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HomeMy WebLinkAboutCOLLINDALE BUSINESS PARK FIFTH - Filed DA-DEVELOPMENT AGREEMENT - 2004-01-05DEVELOPMENT AGREEMENT TWT..q AC;RRRMRNT. made and entered into this day of )v � 199 by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and MICHAEL P. NOVOVESKY, an individual, and FLORENCE A. NOVOVESKY, an individual, collectively hereinafter referred to as the "Developer". WITNESSETH: WHEREAS, the Developer is the Owner 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: COLLINDALE BUSINESS PARK 5th FILING, (NOVOVESKY GARDEN CENTER P.U.D.), situate in the Southeast 1/4 of Section 31, Township 7 North, Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the Developer desires to develop the Property and has submitted to the City a subdivision plat and/or a site plan and landscape plan, a copy of which is on file in the office of the Director of Engineering and made a part hereof by reference; and WHEREAS, the Developer has further submitted to the City utility plans for the Property, a copy of which is on file in the office of the Director of Engineering and made a part hereof by reference; and WHEREAS, the parties hereto have agreed that the development of the Property will require increased municipal services from the City in order to serve such area and will further require the installation of certain improvements primarily of benefit to the lands to be developed and not to the City of Fort Collins as a whole; and WHEREAS, the City has approved the subdivision plat and/or site plan and landscape plan submitted by the Developer subject to certain requirements and conditions which involve the installation of and construction of utilities and other municipal improvements in connection with the Property. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, it is agreed as follows: 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 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 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 lessor and/or property owner shall be bound by the terms of this Agreement. 10 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 thirty (30) 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. Notwithstanding the foregoing, if the nature of the default is such that it cannot be reasonably cured within said thirty (30) days, then the time for curing said default may be extended to a time mutually agreed upon in writing by the parties. 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. 11 ATTEST: CITY CLERK APPROVED AS TO CONTE T: Dii4ector of Engineer' APPROV AS T FORM: City Attorney THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: 944-LOMA Cit} Manager DEVELOPER: By: Michael P. Novovesky, an' ndividual By: A' � Florence A. Novovesky, an indivi4tuai 12 EXHIBIT "A" 1. Schedule of water lines to be installed out of sequence. 1. A water main and fire hydrant and a water service tap from the water main in Timberline Road shall be constructed in accordance with Paragraphs II.A.1., II.A.2., and II.A.3. of this Agreement. 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. 1. Timberline Road street improvements shall be constructed in accordance with Paragraphs II.D.l., II.D.2, II.D.3, II.D.4., and II.D.5. of this Agreement. 4. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. 13 EXHIBIT "B" NOT APPLICABLE 14 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 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. Notwithstanding the foregoing, the Developer shall be entitled to receive a footing and foundation 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 footing and foundation permit and water lines and fire hydrants (temporary or permanent) completed prior to the placement of combustible material on the site shall be accepted by the Director of Engineering. 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 2 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 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 3 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 Owner 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 Owner 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 Owner 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. 0 II. Special Conditions A. Water Lines 1. The Developer and the City agree that the Developer is required to construct a water main, fire hydrant, and a water service tap from the water main in Timberline Road to serve the property as shown on the approved utility plans. Due to the recent reconstruction and overlay of Timberline Road and the proximity of an existing fire hydrant on Caribou Drive, the Developer shall have the option to delay the installation of the main, fire hydrant, and water service tap until the asphalt in Timberline Road can be cut. The asphalt can be cut and patched per City standards after January 1, 1998. The Developer shall deposit cash, a performance bond, a letter of credit, or other form of security acceptable to the City, to guarantee that said improvements shall be constructed as shown on the approved utility plans. The amount of said deposit shall be equal to the estimated cost to construct said improvements, which estimate shall be prepared by the Developer and approved by the City, plus 106 to cover the cost of construction engineering, surveying, and project management. Said security shall be deposited with the City prior to the issuance of any certificate of occupancy. 2. If, prior to the Developer being required to install the water main, fire hydrant, and service tap in Timberline Road described in Paragraph II.A.1. above, another water main has been installed or can be installed to serve the Property and provide adequate fire protection as approved by the Poudre Fire Authority, and provide a permanent water service tap, the Developer shall have the option to submit plans to the City for approval and construct the necessary improvements upon approval by the City. In such case, the security posted with the City for the improvements as described in Paragraph II.A.1. above shall be released as needed to fund the completion of the alternate improvements. 3. The Developer and the City agree that the water service tap from Caribou Road to the Property is allowed on a temporary basis only until a service from Timberline Road or other location approved by the City is constructed by the Developer and accepted by the City. Therefore, the Developer agrees to abandon the service in Caribou Road at the main at such time as alternative water service is installed by the Developer and accepted by the City. The Developer shall maintain at its expense said temporary water service from the curb stop to the Property until said service is abandoned. B. Sewer Lines Not Applicable 5 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 Colorado licensed professional engineer that the drainage facilities which serve this development have been constructed in conformance with said approved plans. In addition, said certification shall include a certification that the lowest opening elevation to the building is at or above the minimum opening elevation required on the approved utility plans. Said certification shall be submitted to the City at least two weeks prior to the date of issuance for 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 $1,415.00 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 Developer shall be responsible to obtain the City's 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 buildings, whether by the Developer or other parties. The City reserves the right to withhold the issuance of a certificate of occupancy until the City has approved such changes as being acceptable for the safe and efficient delivery of storm drainage water. D. Streets 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Timberline Road for that portion of said street abutting the Property as shown on the approved utility plans. M Reimbursement for Timberline Road shall be for oversizing the street and sidewalk from residential standards to major arterial standards. The City shall make reimbursement to the Developer 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 aforesaid oversized street improvements with 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 reimbursement 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 tot he City prior to the commencement of the work showing that the award was given to the lowest responsible bidder. If the cost for 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. 3. The Developer and the City agree that the Developer is obligated to construct certain public improvements on Timberline Road consisting of one-half of the local street portion of the major arterial street improvements and other related improvements along the frontage of this development as shown on the approved utility plans. In lieu of constructing said improvements, the Developer shall have the option to deposit with the City cash to be used by the City to pay for the future construction of the portion of said improvements that the Developer does not complete. The amount of said cash shall be equal to the estimated cost to construct said improvements, which estimate shall be prepared by the Developer and approved by the City, plus 10o to cover the cost 7 of construction engineering, surveying, and project management. Said cash shall be deposited with the City prior to the issuance of a certificate of occupancy. Any interest earned by the City as a result of said deposit shall be the property of the City to cover administration and inflation in order to better assist the City in making reimbursement to the party that constructs said improvements. 4. The Developer and the City agree that due to the seasonal nature of the business associated with the approved P.U.D. (a garden center), the City shall not require the construction of the Timberline Road improvements until after July 1st of the year said construction is started so that the work will not interfere with the operation of the garden center business during the peak time for the business (spring and early summer). 5. The Developer and the City agree that the Developer is responsible for the completion of all public improvements (or providing the cash deposit described in Paragraph II.D.3 above) including, but not limited to, curb, gutter, and sidewalk, in accordance with the approved utility plans, prior to the issuance of a certificate of occupancy for the development. 6. The Novovesky Garden Center P.U.D. ("the P.U.D.") was approved by the Planning and Zoning Board on September 25, 1995 for a garden center and existing single family residence. The Developer understands that the Property is part of Phase 8 of the Amended Collindale Industrial Park overall Development Plan. Said Plan provides for all properties within Phase 8 to obtain access from Caribou Road which connects to Timberline Road(a future signalized intersection). Timberline Road is on the City's Master Street Plan as a major arterial street. As such, the City allows direct access to Timberline Road on a limited basis only. At this time, and for this particular land use, full turning access from the P.U.D. onto Timberline Road is being allowed. The access to the P.U.D. as shown on the approved utility and site plans is for purposes of public access to the Property until such time as the adjacent parcel(s) in Phase 8 develop and a cross access easement is provided to Caribou Road. With any intensification of land use within the P.U.D. prior to other Phase 8 development and the provision of cross access to Caribou Road, the City reserves the right to re-evaluate the access to the P.U.D. including the Timberline Road access. Depending on the nature and intensity of the future land uses proposed, access to Timberline Road may be restricted to right-in/right-out only and the City may require the construction of a median in Timberline Road. All future access to Timberline Road is subject to the nature and intensity of the land uses proposed on Phases 6, 7, and 8 of the Amended Collindale Industrial Park overall Development Plan. Granting of access to Timberline Road with any particular P.U.D. or land use is no guarantee of future direct access to Timberline Road for any such land use. E 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. Prior to beginning any building construction, the Developer shall provide and maintain at all times an accessway to said building or buildings. Such accessway shall be adequate to handle any emergency vehicles or equipment, and the accessway shall be kept open during all phases of construction. Prior to the City allowing combustible material on the site (other than forming material for concrete footings, foundations and/or concrete walls) such accessway shall be improved to a width of at least 15 feet 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. The turnaround is not required if an exit point is provided at the end of the 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- 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 and; at the completion of the work, shall remove all such waste materials, rubbish, tools, construction equipment, machinery, and surplus materials from the public right-of-way. The Developer further agrees to maintain the finished street surfaces so that they are free from dirt caused by the Developer's operation. Any excessive accumulation of dirt and/or construction materials shall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until the problem is corrected to the satisfaction of the Director of Engineering. If the Developer fails to adequately clean such streets within two (2) days after receipt of written notice, the 0