HomeMy WebLinkAboutSHENANDOAH PUD - Filed DA-DEVELOPMENT AGREEMENT - 2004-02-11DEVELOPMENT AGREEMENT
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THIS AGREEMENT, made and entered into this C day of
199 by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City"; and
Shenandoah Land Limited Liability Company, a Colorado Limited
Liability Company, hereinafter referred to as the "Developer".
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:
Shenandoah P.U.D., Filing One, a portion of the East Half of
Section 14, Township 6 North, Range 69 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 are hereby acknowledged, it is agreed
as follows:
I. General Conditions
A. The terms of this Agreement shall govern all development
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 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 by the Fort Collins City
Council.
H. This Agreement shall run with the Property and shall be
binding upon and inure to the benefit of 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 legal or equitable 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
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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 ten (10) 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. 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 given by any party
hereto to any other party relating to this Agreement shall be hand -
delivered or sent 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 hand -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 80522
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If to the Developer: Shenandoah Land Limited Liability Company
Attn: James R. McCory
101 East Prentice Avenue, 7M180
Enalewood. CO 80111
With a copy to: Larry C. Fulton, Esq.
Karsh & Fulton, P.C.
950 South Cherry Street, N710
Denver, CO 80246
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 giving 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 fair meaning,
and as if prepared by all parties hereto pertaining to the matters
addressed in this Agreement. 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 signed by all of the parties hereto.
Further, paragraph headings used herein are for convenience of
reference and shall in no way define, limit or prescribe the scope
or intent of any provision under this Agreement.
APPROVED AS TO CONTENT:
Director of Enginee ri
g
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
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y
�--A
APPROVE AS TO FORM:
Deputy City Attorney
DEVELOPER:
Shenandoah Land Limited Liability
Company, a Colorado Limited
Liability Company
By:
James ory, Manager
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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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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. 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)
►A
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 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 (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 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 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 the best of
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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 in connection with 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 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.
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, 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 more than twenty seven (27) building permits on Lots 1
through ill of the development. Completion of improvements shall
include the certification by a professional engineer licensed in
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Colorado 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
any certificate of occupancy. Said certification shall be
submitted to the City at least two weeks prior to the date of
issuance building permits totaling twenty seven (27) on lots 1
through ill of: the development.
2. 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 building permit on Tracts A or B of the
development. 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 from 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 building permit on Tract A or B of the development.
3. 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 $34,170.06 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/or installation
of the erosion control measures 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 that the Developer installs and maintains the erosion
control measures shown on the approved Plan throughout the buildout
of this development.
4. The Developer and the City agree that it is important
that all lots be graded to drain in the configuration shown on the
approved plans for this development. For this reason the following
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additional requirements shall be followed for building on any lot
within this development:
Prior to the issuance of a certificate of occupancy for each
lot the Developer shall provide the City with certification
that: (a) the lot has been graded correctly (including the
grading of any minor swales, if applicable); (b) the lot
corner elevations specified on the approved plans are correct
and in accordance with the approved plans; and (c) 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.
5. The Developer and the City agree that it is important
that all Tracts 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
any Tract within this development:
Prior to the issuance of a certificate of occupancy for each
building in Tract A and B the Developer shall provide the City
with certification that: (a) the area around the building has
been graded correctly (including the grading of any minor
swales, if applicable); and (b) the minimum floor elevation
for the buildings 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.
6. The Developer and the City agree that no grading
shall occur on Tract C except as shown on the approved utility
plans on file with the City.
7. No building permits shall be allowed within Tracts C
and E until at such time that utility plans for said Tracts are
submitted and approved by the City.
8. The Developer shall obtain the City's prior approval
of any changer 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.
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1. Subject to the conditions of this Agreement, the City
agrees to reimburse the Developer for oversizing public street
improvements along Triangle Drive and College Ave (U.S. Highway
287) for those portions of said street abutting the Property as
shown on the approved utility plans. Reimbursement for Triangle
Drive (excluding the median) shall be for oversizing the street
from residential (access) standards to Collector standards. The
City shall make reimbursement to the Developer for the aforesaid
oversized street improvements in accordance with Section 24-121 of
the Code of the City. Reimbursement for College Avenue shall be
for oversizing the sidewalk from residential (access) standards (4
foot) to Arterial standards (7 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 Developer's agreement, require
the construction, at the Developer's expense, of any oversized
portion of streets not reasonably necessary to offset the traffic
impacts of the development. The Developer does hereby agree to
construct the: aforesaid oversized street improvements with the
understanding that the Developer may not be fully reimbursed by the
City for the cost of such construction. The Developer further
agrees to accept payment in accordance with Section 24-121 (d) of
the Code of the City as full and final settlement and complete
accord and satisfaction of all obligations of the City to make
reimbursements to the Developer for street oversizing expenses. It
is anticipated by the City that the City's reimbursement, in
accordance with Section 24-121 (d), will 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
for Triangle Drive and College Avenue 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
($15,000), the contract for the construction of the same must be
submitted to a competitive bidding process resulting in an award to
the lowest responsible bidder; and evidence must be submitted to
the City prior to the commencement of the work showing that the
award was given to the lowest responsible bidder. If the cost of
such improvements exceeds fifty thousand dollars ($so,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 Developer agrees that the medians being placed
within Triangle Drive and Strasburg Drive are being placed at the
option of the Developer and are not eligible for any street
oversizing sizing reimbursement. These medians must be maintained
by the Developer or it's successor(s) in interest.
4. The on -site and off -site improvements to College
Avenue (U.S. Highway 287), including related utility and storm
drainage improvements, shall be completed prior to the issuance of
more than 27 building permits.
5. A Colorado State Highway Access Permit must be
obtained by the Developer prior to beginning construction of
Triangle Drive and related improvements on South College Avenue.
All improvements to said street shall be completed prior to the
issuance of any certificate of occupancy.
6. Prior to commencing construction of improvements to
South College Avenue, the Developer shall deposit with the City a
cash guarantee in the form of a certificate of deposit, cash,
performance bond, letter of credit or other City approved means to
guarantee the completion of all public improvements to be
constructed ir_ the South College Avenue right-of-way in accordance
with the approved utility plans on file in the office of the
Director of Engineering. The amount deposited shall be equal to
15096 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.
Said cash guarantee shall be released by the City upon satisfactory
completion of the construction work and acceptance by the City.
7. The Developer shall not be issued a building permit
for Lot 7 until Triangle Drive has been completed with either (1)
a permanent cul de sac or (2) extended to become a through street
in accordance with City standards.
8. The Developer and the City agree that no vehicular
access shall be allowed for lots 26, 27, 99 and 100 off of
Strasburg Drive.
9, The Developer shall not be issued a building permit
for Lot 8 if access is taken from Triangle Drive until Triangle
Drive has been completed with either (1) City approved temporary
turnaround, (2) permanent cul de sac or (3) extended to become a
through street in accordance with City standards.
10. The median that is to be placed in Triangle Drive in
accordance with these plans may in the future be removed by the
City to facilitate traffic movements at the intersection.
11. 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 right turn lane into the
development s_'_te).
E. Groundwater.
1. The Developer and the City recognize that this
development is adjacent to the North Louden 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 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 City's failure to properly
maintain its storm drainage facilities in the development.
F. 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.
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 construct_on 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
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