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HomeMy WebLinkAboutFAIRVIEW SHOPPING CENTER SECOND REPLAT - Filed DA-DEVELOPMENT AGREEMENT - 2003-09-23DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this "day of &At , A.D. 198,(, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as "the City," and BILL BARTRAN, owner, hereinafter referred to as "the Developer," WITNESSETH: WHEREAS, the Developer is the owner of certain property situate in the County of Larimer, State of Colorado, and legally described as follows, to -wit: Carl's Jr., a Planned Unit Development being a Replat of Lot 2, Fairview Shopping Center - Filing II, located in the SE Quarter of Section 15, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins, Larimer County, Colorado. WHEREAS, the developer desires to develop said property and has submitted to the City a subdivision plat and/or a site plan, a copy of which is on file in the Office of the City Engineer and made a part hereof by reference: and WHEREAS, the Developer has further submitted to the City a utility plan for said lands, a copy of which is on file in the office of the City Engineer and made a part hereof by reference; and WHEREAS, the parties hereto have agreed that the development of said lands 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 submitted by the Developer subject to certain requirements and conditions F. 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. G. In the event the City waives any breach of this Agreement, no such waiver shall be held or construed to be waiver of any subsequent: breach hereof. H. 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. I. This Agreement shall run with the real property herinabove described and shall be binding upon the parties hereto, their personal representatives, heirs, successors, grantees and assigns. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, assignment of any portion of the Developer's proprietary interest in the real property herinabove described, as well as any assignment of the Developer's rights to develop such property under the terms and conditions of this Agreement. J. The City understands that Developer intends to sell the subject property and that a contract for such sale between Developer and Edward Peter Giammarino, who will actually develop the property, has been executed. Upon the conveyance of the subject property, the Developer's obligations shall become binding on the new owner pursuant to paragraph I above and Developer shall be released of all further obligations -10- under this agreement. Notwithstanuing the foregoing, Developer and Bartran Homes, Inc, shall remain liable and responsible to the City for all obligation$ pertaining to the property adjoining the subject property on the East as contained in paragraph 2 C of this agreement. K. Each and every term and condition of this Agreement shall be deemed to be a material element thereof. In the event either party shall fail or refuse to perform according to the terms of this Agreement, such party may be declared in default. In the event a party 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; or, (c) avail itself of any other remedy at law or equity. In the event of default of any of the provisions hereof oy 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 attorneys' fees and costs incurred by reason of default. Nothing herein shall ue construed to prevent or interfere with the City's rights and remedies specified in paragraph 3 E of this Agreement. ATTEST: City Clerk THE CITY OF FORT COLLINS, COLORADO A Municipal Corporation A BY City Manager -11- APPROVED AS TO FORM: m OWNER William D. Bartran -12- EXHIBIT "B" The DeveTopment Agreement for Carl's Jr. This exhibit does not apply to this development. COST ESTIMATE FOR MAJOR DRAINAGE IMPROVEMENTS Include only those major storm drainage basin improvements required by an adopted basin master plan. ITEM DESCRIPTION QUANTITY UNIT COST TOTAL COST 1. Storm sewer, manholes, end sections, etc. (a) L.f. /L.f. $ (b) L.f. /L.f. $ (c) Ea. Ea. $ (d) Ea. Ea. $ Sub -Total $ 2. Channel excavation, detention pond excavation and riprap (a) C.Y. $ /C.Y. $ (b) C.Y. $ /C.Y. $ (c) C.Y. $ /C.Y. $ Sub -Total $ 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. Storm drainage improvements to be installed out of sequence. Not applicable. -13- RATIFICATION Bartran Homes, Inc., as the owner of the property adjoining the subject property of the foregoing Development Agreement on the east, hereby ratifies, approves and confirms the provisions contained in paragraph 2 C of the foregoing agreement and agrees to be legally bound thereby. Bartrao Homes, Inc. further agrees that such obligations shall run with the land and be binding upon its successors and assigns. Dated: March __L/ , 1986. BARTRAN HOMES, INC. By: President RCPTN # 86017848 /10/86 10:14:55 # OF ;ES - 1 FEE - $3.00 J. ULVANG, RECORDER - LARIMER COUNTY, CO. DOC. FEE- $.00 NOTICE Please take notice that on March 24, 1986, the Planning and Zoning Board of the City of Fort Collins, Colorado, approved the Final PUD Plan known as Carl's Jr. PUD, which development was submitted and processed in accordance with Section 118-83 of the Code of the City of Fort Collins. The Final PUD Plan of the subject property together with development agreement dated March 26, 1986 between the City of Fort Collins and the developer, out of which documents accrue certain rights and obligations of the developer and/or subsequent owners of the subject property, is on file in the office of the Clerk of the City of Fort Collins. The subject property is more particularly described as follows: Being a replat of Lot 2, Fairview Shopping Center - Filing II, Located in the SE 1/4 of Section 15, Township 6 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. lu�a.k City Clerk Secretary, Planning and Zoning Boar City of Fort Collins Dated: 54 ?-- Pei which involve the installation of and construction of utilities and other municipal improvements in connection with said lands. 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: 1. General Conditions. A. 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 City Engineer at the time of approval of the utility plans relating to the specific utility, subject to a two (2) 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 two (2) years from the date of execution of this agreement, the Developer shall resubmit the project utility plans to the City Engineer 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 City Engineer at the time of resubmittal. B. 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 and streets (with at least the base course completed) serving such structure -2- have seen completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred sixty feet (660') from a single point of access. C. 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 City Engineer has determined that any water lines, sanitary sewer lines, storm sewer 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. D. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer and storm sewer facilities and appurtenances, and all streets, curbing, gutter, sidewalks, bikeways and other municipal facilities necessary to serve the lands within the development. E. Street improvements (except curbing, gutter 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. E. The installation of all utilities shown on the utility - 3- drawings shall be inspected by the Engineering Division of the City and shall be subjected 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 drawings shall supersede the standard specifications. G. 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 to be developed (and other lands as may be required, if any). The Developer has met or exceeded 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 as 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 henefit of the City, subsequent purchasers of property in the development and downstream and adjacent property owners all of whom shall be third party beneficiaries of said agreement between the Developer and Engineer. H. The Developer shall pay storm drainage basin fees in accordance with Chapter 93 of the City Code. Storm drainage improvements eligible for credit or City repayment under provisions of Chapter 93 are described together with the estimated cost of the improvements on the attached Exhibit "B", which improvements shall include right of way, design and construction costs. The basin fee payable by the Developer shall be reduced by the estimated cost of said eligible improvements. Upon completion of such eligible improvements, the amount of such reduction shall be adjusted to reflect the actual cost. If the cost of the eligible improvements constructed by the Developer and described in the above mentioned exhibit exceeds the amount of the storm drainage fees payable for the development, the City shall -5- reimburse the excess cost out of the Storm Drainage fund upon completion of the improvements and approval of the construction by the City. I. The Developer shall provide the City Engineer with certified Record Utility Drawing Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construction. Special Conditions. A. Storm drainage lines and appurtenances. All storm drainage facilities shall be completed by the Developer and approved by the City prior to the issuance of the first Certificate of Occupancy. Streets. The parties acknowledge that the Street Rehabilitation Pro- gram adopted for the year 1986 includes plans to patch and overlay West Elizabeth .Avenue from South Shields Street to South Taft Hill Road, but that such plans are contingent upon the adequacy of the appropriations for the program, which may never occur. In the event that funding for the program does not; meet actual costs and/or rehabilitation of West Elizabeth does not occur by the time the Developer requests a Certifi- cate of Occupancy, the Developer shall be responsible for removing all lane and directional markings in the existing pavement on West Elizabeth Street from 300 feet west of Con- stitution Avenue to 300 east of City Park Avenue. Said removal must be coordinated through the Office of the City Traffic Engineer. The City requires a minimum of two weeks notice to restripe the street, so the Developer must notify the City Traffic Engineer of the commencement of the removal of the striping in sufficient time for restriping to he started immediately upon completion of the removal of the existing striping. All costs for removal and restriping shall be borne by the Developer. Said removal and restriping must be completed prior to the issuance of the first Certifi- cate of Occupancy. Additional access. The parties furthur acknowledge that the development, as approved by the City, contains a single means of public access, that which affords ingress and egress to and from West Elizabeth Street through an access easement which forms the west boundary of the development. Traffic studies conducted prior to this date suggest that a second means of access to the development should be provided to and from the property immediately east of and adjacent to the development, which property is owned by Bartran Homes, Inc., which corporation is wholly owned by the Developer. For that reason, the Developer is dedicating an additional area within the development itself to accomodate such proposed second means of access through the abovementioned adjacent property. Bartran Homes, Inc.is presently unable or unwilling, however, to dedicate an additional right-of-way upon and through said adjacent property which would connect said second means of access to West Elizabeth Street. Accordingly, by approval of this development, the City is in no way authorizing or encouraging public use of said second means of access until such time, if at all, that the above - mentioned additional right-of-way upon and through said adjacent property is obtained by formal dedication or by private agreement of all parties lawfully claiming an interest therein. In the event that such public use actually occurs prior to the acquisition of said additional right-of- way, the Developer hereby agrees to defend and hold the City harmless from any claim of damage or loss by any third party, including reasonable court costs and attorney's fees, arising from or relating to any such use. The Developer further agrees that within thirty (30) days of December 31, 1999, or immediately upon the expiration of the present term, (including the two five-year reserved options, if exercised) of that certain lease agreement relating to the above -mentioned adjacent property dated January 16, 1974, whichever first occurs, the Developer will cause Bartran Homes, Inc, to execute a deed of dedication to the City dedicating the above -described additional right-of-way through and upon said adjacent property for the purposes hereinabove stated or a private agreement establishiong an easement for such purposes. The terms of such deed of dedication or private agreement shall include the provision that acceptance thereof by the City will impose no duty of maintenance upon the City. The Developer further agrees that such dedicated right-of-way shall be constructed according to the design specifications of the City and that such specifications shall include, but not be limited to, the requirement that the existing curb cut from said property into West Elizabeth Street be relocated and redesigned in such fashion as the City, in its sole discretion, determines to be necessary in the public interest. In the event that such relocation causes changes in the location of existing parking spaces presently situated upon the above -mentioned adjacent property, any costs associated with the relocation of said parking spaces shall be borne by the Developer. 3. Miscellaneous. -7- A. The Developer agrees to provide and install, at his 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 City Engineer in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been approved by the City Engineer. B. The Developer shall, at all times, keep the public right- of-way free from accumulation of waste material or rubbish caused by his 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. He further agrees to maintain the finished street surfaces free from dirt caused by his 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 corrected to the satisfaction of the City Engineer. 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 his expense and he shall be respon- sible for prompt payment of all such costs. C. The Developer hereby insures that his subcontractors shall 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. When the inspector determines that erosion (either by wind or water) is likely to be a problem, the surface area of erodable earth material exposed at any one time shall not exceed 200,000 square feet for earthworks operations. Temporary or permanent erosion control shall be incorporated into the subdivision at the earliest practicable time. By way of explanation and without limitation, said control may consist of seeding of approved grasses, temporary dikes, gabions, and/or other devices. E. 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, or on any replat 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. In addition, it is agreed and understood between the developer and the City that the City shall have the right to refuse issuance of building permits and certificates of occupancy in the subject development as the City, in its sole discretion, shall deem necessary in order to insure performance by the Developer of any other obligation the Developer may have to the City, whether pursuant to other development agreements, or otherwise. M