HomeMy WebLinkAboutHARMONY SCHOOL SHOPS - Filed DA-DEVELOPMENT AGREEMENT - 2003-11-24DEVELOPMENT AGREEMENT
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THIS AGREEMENT, made and entered into this -I day of ),_ `� 199-, by and
between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter
referred to as the "City"; and Fulton Trust, a California trust, dated March 19, 1986, and Oak Farm,
Inc-, a Colorado corporation, hereinafter collectively referred to as the "Developer
WITNESSETH.
WHEREAS, the Developer is the Owner of certain real property situated in the County of
Larimer, State of Colorado, (hereafter referred to as the 'Property") and legally described as follows,
to wit:
HARMONY" SCHOOL SHOPS, FIRST FILING, a tract of land located in the Southwest
Quarter of Section 32, Township 7 North, Range 68 West of the 6th Principal Meridian, City
of Fort Collins, County of Latimer, 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 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)
City Clerk
APPROVED AS TO CONTENT:
Director of Engineering'
APPRO AS TO FORM:
Deputy City Attorney
ATTEST:
Roberta S. Martin, Secretary
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: l711
aoku
City Vhanager
DEVELOPER;
Fulton Trust, a Califomia trust dated March 19, 1986
By: >�
Sulie Ann Fulton, Successor Trustee
Oak Farm, Inc., a Colorado corporation
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Michael S. Byrne, President
T,l a� 7iO ON . n:QT 1Fi C7 UM' . r i II. I
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: Y
4Citfanapr
ATTEST:
-_--
City Clerk
APPROVED AS TO CONTENT:
Director of Engineering
APPRO AS TO FORM:
Deputy City Attorney
IN
ATTEST:
y
Roberta S.
Martin, `secretary
DEVELOPER:
Fulton Trust, a California trust dated March 19, 1986
Sulie Ann Fulton, Successor Trustee
Oak Farm, Inc., a Colorado corporation
By
Michael S. Byrne, Pre dent
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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.
Not Applicable
4 Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable-
EXHIBIT "B"
NOT APPLICABLE
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obtaining a building permit therefor, or (3) any change in grade, contour or appearance of said
property caused by, or on behalf of, the Developer with the intent to construct improvements thereon.
B- All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets,
curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the approved utility plans and
in full compliance with the Council -approved standards and specifications of the City on file in the
office of the Director of Engineering at the time of approval of the utility plans relating to the specific
utility, subject to a three (3) year time limitation from the date of execution of this Agreement. In the
event that the Developer commences or performs any construction pursuant hereto after three (3)
years from the date of execution of this agreement. the Developer shall resubmit the project utility
plans to the Director of Engineering for reexamination_ The City may require the Developer to
comply with approved standards and specifications of the City on file in the office of the Director of
Engineering at the time of resubmittal.
C- No building permit for the construction of any structure within the development shall
be issued by the City until the water lines, fire hydrants, sanitary sewer lines and streets (including
curb, gutter and sidewalk and pavement with at least the base course completed) serving such
structure have been completed and accepted by the City- No building permits shall be issued for any
structure located in excess of six hundred and 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
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
ofthe plans and/or specifications applicable to such installation In case of conflict. the utility plans
shall supersede the standard specifications
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H. All storm drainage facilities shall be so designed and constructed by the Developer as
to protect downstream and adjacent properties against injury and to adequately serve the Property
(and other lands as may be required, if any) The Developer shall meet or exceed the minimum
requirements for storm drainage facilities as have been established by the City in its Drainage Master
Plans and Design Criteria. The Developer does hereby indemnify and hold harmless the City from
any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm
drainage or seepage waters from the 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 (i) 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 11C. 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 Ylylars 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 C S Environmental Protection Agency Regulations at
40 C.F.R., Part 261, and that such portions of the PropertN as are dedicated to the City pursuant to
this development, are in compliance with all such requirements pertaining to the disposal or existence
in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined
by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended,
and regulations pi ornulgated thereunder_ The Developer does herebv indemnity 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 in connection with this
development- The Developer further agrees to indemnify and hold harmless the City from any claims
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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 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 generated or deposited by the City, its agents or representatives, upon portions of the
Property dedicated to the City in connection with this development
11. 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, 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 fi om 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 of any
certificate of occupancy
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 shall also be required to post a security deposit in the amount of $
6,551 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, installation of the erosion control nuaxires 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
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that the Developer installs and maintains the erosion control measures shown on the approved Plan
throughout the buildout of this development
3 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 of the construction of houses and/or development of lots.. whether by the Developer or other
parties. The City reserves the right to withhold the issuance of building permits and certificates of
occupancies until the City has approved such changes as being acceptable for the safe and efficient
delivery of storm drainage water
D. Streets.
I Subject to the conditions of this Agreement, the City agrees to reimburse the
Developer for oversizing public street improvements along Harmony Road for those portions of said
street abutting the Property as shown on the approved utility plans. Reimbursement for Harmony
Road shall be fcv oversizing the sidewalk from residential (access) standards (4 foot) to arterial
standards (8 foot) 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 Develo er'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 film percent (50°io) 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 Ilarmony Road as
described in this Section 11 D_ are "City itnprovements" and, as such, any contract for the construction
of the same must be executed in writing_ If the cost of such improvements exceeds the sum of Fifteen
Thousand Dollars ( S 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 contact for the construction of the improvements must be insured by a performance
bond or other equivalent securitN
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3 The Developer agrees to reimburse the City the sum of S 145,135, as provided
below for the cost to construct Timberline Road and Milestone Drive adjacent to the Harmony
School Shops PCD plus a percentage added to recognize the effects of inflation_ The Developer shall
make reimbursement to the Citv as each lot is developed based upon the proportion that such lot is
to the total size of t ne harmony School Shops PL1D (totaling 852,818 square feet)- The inflation
factor shall be calculated using the construction cost index for Denver as published in the Engineering
News Record (ENR) of May. 1996. and the same index published in the ENR in the month preceding
payment of the reimbursement. Payment shall be made to the City lot each lot prior to the issuance
of any building permit on such lot
4 The Developer shall be responsible for the costs of the design and construction
of the future improvements to Harmony Road adjacent to this site if such future improvements are
necessary for the construction of the "three quarter movement" (right -in_ right -out, left -in access)
off of Harmony Road at the southern edge of this property
5 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 operations. 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 i WJit turn lane into the development site)
E. Groundwater_
1 The Developer and the City recognize that this development is adjacent to the
Warren Lake Ditch and that seepage from said ditch may impact the ground water levels in this
development_ Accordimdl _ it is agreed that the Citv shall not be responsible for and that the
Developer hereby indemnifies the City for any claims of damages or injuries that may be alleged to
have been sustained in the development as a result of groundwater seepage, whether resulting from
groundwater flooding, structural damage or other damage unless such damages or injuries are
sustained as a result of the Citv_'s failure to properly_ maintain its storm drainage facilities in the
development.
IF 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
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
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other areas as deemed necessary by the Director of Engineering in accordance with the City's "Work
Area Traffic Control Handbook" and shall not remove said safety devices until the construction has
been completed and approved by the Director of Engineering_
B. The Developer shall, at all times. keep the public right-of-way free from accumulation
of waste material or rubbish caused 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 sullicient cause for the Citv 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 sutTicient 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
maybe shown on the original plat and related documents, or any replat as subsequently filed by the
Developer, and the ('try may withhold such building per 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 comph with all requirements ofthe same.
F. In the event the Citv waives any breach of this Agreement. no such waiver shall be
held or construed to be a waiver of any subsequent breach hereof
G- Financial obligations of the City of Port 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 Port Collins Citv Council
H This Agreement shall run with the Property and shall be binding upon and inure to the
benefit at the parties hereto. their personal representatives, heirs, successors, grantees and assigns.
It is agreed that all improvements required pursuant to this Aprcemew touch and concern the
Property regardless of whether such improvements arc 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 cquit able interest in the Property,
as well as any assi���nment ofthc Developer's rights to develop the Property under the terms and
conditions of this Agreement
I. In the event the Developer transfers title to the Property and is thereby divested of all
equitable and legal interest in the Property, the Cite herebv agrees to release said Developer from
liability under this Agreement with respect to arc breach of the terms and conditions of this
Agreement occurring after the date of any such tiansler of interest In such event, the succeeding
property owner shall be bound by the terms of this \ureemcnt
J- Fitch and every tern of this Agreement shall be deemed to be a material element
hereof In the event that either party shall fail to perlmmn 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 specifving 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 del'ault to continence legal or equitable action against said defaulting party,
the defaulting pai ty shall be liable to the non-defaultinv party for the non -defaulting party's reasonable
attorney's fees and costs incurred by reason of the dclault Nothinu herein shall be construed to
prevent or intertere wCi ith the t_v's rights and remedies specified in Pama—miph 111 D of this Agreement
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L_ This Agreement shall not be construed as or deemed to be an agreement for the benefit
of any third party or parties. and no third party or parties shall have anv right of action hereunder for
any cause whatsoever
M 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-
N. Any notice or other communication ,iv en by any party hereto to any other party
relating to this Agreement shall be hr and -delivered osent 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 Land -delivered or 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, Co 8052'
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If to the Developer Fulton "Crust
800 N Harbor Blvd , Suite D
La Habra, California 90631
and Oak Farm Inc
c/o LGT Real Estate Advisors Inc.
3555 Standford Road_ Suite 100
Fort Collins, Colorado 80525
With a copy to Cathv Hutchison
840 W_ County Road 06E
Fort Collins, Colorado 80524
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 giv ing the other party to this Agreement written
notice of such change
O. 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 lair meaning, and as if prepai cc] by all parties hereto pertaining to the
matters addressed in this A-reement 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 sinned by all ofthc parties hereto Further. paragraph headings
used herein are for convenience of reference and shall inno way define, limit or prescribe the scope
or intent of any provision under this Agreement_
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