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HomeMy WebLinkAbout7512RESOLUTION NO. 7512 A RESOLUTION APPROVING A CONTRACT AND ESCROW AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORA- TION AND WALKING STICK U.S. LIMITED PARTNERSHIP, A COLORADO LIMITED PARTNERSHIP RELATING TO THE DEVELOPMENT OF WALKING STICK MASTER PLAN AREA AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The Contract and Escrow Agreement dated November 28, 1994 between Pueblo, a Municipal Corporation and Walking Stick U.S. Limited Partnership, a Colorado Limited Partnership relating to the development of Walking Stick Master Plan Area, copies of which are attached hereto and incorporated herein, having been approved as to form by the City Attorney, are hereby approved. SECTION 2 The President of the City Council is authorized to execute the Contract and Escrow Agreement in the name and on behalf of the City and the City Clerk is directed to affix the seal of the City to the Contract and attest same. ATTEST: INTRODUCED: November 28, 1994 By JOHN CALIFANO Councilperson APPROVED: By City Clerk eyresictent of the City Council I:\ CITY \ANNEXAT\WALKSTIK \K &EA -RES.W PD `Reception #: 1065023 Date: 12/12/1994 Time: 1158 Book: 2773 Page: 408 Chris C. Munoz Inst.: CONT Rec Fee: 30.00 Doc Fee: 0.00 Page: 1 of 6 Pueblo Co.C1k.&Rec. CONTRACT THIS CONTRACT is entered into the 28th day of November, 1994 between Pueblo, a municipal corporation, 1 City Hall Place, Pueblo, Colorado (herein "City ") and Walking Stick U.S Limited Partnership, a Colorado Limited Partnership, 301 North Main Street, Suite 207, Pueblo, Colorado, 81003 (herein "Company "), WITNESSETH: WHEREAS, City and Colorado State Board of Agriculture entered into an Annexation Agreement Case No. A -90 -1 dated June 25, 1990 and recorded August 7, 1990 in Book 2510, at Page 564 of the records of the County Clerk and Recorder (the "Annexation Agreement "), and WHEREAS, pursuant to the Annexation Agreement the developer of the Master Plan Area is obligated to construct and install street and other improvements required by the development of the Master Plan Area, and WHEREAS, the subdivision ordinances of the City require the developer of land within the City to install subdivision and other improvements including streets adjacent to land being subdivided, and - WHEREAS, Company has submitted to the City for approval Walking Stick Estates Filing No. 2 Subdivision and Walking Stick Estates Filing No. 2 Special Area Plan which may require the installation of a portion of Walking Stick and Cedarweed Boulevards, and WHEREAS, City and Company are willing to enter into a contract with respect to the deposit of funds to secure the installation and completion of Walking Stick and Cedarweed Boulevards in accordance with City's specifications and requirements. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, City and Company agree as follows: A. DEFINITIONS 1. Definitions When used herein, the following terms shall have the following meaning unless the context clearly requires otherwise: (a) "Boulevards" means Cedarweed and Walking Stick Boulevards as shown on the attached Exhibit "A ". (b) "Master Plan Area" means the Master Plan Area as defined in the Annexation Agreement recorded in Book 2510, at Page 564 of the records of the Pueblo County Clerk and Recorder. f- (c) "Subdivisions" means Walking Stick Estates Filing No. 2 Subdivision and Book: 2773 Page: 409 Chris C. Munoz Page: 2 of 6 Pueblo Co.Clk. &Rec. Walking Stick Estates Filing No. 2 Special Area Plan. (d) "Escrow Account" means the funds on deposit in escrow account pursuant to Paragraph C. Deposit of Funds of this Contract. (e) "Director" means the City's Director of Public Works. B. EFFECTIVE DATE 1. Effective Date This Contract shall become effective upon the recording of either or both of the Plats for the Subdivisions. C. DEPOSIT OF FUNDS 1. Del2osi . Company and City acknowledge and agree that the Boulevards are not at this time required to be installed but will be required to be installed as the Master Plan Area is further developed. Therefore, the parties agree that in order to secure the installation and construction of the Boulevards by the developer of the Master Plan Area, a specified amount upon the sale of each residential lot within the Master Area Plan (except lots located within Walking Stick Estates Filing No. 1, a Special Area Plan and Villa at Walking Stick, a Special Area Plan) shall be deposited in an interest - bearing Escrow Account. Company and any other successor or substitute developer of the Master Plan Area shall deposit into the Escrow Account Five Hundred Sixty -Five and No /100 Dollars ($565) for each residential lot sold by Company or such other successor or substitute developer of the Master Plan Area. The amount to be deposited shall be deposited at the time of the initial sale of each lot in the Subdivisions and in any other subdivision or special area plan located within the Master Plan Area subsequently approved by City, whether by individual lot, or multiple lots, or en mass. No building permit will be issued for any residential lot within the Master Area Plan (except lots located within Walking Stick Estates Filing No. 1, a Special Area Plan and Villa at Walking Stick, a Special Area Plan) until the required. deposit therefor has been made. The agreement for the Escrow Account shall be in substantially the same form and content as the Escrow Agreement attached as Exhibit "B ". Funds deposited in the Escrow Account and all earnings therefor shall be used solely to secure the construction and installation of the Boulevards. 2. Deposit Adjustment On January 1, 1996 and on January 1 of each subsequent year, the amount to be deposited upon the sale of each residential lot shall be increased or decreased by a percentage increase or decrease of the Consumer Price Index for all urban consumers (CPI -U). All Items (1982 -1984 =100) published by the Bureau of Labor Statistics of the United States Department of Labor (the "Bureau "). If the Bureau ceases to publish the CPI -U or materially changes its computation, the City and Company shall accept comparable statistics regarding the purchasing power of the consumer dollar as published by a responsible financial periodical or recognized authority to be then mutually agreed upon. • a .• -2- Book: 2773 Page: 410 Chris C. Munoz Page: 3 of 6 Pueblo Co.C1k.&Rec. (a) The funds on deposit in the Escrow Account shall be held by City as Escrow Agent as security for the timely construction and installation of the Boulevards. Upon final completion of the construction and installation of the Boulevards in accordance with City's specifications and requirements therefor, no additional deposits upon the sale of lots shall be required, and the funds in the Escrow Account shall be paid as determined by the Director to the persons or entities who paid for the construction and installation of the Boulevards, in proportion to that portion of the Boulevards installed and construction by such person or entity based upon linear feet. For example, the length of the Boulevards is approximately 8,784 linear feet, if a person or entity pays for the construction and installation of 4,392 linear feet of the Boulevards, upon final construction and installation of the Boulevards, such person or entity would be entitled to be paid an amount equal to one -half of funds in the Escrow Account. Notwithstanding the foregoing, if the Boulevards are not constructed and installed when needed as determined by the Director, City may withdraw from the funds in the Escrow Account an amount necessary for the construction and completion of the Boulevards or any portion thereof. In which event, the persons or entities who paid for any construction and installation of the Boulevards shall be entitled to a pro -rata share of the balance of the funds in the Escrow Account, if any, after the withdrawal of funds by the City. (b) If a dispute develops between the Director and Company regarding the withdrawal of the funds in the Escrow Account by the City, Company shall submit to the Director and the City Manager a written notice specifying the existence and nature of the dispute. If the Director and Company are unable to resolve the dispute within thirty (30) days after Company's notice to the City, the City and Company shall submit the dispute to a mutually acceptable qualified traffic engineer for resolution by non - binding arbitration. All costs of such arbitration including the arbitrator's expenses and fees shall be shared equally by the City and Company provided the City and Company shall pay their own costs and expenses including attorney fees and expert witness fees associated with such arbitration. The decision of the non - binding arbitration shall be made within 60 days. If Company or the City refuse to accept the determination by non - binding arbitration, then the City Planning and Zoning Commission, after full consideration of the determination by non - binding arbitration and such other matters as it shall deem relevant, shall make a final determination. 4. Developer's Obligation The obligation to install and construct the Boulevards and other public improvements, including without limitation, paving, curb and gutter, storm sewer and drainage facilities, sanitary sewers, water mains, street lighting, sidewalks and survey monuments is the obligation of the developer of the Master Plan Area and not the obligation of the City. 5. Improvements Company and City acknowledge and agree that the Boulevards and other improvements within the Master Plan Area associated with the Subdivisions and future subdivisions and/or special area plans will be required as the Master Plan Area is developed in phases. The Boulevards and other improvements will be installed and constructed as the Master Plan Area is developed. 6. Modifications If changes in the approved Master Plan required modifications to the Boulevards, Company and City shall negotiate in good faith regarding the modifications of the terms and provisions of this Contract and adjustments in the amount of the deposit required by Paragraphs -3- Book: 2773 Page: 411 Chris C. Munoz Page: 4 of 6 Pueblo Co.C1k.&Rec. C.1. and C.2. hereof 7. Termination of Escrow If Company for whatever reasons ceases to be the developer of the Master Plan Area, Company's right, title and interest in and to the Escrow Account shall automatically terminate, except to the extent Company is entitled to payment under Paragraph C.3.(a) hereof. 8. Releas e . The City shall release the lots from the provisions of this Contract upon payment and deposit of the required amount for each residential lot. The Director of Public Works is authorized to execute and issue such releases in the name of the City. The release shall be in the form acceptable for recordation, including but not limited to the legal description of the specific property to be released. D. MISCELLANEOUS PROVISIONS 1. Invalidity. If any provision of this Contract is determined to be invalid or unenforceable, such determination shall not affect the validity of any other provision hereof. 2. Entire Understandine This Contract incorporates and includes all understandings and agreements between the parties with respect to the subject matter hereof and shall be governed by and construed in accordance with the laws of the State of Colorado. 3. Litigation . In the event of litigation arising out of this Contract, the Court shall award to the prevailing party all reasonable costs and expenses including attorney fees. 4. Delay No delay or omission by the City to exercise any right or remedy shall impair any such right or remedy or constitute a waiver thereof. 5. Binding Effect The covenants and agreements set forth herein shall be construed to be covenants running with the land in the Master Plan Area and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that this Contract shall not be construed to impose upon The Colorado State Board of Agriculture the obligation to assume the financial obligations of the developer or Company hereunder unless The Colorado State Board of Agriculture declares its intention to do so by resolution or otherwise becomes the developer ohiri the Master Plan Area o; i e , at Pueblo, Colorado and day and year first above written. PUEBLO, a municipal corporation By n� lerk re d of the City d6uncil 51 Book: 2773 Page: 412 Chris C. Munoz Page: 5 of 6 Pueblo Co.C1k.&Rec. [SEAL] ATTEST: By Secret WALKING STICK U.S. LIMITED PARTNERSHIP, A COLORADO LIMITED PARTNERSHIP Dona S. man, President of Holystone Development Corporation, a Colorado Corporation, the sole general partner of Walking Stick U.S.. Limited Partnership APPROVAL BY STATE BOARD OF AGRICULTURE The State Board of Agriculture ( "SBA ") hereby approves, accepts and agrees to the terms and provisions of this Contract, and also agrees that the covenants of this Contract are covenants running with and binding upon the land in the Master Plan Area and SBA, its successors and assigns except as limited by paragraph D(5) of this Contract. ATTEST: 1S1 By Execut ve Director Planning and Development THE COLORADO STATE BOARD OF AGRICULTURE, a university governing board acting by and through its duly appointed attorney -in -fact, the University of Southern Colorado, an institution of higher education Dr. Robert C. Shirley, President as attorney -in -fact for the Colorado tate Board of Agriculture, a university governing board 1:\ CITY \ANNEXAT%WALKSfIK\CONTRACr.WPD -5- Book: 2773 Page: 413 Chris C. Munoz Page: 6 of 6 Pueblo Co.C1k.ARec. RstlssntM 2-s 62 Aar" ROSiderdW 2-4 O 122 Apes V � (11- 612 Otfw 24 LEGEND f21 .... Rlslesn" 2.4 10.2 ACM Ms10sn" 612 - .! ACM • MsasnlNl ZO 14.6 Apes o m r •- 01Reuconlnsrdw 7 Z /5 5.4 Acres $A Acres MsrosnlW 2.6 . 2" Aw" 1G '! / 1 1 I l MMOMnW 2.6 h 1 C 17.7 Acres i i r VOOT YAP rss Otftelcommerew 264 Apes IY � star, .loo Om Aftwv SL Im Lsn6 u,! DU• 6iAer. .;•Acr DU'. \ / \\ � Land Use Plan / Phase 1 Area - Q P11Am 1 AREA P r rm nas Reeder" OD 4' 36 6 .. � ... c Park ZS WALKING STICK Offin F�pby Pueblo, Colorado 0. R.O.W. (t ro.esl 562 +a�n aK ao.o.no. TOTAL S7! ■ ,ass EXHIBIT "A" R.sids"M 2•s 17.0 Asti R tw 2J IMsklen" 124 Acres 25.6 Ac 2.6 JL s + OIRM /Op,n,s " !.! AMM f21 .... Rlslesn" 2.4 10.2 ACM Ms10sn" 612 - .! ACM • MsasnlNl ZO 14.6 Apes o m r •- 01Reuconlnsrdw 7 Z /5 5.4 Acres $A Acres MsrosnlW 2.6 . 2" Aw" 1G '! / 1 1 I l MMOMnW 2.6 h 1 C 17.7 Acres i i r VOOT YAP rss Otftelcommerew 264 Apes IY � star, .loo Om Aftwv SL Im Lsn6 u,! DU• 6iAer. .;•Acr DU'. \ / \\ � Land Use Plan / Phase 1 Area - Q P11Am 1 AREA P r rm nas Reeder" OD 4' 36 6 .. � ... c Park ZS WALKING STICK Offin F�pby Pueblo, Colorado 0. R.O.W. (t ro.esl 562 +a�n aK ao.o.no. TOTAL S7! ■ ,ass EXHIBIT "A" ESCROW AGREEMENT THIS ESCROW AGREEMENT entered into this 28th day of November, 1994 by and between Pueblo, a municipal corporation, 1 City Hall Place, Pueblo, Colorado (herein "City ") and Walking Stick U.S. Limited Partnership, a Colorado Limited Partnership, 301 North Main Street, Suite 207, Pueblo, Colorado, 81003 (herein "Company "), WITNESSETH: 1. Company hereby appoints City as escrow agent to receive funds to be deposited by Company pursuant to the Contract between City and Company of even date herewith, a copy of which is attached as Exhibit "A" (the "Contract ") (the 'Escrow Funds "). 2. City as escrow agent will accept the deposit of Escrow Funds subject to the terms and conditions set forth herein. 3. The City shall invest the Escrow Funds either in U. S. Treasury Securities or in such a manner as to maintain U.S. federal insurance on principal invested funds and earnings. All U.S. Treasury Securities or principal invested funds and earnings shall be available for withdrawal without penalty within ninety (90) days of demand. The Escrow Funds shall not at any time be commingled with other City funds or investments. With respect to the investment of the Escrow Funds, neither the City nor its officers or employees shall be liable for any act it or its officers or employees may do or omit to do while acting in good faith and in the exercise of their own best judgment. 4. The Escrow Funds and all earnings thereon shall be held as security for the construction and installation of Walking Stick and Cedarweed Boulevards as shown on Exhibit "A" attached to the Contract. The Escrow Funds and their expenditure are not and shall not be construed to be revenue or spending of the City within the purview of Article X, Section 20 of the Colorado Constitution. The Escrow Funds shall be released in accordance with the provisions of Paragraph C.3 (a) of the Contract. 5. If a dispute develops between the Director of Public Works and Company regarding the withdrawal of Escrow Account by the City, such dispute shall be resolved in accordance with the provisions of Paragraph C.3(b) of the Contract. 6. If Company shall for any reason cease to be the developer of the Master Plan Area, its rights, title and interest in this Escrow Agreement and Escrow Funds shall automatically terminate, except to the extent Company is entitled to payment under Paragraph C.3(a) of the Contract. 7. This Escrow Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. Executed at Pueblo, Colorado the date and year first above written. PUEBLO, A MUNICIPAL CORPORATION By a�� ff ideit of the City Council WALKING STICK U.S. LIMITED PARTNERSHIP, A COLORADO LIMITED PARTNERSHIP By .� Donald S ma , President of Hone Development Corporation, a Colorado Corporation, the sole general partner of Walking Stick U.S. Limited Partnership J: \CITY\ANNEXAIIWALKSTIK \ESC- AGRE.WPD -�