HomeMy WebLinkAbout1.23 DevelopmentAgreementDEVELOPMENT AGREEMENT
RIVER EDGE COLORADO PLANNED UNIT DEVELOPMENT
THIS AGREEMENT, is made and entered into between the BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY OF GARFIELD, a body politic and corporate (the
"County"), and CARBONDALE INVESTMENTS, LLC, a Texas limited liability company
registered to do business in Colorado ("Developer"). The County and Developer may
hereinafter be referred to collectively as the "Parties."
WITNESSETH:
1. Developer is the owner of certain real property located in Garfield County,
Colorado, more particularly described in Exhibit 1 (the "Property").
2. By Resolution No. [ ], dated [ ], 2011, and recorded at Reception
No. [ ] in the real property records of the County, the Garfield County Board of
County Commissioners (the "Board") approved the River Edge Colorado Planned Unit
Development and the River Edge Colorado Planned Unit Development Guide (collectively, the
"REC PUD"). The REC PUD contemplates attached and detached single-family residential
uses, community service uses, passive and active recreational uses, open space, limited sand and
gravel mining uses, and limited agricultural uses (the "Project").
3. By Resolution No. [ ], dated [ ], 2011, and recorded at Reception
No. [ ] in the real property records of the County, the Board approved the River
Edge Colorado Preliminary Plan (the "REC Preliminary Plan"), recorded at Reception No.
[ ] in the real property records of the County.
4. By Resolution No. [ ], dated [ ], 2011, and recorded at Reception
No. ] in the real property records of the County, the Board approved that certain
Phase 0 Subdivision Improvement Agreement (the "Phase 0 SIA"), recorded at Reception No.
] in the real property records of the County. Pursuant to the Phase 0 SIA,
Developer will expend significant time and resources preparing the Property for development of
the Project, by commencing, among other things, basic site grading, the replacement of soils
previously removed from the Property, the revegetation of planned open space areas, the
implementation of landscape buffers, the removal and elimination of noxious weeds, the
institution of water quality control measures, the construction of a grade -separated recreational
trail at the intersection of the Project's entryway and the Roaring Fork Transit Authority
recreational trail located along the eastern boundary of the Property, and the relocation of the
Glenwood Ditch (collectively, the "Phase 0 Activities"). The Parties acknowledge that the
Phase 0 Activities may occur in advance and independently of the Project.
5. In accordance with the requirements of Article VIII (the "Affordable Housing
Regulations") of the Garfield County Unified Land Use Resolution of 2008 (the "LUR"),
Developer has agreed to provide deed -restricted affordable for -sale housing on the Property as
part of the Project as specifically provided in the affordable housing agreement attached hereto
as Exhibit 2 (the "Affordable Housing Agreement").
13738\1\1469742.4
1/11/11 03:25 PM
1
6. The Project will be developed in multiple phases, wherein each phase will require
final plat approval, with the first phase of construction contemplated to commence sometime
between 2012 and 2014, and subsequent phases to be constructed over an approximately ten (10)
to twenty (20) year period, as shown on the estimated phasing and construction schedule
included in the REC PUD (the "Phasing Plan").
7. The Vested Property Rights Statute C.R.S. §§ 24-68-101 et seq. (the "Statute")
and the LUR provide for the establishment of vested property rights in order to advance the
purposes stated therein upon approval of a site specific development plan (a "Site Specific
Development Plan" or "SSDP"). The LUR and Statute further authorize the County to enter
into development agreements with landowners providing for vesting of property development for
greater than three (3) years where warranted in light of relevant circumstances, including but not
limited to, the size and phasing of development, economic cycles, and market conditions.
8. By Resolution No. [ ], dated [ ], 2011, and recorded at Reception
No. [ ], the Board has considered and approved the applications for approval of the
[River Edge Colorado Final Plat Filing No. 1 and River Edge Colorado Final Plat Filing
No. 1B] (collectively, the "Phase 1 Final Plat") after notice and public hearing as required by
law, and pursuant to the requirements of Section 5-305 of LUR. The County finds and
determines that the Phase 1 Final Plat constitutes a Site Specific Development Plan, as that term
is defined in C.R.S. § 24-68-102(4)(a) and Section 1-202(B) of the LUR.
9. Development of the Property in accordance with the REC PUD, REC Preliminary
Plan, Phase 1 Final Plat, and such future final plats that are approved for the various phases of
the Project (collectively, the "Project Plans") will provide for orderly, well planned growth in
accordance with the policies and goals stated in the Garfield County Comprehensive Plan 2030,
provide significant trails and open space, promote diversity and affordability of housing stock,
ensure reasonable certainty and stability in the land use planning process, and otherwise achieve
the goals and purposes of the Statute and LUR.
10. Development of the Property also will require substantial investments in
infrastructure improvements and public facilities, both on the Property and outside the Property,
which will serve the needs of the Property and the County. Such investments can be supported
only with assurances that development of the Property can proceed to ultimate completion as
provided in the Project Plans and this Agreement.
11. In exchange for the foregoing benefits and other benefits to the County
contemplated by this Agreement, together with the public benefits served by orderly and well
planned development of the Property, Developer desires to receive the assurance that it may
proceed with development of the Property pursuant to the terms and conditions contained in this
Agreement. The County has determined that, in light of the importance of the development of
the Project and the unpredictability of economic cycles and market conditions over the life of the
development of the Project, it is appropriate to provide such assurances to Developer through
this Agreement.
12. The mutual promises, covenants, and obligations contained in this Agreement are
authorized by the statutes of the State of Colorado and the laws of the County.
13738\1\1469742.4
1/11/11 03:25 PM
2
NOW, THEREFORE, in consideration of the promises cited above and the mutual covenants
and promises contained herein, the sufficiency of which is acknowledged, the County and
Developer agree as follows:
1. Incorporation of Recitals. The Parties agree that the aforesaid recitals are true and
correct, and those recitals are hereby incorporated into the body of this Agreement.
2. General Provisions.
(a) Scope. The terms and conditions of this Agreement shall apply to the Property.
(b) Phasing. Construction of the Project is anticipated to occur in up to eleven (11)
phases. The Phasing Plan sets forth the phases of the Project by identifying eleven (11)
subdivision filings (each a "Filing"). Developer currently contemplates that the Filings will be
submitted, and construction will commence, in the order set forth on the Phasing Plan; provided,
however, that Developer currently contemplates that Filing 1 and Filing 1B will be processed
concurrently, Filing 2 and Filing 2A will be processed concurrently, and Filing 5 and Filing 5A
will be processed concurrently (each a "Concurrent Filing"). The Concurrent Filings are
intended to ensure the Project's compliance with the County's affordability requirements and
open space requirements. Notwithstanding the foregoing, however, the Filing sequence set forth
in the Phasing Plan, and explained in this Section 2.b, may be altered, provided that each Filing
that is submitted for County review and approval shall meet all of the following requirements:
(i) The infrasatructure required to support such Filing shall have been
constructed in advance of the Filing or as part of the Filing;
(ii) The percentage of total area of Community Spaces, as such term is defined
in the River Edge Colorado Planned Unit Development Guide, that is finally platted at the time
of recordation of such Filing shall equal or exceed twenty-five percent (25%) of the total area of
the Project that is finally platted at the time of recordation of such Filing;
(iii) The total number of deed -restricted affordable residential lots within the
Project that are finally platted at the time of recordation of such Filing shall equal or exceed
fifteen percent (15%) of the total number of residential lots, including deed -restricted affordable
residential lots, that are finally platted at the time of recordation of such Filing; and
(iv) Approval of the Filing is consistent with a logical and orderly manner of
development, upon consideration the functional relationship and contiguity of the proposed
Filing with approved preceding Filings and with existing development.
(c) In addition, the Parties acknowledge and agree that, in accordance with the PUD
Guide, any request by Developer to alter the sequence of Filings set forth in the Phasing Plan
shall be treated as a non -substantial modification to the REC PUD. Notwithstanding the
foregoing, the Parties acknowledge that the Phase 0 Activities may occur in advance and
independently of the Project.
13738\1\1469742.4
1/11/11 03:25 PM
3
3. Vesting of Certain Property Rights. The County and Developer hereby agree that
Developer shall have a vested property right to the extent provided in this Agreement to
undertake and complete development and use of the Property.
(a) Intent of Vesting System. The vesting system set forth in this Section 3 balances
the County's obligation to protect the public health, safety and welfare of the community and its
desire to facilitate the highest quality development with Developer's private property rights and
Developer's need to rely on County approvals to achieve an economically viable project.
(b) Overview of Vesting System.
(i) Nature of Vested Rights. During the term of vested rights set forth in
Section 3(d) below, Developer shall have the right to develop uses at such densities and in the
general locations on the Property described in the approved Project Plans, as such plans may be
amended from time to time. Upon County approval of any future final plats that are approved
for the various phases of the Project, such plats shall automatically be entitled to the same vested
rights as have been granted herein for the period of vesting which remains under this Agreement.
(c) Rights That Are Vested. The rights identified herein or as may hereafter be
acquired by operation of any state or local vested property rights law shall constitute vested
property rights under this Agreement and shall not be taken by the County without just
compensation. These rights include the following:
(i) No Downzoning. The maximum number of residential dwelling units and
acres for residential use, and the total gross acres for non-residential uses, as set forth in the
Project Plans, as such plans may be amended from time to time, are hereby vested.
(ii) Uses, Densities and Locations. The right to develop the Property in
accordance with the uses, densities, and general locations set forth in the Project Plans, as such
may be amended from time to time, is hereby vested.
(iii) Site Development Standards. The right to develop the Property in
accordance with the design standards, development standards, and terms and conditions set forth
in the Project Plans and the resolutions of the Board approving the same, as such may be
amended from time to time, is hereby vested.
(iv) Timing of Development. The right to commence and complete
development of the Property at such time, in such order, and at such rate as Developer deems
appropriate in its sole discretion, subject to the Affordable Housing Agreement and final plat
approval by the County. This provision of this Agreement supersedes any County rules or
regulations that require development to be commenced or completed in any specific time frame.
(v) Subsequent Approvals. The right to receive all County approvals
necessary for development of the Project provided that subsequent final plat submittals or
applications for other approvals comply with this Agreement and the Project Plans as the same
may be amended.
(vi) Site Specific Development Plan. This Agreement and the Project Plans,
including any future final plats that are approved by the County for the various phases of the
13738\1\1469742.4
1/11/11 03:25 PM
4
Project, as such plans and plats may be amended from time to time, shall be considered a SSDP
for the purposes of the Statute and Sections 1-201 and 1-202 of the LUR. The following
statement is provided to satisfy the requirements of the Statute and Sections 1-202(E) and 4-
502(H)(2) of the LUR:
Approval of this plan shall create a vested property right
pursuant to article 68 of title 24, C.R.S., as amended.
(d) Term of Vested Rights. In recognition of the size of the Project contemplated by
this Agreement and the Project Plans, the time required to complete the Project, the need to
proceed in phases, and varying economic cycles and market conditions likely to occur during the
course of development of the Project, the County agrees that the rights identified as vested rights
in this Section 3 shall commence on the Effective Date (as defined in Subsection 3(e) below),
and shall end on the twentieth anniversary of the Effective Date (the "Term"), unless extended
by mutual agreement of the Parties. After the expiration of Term, this Agreement shall be
deemed terminated and of no further force or effect; provided, however, that such termination
shall not affect (i) any common law vested rights obtained prior to such termination, or (ii) any
right, vested, or otherwise, arising from County permits, approvals or other entitlements for the
Property or the Project that were granted or approved prior to, concurrently with, or subsequent
to the approval of this Agreement.
(e) Adoption, Notice and Effective Date. The County has adopted this Agreement
as a legislative act subject to referendum, as required by C.R.S. § 24-68-104(2). As set forth in
and required by C.R.S. § 24-68-103(c), within fourteen (14) days from the date hereof, the
County shall cause to be published in a newspaper of general circulation within the County, a
notice advising the general public of the approval of the Phase 1 Final Plat as a SSDP and the
creation of vested property rights pursuant to this Agreement and the Statute. The "Effective
Date" of the County's approval of this Agreement shall be the date of said publication.
4. No Impairment of Vested Rights. After the Effective Date, the County shall not support,
adopt, or enact any ordinance, resolution, rule, regulation, standard, directive, condition or other
measure, whether imposed by specific reference to the Property or the Project or as part of a
general enactment which applies to or affects the Property or the Project, or take any other action
that would have the effect, in its application to the Property or the Project of altering, impairing,
preventing, diminishing, imposing a moratorium on development, delaying or otherwise
adversely affecting any of the vested rights set forth in this Agreement.
5. Applicability of Other Regulations. Except as otherwise provided by this Agreement,
the establishment of vested rights under this Agreement shall not preclude the application of a
uniform and non-discriminatory basis of City ordinances and regulations of general applicability
(including by way of example, building, fire, plumbing, electrical and mechanical codes) or the
application of state or federal regulations, as all of such regulations exist on the Effective Date or
may be enacted or amended after the Effective Date; provided, however, that such newly enacted
or amended County regulations shall not, in their application to the Property or the Project, have
the effect of altering, impairing, preventing, diminishing, imposing a moratorium on
development, or delaying or otherwise adversely effecting the vested rights set forth in this
Agreement. Further, Developer does not waive its rights to oppose the enactment or amendment
13738\1\1469742.4
1/11/11 03:25 PM
5
of any such regulations, or to challenge the validity of such regulations through proper legal
means.
6. Affordable Housing. In developing the Property, Developer shall comply with the
requirements of the Affordable Housing Agreement. The Parties agree that Developer's
compliance with such agreement shall be in full satisfaction of any and all Affordable Housing
Regulations, including requirements for affordable housing that the County may adopt or amend
subsequent to the Effective Date.
7. Fees in Lieu of Dedications of School Land. Owner shall dedicate land or make a cash
deposit in lieu of dedicating land to the Roaring Fork School District RE -1 (the "School
District"), in accordance with the LUR and the requirements of state law.
8. Improvements. At the time of final plat approval for each phase of the Project, the
Parties shall enter into a subdivision improvement agreement ("SIA") that specifies the public
and private improvements required to support and serve such phase of the Project, and
establishes the terms, security mechanism, and schedule upon which Developer shall be
obligated to design, construct, and install the same. The form of SIA required for each phase of
the Project shall be consistent with form attached hereto as Exhibit 3. Notwithstanding the
foregoing, to the extent Developer seeks final plat approval for one (1) or more phases of the
Project concurrently, only one (1) SIA covering all such phases shall be required to be submitted
therewith. Notwithstanding the foregoing, the Phase 0 Activities shall be governed solely by the
Phase 0 SIA.
9. No Obligation to Develop. Notwithstanding anything to the contrary contained in this
Agreement and the Project Plans, Developer shall have no obligation to develop all or any
portion of the Project.
10. Miscellaneous
(a) Each Party shall bear its own costs related to the preparation of this Agreement.
(b) Mutual Cooperation. The County and Developer shall mutually cooperate and
perform all acts necessary or appropriate to discharge all obligations contained in or
contemplated by this Agreement.
(c) Severability. If any provisions or parts of this Agreement are judged
unenforceable or invalid, to the extent practicable, such judgment shall not affect, impair, or
invalidate the remaining parts of this Agreement, the intention being that the various parts and
provisions hereof are severable.
(c) Integrated Agreement and Amendments. This Agreement and the exhibits
attached to it or incorporated by reference constitute the entire, integrated agreement of the
County and Developer with respect to the matters addressed herein. This Agreement may be
amended only by the mutual agreement of the County and Developer as follows:
13738\1\1469742.4
1/11/11 03:25 PM
(i) Any amendment that does not relate to (1) the Term of this Agreement, (2)
the uses and densities allowed under the Project Plans, (3) the material obligations
of the County or Developer, or (4) the remedies under this Agreement, shall be
6
deemed a minor amendment ("Minor Amendment"), and may be executed by
Developer and the County Building and Planning Director.
(ii) Any amendment to this Agreement that is not a Minor Amendment shall
be approved and executed with the same formalities as this Agreement has been
approved and executed.
(d) Recording of Agreement This Agreement shall be recorded with the Garfield
County Clerk and Recorder at Developer's expense and shall be a covenant running with and
against all the property, property rights, and improvements contained within the Property
described in Exhibit 1, in order to put prospective owners, purchasers, successors, assigns, and
others acquiring any interest in the Property on notice as to the terms and obligations herein.
(e) Binding Effect. Unless otherwise provided herein, this Agreement shall be
binding upon Developer's heirs, successors, assigns, transferees, and any other person or entity
acquiring or purchasing any interest in any of the Property.
(f) Notice. Any notices, demands or other communications required or permitted to
be given in writing hereunder shall be delivered personally, delivered by overnight courier
service, or sent by certified mail, postage prepaid, return receipt requested, addressed to the
Parties at the addresses set forth below, or at such other address as either party may hereafter or
from time to time designate by written notice to the other party given in accordance herewith.
Notice shall be considered given at the time it is personally delivered, the day delivery is
attempted but refused, the day following being placed with any reputable overnight courier
service for next day delivery, or, if mailed, on the third day after such mailing.
TO DEVELOPER:
Carbondale Investments, LLC
Attn: Rockwood Shepard
7999 Highway 82
Carbondale, CO 81623
Phone: (970) 456-5325
Fax:
With a copy to:
Brownstein Hyatt Farber Schreck
Attn: Carolynne C. White, Esq.
410 Seventeenth Street, Suite 2200
Denver, Colorado 80203
Phone: 303.223.1197
Fax: 303.223.0997
13738\1\1469742.4
1/11/11 03:25 PM
7
TO THE COUNTY:
Garfield County Board of County Commissioners
Attn: Building and Planning Director
108 Eighth Street, Suite 401
Glenwood Springs, Colorado 81601
Phone: 970.945.8212
Fax: 970.3 84.3470
(g) Applicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Colorado.
(h) Venue and Jurisdiction. Venue and jurisdiction for any cause arising out of or
related to this Agreement shall lie with the District Court of Garfield County, Colorado.
(h) Counterparts. This Agreement may be executed in counterparts, each of which
will constitute one and the same instrument.
13738\1\1469742.4
1/11/11 03:25 PM
[Signature pages follow.]
8
IN WITNESS WHEREOF, and agreeing to be fully bound by the terms of this
Agreement, the Parties have set their hands below on this day of
2011.
ATTEST:
By:
Clerk of the Board
13738\1\1469742.4
1/11/11 03:25 PM
DEVELOPER:
CARBONDALE INVESTMENTS, LLC,
a Texas limited liability company
By:
Name:
Its:
COUNTY:
GARFIELD COUNTY BOARD OF
COMMISSIONERS, COUNTY OF GARFIELD,
COLORADO, a body corporate and politic
By:
Name:
Its: Chairman
9
13738\1\1469742.4
1/11/11 03:25 PM
EXHIBIT 1
DEVELOPER'S PROPERTY
10
13738\1\1469742.4
1/11/11 03:25 PM
EXHIBIT 2
AFFORDABLE HOUSING AGREEMENT
11
13738\1\1469742.4
1/11/11 03:25 PM
EXHIBIT 3
FORM OF SUBDIVISION IMPROVEMENT AGREEMENT
12