HomeMy WebLinkAboutMATTERHORN PUD - Filed DA-DEVELOPMENT AGREEMENT - 2003-12-18DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this 44 day of
19J, by and among the CITY OF FORT COLLINS, COLORADO, a Municipal
Cor ration, hereinafter referred to as the "City"; W.J.
ENTERPRISES, INC., a Colorado corporation and BC REAL ESTATE
INVESTMENTS, INC., a Delaware corporation, collectively hereinafter
referred to as the "Developer"; and AURORA NATIONAL BANK,
hereinafter referred to as the "Owner."
WITNESSETH:
WHEREAS, Giant Video, Inc. has entered into an agreement with
the Owner to acquire ownership of certain property situated in the
County of Lari.mer, State of Colorado, (hereafter referred to as the
"Property") and legally described as follows, to wit:
MATTERHORN P.U.D., located in the Southeast Quarter of Section
26, Township 7 North, Range 69 West of the 6th Principal
Meridian, City of Fort Collins, County of Larimer, State of
Colorado.
WHEREAS, the Developer has entered into an agreement with
Giant Video, Inc. to acquire ownership of the Property immediately
after the sale of the Property by the Owner to Giant Video, Inc.
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
ATTEST
O AMAIn
N
CITY CLERK
APPROVED AS TO CONTENT:
Director of Engineering;
APPRO CY AS TO FORM:
City Attorney
By:
e:
THE CITY OF FORT COLLINS, COLORADO,
a municipalCorporation
By:
G
%I/ W
City Manager
DEVELOPER:
W. J. ENTERPRISES, INC., alorado
corporation �
By. l r� 1 1 / fir% /1 li 117
Name: W,Iharvi G 5 �nzri
Title: Vice PreSirfer�
(corporate seal)
BC REAL ESTATE INVESTMENTS, INC., a
Delaware corporation
By.
Thomas R. Sprague, Senior Vice
President Real Estate
INT.
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��_
OWNER:
Aurora National Bank, etc.
- By: ' }D
Name:
Title:
By reason of the fact that Giant Video, Inc. will appear in the
chain of title of the Property as an owner (even though possibly
only momentarily) Giant Video, Inc. does hereby consent to, and
acknowledge the execution of this Agreement; and does further agree
to be bound by the terms hereof in the event that it should conduct
development activities upon the Property.
Giant Video, Inc.
By:
Na—me
Title:/�.
(corporate seal)
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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
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receipt and adequacy of which is hereby acknowledged, it is agreed
as follows:
I. General_ronditions
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 or certificate of
occupancy 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. Notwithstanding the foregoing,
the Developer shall be entitled to receive a building permit for
the construction of improvements within the development upon the
installation of access to provide fire protection and other
emergency services to the site during construction. Adequate water
lines and fire hydrants shall be installed prior to the Developer
being allowed to place combustible materials on the site. All such
access (temporary or permanent) completed prior to building permit
and water lines and fire hydrants (temporary or permanent)
completed prior to placement of combustible material on the site
shall be approved by the Poudre Fire Authority. 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,
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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
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
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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.
K. The Developer specifically represents that to its actual
current 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
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 pursuant to 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 pursuant to 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 pursuant to this development.
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 any 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 said approved
plans.
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 $2,398.50 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
Storm Drainage Design Criteria and Construction Standards.
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 for those portions of said
street abutting the Property as shown on the approved utility
plans. Reimbursement for South College Avenue shall be for
oversizing the sidewalk from residential standards to major
arterial street standards. The City shall make reimbursement to
the Developer, for the aforesaid oversized sidewalk 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 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
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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).
2. It is understood that the streets to be constructed
as described :in this Section II(D) are "city improvements" 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 ($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 in the reasonable discretion of the Developer.
3. A Colorado State Highway Access Permit must be
obtained by the Developer prior to beginning construction of the
driveway, deceleration/right-turn lane and related improvements on
South College. Avenue. All improvements to said access shall be
completed in accordance with the approved plans prior to the
issuance of the first certificate of occupancy for this
development.
4. Prior to commencing construction of improvements to
South College. Avenue, the Developer shall execute and deliver an
Addendum to its Construction Escrow and Disbursement Agreement, a
copy of which has been provided to the City, which Addendum shall
be in form and substance satisfactory to the City. The purpose of
such Addendum is to guarantee the completion of all public
improvements to be constructed in the South College Avenue right-
of-way in accordance with the approved utility plans on file in the
office of the Director of Engineering of the City. Said Addendum
One shall provide that an amount of money equal to 150% of the
estimated cost of the improvements to South College Avenue shall be
held and segregated in the escrow provided for in the Construction
Escrow and Disbursement Agreement (the "Segregated Funds") and not
disbursed without the City's prior written consent unless such
improvements have been completed to the written satisfaction of the
City. Said funds in escrow shall be released by the City in the
event the project contemplated by this Development Agreement is
abandoned by the Developer without having disturbed South College
Avenue. In the event that the Developer has disturbed or altered
the infrastructure of South College Avenue, and, in the judgement
of the City, the Developer has abandoned said project for a period
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of two (2) months, then the City shall have the right, under said
Addendum, to draw upon said Segregated Funds in such amount(s) as
necessary to complete said improvements to South College Avenue.
The amount deposited shall be equal to 150% of the estimated cost
of the improvements to South College Avenue. The estimate shall be
prepared by the Developer and submitted to the Director of
Engineering for review and approval.
5. It is understood and agreed that a condition of the
approval of this development was the requirement that the Developer
execute a Cross -Access Agreement for the provision of vehicular
access from the development to Monroe Avenue across portions of
Lots 12, 13 and 14 of South Mesa Subdivision in the City of Fort
Collins and that without said Cross -Access Agreement, no access to
College Avenue would have been available to this development.
Accordingly, at Cross -Access Agreement shall, prior to the issuance
of any building permit, be executed in the form approved by the
City by and :between Melvin L. Saltz and R. Jean Saltz, W. J.
Enterprises, Inc. and BC Real Estate Investments, Inc., which
Cross -Access Agreement shall be recorded with the Larimer County,
Colorado, Clerk and Recorder. The aforesaid Cross -Access Agreement
contains certain provisions which describe conditions upon which
the Cross -Access Agreement might be terminated and, in addition
thereto, it might be terminated by mutual agreement of the parties
signatory to the Cross -Access Agreement. In the event that the
Cross -Access Agreement should ever become terminated with the
result that the right of legal access from the development to
Monroe Avenue across Lots 12, 13 and 14 of South Mesa Subdivision
should no longer exist, then access to the Development from College
Avenue shall be summarily terminated and the City shall have the
right to block all such curb cuts and other accesses as may exist
to College Avenue.
E. 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. The Developer shall provide an accessway to any
building under construction which accessway shall be adequate to
handle any emergency vehicles or equipment, and the Developer shall
properly maintain such accessway at all times. Such accessway
shall be at least 20 feet wide 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 accessway.
3. The issuance of any building 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 requirements in accordance with Section 29-
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678 of the Code of 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 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 arid; 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 a].1 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
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subsequent breach hereof.
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.
H. 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.
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. 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.
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
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.
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