HomeMy WebLinkAboutMIRAMONT PUD - Filed DA-DEVELOPMENT AGREEMENT - 2003-12-22DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this day of cfu
199,r, by and between the CITY OF FORT COLLINS, COLORADO a
Municipal Corporation, hereinafter referred to as the "City";
MIRAMONT ASSOCIATES LIMITED LIABILITY COMPANY, a Colorado limited
liability company, hereinafter referred to as the "Developer"; and
OAK FARM INC., a Colorado corporation, herein after 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:
MIRAMONT P.U.D., a Tract of land located in the Southeast
Quarter of Section 1, Township 6 North, Range 69 West of the
6th Principal Meridian, 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:
ATTEST:
-&�CITY CLE �
APPROVED AS TO CONTENT-
,o
Director of Engineering
AP PRO D AS TO FORM:
& —�
City Attorn y
DEVELOPER:
Miramont Associates Limited
Liability Company, a Colorado
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By:
William/L. Neal, Manager
OWNER:
Oak Farm Inc., a Colorado
corporation
By •`�.
Michae S. B ne, President
ATTEST:
B rz �� J2;,?f
Y:
Rob rta S. Martin, Secretary (corporate seal)
FC:
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.
Lemay Avenue shall be designed and constructed in accordance
with paragraphs II.,D.,1 through 4 of this Agreement.
4. Schedule of storm drainage improvements to be installed out
of sequence.
Not Applicable.
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EXHIBIT "B"
NOT APPLICABLE
OVA
I. General Conditions
A. The terms of this Agreement shall govern all development
activities of the Developer pertaining to the Property. For the
purposes of this Agreement, "development activities" shall include,
but not be limited to, the following: (1) The actual construction
of improvements, (2) Obtaining a building permit therefor, or (3)
Any change in grade, contour or appearance of said property caused
by, or on behalf of, the Developer with the intent to construct
improvements thereon.
B. All water line trenches, sanitary sewer collection line
trenches, 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 nine hundred feet (900' ) 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
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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 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 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
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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 the best of
its knowledge all portions of the Property dedicated to the City
associated with this development are in compliance with all
environmental protection and anti -pollution laws, rules,
regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection
Agency Regulations at 40 C.F.R., Part 261, and that such portions
of the Property as are dedicated to the City pursuant to this
development, are in compliance with all such requirements
pertaining to the disposal or existence in or on such dedicated
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
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1. The Developer and the City agree that all on -site and
off -site storm drainage improvements serving Phase 1 (shown on the
approved utility plans) shall be completed by the Developer in
accordance with the approved plans prior to the issuance of more
than 25 building permits. All on -site and off -site storm drainage
improvements for the entire development project, as shown on the
approved utility plans, shall be completed prior to the issuance of
more than 33 building permits. 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. Any
deviations from the approved utility plans shall be the
responsibility of the Developer to correct prior to the issuance of
more than said 33 building permits. Said certification shall be
submitted to the City at least two weeks prior to the date of
issuance for any building permit greater than said 25 building
permits for Phase 1 and said 33 building permits for the entire
development project.
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 $61,470.00 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
(Criteria). If, at any time, the Developer fails to abide by the
provisions of the approved utility plans or the Criteria, the City
may enter upon the Property for the purpose of making such
improvements and undertaking such activities as may be necessary to
ensure that the provisions of said plans and the Criteria are
properly enforced. The City may apply such portion of the security
deposit as may be necessary to pay all costs incurred by the City
in undertaking the administration, construction and/or installation
of the erosion control measures required by said plans and the
Criteria.
3. The Developer and the City agree that the storm
drainage system for this development contains some features that
make it important to construct the facilities in accordance with
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 Lots 51 through 60:
The portions of the drainage improvement system required to be
constructed on any of the above lots and other portions
necessary for the system serving said lots to function shall
be completed in accordance with the approved utility plans and
said completion shall be certified as being completed in
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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. A certification by such engineer that the
drainage systems' function and adequacy to serve its purpose
has not been impaired by the construction and landscaping on
said lot shall be submitted to the City prior to the issuance
of a certificate of occupancy for each of the above lots.
4. The Developer and the City agree that it is important
that certain lots be graded to drain in the configuration shown on
the approved plans for this development. For this reason the
following additional requirements shall be followed for building on
Lots 10 through 13, 15 through 17 and 25 through 35:
Prior to the issuance of a certificate of occupancy for each
of said lots the Developer shall provide the City with
certification that the lot has been graded correctly
(including the grading of any minor swales, if applicable);
the lot corner elevations specified on the approved plans are
correct and in accordance with the approved plans; and the
minimum floor elevation for all buildings constructed on said
lot has been completed in accordance with the approved plans.
Said certification shall be completed by a Colorado licensed
professional engineer and shall be submitted to the City at
least two weeks prior to the date of issuance of the desired
certificate of occupancy.
D. Streets.
1. The Developer and the City agree that the Developer
is required to design and construct the arterial street
improvements for Lemay Avenue for which this development abuts a
portion of those improvements. Subject to the conditions of this
Agreement, the City agrees to reimburse the Developer for the costs
for said design and construction. Reimbursement for Lemay Avenue
shall be in accordance with Section 24-121 of the Code of the City.
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 waiting. If the cost of such improvements exceeds the
sum of Fifteen Thousand Dollars ($15,000), the contract for the
construction of the same must be submitted to a competitive bidding
process resulting in an award to the lowest responsible bidder; and
evidence must be submitted to the City prior to the commencement of
the work showing that the award was given to the lowest responsible
bidder. If the cost of such improvements exceeds fifty thousand
dollars ($50,000), the contract for the construction of the
improvements must be insured by a performance bond or other
equivalent security.
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3. The improvements to Lemay Avenue, including related
utility and storm drainage improvements, shall be completed prior
to the issuance of more than 33 building permits. Notwithstanding
the forgoing, the Developer shall have the option to postpone the
construction of the above described improvements required on Lemay
Avenue and obtain issuance of not more than 62 building permits for
this development prior to the completion of said improvements,
following the escrow of funds to be deposited with the City in the
form of cash, bond, nonexpiring letter of credit or other form of
City approved security sufficient to guarantee completion of said
improvements. The escrow amount shall be 150% of the average of
three, City approved, contractor bids for the improvement.
4. The Developer and the City agree that no building
permits shall be issued for lots 36, 37, 50 and 51 (all of which
lots have frontage on Lemay Avenue) until the street improvements
on Lemay Avenue have been completed with at least the construction
of curb, gutter and sidewalk, and said improvements have been
approved by the City.
E. Groundwater.
1. The Developer and the City recognize that this
development is adjacent to the Mail Creek irrigation ditch and that
seepage from said ditch may impact the ground water levels in this
development. Accordingly, it is agreed that the City shall not be
responsible for any damages or injuries 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 City's
failure to properly maintain its storm drainage facilities in the
development.
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 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
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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 Is construction inspectors
by ceasing operations when winds are of sufficient velocity to
create blowing_ dust which, in the inspector's opinion, is hazardous
to the public health and welfare.
D. The Developer shall, pursuant to the terms of this
Agreement, complete all improvements and perform all other
obligations required herein, as such improvements or obligations
may be shown on the original plat and related documents, or any
replat as subsequently filed by the Developer, and the City may
withhold such building permits and certificates of occupancy as it
deems necessary to ensure performance hereof.
E. Nothing herein contained shall be construed as a waiver of
any requirements of the City Code, and the Developer agrees to
comply with all requirements of the same.
F. In the event the City waives any breach of this Agreement,
no such waiver shall be held or construed to be a waiver of any
subsequent breach hereof.
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
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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.
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 any right of action hereunder for
any cause whatsoever.
M. The Owner is made a party to this Agreement solely for the
purpose of subjecting the Property to the covenants contained in
this Agreement. The City and the Developer expressly acknowledge
and agree that the Owner shall not be liable for any obligations of
the Developer- under this Agreement, unless the Owner were to
exercise any of the rights of the Developer in which event the
obligations of the Developer shall become those of the Owner.
THE CITY OF FORT COLLINS, COLORADO,
a Muni ipal Corporation
By �(
ity Man
ag
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