HomeMy WebLinkAboutCENTRE FOR ADVANCED TECHNOLOGY PUD EIGHTEENTH - Filed DA-DEVELOPMENT AGREEMENT - 2003-05-28DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this_day of
199kC,, by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City"; and
ROCHE COMPANIES II, L.L.C., a Colorado limited liability company,
hereinafter referred to as the "Developer".
WITNESSETH:
WHEREAS, the Developer is the owner of 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.
CENTRE FOR ADVANCED TECHNOLOGY P.U.D., 18th FILING, situate in
the Southwest 1/4 of Section 23, Township 7 North, Range 69
West of the 6th P.M., City of Fort Collins, County of Larimer,
State of Colorado.
WHEREAS, the Developer desires to develop the Property and has
submitted to the City a subdivision plat and/or a site plan and
landscape plan, a copy of which is on file in the office of the
City's Directcr of Engineering and made a part hereof by reference;
and
WHEREAS, the Developer has further submitted to the City
utility plans for the Property, a copy of which is on file in the
office of the Director of Engineering and made a part hereof by
reference; and
WHEREAS, the parties hereto have agreed that the development
of the Property will require increased municipal services from the
City in order to serve such area and will further require the
installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a
whole; and
WHEREAS, the City has approved the subdivision plat and/or
site plan and landscape plan submitted by the Developer subject to
certain requirements and conditions which involve the installation
of and construction of utilities and other municipal improvements
in connection with the Property.
withhold such building permits and certificates of occupancy as it
deems necessary to ensure performance hereof.
E. Nothing herein contained shall be construed as a waiver of
any requirements of the City Code, and the Developer agrees to
comply with all requirements of the same.
F. In the event the City waives any breach of this Agreement,
no such waiver shall be held or construed to be a waiver of any
subsequent breach hereof.
G. Financial obligations of the City of Fort Collins payable
after the current fiscal year and/or not appropriated or budgeted
are contingent upon funds for that purpose being appropriated,
budgeted and otherwise made available by the Fort Collins City
Council.
H. This Agreement shall run with the Property and shall be
binding upon and inure to the benefit of the parties hereto, their
personal representatives, heirs, successors, grantees and assigns.
It is agreed that all improvements required pursuant to this
Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest
within the meaning of this paragraph shall specifically include,
but not be limited to, a conveyance or assignment of any portion of
the Developer's legal or equitable interest in the Property, as
well as any assignment of the Developer's rights to develop the
Property under the terms and conditions of this Agreement.
I. In the event the Developer transfers title to the Property
and is thereby divested of all equitable and legal interest in the
Property, the City hereby agrees to release said Developer from
liability under this Agreement with respect to any breach of the
terms and conditions of this Agreement occurring after the date of
any such transfer of interest. In such event, the succeeding
property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to
be a material element hereof. In the event that either party shall
fail to perform according to the terms of this Agreement, such
party may be declared in default. In the event that a party has
been declared. in default hereof, such defaulting party shall be
given written notice specifying such default and shall be allowed
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a period of thirty (30) days within which to cure said default, or
within such period as may be reasonably required to cure such
default if it is of such a nature that it cannot be cured within
said thirty (30) day period, provided that the party in default
shall have commenced to effect such a cure within said thirty (30)
day period and. shall have proceeded with due diligence to complete
said cure. In the event the default remains uncorrected, the party
declaring default may elect to: (a) terminate the Agreement and
seek damages; (b) treat the Agreement as continuing and require
specific performance or; (c) avail itself of any other remedy at
law or equity..
K. In the event of the default of any of the provisions
hereof by either party which shall require the party not in default
to commence legal or equitable action against said defaulting
party, the defaulting party shall be liable to the non -defaulting
party for the non -defaulting party's reasonable attorney's fees and
costs incurred by reason of the default. Nothing herein shall be
construed to prevent or interfere with the City's rights and
remedies specified in Paragraph III.D of this Agreement.
L. This Agreement shall not be construed as or deemed to be
an agreement for the benefit of any third party or parties, and no
third party or parties shall have any right of action hereunder for
any cause whatsoever.
M. It is expressly understood and agreed by and between the
parties hereto that this Agreement shall be governed by and its
terms construed under the laws of the State of Colorado and the
City of Fort Collins, Colorado.
N. When used in this Agreement, words of the masculine gender
shall include the feminine and neuter gender, and when the sentence
so indicates, words of the neuter gender shall refer to any gender;
and words in the singular shall include the plural and vice versa.
This Agreement shall be construed according to its fair meaning,
and as if prepared by all parties hereto, and shall be deemed to be
and contain the entire understanding and agreement between the
parties hereto pertaining to the matters addressed in this
Agreement. There shall be deemed to be no other terms, conditions,
promises, understandings, statements, representations, expressed or
implied, concerning this Agreement, unless set forth in writing
signed by all of the parties hereto. Further, paragraph headings
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used herein are for convenience of reference and shall in no way
define, limit, or prescribe the scope or intent of any provision
under this Agreement.
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: N 1. 4'�"
Cit anager
ATTEST:
CITY CLERK
APPROVED AS TO CONTENT:
Director of Engineering
PPROVED AS TO FORM:
�A A/-,N
A sistant City Attorney
DEVELOPER:
ROCHE COMPANIES II, L.L.C. a Colorado
Limited Liability Company
Thomas J. Roche, Manager
By
Sandra L. Roche, Manager
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EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of
sequence.
Not Applicable.
3. Schedule of street improvements to be installed out of
sequence.
Not Applicable.
4. Schedule of storm drainage improvements to be installed out
of sequence.
Not Applicable.
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EXHIBIT "B"
NOT APPLICABLE
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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, it is agreed
as follows:
I. General Conditions
A. The terms of this Agreement shall govern all development
activities of the Developer pertaining to the Property. For the
purposes of this Agreement, "development activities" shall include,
but not be limited to, the following: (1) the actual construction
of improvements, (2) obtaining a building permit therefor, or (3)
any change in grade, contour or appearance of said property caused
by, or on behalf of, the Developer with the intent to construct
improvements thereon.
B. All water lines, sanitary sewer collection lines, storm
sewer lines and facilities, streets, curbs, gutters, sidewalks, and
bikepaths shall be installed as shown on the approved utility plans
and in full compliance with the Council -approved standards and
specifications of the City on file in the office of the Director of
Engineering at the time of approval of the utility plans relating
to the specific utility, subject to a three (3) year time
limitation from the date of execution of this Agreement. In the
event that the Developer commences or performs any construction
pursuant hereto after three (3) years from the date of execution of
this agreement, the Developer shall resubmit the project utility
plans to the Director of Engineering for reexamination. The City
may require the Developer to comply with approved standards and
specifications of the City on file in the office of the Director of
Engineering at the time of resubmittal.
C. No building permit for the construction of any structure
within the development shall be issued by the City until the water
lines, fire hydrants, sanitary sewer lines, and public streets
(including curb, gutter and sidewalk and pavement with at least the
base course completed) serving such structure have been completed
and accepted by the City. Notwithstanding the foregoing, the
Developer shall be entitled to receive a footing and foundation
permit for the construction of improvements within the development
upon the installation of adequate water lines, fire hydrants, and
street access to provide fire protection and other emergency
services to the site. No building permits shall be issued for any
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structure located in excess of six hundred and sixty feet (6601)
from a single point of access.
D. Any water lines, sanitary sewer lines, storm drainage
lines, and/or streets described on Exhibit "A," attached hereto,
shall be installed within the time and/or sequence required on
Exhibit "A." If the Director of Engineering has determined that
any water lines, sanitary sewer lines, storm drainage facilities
and/or streets are required to provide service or access to other
areas of the City, those facilities shall be shown on the utility
plans and shall be installed by the Developer within the time as
established under "Special Conditions" in this document.
E. Except as otherwise herein specifically agreed, the
Developer agrees to install and pay for all water, sanitary sewer,
and storm drainage facilities and appurtenances, and all streets,
curbs, gutters, sidewalks, bikeways and other public improvements
required by this development as shown on the approved plat, site,
landscape and utility plans, and other approved documents
pertaining to this development on file with the City.
F. Public street improvements (except curbs, gutters and
walks) shall riot be installed until all utility lines to be placed
therein have been completely installed, including all individual
lot service lines leading in and from the main to the property
line.
G. The installation of all utilities shown on the utility
plans shall bE� inspected by the Engineering Department of the City
and shall be :subject to such department's approval. The Developer
agrees to correct any deficiencies in such installations in order
to meet the requirements of the plans and/or specifications
applicable to such installation. In case of conflict, the utility
plans shall supersede the standard specifications.
H. All storm drainage facilities shall be so designed and
constructed by the Developer as to protect downstream and adjacent
properties agELinst injury and to adequately serve the Property (and
other lands as may be required, if any). The Developer shall meet
or exceed the minimum requirements for storm drainage facilities as
have been established by the City in its Drainage Master Plans and
Design Criteria. The Developer does hereby indemnify and hold
harmless the City from any and all claims that might arise,
directly or indirectly, as a result of the discharge of injurious
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storm drainage or seepage waters from the Property in a manner or
quantity different from that which was historically discharged and
caused by the design or construction of the storm drainage
facilities, except for (1) such claims and damages as are caused by
the acts or omissions of the City in maintenance of such facilities
as have been accepted by the City for maintenance; (2) errors, if
any, in the general concept of the City's master plans (but not to
include any details of such plans, which details shall be the
responsibility of the Developer); and (3) specific directives that
may be given to the Developer by the City. Approval of and
acceptance by the City of any storm drainage facility design or
construction shall in no manner be deemed to constitute a waiver or
relinquishment by the City of the aforesaid indemnification. The
Developer shall engage a licensed professional engineer to design
the storm drainage facilities as aforesaid and it is expressly
affirmed hereby that such engagement shall be intended for the
benefit of the City, and subsequent purchasers of property in the
development.
I. The Developer shall pay storm drainage basin fees in
accordance with Chapter 26, Article VII of the City Code. Storm
drainage improvements eligible for credit or City repayment under
the provision: of Chapter 26 are described together with estimated
cost of the improvements on the attached Exhibit "B," which
improvements, if applicable, shall include right-of-way, design and
construction costs. See Section II.C, Special Conditions, Storm
Drainage Lines and Appurtenances, for specific instructions.
J. The Developer shall provide the Director of Engineering
with certified Record Plan Transparencies on Black Image Diazo
Reverse Mylars upon completion of any phase of the construction.
K. The Developer specifically represents that to the best of
its knowledge all portions of the Property dedicated to the City
associated with this development are in compliance with all
environmental protection and anti -pollution laws, rules,
regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection
Agency Regulations at 40 C.F.R., Part 261, and that such portions
of the Property as are dedicated to the City pursuant to this
development, are in compliance with all such requirements
pertaining to the disposal or existence in or on such dedicated
property of any hazardous substances, pollutants or contaminants,
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as defined by the Comprehensive Environmental Response Compensation
and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer does hereby indemnify and hold harmless
the City from any liability whatsoever that may be imposed upon the
City by any governmental authority, pertaining to the disposal of
hazardous substances, pollutants or contaminants, and cleanup
necessitated by leaking underground storage tanks, excavation
and/or backfill of hazardous substances, pollutants or
contaminants, or environmental cleanup responsibilities of any
nature whatsoever on, of or related to any property dedicated to
the City in connection with this development. The Developer
further agrees to indemnify and hold harmless the City from any
claims or actions based directly, indirectly or in any manner on
any of the aforementioned environmental risks brought against the
City by third parties arising as a result of the dedication of
portions of the Property to the City in connection with this
development. Said indemnification shall not extend to claims,
actions or other liability arising as a result of any hazardous
substance, pollutant or contaminant generated or deposited by the
City, its agents or representatives, upon portions of the Property
dedicated to the City in connection with this development.
II. Special Conditions
A. Water Lines
Not Applicable
B . Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. The Developer and the City agree that all on -site and
off -site storm drainage improvements, as shown on the approved
utility plans, shall be completed by the Developer in accordance
with said approved plans prior to the issuance of any certificate
of occupancy.. Completion of improvements shall include the
certification by a professional engineer licensed in Colorado that
the drainage facilities which serve this development have been
constructed in conformance with said approved plans. In addition,
said certification shall state that the lowest opening elevation to
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the building is at or above the minimum opening elevation required
on the approved utility plans. Said certification shall be
submitted to the City at least two weeks prior to the date of
issuance for any certificate of occupancy.
2. The Developer agrees to provide and maintain erosion
control improvements as shown on the approved utility plans 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 $2,454.00 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion
control measures shown on the approved Plan. Said security deposit
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
provisions of the approved utility plans or the Criteria, 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 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.
D. Streets
1. Subject to the conditions of this Agreement, the City
agrees to reimburse the Developer for oversizing public street
improvements along Drake Road for that portion of said street
abutting the Property as shown on the approved utility plans.
Reimbursement for Drake Road shall be for oversizing the public
sidewalk from residential standards to arterial standards. The
City shall make reimbursement to the Developer in accordance with
Section 24-12.1 of the Code of the City. The Developer agrees and
understands that the City shall have no obligation to make
reimbursement payments for street oversizing unless funds for such
payments shall first have been budgeted and appropriated from the
Street Oversi.zing Fund by the City Council; and the Developer
further understands that to the extent that funds are not available
for such reimbursement , the City may not, in the absence of the
Developer's agreement, require the construction, at the Developer's
expense, of any oversized portion of streets not reasonably
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necessary to offset the traffic impacts of the development. The
Developer does hereby agree to construct the aforesaid oversized
street improvements with understanding that the Developer may not
be fully reimbursed by the City for the cost of such construction.
The Developer further agrees to accept payment in accordance with
Section 24-121 (d) of the Code of the City as full and final
settlement and complete accord and satisfaction of all obligations
of the City to make reimbursement to the developer for street
oversizing expenses. It is anticipated by the City that the City's
reimbursement, in accordance with Section 24-121(d), would not be
less than fifty percent (50%) of the Developer's actual expenses
incurred and will be calculated in accordance with the formula as
set forth in Section 24-121(d).
2. It is understood that the streets to be constructed
as described :in this Section II.D. are "city improvements" and, as
such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the
sum of fifteen thousand dollars ($15, 000) , the contract for the
construction of the same must be submitted to a competitive bidding
process resulting in an award to the lowest responsible bidder; and
evidence must be submitted to the City prior to the commencement of
the work show=_ng that the award was given to the lowest responsible
bidder. If the cost for such improvements exceeds fifty thousand
dollars ($50,,000), the contract for the construction of the
improvements must be insured by a performance bond or other
equivalent security.
3. The Developer is obligated to complete the design and
construction of the ultimate arterial street improvements along
Drake Road adjacent to this development, including the westbound
right turn lclne from Drake Road into the Property, prior to the
issuance of any certificate of occupancy. Notwithstanding the
foregoing, since Drake Road is in need of major reconstruction
between McClelland Drive and Shields Street, the Developer shall
have the option to postpone the completion of said improvements and
obtain a certificate of occupancy prior to the completion of said
improvements following the escrow of funds to be deposited with the
City in the form of cash, bond, irrevocable letter of credit or
other form of City approved security sufficient to guarantee
completion of the Developer's portion of said improvements. The
escrow amount shall be equal to twenty-one thousand six hundred and
sixty eight dollars and fifty one cents ($21,668.51) if a cash
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escrow is deposited with the City, or 1500 of said amount if
another form of escrow is deposited with the City.
4. The Developer and the City agree that the Developer
is responsible for all costs for the initial installation of
traffic signing and striping for this development related to the
development's local street operations. In addition, the Developer
is responsible for all costs for traffic signing and striping
related to directing traffic access to and from the development
(e.g. all signing and striping for a right turn lane into the
development site).
E. Hazards and Emergency Access.
1. No combustible material will be allowed on the site
until a permanent water system is installed by the Developer and
approved by the City.
2. Prior to beginning any building construction, the
Developer shall provide and maintain at all times an accessway to
said building or buildings. Such accessway shall be adequate to
handle any emergency vehicles or equipment, and the accessway shall
be kept open during all phases of construction. Prior to the City
allowing combustible material on the site (other than forming
material for concrete footings, foundations and/or concrete walls)
such accessway shall be improved to a width of at least 20 feet
with 4 inches of aggregate base course material compacted according
to City Standards and with an 80 foot diameter turnaround at the
building end of said accessway. The turnaround is not required if
an exit point is provided at the end of the accessway.
F. Groundwater
1. The Developer and the City recognize that this
development is adjacent to the New Mercer Ditch and that seepage
from said ditch may impact the ground water levels in the
development. Accordingly, it is agreed the City shall not be
responsible for, and the Developer hereby agrees to indemnify the
City against, any damages or injuries sustained in the development
as a result of ground water seepage, whether resulting from
groundwater flooding, structural damage, or other damage, unless
such damages or injuries are sustained as a result of the City's
0
failure to properly maintain its storm drainage facilities in the
development.
III. Miscellaneous
A. The Developer agrees to provide and install, at its
expense, adequate barricades, warning signs and similar safety
devices at all construction sites within the public right-of-way
and/or other areas as deemed necessary by the Director of
Engineering in accordance with the City's "Work Area Traffic
Control Handbook" and shall not remove said safety devices until
the construction has been completed and approved by the Director of
Engineering.
B. The Developer shall, at all times, keep the public right-
of-way free from accumulation of waste material or rubbish caused
by the Developer's operation; shall remove such rubbish no less
than weekly and; at the completion of the work, shall remove all
such waste materials, rubbish, tools, construction equipment,
machinery, and. surplus materials from the public right-of-way. The
Developer further agrees to maintain the finished street surfaces
so that they are free from dirt caused by the Developer's
operation. Any excessive accumulation of dirt and/or construction
materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until
the problem is corrected to the satisfaction of the Director of
Engineering. If the Developer fails to adequately clean such
streets within two (2) days after receipt of written notice, the
City may have the streets cleaned at the Developer's expense and
the Developer shall be responsible for prompt payment of all such
costs.
C. The Developer hereby agrees that it will require its
subcontractors to cooperate with the City's construction inspectors
by ceasing operations when winds are of sufficient velocity to
create blowing dust which, in the inspector's opinion, is hazardous
to the public health and welfare.
D. The Developer shall, pursuant to the terms of this
Agreement, complete all improvements and perform all other
obligations required herein, as such improvements or obligations
may be shown on the original plat and related documents, or any
replat as subsequently filed by the Developer, and the City may
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