EXHIBIT 10.12
COYOTE CREEK PLANNED UNIT DEVELOPMENT AGREEMENT
The Parties: Matrix Funding Corp., ("the Developer").
City of Fort Xxxxxx, Colorado, a statutory Xxxxxxxxx Xxxxxxxxxxx,
("xxx Xxxx").
The Project: A public golf course ("the course") being built and to be operated
by the Golf Course Enterprise of the City, geographically integrated with a
residential community (the "PUD") owned by the Developer, sharing the name
"Coyote Creek".
The prior agreement: The FORT XXXXXX GOLF COURSE RESIDENTIAL AND PLANNED UNIT
DEVELOPMENT AGREEMENT, between these parties and others, dated November 28, 1995
including subsequent amendments.
COME NOW the parties, for valuable consideration, and with full authority in
the signatories hereto, agree as follows:
1. This agreement is a renegotiation of the prior agreement, and is intended
to set forth the entire understanding of the parties. It is, however,
based on the prior agreement, and it may be referred to for historical
perspective. Any breach related to timing or performance of the prior
agreement by either party is waived and released so that the parties may
embark on this new agreement without any past delay issues, however,
responsibility for yet undiscovered latent construction defects on the PUD
improvements is not waived. This new agreement represents the parties
desire to successfully complete the project.
2. The Developer is the successor in interest to FORT XXXXXX L.L.C.. HI-VIEW
FARMS and AIMS FARM no longer have any ownership interest in the PUD and
therefore are not parties to this agreement.
3. At this time, the parties have exchanged the parcels of land identified in
the original agreement and the parties have cooperated to complete the
design of the course and construction is underway.
General. Consistent with the Parties' commitment to parcelize the Course
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and the PUD Property, the Golf Course Enterprise is building an 18-hole
regulation play golf course, including clubhouse, driving range,
maintenance facilities, irrigation systems and all related amenities and
appurtenances. Said course shall be a public golf course, to be funded and
operated by the City Golf Course Enterprise. The Developer shall make a
good faith effort to continue to cooperate and coordinate its necessary and
required efforts to effect the development of the Golf Course by the Golf
Course Enterprise. The City intends to complete and open the golf course on
or before May 1, 1999.
Project Management. The Golf Course Enterprise shall use its best efforts
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to assure full cooperation and coordination on all earthwork, utility and
drainage issues affecting the Golf Course and the PUD.
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In accordance with the intentions for the Golf Course Drainage Master Plan
and the overall PUD Drainage Master Plan, storage ponds for irrigation,
and/or aquifer recharge shall be located wholly on the Golf Course Parcels.
The Parties agree the ponds shall be designed to reasonably prevent and
minimize any potential damage to the residential subdivision. The Parties
agree neither the City nor the Golf Course Enterprise is an assurer or
insurer for damage to the Developer's land, but the Golf Course Enterprise
and Developer will use its best efforts to minimize foreseeable events and
to design adequately sized drainage facilities.
Golf Course crossings of local or collector streets shall be "at-grade."
Such crossings shall be maintained by the Golf Course Enterprise and
Developer shall be indemnified against future accidents or claims by the
Golf Course Enterprise.
The Golf Course Enterprise and Developer will cooperate in the promotion
and marketing of the proposed Golf Course and surrounding residential
community.
Golf Course Financing. The Golf Course Enterprise issued Revenue
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Anticipation Warrants, totaling approximately $5,900,000. Developer will
use his best efforts to assist the Golf Course Enterprise in expediting all
warrant ordinances, disclosure statements and other documents necessary,
proper and critical to the ongoing efforts.
To help secure the financial viability of the Golf Course warrant issuance,
to reinforce the Trust Indenture, and to eliminate individual plat sureties
otherwise required, if any, Developer agrees to a commitment letter for an
Irrevocable Letter of Credit ("LOC") in the amount of $600,000 from a
financial institution. The LOC secures the Developer's payment of certain
Enhancement Fees, more particularly described in Section 18A.
4. The mountain water project (Colorado Big Xxxxxxxx) has been successfully
completed and the City has sufficient water and sewer capacity to serve 500
SFE's in the project within four years (with no more than 200 units per
year) and an additional 250 after that initial four year period. The sewer
lift station and the high zone pump station have been successfully
completed by the City and are ready to serve the project.
5. The project has been surveyed and a topography map has been prepared, with
the overall PUD being approved based on those final plans. A Subdivision
Improvement Agreement (SIA) has been approved by the City for the first
filing and such improvements to that parcel of the PUD are underway.
SIA's shall be required for each final plat hereafter.
6. All the studies included in the prior agreement, Section 1.3, either have
been done or will be accomplished in due course.
7. The Developer's water rights associated with the PUD shall be conveyed to
the City by Quit Claim Deed, if that has not already been accomplished.
These water rights are not substitute for the City water rights
requirements for fees for Colorado Big Xxxxxxxx (CBT) and related water
rights purchases described in the Section 13-122(e) of the Fort Xxxxxx
Municipal Code (FLMC). The developer shall not be required to dedicate
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additional water rights in the future, unless the number of residential
units on the property is increased beyond the maximum now approved of 750.
8. The preliminary and final plats for the first individual PUD parcel has
been approved, and will remain enforceable by both parties. Each
subsequent PUD parcel, pursuant to Section 2.2.d of the prior agreement,
shall be subject to the review process set forth in the FLMC, including
public hearings before the Planning Commission and City Council, within the
specifications already approved for the overall PUD. However, Final
Construction Plans (FCP) for individual site plans and/or plats will not be
a prerequisite for Final Plat Approval. Instead, the Engineer for the City
will review and approve the FCP and said public improvements shall be
constructed within two years from the date of the construction plan
approval, or the plans will be subject to resubmittal and reapproval.
9. The Parties agree the Developer shall have the ability and flexibility to
introduce a variety of subdivision themes and innovations, including
reduced street sections (local and collector), off-street parking, urban or
rural drainage features, special street lighting and signage, alternating
or no sidewalks or other design features which will provide unique and
marketable themes for the project. The said PUD themes and innovations are
to be filed with the Planning Commission and City Council on a plat-by-plat
basis, and shall be permitted so long as they are consistent with the
intent of this Agreement and the approved PUD Plan.
The Parties agree the total units developed in a given parcel shall not
exceed the designated limits by more than twenty percent (20%). The
allocation adjustment shall be permitted by density transfers from one or
more development parcels identified in the PUD. The PUD shall provide that
such transfers are regularly accounted for by City planning staff and
Developer. Density transfers may accompany a given final plat submittal.
The Parties agree the Developer or Developer's successor/builders may
obtain building permits in a specific filing prior to completion and City
acceptance of the adjacent Public Improvements. Construction must, however,
proceed in compliance with the Subdivision Improvements Agreement and
Certificates of Occupancy shall be issued only if all adjacent public
improvements are substantially complete and constructed in accordance with
the City's citywide construction standards of the City in effect at the
time of construction.
10. Developer at its sole cost shall engineer and construct all on-site
improvements within individually approved parcels and utilities and street
connections between parcels in the PUD. All such improvements shall comply
with the City construction standards in effect at the time of actual
completion, including:
A. Overlot grading and earthwork within the platted property (may include
road shoulders, if so permitted);
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B. Appropriate curb, gutter, valley pans, sidewalks, pathways or other
site concrete work within the platted property (innovations to which
shall be permitted through the PUD);
C. Street paving (concrete or asphaltic, as approved by the City) on all
local and collector streets within the platted property;
D. Storm drainage systems including inlets, pipelines, manholes channels,
detention ponds, dams, outfall structures and all other facilities
conveying developed storm flows from within the platted property;
E. Water distribution mainlines, valves, air vacs, blow-off's, water
services, fire hydrants and meter pits required to serve new home
sites within the platted property. Any pressure reducing (or
backpressure sustaining) valves and associated vaults required for the
City's pressure zone "breaks" shall be constructed by Developer, at
the Developer's sole cost;
F. Sanitary Sewer trunk lines, mainlines, underdrain systems, manholes
and sewer services required to serve new homesite within the platted
property. Lift stations and force mains are discussed in subsequent
sub-sections.
Any facility over-sizing required by City is detailed in other sections.
11. The Parties agree to construct off-site infrastructure as follows, and as
set forth on Attachment "B";
A. That the Developer engineer and construct the necessary improvements
to the Short-Line Ditch - Phase I, from Colorado Highway 52 north to
Fourteenth Street, including channels, box culverts and the regional
detention pond, estimated to cost $530,000, with no future requests by
the City for participation in Phases II or III. The City shall
exercise its authority to acquire any additional easements or right-
of-ways, if necessary, which may be required to construct the
improvements. Cost of acquisition shall be borne by the Developer.
Also, subsequent to the completion of the project, the City shall
accept and maintain the ditch in perpetuity and shall indemnify the
developer against any future claims or action which may result from
stormwater flooding "downstream" of the Fourteenth Street Detention
Pond (prior to the City's completion of Phase II outfall to the Platte
River). Notwithstanding that the Developer shall retain the right to
"defer" the construction of Phase I provided that interim stormwater
detention ponds are constructed on the Multi-Family Site ("A") and on
the westerly limits of Parcel "D", supported by engineered drainage
studies and satisfactory to the City Engineer with the caveat that the
Developer "must" complete Phase I prior to the issuance of the 125/th/
Certificate of Occupancy "east" of the Xxxxxx Ditch.
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B. That the Developer complete the improvements to the intersection at
the primary, Golf Course entry road on Colorado Highway 52, with full
build-out, accel/decel lanes and necessary appurtenances (north side
only), and the Golf Course entry road previously required to be
completed by the City, both projects estimated to cost $340,000. The
City shall also contribute $125,000 in cash currently appropriated in
the 1998 Financial Plan in conjunction with a Notice to Proceed or by
September 1, 1998 whichever comes first. Also, the City shall assist
the Developer's efforts to apply for and obtain a Temporary
Construction Permit and a Permanent Access Permit from the Colorado
Department of Transportation (CDOT) at the subject intersection on
Colorado Highway 52. The Developer shall retain the right to
construct additional sidewalks, landscaping, signage, monumentation,
street lighting or other amenities adjacent to the Golf Course entry
road at the Developer's sole cost.
C. That the Developer construct curb and gutter, detached sidewalks and
incremental paving (approximately 3 feet) along the south side of
Ninth Street and overlay Ninth Street from Xxxxxxx Elementary east
through the intersection (25 ft.) of Xxxxxxxx Avenue, estimated to
cost $100,000. The City shall be responsible to make any pavement
repairs or remedial subgrade work prior to the overlay project. Also,
the City shall indemnify the Developer against future pavement failure
which may be the result of subsurface failures or subsidence on Ninth
Street.
D. That the Developer construct the westerly one-half (1/2) of the
future collector street improvements on College Avenue to include
earthwork, curb and gutter, and detached sidewalks, estimated to cost
$120,000. Per approved Final Plans and Pavement Design, Developer
shall pave a 26 foot width (two lane) street from the Aims College
entrance to the northerly-most entrance of the development. This
project may be done in two phases, dependent upon the adjacent
development or filing.
E. The Developer shall fund and construct three segments of natural gas
main lines into the development as follows:
(1) Segment No. 1 - Prior to March 1, 1999 (east of Aims College
along Colorado Highway 52, west to intersection with the primary
Golf Course entry road).
(2) Segment No. 2 - Prior to March 1, 1999 (Primary Entrance
Intersection north through Entry Road to Filing 2 and the Golf
Course Clubhouse).
(3) Segment No. 3 - As dictated by adjacent development (from Highway
52 north on College Avenue to individual Coyote Creek filings).
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F. The City will be 100% responsible for extending Ninth Street from
Xxxxxxxx Avenue to College Avenue and extending and widening College
Avenue from the North entrance of the development to Ninth Street as
necessitated by future development. The City may seek contribution
from others (not PUD developer) for such improvements.
G. The City will have the responsibility to improve the intersections of
Xxxxxx Street/Colorado Highway 52, and College Avenue/Colorado Highway
52 when necessitated by future growth or if required by the Colorado
Department of Transportation, at which time the City may seek
contribution from others (not PUD developer) for such improvements.
12. The City and the Developer shall fund the expenses for their respective
legal counsels to obtain three Oil and Gas Siting Agreements for the Golf
Course and the residential development, two of which have already been
obtained. The Developer will be responsible for the incremental and
additional costs of any required "slant" drilling by the respective oil and
gas companies if so required in the Siting Agreements. In addition, the
City will be required to work with the Developer to correct the percent of
royalties that are shared equally between the parties. The parties agree
with respect to this provision that they will mutually cooperate to
reasonably mitigate the costs involved with "slant" drilling and visual
impacts of well sites adjacent to the Course and the PUD.
13. All building and development fees, taxes and charges (as enumerated in
Section 18 of this agreement) for all lots constructed east of the Xxxxxx
Ditch, and the multi-family Parcel "A", will be collected pursuant to then
existing City regulations.
Also, all fees enumerated in Section 18 of this agreement are locked in
until December 31, 2003 at which time any remaining units will be subject
to the then prevailing rates (see Attachment "A").
The Developer may increase the 3 fees that the City will rebate by up to
25% over the then existing regulations, at their discretion, providing only
for notification to the City. This would include the Development Fee, the
Infrastructure Assessment Fee and the Storm Drainage Fee. The Developer
shall be required to notify the City, through the City Administrator, of
any fee increases at least 30 days prior to the Developer's disclosure of
fee increases to its home builders.
14. In order to address the 10 acre shortfall which stems from the prior
agreement's requirement that the Developer was not to net less than 119
acres and netted only 109, even with the initial 35 acres donated by the
developer from its land to the course, the City will agree to the
parcelization and conveyance of Lot 2 (approximately 1.62 acres adjacent to
Colorado Highway 52) as discussed in Section 14.B. below, to the Developer
with the following conditions:
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A. The Developer shall donate/convey any park sites, recreation tracts or
other usable open space to the City on a plat-by-plat basis, with the
City being responsible for converting it to a park site or other
recreational amenities at a later date, provided however, that the
Developer shall be allowed to construct said improvements, at their
expense, if so dictated to meet their needs. Also, the Developer
shall be responsible to extend water and sewer service lines to those
sites which may require turf or landscape irrigation and/or restroom
facilities. Remnant parcels, not suitable or acceptable to the City,
will be retained by the Developer and conveyed to and maintained by a
Master Association to be formed by the Developer; and
B. The City will process a Final Plat (through the Planning Commission
and City Council) for the Clubhouse Entry Road Filing No. 1., as
currently engineered and submitted by the Developer. The Developer
shall submit a zoning request, Preliminary Site Plan and proposed land
uses for Lot 2 within sixty (60) days following the execution of this
agreement. The City will favorably entertain said zoning proposal for
Lot 2 for appropriate retail or commercial zoning which must
compliment or support the adjacent residential community and will not
compete with retail businesses at the Golf Course Clubhouse. Once the
property is appropriately zoned, agreed to by the City and Developer,
the City shall convey, by Special Warranty Deed, Lot 2 to the
Developer and the City shall bear the cost of a Title Commitment and
any necessary closing costs.
C. In recognition of the net loss differential between the 10 acres and
the 1.62 acre parcel, the City shall waive the requirement for the
Developer to participate in the High-Zone Water Pump Station
referenced in Section 4.2.d of the prior agreement totaling $100,000,
as "FULL SETTLEMENT" for the loss of the 10 acres.
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In the event that the Developer and the City cannot reach a reasonable
accord regarding the zoning for Lot 2, the shortfall of 10 acres will be
administered as follows:
A. The City will retain the 1.62 acre parcel; and
B. The City will waive the requirement to participate in the High-Zone
Water Pump Station referenced in Section 4.2.d of the prior agreement
totaling $100,000; and
C. The City will pay cash for the remainder of the "shortfall" based upon
the fair market value of the 10 acres by an appraiser mutually agreed
upon by both parties by June 1, 1999.
15. The Developer shall contribute $75,000 by September 1, 1998 to the City to
assist in the financing necessary to build the course clubhouse and fund
marketing efforts related to the course.
16. The Developer shall contribute $150,000 by June 1, 1999 to the City to
assist in the financing necessary for the acquisition of or construction of
a Community Center.
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17. In response to the comprehensive nature of this amendment and in light of
the mutual cooperation thereof, the City and the Developer will agree not
to request reimbursement for costs already incurred by each other.
18. The Parties agree to establish the level of certain development fees and
charges to be paid by homebuilders over the residential build-out of the
PUD. Certain fees are restricted or pledged and are summarized as follows:
A. Enhancement Fee. Developer or assigns shall pay an Enhancement Fee of
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$2,000 per SFE to be pledged into a shortfall reserve account,
securing the Golf Course Revenue Anticipation Warrants. If annual
fees collected fall below $60,000 per year for the years 1998 through
2007 the Developer's aforementioned letter of Credit ($600,000) shall
be used to secure the Developer's minimum pledge of $60,000 per year.
Any excess over the amounts required to fund the shortfall reserve
account shall be used by the City for the off-site phased
infrastructure detailed in Section 11 of this agreement. As long as
the City is meeting its phased commitments, the City may use any
excess enhancement fees for community enhancements, such as a
community center, recreation center, aquatic facilities, parks,
playing fields and open space.
Any year during the years 1998 through 2007 in which the Developer or
Developer's assigns/homebuilders pay more than $60,000 ($2,000 per
single family equivalent) in enhancement fees, the amount paid in the
excess of $60,000 shall be credited against the subsequent years
$60,000 payment requirement, and the resulting LOC amount shall be the
difference between the $60,000 annual payment requirement and the
amount paid in any given year. The LOC may be reduced annually in
accordance with payments made hereunder, insuring only that an LOC
remains in place in an amount equal to $600,000 minus the total of
enhancement fees paid to that point in time. For example, if at the
anniversary date of the LOC, the Developer or Developer's
assigns/homebuilders have paid $120,000 in Enhancement Fees, the LOC
can be renewed in the amount of $480,000, etc.
B. Infrastructure Assessment Fee. Developer or Developer's assigns agree
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to pay an Infrastructure Assessment Fee pursuant to attachment "A".
50% of these fees are to be rebated to the Developer for the off-site
infrastructure required to serve the Golf Course and Residential
Development projects as enumerated in Section 11. After said time, the
City may use its 50% share of this fee, at its sole discretion, for
any other appropriate city infrastructure projects.
C. Water Tap and Sewer Tap Fees. Developer or Developer's assigns shall
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pay the water tap and sewer tap fees pursuant to attachment "A" which
are locked in until December 31, 2003 at which time any remaining
units will be subject to the then prevailing water and sewer tap fees.
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D. Other Fees and Use Taxes. Developer or Developer's assigns shall pay
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the following other fees and use taxes pursuant to Attachment "A":
(1) Development Fees.
(2) Construction Building Permit Fees.
(3) Storm Drainage Assessment Fee.
(4) Water Resources Fee.
(5) Lien Recording Fees.
(6) Water meters and transponders purchased from the City at cost.
(7) Use Taxes.
19. The parties agree to mutually cooperate to address the means necessary to
engineer and construct a secondary ingress/egress site into the multi-
family parcel "A" and to the Sewer Liftstation.
20. Assignability. This agreement is freely assignable to an assignee known in
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the business community to be financially responsible, reliable and of good
reputation, by the Developer and Land Owners, and all the benefits and
obligations hereunder shall inure to their successors and assigns.
21. The official representative of and contact person for the City is the City
Administrator at City Hall, and the developer's representative, presently
O. Xxxx Xxxxx of Cimarron Consultants, Inc. at his office in Englewood.
The parties shall notify any change in the contact person in writing from
the Mayor of Fort Xxxxxx to Matrix, or from Matrix to the Mayor at City
Hall.
CITY OF FORT XXXXXX MATRIX FUNDING CORP.
("CITY"): ("DEVELOPER"):
_______________________________ ___________________________________
CITY (Signature) DEVELOPER (Signature)
Xxx Xxxxx, Mayor Xxx Xxxxxx, President
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(Printed name and title) (Printed name and title)
ATTEST: ATTEST:
_______________________________ ___________________________________
Xxxxxxx Xxxxxxx, City Clerk O. Xxxx Xxxxx, Development Manager
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COYOTE CREEK PUD AGREEMENT
SCHEDULE OF FEES
Total
SF SF SF SF SF MF Potential
Fee Xxxx Xxxx Xxxx Xxxx Xxxx Xxxx Revenues
Type Fund 1-100 101-200 201-300 1-100 101-250 1-200 (750 units)
---- ---- ----- ------- ------- ----- ------- ----- -----------
CITY OF FORT XXXXXX RECEIVES AND RETAINS
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Water Resources Fee (CBT) 1 WF Per City Regulations at time Building Permit is issued.
Water Tap Fees 2 WF $ 1,250 $ 1,250 $ 1,250 $ 1,250 $ 1,250 $ 1,250 $ 937,500
Sewer Tap Fees 2 SF $ 1,250 $ 1,250 $ 1,250 $ 1,250 $ 1,250 $ 1,250 $ 937,500
Enhancement Fees (Golf) GOLF $ 2,000 $ 2,000 $ 2,000 $ 2,000 $ 2,000 $ 2,000 $ 1,500,000
Enhancement Fees (CPR) CPR Per City Regulations at time Building Permit is issued.
Construction Permit Fees GF Per City Regulations at time Building Permit is issued.
Use Taxes Multi-Funds Per City Regulations at time Building Permit is issued.
CITY REBATES TO DEVELOPER
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Development Fee 3 n/a $ 800 $ 900 $ 1,000 $ 1,200 $ 1,400 $ 700 $ 740,000
Storm Drainage Assessment Fee 3 n/a $ 250 $ 250 $ 350 $ 550 $ 650 $ 250 $ 287,500
CITY AND DEVELOPER SHARES EQUALLY
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Infrastructure Assessment Fee 3/4 GF 600 1,300 2,000 2,500 3,000 600 $ 1,210,000
1. The stated Water Resource Fee
2. Fixed until 12-31-2003 at which time this fee will convert to the City's
prevailing rate.
3. The Developer shall have the right to adjust these fees up to 125% of the
City's then prevailing rate with a thirty day notice sent to the City.
4. The Developer and the City shall share this fee equally.
Note: Total Potential Revenues is an estimate based on the construction of 750
units. The actual number of units may be lower.
ATTACHMENT "B"
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COYOTE CREEK PUD AGREEMENT
OFFSITE INFRASTRUCTURE REQUIREMENTS BETWEEN DEVELOPER AND CITY
ESTIMATED FUNDING REQUIREMENTS
ESTIMATED SCHEDULE/
PROJECT DESCRIPTION FUND COSTS DEADLINES
------------------- ---- ----- ---------
CITY OF FORT XXXXXX:
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EXPENDITURES:
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East Sewer Lift Station (100% towards project) Sewer $ 462,238 Done.
Entry Road Participation Street 125,000 Due to Developer 9-1-98 or Notice
to Proceed.
Water Pump Station (30% towards project) Water 497,126 Done.
Finish 9th from Xxxxxxxx to College Street 170,000 As necessitated by future growth.
Finish College from North ent. to 0xx Xxxxxx 210,000 As necessitated by future growth.
Intersection - Xxx. 00/Xxxxxx Xx. Xxxxxx 000,000 As necessitated by future growth.
Intersection - Hwy. 52/College Ave. Street 163,000 As necessitated by future growth.
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Total Expenditures $ 1,772,364
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Remaining as of 6-15-98 $ 813,000
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DEVELOPER:
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EXPENDITURES:
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Preliminary Engineering $ 125,000 Ongoing
Entry Road Participation 90,000 Must be completed before 5-1-99.
Hwy. 52/Golf Course Intersection 125,000 Phase I - prior to 5-1-99.
Phase II - by CDOT permit.
Shortline Imp. - Phase I 530,000 On or before the 125th C.O. (east of
Xxxxxx Ditch) or as required by Engineer.
Overlay 9th from Xxxxxxx to Xxxxxxxx 100,000 Prior to the 50th C.O. in Filing No. 2.
Construct 26' road on College from Aims entrance 120,000 Prior to the 1st C.O. in any filing east
to North entrance into Development. of Xxxxxx Ditch.
Community Center Contribution (due 6-1-99) 150,000 On or before 6-1-99.
Clubhouse Contribution (due 11-1-98) 75,000 On or before 11-1-98.
Natural Gas Extensions (3 segments) 40,000 Segments 1&2 by 3-1-99.
Segment 3 with filings east of Xxxxxx.
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Total Expenditures $ 1,355,000
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*Note: Funds received from the Developer for the Clubhouse and Community Center
will be deposited into the Golf Fund and CPR Fund respectively.
