HomeMy WebLinkAbout20.0 Draft Vested Rights AgreementVESTED RIGHTS AGREEMENT
SPRING VALLEY RANCH PLANNED UNIT DEVELOPMENT
THIS AGREEMENT, is made and entered into between the COUNTY OF GARFIELD, a body
politic and corporate (the "County"), SPRING VALLEY DEVELOPMENT, INC., a Colorado
corporation ("Developer"), and SPRING VALLEY RANCH COMMUNITY MASTER
ASSOCIATION, INC., a Colorado non-profit corporation (the "HOA"). The County,
Developer, and the HOA may hereinafter be referred to collectively as the "Parties".
WITNESSETH:
A. Developer is the owner of certain real property located in Garfield County,
Colorado, more particularly described in Exhibit 1 ("Developer's Property"). The HOA is the
owner of certain real property located in Garfield County, Colorado, more particularly described
in Exhibit 2 ("HOA Property"), which property was conveyed to the HOA by Developer for the
purposes described in the Project Plans (defined below). The Developer's Property and HOA
Property are collectively referred to as the "Property."
B. By Resolution No. 2008-55, dated April 21, 2008, recorded in the real property
records of Garfield County as Reception No. 747015, the Garfield County Board of County
Commissioners (the "Board") approved the Spring Valley Ranch Planned Unit Development
(the "SVR PUD"). The SVR PUD contemplates residential and commercial uses with
significant active and passive open space areas (the "Project").
C. By Resolution No. 2008-56, dated April 21, 2008, recorded in the real property
records of Garfield County as Reception No. 747016, the Board approved the Preliminary Plan
for the SVR PUD (the "SVR Preliminary Plan").
D. The SVR PUD and SVR Preliminary Plan contemplate eleven (11) separate
phases of development for the Project, wherein each phase will require final plat approval.
E. The SVR PUD and SVR Preliminary Plan provide that the first phase of
development of the Project will consist of one parcel (P-23) owned by Developer, on which is
located an existing dwelling unit, and the HOA Property, which consists of open space and
limited entryway improvements ("Phase 1"). Developer does not plan, and Phase 1 does not
contemplate, any new dwelling units, utilities or infrastructure for Phase 1.
F. The SVR PUD provides that the start of construction for each phase is based on
the date of approval of the final plat for Phase 1 (the "Phase 1 Final Plat"); provided, however,
that the final plats for all phases of the Project are approved no later than fifteen (15) years after
the date of approval of the Phase 1 Final Plat (the "Phasing Plan").
G. By motion, dated July 21, 2008, the Board approved an extension of not more
than one (1) year for Developer to commence development of the Project or submit an
application for the Phase 1 Final Plat (the "Approved Extension").
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H. Developer submitted the Phase 1 Final Plat in the time period allowed by the
Approved Extension and intends, contemporaneously herewith, to bring the Phase 1 Final Plat
before the Board for final approval.
I. The Vested Property Rights Statute 24-68-101 et seq., C.R.S. (the "Statute") and
the Garfield County Land Use Resolution of 2008 (the "LUR") provide for the establishment of
vested property rights in order to advance the purposes stated therein, and authorize the County
to enter into development agreements with landowners providing for vesting of property
development for periods greater than three (3) years.
J. Development of the Property in accordance with the SVR PUD, SVR Preliminary
Plan, 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, provide
significant trails and open space, promote diversity of housing stock, ensure reasonable certainty
and stability in the land use planning process, stimulate economic growth within the County, and
otherwise achieve the goals and purposes of the Statute and LUR.
K. Development of the Property will also 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.
L. 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 vested property rights in the
Project Plans in accordance with this Agreement.
M. In addition, and notwithstanding the foregoing recitals, in light of the current
difficulties and volatility of the national housing and lending market, it may not be prudent for
Developer to undertake the large expenditures of funds necessary to commence development of
Phase 2 and subsequent phases within the time frame set forth in the Phasing Plan. In the event
Developer decides not to commence development of phases subsequent to Phase 1 within the
time frame set forth in the Phasing Plan, Developer seeks the County's assurance that the
Property will be returned to its prior configuration in accordance with 30-28-139, C.R.S. and
Section 12-106 of the LUR and rezoned from PUD to a zone district that meets the criteria set
forth in Section 4-201(B) of the LUR. In such event, Developer further seeks the HOA's
assurance that it will re -convey the HOA Property back to Developer for the purpose of
effectuating the return of the Property to its prior configuration.
N. 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.
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:
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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, with Phase 1 being the initial phase of the Project, and construction of subsequent phases
occurring in accordance with the Phasing Plan set forth in the SVR PUD.
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 will 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 same 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.
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(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 set forth in the
Phasing Plan of the SVR PUD. 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 then -current duly -adopted,
generally applicable regulations.
(vi) Site Specific Development Plan. As to the matters vested under this
Agreement and the Project Plans, including any future final plats that are approved by the
County for the various phases of the Project, as such plans and plats may be amended from time
to time, shall be considered a site-specific development plan 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 Section 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 be vested for a period of fifteen (15) years from the date of the County's
approval of this Agreement.
4. 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 Property, except as set forth in the Subdivision Improvements Agreement for
Phase 1 as the same may be amended. In the event Developer does not commence development
of Phase 2 within the time frame set forth in the Phasing Plan, the Parties shall undertake the
actions set forth in this Section 4.
(a) In accordance with the Phasing Plan, the date for start of construction for Phase 1
shall be April 2011. Therefore, according to the Phasing Plan, the start of construction for Phase
2 must commence by April 2017. At any time before April 1, 2017, the Developer may notify
the County and the HOA of its intent not to proceed with the development of Phase 2 and
subsequent phases. In the alternative, the County may declare the Developer in violation of the
Phasing Plan if the Developer does not file with the County an application for approval of a final
plat for Phase 2 on or before March 31, 2017, by notice to the Developer and the HOA.
(b) Within thirty (30) days of the date the notices described in Section 4(a) above, the
HOA shall convey the HOA Property to Developer, by good and sufficient general warranty
deed, free and clear of all liens and encumbrances.
(c) As soon as practicable after the date of the notices described in Section 4(a)
above, the County shall undertake the procedures necessary to return the Property to the
configuration that existed prior to the SVR PUD and SVR Preliminary Plan, in accordance with
the procedures set forth in 30-28-139, C.R.S. and Section 12-106 of the LUR. Concurrently
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therewith, the County shall undertake the procedures necessary to rezone the Property from PUD
to a zone district that meets the criteria set forth in Section 4-201(B) of the LUR.
(d) The remedy set forth in this Section 4 shall be the County's sole remedy at law or
in equity for Developer's failure to commence construction of Phase 2 within the time frame set
forth in the Phasing Plan.
5. 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.
6. 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.
7. 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.
8. Notice. Any notice to Developer or the County, which may be given under the terms of
this Agreement, shall be in writing and shall be deemed sufficiently given when sent certified
U.S. Mail and first class mail, postage prepaid, addressed as follows:
TO DEVELOPER:
Spring Valley Development, Inc.
Attn: Daniel Goldberg
Seligman Western Enterprises, Ltd.
600 Montgomery Street, 40th Floor
San Francisco, CA 94111
Phone: 415.658.2889
Fax:
With a copy to:
Brownstein Hyatt Farber Schreck
Attn: James S. Lochhead, Esq.
818 Colorado Ave., #306
Glenwood Springs, CO 81602
Phone: 970.618.3810
Fax: 970.384.2360
TO THE HOA:
Spring Valley Ranch Community Master Association, Inc.
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Attn: Daniel Goldberg
P.O. Box 1146
4000 County Road 115
Glenwood Springs, CO 81602
Phone:
Fax:
With a copy to:
Brownstein Hyatt Farber Schreck
Attn: James S. Lochhead, Esq.
818 Colorado Ave., #306
Glenwood Springs, CO 81602
Phone: 970.618.3810
Fax: 970.384.2360
TO THE COUNTY:
Attn:
Phone:
Fax:
The Parties shall provide notice of any change in the above -referenced information.
9. Applicable Law. This Agreement shall be construed and enforced in accordance with the
laws of the State of Colorado
10. Counterparts. This Agreement may be executed in counterparts, each of which will
constitute one and the same instrument.
[Signature pages follow.)
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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
2010.
DEVELOPER:
SPRING VALLEY DEVELOPMENT, INC.,
a Colorado corporation
By:
Name:
Its:
ASSOCIATION:
SPRING VALLEY RANCH COMMUNITY
MASTER ASSOCIATION, INC., a Colorado
non-profit corporation
By:
Name:
Its:
COUNTY:
GARFIELD COUNTY BOARD OF
COMMISSIONERS, COUNTY OF GARFIELD,
COLORADO, a body corporate and politic
By:
Name:
Its: Chairman
ATTEST:
By:
Clerk of the Board
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EXHIBIT 1
DEVELOPER'S PROPERTY
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EXHIBIT 2
HOA PROPERTY
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