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HomeMy WebLinkAboutFOUR SEASONS PUD EIGHTH - Filed DA-DEVELOPMENT AGREEMENT - 2003-11-06DEVELOPMENT AGREEMENT `(1, � THIS AGREEMENT, made and entered into this 4�' day of 199, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; ODAU CONSTRUCTION INC., a Colorado Corporation, hereinafter referred to as the "Developer"; and CHISM HOMES INC., a Nevada corporation, hereinafter referred to as the "Owner". WITNESSETH: WHEREAS, the Developer has entered into an agreement with the Owner to acquire ownership 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: FOUR SEASONS EIGHTH FILING SUBDIVISION, situate in the Northwest 1/4 of Section 35, Township 7 North, Range 69 West of the i5th 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: 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, 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. 10 EXHIBIT "B" NOT APPLICABLE 11 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 (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 six hundred 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 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 2 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 has met or exceeded 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 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 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. 3 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 shall be completed by the Developer in accordance with the approved plans prior to the issuance of more than 6 building permits for lots 1 through 23. Completion of improvements shall include the certification by a licensed professional engineer that the drainage facilities which serve this development have been constructed in conformance with said approved plans. Lots 24 through 33 are served by storm drainage improvements which have been completed and certified by the developer of the Four Seasons Sixth Filing, P.U.D., First Replat (Sixth Filing) in accordance with the approved plans and development agreement (dated September 6, 1990) for said Sixth Filing. Therefore, no construction restrictions imposed because of incomplete storm drainage improvements in the Sixth Filing shall prevent the issuance of building permits for lots 24 through 33. However, the Developer shall be required to complete grading and erosion control improvements on lots 24 through 33 in accordance with the approved plans for this development prior to the issuance of building permits for each of said lots. The Developer shall not be responsible for the maintenance of the Sixth Filing storm drainage improvements except for maintenance needs caused directly or indirectly by the Developer. 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 is also required to post a security deposit prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the approved plans. The amount of the security deposit shall be based on one and one-half times the owner's estimate of the cost to install the approved measures, or one and one-half times the cost to vegetate the disturbed land to dryland grasses (based upon unit cost determined by the City's Annual Landscape Bid), whichever is greater. In no instance shall the amount of the security deposit be less than $1,000.00. Said security deposit shall be made in accordance with the Criteria set forth in the Storm Drainage Design Criteria and Construction Standards. 4 3. The Developer shall be responsible for the maintenance of all storm drainage facilities, including the detention pond, located outside of the street rights -of -way. The Developer shall provide the City with a two year warranty of the drainage and landscape improvements which shall be in effect commencing upon City acceptance of the drainage improvements as shown on the approved utility plans. During the two year warranty period, the :Developer shall be responsible for all irrigation, mowing, and weed control required to establish the vegetation. The Developer shall take all actions that are necessary to insure that the Homeowner's Association accepts the duty of maintenance of the landscaping at the end of the two year warranty period if the vegetation is established in accordance with the City Storm Drainage Design Criteria and Construction Standards.. If, at the end of the two year warranty period, the vegetation is not established according to said City Standards, the Developer shall remain responsible for maintenance of said landscaping. 4. The Developer and the City agree that the storm drainage system for this development contains some special features that make it :important to construct the facilities according to 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 designated lots: (a) The drainage improvement system required to be constructed on or adjacent to lots 13, 14, 20, 21, and 23 shall be completed in accordance with the approved utility plans and said completion shall be certified as being in accordance with said plans by a licensed professional engineer. Said certification shall be received by the City prior to the issuance of a building permit for any of the above lots. Prior to the issuance of a certificate of occupancy for each of the above lots, a recertification by such engineer that the drainage system's function and adequacy to serve its purpose has not been impaired by the construction and landscaping on said lot, shall be required by the City. In addition, homes constructed on the above lots shall be constructed at, or above, the specified minimum elevations shown on the approved utility plans. To ensure compliance with said elevation requirement, a certification of the minimum opening elevation by a licensed professional engineer or land surveyor must be submitted to the City prior to the issuance of a certificate of occupancy for any such home. Said 5 certification may be done in conjunction with the aforementioned recertification of the drainage system's function and adequacy. D. Streets. 1. The Developer and the City agree that no street oversizing is due the Developer for this development. 2. Prior to the issuance of a building permit for each of lots 1 through 33, the Developer shall pay the City $572.92 for the Developer's proportionate share per lot of the cost of street improvements to Shields Street along the frontage of the Four Seasons development. The amount of said payment per lot shall be based on the Developer's estimate, approved by the City, of the cost of the Shields Street improvements divided by the total number of acres of remaining undeveloped land responsible for said improvements, times the number of acres being developed with the Four Seasons Eighth Filing Subdivision, divided by the number of lots in said subdivision. 3. The Developer and the City agree that the Developer is obligated to construct certain public improvements on Wabash Street consisting of one-half of the street along the frontage of Lot 1 and other related public improvements. In lieu of constructing said improvements, the Developer shall have the option to deposit with the City cash to be used by the City to pay for the future construction of said improvements. The amount of said cash shall be equal to the estimated cost to construct said improvements, which estimate shall be prepared by the Developer and approved by the City, plus 10% to cover the cost of construction engineering, surveying, and project management. Said cash shall be deposited with the City prior to the issuance of a building permit for Lot 1. If, at the end of twenty years from the date of this Agreement, said improvements have not been constructed, the City shall return said cash to the owner of Lot 1, after which time the owner of Lot 1 fronting Wabash Street shall become obligated for the cost to construct said improvements as a part of any street improvement district which may be formed by the City for the purpose of accomplishing said construction. The Developer is responsible for construction of curb, gutter, and sidewalk along Wabash Street adjacent to lot 1 in accordance with the approved utility plans. 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 0 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 insures that its 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 development at the earliest practicable time. By way of explanation and without limitation, :said control may consist of seeding with 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 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. 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 a waiver of any subsequent breach hereof. 7 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 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 the Developer's rights to develop the Property under the terms and conditions of this Agreement. J. 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. K. 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. L. 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.E of this Agreement. M. As aforesaid, it is contemplated that the Developer will acquire ownership of the Property from the Owner. Upon transfer of title to the Property by Owner to Developer, Owner shall be released of all liability under this Agreement. 0 ATTEST: .�,ftk`/ CITY CLER APPROVED AS TO FORM: ire f Engineering // City Attorney THE CITY OF FORT COLLINS, COLORADO, a Munipal Co/rypratn By: �L City Manager DEVELOPER: ODAU By: ATTEST• . By: t;,i .� Elaine Hopkins , INC., a Colorado , Pres (corporate seal) OWNER: CHISM HOME , INC., a Nevada corpo n By: H. h1 , President ATTEST: � By: Marjorie L. Chism, Secretary (corporate seal)