HomeMy WebLinkAboutPROVINCETOWNE PUD SECOND - Filed DA-DEVELOPMENT AGREEMENT - 2004-06-24DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this of day of 0 i, y-
2001, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; and KB HOME Colorado Inc., a Colorado
Corporation, hereinafter referred to as the "Developer."
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property"
or "Development") and legally described as follows, to wit:
Provincetowne P.U.D. Filing No. 2, located in Section 13, Township 6 North,
Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of
Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to the
City all plats, plans (including utility plans), reports and other documents required for the
approval of a final plan according to the City's development application submittal
requirements master list (the final development plan documents) copies of which are on
file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and will
further require the installation of certain improvements primarily of benefit to the lands to
be developed and not to the City of Fort Collins as a whole, and
WHEREAS, the City has approved the final development plan documents submitted
by the Developer subject to certain requirements and conditions, which involve the
installation of and construction of utilities and other municipal improvements in connection
with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
General Conditions
A. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement, "development
activities" shall include, but not be limited to, the following: (1) the actual construction of
improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or
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3. No vehicular access from Candlewood Drive, Beverly Glen Lane,
Colony Hills Lane, Ivy Glenn Way, Benson Lane, Brittany Drive, or Autumn Ridge Drive
shall be allowed for lots 142 through 215. All vehicular access for these lots shall be
provided from the public or private alley(s) adjacent to the lot(s).
4. No vehicular access from Autumn Ridge Drive shall be allowed for lots
216, 232, 233, 238, 248, and 261. All vehicular access for these lots shall be provided
from the local street or private drive adjacent to the lot(s).
5. No vehicular access from Fairbourne Way shall be allowed for lots
261 and 262. All vehicular access for these lots shall be provided from Heather Glen
Lane.
6. No vehicular access from Province Road shall be allowed for lots 266,
256, 255, 267, 326, 327, 331, 310, and 309. All vehicular access for these lots shall be
provided from the local street or private drive adjacent to the lot(s).
7. In accordance with the sight distance easement variance that was
granted for the intersection of Colony Hills Lane and Benson Lane no parking will be
allowed on the north side of Benson Lane from Autumn Ridge Drive to Colony Hills Lane.
8. Construction of Phase 1A shall occur prior to the construction of any
other Phase in the development.
9. The following indicates which Phase(s) need to be completed prior to
the issuance of any building permits within the desired Phase. All work in the Phase in
which the building permit is being requested as well as the other Phase(s) indicated shall
be completed in accordance with Paragraph LC of this agreement.
To obtain permits for:
the following Phase(s) must be complete
Phase 1A ..........................1A
Phase I ..........................1A,
1B
Phase 1C..........................1A,
1B, 1C
Phase 1D..........................1A,
1B, 1D
Phase 1E ..........................1A,
1B, 1D, 1E
Phase 2A ..........................1
A, 2A
Phase 2B ..........................1A,
2A, 2B
Phase 2C ..........................1A,
2A, 2B, 2C
Phase 3A ..........................1A,
1 B, 3A
Phase 3B ..........................1A,
1 B, 3A, 3B
Phase 3C ..........................1A,
1 B, 1 D, 3C
Phase 4.............................1
A, 1 B, 1 D, 2C, 4
Phase 5.............................1A,
1B, 1D, 2C, 4, 5
10. The Developer shall file with the Larimer County Clerk and Recorder
such legal documents as are necessary
to establish as a covenant running with the land
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the unique street frontage maintenance responsibilities that exist for Lots 261 and 262
(because said lots have multiple adjacent street frontages and, in accordance with City
Code, the owners of said lots are responsible for the maintenance of all street frontage(s)
adjacent to each lot). Said documents shall reference the location of the specific
restrictions shown on the plat, and shall be filed prior to the sale of any lots affected by
such restrictions and responsibilities and a copy of such documents shall be delivered to
the City prior to any such sale.
11. The improvements to Trilby Road as shown on the approved utility
plans shall be completed prior to the issuance of more than a total of 40 building permits
within Phases 1A, 1 B, 1C, 1 D, 1 E, 3A, 3B, 3C, 4 and 5.
12. The off -site waterline construction shown as a part of Phase 5 shall
not start until all easements necessary for the construction of said line have been obtained.
13. The Developer is responsible for all costs for the initial installation of
traffic signing and striping for this Development related to the Development's local street
operations. In addition the Developer is responsible for all costs for traffic signing and
striping related to directing traffic access to and from the Development (e.g., all signing and
striping for a right turn lane into the Development site).
14. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 29-13 and 29-14 of the Transitional Land Use
Regulations of the City.
E. Ground Water, Subdrains and Water Rights
1. The City shall not be responsible for, and the Developer, for itself and its
successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any
damages or injuries sustained in the Development as a result of ground water seepage or
flooding, structural damage, or other damage unless such damages or injuries are
proximately caused by the City's negligent operation or maintenance of its storm drainage
facilities in the Development. However, nothing herein shall be deemed a waiver by the
City of its immunities, defenses, and limitations to liability under the Colorado
Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any other law.
2. If the development includes a subdrain system, any such subdrain
system, whether located within private property or within public property such as street
rights -of -way or utility or other easements, shall not be owned, operated, maintained,
repaired or reconstructed by the City and it is agreed that all ownership, operation,
maintenance, repair and reconstruction obligations shall be those of the Developer or the
Developer's successor(s) in interest. Such subdrain system is likely to be located both
upon private and public property and, to the extent that it is located on public property, all
maintenance, operation, repair or reconstruction shall be conducted in such a manner that
such public property shall not be damaged, or if damaged, shall, upon completion of any
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such project, be repaired in accordance with then existing City standards. The City shall
not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby
agrees to indemnify and hold harmless the City against any damages or injuries sustained
in the development as the result of groundwater seepage or flooding, structural damage
or other damage resulting from failure of any such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold
harmless the City against any damages or injuries to water rights caused, directly or
indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
Developer could apply, and the Developer shall have the right to defend any lawsuit based
on such claim and to settle any such claim provided the Developer must obtain a complete
discharge of all City liability through such settlement. Failure of the City to give notice of
any such claim to the Developer within ninety (90) days after the City first receives notice
of such claim under the Colorado Governmental Immunity Act for the same, shall cause
the forgoing indemnities and hold harmless agreements by the Developer to not apply to
such claim and such failure shall constitute a release of the foregoing indemnities and hold
harmless agreements as to such claim.
F. Natural Resources
1. The City has granted to the Developer, subject to the execution of this
Agreement and recordation of a notice of the same, a non-exclusive easement (the
"Permanent Storm Drainage Easement and Covenants") for the construction and ongoing
maintenance and repair of certain storm drainage improvements shown on the final
development plan documents for the Development (and more particularly described as the
drainage channeil from the vicinity of Lot 267 to Pond 308, the drainage channel starting
at Eden Ridge Court to the confluence with the previously mentioned channel, the channel
starting south of Phase 2C running in a southesterly direction and then paralleling Lemay
Avenue until the confluence of this channel with Pond #308, and Pond #308 under and
across a portion of a natural area property owned by the City) in order to provide storm
drainage outfall and detention for the Development. In addition, the City has also granted
to Developer a Temporary Construction Easement on natural area property for Developer's
construction and restoration activities (the "Temporary Construction Easement") associated
with the City -Site Storm Drainage Improvements. The Permanent Storm Drainage
Easement and Covenants, and Temporary Construction Easement, are attached hereto
as Exhibit "D", Exhibit "E" and Exhibit "F", respectively (together referred to as the "City
Easements"), and are incorporated herein by this reference.
As provided in the City Easements, the Developer's construction activities will be on and
in a natural area that has been classified by the City as a restorative natural area, which
the City anticipates restoring to its prior condition as a sensitive natural area. In order to
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protect the resources within the Natural Area, Developer has been required in the
Temporary Construction Easement to comply with specified resource protection standards
in connection with any activities on the Improved Area and the Natural Area in general.
These requirements are generally set forth in paragraph 1.3 of the Temporary Construction
Easement (Exhibit "D"), and include the submission of various plans, permits and
construction schedules to the Natural Resources Department for review, the conduct of
surveys for Preble's jumping mouse, Ute ladies' tresses, prairie dogs, nesting burrowing
owls, red foxes, coyotes, and badgers, as well as the scheduling of construction activities
to avoid the disturbance of large birds of prey present in the vicinity of the construction
area, the Swainson's hawk(s) nesting in the area, and other specified wildlife determined
through the required surveys to be present in the vicinity of the planned construction
activities. In order to assure that the required protective measures, including without
limitation the full restoration of disturbed areas (subject to ongoing maintenance and
replacement obligations), are adequately and promptly completed, the City -Site Storm
Drainage Improvements shall be completed and certified, and all construction, resource
protection and restoration -related requirements in the Temporary Construction Easement
shall be completed to the reasonable satisfaction of the City's Natural Resources
Department, as documented by a written verification of such satisfaction by the Director
of that Department, prior to any of the following: 1) the issuance of any building permits
for any single family residences in the Development, except for those units designated as
"model homes" as shown on the phasing plan or 2) the issuance of any certificate of
occupancy for any such "model home." In the event that the Developer fails to complete
ongoing obligations to maintain and replace plant materials in a reasonable manner and
timeframe, or to maintain and repair the City -Site Storm Drainage Improvements in
accordance with the Permanent Storm Drainage Easement and Covenants, the Natural
Resources Department shall at that time be entitled to place a hold on the issuance of any
further building permits in the Development until the Developer satisfactorily addresses the
condition at issue.
2. Until such time as the City Easements are obtained by the Developer or
an alternative outfall system is designed, approved and any easements needed for such
a system are obtained, no building permits for the development except for those in Phase
1A shall be issued. No certificates of occupancy shall be issued until all the drainage
improvements for Phase 1A are complete and certified in accordance with paragraphs
II.C.1 and II. F.1 above.
3. No work shall occur within the boundaries of the City owned Natural Area
until such time as the City Easements have been obtained by the Developer. Any work,
including work on the development site, that is done prior to obtaining these City
Easements is at the Developers risk. The Developer agrees to defend, indemnify and hold
harmless the City against any claims that may be brought against the City and agrees to
pay all the City's attorney fees and litigation costs arising as a result of the commencement
of such work.
G. Hazards and Emergency Access
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1. No combustible material will be allowed on the site until a permanent
water system is installed by the Developer and approved by the City.
2. Prior to beginning any building construction, and throughout the build -
out of this Development, the Developer shall provide and maintain at all times an
accessway to said building or buildings. Such accessway shall be adequate to handle any
emergency vehicles or equipment, and the accessway shall be kept open during all phases
of construction. Such accessway shall be constructed to an unobstructed width of at least
20 feet with 4 inches of aggregate base course material compacted according to city
standards and with an 80 foot diameter turnaround at the building end of said accessway.
The turnaround is not required if an exit point is provided at the end of the accessway.
Prior to the construction of said accessway, a plan for the accessway shall be submitted
to and approved by the Poudre Fire Authority and City Engineer. (Three plan sets shall be
submitted to the Poudre Fire Authority at 102 Remington Street for review and processing.)
If such accessway is at any time deemed inadequate by the Poudre Fire Authority or City
Engineer, the accessway shall be promptly brought into compliance and until such time
that the accessway is brought into compliance, the City and/or the Poudre Fire Authority
may issue a stop work order for all or part of the Development.
H. Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain a Footing and Foundation permit for the buildings
within Phases 1B, 1C, 1D and 1E upon the installation of all underground water, and
sanitary sewer facilities, and an emergency accessway for the Phase in which the permit
is being requested. Facilities shall include but not be limited to all mains, lines, services,
fire hydrants and appurtenances for the Phase as shown on the final development plan
documents.
Development Construction Permit
1. The Developer shall apply for and obtain a Development Construction
Permit for this Development, in accordance with Division 2.6 of the Land Use Code (or
Section 29-12 of the Transitional Land Use Regulations, if applicable), prior to the
Developer commencing construction. The Developer shall pay the required fees for
said Permit and construction inspection, and post security to guarantee completion of
the public improvements required for this Development, prior to issuance of the
Development Construction Permit.
J. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance guarantee and
a five-year repair guarantee covering all errors or omissions in the design and/or
construction of the public improvements required for this Development, which guarantees
shall run concurrently and shall commence upon the date of completion of the public
improvements and acceptance thereof by the City. More specific elements of these
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guarantees are noted in Exhibit "C." Security for the maintenance guarantee and the repair
guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code, or Section 29-14
of the Transitional Land Use Regulations, as applicable. Notwithstanding the provisions
of paragraphs III (1) and (J) of this Agreement to the contrary, the obligations of the
Developer pursuant to this paragraph and Exhibit "C" may not be assigned or transferred
to any other person or entity unless the warranted improvements are completed by, and
a letter of acceptance of the warranted improvements is received from the City by, such
other person or entity.
Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and
shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of waste
material, rubbish, or building materials caused by the Developer's operation, or the
activities of individual builders and/or subcontractors; shall remove such rubbish as often
as necessary, but no less than daily and, at the completion of the work, shall remove all
such waste materials, rubbish, tools, construction equipment, machinery, and surplus
materials from the public right-of-way. The Developer further agrees to maintain the
finished street surfaces so that they are free from dirt caused by the Developer's operation
or as a result of building activity. Any excessive accumulation of dirt and/or construction
materials shall be considered sufficient cause for the City to withhold building permits
and/or certificates of occupancy until the problem is corrected to the satisfaction of the City
Engineer. If the Developer fails to adequately clean such streets within two (2) days after
receipt of written notice, the City may have the streets cleaned at the Developer's expense
and the Developer shall be responsible for prompt payment of all such costs. The
Developer also agrees to require all contractors within the Development to keep the public
right-of-way clean and free from accumulation of dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing operations
when winds are of sufficient velocity to create blowing dust which, in the inspector's
opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements or
obligations may be shown on the final development plan documents, or any documents
executed in the future that are required by the City for the approval of an amendment to
a development plan, and the City may withhold (or to the extent permitted by law, revoke)
such building peermits and certificates of occupancy as it deems necessary to ensure
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performance in accordance with the terms of this Development Agreement. The
processing and "routing for approval" of the various development plan documents may
result in certain of said documents carrying dates of approval and/or execution that are
later than the date of execution of this Development Agreement or the Memorandum Of
Agreement (if any) recorded to give record notice of this Agreement. The developer
hereby waives any right to object to any such discrepancy in dates.
E. Nothing herein contained shall be construed as a waiver of any requirements
of the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable)
and the Developer agrees to comply with all requirements of the same.
F. In the event the City waives any breach of this Agreement, no such waiver
shall be held or construed to be a waiver of any subsequent breach hereof.
G. All financial obligations of the City arising under this Agreement that are
payable after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins City
Council, in its discretion.
H. This Agreement shall run with the Property and shall be binding upon and
inure to the benefit of the parties hereto, their respective personal representatives, heirs,
successors, grantees and assigns. It is agreed that all improvements required pursuant
to this Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest within the meaning of
this paragraph shall specifically include, but not be limited to, a conveyance or assignment
of any portion of the Developer's legal or equitable interest in the Property, as well as any
assignment of the Developer's rights to develop the Property under the terms and
conditions of this Agreement.
I. In the event the Developer transfers title to the Property and is thereby
divested of all equitable and legal interest in the Property, the 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 shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material
element hereof. In the event that either party shall fail to perform according to the terms
of this Agreement, such party may be declared in default. In the event that a party has
been declared in default hereof, such defaulting party shall be given written notice
specifying such default and shall be allowed a period of ten (10) days within which to cure
said default. In the event the default remains uncorrected, the party declaring default may
elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as
continuing and require specific performance or; (c) avail itself of any other remedy at law
or equity.
K. In the event of the default of any of the provisions hereof by either party
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which shall require the party not in default to commence legal or equitable action against
said defaulting party, the defaulting party shall be liable to the non -defaulting party for the
non -defaulting party's reasonable attorney's fees and costs incurred by reason of the
default. Nothing herein shall be construed to prevent or interfere with the City's rights and
remedies specified in Paragraph III.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement shall
not be construed as or deemed to be an agreement for the benefit of any third party or
parties, and no third party or parties shall have any right of action hereunder for any cause
whatsoever.
M. It is expressly understood and agreed by and between the parties hereto that
this Agreement shall be governed by and its terms construed under the laws of the State
of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set forth
below; and such notice or other communication shall be deemed given when so hand -
delivered or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
If to the Developer: Jim Pearson
8401 E. Bellview Ave
Denver, Co 80237
With a copy to: Teresa England
8401 E. Belleview Ave
Denver, Co 80237
Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees
or assigns, wishes to change the person, entity or address to which notices under this
Agreement are to be sent as provided above, such party shall do so by giving the other
parties to this Agreement written notice of such change.
O. When used in this Agreement, words of the masculine gender shall include
the feminine and neuter gender, and when the sentence so indicates, words of the neuter
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gender shall refer to any gender, and words In the singular shall include the plural and vice
versa. This Agreement shall be construed according to Its fair meaning, and as if prepared
by all parties hereto, and shall be deemed to be and contain the entire understanding and
agreement between the parties hereto pertaining to the matters addressed in this
Agreement There shall be deemed to be no other terms, conditions, promises,
understandings, statements, representations, expressed or implied, concerning this
Agreement, unless set forth In wrlting signed by all of the parties hereto. Further,
paragraph headings used herein are for convenience of reference and shall in no way
define, limit, or prescribe the scrape or Intent of any provision under this Agreement.
P. This Development is subject to that certain 'Provincetowne Affordable
Housing Plan", dated April 10. 2001, which document shall be filed with the Latimer County
Clerk and Recorder In accordance with paragraph 2(b) of said'Provincetawne Affordable
Housing Plan" and copies of which Document is attached hereto as Exhibit'G'.
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
City M agar
A EST:
City Clerk U
APPROVED AS TO CONTENT:
i Engineer
A7P RO iA$TO FORM:
Deputy City Attomey
DEVELOPER`.
KB HOME -Col redo Inc., A Color do orpo tivn
B: r
DENNIS WEL H, President,
ATTEST:
By:
MARK I Vice Pr ent, Land
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EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
3. Schedule of street improvements to be installed out of sequence.
Not Applicable
4. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
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appearance of the Property caused by, or on behalf of, the Developer with the intent to
construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and
facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on
the approved utility plans and in full compliance with the standards and specifications of
the City on file in the office of the City Engineer at the time of approval of the utility plans
relating to the specific utility, subject to a three (3) year time limitation from the date of
execution of this Agreement. In the event that the Developer commences or performs any
construction pursuant hereto after the passage of three (3) years from the date of
execution of this agreement, the Developer shall resubmit the utility plans to the City
Engineer for reexamination. The City may then require the Developer to comply with the
approved standards and specifications of the City on file in the office of the City Engineer
at the time of the resubmittal.
C. No building permit for the construction of any structure within the Property
shall be issued by the City until the public water lines and stubs to each lot, fire hydrants,
sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and
pavement with at least the base course completed) serving such structure have been
completed and accepted by the City. No building permits shall be issued for any structure
located in excess of six hundred and sixty feet (660') from a single point of access, unless
the structures contain sprinkler systems that are approved by the Poudre Fire Authority.
D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets
described on Exhibit 'A," attached hereto, shall be installed within the time and/or
sequence required on Exhibit "A." If the City Engineer has determined that any water lines,
sanitary sewer lines, storm drainage facilities and/or streets are required to provide service
or access to other areas of the City, those facilities shall be shown on the utility plans and
shall be installed by the Developer within the time as established under "Special
Conditions" in this document.
E. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this Development as shown on the approved final development
plan documents and other approved documents pertaining to this Development on file with
the City.
F. Street improvements shall not be installed until all utility lines to be placed
therein have been completely installed, including all individual lot service lines leading in
and from the main to the property line.
G. The installation of all utilities shown on the final development plan documents
shall be inspected by the Engineering Department of the City and shall be subject to such
department's approval. The Developer agrees to correct any deficiencies in such
installations in order to meet the requirements of the plans and/or specifications applicable
2
EXHIBIT "B"
Not Applicable
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EXHIBIT "C"
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of
two (2) years from the date of completion and first acceptance by the City
of the public improvements warranted hereunder, the full and complete
maintenance and repair of the public improvements constructed for this
Development. This warranty and guarantee is made in accordance with
the City of Fort Collins Land Use Code and/or the Transitional Land Use
Regulations, as applicable. This guarantee applies to the streets and all
other appurtenant structures and amenities lying within the rights -of -way,
easements and other public properties, including, without limitation, all
curbing, sidewalks, bike paths, drainage pipes, culverts, catch basins,
drainage ditches and landscaping. Any maintenance and/or repair
required on utilities shall be coordinated with the owning utility company or
city department.
The Developer shall maintain said public improvements in a manner that
will assure compliance on a consistent basis with all construction
standards, safety requirements and environmental protection
requirements of the City. The Developer shall also correct and repair, or
cause to be corrected and repaired, all damages to said public
improvements resulting from development -related or building -related
activities. In the event the Developer fails to correct any damages within
thirty (30) days after written notice thereof, then said damages may be
corrected by the City and all costs and charges billed to and paid by the
Developer. The City shall also have any other remedies available to it as
authorized by this Agreement. Any damages which occurred prior to the
end of said two (2) year period and which are unrepaired at the
termination of said period shall remain the responsibility of the Developer.
REPAIR GUARANTEE:
The Developer agrees to hold the City of Fort Collins, Colorado, harmless
for a five (5) year period, commencing upon the date of completion and
acceptance by the City of the public improvements constructed for this
Development, from any and all claims, damages, or demands arising on
account of the design and construction of public improvements of the
property shown on the approved plans and documents for this
Development, and the owner furthermore commits to make necessary
repairs to said public improvements, to include, without limitation, the
roads, streets, fills, embankments, ditches, cross pans, sub -drains,
culverts, walls and bridges within the right-of-way easements and other
public properties, resulting from failures caused by design and/or
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construction defects. This agreement to hold the City harmless includes
defects in materials and workmanship, as well as defects caused by or
consisting of settling trenches, fills or excavations.
Further, the Developer agrees that the City shall not be liable to the Developer during the
warranty period, for any claim of damages resulting from negligence in exercising
engineering techniques and due caution in the construction of cross drains, drives,
structures or buildings, the changing of courses of streams and rivers, flooding from natural
creeks and rivers, and any other matter whatsoever on private property. Any and all
monetary liability occurring under this paragraph shall be the liability of the Developer.
The obligations of the Developer pursuant to the "maintenance guarantee" and 'repair
guarantee" provisions set forth above may not be assigned or transferred to any other
person or entity unless the warranted improvements are completed by, and a letter of
acceptance of the warranted improvements is received from the City by, such other person
or entity.
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EXHIBIT "D"
TEMPORARY CONSTRUCTION EASEMENT AGREEMENT
THIS TEMPORARY CONSTRUCTION EASEMENT AGREEMENT ("Agreement') is
made and entered into this day of 2001, by and among THE CITY OF FORT
COLLINS, COLOR -ADO, a municipal corporation (the "Owner"), 300 LaPorte Avenue, Fort Collins,
Colorado, 80521 _ and KB HOME COLORADO, Inc., a Colorado Corporation ("Developer"), 8401
E. Belleview Avenue, Suite 200, Denver, Colorado 80237.
RECITALS AND PURPOSES
The Owner is the owner of a parcel of property known as the Provincetowne Property located
northwest of Carpenter Road and Lemay Avenue, in Latimer County, Colorado. Developer is the
contract purchaser of parcels of land totaling 181 acres, that is a portion of the Provincetowne
Property, and is more particularly described on Exhibit A. attached hereto and incorporated herein
by this reference (the "Burdened Property").
Developer has filed with the City of Fort Collins its application for project development plan
approval of a single and multiple family residential development known as Provincetowne PUD 2"d
Filing (the "Development'). It is required, as a condition of the development plan approval for the
Development, that Developer obtain easements and right-of-way for a water line and related
improvements as described in the final engineered utility plans for the Development, the
Development Agreement approved by the City of Fort Collins and the final plat of the Development,
(the "Improvements") under and across the Property. A permanent easement for the ongoing
operation, maintenance and repair of the Improvements, will also be granted by the Owner to the Fort
Collins -Loveland Water District (the "District'), which will be responsible for the Improvements
upon acceptance of the dedication of the same by the Developer. The purpose of this Agreement is
to set forth the terms and conditions for the temporary construction easement to the Developer for
the construction of the Improvements.
NOW, THEREFORE, by and in consideration of the above stated recitals and purposes, the
parties hereto agree as follows:
1. Temporary Construction Easement.
1.1 Grant of Temporary Construction Easement to Developer. The Owner hereby grants
to Developer a temporary construction easement (the "Construction Easement') over
and through the property more particularly described and depicted on Exhibit `13-2",
attached hereto and incorporated herein by reference (referred to herein as the
"Construction Easement Area"), for the initial installation and construction of the
Improvements under and across the Burdened Property, in accordance with the final
23
April 27, 2001
engineered utility plans, the Development Agreement approved by the City of Fort
Collins and the final plat of the Development, and in accordance with the additional
terms contained in Subparagraph 1.3 below. Developer shall be responsible for all
design and construction costs of the Improvements.
1.2 Effective Date of Construction Easement. This Construction Easement shall be
effective upon the recording of this Agreement with the Larimer County Clerk and
Recorder, the execution and recording of the Permanent Easement for the
Improvements from the Owner to the Fort Collins -Loveland Water District, and the
final approval of the Development Agreement between Developer of the City of Fort
Collins for the Development. If this Agreement, said Permanent Easement, and a
notice of said Development Agreement have not been recorded with the Larimer
County Clerk and Recorder within one (1) year of the execution of this Agreement,
this Construction Easement shall be null and void and have no force and effect
whatsoever and the parties shall be relieved of remaining obligations hereunder as
of the date of such termination.
1.3 Protection of the Burdened Property. Developer shall comply with the in its use of
the Construction Easement and in the performance of the construction activities it
shall be authorized to perform within the Construction Easement Area:
A. Plans and Permits.
i. Prior to initiation of activities on the Construction Easement Area, the
Developer shall have received from the Owner written approval of all final plans and schedules
for the Developer's activities on the Construction Easement Area, and shall have provided to the
Owner evidence of recording of all documents required to be recorded with the Larimer County
Clerk and Recorder pursuant to Subparagraph 1.2, above. Plans must accurately depict the
following: 1 foot to 2 foot contours; the boundaries of the Burdened Property including all
property lines with adjoining properties; all wetlands; streams; ditches; riparian areas; prairie dog
colonies or other wildlife surveyed and determined to be present; all existing and proposed man
made structures; all existing utilities; all needed routes for access, construction staging areas, the
limits of disturbance from the Developer's construction activities; erosion control and fugitive
dust control plans ; construction plans and profiles; restoration plans; and general notes stating all
construction and restoration requirements.
ii. The Developer shall obtain all necessary excavation permits from the City
of Fort Collins Engineering Department.
iii. The Developer shall perform field investigations and surveys to determine
the presence and location of sensitive plants or animal species and geological or archeological
features, consistent with the requirements set forth below, applicable City of Fort Collins
standards, or in the absence of the same, general standards in the development industry for
24
April 27, 2001
protected properties.
iv. The Developer shall develop an erosion control plan that complies with
the City of Fort Collins Storm Drainage Design Criteria and Construction Standards, which
shall be finally approved by the City of Fort Collins prior to any construction.
V. The Developer shall obtain from the U.S. Army Corps of Engineers a 404
permit or a letter of clearance for the Improvements and the Developer's activities under this
Agreement.
B. Structures. The Developer shall repair any damage to concrete bike trails, fences,
parking lots, or any other existing property or improvements of the Owner or publicly -owned
property or improvements caused directly or indirectly by the Developer's activities hereunder.
The Developer shall repair the same in a manner reasonably satisfactory to the owner of the
same, or shall replace the same immediately with equivalent improvements consistent with said
owner's standards for the same, and shall match color, style, and other features thereof, including
without limitation the color of an concrete to be repaired or replaced.
C. Field Demarcation
i. The Developer shall install orange construction fencing to mark the limits
of disturbance, as shown on the construction plans.
ii. The Developer shall post temporary signs reasonably satisfactory to the
Owner informing the public of the Developer's project and indicating the purpose and
description of the project, along with the Developer's telephone number for any inquiries from
the public.
D. Erosion Control. The Developer shall have erosion control measures
consistent with the Developer's approved erosion control plan in place prior to any construction.
E. Grading/Construction
i. The Developer shall strip the top 2 inches of topsoil from the entire
Construction Easement Area and shall remove the topsoil from the disturbed area to remove the
non-native vegetation seed source. The Developer shall then strip topsoil in all areas to be
excavated to a depth of 8 inches and stockpile that soil separately. The Developer shall stockpile
wetland and upland soils shall be stockpiled separately from each other. The Developer shall
replace topsoil in an 8-inch layer on top of the subsoil in the corresponding zone immediately
following the completion of construction.
ii. The Developer's construction methods and practices shall comply with
City of Fort Collins Storm Drainage Design Criteria and Construction Standards. In addition,
any trench left open at the end of a workday shall be fenced to protect public safety.
25 April 27, 2001
iii. The Developer shall compact backfill in trenches to 95% Standard Proctor
Density, and shall test the compacted soils at 100 foot intervals vertically and 2 foot intervals
horizontally within the area of excavation to ensure that this requirement has been met. The
Developer shall provide to the Owner all laboratory Proctor density results, and a copy of all field
compaction tests. After compaction to final subgrade (8 inches below finished grade), the top 6
inches of subsoil shall be ripped, and the previously stripped and stockpiled topsoil materials
spread evenly over the disturbed areas. Soils in backfilled, compacted, topsoiled trenches shall
match the grade of the surrounding undisturbed areas.
iv. The Developer shall set all manhole covers, valve lids, vaults and other
surface structures below or flush with the finished topsoil surface.
V. The Developer shall repair any settlement that occurs over subsurface
improvements, or any areas restored by the Developer after completion of construction. Any
necessary repairs shall be conducted by the Developer in a manner and at a time reasonably
acceptable to the Owner. Any repaired areas shall be restored in a manner consistent with the
provisions of this Subparagraph 1.3.
vi. The Developer shall scarify to a depth of 8 inches all areas that have been
driven over, compacted or rutted by equipment or other activities of the Developer hereunder,
and shall regrade all such areas to their original grade and contours.
vii. The Developer shall meet with the Owner to discuss and get approval of
the final grading and the seeding/mulching process prior to reseeding. The Developer shall seed
all disturbed and topsoiled areas with a seed mix of native species specified by the Owner. The
seed shall be drilled into the soil an appropriate depth for the species in the mix and existing
conditions, using a range drill (not a Brillion). Immediately following seeding the Developer
shall roll the seeded areas with a goat's foot roller to lightly compact and imprint the soil, remove
air voids, provide better seed -soil contact and provide indentations in the soil that will capture
moisture. All seeded areas shall then be hydromulched in accordance with the City of Fort
Collins Storm Drainage Design Criteria and Construction Standards. Following final grading
and initial seeding of the Construction Easement Area and acceptance by the Owner, the
Developer shall maintain the seeded area, including reseeding as necessary, until the vegetation is
fully established.
viii. The Developer shall be obligated to regularly monitor the condition of
trees and shrubs located on the Construction Easement Area for a two (2) year period following
acceptance of site restoration by the Owner. During that period, the Developer shall replace dead
trees and shrubs promptly with a suitable replacement tree or shrub.
F. Owner's Right to Cure. Any requirements of this Subparagraph 1.3
that are not completed by Developer in a timely manner may be corrected by the Owner, and in
such event, the Developer shall be liable for the Owner's cost and expense for such corrective
26 April 27, 2001
work plus the Owner's indirect and management costs.
1.4 Assignment. Developer may not assign its rights and obligations under this
Construction Easement to a third party without the consent of the Owner, which shall not be
unreasonably withheld.
1.5 Duration of Construction Easement. This Construction Easement shall automatically
terminate upon installation of the Improvements and acceptance of the Improvements by the District,
but in no event later than eighteen (18) months from the effective date of the Construction Easement,
except to the extent Developer's obligations hereunder have not been completed. Developer's
obligations to restore property, or to compensate or indemnify the Owner shall survive the
termination of the Construction Easement.
2. Compensation for Easements. In exchange for the grant of the Construction Easement and
the Permanent Easement, Developer shall compensate the Owner by certified check, as
follows:
2.1 As full compensation for the grant of the Temporary Construction Easements,
Developer shall pay to the Owner the sum of $697. (1.053 acres x $13,235 per acre
x 10% land use factor per year x 0.5 years = $697).
2.2 As full compensation for the grant of the Permanent Easement, Developer shall pay
to the Owner the sum of $10,760 (1.626 acres x $13,235 per acre x 50% land use
factor = $10,760).
3. Duration and Recordation. This Agreement shall be recorded by Developer in the records
of the Latimer County Clerk and Recorder and Developer shall promptly furnish evidence
of such recording to the Owner and to the District.
4. Good Faith Cooperation. This Agreement contemplates a series of future transactions. The
parties agree to work cooperatively together in good faith to effectuate the provisions of this
Agreement, including but not limited to the revision of any documents necessary to satisfy
the requirements of the Owner and the execution of any documents necessary thereto.
5. The Developer agrees to indemnify the Owner, its officers, agents, employees,
representatives, successors and assigns from all claims and liability, including Owner's
reasonable attorneys' fees and costs, for claims made by the Owner or by third persons
resulting from or arising out of Developer's use of the Easement, including the
construction, installation, operation, repair, maintenance or removal of improvements
within the Easement Area, and for any actions or omissions by Developer in violation
of this Easement Agreement.
6. Default/Attorneys' Fees. If any party to this Agreement is in default in performance of its
respective obligations hereunder, such parry shall have the right to an action for specific
27 April 27, 2001
7
111
9
performance or damages or both. Prior to commencing any action, the party not in default
shall first send written notice to the defaulting parry specifying the default and affording such
party a reasonable period to cure the default. In the event that one party breaches any of the
terms of this Agreement after execution, the non -breaching party shall be entitled to its
reasonable attorneys' fees and costs incurred to enforce the terns.
Notices. All notices required herein shall be in writing and shall be complete five (5) days
after posted in the United States mail, addressed to the party at the following address or at
such other address as is supplied to the other party in writing.
For the Owner: Financial Officer
City of Fort Collins
300 LaPorte Avenue
P.O. Box 580
Fort Collins, CO 80522
With a copy to: Real Estate Services
City of Fort Collins
300 LaPorte Avenue
P.O. Box 580
Fort Collins, CO 80522
For Developer: KB HOME COLORADO, Inc.
8401 E. Belleview Avenue
Denver, Colorado 80237
Colorado Law. This Agreement shall be construed and interpreted in accordance with the
laws of the State of Colorado.
Binding Effect. This Agreement and all terms and conditions thereof shall extend to and
be binding upon the parties hereto, their trustees, heirs, personal representatives, successors
and assigns.
IN WITNESS WHEREOF, the parties hereto execute this Temporary Construction Easement
Agreement the day and year first written above.
The OWNER: THE CITY OF FORT COLLINS,
COLORADO, a municipal corporation
Randolph R. Martinez, Mayor
28
April 27, 2001
ATTEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of
2001, by Randolph R. Martinez, as Mayor, and Wanda J. Krajicek„ as City Clerk, of the City of Fort
Collins, Colorado, a Colorado municipal corporation.
Witness my hand and official seal.
My Commission Expires:
Notary Public
DEVELOPER, KB HOME COLORADO, Inc.
a Colorado corporation
Name/Title:
29
April 27, 2001
to such installation. In case of conflict, the final development plan documents shall
supersede the standard specifications.
H. All storm drainage facilities shall be so designed and constructed by the
Developer as to protect downstream and adjacent properties against injury and to
adequately serve the Property (and other lands as may be required, if any). The Developer
shall meet or exceed the minimum requirements for storm drainage facilities as have been
established by the City in its Drainage Master Plans and Design Criteria. The Developer,
for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City
from any and all claims that might arise, directly or indirectly, as a result of the discharge
of injurious storm drainage or seepage waters from the Property in a manner or quantity
different from that which was historically discharged and caused by the design or
construction of the storm drainage facilities, except for (1) such claims and damages as
are caused by the acts or omissions of the City in maintenance of such facilities as have
been accepted by the City for maintenance; (2) errors, if any, in the general concept of the
City's master plans (but not to include any details of such plans, which details shall be the
responsibility of the Developer); and (3) specific written or otherwise documented directives
that may be given to the Developer by the City. The City agrees to give notice to the
Developer of any claim made against it to which this indemnity and hold harmless
agreement by the Developer could apply, and the Developer shall have the right to defend
any lawsuit based on such claim and to settle any such claim provided Developer must
obtain a complete discharge of all City liability through such settlement. Failure of the City
to give notice of any such claim to the Developer within ninety (90) days after the City first
receives a notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim. Approval of and acceptance by the City of any
storm drainage facility design or construction shall in no manner be deemed to constitute
a waiver or relinquishment by the City of the aforesaid indemnification. The Developer
shall engage a Colorado licensed professional engineer to design the storm drainage
facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be
intended for the benefit of the City, and subsequent purchasers of property in the
Development.
I. The Developer shall pay storm drainage basin fees in accordance with
Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for credit
or City repayment under the provisions of Chapter 26 are described together with the
estimated cost of the improvements on the attached Exhibit "B," which improvements, if
applicable, shall include right-of-way, design and construction costs. See Section II.C,
Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions.
J. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City of Fort Collins.
3
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this
2001, by , as
COLORADO, Inc., a Colorado corporation.
Witness my hand and official seal.
My Commission Expires:
Notary Public
day of
of KB HOME
30 April 27, 2001
Exhibit "E"
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT ("Agreement") is made and entered into this day
of , 2001, by and among THE CITY OF FORT COLLINS, COLORADO, a municipal
corporation (the "Owner"), 300 LaPorte Avenue, Fort Collins, Colorado, 80521; the FORT
COLLINS-LOVELAND WATER DISTRICT, a Political Subdivision of the State of Colorado (the
"District'), 5150 Snead Drive, Fort Collins, Colorado, 80525; and KB HOME Colorado, Inc., a
Colorado corporation ("Developer"), 8401 E. Belleview Avenue, Suite 200, Denver, Colorado,
80237.
RECITALS AND PURPOSES
The Owner is the owner of a parcel of property known as the Provincetowne Property located
northwest of Carpenter Road and Lemay Avenue, in Latimer County, Colorado. Developer is the
contract purchaser of parcels of land totaling 181 acres, that is a portion of the Provincetowne
Property, and is more particularly described on Exhibit A. attached hereto and incorporated herein
by this reference (the "Burdened Property").
Developer has filed with the City of Fort Collins its application for project development plan
approval of a single and multiple family residential development known as Provincetowne PUD 2nd
Filing (the "Development'). It is required, as a condition of the development plan approval for the
Development, that Developer obtain easements and right-of-way for a water line and related
improvements as described in the final engineered utility plans for the Development, the
Development Agreement approved by the City of Fort Collins and the final plat of the Development,
(the "Improvements") under and across the Property. The District will own the Improvements and
will be responsible for the Improvements upon acceptance of the dedication of the same by the
Developer. The Owner is also granting to the Developer a temporary construction easement for the
initial installation and construction of the Improvements under and across the Burdened Property (the
"Temporary Construction Easement'), under which the Developer is responsible for all design and
construction costs of the Improvements. The purpose of this Agreement is to set forth the terms and
conditions for the permanent, non-exclusive grant of easement to the District for continued
operation, maintenance and repair of the Improvements.
NOW, THEREFORE, by and in consideration of the above stated recitals and purposes, the
parties hereto agree as follows:
1. Permanent Easement and Right -of -Way.
1.1 Grant of Easement and Right of Way to the District. The Owner hereby grants,
bargains, conveys, delivers, transfers and sells to the District and its successors and
31
April 27, 2001
assigns a nonexclusive, perpetual easement (the "Easement") over and through the
property more particularly described and depicted on Exhibit 13-1 (pages one through
three) attached hereto and incorporated herein by reference (referred to herein as the
"Easement Area"), for the installation, construction, maintenance, inspection and
operation of the Improvements under and across the Burdened Property.
1.2 Effective Date of Easement. This Easement shall be effective upon the recording of
this Agreement with the Larimer County Clerk and Recorder, which shall occur
concurrently with the approval of the final development plan for the Development.
If this Agreement has not been recorded with the Latimer County Clerk and
Recorder within one (1) year of the execution of this Agreement, this Easement shall
be null and void and have no force and effect whatsoever.
1.3. Terms of Easement.
A. The District shall have the right to operate, repair, inspect and maintain the
Improvements. The District shall notify the Owner prior to performing any
construction, maintenance, repair or other work on or within the Easement
Area, and shall in advance of any non -emergency work submit a construction
plan to the Owner for approval, which approval shall not be unreasonably
delayed or withheld. The parties acknowledge and agree that all such
activities by the District on the Burdened Property shall be carried out in a
manner and on a schedule reasonably expected to minimize disturbance to the
that property and the Owner's intended purposes therefor. Notwithstanding
the foregoing, in cases of emergency repair, the District shall notify the
Owner as soon as reasonably practical. The District agrees to provide
drawings of record of any modifications of the Improvements to the Owner
within sixty (60) days of completion of such construction or repair, unless no
change from previously provided drawings has resulted.
B. After completion of the initial installation of the Improvements by the
Developer, the District shall not install any above ground fixtures or
appurtenances, or other additional improvements of any kind, without the
prior written consent of the Owner, which consent shall not be unreasonably
withheld by the Owner, if the proposed modification does not unreasonably
interfere with the Owner's intended use of the surface area in question, or the
Owner intended use or purposes for the Burdened Property generally.
C. The District shall have the right of ingress and egress to and from the
Easement Area by such routes as the Owner and the District shall agree,
taking into consideration the minimization of damage to the Owner's
property.
D. The Owner reserves the right to use the Easement Area for purposes that will
32 April 27, 2001
not unreasonably interfere with the District's full enjoyment of the rights
granted herein, including the right to operate other utility improvements. The
Owner agrees not to install permanent buildings over the Easement Area.
However, the Owner may plant or maintain permanent trees or shrubs in the
Easement Area as long as they are not placed over the District's sewer line.
E. The District shall maintain its Improvements in an entirely secure, safe and
sanitary condition. The District shall repair the Improvements within the
Easement Area to ensure the Improvements do not cause damage to persons
or property and shall restore the Easement Area to a condition comparable to
its condition prior to any construction, repair, or other work by the District in
the Easement Area, promptly upon completion of such work. In the event
damage has resulted from the maintenance, operation or presence of the
Improvements, the District agrees to make such repairs or take such other
action as may be necessary to restore the Burdened Property to a condition
comparable to its prior condition. The parties acknowledge that sensitive
vegetation, habitat or other natural conditions may require special effort by
the District to protect, restore, or replace in the event they are disturbed by
District activities.
F. The District agrees, to the extent permitted by law, to indemnify the Owner,
its officers, agents, employees, representatives, successors and assigns from
all claims and liability, including Owner's reasonable attorneys' fees and
costs, for claims made by third persons resulting from or arising out of the
District's use of the Easement, including the construction, installation,
operation, repair, maintenance or removal of improvements within the
Easement Area.
G. Should the District permanently discontinue maintaining and using the
Improvements within the Easement Area, such Improvements shall be
abandoned, and the District shall, at its own expense, remove the surface
Improvements from the Easement Area unless the Owner, at its option,
notifies the District in writing that the District shall abandon such
Improvements in place. In the event the Improvements are removed from the
Easement Area, such removal shall be carried out consistent with the
requirements set forth in this Paragraph 1.3, and the District shall restore the
Easement Area, at its sole cost to a condition comparable to its condition just
prior to the District's work within the Easement Area.
1.4 Assignment. The District shall not assign its rights under this Easement without the
prior written consent of the Owner except in the event of the District's assignment
to another governmental or quasi -governmental entity which shall not require the
Owner's consent.
33 April 27, 2001
2. Compensation for Easements. In exchange for the granting of the Construction Easement
and the Permanent Easement, the Developer shall compensate the Owner in accordance with
the provisions of the Temporary Construction Easement Agreement between the Owner and
the Developer of even date herewith for the construction of the Improvements, which therein
states as follows:
2.1 As full compensation for the grant of the Temporary Construction Easements,
Developer shall pay to the Owner the sum of $697. (1.053 acres x $13,235 per acre
x 10% land use factor per year x 0.5 years = $697).
22 As frill compensation for the grant of the Permanent Easement, Developer shall pay
to the Owner the sum of $10,760 (1.626 acres x $13,235 per acre x 50% land use
factor = $10,760).
Duration and Recordation. This Agreement, together with the Temporary Construction
Easement Agreement, shall be recorded in the records of the Latimer County Clerk and
Recorder by the Developer, and the Developer shall Famish evidence of such recording to
the Owner and the District. If this Agreement has not been recorded with the Latimer
County Clerk and Recorder within one year of the execution of this Agreement, this
Agreement shall automatically terminate on such date, thereupon relieving the parties hereto
of all remaining obligations hereunder on the date of such termination.
4. Good Faith Cooperation. This Agreement and the Temporary Construction Easement
Agreement contemplate a series of future transactions. The parties agree to work
cooperatively together in good faith to effectuate the provisions of this Agreement and the
Temporary Construction Easement, including but not limited to the revision of any
documents necessary to satisfy the requirements of the Owner and/or the District and the
execution of any documents necessary thereto.
5. Default/Attorneys' Fees. If any party to this Agreement is in default in performance of its
respective obligations hereunder, such parry shall have the right to an action for specific
performance or damages or both. Prior to initiating any action, the party not in default shall
First send written notice to the defaulting party specifying the default and affording such party
a reasonable period to cure the default. In the event that one party breaches any of the terms
of this Agreement after execution, or any of the terms of the Easement after recording, the
non -breaching party shall be entitled to its reasonable attorneys' fees and costs incurred to
enforce the terms.
6. Notices. All notices required herein shall be in writing and shall be complete five days after
posted in the United States mail, addressed to the party at the following address or at such
other address as is supplied to the other parry in writing.
For the Owner: Director
34 April 27, 2001
Natural Resources Department
City of Fort Collins
300 LaPorte Avenue
P.O. Box 580
Fort Collins, CO 80522
With a copy to: Land Office
City of Fort Collins
300 LaPorte Avenue
P.O. Box 580
Fort Collins, CO 80522
For the Developer: KB HOME Colorado, Inc.
8401 E. Belleview Avenue
Denver, CO 80237
For the District: Fort Collins -Loveland Water District
5150 Snead Drive
Fort Collins, CO 80525
7. Colorado Law. This Agreement shall be construed and interpreted in accordance with the
laws of the State of Colorado.
8. Binding Effect. This Agreement and all terms and conditions thereof shall extend to and
be binding upon the parties hereto, their trustees, heirs, personal representatives, successors
and assigns.
IN WITNESS WHEREOF, the parties hereto execute this Easement Agreement the day and
year first written above.
ATTEST:
City Clerk
THE CITY OF FORT COLLINS, COLORADO, a
municipal corporation
Bv:
Randolph R. Martinez, Mayor
APPROVED AS TO FORM:
Assistant City Attorney
35 April 27, 2001
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of
2001, by Randolph R. Martinez, as Mayor, and Wanda J. Krajicek„ as City Clerk, of the City of Fort
Collins, Colorado, a Colorado municipal corporation.
Witness my hand and official seal.
My Commission Expires:
Notary Public
FORT COLLINS -LOVELAND WATER
DISTRICT, a political subdivision of the State of
Colorado
Name/Title:
ATTEST:
By:
Name/Title:
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of
2001, by as , and by
as of FORT COLLINS-
LOVELAND WATER DISTRICT, a political subdivision of the State of Colorado.
Witness my hand and official seal.
36 April 27, 2001
My Commission Expires:
Notary Public
KB HOME Colorado, Inc., a Colorado corporation,
go
Name/Title:
ATTEST:
Name/Title:
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this
2001, by as
as
a Colorado corporation.
Witness my hand and official seal.
My Commission Expires:
Notary Public
day of
, and by
of KB HOME Colorado, Inc.,
37 April 27, 2001
Exhibit "F"
SITE AND LANDSCAPE COVENANTS
FOR
MAINTENANCE AND OPERATION OF OFFSITE
STORM DRAINAGE IMPROVEMENTS
ON CITY PROPERTY
AND RELATED RESOURCE PROTECTION AND
RESTORATION REQUIREMENTS
Situate in the PROVINCETOWNE P.U.D. 2No FILING
City of Fort Collins, County of Larimer,
State of Colorado
The undersigned, fee owner of Provincetowne P.U.D. 2"d Filing, more particularly described
on Exhibit A, attached hereto and incorporated herein by this reference, and located in the City of
Fort Collins, County of Larimer, State of Colorado (the "Obligated Property"), has acquired from
the City of Fort Collins, Colorado, a permanent, nonexclusive easement for certain storm drainage
improvements (the "Easement") on and under certain City of Fort Collins natural area property (the
"Benefited Property"), and a temporary construction easement over the Benefited Property and
additional City of Fort Collins property (the "Temporary Easement"), and as a condition thereof,
does hereby make the following declarations as limitations, restrictions and uses to which the
Benefited Property may be put, and hereby specifies that these declarations shall constitute covenants
to run with all of the Obligated 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 Benefited
Property, this declaration being signed for the purpose of guaranteeing that the Benefited Property
will be improved initially in the manner specified in the Easement and the Temporary Easement,
including all resource protection requirements set forth therein, that the Benefited Property shall be
restored in a manner consistent with said Easements, and that the Benefited Property, together with
the Improvements situated thereupon, shall be kept in desirable condition in the future as herein
specified. "Owner" shall include the signator to this document and all successors or assigns of said
signator.
The storm drainage improvements and as described in the utility plans and any related
construction plans for those Improvements submitted to the City of Fort Collins and on record
therewith, and referenced in the Easement, shall be made. and installed in the manner as described
in said plans and consistent with said Easement unless amended pursuant to the approval of the City
of Fort Collins. The owner shall cause the Benefited Property to be developed and restored
according to the utility plans and construction plans submitted to and approved by the City of Fort
Collins, and consistent with the Temporary Easement and the Easement. It is further understood and
agreed that the owner of the Obligated Property, or its assigns or successors in interest shall be
responsible for the maintenance and care (including necessary replacement of improvements), and
shall carry out all protective and restorative measures as required in the Temporary Easement and
M
the Easement (including replacement of dead trees or shrubs). Should the owner fail in any respect
to comply with the terms of this Agreement (which incorporates the requirements of the Easement
and the Temporary Easement), within thirty (30) days after notification to the owner in writing by
the City of Fort Collins of the matters in regard to which default is asserted, 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 perform the work necessary to
replace said improvements or maintain the same, or to protect or restore the Benefited Property in
accordance with the Easement or the Temporary Easement, 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
tabor and material expended to perform such work, which payment shall be made within ten (10)
days after receipt of billing. The sum due and unpaid shall accrue interest at the statutory rate for
judgments from the date that such sum is due. If said billing is not paid, then the City of Fort Collins
pursuant to the authority granted by these covenants, shall have a lien on the above described
Obligated Property, and the improvements thereto, and on the storm drainage improvements
constructed on the Benefited Property. Said lien shall be exercisable by the filing of a notice of said
lien against all of said property and all improvements thereto. The City of Fort Collins shall be
entitled to all rights of foreclosure or other remedies existing pursuant to Colorado law for
enforcement 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
terms 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
PROVINCETOWNE P.U.D. 2No FILING, which real property shall include the property subject to
these Covenants.
DATED this day of 2001.
ATTEST:
Secretary
39
Owner
Name
Title:
K. The Developer specifically represents that to the best of its knowledge all
portions of the Property dedicated (both in fee simple and as easements) to the City
associated with this Development are in compliance with all environmental protection and
anti -pollution laws, rules, regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40
C.F.R., Part 261, and that such portions of the Property as are dedicated to the City
pursuant to this Development, are in compliance with all such requirements pertaining to
the disposal or existence in or on such dedicated property of any hazardous substances,
pollutants or contaminants, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer, for itself and its successor(s) in interest, does hereby
indemnify and hold harmless the City from any liability whatsoever that may be imposed
upon the City by any governmental authority or any third party, pertaining to the disposal
of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking
underground storage tanks, excavation and/or backfill of hazardous substances, pollutants
or contaminants, or environmental cleanup responsibilities of any nature whatsoever on,
of, or related to any property dedicated to the City in connection with this Development,
provided that such damages or liability are not caused by circumstances arising entirely
after the date of acceptance by the City of the public improvements constructed on the
dedicated property, except to the extent that such circumstances are the result of acts or
omissions of the Developer. Said indemnification shall not extend to claims, actions or
other liability arising as a result of any hazardous substance, pollutant or contaminant
generated or deposited by the City, its agents or representatives, upon portions of the
Property dedicated to the City in connection with this Development. The City agrees to give
notice to the Developer of any claim made against it to which this indemnity and hold
harmless agreement by the Developer could apply, and the Developer shall have the right
to defend any lawsuit based on such claim and to settle any such claim provided Developer
must obtain a complete discharge of all City liability through such settlement. Failure of the
City to give notice of any such claim to the Developer within ninety (90) days after the City
first receives a notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
II. Special Conditions
A. Water Lines
1. Notwithstanding anything in this agreement to the contrary, the
Property will be provided water service from the Fort Collins -Loveland Water District
("Water District"), and all waterline improvements shall be installed and inspected in
accordance with the Water District's regulations and the approved plans therefor.
B. Sewer Lines
10
STATE OF COLORADO )
)ss
COUNTY OF LARIMER. )
The foregoing instrument was acknowledged before me this_ day of 2001, by
and
My Commission expires:
Witness my hand and Official seal.
Secretary of
40
Notary Public
EXHIBIT
e
D
's G
PROVINCETOWNE
AFFORDABLE HOUSING PLAN
THIS AFFORDABLE HOUSING PLAN ("Plan") is made effective as of
A(�_,iL /C 2001, by KB HOME COLORADO INC., a Colorado corporation,
formerly known as Kaufman and Broad of Colorado, Inc. ("Developer"), as owner of a portion
and option holder as to the remaining of a portion of the real property legally described on
Exhibit A attached. hereto and incorporated herein by this reference (the "Property").
RECITALS
A. Pursuant to that Agreement of Purchase and sale of Real Property dated April 2,
1996, as amended ("Agreement"), by and between The City of Fort Collins, Colorado, a
municipal corporation ("City"), as Seller, and Developer, as Buyer, the City previously sold a
portion of the Property to Developer commonly known as Filing No. 2 and the Developer holds
an option to purchase the balance of the adjacent property, to be known as "Subsequent Filings."
Collectively, Filing No. 2 and Subsequent Filings consist of a mixed -use commercial and
residential community commonly known as "Provincetowne."
B. Pursuant to the Agreement and to the PUD Plan for Provincetowne ("PUD"),
Developer has agreed that at least thirty percent (30%) of all residential units to be constructed in
the Property be built as affordable housing units and that said units be restricted to remain as
affordable housing for twenty-five (25) years, all as more particularly described in this Plan.
C. Developer desires to submit this Plan with respect to the implementation of the
covenants creating affordable housing units within the Property , and the City has reviewed this
Plan and by signature below acknowledges its approval of the same.
NOW, THEREFORE, Developer hereby submits the following plan:
1. Affordable Housing Units. Developer will construct within the Property thirty
percent (30%) of the total residential units finally approved for construction on the Property as
units that are designed to be affordable (the "Affordable Units"), in satisfaction of the Agreement
and the PUD. The obligations of Developer contained herein may be satisfied in part by the
construction of Affordable Units within the Property by Developer or by persons or entities to
whom Developer conveys any portion of the Property. An Affordable Unit is one which the
purchase price does not exceed the Maximum Purchase Price as determined herein and in the
Master Covenant and is one which is sold only to an Eligible Buyer.
2. Location and Designation of Affordable Units.
a. Units. Filing No. 2 consists of three hundred thirty-one (331) residential
units. One Hundred Forty -One (141) of those units shall be restricted as Affordable Units
I:\Legal\WP\TLE\Provincetowne Affordable Housing Planv9.doc
("Filing 2 Affordable Units) and shall be separately subdivided condominium units. Exhibit B to
this Plan contains a list of the lots within Filing No. 2 on which the Filing 2 Affordable Units
will be built. As the number of Affordable Units contained in Filing No. 2 exceeds thirty percent
(30%) of the total number of residential units in Filing No. 2, the balance of the required
Affordable Units 1.`or the Property ("Remaining Affordable Units") shall be determined by
multiplying the total number of residential units approved in the Property times thirty percent
(30%) less the 1411 Filing 2 Affordable Units. The location of the lots in Subsequent Filings on
which the Remaining Affordable Units are to be constructed ("Remaining Affordable Units") has
not yet been identified. The authority to identify the location of the Remaining Affordable Units
within Subsequent Filings is hereby granted to Developer upon notice and consent of the City or
its designee, which consent will not be unreasonably withheld by the City, provided that
Developer complies with the Agreement, the PUD and this Plan. Upon request of the Developer,
the City shall execute and deliver a recordable release(s) for lots in Filing No. 2 and Subsequent
Filings which are designated as being lots on which Affordable Units will not be constructed.
b. Covenants. Simultaneously with the creation of each Affordable Unit as a
separately subdivided parcel of real estate, by recording of a condominium map or otherwise,
and prior to sale or contract to sell, Developer will subject each Affordable Unit to a recorded
covenant in the form as attached hereto as Exhibit C and incorporated herein by this reference
("Master Covenants"). In the event no Affordable Unit is required on a particular lot, a
Memorandum signed by the Developer and the City evidencing the same recorded in lieu of the
Master Covenants will effect a full release of all units and property comprising such lot from the
provisions of this Plan. A copy of such Master Covenants or Memorandum, as is applicable,
shall be provided to the City promptly following the recording of same by the Developer in the
real property records of the County of Larimer, Colorado.
3. Sales.
a. Marketing/Sales. The Developer will market the Affordable Units to
specific demographic groups within the City and sell the Affordable Units to only "Eligible
Buyers" as defined in I .a of the Master Covenants. Criteria and process for choosing buyers of
the Affordable Units with respect to sales to Developer's homebuyers shall be as required in the
Master Covenants. In the event more than one such Eligible Buyer is interested in purchasing
the same Affordable Unit, Developer, in cooperation with the City, may consider other criteria
designed to further the goals of the Plan (i.e., gross assets) in choosing a buyer, may elect a
lottery process, or may implement another equitable election procedure (i.e., first come, first
served). Marketing of the Affordable Units may include, but not be limited to, first-time
homebuyer seminars.
b. Sales Price. The conveyance of each Affordable Unit by Developer or
subsequent sellers to a purchaser shall be for a purchase price which does not exceed the
Maximum Purchase Price as set forth in the Master Covenant. In the event Developer conveys
- an Affordable Unit for a sales price less than the Maximum Purchase Price and Developer is
required to pay any commission to transactional or buyer real estate agents or brokers upon the
sale of any Affordable Unit, Developer may increase the purchase price for the sale by the
amount to be paid to such real estate agents or brokers in connection with such sale, provided the
2
I\Legal\WP\TLE\Provincetowne Affordable Housing Planv9.doc
total of the purchase price and any commission does not exceed the Maximum Purchase Price
and the commission does not exceed 3% of the Purchase Price. The sales price for a two
bedroom Affordable Unit has been based upon the Eligible Buyer's, as defined in the Master
Covenants, total income equaling the 3 persons Median Income in Fort Collins for the year 2000
as determined by the U.S. Department of Housing and Urban Development Income Limits
("HUD") and the sales price for a three bedroom Affordable Unit has been based upon the
Eligible Buyer's total income equaling the 4 person Median Income for Fort Collins for the year
2000 as determined by HUD. The Developer may increase the Maximum Purchase Price for
each such sales with respect to sales occurring in the year(s) following the year of this
Agreement by the increase, if any, in the 3 person and 4 person, respectively, Median Income for
the City of Fort Collins as determined by the HUD for the year in which the closing of the sale
actually occurs.
C. Certification. Prior to closing, each Eligible Buyer shall present to the
Developer a certification obtained from the City confirming that the buyer is an Eligible Buyer.
4. Miscellaneous.
a. BindingEct. This Plan shall be binding upon and inure to the benefit of
Developer and the City and their respective successors and assigns.
b. Entire Plan. The Agreement, as modified and amended, and this Plan,
together with any exhibits or documents referred to in or supplied pursuant to the terms of this
Plan (all of which are incorporated in this Plan by this reference), contains the entire affordable
housing plan relative to Provincetowne and supersedes any and all prior oral representations,
covenants, understandings, memorandums or other agreements between the parties or their
agents.
C. Conveyance of Lots. The City acknowledges that Developer may convey
certain parcels of property within Provincetowne to others for development, and that, in the event
of such conveyance, the new owners of the conveyed parcel shall become solely responsible for
Developer's obligations and all requirements under this Plan with respect to such parcels of
property conveyed in the event said parcels are not released from this Plan.
d. Section Headings. The section headings are inserted only for convenient
reference and do not define, limit or prescribe the scope of this Plan.
e. Governing Law. This Plan shall be construed under the provisions of
Colorado law.
f. Severability. If any terms, covenants or provisions of this Plan shall be
illegal or unenforceable for any reason, the same shall not invalidate any other terms, covenants
or provisions, and all of the remaining terms, cotenants and provisions shall remain in full force
and effect.
I:\Legal\WP\TLE\Provincetowne Affordable Housing PlanO.doc
g. Amendment. This Plan may be amended, modified or rescinded only in
writing as executed by Developer and the City.
h. Assignment. All obligations arising under this Plan shall burden
Developer as provided herein and its successors and assigns. All rights of Developer and the
City as provided herein shall inure to the benefit of Developer and the City and their respective
successors and permitted assigns, as follows:
(i) It is contemplated that the City may sometime in the future assign
its enforcement rights under this Plan to a designee or to -be -formed entity which has as its
primary purpose the development or management of affordable housing projects in the City or is
otherwise qualified to undertake the responsibilities described in this Plan. Any such assignment
shall be in writing delivered to Developer, and the assignee so named in such instrument shall in
all instances replace references to the City in this Plan and in the attached Master Covenants.
(ii) Developer may assign any of its fights under this Plan to an
assignee specifically delegated in a writing executed by Developer and approved in advance by
the City.
EXECUTED on the dates shown below.
DEVELOPER:
KB HOME COLORADO INC.,
a Colorado corporation, formerly known as
Kaufman and Broad of ColoradoiInc,
Title: President
Date: February 28, 2001
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ACCEPTANCE BY THE CITY OF FORT COLLINS, COLORADO
The foregoing Provincetowne Affordable Housing Plan, and its terms are hereby
approved, agreed to, adopted and declared by the City of Fort Collins, Colorado
THE CITY OF FORT COLLINS, COLORADO,
a municipal corporation nn^ nn
By: Q-2 4. -
Title: C rr-y rtt. c •.
Date: 2i( iu Zm I
5 Ap t OVBE AST FOMt
I:\Legal\WP\TLE\Provincetowne Affordable Housing PlanvMoc
Deputy City Attorney
EXHIBIT A
LEGAL DESCRIPTION
(see attached)
1:\Legal\WP\TLE\Provincetowne Affordable Housing Planv9.doc
EXHIBIT B
INITIAL PLAN OF AFFORDABLE HOUSING UNITS
The lots and buildings described hereinafter refer to that certain subdivision map for
Provincetowne Filing No. 2, to be recorded in the real property records of Latimer County,
Colorado on or after the date hereof.
Filing 2 Affordable Units
Block
Building
Number of
Residential Units*
3
1-12
48
2
13-18
27
1
19-34
66
Total
141
JL
I:\Legal\WP\TLE\Provincetowne Affordable Housing Planv9.doc
EXHIBIT C
MASTER COVENANTS
(See attached)
l:\Legal\WP\TLE\Provincetowne Affordable Housing Planv9.doc
EXHIBIT C
MASTER COVENANT
FOR THE OCCUPANCY AND RESALE OF
UNITS , PROVINCETOWNE
THIS MASTER COVENANT FOR THE OCCUPANCY AND RESALE OF UNITS
Provincetowne (the "Covenant") is made and entered into this _
day of 12001, by KB HOME COLOR -ADO INC., a Colorado
corporation, formerly known as Kaufman and Broad of Colorado, Inc. (the "Declarant'), and
enforceable by the CITY OF FORT COLLINS, COLORADO, a municipal corporation, or its
designee (the "City").
WITNESSETH:
WHEREAS, Declarant owns the real property described as follows:
Condominium Units , Provincetowne, according to the
Condominium Declaration for Provincetowne recorded in Book
at Page _, under Reception No. , and the
Condominium Map of Provincetowne recorded in Book at
Page _, under Reception No. , in the real
estate records of the County of Larimer, Colorado
(collectively, the ".Affordable Units" and each such unit, individually, an "Affordable Unit").
WHEREAS, Provincetowne is subject to a certain Provincetowne Affordable Housing
Plan dated , 2001 by Declarant to the City (the "Affordable Housing Plan")
and Declarant has executed and recorded this Covenant in satisfaction of its obligations with
respect to Provincetowne arising under the Affordable Housing Plan.
WHEREAS, Declarant agrees to restrict the acquisition, resale or transfer of the
Affordable Units to Eligible Buyers as that term is defined in this Covenant. In addition, the
Declarant agrees that this Covenant shall constitute a resale restriction setting forth the
Maximum Purchase Price for which each Affordable Unit may be sold, the amount of
appreciation and the terms and provisions controlling the resale of the Affordable Units should a
subsequent owner of an Affordable Unit desire to sell his or her interest in the Affordable Unit at
any time after the date of this Covenant. Finally, by this Covenant, the Affordable Units shall be
restricted against use and occupancy inconsistent with this Covenant.
NOW, THEREFORE, for consideration hereby acknowledged by Declarant, Declarant
hereby represents, covenants and declares as follows:
1. Definitions. The following terms shall have the following meanings when used in
this Covenant:
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1. Notwithstanding anything in this agreement to the contrary, the
Property will be provided sanitary sewer service from the South Fort Collins Sanitation
District ("Sewer District"), and all sewerline improvements shall be installed and inspected
in accordance with the Sewer District's regulations and the approved plans therefor.
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements associated with
Phase 1A of this Development as shown on the approved final development plan
documents, shall be completed by the Developer in accordance with said final
development plan documents prior to the issuance of any Certificate of Occupancy in
Phase 1A of this Development. Phase 1A improvements shall include the construction of
all local drainage improvements serving this phase of development as well as the detention
ponds and all infrastructure associated with these ponds, denoted on the final development
plan documents as ponds 304, 305, 306 and 308. It also includes the construction of the
drainage channel starting at Autumn Ridge Drive between Lots 215 and 216 down to
Province Road and then goes South of Province Road from the vicinity of Lot 267 to Pond
308 located along Lemay Avenue. Additionally Phase 1A drainage improvements shall
include the construction of the drainage channel starting at Eden Ridge Court to the
confluence with the channel starting at Autumn Ridge Drive mentioned above as well as
all off -site storm sewer improvements located along Trilby Road. Finally, Phase 1A
drainage improvements shall include the construction of the drainage channel starting the
south of Phase 2C, running in a southeasterly direction and then paralleling Lemay Avenue
until the confluence of this channel with Pond 308.
PhaselA shall be the first phase of construction to be constructed and certified in this
Development.
All local drainage improvements associated with phase 1 B shall be built and certified prior
to the issuance of any certificate of occupancy in Phase 1 B of this development. Phase
I drainage improvements shall also include the construction of the channel and all
associated storm sewers and infrastructure running parallel to Brittany Drive from Benson
Lane to Candlewood Drive.
All local drainage improvements associated with phase 1C shall be built and certified prior
to the issuance of any certificate of occupancy in Phase 1 C of this development.
All local drainage improvements associated with phase 1D shall be built and certified prior
to the issuance of any certificate of occupancy in Phase 1 D of this development.
All on -site and off -site storm drainage improvements associated with phase 1 E shall be
built and certified prior to the issuance of any certificate of occupancy in Phase 1 E of this
development. Phase 1 E drainage improvements shall include the construction of the local
drainage improvements associated with Phase 1 E as well as Ponds 301, 302 and 303 and
all infrastructure associated with these ponds as designated on the final development plan
documents for this Development.
5
a. "Eligible Buyer" means a natural person, family or household with a (1)
Maximum Gross Annual Income that is no more than 80% of the Area Median Income for Fort
Collins, and (2) whose proposed Monthly Housing Expense(s) (principal, interest, taxes,
insurance, utilities, HOA expense) for a Maximum Loan at the Market Interest Rate does not
exceed 38% of the Maximum Gross Annual In: ome adjusted to a monthly income. This
definition of Eligible Buyer is to be used solely to calculate the maximum income level of buyers
eligible to purchase an Affordable Unit and shall not be construed as in any way limiting the type
of lending program or loan terms (except that such terms or conditions shall not be predatory)
which an Eligible Buyer may accept to finance the purchase of an Affordable Unit. A person,
family or household who at the time of purchase qualified as a Eligible Buyer shall continue to
be deemed so qualified until such time as the Affordable Unit is Transferred. The following is
the method of determining an Eligible Buyer and a hypothetical example of the determination of
the Maximum Purchase Price, based on the identified assumptions and estimates:
Example:
1. Maximum Annual Gross Income of Eligible Buyer: The Area Median Income
("AMI") as determined by U.S. Department of Housing and Urban Development Income Limits
("HUD").
-- Year 2000 3 person Household = $50,687.40 x 80% _ $40,549.92
2. Monthly Housing Expense: 38% ($40,549.92 =12 x.38) _ $1,284.08
Assumptions:
Initial Sales Price
2 Bedroom Unit:
$ 127,724.80
Loan Amount (97%):
$ 123,893.05
Interest Rate:
8%
Monthly Housing Expenses:
Monthly Principal and Interest:
Est. Monthly H.O.A. Dues
Est. Gas
Est. Property Insurance
Est. Water and Sewer
Est. Monthly Real Estate Taxes
Est. Monthly Electrical
Est. Private Mortgage Insurance
$ 909.08
60.00
50.00
25.00
30.00
130.00
35.00
45.00
¢ Total : $ 1,284.08 Monthly Housing Expenses
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b. "Market Interest Rate" means the Fannie Mae yield on 30-year mortgage
commitments (priced at par) for delivery within thirty (30) days, rounded up to the nearest .125
of 1.00% as of the first business day of the month (printed in the Wall Street Journal).
C. "Maximum Gross Annual Income" means no more than 80% of the Area
Median Income for Fort Collins as determined by the U.S. Department of Housing and
Development Income Limits ("HUD"). Income shall mean the pre-tax income from all
acceptable sources as defined in the Fannie Mae Seller/Servicer Guide which income shall be
verified in one or more of the following methods:
i. Obtain two (2) paycheck stubs from the proposed Eligible Buyer's
two (2) most recent pay periods.
ii. Obtain a true copy of an income tax return from proposed Eligible
Buyer for the most recent tax year in which a return was filed.
iii. Obtain an income verification from the employer of the proposed
Eligible Buyer.
iv. Obtain an income verification certification from the Social
Security Administration and/or the Colorado Department of Social
Services if the proposed Eligible Buyer receives assistance from such
agencies.
V. Obtain an alternate form of income verification reasonably
requested by the City.
d. "Maximum Loan" means 97% of the purchase price for the applicable
Affordable Unit.
e. "Owner" means the Declarant and any subsequent buyer, devisee,
transferee, grantee, owner or holder of title of any Affordable Unit.
f. "Proposed Monthly Housing Expense" means the monthly total of the
principal and interest, private mortgage insurance, homeowners association dues, 1/12th of
estimated real property taxes and estimated gas, property insurance, water and sewer and
electricity expenses.
g. "Transfer" means any sale, assignment or transfer that is voluntary,
involuntary or by operation of law (whether by deed, contract of sale, gift, devise, bequest,
trustee's sale, deed in lieu of foreclosure, or otherwise) of any interest in an Affordable Unit,
including, but not limited to a fee simple interest, a joint tenancy interest, a tenancy in common,
a life estate, or any interest evidenced by a land contract by which possession of an Affordable
Unit is transferred and the Owner obtains title.
h. "Acquisition Date" means the date of Transfer of an Affordable Unit.
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i. "Contract Date" means the date of contract for the proposed Transfer of an
Affordable Unit to a new Owner.
2. Transfer Subiect to Covenant. Declarant and each subsequent Owner of each of
the Affordable Units hereby covenants and agrees that the Affordable Units shall be used,
occupied and Transferred strictly in conformance with the provisions of this Covenant for so
long as this Covenant remains in force and effect with respect to each such Affordable Unit.
Each Owner who takes title from Declarant and every subsequent Owner of each Affordable
Unit shall execute and record the Memorandum of Acceptance attached hereto as Exhibit A
(completed with the appropriate information relating to the Affordable Unit and such Owner)
with such Owner's deed to his or her Affordable Unit in the real property records of the County
of Latimer, Colorado.
3. Use and Occupancy. An Owner (other than Declarant), in connection with the
purchase and ownership of an Affordable Unit, must:
a. occupy the Affordable Unit as his or her sole, exclusive and permanent
place of residence during the time that such Affordable Unit is owned by such Owner. A
permanent residence shall mean the home or place in which one's habitation is fixed and to
which one, whenever he or she is absent, has a present intention of returning after a departure or
absence therefrom, regardless of the duration of the absence. In determining what is a permanent
residence, the following circumstances relating to the Owner shall be taken into account:
business pursuits, employment, income sources, residence for income or other tax purposes, age,
marital status, residence of parents, spouse and children, if any, location of personal and real
property, and motor vehicle registration;
b. not engage in any business activity on or in such Affordable Unit, other
than permitted under applicable zoning ordinances and the condominium declaration governing
the Affordable Unit; and
C. not permit any use or occupancy of such Affordable Unit except in
compliance with this Covenant during the period of such Owner's ownership of the Affordable
Unit.
4. Maximum Purchase Price. Every Transfer of an Affordable Unit by Declarant or
subsequent buyers to a purchaser shall be for a purchase price which does not exceed the
Maximum Purchase Price as set forth herein and in the Plan. The Maximum Purchase Price shall
be the maximum amount which an Eligible Buyer can finance with a 30-year, 97% loan at
Market Interest Rate (as defined herein). In the event Developer conveys an Affordable Unit for
a sales price less than the Maximum Purchase Price and Developer is required to pay any
commission to transactional or buyer real estate agents or brokers upon the sale of any
Affordable Unit, Developer may increase the purchase price for the sale by the amount to be paid
to such real estate agents or brokers in connection with such sale, provided the total of the
purchase price and any commission does not exceed the Maximum Purchase Price and the
commission does not exceed 3% of the Purchase Price. The Sales Price for a two bedroom
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Affordable Unit shall be based upon the Eligible Buyer's total income equaling the 3 persons
Median Income in Fort Collins for the year 2000 as determined by the U.S. Department of
Housing and Urban Development Income Limits ("HUD") and the Sales Price for a three
bedroom Affordable Unit shall be based upon the Eligible Buyer's total income equaling the 4
person Median Income for Fort Collins for the year 2000 as determined by the HUD. Each such
sales price is subject to increase with respect to sales occurring in the year(s) following the year
of this Agreement by the increase, if any, in the 3 person and 4 person, respectively, Area
Median Income for the City of Fort Collins as determined by the HUD for the year in which the
closing actually occurs.
Maximum Purchase Price.
a. A selling Owner shall not permit any prospective buyer to assume any or
all of the selling Owner's customary closing costs nor accept any other consideration which
would cause an increase in the purchase price above the Maximum Purchase Price, and all such
additional consideration, in any form, shall be considered by the City when determining whether
the purchase price for the Affordable Unit exceeds the Maximum Purchase Price.
THE MAXIMUM PURCHASE PRICE IS ONLY AN UPPER LIMIT ON PRICE
APPRECIATION FOR EACH AFFORDABLE UNIT, AND NOTHING HEREIN SHALL
BE CONSTRUED TO CONSTITUTE A REPRESENTATION, WARRANTY OR
GUARANTEE BY THE DECLARANT OR THE CITY THAT UPON TRANSFER THE
OWNER SHALL OBTAIN THE MAXIMUM PURCHASE PRICE. FURTHER,
NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO PREVENT AN
OWNER FROM SELLING A UNIT FOR LESS THAN THE MAXIMUM PURCHASE
PRICE.
Transfer of Affordable Unit.
a. In the event that an Owner desires to sell the Affordable Unit owned by
such Owner, the Owner shall provide notice to the City of such Owner's intent to sell at least ten
(10) days prior to engaging a broker to list the Affordable Unit for sale. The City may keep a list
of interested purchasers and may provide same to any selling Owner in the City's discretion.
b. After providing the notice required in Subsection 6.a, the selling Owner
may list the Affordable Unit for sale with a real estate agent licensed in the State of Colorado or
the selling Owner may market the Affordable Unit as a so-called "for sale by owner," and may
enter into a contract for the sale of the Affordable Unit upon such terms and conditions as the
selling Owner shall, in the selling Owner's sole discretion, deem acceptable, provided, however,
that:
(i) the purchase price shall not exceed the Maximum Purchase Price;
(ii) the selling Owner must believe in good faith that the purchaser is
an Eligible Buyer and that the purchase price does not exceed the Maximum Purchase Price; and
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(iii) the contract must state as a contingency that the purchaser will
submit the application described in Subsection 6.c below to the City within three (3) days after
contract acceptance, and that the selling Owner's obligations under the contract are expressly
contingent upon the City's determination that the purchaser is an Eligible Buyer and that the
purchase price does not exceed the Maximum Purchase Price as evidence by issuance of the
Certificate described in Subsection 6.c below-
C. Within three (3) days after contract acceptance (defined as the date of last
execution of the contract by the purchaser or the selling Owner), the purchaser shall complete
and submit an application form to the City requesting a determination that the purchaser is an
Eligible Buyer and that the purchase price does not exceed the Maximum Purchase Price. The
City shall promulgate the form of such application, which shall request only such information as
is necessary to determine whether the purchaser is an Eligible Buyer and whether the purchase
price exceeds the Maximum Purchase Price. The City shall make its determination within five
(5) days for sales by Declarant and within fourteen (14) days in the event of any other sale after
receipt of the completed application, as evidenced either by (A) the issuance of a certificate,
signed by the City and in recordable form, stating that the purchaser is an Eligible Buyer, the
amount of the purchase price and that the purchase price does not exceed the Maximum Purchase
Price (the "Certificate"); or (B) delivering a notice to seller and purchaser that a Certificate
cannot be issued and stating the reason(s) therefor. Failure by the City to make its determination
and deliver the Certificate or the notice as described above within the applicable 5 or 14-day
period will be deemed an approval of the purchaser and the purchase price, and the City shall
thereafter issue a Certificate with respect to the transaction immediately upon request therefor by
the selling Owner or the purchaser. Delivery of the Certificate shall not be construed as a
representation or warranty that the Eligible Buyer will in fact qualify for purchase money
financing for the acquisition of the Affordable Unit.
d. Upon the Transfer of the Affordable Unit, the Certificate shall be recorded
by the Eligible Buyer in the real estate records of the County of Latimer, Colorado, along with
the deed for the Affordable Unit, and if the Certificate is not so recorded, then the Transfer shall
be voidable at the option of the City.
7. No Rental of Affordable Units. An Owner may not rent or lease such Owner's
Affordable Unit for any period of time. The requirements of this Section shall not preclude an
Owner from sharing occupancy of the Affordable Unit with non -owners on a rental basis
provided Owner continues to reside in the Affordable Unit and to meet the obligations contained
in this Covenant.
8. Remedies in the Event of Breach.
a. In the event that the City has reasonable cause to believe that an Owner is
violating the provisions of this Covenant, the City, by its authorized representative, may inspect
the Affordable Unit owned by such Owner between the hours of 8:00 a.m. and 5:00 p.m.,
Monday through Friday, after providing such Owner with no less than twenty-four (24) hours
advance written notice.
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b. In the event a violation of this Covenant is discovered, the City shall send
a notice of violation to the Owner detailing the nature of the violation and allowing the Owner
fifteen (15) days to cure such default. Said notice shall state that the Owner may request a
hearing before the City within fifteen (15) days to determine the merits of the allegations. If no
hearing is requested and the violation is not cured within the fifteen (15) day period, the Owner
shall be considered in violation of this Covenant. If a hearing is held before the City, the
decision of the City based on the record of such hearing shall be final for the purpose of
determining if a violation has occurred.
C. There is hereby reserved to the City the right to enforce this Covenant,
including any and all remedies provided by law for breach of this Covenant or any of its terms,
including, but not limited to, disgorgement of profits received by the selling Owner over the
Maximum Purchase Price, specific performance of this Covenant, and/or a mandatory injunction
requiring sale of an Affordable Unit by the Owner thereof. The costs of such sale shall be
assessed against the proceeds of the sale with the balance being paid to the Owner. In the event
the City resorts to litigation with respect to any or all provisions of this Covenant and the City
prevails, the City shall be entitled to recover damages and costs, including reasonable attorneys'
fees.
d. In the event any Affordable Unit is transferred in a manner that is not in
full compliance with the terms and conditions of this Covenant, such Transfer shall be wholly
null and void and shall confer no title whatsoever upon the purported transferee. Each and every
Transfer of an Affordable Unit, for all purposes, shall be deemed to include and incorporate by
this reference the covenants herein contained, regardless of reference therein to this Covenant.
9. Release of Covenant in Foreclosure; City's Option to Buy.
a. The City, pursuant to the process and rights described in Subsection 9.b
below (the "Option to Buy"), shall release this Covenant of record and waive its ability to
enforce the provisions of this Covenant with respect to a particular Affordable Unit in the event
of foreclosure or the acceptance of a deed in lieu of foreclosure with respect to such Affordable
Unit by a holder of a first priority deed of trust against the Affordable Unit (the "First Lien
Holder") (which shall be the only party entitled to take the Affordable Unit free of this Covenant
pursuant to the provisions of this Section 9), provided that the First Lien Holder taking title to
such Affordable Unit by foreclosure or acceptance of a deed in lieu of foreclosure, pursuant to
the terms and conditions of the Option to Buy, grants to the City, the option to acquire the
Affordable Unit within thirty (30) days after conveyance of title to the Affordable Unit by public
trustee's deed or deed in lieu of foreclosure. In such event that the City or its designee exercises
its Option to Buy and acquires a particular Affordable Unit the City or its designee may sell the
Affordable Unit to Eligible Buyers, or rent the Affordable Unit until such time that the
Affordable Unit can be sold to an Eligible Buyer in accordance with this Covenant.
b. In the event of (A) a foreclosure by the First Lien Holder (including
assigns of the First Lien Holder), and subject to the issuance of a public trustees deed to the First
Lien Holder following the expiration of all statutory redemption rights, or (B) the taking by the
First Lien Holder of title to the Affordable Unit by deed in lieu of foreclosure and the giving of
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notice by the First Lien Holder to the City as provided in Paragraph (i) below, the City shall have
the option to buy the Affordable Unit which shall be exercised in the following manner:
(i) The First Lien Holder shall give such notice to the City as is
required by law for lien holders in the foreclosure proceeding to the address of the City as
provided in this Covenant with a copy to The City of Fort Collins City Attorney's office. In the
event that the First Lien Holder takes title to the Affordable Unit pursuant to a deed in lieu of
foreclosure, the First Lien Holder shall give notice to the City with a copy to the City upon the
vesting of title to the Affordable Unit in First Lien Holder.
(ii) The City shall have 30 days after (A) in the case of foreclosure,
issuance of the public trustee's deed, or (B) in the case of a deed in lieu of foreclosure, the City's
receipt of the notice required in such event pursuant to Paragraph (i) above, in which to exercise
this Option to Buy by tendering to the First Lien Holder, in cash or certified funds, an amount
equal to the redemption price which would have been required of the Owner or any person who
might be liable upon a deficiency on the last day of the statutory redemption period(s) and any
additional reasonable costs incurred by the First Lien Holder during the option period which are
directly related to the foreclosure or deed in lieu of foreclosure.
(iii) Upon receipt of the option price, the First Lien Holder shall deliver
to the City, a special warranty deed conveying fee simple title in and to the Affordable Unit to
the City, in which event this Covenant shall remain valid and in full force and effect. The First
Lien Holder shall convey only such title as it is received through the public trustee's deed or the
deed in lieu of foreclosure and will not create or participate in the creation of any additional liens
or encumbrances against the Affordable Unit following issuance of the ;public trustee's deed or
the deed in lieu of foreclosure to the First Lien Holder. The First Lien Holder shall not be liable
for any of the costs of conveyance to the City or its designee.
(iv) In the event that the First Lien Holder is issued a public trustee's
deed or takes title to the Affordable Unit pursuant to a deed in lieu of foreclosure and thereafter
offers the Option to Buy to the City and the City does not exercise the option, as provided herein,
the City shall cause to be recorded in the records of the Clerk and Recorder of the City and
County of Latimer, Colorado, a full and complete release of this Covenant as it affects the
Affordable Unit only. Such release shall be placed of record within thirty (30) days after
demand therefor by the First Lien Holder following expiration of the option and a certified copy
of the release shah be mailed to the First Lien Holder upon its recordation.
(v) If any of the terms, covenants, conditions, restrictions, uses,
limitations, obligations or options created by the Option to Buy shall be unlawful or void for
violation of: (A) the rule against perpetuities or any analogous statutory provisions, (B) the rule
restricting restraints on alienation, or (C) any other statutory or common law rules imposing like
or similar time limits, then such provision shall continue only for the period of the lives of the
current duly elected and seated City Council oflhe City, their now living descendants, if any,
and the survivor of them, plus twenty-one (21) years.
10. Covenant Running with Land; Duration of Covenant.
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a. The terms of this Covenant shall constitute covenants running with the
Affordable Units, as a burden thereof, for the benefit of, and shall be specifically enforceable by
the City and its successors and assigns, as applicable, by any appropriate legal action including
but not limited to specific performance, injunction, reversion or eviction of non -complying
Owners and/or occupants.
b. This Covenant shall terminate, expire and be of no further force and effect
with respect to a particular Affordable Unit following the first Transfer of said Affordable Unit
that occurs more than twenty-five (25) years after the date that this Covenant is placed of record
in the Office of the Clerk and Recorder of the County of Larimer, Colorado.
11. Miscellaneous.
a. Notices. Any notice, consent or approval which is required or permitted to
be given hereunder shall be given by mailing the same, certified mail, return receipt requested,
properly addressed and with posting fully prepaid, to any address provided herein or to any
subsequent mailing address of the party as long as prior written notice of the change of address
has been given to the other parties to this Covenant.
Said notices, consents and approvals shall be sent to the parties hereto at
the following addresses unless otherwise notified in writing:
To Declarant: KB Home Colorado Inc.
8401 East Belleview Avenue, Suite 200
Denver, Colorado 80237
Attn: Provincetowne Project Manager
with copy to: KB Home Colorado Inc.
8401 East Belleview Avenue, Suite 200
Denver, Colorado 80237
Attn: Regional Legal Counsel
To the City: The City of Fort Collins, Colorado
300 Laporte Avenue
P.O. Box 580
Fort Collins, Colorado 80521
Attn: City Manager
with a copy to: The City of Fort Collins City Attorney's Office
300 Laporte Avenue
P.O. Box 480
Fort Collins, Colorado 80521
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To the Owner: To be determined pursuant to the Memorandum of
Acceptance (as shown on Exhibit A) recorded with respect
to each Transfer of an Affordable Unit.
b. Exhibits. All exhibits attached hereto are incorporated herein and by this
reference made a part hereof.
C. Severability. Whenever possible, each provision of this Covenant and any
other related document shall be interpreted in such a manner as to be valid under applicable law;
but if any provision of any of the foregoing shall be invalid or prohibited under said applicable
law, such provisions shall be ineffective to the extent of such invalidity or prohibition without
invalidating the remaining provisions of such documents.
d. Choice of Law. This Covenant and each and every related document are
to be governed and construed in accordance with the laws of the State of Colorado.
e. Successors. Except as otherwise provided herein, the provisions and
covenants contained herein shall inure to and be binding upon the heirs, successors and assigns
of the parties.
f. Section Headings. Paragraph or section headings within this Covenant are
inserted solely for convenience of reference, and are not intended to, and shall not govern, limit
or aid in the construction of any terms or provisions contained herein.
g. Waiver. No claim of waiver, consent or acquiescence with respect to any
provision of this Covenant shall be valid against any party hereto except on the basis of a written
instrument executed by the parties to this Covenant. However, the party for whose benefit a
condition is inserted shall have the unilateral right to waive such condition.
h. Gender and Number. Whenever the context so requires herein, the neuter
gender shall include any and all genders and vice versa and the use of the singular shall include
the plural and vice versa.
i. Personal Liability. Owner agrees that he or she shall be personally liable
for any of the transactions contemplated herein.
j. Further Actions. The parties to this Covenant agree to execute such
further documents and take such further actions as may be reasonably required to carry out the
provisions and intent of this Covenant or any restriction or document relating hereto or entered
into in connection herewith.
k. Modifications. The parties to this Covenant agree that any modifications
of this Covenant shall be effective only when made by writings signed by the Declarant (or its
successors) and the City and recorded with the Clerk and Recorder of Latimer County, Colorado.
in
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1. Owner and Successors. The term Owner shall mean the person or persons
who shall acquire an ownership interest in an Affordable Unit in compliance with the terms and
provisions of this Covenant; it being understood that such person or persons shall be deemed an
Owner hereunder only during the period of his, her or their ownership interest in the Affordable
Unit and shall be obligated hereunder for the full and complete performance and observance of
all covenants, conditions and restrictions contained herein during such period.
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year above first written.
DECLARANT: KB HOME COLORADO INC.,
a Colorado corporation, formerly known as
Kaufman and Broad of Colorado, Inc.
By:
Title:
Date:
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2001, by as of
KB Home Colorado Inc., a Colorado corporation, formerly known as Kaufman and Broad of
Colorado, Inc.
Witness my hand and official seal.
My commission expires:
[SEAL]
Notary Public
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Phases 1 A, 1 B, 1 C, 1 D and 1 E drainage improvements shall be completed and certified
sequentially starting with Phase 1A.
All local drainage improvements associated with Phase 2A of the Development as shown
on the final development plan documents, shall be completed by the Developer in
accordance with said final development plan documents prior to the issuance of more than
1 building permit in Phase 2A of this Development.
All drainage improvements associated with Phase 2B of the Development as shown on the
final development. plan documents, shall be completed by the Developer in accordance
with said final development plan documents prior to the issuance of more than 8 building
permits in Phase 213 of this Development. Phase 2B drainage improvements shall include
the construction of all local drainage improvements serving this phase of development as
well as the storm sewer running from this phase of the development to Pond 308 as
designated on the final development plan documents for this Development.
All local drainage improvements associated with Phase 2C of the Development as shown
on the final development plan documents, shall be completed by the Developer in
accordance with said final development plan documents prior to the issuance of more than
7 building permits in Phase 2C of this Development.
Phases 2A, 2B and 2C drainage improvements shall be constructed and certified
sequentially following the completion Phase 1 E drainage improvements.
All local drainage improvements associated with Phase 3A of the Development as shown
on the final development plan documents, shall be completed by the Developer in
accordance with said final development plan documents prior to the issuance of more than
I. building permit in Phase 3A of this Development.
All local drainage improvements associated with Phase 3B of the Development as shown
on the final development plan documents, shall be completed by the Developer in
accordance with said final development plan documents prior to the issuance of more than
9 building permits in Phase 3B of this Development.
All local drainage improvements associated with Phase 3C of the Development as shown
on the final development plan documents, shall be completed by the Developer in
accordance with said final development plan documents prior to the issuance of more than
8 building permits in Phase 3C of this Development.
Phases 3A, 3B and 3C drainage improvements shall be constructed and certified
sequentially following the completion Phase 2C drainage improvements.
All on -site and off -site storm drainage improvements associated with Phase 4 of
Development as shown on the final development plan documents, shall be completed by
the Developer in accordance with said final development plan documents prior to the
19
ACCEPTANCE BY THE CITY OF FORT COLLINS, COLORADO
The foregoing Master Covenant for the Occupancy and Resale of Units
Provincetowne, and its terns are hereby accepted, approved, agreed to and adopted by the City
of Fort Collins, Colorado
THE CITY OF FORT COLLINS, COLORADO,
a municipal corporation
By:
Title:
Date:
City Manager
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
2001, by as City Manager of The City of Fort Collins,
Colorado, a municipal corporation.
Witness my hand and official seal.
My commission expires:
[SEAL]
12
Notary Public
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(See attached)
EXHIBIT A
Memorandum of Acceptance
13
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MEMORANDUM OF ACCEPTANCE
OF
MASTER COVENANTS
FOR THE OCCUPANCY AND RESALE OF
UNIT , PROVINCETOWNE
WHEREAS, , the Buyer, is
purchasing from the Seller, at a price of
$ a condominium unit described as:
Condominium Unit , Provincetowne, according to the
Condominium Declaration for Provincetowne recorded in Book
at Page _, under Reception No. and the
Condominium Map of Provincetowne recorded in Book _ at
Page _, under Reception No. , in the real
estate records of the County of Larimer, Colorado
WHEREAS, the Seller of the Unit is requiring as a prerequisite to the sale transactions,
that the Buyer acknowledge and agree to the terms, conditions and restrictions found in that
certain instrument entitled, "Master Covenant for The Occupancy and Resale of Units
Provincetowne," recorded on , 2000, in Book at Page , under
Reception No. _ in the real property records of the County of Larimer,
Colorado, a copy of which is attached hereto as Exhibit A (the "Master Covenant").
NOW, THEREFORE, as an inducement to the Seller to sell the Unit, the Buyer:
l . Acknowledges that Buyer has carefully read the entire Master Covenant, has had
the opportunity to consult with legal and financial counsel concerning the Master Covenant and
fully understands the terms, conditions, provisions, and restrictions contained in the Master
Covenant. Resale is restricted by the Master Covenant and profits may be required to be
disgorged and/or reversion may occur upon breach of the Master Covenant.
2. Notice to Buyer, pursuant to Subsection I I(a) of the Master Covenant, should be
sent to:
3. Directs that this memorandum be placed of record in the real estate records of the
County of Larimer, Colorado.
t
IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day
and year first above written.
14
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EXHIBIT A
TO
MEMORANDUM OF ACCEPTANCE
(See attached copy of recorded Master Covenant)
x
16
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issuance of more than 8 building permits in Phase 4 of this Development. Phase 4
improvements shall include the construction of all local drainage improvements serving this
phase of development.
Phase 4 drainage improvements are to be constructed and certified following the
completion of Phase 3C drainage improvements.
All on -site and off -site storm drainage improvements associated with Phase 5 of
Development as shown on the final development plan documents, shall be completed by
the Developer in accordance with said final development plan documents prior to the
issuance of more than 3 building permits in Phase 5 of this Development. Phase 5
improvements shall include the construction of all local drainage improvements serving this
phase of development.
Phase 5 drainage improvements are to be constructed and certified following the
completion of Phase 4 drainage improvements.
Completion of improvements shall include the certification by a professional engineer
licensed in Colorado that the drainage facilities which serve this Development have been
constructed in conformance with said final development plan documents. Said certification
shall be submitted to the City at least two weeks prior to the date of issuance of additional
building permits or any Certificate of Occupancy in each phase of the Development.
2. The Developer shall be responsible for maintaining the structural
integrity and operational functions of all drainage facilities throughout the build -out of this
Development. If at any time following certification (as required pursuant to paragraph one
(1) above) of said drainage facilities and during the construction of structures and /or lots
within this Development the City deems that said drainage facilities no longer comply with
the approved plans, the developer shall bring such facilities back up to the standards and
specifications as :shown on the approved plans. 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.
3. The Developer shall provide and maintain erosion control
improvements as shown on the approved final development plan documents to stabilize
all over -lot grading in and adjacent to this Development. The Developer shall also be
required to post a security deposit in the amount of $187,065.00 prior to beginning
construction to guarantee the proper installation and maintenance of the erosion control
measures shown on the approved final development plan documents. 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 final development plan
documents or the Criteria, notwithstanding any provisions contained in paragraph III(J) to
the contrary, the City may enter upon the Property for the purpose of making such
7
improvements and undertaking such activities as may be necessary to ensure that the
provisions of said plans and the Criteria 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 plans and the Criteria. In addition, the City shall have the
option to withhold building permits and certificates of occupancy, as stated in Paragraph
III.D of this Agreement, as it deems necessary in order to ensure that the Developer installs
and maintains the erosion control measures throughout the build -out of this Development.
4. It is important that all lots be graded to drain in the configuration
shown on the approved final development plan documents. 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 any lot or building the Developer shall
provide the City with certification that the lot and or the building has been graded correctly.
This grading certification shall demonstrate that the lot or building Finish Floor elevation
has been built in accordance with the elevation specified on the approved Final
Development Plan documents. The certification shall show that the minimum floor
elevation or minimum opening elevation for any building constructed is in compliance with
the minimum elevation as required on the final development plan documents. The
certification shall demonstrate as well that all minor swales adjacent to the building or on
the lot have been graded correctly and in accordance with the grades shown on the
approved final development plan documents. The certification shall also show that the
elevations of all corners of the lot are in accordance with the elevations shown on the
approved final development plan documents. 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 shall obtain the City's prior approval of any changes
from the approved final development plan documents in grade elevations and/or storm
drainage facility configuration that occur as a result of the construction of houses and/or
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
Development until the City has approved such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
6. 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 Development and outside of the
public rights -of -way. The Developer shall warranty the installed storm drainage facilities for
a minimum of five years after acceptance of these facilities by the City of Fort Collins. Upon
certification and acceptance of the off -site storm drainage improvements serving this
development the City shall be responsible for the maintenance of these improvements that
are to remain in City ownership.
7. The Developer shall limit the construction of the off -site storm
ri
drainage improvements lines to the limits of construction as shown on the final
development plan documents. The contractor shall re -seed and restore all disturbed areas
during construction operations of the off -site storm drainage improvements per the final
development plan documents as soon as possible following construction of these
improvements.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Autumn Ridge
Drive from Trilby Road to Candlewood Drive for those portions of said street abutting the
Property as shown on the approved final development plan documents. Reimbursement
for Autumn Ridge Drive shall be for oversizing the street from local (access) standards to
collector standards. The City shall make reimbursement to the Developer for the aforesaid
oversized street improvements in accordance with Section 24-112 of the Code of the City.
The Developer agrees and understands that the City shall have no obligation to make
reimbursement payments for street oversizing unless funds for such payments shall first
have been budgeted and appropriated from the Street Oversizing Fund by the City Council;
and the Developer further understands that to the extent that funds are not available for
such reimbursement, the City may not, in the absence of the Developer's agreement,
require the construction, at the Developer's expense, of any oversized portion of streets
not reasonably necessary to offset the traffic impacts of the Development. The Developer
does hereby agree to construct the aforesaid oversized street improvements with the
understanding that the Developer may not be fully reimbursed by the City for the cost of
such construction. The Developer further agrees to accept payment in accordance with
Section 24-112 (d) of the Code of the City as full and final settlement and complete accord
and satisfaction of all obligations of the City to make reimbursements to the Developer for
street oversizing expenses. It is anticipated by the City that the City's reimbursement, in
accordance with Section 24-112 (d), would not be less than fifty percent (50%) of the
Developer's actual expenses incurred and will be calculated in accordance with the formula
as set forth in Section 24-112 (d).
2. It is understood that the improvements that are to be constructed in
the public right-ef-way as described in this Section II(D) are "City 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), 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), 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 "City improvements" shall mean either (1) existing
improvements owned by the City that are to be modified or reconstructed, or (2) any
improvements funded in whole or in part by the City.
E