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HomeMy WebLinkAboutWEST PLUM STREET PUD - Filed DA-DEVELOPMENT AGREEMENT - 2004-03-12DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this �day of WD � 199 L'' , by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; THE VIITA BUILDING AND DEVELOPMENT COMPANY. INC., a Colorado corporation, hereinafter referred to as the "Developer" and GEORGE R. MITZELFELD, an individual, together with MARY E. BARTLETT, an individual, hereinafter referred to jointly as the "Owner". WITNESSETH: WHEREAS, the Developer has entered into an agreement with the Owner to purchase and develop certain real property as described below, with the exception of Tract "A" of such property which shall remain in the ownership of the Owner, situated in the County of Larimer, State of Colorado, (hereafter referred to as the "Property") and legally described as follows, to wit: WEST PLUM STREET P.U.D., being a tract of land in the North 1/2 of Section 16, Township 7 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 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: 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: Co. Tnc Pt Tic x 885 FkW4- CcAt nS, Cv 6052 With a copy to: If to the Owner: With a copy to: 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. P. 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 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 ID] 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. THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: City anager ATTEST: ITnA6� City Clerk APPROVED AS TO CONTENT: Director of Engineering APPROVED AS TO FORM: As istant CityAtttorney c DEVELOPER: THE VIITA BUILDING AND DEVELOPMENT COMPANY, INC., a Colorado corporation By: Do as . Viita, President/Secretary ATTEST: By: seal) JanLZViita. Treasurer 11 OWNER: 0 By: Mary E. Bb lett, an individual 1-1 12 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. 13 EXHIBIT "B" Not Applicable i[! 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 public streets (including curb, gutter and sidewalk and pavement with at least the base course completed) serving such structure have been completed and accepted by the City. No building permits shall be issued for any structure located in excess of nine hundred feet (900') from a single point of access. D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets described on Exhibit 'A," attached hereto, shall be installed within the time and/or sequence required on Exhibit "A." If the Director of Engineering has determined that any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the utility plans and shall be installed by the Developer within the time as established under "Special Conditions" in this document. E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements 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. 2 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 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 (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 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. 3 K. The Developer specifically represents that to the best of its knowledge all portions of the Property dedicated to the City associated with this development are in compliance with all environmental protection and anti -pollution laws, rules, regulations, orders or requirements, including solid waste requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such portions of the Property as are dedicated to the City pursuant to this development, are in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer does hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority, pertaining to the disposal of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfill of hazardous substances, pollutants or contaminants, or environmental cleanup responsibilities of any nature whatsoever on, of, or related to any property dedicated to the City 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 the development, shall be completed by the Developer in accordance with said approved plans prior to the issuance of more than three (3) building permits in 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 C! in conformance with said approved plans. Said certification shall be submitted to the City at least two (2) weeks prior to the date of issuance for any building permit greater than said three (3) building permits. 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 $5,938.00 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 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. 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 occupancy until the City has approved such changes as being acceptablle for the safe and efficient delivery of storm drainage water. 4. The Developer and the City agree that the storm drainage system for this development contains some features that make it important to construct the storm drainage facilities in accordance with the approved plans and to ensure that the facilities are maintained and kept operational throughout the buildout of this development. For this reason the following additional requirements shall be followed for building on lots 1 through 6 and 9 through 13 of the Property: The drainage improvement system required to be constructed on each of the above lots in this development, including the lot grading, swale grading, minor swale grading, and lot corner elevations, as shown on the approved utility plans for the development, shall be completed in accordance with said approved plans and said completion shall be certified as being in accordance with said plans by a professional engineer licensed in Colorado. A certification by such engineer that the lot grading, swale grading, minor swale grading, lot corner elevations, and the drainage system's function and adequacy to serve its purpose has not been impaired by the construction and landscaping on each such lot, shall be submitted to the City prior to the issuance of a certificate of occupancy for each of the above lots in the development. Said certification shall be submitted to the City at least two (2) weeks prior to the date of issuance of any such certificate of occupancy. In addition, the Developer shall be required to file a notice with the Larimer County Clerk and Recorder describing the landscaping and fencing restrictions that exist for the drainage easements on each of lots 10 through 13 of the Property. Said notice shall reference the location of the specific restrictions shown on the plans and notes on the plat and in the approved utility plans for this development. Said notice shall be filed in a City approved form prior to the sale of any lots affected by such restrictions. 5. Lots 9,10, and 11 of the Property abut certain storm drainage facilities and it is agreed that it is of the utmost importance that no storm water from said facilities enters houses built on said lots. In order to provide the assurance that houses built on said lots are constructed at an elevation that said storm water cannot enter, the approved utility plans for this development contain specifications for the minimum elevation for any opening to each such house. Prior to the issuance of a certificate of occupancy for houses on Lots 9,10, and 11, the Developer shall provide certification from a professional engineer licensed in Colorado that the lowest opening to any such house is at or above the minimum elevations required on the approved utility plans for the development, and that the lot corner elevations for each lot are the same as those specified on the approved utility plans. Said certification is in addition to, and may be done in conjunction with, the certification of the lot grading, swale grading, minor swale grading, and lot corner elevations, described in paragraph II.C.4. above. 6. 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. The Developer and the City agree that no street oversizing reimbursement from the City is due the Developer for this development. 2. Section 24-95 of the City Code states that the construction of the local street portion of a public street adjacent to undeveloped property is the obligation of the owner of the property at the time of development or redevelopment. Tract A of the West Plum Street P.U.D. is adjacent to an unimproved portion of West Elizabeth Street which is currently on the Plaster Street Plan as an arterial street. The Developer and the Owner hereby agree that Tract A has been included as part of this P.U.D., even though it is not planned for development at this time nor being purchased by the Developer, in order to plat Tract A and designate it as a tract for future development and as a way for the City to notify the Owner of Tract A, and any future purchasers of Tract A, of Tract A's obligation for the 11 local street portion of future improvements to West Elizabeth Street. Therefore, in accordance with Section 24-95 of the City Code, the Owner hereby acknowledges and agrees that, at the time Tract A is developed or redeveloped, including but not limited to, issuance of a building permit(s) for additional residences on the property, further subdivision of Tract A, any change in use of or additional use on Tract A (other than the existing single family residence use) which necessitates replatting of Tract A and/or a Planned Unit Development (P.U.D.) Review of Tract A by the City, shall require the Owner to fulfill its obligation for completion of the local street portion of improvements to West Elizabeth Street adjacent to Tract A. In addition, in accordance with Section 24-95 of the City Code, the Owner hereby agrees that if the City constructs such local streets portion, the City may require, at or before the time of building permit issuance for any new building permit for new development or change in use of the property (Tract A) that the Owner of Tract A repay the City for the City's costs in constructing such local street portion of West Elizabeth Street. 3. 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 with the exception of any such signing and striping for Tract A. E. Ground Water 1. The City shall not be responsible for, and the Developer hereby agrees to indemnify the City against, any damages or injuries sustained in the development as a result of groundwater seepage or flooding, unless such damages or injuries are sustained as a result of the City's failure to properly maintain its storm drainage facilities in the public rights -of -way. 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 VA 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 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 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 1.1 conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. J. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of fifteen (15) 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. The Owner is made a party to this Agreement solely for the purpose of subjecting the Property to the covenants contained in this Agreement. The City and the Developer expressly acknowledge and agree that the Owner shall not be liable for any obligations of the Developer under this Agreement, unless the Owner were to exercise any of the rights of the Developer in which event the obligations of the Developer shall become those of the Owner. M. 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. N. 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. O. 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 registered or 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: 0