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HomeMy WebLinkAboutPROVINCETOWNE THIRD AMENDMENT AGREEMENT # 1 - Filed DA-DEVELOPMENT AGREEMENT - 2010-06-22PROVINCETOWNE FILING NO.3 AMENDMENT AGREEMENT NO.1 THIS AMENDMENT AGREEMENT, made and entered into this 3 r day of Ctil ay 200_7, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and Provincetowne West LLC, a Colorado limited liability company, Community Resources Residences Enterprises, Inc., a Colorado nonprofit corporation, and KB Home Colorado, Inc., a Colorado corporation, hereinafter referred to collectively as the "Developer." WITNESSETH; WHEREAS, the City entered into a Development Agreement with KB Home Colorado Inc. (as "Developer") on November 21, 2006, the terms of which govern the development activities of the Developer pertaining to that certain real property situated in the County of Larimer, State of Colorado, (hereafter referred to as the "Property) and legally described as follows, to wit: Provincetowne Filing Three, City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the parties presently desire to modify the Development Agreement; NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree to amend the terms and conditions of the Development Agreement as follows: A. Subheading 11(Special Conditions) Paragraph C. shall be replaced with the following: 1. The Final Development Plan Documents for this Development call for the phasing of the construction of storm drainage improvements. The phasing of these improvements shall necessitate that the required overall site drainage certification be done in phases in accordance with 'the following requirements: a) All on -site and off -site storm drainage improvements associated with Phase 1 of this 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 the amount of building permits associated with 22 multi -family units in Phase 1 of the Development. b) All on -site 'and -off --site storm drainage improvements as with Phase 2 of this 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 the amount of building permits associated with 17 multi -family units in phase 2 of the Development. c) All on -site and off -site storm drainage improvements associated with Phase 3 of this 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 30 building permits in Phase 3 of the Development. d) All on -site and off -site storm drainage improvements associated with Phase 4A of this 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 4A of the Development. e) All on -site and off -site storm drainage improvements associated with Phase 4B of this 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 5 building permits in Phase 4B of the Development. This includes the temporary swale shown on sheet 23A, which shall be built with this phase. Phase 4A storm drainage improvements shall be built before the start of any Phase 4B construction activity. f) All on -site and off -site storm drainage improvements associated with Phase 4C of this 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 17 building permits in Phase 4C of the Development. Phase 4A, 4B, and 4D storm drainage improvements shall be built before the start of any Phase 4C construction activity. g) All on -site and off -site storm drainage improvements associated with Phase 4D of this 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 12 building permits in Phase 4D of the Development. Phase 4A storm drainage improvements shall be built before the start of any Phase 4D construction activity. h) All on -site and off -site storm drainage improvements associated with Phase 5 of this 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 any certificate of occupancy in this commercial Phase 5 of the Development. i) In all cases, completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve any particular phase of 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 in each phase. 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 reasonably 2 decides that said drainage facilities no longer comply with the Final Development Plan Documents, the City shall give written notice to the Developer of all items which do not comply with the Final Development Plan Documents. Unless the Developer successfully appeals the decision of non- compliance, it shall bring such facilities back up to the standards and specifications as shown on the Final Development Plan Documents. 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 agrees to provide and maintain erosion control improvements as shown on the 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 $102,894.98 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the Final Development Plan Documents. If construction, of any kind, is going to be performed only on a particular phase of the development, than the security deposit may be provided for that phase only by prorating the security deposit amount on a per acre basis. 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 erosion control provisions of the Final Development Plan Documents or the erosion control provisions of the Criteria after receiving notice of the same or an emergency situation exists which would reasonably require immediate mitigation measures, then, in either event, and notwithstanding any provisions contained in paragraph III(J) to the contrary, the City may enter upon the Property for the purpose of making such 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 ofthis 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 Final Development Plan Documents. For this reason the following requirements shall be followed for all buildings/structures 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 Final Development Plan Documents. The certification shall also show that the minimum floor elevation or minimum opening elevation for any building constructed is in compliance with the. #riinimum elevation asiregnired on the Final Development Plan Documents. The certification shall demonstrate as well that any minor swales adjacent to the building or on the lot have been graded correctly and in accordance with the grades shown on the Final Development Plan Documents. The certification shall also show that the elevations of all comers of the lot are in accordance with the elevations shown on the 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 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 deemed such changes as being acceptable for the safe and efficient delivery of storm drainage water. 6. The Developer shall limit the construction of the off -site storm drainage improvements to the limits of construction as shown on the Final Development Plan Documents. The contractor shall re- seed and restore all areas that are disturbed during construction of the off -site storm drainage improvements in accordance with the Final Development Plan Documents promptly following construction. The Developer shall ensure that no negative impact occurs to the adjoining properties during the construction of these facilities. No grading shall be done outside of the approved areas as shown on the Final Development Plan Documents. 7. The drainage design for this Development provides for the evacuation of storm drainage runoff in a reasonable amount of time out of the water quality and detention facilities and into the drainage outfall system. The water quality and detention facilities have been designed to discharge stormwater runoff from frequent storms over a 40 hour period through a small diameter outlet. Under the intended operation of the water quality and detention pond, there will not be standing water in the pond more than 48 hours after the end of a rainfall event. If, during or within 2 years after construction and acceptance of the detention facilities associated with this Development, surfacing or standing water conditions persist in these facilities; and if such conditions are beyond what can be expected in accordance with the approved stormwater design, the Developer shall promptly, upon such discovery, install an adequate de -watering system in the detention facilities. Such a system shall be reviewed and approved by the City prior to installation. 8. The Developer shall be responsible for maintenance of all stone drainage facilities that are constructed outside of the public right-of-way, except for the storm drainage lines A, B 1, D, F, H, J, L, M, N, 0, which lines shall be maintained in their entirety by the City following certification of these lines by the Developer and their acceptance by the City. Storm drainage line U shall be maintained by the City from station 13+63.51 to station I MO after acceptance by the City. In all cases for the City maintained storm lines, the City will only maintain the underground storm sewer. The flared -end sections and rip rap pads are the responsibility of the HOA to maintain. Surface maintenance on private property above the storm sewers will be the responsibility of the HOA, not the City. 9. The Developer shall limit the construction of the off -site storm drainage improvement lines to the "limits of development" as delineated on the Final Development Plan Documents. The limits of development shall be delineated in the field with a construction fence and said fence shall be 4 installed prior to the commencement of any grading or construction in the Natural Area adjacent to this Development. The contractor shall re -seed and restore all areas that are disturbed during construction of the off -site storm drainage improvements in accordance with the Final Development Plan Documents promptly following the conclusion of construction activities in the Natural Area. B. Subheading II (Special Conditions) Paragraph DA. shall be added as follows: 4. Phases 1B, 4A and 5 of this Development may be constructed at any time because Phases 1B, 4A and 5 are not dependent on any other phase for infrastructure improvements. Construction of Phases 1, 2 and 3 of this Development must be done in sequential order and cannot occur until all improvements for Phase 1B have been completed. Phase 4A must be constructed prior to phase 4B. Phases 4A and 4B must be constructed prior to Phase 4C. Phases 4A and 4B must be constructed prior to Phase 4D. No building permits will be issued within Phases 2 and 3 until the streets and utilities within the preceding phases have been completed in accordance with Section 1.C. of this agreement. C. Section III (Miscellaneous) Subsection N shall be amended by adding to the addresses for "If to the Developer" with the following addresses to read as follows: And: Provincetowne West, LLC Attn: Douglas Hill, Chief Operating Officer 2725 Rocky Mountain Avenue, Ste. 200 Loveland, CO 80538 And: CARE Housing Attn: Chadrick D. Martinez, Executive director 1303 W. Swallow Road, Building 11 Fort Collins, CO 80526 And: KB Home Colorado, Inc. Attn: Rusty Crandall, Division President 5975 South Quebec Street, #300 Centennial, CO 80111 D. All other terms and conditions of the Development Agreement shall remain unchanged and in full force and effect, except as expressly amended in this Amendment Agreement No. 1. IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above written. ti THE CITY OF FORT OLL S, COLORADO, S;� a Municipal Corporati EAL n.:...... Ci anager TEST: ' , . - � %� CITY CLERK APPROVED AS TO CONTENT: Dim -tor of ftgfneft APPRO AS 0 FORM: Deputy City Attorney Provincetowne, LLC, a Colorado limited liability company By: McWhinney Real Estate Services, Inc., a Colorado corporatio IfIVIA" By: Douglas . '11, Chief Operating Officer Polly Ha s, Secretary ATTEST: Resources Residences Enterprises, Inc., a f0 D. Martinez, 0 LM MI/ ?cae.►4 EgpJ,M,p, Director