HomeMy WebLinkAboutSYMBIOS LOGIC OFFICE BUILDING - Filed DA-DEVELOPMENT AGREEMENT - 2004-03-02DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this.'?, ' A` day of 199f
by and between the CITY OF FORT COLLINS, COLORADO, a Municipal C rporation,
hereinafter referred to as the "City"; and SYMBIOS LOGIC, INC., a Delaware Corporation,
hereinafter referred to as the "Developer".
W ITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimec, State of Colorado, (hereafter referred to as the "Property") and legally
described as follows, to wit:
SYMBIOS LOGIC P.U.D. Situated in the Southeast 1/4 of Section 32, 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 City's 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:
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 unless extended by written consent of the City, which consent shall not be
unreasonably withheld. 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 parry 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
If to the Developer: Mr. Don Rott
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Director of Facilities
2001 Danfield Court
Fort Collins, Colorado 80525
With a copy to: WA C,EK;zD-AL.. Lc,, k3,'&k—
Notwithstanding the foregoing, if any 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 parties 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, and, together with all documents and exhibits referred
to herein, shall be deemed to be and contain the entire understanding and agreement
between the 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 fore convenience of reference and shall in no way define, limit, or
prescribe the scope or intent of any provision under this Agreement.
ATTEST:
4UJL�Nt�-a
City Clerk
APPROVED AS TO CONTENT:
Director of Engineering
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: `-F.
City Wanager
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APPROVED AS TO FORM:
Deputy City Attorney
Gary Am o, Assistant Secretary
DEVELOPER:
SYMBIOS LOGIC, INC., a Delaware Corporation
By:Vh-----
Jeff rey Dumas, Vice President
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EXHIBIT "A"
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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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 the 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 public water lines, fire hydrants, sanitary sewer lines,
and public streets (including curb, gutter, 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 adequate water lines, fire hydrants, and emergency access to provide fire
protection and other emergency services to the site. 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
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this development as shown on the approved plat, site, landscape and utility plans, and
other approved documents pertaining to this development on file with the City.
F. Street improvements (except curbs, gutters and walks) shall not be installed until
all utility lines to be placed therein have been completely installed, including all individual
lot service lines leading in and from the main to the property line.
G. The installation of all utilities shown on the utility plans shall be inspected by the
Engineering Department of the City and shall be subject to such department's approval.
The Developer agrees to correct any deficiencies in such installations in order to meet the
requirements 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
1� Developer as to pr ct downstream and adjacent properties against injury caused by
development of the Property, 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 any 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. The City agrees to give notice to the Developer of any claim made
against it to which this indemnity and hold harmless agreement by the Developer could
apply, and the Developer shall have the right to defend any lawsuit based on such claim
and to settle any such claim provided Developer must obtain a complete discharge of all
City liability through such settlement. Failure of the City to give notice of any such claim
to the Developer within ninety (90) days after the City first receives a notice of such claim
under the Colorado Governmental Immunity Act for the same, shall cause this indemnity
and hold harmless agreement by the Developer to not apply to such claim and such failure
shall constitute a release of this indemnity and hold harmless agreement as to such claim.
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. Developer shall be
subrogated to any claims that the City may have against third parties which pertain to this
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indemnification.
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 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, to the best
of its knowledge, 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, provided such hazardous substances, pollutants or contaminants were either
present on the property at the time of dedication or were subsequently placed on the
property by or on behalf of or with the concent (tacit or express) of the Developer. 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. The City agrees to give notice to the Developer of any
claim made against it to which this indemnity and hold harmless agreement by the
Developer could apply, and the Developer shall have the right to defend any lawsuit based
on such claim and to settle any such claim provided Developer must obtain a complete
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discharge of all City liability through such settlement. Failure of the City to give notice of
any such claim to the Developer within ninety (90) days after the City first receives a notice
of such claim under the Colorado Governmental Immunity Act for the same, shall cause
this indemnity and hold harmless agreement by the Developer to not apply to such claim
and such failure shall constitute a release of this indemnity and hold harmless agreement
as to such claim. Developer shall be subrogated to any claims that the City may have
against third parties which pertain to this indemnification.
II. Soecial Conditions
A. Water Lines
1. Prior to the issuance of any building permit(s) for this development, the
Developer shall, in accordance with Section 26-121 of the City Code, reimburse the
City the sum of $10,520.80 plus inflation for the cost of installation of the Developer's
portion of the 24-inch water main in County Road 9 which passes along the frontage
of the property. The inflation shall be calculated based upon the Construction Cost
Index for Denver as published in the Engineering News Record of April 13, 1989.
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 the development, shall
be completed by the Developer in accordance with said approved plans prior to the
issuance of any certificate of occupancy for the development. Completion of
improvements shall include the certification by a professional engineer licensed in
Colorado that the drainage facilities which sere this development have been
constructed in conformance with said approved plans. Said certification shall be
submitted to the City at least two weeks prior to the date of issuance for any certificate
of occupancy for the development.
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 $10,688.00 prior to beginning construction to guarantee the proper
installation and maintenance of the erosion control measures shown on the approved
utility plans for this development. Said security deposit(s) 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
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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(s) 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 throughout the buildout of this development.
3. The Developer shall obtain the City's prior approval of any changes from the
approved utility plans in grade elevations and/or storm drainage facility configuration
that occur as a result of the construction of houses and/or development of lots, whether
by the Developer or other parties. The City reserves the right to withhold the issuance
of building permits and certificates of occupancies for this development until the City
has approved such changes as being acceptable for the safe and efficient delivery of
storm drainage water.
4. The Developer and the City agree that the Developer is obligated to maintain
all on -site storm drainage facilities not accepted for maintenance by the City and all off -
site storm drainage facilities not accepted for maintenance by the City serving this
development and outside of the public rights -of -way.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to reimburse the
Developer for oversizing public street improvements along Harmony Road and County
Road Nine for those portions of said street abutting the Property as shown on the
approved utility plans. Reimbursement for Harmony Road shall be for oversizing the
sidewalk from residential (access) standards to Harmony Corridor Arterial street
standards and reimbursement for County Road Nine shall be for oversizing the
sidewalk from residential (access) standards to Arterial street 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. 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 the
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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 improvements that are to be constructed in the
public right-of-way as described in this Section II(D) are "City improvements" (as
defined below) 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 Thirty
Thousand Dollars ($30,000), 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. For purposes of this paragraph, the term "City
improvements" shall mean either (1) existing improvements owned by the City that are
to be modified or reconstructed, or (2) any improvements funded in whole or in part by
the City.
3. The City and the Developer agree that no work shall be performed in the
State Highway 68 (Harmony Road) right of way until a state highway access permit for
said highway is approved by the Colorado Department of Transportation.
4. All public improvements to Harmony Road shall be completed and accepted
by the City and the Colorado Department of Transportation, and all public
improvements to County Road Nine (9) shall be completed and accepted by the City
prior to the issuance of any certificate of occupancy for this development.
5. The City and the Developer agree that no public improvements to Corbett
Drive shall be required with this first phase of the development. At such time that future
phases of this Development require the construction of Corbett Drive, whether due to
site related traffic aspects or City Code requirements, the Developer shall be required
to design and construct Corbett Drive to standards current at that time.
6. 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
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the development (e.g., all signing and striping for a right turn lane into the development
site).
E. Ground Water
1. The City shall not be responsible for, and the Developer hereby agrees to
indemnify and hold harmless the City against, any damages or injuries sustained in the
development as a result of ground water seepage or flooding except to the extent that
such damages or injuries are sustained as a result of the City's failure to properly
maintain its storm drainage facilities in the development or elsewhere. The City agrees
to give notice to the Developer of any claim made against it to which this indemnity and
hold harmless agreement by the Developer could apply, and the Developer shall have
the right to defend any lawsuit based on such claim and to settle any such claim
provided Developer must obtain a complete discharge of all City liability through such
settlement. Failure of the City to give notice of any such claim to the Developer within
ninety (90) days after the City first receives notice of such claim under the Colorado
Governmental Immunity Act for the same, shall cause this indemnity and hold harmless
agreement by the Developer to not apply such claim and such failure shall constitute
a release of this indemnity and hold harmless agreement as to such claim.
F. Hazards and Emergency Access
1. Prior to beginning any building construction, and throughout the buildout of
this development, 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 20 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.
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, comply with the requirements of Chapter 20,
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Article IV of the Code of the City regarding dirt, debris and construction waste.
C. The Developer hereby agrees, for itself and its agents, contractors and
subcontractors, to cooperate with the City's construction inspectors by ceasing
operations and/or implementing mitigation measures when winds are of sufficient
velocity to create blowing dust which the inspector determines constitutes a nuisance
or public health or safety hazard, or violates any permit conditions.
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 either party 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 respective 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 property owner shall be bound by the terms of
this Agreement.
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