
33. Binding Effect of Agreement.
This Agreement is intended to provide for the orderly construction and
maintenance of structures and other improvements on the Property. This
Agreement shall be a servitude running with the Property. Those owners of the
Property or any portion of the Property who obtain title subsequent to the date of
this Agreement, their heirs, successors, assigns or transferees, and persons holding
under Developer shall comply with the terms hereof.
If the Property becomes included within the boundaries of any city or town, the
County's rights under this Agreement shall automatically pass to the governing
body of the city or town and the successor town or city may enforce this
Agreement against such subsequent owners and those holding under them.
In the event Developer transfers title to the Property and is thereby divested of all
equitable and legal interest in the Property, Developer shall be released from
liability under this Agreement with respect to any breach of the terms and
conditions of this Agreement occurring after the date of any such transfer of
interest. In such event, the succeeding Property owner(s) shall be bound by the
terms of this Agreement.
34. Notations and Recordation.
Developer shall note on the final subdivision plat, as a plat note, and in a
disclosure statement the existence of this Agreement by reference to Reception
Number and Film Number as recorded by the Larimer County Clerk and
Recorder. Developer shall note on the final subdivision plat and in the disclosure
notice the entity/person(s) responsible for maintenance of the improvements,
landscaping, common areas and Residual Land. Developer shall file for recording
with the Larimer County Clerk and Recorder, this Agreement and any deeds
and/or other documents required as part of the final plat approval of this
development by the Board of County Commissioners.
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35. Subordination.
Developer shall cause all lenders, lienholders or other persons or entities who
have any interest in the Property to subordinate their interest to this Agreement.
36. Conflict with Other Documents.
In the event of a conflict between the terms or conditions of this Agreement and
the Declaration of Covenants, Plat Notes, Disclosure Notice, or Findings and
Resolution, this Agreement shall control.
37. Severability.
If any part, terms, or provision of this Agreement is held by a court to be illegal or
otherwise unenforceable, such illegality or unenforceability will not affect the
validity of any other part, terms, or provision and the rights of the parties will be
construed as if the part, terns, or provision was never part of this Agreement.
38. Amendment.
At any time prior to the date the Developer has relinquished control of the
Property to the association, this Agreement may be amended by mutual consent of
the County and the Developer. Thereafter this Agreement may be amended by
mutual consent of the County and 66.6 % of the Property owners based on one (1)
vote per dwelling unit. Any amendment shall be in writing.
39. Controlling Law.
This Agreement shall be governed by the laws of the State of Colorado.
40. Annexation of Property to the City.
In the event that the Property is annexed to the City, the following special
conditions shall apply to development of the Property, together with other
applicable terms and conditions of this Agreement:
40.1 Subject to County Approvals.
The annexation of the Property shall be expressly subject to this Development
Agreement and the final plat and construction plans for The Timber Planned
Development approved by the County.
40.2 Public Improvements.
Provided the ordinance annexing the Property is effective no later than August 30,
2002, as presently scheduled, the following shall apply:
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(1) No installation of public improvements shall be commenced nor
building permits issued for the Property prior to such annexation; and
(2) The installation of all public improvements shall be in accordance
with the County -approved final plans, construction drawings,
subdivision plat and this Agreement. The City shall impose no
additional standards or requirements in connection with such
improvements, but the Developer shall comply with all applicable
City procedural and fee requirements for such improvements.
including, but not limited to, obtaining a development construction
permit, posting of collateral, provision of applicable construction
warranties and guarantees inspections, issuance of building permits
and certificates of occupancy and payment of all applicable City fees.
40.3 Storm Drainage.
a. All on -site and off -site storm drainage improvements, as shown on the
approved construction drawings shall be completed by the Developer in
accordance with said drawings prior to the issuance of any certificate of
occupancy for the Property. Completion of improvements shall include the
certification by a professional engineer licensed in Colorado that the drainage
facilities which serve this Property have been constructed in conformance with
said drawings. Said certification shall be submitted to the City at least two weeks
prior to the date of issuance of any certificate of occupancy for the Property.
b. The Developer shall be responsible for maintaining the structural integrity and
operational functions of all drainage facilities throughout the build -out of this
Property. If at anytime following certification (as required pursuant to
subparagraph a above) of said drainage facilities and during the construction of
structures within this Property the City deems that said drainage facilities no
longer comply with the approved drawings, the Developer shall bring such
facilities back up to the standards and specifications as shown on the approved
drawings. Failure to maintain the structural integrity and operational function of
said drainage facilities following certification shall result in the withholding of the
issuance of additional building permits and/or certificates of occupancy until such
drainage facilities are repaired to the operational function and structural integrity
which was approved by the City.
c. The Developer agrees to provide and maintain erosion control improvements as
shown on the approved construction drawings to stabilize all over -lot grading in
and adjacent to this Property. The Developer shall also be required to post a
security deposit in the amount of $66.085.50 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion control measures
shown on such drawings. Said security deposit(s) shall be made in accordance
with the criteria set forth in the City's Storm Drainage Design Criteria and
Construction Standards (Criteria). If. at any time, the Developer fails to abide by
the provisions of the approved construction drawings, the City may enter upon the
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Property for the purpose of making such improvements and undertaking such
activities as may be necessary to ensure that the provisions of said drawings are
properly enforced. The City may apply such portion of the security deposit(s) 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 said drawings. In addition, the City shall have the option to withhold
building permits and certificates of occupancy, as it deems necessary, in order to
ensure that the Developer installs and maintains the erosion control measures
throughout the build -out of this Property.
d. It is important that all lots be -raded to drain in the configuration shown on the
approved construction drawings. For this reason the following additional
requirements shall be followed for building on all Lots.
Prior to the issuance of a certificate of occupancy for each of lot(s) the Developer
shall pro%ide the City with certification that the lot has been uraded correctly
(including the grading of any minor swales, if applicable); the lot corner
elevations specified on the approved construction drawings are correct and in
accordance with such drawings; the minimum elevation for any opening to such
building are at or above the elevation required on said drawings; and the
minimum floor elevation for all buildings constructed on said lot has been
completed in accordance with said drawings. 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.
e. The Developer shall obtain the City's prior approval of any changes from the
approved construction drawings in grade elevations and/or storm drainage facility
configuration that occur as a result of the development of lots_ whether by the
Developer or other parties. The City reserves the right to withhold the issuance of
building permits and certificates of occupancy for this Property until the City has
approved such changes as being acceptable for the safe and efficient delivery of
storm drainage water.
f. The Developer is obligated to maintain all on -site storm drainage facilities not
accepted for maintenance by the City and all off -site storm drainage facilities not
accepted for maintenance by the City serving this Property and outside of the
public rights -of -way.
40.4 Construction Phasing.
The Developer anticipates that it will submit phased construction drawings to the
City after the effective date of the annexation of the Property to allow for the
development of the property in three phases. If approved by the City in
accordance with its requirements for the same, the Developer intends to phase the
infrastructure improvements in accordance with such approved phasing plan.
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2. Description of Development and Uses.
The Development is a subdivision of approximately 24 acres into 5 nmlti-family
lots and 4 out -lots to accommodate hventy-two (22) eight-plex condominium
buildings with a total of 176 units and 176 detached garages. The subdivision
also includes a community association clubhouse building with an outdoor pool
and areas of active open space for the benefit of the residents.
3. Residual Land Restrictions.
Not applicable.
4. Conditions of Approval.
Developer acknowledges that the following condition listed in the Findings and
Resolution for initial approval of this development remain to be completed and/or
continues to apply: "Condition 11. The setbacks for off-street parking spaces
shall be 20 feet for the parking area off the south side of the Owens Avenue turn
about, and 30 feet for all other parking area within the development." Developer
shall comply with this condition of approval.
In addition to the above -referenced conditions, since the Property is located
within the Fossil Creek Reservoir area, it is subject to the County's Fossil Creek
Reservoir Transferable Density Units Program adopted in October of 1998
("TDU Program").
The TDU Program requires that a transferable dwelling unit ("TDU"), be
provided at a rate of one for each one and one-half residential dwelling units.
However, Latimer County would like to encourage the creation of affordable
housing units. Therefore, a dwelling unit is exempt from the TDU Program if, at
the time of closing. it falls within the County -prescribed guideline for affordable
housing described in the County's affordable housing policy dated September 18,
2000. If a dwelling unit is "affordable housing" as defined in such policy, then the
dwelling unit shall be classified as affordable and shall. not require the applicable
TDUs. For verification of such affordability, a real estate title company shall
complete an Affordable Housing Certificate for each qualifying dwelling unit in a
form satisfactory to the County. To be counted against the TDUs required for the
project. such certificates shall be delivered to the County's TDU Administrator.
Prior to the time of recordation of the final plat for The Timbers Planned
Development, the Developer shall escrow with the County eighty (80) TDUs
acceptable to the County which the parties acknowledge would satisfy the TDU
requirement for one hundred twenty (120) dwelling units. The Developer
anticipates that most of the 176 dwelling units will meet County affordable
housing guidelines and that Affordable Housing Certificates for such dwelling
units will be submitted to the County by the Developer. Prior to the issuance of
the ninety-sixth certificate of occupancy for a dwelling unit on the Property, the
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40.5 Signage.
All signs on the Property, including any entrance features, shall comply with the
applicable provisions of the City's sign code.
40.6 Reimbursements.
In accordance with the final plans and subdivision plat for the Property approved
by the County, the Developer will be installing certain roadway improvements to
Timberline Road and Zephyr Road, as well as storm drainage improvements,
which are either oversized street improvements or. with respect to storm drainage
improvements, which benefit third party properties. The Developer will not
receive any fee credits or waivers from the City for the installation of such
improvements, but will be eligible to apply for and receive reimbursements from
the City's street oversizing fund and for third party repay agreements with the
City in accordance with the City's regulations and requirements in connection
with the same.
It is understood that the improvements that are to be constructed in the public
right-of-way are "Public 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 ($30,000.00).
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 ($50.000.00), 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 "Public
Improvements" shall mean either (1) existing improvements of the City that are to
be modified or reconstructed, or (2) any improvements funded in whole or in part
by the City.
40.7 Landscape Escrow.
The Developer shall provide to the City its irrevocable letter of credit at such time
and in such form as the City requires for City developments to insure completion
of those landscaping improvements shown on the final plans approved by the
County for the Property.
40.8 Zephyr Road Escrow.
The right of way for Zephyr Road shall be dedicated on the subdivision plat to the
eastern boundary of the Property, but the Developer shall only be obligated to
install Zephyr Road, as shown on the final plans for The Timbers Planned
Development, to a point approximately ten feet (10') short of such boundary. The
Developer shall escrow with the City prior to the issuance of the first building
permit the amount of $2,570.83, which is 115% of the estimate provided by
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Developer's engineer necessary to complete the construction of Zephyr Road to
the eastern boundary of the Property.
40.9 Transferable Development Units.
The City shall not issue more than 96 certificates of occupancy until the
provisions of Paragraph 4 of this Agreement are met and the City has been
notified in writing by the County of the same.
The City shall enforce the building permit and certificate of occupancy
restrictions of Paragraph 4 of this Agreement. With the exception of the City's
obligation to enforce such restrictions, the County shall continue to administer the
application of the TDU Program in connection with the Property.
40.10 Applicability of Other Provisions.
All other provisions of this Agreement to the extent such provisions remain
applicable and to the extent they are not conflicting or inconsistent with the
provisions of this Paragraph 40. shall continue to apply to the development of the
Property after the effective date of its annexation to the City. Provisions of this
Agreement which relate to enforcement of obligations of the homeowner's
association or enforcement of the Declaration of Covenants shall specifically not
be applicable if the Property is annexed to the City. The City shall be a third -
party beneficiary to this Agreement and. after annexation of the Property, shall
have the right to enforce the terms hereof.
LARIMER COUNTY:
Board of County Commissioners of
Larimer County, Colorado
s
Chair
ATTEST:
eputy Clerk to the Board
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STATE OF COLORADO)
COUNTY OF LARIMER)
i C 1
The foregoing instrument was acknowledged before mthis ��� day of
l_l. 2002 by as Chair of the
Board of County C mmissioners of Larimer County, Colorado.
t
Notary Public
Witness my hand and official seal w (AR -. V '\
UPI
My Commission Expires:
:o
�U•' Q
S AU13 .� OQ ?
TqT ... Gps
OWNER(S)/DEVELOPER: F OF
PARAGON POINT PARTNERS LIMITED PARTNERSHIP, a Colorado limited
partnership
By Trustar, Inc., a Colorado corporation
as General Partner
By: //ze�
Byrom Collins.. President
STATE OF COLORADO)
COUNTY OF LARIMER)
Acknowledged before me this ( 6 day of 2002 by Byron Collins
as President of Trustar. Inc., general partner of Patagon Voint Partners Limited
Partnership.
Witness my hand and official seal.
My Commission expires: / /0 6 �
Notary Public
,0�?
.o
LCPP-127
N9�'A(ig'PV 01/16/02
�OF Co-- Page 22
': 4
The City by signing below acknowledges its acceptance of and agreement with the
annexation provisions of Paragraph 40 of this Agreement.
THE CITY OF FORT COLLINS, COLORADO,
a municipal corporation
By: 4.2 I. 1:
John . Fischbach, City Manager
ATTEST:
B� : 14�� , °
Wanda Kracijek, City lei
APPROVED AS TO FORM:
By:
P c man, Deputy City Attorney
APPROVED:
�,,rCity Engineer
LCPP-127
01/16/02
Page 23
EXHIBIT A
Legal Description
of the Property
Tract B, Poudre School District and Paragon Point Partners LTD Minor Land
Division, being a portion of the S 2 of the Northwest 1/4 of Section 8, Township 6
North, Range 68 West of the 61h P.M., County of Larimer, State of Colorado.
EXHIBIT B
Off -site Improvements
l . Approximately 350 feet of Timberline Road street improvements as designed
and depicted in the ATimberline Road Extension Street Improvement Plans@
submitted by David Evans and Associates. The approximate limits of said
improvements are bounded on the south by the existing Westchase PUD and
on the north by the Poudre School District.
2. Approximately 95 feet of l0-inch reinforced concrete pipe (RCP) and one 48-
inch diameter manhole with grated inlet.
:;XIitC2I!
rage 1 ol'3
Public Improvements Opinion of Costs
�IIR �Yll.7:,W�� I�i �144. �1 iN..���'��il�i::ifip'J if•4M1f 1��' 1K�11. 11�
20.2.1
troslon a urnrul
Stockpile Topsoil
CY
$1.55
19,643.00
$30,446.65
Straw Bales
EA
$200.00
10.00
S2.000.00
Inlet Protection
EA
$250.00
18.00
S4.500.00
Silt Fonco
LF
$2.15
2.935.00
$6,310.25
Sedhnent Trap,EA
0.00
50.00
Vehicle Tracking Pad
EA
$800.00
1.00
$800.00
cee ncr, on
20.2.2 StroetI
ul l u..+ln.alw
Clearing and Grubbi LumpSum
LS
$0.00
Removal of SIrUG110s and Obstructions
EA
$0.00
Sutuprado Preparation
SY
$1.002ij
$22,342.00
Excavation
CY
$1.65
$17,943,75
Borrow
CY
$2.30
S34,090.60
Fill
CY
$1.65
6,389.00
$10.541.85
Rock Excavation
CY
0.00
$0.00
Fillor Matorial
CY
0.00
$0.00
Lime Treatment
SY
0.00
$0.00
As halt Patchiri
TONS
0.00
S0.00
Asphalt Pavement wi01 Base Course 3"W
SY
$9.50
17.589.00
S167,109.92
Asphalt Pavement with Base Course 4-AU'
SY
$13.00
13.542.00
$176,046,00
Concreto Pavement
SY-IN
0.00
$0.00
GCotextita
SY
0.00
S0.00
Ri rt
CY
$55.00
25.09
$1,380,00
SurvvaMonuments
EA
$125.00
2.00
$250.00
Adjust Manholes
EA
$395.00
31.00
$12,245.00
Adjust Valve,
EA
$198.00
35.00
$6,930.00
Adjust Monuments
FA
0.00
$0.00
Modian Cover Material Concrete
SY
o.00
$0.00
m�ea rr�r� in
20.2.3 Structures
Bridge Structure
EA
0.00
$0.00
Culverts
EA
0.00
$0.00
Guardrail
LF
0-00
$0.00
Railing Podestrian
LF
O.OD
$0.00
Railing Traffic
LF
0.00
$0.00
Headwalls
EA
0.00
S0.00
QUO IV I�
20.2.4 P,
Sidewalk Grading
SF
$0.25
84,271.00
$21.067,75
4-Inch Thick Sidewalk
LS
$239,950.00
1.00
$239.950.00
6-Inch Thick Sidewalk
LF
$28.00
350,00
$9.800.00
Directional Curb Ramp
SY
$1,300.00
6.00
$7,800.00
Comer Curb Ramp
SY
$1,100.00
Ho
$8.800.00
Mid Block Ramp
SY
$700,00
13.00
$9,100.00
Concrete Bikeway
SY
0,00
$0.00
Sidewalk Chaso
EA
$200.00
17.00
$3,400,00
Curb and Gutter Gradinq
416,464.80
Curt andGulter - Type 11
LF
$10.50
5.168.00
$54,264.00
Curb and Gutter - Typel
LF
$10.00
5,510.00
$56,100,00
Glue•down Curb
LF
0-00
S0.0011
Quolwim1
20.2.5
e)(HIi' IT (i
20.2.6
20,2.7
20.2.8
Page 2 of 3
Public Improvements Opinion of Costs
iratfic sl nets, SI ning Ana aa'lm
EA
$175.00
10.00
$1.750-00
Standard StreetlSlo Si n-
EA
$175.00
5.00
$875.00
Standard Sin Posts
175
5175.00
3.00
$525-00
SlaralardR ulato Si ns
E4
$200.00
2.00
S4C0.00
Standard Speed Umlt Si nS
LF
$027
24.500.00
$6.615.00
Latex Paint 4 inches
LF
$0.31
7,000.00
52,170.00
Latex Paint 8 inches
0.00
$0.00
Latex Paint (12 inches
LF
0.00
$0,00
Latex Paint 18 inchos
LF
LF
$1.50
70.00
$105.00
Latex Paint 124 inches
LF
0.00
$0.00
E xy Pavement Ma k n 4 inches
0.00
$0.00
E Pavement Markin 8 inches
LF
0,00
$0,00
E x Pavement Markin 12 inches
LF
0.00
$0.00
E Pavement Markin 18 inches
LF
$0,00
E Pavement Markin 24tnches
LF
0.00
0.00
$0.00
Prefornlntl Ta for Symbols & Crosswalks
LF
Proformad Thermoplastic
SF
$5.00
100.00
$500.00
Tralfc Si oats
E
0.00
50.00
_
Q19 qao oa
SUOIU TAL
AL
ytornt urama a racmuea
$0.00
GradingSY
LS
$51,910.00
1.00
$51,910-00
Inlets
LS
$35.600.00
1.00
$35.600.00
Manholes
LF
$25.50
424,00
$10,812.00
15" RCP
LF
528.00
874.00
$24,472.00
18" RCP
LF
$31.00
107.60
$3.317.00
21" RCP
LF
$35.00
345.00
$12.075.00
24" RCP
LF
$41.00
389.00
$15,949.00
27" RCP
LF
L $51.00
624.00
$31,824,00
30" RCP
LF
$62.00
80A0
54,960.00
36" RCP !
LF
$77.00
400.00
530,800.00
42" RCP
48" RCP
LF
$95.00
1,056.00
5100,320.00
54" RCP
LF
5135.00
40,00
$5.400.00
29"X45" RCP
LF
193.00
256,00
2
24'X38" RCP
F
0
220.
,006.00
8,600
36" HOPE
LF
546.00
60.00
52,760.00
Tdckle Channcl 36"
LF
513.75
1,148.00
$24,035.00
Cutlet St uctum orifice late
EA
0.00
$0.00
caoF vm nn
LYCI'J[a]1:1J
20.2.9 R
emoviae anu nv u
SY
0.00
$0.00
Asphalt Patching
SY
0.00
$0.00
Concrete Sidewalk R & R
Concrete Curbwalk R & R
LF
0.00
$0.00
Milling
SY
0.00
$0.00
As halt Removal
SY
0.001
50.00
RE nn
SUtltu IPL
Page 3 of 3
Public Improvements Opinion of Costs
20.2.10 Construction SurveyinglStaking
20.2.11 Material Tasting
20.2.12 Record Drawings
20.2.13 Construction Management
LandscapinglOther
Water Una Construction
S6war Line Construction
J,;� p i�'�-Ja yy-J-'n �1..i j.�pp i� �I �'Y''.✓^� d.
":
LS
545,000.00
1.00
545,000.00
LS
$9,000.00
1.00
$9,000.00
LS
$5,000.001
1.001
55,000.00
1.5
118.200.00
1.1)
58,200.00
LS
$485,000.00
1.00
$485.000.00
LS
I $2727896.50
1.00
$272,896.50
LS
5129,859.50
1.00
$129,859.50
SUBTOTAL: 52,294,180.57
15%Collataral: $344,127.09
GRAND TOTAL: $2,638,307.66
Developer shall have submitted to the County either the required number of
Affordable Housing Certificates, TDUs or a combination of both to meet the
County's TDU requirement for 176 dwelling units. In the event the Developer
has not met the aforesaid condition, it shall not be allowed to receive any further
building permits or certificates of occupancy for the Property until this
requirement has been met. In the event that Developer has met such condition
and TDUs in excess of the County's requirement for 176 dwelling units remain in
escrow, the County shall promptly release to the Developer such excess TDUs.
S. Mineral Interests.
The Property is subject to certain mineral interests.
6. Water Rights and Water Interests.
Not applicable.
7. Improvements.
Developer shall design, construct and install at its own expense all infrastructure
improvements including but not limited to streets, curbs, gutters, sidewalks.
utilities, drainage facilities, water and sewer facilities, flood protection devices
and other improvements shown on the final plat or in the supporting documents in
accordance with the plans and specifications, as prepared by Developer's licensed
engineers and professionals, and approved by County.
Developer shall also construct and install at its own expense all off -site
improvements described in Exhibit B attached hereto in accordance with the plans
and specifications, as prepared by Developer's licensed engineers and
professionals, and approved by County after review and comment by the City of
Port Collins, Colorado ("City .).
All construction shall be performed in a good and competent manner and in
accordance with applicable County standards. rules and regulations governing
such construction.
8. Completion Date.
All improvements required to be constructed or installed for development of the
Property, and all other matters agreed to be performed shall be installed,
constructed or performed by Developer on or before three years from the date of
recordation of this Development Agreement.
9. Water Supply.
Developer shall obtain water service from The Fort Collins -Loveland Water
District ("Water District"). Developer shall install the water system
improvements necessary to service the Property in the manner provided on the
LCPP-127
01/16/02
Page 3
approved utility plans. The water supply system shall be subject to inspection by
the Water District during construction. Developer shall submit a letter of
acceptance from the Water District for the maintenance and responsibility of all
water supply improvements prior to the completion date as stated in Section 8.
10. Sewage.
Developer shall obtain sewer service from The South Fort Collins Sanitation
District ("Sanitation District"). All sewer lines required for the Property shall be
constructed in accordance with the requirements of the Sanitation District and as
reflected on approved utility plans. The sewer mains and supply service lines
shall be subject to inspection by the Sanitation District during construction.
Developer shall submit a letter of acceptance from the Sanitation District for
maintenance and responsibility of all sewer improvements prior to the completion
date as stated in Section 8.
11. Trenches.
Trenches for sanitary sewer and water, storm sewer lines, and utilities shall be
compacted in accordance with specifications defined by the Larimer County
Urban Area Street Standards or the ,vater. sewer, and utility service provider.
Developer will test trench compaction while work is in progress. A sufficient
number of tests as required by applicable agencies shall be made to insure
adequate compaction. The test results shall be certified by the soils laboratory
and maintained on file at the site by Developer for review by County personnel.
In the event adequate compaction testing is not provided, the governmental entity
having jurisdiction may order such testing at Developer's expense. No release of
the final construction collateral or release of completed improvements shall be
made until successful compaction tests are received. Compaction tests must be
received and approved by the Engineering Department before the acceptance of
any utilities.
12. Roads.
12.1 Installation of Roadway Improvements.
Developer shall construct all road improvements and install all traffic safety
devices as shown on the final plat and in the supporting documents for the
Development in accordance with the plans and specifications, as prepared by
Developer's licensed engineers and professionals, and approved by the County
Engineer. All street layout and geometric design shall be in accordance with
applicable County standards and as portrayed on the approved constructions
drawings. Developer shall obtain a Development Construction Permit and any
required access or utility permits prior to the start of construction of any road
improvements, either public or private.
Developer shall submit the following items to request the final release of
completed road improvements:
LCPP-127
01/16/02
Page 4
a. A signed and stamped statement must be submitted from a professional
civil engineer registered in Colorado that the road improvements have
been completed in substantial compliance with approved plans and the
Larimer County Road Manual or the Urban Area Street Standards
(whichever is applicable), and that the documenting engineer or his
representative have made regular outside on -site inspections during the
course of construction and the field plans used are the same as those
approved by the County. Copies of all on -site inspection reports
performed by the documenting engineer or his representative must be
submitted as well.
b. Test results must be submitted for all phases of the development as per the
Larimer County Road Manual or the Urban Area Street Standards
(whichever is applicable) for minimum materials sampling, testing and
inspection and as required by the County Engineer.
One (1) copy of the "as built' road improvements plans must be submitted
at the time Developer requests a release of collateral. All deviations from
approved plans must be listed and shown on the "as built' plans.
No release of the final construction collateral shall be made until the above listed
items have been submitted. All items listed above must be received and approved
by the Engineering Department before the completion date.
13. Storm Drainage Improvements
Developer shall construct all storm drainage improvements as shown on the Final
Plat and in the supporting documents for the development, in accordance with the
plans and specifications, as prepared by Developer's licensed engineers and
professionals, and approved by the County Engineer. All design shall be in
accordance with applicable County standards and as portrayed on the approved
construction drawings. Developer shall obtain a Development Construction
Permit and any required access or utility permits prior to the start of construction
of any improvements, either public or private.
Developer shall submit the following items to request the final release of
completed storm drainage improvements:
a. A signed and stamped statement must be submitted from a professional
civil engineer registered in Colorado that the storm drainage
improvements have been completed in substantial compliance with
approved plans and the Larimer County Road Manual or the Urban Area
Street Standards (whichever is applicable), as well as the Larimer County
Storm Water Management Manual_ and that the documenting engineer or
his representative have made regular outside on -site inspections during the
course of construction and the field plans used are the same as those
approved by the County. Copies of all on -site inspection reports
LCPP-127
O1/16/02
Page 5
performed by the documenting engineer or his representative must be
submitted as well.
b. Test results must be submitted for all phases of the development as per the
Latimer County Road Manual or the Urban Area Street Standards
(whichever is applicable) and the Larimer County Storm Water
Management Manual for minimum materials sampling, testing and
inspection and as required by the County Engineer.
C. One (1) copy of the "as built" storm drainage improvements plans must be
submitted at the time Developer requests a release of collateral. All
deviations from approved plans must be listed and shown on the "as built'
plans.
All items listed above must be received and approved by the Engineering
Department before the completion date. Ten (10) working days prior to the
issuance of any certificate of occupancy the portions of the drainage improvement
system that are immediately adjacent to or a part of each lot, including lot grading
required to be constructed on any lot, shall be certified by an engineer licensed in
Colorado confirming that said improvements are completed and operational in
accordance with the final development plan documents. The certification shall
confirm that any construction, landscaping, fencing, or other improvements have
not materially interfered with the system's functionality and adequacy.
Furthermore, the certification shall identify the lot corner elevations and the top of
lowest opening elevations of any improvements as well as indicate the direction
of drainage away from improvements. swales, drain lines or any other elements
that may facilitate drainage. The certification shall be submitted to time County
Engineer. No Certificate of Occupancy shall be approved unless certification is
approved by the County Engineer.
Developer and all subsequent owners shall be prohibited from constructing or
storing anything in any drainage easement or in any way disrupting or changing
the drainage pattern as initially designed and installed on the Property per the
County approved storm water drainage plan. Developer certifies that this
prohibition has also been included in Article X, Section 6 of the Declaration of
Covenants for the Property.
14. Public Service Natural Gas
Developer shall obtain natural gas service from Public Service Company of
Colorado. Developer shall construct improvements as required by Public Service
Company of Colorado to supply the Property with natural gas utility service.
Improvements shall be in accordance with Public Service of Colorado
specifications. In no event, however, shall County be responsible for the
inspection and/or acceptance of natural gas utility improvements to the Property.
LCPP-127
O1/16/02
Page 6
15. Electric.
Developer shall construct all improvements for electric service required by
Poudre Valley REA and in accordance with Poudre Valley REA's specifications.
Upon annexation of the Property to the City, the parties contemplate that the City
and Poudre Valley REA will arrange a changeover of electric source to the City.
16. Telephone and Cable.
Developer anticipates obtaining telephone and communication utilities from
Qwest and AT&T Broadband ("Communication Providers"). Developer shall
construct improvements as required by the Communication Providers to supply
the Property with adequate telephone and communication utilities. Improvements
shall be made in accordance with the Communication Providers specifications. In
no event. however, shall County be responsible for the inspection and/or
acceptance of telephone and/or communications cable improvements to the
Property.
17. "As Built" Plans.
Developer shall provide to County one (1) copy of "as built" plans prepared by a
professional engineer for all drainage structures and facilities, road improvements,
permanent erosion control facilities, and other site improvements constructed in
connection with the development of the Property. All testing and quality control
reports shall also be provided to County and must be submitted prior to final
County approval. Developer shall provide to the particular service provider "as
built" plans all water facilities, sewer facilities, and utilities. All as-builts must be
received and approved by the Engineering Department and/or the particular
service provider before the completion date.
18. Landscaping Improvements.
Developer shall install the landscaping improvements as required in the Final
Landscape Plans for the Development, including but not limited to plant
materials. Completion of improvements shall be certified stating that the
improvements have been constructed in substantial conformance with the final
development plan documents. Building permits and/or certificates of occupancy
shall not be subject to completion of landscaping improvements; however, the
final construction collateral for landscaping improvements will be released only
upon the receipt of the certification of completion and inspection and approval of
the landscaping by the County.
19. Erosion Control.
In order to protect the soil resource, Developer shall construct erosion control
facilities at the commencement of construction. The construction and
establishment of acceptable erosion control facilities shall be assured and installed
by Developer and shall be included in the Public hnprovements Opinion of Costs
LCPP-127
O1/16/02
Page 7
attached hereto as Exhibit C. Erosion control facilities must be installed and
approved and the as-builts must be submitted and approved by the County before
the completion date.
20. Fire Protection.
Water service for the Property is being provided by The Water District. The
system will include fire hydrants and will be tested to meet Poudre Fire Authority
criteria at the time of installation. The system will meet or exceed a minimum
criteria of 1500 -pin at the fire hydrants xn ith a residual pressure of 20 psi.
21. Addressing.
Developer agrees that individual addressing of the lots in the development is an
important factor for identification and safety during construction. Developer shall
install street signs and temporary address signage prior to the issuance of any
building permit.
22. Public Improvements Opinion of Costs and Guarantee of Improvements.
Construction Collateral. The Public Improvements Opinion of Costs, as prepared
by a professional civil engineer licensed in the State of Colorado, detailing the
costs of completing the improvements required in this Agreement are shown on
Exhibit C.
Since the Property is presently in the process of being annexed to the City, the
Developer shall post with the City its irrevocable letters of credit at such time and
in the forms and amounts required by the City for City developments. hi the
event the Property is not annexed by the City effective July 26, 2002, then the
Developer shall furnish collateral to the County for the completion of the
improvements in the form of an irrevocable letter of credit from a state or
federally licensed financial institution on a form approved by the County. The
irrevocable letter of credit given to the County shall provide at least the following:
It. The amount of the letter of credit is equal to at least 115% of the estimated
cost of the improvements;
b. The letter of credit is payable to County upon demand if Developer fails to
perform the obligations specified in this Agreement and County has
notified the issuer of the letter of credit of the failure to perform;
At all times the unreleased portion of the letter of credit is equal to at least
115% of the estimated costs of the uncompleted portions of the required
improvements. In no event shall any amount of the letter of credit be
released or reduced without the express written consent of Latimer
County;
LCPP-127
01 / 16/02
Page 8
Fifteen percent (15 %) of the total amount will remain available to County
until released by County; and
e. The date of expiration will be no earlier than 60 days after the date for
completion of the improvements specified in this Agreement, but in nc
event may the letter of credit expire until County has received 60 days
written notice of the pending expiration. The notice must be sent by
certified mail to the County Planning Director.
Landscape Collateral. In the event that annexation of the Property to the City is
effective by July 26. 2002, Developer shall not need to post any security with the
County for landscaping improvements but instead shall post with the City its
irrevocable letter of credit at such time and in such form and amount as the City
requires for City developments. If such annexation is not effective by July 26,
2002, the following provisions shall apply:
The installation and warranty for landscaping shall be separate and apart from the
Public Improvements Opinion of Costs attached as Exhibit C. Until landscape
improvements are completed. the Developer shall provide collateral to the County
in the form of an irrevocable letter of credit from a state or federally licensed
financial institution on a form approved by County. Upon completion of
installation of the landscaping and County inspection and approval, Developer
shall provide warranty collateral to the County in the form of an irrevocable letter
of credit from a state or federally licensed financial institution on a form approved
by County equal to 25% of the "grow' items only to ensure their establishment.
The warranty collateral shall be effective for one year. The warranty
memorandum shall include this landscape warranty requirement.
23. Developer Guarantees and Warranty Collateral.
Developer warrants and guarantees that all improvements required to be
constructed pursuant to this Agreement shall be free from defects in materials
and/or workmanship and shall properly function for the purpose intended for a
period of two years (the warranty period). The two-year warranty period for all
improvements shall commence on the date of final county approval of the last
improvement constructed.
Within thirty (30) days following County's approval of the last improvement
constructed:
a. County and Developer shall execute a Warranty Memorandum. The
Warranty Memorandum shall specify (i) the date on which the two-year
warranty period commences, (ii) the type of warranty collateral to be
posted by Developer, and (iii) the improvements which arc subject to the
warranty collateral. The Warranty Memorandum may allocate a dollar
amount to each improvement. Developer acknowledges and agrees,
however, that the County may apply the warranty collateral allocated to a
LCPP-127
O1/16/02
Page 9