HomeMy WebLinkAboutFAIRBROOKE TRACT A - Filed DA-DEVELOPMENT AGREEMENT - 2003-07-31DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this 2 day of '(IU,4T
1996-', by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City" and
KINGSTON ASSOCIATES, L.L.C., a Colorado limited liability company,
a Colorado limited partnership, hereinafter referred to as the
"Developer".
WITNESSETH:
WHEREAS, the Developer is the Owner of certain property
situated in the County of Larimer, State of Colorado, (hereafter
referred to as the "Property") and legally described as follows, to
wit:
FAIRBROOKE TRACT A, P.U.D., located in the Northwest Quarter
of Section 21, 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
Director 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.
NOW, THEREFORE, in consideration of the promises of the
parties hereto and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, it is agreed
as follows:
by the Developer's operation; shall remove such rubbish no less
than weekly arid; 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
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.
H. This Agreement shall run with the Property and shall be
binding upon 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 real or
proprietary interest in the Property, as well as any assignment of
10
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
a period of five (5) days within which to cure said default. 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 cr; (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 f-or 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.
AT EST:
CITY CLERK
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: QI. 11AJ
City Manager
11
APPROVED AS TO CONTENT:
X _
Director of Engineering
APPROVEP AS TO
FORM:
��A llzeli f 4
City Attorney
DEVELOPER:
Kingston Associates, L.L.C., a
Colorado limited liability company
By
Willi L. Neal, Member/Manager
12
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.
Prospect Road adjacent to the Property and off -site shall be
completed in accordance with the provisions in Section II.D.
Paragraphs 1, 2, 5 and 6 of this Agreement.
4. Schedule of storm drainage improvements to be installed out
of sequence.
Not Applicable.
13
EXHIBIT "B"
NOT APPLICABLE
14
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 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. No building permits shall be issued for any
structure located in excess of nine hundred feet (9001) 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 street: 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. Excjept 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 plat, site, landscape
and utility plans, and other approved documents pertaining to this
2
development on file with the City.
F. Street improvements (except curbs, gutters and walks)
shall not 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 against 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
storm drainage or seepage waters from the development 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.
3
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,
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 pursuant to 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 pursuant to 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 pursuant to this development.
II. Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. The Developer has designated three phases for the
development of the Property. The Developer and the City agree that
4
all on -site and off -site storm drainage improvements for each
respective phase shall be completed by the Developer in accordance
with the approved plans prior to the issuance of (A) more than 4
building permits for Phase 1; (B) more than 3 building permits for
Phase 2; and (C) more than 9 building permits for Phase 3.
Completion of improvements shall include the certification of each
phase by a Colorado licensed professional engineer that the
drainage facilities, which serve the specified phase of the
Property, have been constructed in conformance with said approved
plans. Any deviations from the approved utility plans shall be the
responsibility of the Developer to correct prior to the issuance of
more than the above stated number of building permits for each of
the phases. Said certifications shall be submitted to the City at
least two weeks prior to the date of issuance for any building
permit greater than the above stated numbers in each phase.
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 each of three
phases for this development. The Developer shall also be required
to post a security deposits in the amounts of $2,721.00 for Phase
1; $2,457.00 for Phase 2; and $10,943 for Phase 3 prior to
beginning construction on each of said Phases to guarantee the
proper installation and maintenance of the erosion control measures
shown on the approved Plan. Said security deposits shall be made
in accordance with the criteria set forth in the 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.
3. The Developer and the City agree that the storm
drainage system for this development contains some features that
make it important to construct the facilities in accordance with
the plans and to ensure that the facilities are maintained and kept
operational throughout the buildout of this development. For this
reason the following additional requirements shall be followed for
building on Block 1, Lots 15, 16, 22 and 23 and on Block 2, Lots 2
through 5 and 16 through 19:
The portions of the drainage improvement system required to be
constructed on any of the above lots, and other portions not
on said lots but that are necessary for the system serving
said lots to properly function, shall be completed in
accordance with the approved utility plans and said completion
shall be certified as being completed in accordance with said
5
plans by a Colorado licensed professional engineer. Said
certification by such engineer that the drainage systems'
function and adequacy to serve its purpose has not been
impaired by the construction and landscaping on said lot shall
be submitted to the City prior to the issuance of a
certificate of occupancy for each of the above lots.
In addition the Developer shall be required to file a notice
with the Larimer County Clerk and Recorder describing the
landscaping and fencing restrictions that exist for the
drainage easements on each of said lots. Said notice shall
reference the location of the specific restrictions shown on
plans and notes in the approved utility plans for this
development. Said notice shall be filed in a City approved
form prior to the sale of any lots affected by such
restrictions.
4. The Developer and the City agree that it is important
that certain lots be graded to drain in the configuration shown on
the approved plans for this development. For this reason the
following additional requirements shall be followed for building on
Block 2, Lots 13 through 33:
At least one weeks prior to the issuance of a certificate of
occupancy for each of said lots, the Developer shall provide
the City with certification, by a Colorado licensed
professional engineer, that the lot has been graded correctly
and in accordance with the approved plans (including the
grading of any minor swales, if applicable); the lot corner
elevations specified on the approved plans are correct and in
accordance with the approved plans; and the minimum floor
elevation for all buildings constructed on said lot has been
completed in accordance with the approved plans.
5. Block 1, Lots 13 through 16, 19 through 21, and 23
through 25, and Block 2, Lots 1 through 4, 12 and 13, abut certain
storm drainage facilities and it is agreed that it is of the utmost
importance that no storm water from said facilities enters houses
built on said lots. In order to provide the assurance that houses
built on said lots are constructed at an elevation that said storm
water cannot enter, the approved utility plans contain
specifications for the minimum elevation for any opening to each
such house. Prior to the issuance of a certificate of occupancy
for each of said lots the Developer shall provide certification
from a Colorado licensed professional engineer that the lowest
opening to any such house is at or above the minimum elevations
required on said utility plans.
6. The Developer and the City agree that the Developer
shall be responsible to obtain the City's approval of any changes
from the approved utility plans in grade elevations and/or storm
drainage facility configuration that occur as a result of the
0
construction of houses and/or development of lots, whether by the
Developer or other parties. The City reserves the right to
withhold the issuance of building permits and certificates of
occupancies until the City has approved such changes as being
acceptable for the safe and efficient delivery of storm drainage
water.
7. The Developer shall be required to file a notice with
the Larimer County Clerk and Recorder describing the landscaping
and fencing restrictions that exist for the drainage easements on
each of Block 1, Lots 22 and 23, and Block 2, Lots 16 through 26.
Said notice shall reference the location of the specific
restrictions shown on plans and notes in the approved utility plans
for this development. Said notice shall be filed in a City
approved form prior to the sale of any lots affected by such
restrictions.
D. Streets.
1. Subject to the conditions of this Agreement, the City
agrees to reimburse the Developer for oversizing public street
improvements along Prospect Road for those portions of said street
abutting the Property as shown on the approved utility plans.
Reimbursement for Prospect Road shall be for oversizing the street
from residential standards to arterial street standards. The City
shall make reimbursement to the Developer for the aforesaid
oversized street improvements in accordance with Section 24-121 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 Oversizing 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 necessary to offset the traffic
impacts of the development. The Developer does hereby agree to
construct the aforesaid oversized street improvements with the
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 (500) of the Developer's actual expenses incurred and will
be calculated in accordance with the formula as set forth in
Section 24-12.1 (d).
2. It is understood that the streets to be constructed
as described in this Section II(D) are "city improvements" and, as
7
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 showing that the award was given to the lowest responsible
bidder. If the cost of 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. No building permit shall be issued for any lot until
all grading and public improvements adjoining said lot have been
completed in accordance with the approved plans. Said completion
of improvements shall include the certification by a Colorado
licensed prof=essional engineer that said grading and public
improvements have been constructed in conformance with said
approved plans for this development.
4. No building permits shall be issued for any buildings
that are designed to take access off a deadend street, unless said
deadend street provides a public turn around in accordance with
City standards.
5. The Developer and the City agree the it is necessary
for Prospect Road adjoining the Property and off -site improvements
to Prospect Road, from the east boundary of the Property to Taft
Hill Road, to be improved prior to the issuance of more than 17
building permits. Prospect Road adjoining the Property shall be
improved to arterial standards in accordance with approved plans
for this development. Prospect Road to the east of this
development shall be constructed to at least 36 feet wide with an
arterial standard pavement thickness. It is understood that the
developer of Northridge Patio Homes P.U.D. is responsible for the
completion of Prospect Road from Hampshire Street to Taft Hill Road
as a part of its development. In addition the Poudre School
District R1 is responsible for and attempting to budget funds to
pay for its share of Prospect Road improvements along the frontage
of its property for Bauder Elementary School. If the required off -
site improvements have not been completed by other parties the
Developer shall have the option to design and construct said off -
site improvements in order to receive more than said 17 building
permits. Following completion of said off -site improvements by the
Developer, the Developer may be eligible for reimbursement for the
construction of said off -site improvements, if done in accordance
with Section 29-678 of the City Code. The parties acknowledge and
agree, however, that any such reimbursements to be paid by the City
shall be the subject of a separate written agreement between the
City and the Developer. Notwithstanding the forgoing, the
Developer shall have the option to postpone the construction of the
above described improvements required on Prospect Road and obtain
0
issuance of not more than 50 building permits for this development
prior to the completion of said improvements, following the escrow
of funds to be deposited with the City in the form of cash, bond,
nonexpiring letter of credit or other form of City approved
security suff:_cient to guarantee completion of said improvements.
The escrow amount shall be 1500 of the average of three, City
approved, contractor bids for the improvements, excluding the
street oversizing portion, for which the Developer may be eligible
for reimbursement.
6. The Developer and the City agree that no building
permits shall be issued for Block 1, Lots 9 and 10, and Block 2,
Lots 12 and 13, (ail of which lots are in close proximity to
Prospect Road and, accordingly, may be impacted by improvements
required on Prospect Road) until the street improvements on
Prospect Road have been completed with at least the construction of
curb, gutter and sidewalk, and said improvements have been approved
by the City. In addition, no certificate of occupancy shall be
issued for Block 1, Lot 27 (which is in close proximity to Prospect
Road and, accordingly, may be impacted by improvements required on
Prospect Road) until the street improvements on Prospect Road
adjacent to said Lot have been completed with at least the
construction of curb, gutter and sidewalk, and said improvements
have been approved by the City.
E. Groundwater.
1. The Developer and the City recognize that this
development is adjacent to the Pleasant Valley and Lake Canal and
contains retention ponds for storm water such that seepage from
said ditch and ponds may impact the ground water levels in this
development. Accordingly, it is agreed that the City shall not be
responsible for any damages or injuries sustained in the
development as a result of groundwater 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
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
FJ