HomeMy WebLinkAboutTOYS R US/WESTERN AUTO PUD - Filed OA-OTHER AGREEMENTS - 2004-03-05AGREEMENT
THIS AGREEMENT is made and entered into this ��day of 1992,
by and between The City of Fort Collins, Colorado, a municipal corporation, hereinafter
referred to as "Applicant," and Larimer County Canal No. 2 Irrigating Company, a Colorado
mutual irrigation company, hereinafter referred to as "Ditch Company."
PROJECT DESCRIPTION
A five {5} foot by twenty {20) foot three (3) sided box culvert as part of JFK Parkway
Improvements is proposed to span the irrigation canal of the Ditch Company. This structure
will be placed on footings located three (3) feet below the canal bottom. The structure will
include wing walls, parapet walls, brick facing and tube railing. In addition, an eight {81 inch
water line will be constructed along this length of the roadway terminating with a fire hydrant
at the northwest corner of the box culvert.
The plans and specifications for this portion of the JFK Parkway Improvements are
attached hereto and made a part hereof.
WITNESSETH
WHEREAS, the Ditch Company is the owner of an irrigation ditch and the right-of-way
therefor through land located as shown on Exhibit "A" attached hereto and made a part hereof
by reference.
WHEREAS, Applicant desires to construct a roadway across the Ditch Company's
right-of-way and a box culvert to span the ditch, all in accordance with the details in Exhibit
"A" attached hereto and made a part hereof by reference. Said Exhibit "A" consisting of 7
sheets with face sheet labelled Construction Plans for JFK Parkway, Bockman Drive to Larimer
#2 Canal, Fort Collins, Colorado, September, 1991 , prepared by Parsons & Associates, Project
91.13 JFK;
WHEREAS, Exhibit "A" sets forth all the plans and specifications and terms of this
grant, and shall be in no way modified or changed by any subsequent or related plans or
materials not included therein; and
WHEREAS, the Ditch Company is willing to grant to Applicant this right upon the terms
and conditions hereinafter expressed;
NOW, THEREFORE, in consideration of the premises and the terms of the within
Agreement, it is agreed, as follows:
1. The Ditch Company grants unto Applicant the right to install, construct and
maintain the above described roadway and box culvert within the existing right-of-way of
Ditch Company, and further grants unto the Applicant the right of ingress and egress to a part
of its ditch as shall be reasonable and necessary for the exercise of the rights granted herein.
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FAA W V
SCHRADER 61L
April 20, 1994
P.O. Box 495 • Fort Collins, CO 80522 • (303) 484-1225
Matt J. Baker
City of Fort Collins
Engineering Dept.
P.O. Box 580
Fort Collins, CO 80522-0580
Dear Matt,
I have now completed the section of JFK, along with the required bridge, on
the east side of Toys R-US. I would like to request reimbursement from the
city for the street oversize funds due me.
Please call if you need further information about this work.
Best Regards,
Wavre K. Schrader
��o y 3/, ys
AGREEMENT
This Agreement is made and entered into this 15� day of July,
1991, by and between the City of Fort Collins, Colorado, a
municipal corporation ("City") and Wayne K. Schrader, Trustee
("Schrader").
WITNESSETH
WHEREAS, Schrader is the owner of certain property in the City
of Fort Collins, Colorado, situate in the County of Larimer, State
of Colorado (the "Property") and legally described on Exhibit A
attached hereto and by reference incorporated herein; and
WHEREAS, Schrader has entered into an agreement with Toys "R"
Us, Inc. ("Toys") whereby Schrader is obligated to construct
certain street improvements to JFK Parkway adjacent to property
which Toys is purchasing in the Toys "R" Us/Western Auto P.U.D.;
and
WHEREAS, the obligations of Schrader for the construction of
such street. improvements are specifically described in a
Development Agreement dated July 12, 1991, between the City,
Schrader, Bockman and Woodland Paradise Corporation, the developer
of the Toys "R" Us/Western Auto P.U.D. (the "Development
Agreement"); and
WHEREAS, the parties desire to incorporate certain provisions
of the Development Agreement in this Agreement.
NOW THEREFORE, the parties agree as follows:
1. The terms and conditions of Paragraph II D 7 of the
Development Agreement are attached hereto as Exhibit B and by this
reference fully incorporated herein.
2. 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.
IN WITNESS WHEREOF, the parties hereto have signed this
agreement the day and year first above written.
ATTEST:
iy -J:�FITY CLERK—'
APPROVED AS 110 FORM:
Director of EngineeniSg
,City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a municipal corporation
Steve Burkett, City Manager
WAYNE K. SCHRADER, TRUSTEE
'11T/
K. S rader, Trustee
EXHIBIT A
LEGAL DESCRIPTION
That portion of Lots 7, 10, 12, and 13, OBSERVATORY HEIGHTS,
situated in the Northwest Quarter of Section 36, Township 7 North,
Range 69 West of the 6th Principal Meridian, City of Fort Collins,
County of Larimer, State of Colorado said tract being more
particularly described as follows:
Considering the West line of the Northwest Quarter of said
Section 36 as bearing South 000 29' 00" East and with bearings
contained herein relative thereto; commencing at the Northwest
corner of Section 36; thence continuing along the west line of the
Northwest Quarter of said Section 36 South 000 29' 00" East a
distance of 893.00 feet; thence North 850 08' 00" East a distance
of 256.50 feet; thence South 700 51' 00" East a distance of 179.40
feet; thence South 890 02' 00" East a distance of 212.10 feet;
thence South 850 47' 00" East a distance of 294.50 feet; thence
South 520 53' 00" East a distance of 62.01 feet to a point on the
Easterly Right -of -Way of JFK Parkway and the TRUE POINT OF
BEGINNING;
Thence continuing South 520 53' 00" East a distance of 123.19
feet; thence South 250 43' 12" East a distance of 52.25 feet;
thence South 630 39' 55" West a distance of 6.93 feet; thence South
280 17' 15" East a distance of 78.00 feet; thence South 310 09' 15"
East a distance of 116.20 feet; thence South 000 31' 00" East a
distance of 35.51 feet; thence South 300 07' 00" East a distance
of 275.11 feet to a point on the West Right -of -Way line of Landings
Drive; thence continuing along said Right -of -Way South 000 16' 56"
East a distance of 458.82 feet; thence Southwesterly along the arc
of a curve to the right a distance of 248.53 feet having a central
angle of 240 43' 20" a radius of 576.00 feet and a long chord which
bears South 120 04' 08" West a distance of246.61 feet; thence South
240 25' 48" West a distance of 26.57 feet; thence Southwesterly
along the arc of a curve to the right a distance of 23.56 feet
having a central angle of 900 00' 0011, a radius of 15.00 feet and
a long chord which bears South 670 25' 48" West a distance of 21.21
feet to a point on the North Right -of -Way line of Boardwalk Drive;
thence North 650 34' 12" West a distance of 1.25 feet; thence North
000 29' 00" West a distance of 374.42 feet; thence South 890 13'
58" West a distance of 285.89 feet; thence North 000 31' 00" West
a distance of 441.10 feet to a point on the Easterly Right -of -Way
line of JFK Parkway; thence along said Right -of -Way North 100 39'
53" East a distance of 24.66 feet; thence Northerly along the arc
of a curve to the left a distance of 221.57 feet having a central
angle of 111, 17' 04"; a radius of 1125.00 feet and a long chord
which bears North 050 21' 01" East a distance of 221.21 feet;
thence North 000 17' 31" West a distance of 240.82 feet to the TRUE
POINT OF BEGINNING.
said parcel contains 273,865 square feet (6.28 acres) more or
less, and is subject to all Rights of Way, easements or
restrictions, now on record or existing.
CAUTION: This legal description has been prepared as a
general guideline for estimating areas for development agreements.
This legal description was prepared using available information
utilizing adjacent boundary surveys, plats, construction plans and
County Assessor maps. This legal description is not created from
a boundary :survey and no field survey work or title work was
completed tc develop this description. This legal description
should NOT be used to transfer ownership.
EXHIBIT B
Paragraph II D 7 to the Development Agreement
between the City of Fort Collins, Colorado
Woodland Paradise Corporation, Wayne K. Schrader
and Fred H. Bockman
7. The Developer and the City agree that the Developer is
obligated to construct the "local street portion" of the street
improvements on the west half of JFK Parkway abutting the Property
and extending across the north half of the street intersection with
Bockman Drive. Such "local street portion" consists of the
following:
a. Twelve feet of required street base and asphalt;
b. Two and one-half (2 1/2) feet of concrete curb
and gutter;
C. Four (4) foot wide concrete walk;
d. Nineteen and one-half (19.5) feet (measured
perpendicular to the centerline of JFK Parkway) of 5 ft.
x 20 ft. box culvert for Larimer No. 2 Ditch, including
parapet wall with hand rail and wing walls;
e. Approximately three hundred fifty-five (355)
feet of eight (8) inch water line of which approximately
forty (40) feet will be inside a twenty (20) inch casing
under the Larimer No. 2 Ditch.
f. Storm drainage improvements substantially as
shown on the utility plans for the development.
g. Grading and relandscaping along the frontage of
the JFK Parkway street improvements.
The City agrees that, upon submission and approval of detailed
engineering plans and design for such local street portion of the
JFK Parkway street improvements, the Developer's obligation under
this Paragraph 7 shall be limited to completion of such
improvements in accordance with such approved engineering plans and
design. In lieu of the Developer constructing said improvements,
Wayne K. Schrader, Trustee ("Schrader") who is the owner of the
property abutting the east half of JFK Parkway has agreed to
construct and pay for the improvements in accordance with an
agreement between Schrader and Toys "R" Us, Inc. ("Toys") and a
separate agreement with the City. Pursuant to said agreements,
Toys is required to provide a letter of credit to Schrader.
Schrader's obligation shall only be in effect after the letter of
credit is provided. Therefore, no certificate of occupancy will
be issued on the building improvements of Toys until the required
letter of credit has been provided to Schrader. Schrader's
obligation to install and pay for the local street share of such
street improvements shall continue for a period of twenty (20)
years from the date of this agreement. At the end of said twenty
(20) year period, Schrader's obligation hereunder shall cease and
the property owner abutting JFK Parkway shall become obligated for
the cost of construction of the local street share of the
improvements and such owner shall be required to participate in any
street improvement district formed by the City for the purpose of
installing said improvements. The City agrees that Schrader may
install both the east and west sides of the local street portion
of the street improvements for JFK Parkway at any time as he may
elect after approval of the final engineering plans and design for
the same, and. the City will not require that improvements for other
portions of such street, including the oversizing portions of such
street, be installed at that same time. The provisions of this
paragraph 7 shall be controlling and supersede any and all
provisions inconsistent therewith in this Agreement. In the event
that agreements referenced herein are not executed, the Developer
shall have the option of completing the local street portion of JFK
Parkway as described herein.
2. Applicant will pay to Ditch Company an application fee in the amount of Six
Hundred Dollars {5600.00}. This is determined to be a minimum initial payment to cover
preliminary expenses, such as legal work, time and motor vehicles for use by superintendent
and/or directors; review of the application; and other preliminary matters.
3. The construction herein contemplated shall be in strict accordance with the final
set of plans with modifications set forth in Exhibit "A" to be attached and initialled by the
parties hereto. Except as noted, no changes of any kind shall be made to the ditch and the
banks and bottom shall be undisturbed. Said work shall further be done under the
supervision of the superintendent or other designated agents of the Ditch Company.
Applicant agrees to carefully install and construct said items so that the level of the flow of
the ditch is unchanged and so that the flow of irrigation water is unimpeded. Applicant
agrees to construct said box culvert so that no erosion of the ditch will occur on the bottom
or sides of the ditch.
4. All construction shall be commenced involving the actual ditch during irrigation
season. This period is mandatory, except as may be extended by the President of Ditch
Company or other duly authorized representative of the Ditch Company, and said construction
shall in no way interrupt, impede or interfere with the flow of irrigation water, nor shall such
construction adversely affect the quality of the water. All construction shall proceed with due
care to make certain that no contamination of the irrigation water occurs.
5. Upon the completion of the project, the Applicant shall promptly notify the Ditch
Company, and the parties shall jointly inspect the ditch at the place of construction. If there
are any deficiencies in the work of the Applicant or any variations from the plans set forth in
the Exhibit, the Applicant shall forthwith remedy the same, in so doing, the Applicant shall
meet all reasonable requirements of the Ditch Company for the protection of the ditch and
surrounding property.
6. It is the intent of this Agreement that Applicant shall exercise due care in said
construction. Accordingly, it is hereby recognized by and between the parties hereto that the
Ditch Company is in no way responsible for any damages caused by such construction or
installation.
7. The project shall be without cost to the Ditch Company, and the Applicant shall
be responsible for all costs associated with the construction project. Applicant also agrees
to require that the contractor provide liability insurance in connection with the construction
of the project in the amount of no less than $1,000,000.00.
8. The Ditch Company shall have full power to operate, maintain, alter, enlarge or
relocate its ditch, provided that the Ditch Company notifies the Applicant in writing at least
14 days prior to commencement of such activities. Any expenses caused thereby to
Applicant shall not be chargeable to the Ditch Company.
9. The Applicant agrees that, because of possible increased maintenance expenses
and difficulties occasioned by the location and construction of the roadway and the
construction of the box culvert within the ditch right-of-way, it shall conduct such
maintenance activities to the roadway and box culvert as is necessary to facilitate the
customary carriage of irrigation water in said section of the ditch.
Applicant shall maintain such construction in perpetuity and shall monitor the
roadway and box culvert so that no erosion occurs, and the integrity of the ditch bank is fully
maintained.
10. In the event either the Applicant or the Ditch Company shall be in default in any
of their covenants herein, so as to require the party not in default to retain counsel to attempt
to enforce the covenants by negotiations or otherwise, or to commence legal or equitable
action against the defaulting party, the defaulting party agrees to pay all reasonable expenses
of said litigation incurred by the enforcing party, including, but not limited to docket fees,
depositions and reasonable attorneys' fees.
THIS AGREEMENT shall extend to and be binding upon the heirs, successors and
assigns of the respective parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first hereinabove written.
ATTEST:
%(L_C.,.,1. - li
� t' I • � , i (� � I I' ' : t Title
A
Gen&-E. Fischer, Secretary
STATE OF COLORADO )
1 ss.
COUNTY OF LARIMER )
THE CITY OF FORT COLLINS, COLORADO
a municipal corporation
n
Title
LARIMER COUNTY CANAL NO. 2 IRRIGATING
COMPANY, a Colorado mutual irrigation
company
By:
J On Strachan, President
L /,!,, The above, and foregoing A regment was acknowledged before me this IO day of
r' ' 1' L LE2rin and attested to by L--
�{�rPl,"1992, by, t1 ry ��u tuLl as � x ��i,l �� �
F1 L r� as LL4L of The City of Fort Collins, Colorado, a municip I
corporation.
WITNESS my hand and official seal.
expires:
VICKI A
MESA
ivoiary ruonc
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The above and foregoing Agreement was acknowledged before me this L day of
Aprrl, 1992, by John Strachan as President and attested to by Gene E. Fischer as Secretary
of Larimer County Canal No. 2 Irrigating Company, a Colorado mutual irrigation company.
ESS my hand and official seal.
G� sion expires: December 30, 1995
M®VARY �pp
PUBLIC i Notary Public
4
REIMBURSEMENT AGREEMENT
This Reimbursemnt Agreement ("Agreement") is made and
entered into this Cf'; day of -1-1r nQ 1995, by and between
THE CITY OF FORT C—�OLLINS, COLORADO, a municipal corporation,
hereinafter referred to as "the City," and Wayne K. Schrader,
Trustee, hereinafter referred to as "the Developer."
WITNESSETH:
WHEREAS, Section 29-678 of the Code of the City of Fort
Collins ( "Ordinance") permits any person who has constructed
street improvements through previously underdeveloped areas of the
City to submit an application to the City for a Reimbursement
Agreement which would provide that such person would be reimbursed
for a portion of the construction cost of the street improvements
whenever any property specially benefitted by said improvements
thereafter begins to first utilize said improvements by making
direct connection thereto; and
WHEREAS, the Developer has submitted an application to the
City for a Reimbursement Agreement as a result of his construction
of an 8 X 20-foot box culvert over the Larimer County Canal No. 2
on JFK Parkway , 380 feet north of the intersection of Beckman
Drive ("Improvements") at the following location:
Toys "R" Us/Western Auto P.U.D., a replat of
Lot 8, Lot 9, and parts of Lots 7, 10, 12,
and 13, Observatory Heights.
Said improvements are more particularly described on the map
attached hereto as Exhibit "A" and incorporated herein by this
reference; and
WHEREAS, the Developer has provided the City with the names
and the legal descriptions of all properties specially and
directly benefitted by the installation of said improvements, all
as set forth on Exhibit "B" attached hereto and incorporated
herein by this reference.
NOW, THEREFORE, it is agreed by and between the parties
hereto as follows:
1. That the 8 x 20 foot box culvert on JFK Parkway (and
related improvements) installed by the Developer have been
inspected and found to be in accordance with the City standards
and requirements.
2. The Developer has presented the City with adequate
documentation to establish that the total cost actually paid by
the Developer for the construction of the Improvements was
$155,731.00 (see Exhibit "C" attached hereto and incorporated
herein by this reference).
3. That, at such time as any of the property specially
and directly benefitted by the installation of the Improvements
should commence activities to utilize the Improvements, the City
may attempt to collect a charge from the owner of such property in
order to reimburse the Developer for some of the costs associated
with the construction of the Improvements. Such charge shall be
made according to the calculations attached hereto and
incorporated herein by this reference as Exhibit "D" and a
percentage added to recognize the effects of inflation. This
inflation factor shall be calculated using the construction cost
index for Denver as published in the Engineering News record (ENR)
of May 9, 1994, and the same index published in the ENR of the
month preceding the application for a building permit or tap.
Should any property anticipated herein to benefit from the
installation of the Improvements not gain direct access to JFK
Parkway, there shall be no charge collected from the owner of that
property. For purposes of this Agreement, "direct access" shall
mean the taking of access directly to or from JFK Parkway and not
indirectly through other streets. Should any property anticipated
herein to directly benefit from the Improvements be subdivided
into one or more parcels for development purposes, the amount
charged shall be based on a pro-rata share of the actual front
footage of the property so developed.
4. Upon the actual receipt of any of the charges set
forth above, the City agrees to pay the same over to the Developer
less three percent (3'�) to be retained by the City to defray
administration costs. In no event shall the City be obligated to
pay the Developer interest on collected or uncollected fees
pursuant to this Agreement. The term of this Agreement shall not
extend for a period of more than ten (10) years from the date of
acceptance of the Improvements by the City, which date is
acknowledged by the parties to be March 16, 1994. The Council of
the City of Fort Collins may, upon application by the Developer,
extend the ten (10) year limitation herein set forth.
5. The services of the City in attempting to collect the
reimbursement fees described herein are offered solely as an
accommodation to the Developer. Accordingly, the City will not be
liable for its failure in any fashion to collect the monies
specified herein and shall have no obligation to commence
litigation for the purpose of attempting to make such collection.
In the event that the City's attempts to collect such charge,
including without limitation the City's withholding of building
permits, result in the filing of any claims against the City, the
Developer agrees to pay all costs and fees incurred by the City in
defense of the same, including attorney's fees. The Developer
further agrees to indemnify and hold harmless the City from any
damages or awards arising from or relating to the City's actions
and/or any such claim or civil action. At the City's option, the
2
Developer may be required to provide the City with a letter of
credit as security for this indemnification in the amount of any
damages sought or, if no such amount is specified, then in such
amount as the City may consider reasonably necessary to ensure
payment of all costs, fees and/or damages which may result
therefrom.
6. In the event that the Developer is in default with regard
to any other obligation to the City, the City shall have the right
to set off any reimbursements that may be due hereunder to satisfy,
in whole or in part, any such default. In the event that the
Developer has received reimbursement subject to the payment of a
charge to the City in accordance with the terms of this Agreement,
the Developer shall immediately, upon receipt thereof, notify the
City in writing of the amount collected, the name and address of
the person from whom collection was made and the property to which
the collection is applicable.
7. This Agreement may be assigned by the Developer to any
other party without the express written consent of the City. The
Ordinance is incorporated herein by this reference, and it shall
govern interpretation of the various provisions of this Agreement.
8. Either party hereto shall be entitled to record this
Agreement with the Clerk and Recorder of Larimer County, Colorado
so as to provide record notice of the terms and conditions
contained herein to the owners of the properties described on
Exhibit "B".
Dated the day and year first above written.
TEST
Wanda K-- Ice ty Clerk
THE CITY OF FORT COLLINS, COLORADO,
a municipal corporation
By:
iane Jones
Interim C Manager
DEVELOPER:
I
ye K. Schrader, Trustee
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TOYS 'R' US /
WESTERN AUTO P.U.D.
120
FIRST INTERSTATE BANK
DRIVE-THRU FACILITY
155 P.U.D.
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