HomeMy WebLinkAboutHARMONY CENTRE PUD CIRCUIT CITY STORE - Filed DA-DEVELOPMENT AGREEMENT - 2003-10-01DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this Z."O day of Juu
199Z, by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City";
Circuit City Stores West Coast, Inc., a California corporation,
hereinafter referred to as the "Developer"; and Generation H One
and Two, a Colorado limited partnership, hereinafter referred to as
the "Owner."
WITNESSETH:
WHEREAS, the Developer has entered into an agreement with the
Owner to acquire a lease -hold interest in certain property situated
in the County of Larimer, State of Colorado, (hereafter referred to
as the "Property") and legally described as follows, to wit:
Harmony Centre P.U.D., Circuit City, being a portion of the SW
1/4 of Section 36, 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
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
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.
We
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 its lease -hold
interest 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 lessee 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 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
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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
an agreement for the benefit of ar
third party or parties shall have
any cause whatsoever.
be construed as or deemed to be
7 third party or parties, and no
ny right of action hereunder for
M. The Owner is made a party to this Agreement solely for the
purpose of subjecting the Property to the covenants contained in
this Agreement. The City and the Developer expressly acknowledge
and agree that the owner shall not be liable for any obligations of
the Developer under this Agreement, unless the Owner were to
exercise any of the rights of the Developer in which event the
obligations of the Developer shall become those of the Owner.
N. 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.
O. Any notice or other communication given by any party
hereto to any other party relating to this Agreement shall be hand -
delivered or sent by Federal Express or other comparable overnight
delivery service, or by certified mail, return receipt requested,
addressed to such other party at their respective addresses as set
forth below; and such notice or other communication shall be deemed
given when so hand -delivered or delivered by such delivery service
three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Cc 80522
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If to the Developer: Circuit City Stores, Inc.
Attn: Vice President of Construction
9950 Mayland Drive
Richmond, VA 23233-1464
With a copy to: Circuit City Stores, Inc.
Attn: Assistant Secretary
9950 Mayland Drive
Richmond, VA 23233-1464
If to the Owner: Generation H One and Two
Attn: George Holter
3509 South Mason Street
Fort Collins, CO 80525
Notwithstanding the foregoing, if either party to this Agreement,
or their successors, grantees or assigns, wishes to change the
person, entity or address to which notices under this Agreement are
to be sent as provided above, such party shall do so by giving the
other party to this Agreement written notice of such change.
P. 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 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 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.
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ATTEST: nn
nal�
CI'PY CLERK ` QQ
APPROVED AS TO CONTENT:
Director of Enginee g
APPROVED -NS TO FORM:
O
Deputy City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: a i
Cityvmanager
Iml
ATTEST:
8y:keh
�.
Developer:
Circuit City Stores west Coast,
Inc., A California Corporation
Betij min B. Cummings, Vice
pregs dent
15
ATTEST:
By:
���
Nadine Holter, Secretary
OWNER:
Generation H One and Two, A Colorado
Limited Partnership
By Garth Development, Inc., A
Colorado Corporation, General Partner
By: c
George Holter, President
16
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
HH.
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 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
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and accepted by the City. The preceding sentence shall not apply
to construction under a footings and foundations permit. No
building permits shall be issued for any 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. 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
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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 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; 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 Colorado 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 provisions 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 Line; 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
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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 by the Owner or the Developer 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 by the Owner or the Developer 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 (A) generated or deposited by
the City, its, agents or representatives, upon portions of the
Property dedicated to the City in connection with this Development,
or (B) first having been placed on or in the dedicated portions of
the Property after the date of dedication of such land by persons
other than the Owner or Developer.
II. Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
1. Prior to the issuance of any building permit for this
Development, the Developer shall reimburse the City a lump sum
payment of $316.62 (Three hundred sixteen dollars and sixty-two
cents) to fulfill the Property's obligation for the Warren Lake
Trunk Sanitary Sewer Basin. Fee.
C. Storm Drainage Lines and Appurtenances
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2. The Developer and the City agree that all on -site and
off -site storm drainage improvements, as shown on the approved
utility plans for this Development, shall be completed by the
Developer in accordance with the 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. Any deviations from the approved utility
plans shall be the responsibility of the Developer to correct prior
to the issuance of any certificate of occupancy. Said
certification shall be submitted to the City at least two weeks
prior to the date of issuance for any certificate of occupancy.
3. 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 $7,312.50 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. In addition, the City shall have the option to withhold
building permits and certificates of occupancy, as stated in
Paragraph III.D of this Agreement, as it deems necessary in order
to ensure that the Developer installs and maintains the erosion
control measures shown on the approved Plan throughout the build
out of this development.
4. The Developer shall obtain the City's prior approval
of any changes from the approved utility plans in grade elevations
and/or storm drainage facility configuration that occur as a result
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of the construction of this development. 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.
D. Streets.
1. Subject to the conditions of this Agreement, the City
agrees to reimburse the Developer for oversizing public street
improvements along South College Avenue (U.S. Highway No. 287) for
those portions of said street abutting the Property as shown on the
approved utility plans. Reimbursement for South College Avenue
(U.S. Highway No. 287) shall be for oversizing the sidewalk from
residential local street standards to major 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 Fort Collins 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 Develcper'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 reimbursements
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), will 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 24-121 (d).
2. It is understood that the streets to be constructed
for this Development as described in this Section II.D. are "City
improvements" and, as such, any contract for the construction of
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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. The Developer agrees to reimburse the City the sum of
$32,718.68, plus a percentage added to recognize the effects of
inflation, for the cost to construct Pavilion Lane adjacent to the
property. The inflation factor shall be calculated using the
construction cost index for Denver as published in the Engineering
News Record (ENR) of January, 1988, and the same index published in
the ENR in the month preceding payment of the reimbursement.
Payment shall be made to the City prior to the issuance of the
first buildincl permit.
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 operation. 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).
S. The Developer and the City agree that all public
improvements shall be completed as shown on the City approved
Utility Plans and accepted by the City prior to the issuance of a
certificate oit occupancy.
6. The Developer shall not gain access for this
development from Poco Drive.
7. The Developer and the City agree that if the
Developer chooses to gain access to the Property from Pavilion Lane
during construction, and the City determines that there is any
damage to Pavilion Lane caused by the construction traffic related
to this development, the Developer shall repair such damage by
H.
milling and replacing at least the top one and one-half inches (1-
1/211) of surface of all of Pavilion Lane with equivalent material
equal to or better than the original condition of Pavilion Lane at
the Developer's expense.
8. The Developer and the City agree that the street
improvements, as shown on the approved utility plans for this
development for the construction of the deceleration lane on
College Avenue, must be completed prior to the issuance of a
certificate of occupancy of this development.
E. Groundwater.
Not Applicable
F. 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 access way to
said building or buildings. Such access way shall be adequate to
handle any emergency vehicles or equipment, and the access way
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 access way 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 access way. The turnaround is not required if
an exit point is provided at the end of the access way.
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
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