HomeMy WebLinkAboutHARMONY MARKET PUD THIRD - Filed DA-DEVELOPMENT AGREEMENT - 2003-11-20DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this 29th day of November
199 0 , by and between THE CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as "the City", NASH FINCH
COMPANY, a Delaware Corporation, herinafter referred to as "the Developer";
and OAK FARM INC., a Delaware Corporation, hereinafter referred to as "Oak
Farm".
WITNESSETH
This Agreement provides for the installation and construction of certain
improvements on or with respect to real property in Latimer, County, Colorado,
legally described as follows:
HARMONY MARKET P.U.D., THIRD FILING, a tract of land
located in the Northeast Quarter of Section 1, Township 6
North, Range 69 West of the 6th P.M., City of Fort Collins,
County of Larimer, State of Colorado.
WHEREAS, Oak Farm is the owner of fee -simple title to a portion of
such property, legally described as follows:
LOT 1, HARMONY MARKET P.U.D., THIRD FILING,
According to the plat thereof, Larimer County, Colorado.
WHEREAS, Oak Farm has granted an option to purchase Lot 1 to Fiest,
Meager & Co., Inc., a Colorado Corporation (Fiest Meager); Fiest Meager has
assigned the option to purchase to 600 Grant Associates, a Colorado limited
partnership (600 Grant); 600 Grant has assigned to option to purchase to the
First Interstate Bank of Denver, a national banking association (Bank), and the
Bank has entered into an agreement with the Developer whereby the Developer
has the contractual right to acquire title to Lot 1;
WHEREAS, Oak Farm is the owner of a portion of such property
described as follows:
Tract A, Tract B, Tract C and Tract D, HARMONY MARKET
P.U.D., THIRD FILING, According to the plat thereof, Larimer
County, Colorado.
WHEREAS, if the Developer acquires title to Lot 1, it plans to develop
Lot l and construct improvements thereon and the Developer and Oak Farm
desire to cause certain development of Tracts A, B, C and D in conjunction
with the development of said Lot 1; and
WHEREAS, the Developer 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 a utility plan
for said lands, 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 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 said lands.
EXHIBIT "A"
I. 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.
The off -site sidewalk improvements shown on the approved utility plans
along Lemay Avenue and Oakridge Drive shall be completed prior to the
issuance of a certificate of occupancy.
4. Storm drainage improvements to be installed out of sequence.
Not applicable.
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"EXHIBIT B"
NOT APPLICABLE
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.
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. The terms of this Agreement shall govern all development
activities of the Developer pertaining to the subject property
described above. 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 and streets (with at least the base
course completed) serving such structure have been completed and
accepted by the City. Notwithstanding the forgoing, the
Developer shall be entitled to receive a building permit for the
construction of improvements within the development upon the
installation of adequate temporary water lines, fire hydrants, and
street access to provide fire protection and other emergency
services to the site. All such temporary water lines, hydrants and
street access shall be approved by the Poudre Fire Authority
prior to issuance of any building permit. No building permits
shall be issued for any structure located in excess of six hundred
sixty feet (660') 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 sewer facilities and/or
streets are required to provide service or access to other areas of
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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
sewer facilities and appurtenances, and all streets, curbing, gutter,
sidewalks, bikeways and other public improvements required by
this development as shown on the plat, utility and landscape
plans, and other approved documents pertaining to this develop-
ment on file with the City.
F. 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.
G. The installation of all utilities shown on the utility drawings
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
drawings 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 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 benefit of
the City, and subsequent purchasers of property in the
development.
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 the
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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 2.C, Special Conditions,
Storm Drainage Lines and Appurtenances, for specific
instructions.
J. The Developer shall provide the Director of Engineering with
certified Record Utility Drawing Transparencies on Black Image
Diazo Reverse Mylars upon completion of any phase of the
construction.
2. Special Conditions.
A. Water lines.
Not Applicable.
B. Sewer lines.
Not Applicable.
C. Storm drainage lines and appurtenances.
(i) The Developer and the City agree that all on -site and
off -site storm drainage improvements shall be completed by
the Developer prior to the issuance of a certificate of
occupancy. 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 the approved plans.
(ii) 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 erosion control improvements must be
completed prior to the issuance of any building permits.
D. Streets.
(i) Subject to the conditions of the agreement, the City agrees to
reimburse the Developer for oversizing public street
improvements along Harmony Road, Lemay Avenue and
Oakridge Drive for those portions of the said streets
abutting the property as shown on the approved utility
plans. Reimbursement for Harmony Road shall be for
oversizing the sidewalk from residential standards to major
arterial standards. Reimbursement for Lemay Avenue shall
be for oversizing the sidewalk from residential standards to
arterial standards. Reimbursement for Oakridge Drive shall
be for oversizing the street from residential standards to
collector 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
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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 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),
would not be less than fifty percent (50%) of the
Developer's actual expenses incurred and will be calculated
in accordance with the formula as set forth in Section
24-121 (d).
(ii) The Developer shall complete all on -site and off -site street
improvements in accordance with the approved utility plans
prior to the issuance of the first certificate of occupancy.
(iii) Prior to beginning construction of improvements to Lemay
Avenue, the Developer shall deposit with the City a cash
guarantee in the form of a certificate of deposit, cash,
performance bond, letter of credit or other City approved
means to guarantee the completion of all public
improvements to be constructed in the Lemay Avenue right
of way in accordance with the approved utility plans on
file in the office of the Director of Engineering. The
amount deposited shall be equal to 150% of the estimated
cost of the improvements to Lemay Avenue. The estimate
shall be prepared by the Developer and submitted to the
Director of Engineering for review and approval. Said cash
guarantee shall be released by the City upon satisfactory
completion of the construction work and acceptance by the
City.
(iv) The approval of plans for this development are based on the
assumption that the previously approved development,
Harmony Market P.U.D., Second Filing, would be completed
prior to, or concurrently with, this development. If said
Second Filing improvements are not completed and accepted
by the City prior to the issuance of a certificate of
occupancy for this development, then the Developer shall be
responsible for the completion of the following items prior
to the issuance of the certificate of occupancy.
(1) Oakridge Drive shall be constructed from its existing
terminus west of Lemay Avenue to the west end of this
development. The street improvements shall be constructed
in accordance with the approved utility plans for the
Harmony Market P.U.D., Second Filing, with said utility
plans to be revised to accommodate the temporary deadend
of Oakridge at the west end of this development. The
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street improvements shall include all traffic control signs,
striping and barricades.
(2) The sidewalk along the north side of Oakridge Drive
west of this development to connect to the Harmony Market
P.U.D., Second Filing, shall not be constructed by the
Developer, and the Developer shall deposit with the City
sufficient funds to pay for the cost of construction of said
sidewalk by the City at such time the remainder of
Oakridge drive is connected from Harmony Market, Third
Filing to Harmony Market, First Filing.
(3) One of two temporary asphalt paved driveways
intended to connect the Second Filing with this
development as shown on the approved utility plan, shall be
further extended to the west to connect with the Harmony
Market P.U.D., First Filing. Prior to the construction of the
extension of said temporary driveway, the site plan and
utility plans for this development shall be revised to show
the design for said driveway.
E. Hazards and Emergency Access.
(i) No combustible material will be allowed on the site until a
permanent water system is installed by the Developer and
approved by the City.
(i i) The Developer shall provide an accessway to any building
under construction, adequate to handle any emergency
vehicles or equipment, and to properly maintain such
accessway at all times. Such accessway shall be at a
minimum 20' wide with 4" aggregate base course material
compacted according to City Standards and with an 80'
radius turnaround at the building end of said accessway.
(iii) The issuance
of any footing and foundation permit
by
the
City is made solely at the Developer's own risk
and
the
Developer shall
hold the City harmless from any
and
all
damages or
injuries arising directly or indirectly out
of
the
issuance of
said permit prior to the completion
of
the
requirement
as set forth in Section 29-678 of the
Code
of
the City.
F. Payback
(i) Prior to the issuance of a building permit, the Developer
shall reimburse the City for the Developer's proportionate
share of the total actual costs to construct water and sewer
lines located in Oakridge Drive to the extent that there are
existing reimbursement agreements at the time of issuance
of said building permit supporting and justifying the
collection of such reimbursement to the City. The
Developer's share of the total actual cost shall be based
upon the proportion of Oakridge Drive fronting on the
Developers property (as the numerator) in relation to the
total frontage of Oakridge Drive in which said lines are
constructed (as the denominator).
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3. 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 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 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 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 erodible
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 and related documents, 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.
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.
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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 herein 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, a conveyance or
assignment of any portion of the Developer's real or proprietary
interest in the real property herein described, as well as any
assignment of the Developer's rights to develop such property
under the terms and conditions of this Agreement.
J. In the event the Developer transfers title to such real property
and is thereby divested of all equitable and legal interest in
said 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 and condition of this Agreement shall be
deemed to be a material element hereof. 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 has been declared in default hereof, such
defaulting 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.
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 3 E of this Agreement.
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APPROVED AS TO FORM:
Direct 'Engineering
'vUU �aj �Ai-�
City Attorney
THE CITY OF FORT COLLINS, COLORADO
A Municipal Corporation
By: A(Ai
ity Manager
DEVELOPER:
NASH FINCH COMPANY, a Delaware
Corporation
1
R. N. mmel
'President
AT EST: J44
nn�0 (corporate seal)
Y7 L , J
Norman R. Soland, Se retary
OWNER:
OAK FARM INC., a Delaware Corporation
BY,0�2 K1e�
ATT S�T:� Michael S. Bryne resident
R berta S. Martin, Secretary
(corporate seal)
0