HomeMy WebLinkAboutWESTBURY PUD SECOND - Filed DA-DEVELOPMENT AGREEMENT - 2004-03-15DEVELOPMENT AGREEMENT
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THIS AGREEMENT, made and entered into this ?� day of �'�l.A�-
199 by and between the CITY OF FORT COLLINS, COLD DRA O, a
Municipal Corporation, hereinafter referred to as the "City"; and
WESTBURY LLC, a Colorado limited liability company, hereinafter
referred to as the "Developer".
WITNESSETH:
WHEREAS, the Developer is the Owner of certain property
situated in the County of Larimer, State of Colorado, (hereafter
referred to as the "Property") and legally described as follows, to
wit:
WESTBURY P.U.D., SECOND FILING, situate in the Northeast 1/4
of Section 3, 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 is hereby acknowledged, it is agreed
as follows:
the construction has been completed and approved by the Director of
Engineering.
B. The Developer shall, at all times, keep the public right-
of-way free from accumulation of waste material or rubbish caused
by the Developer's operation; shall remove such rubbish no less
than weekly and; at the completion of the work, shall remove all
such waste materials, rubbish, tools, construction equipment,
machinery, and surplus materials from the public right-of-way. The
Developer further agrees to maintain the finished street surfaces
so that they are free from dirt caused by the Developer's
operation. Any excessive accumulation of dirt and/or construction
materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until
the problem is corrected to the satisfaction of the Director of
Engineering. If the Developer fails to adequately clean such
streets within two (2) days after receipt of written notice, the
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.
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H. This Agreement shall run with the Property and shall be
binding upon the parties hereto, their personal representatives,
heirs, successors, grantees and assigns. It is agreed that all
improvements required pursuant to this Agreement touch and concern
the Property regardless of whether such improvements are located on
the Property. Assignment of interest within the meaning of this
paragraph shall specifically include, but not be limited to, a
conveyance or assignment of any portion of the Developer's real or
proprietary interest in the Property, as well as any assignment of
the Developer's rights to develop the Property under the terms and
conditions of this Agreement.
I. In the event the Developer transfers title to the Property
and is thereby divested of all equitable and legal interest in the
Property, the City hereby agrees to release said Developer from
liability under this Agreement with respect to any breach of the
terms and conditions of this Agreement occurring after the date of
any such transfer of interest. In such event, the succeeding
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 five (5) 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.
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THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
ATTEST:
CITY CLERK
APPROVED AS TO CONTENT: .
Dir ctor of Engineering ,;�
A PROV AS /0 FORM:
City Attorney
1 i �
DEVELOPER:
WESTBURY LLC, a Colorado
limited liability company
Mark A. Linder, 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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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
Lo 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,
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curbs, gutters, sidewalks, bikeways and other public improvements
required by this development as shown on the plat, site, landscape
and utility plans, and other approved documents pertaining to this
development on file with the City.
F. Street improvements (except curbs, gutters and walks)
shall not be installed until all utility lines to be placed therein
have been completely installed, including all individual lot
service lines leading in and from the main to the property line.
G. The installation of all utilities shown on the utility
plans shall be inspected by the Engineering Department of the City
and shall be subject to such department's approval. The Developer
agrees to correct any deficiencies in such installations in order
to meet the requirements of the plans and/or specifications
applicable to such installation. In case of conflict, the utility
plans shall supersede the standard specifications.
H. All storm drainage facilities shall be so designed and
constructed by the Developer as to protect downstream and adjacent
properties against injury and to adequately serve the Property (and
other lands as may be required, if any). The Developer shall meet
or exceed the minimum requirements for storm drainage facilities as
have been established by the City in its Drainage Master Plans and
Design Criteria. The Developer does hereby indemnify and hold
harmless the City from any and all claims that might arise,
directly or indirectly, as a result of the discharge of injurious
storm drainage or seepage waters from the development in a manner
or quantity different from that which was historically discharged
and caused by the design or construction of the storm drainage
facilities, except for (1) such claims and damages as are caused by
the acts or omissions of the City in maintenance of such facilities
as have been accepted by the City for maintenance; (2) errors, if
any, in the general concept of the City's master plans (but not to
include any details of such plans, which details shall be the
responsibility of the Developer); and (3) specific directives that
may be given to the Developer by the City. Approval of and
acceptance by the City of any storm drainage facility design or
construction shall in no manner be deemed to constitute a waiver or
relinquishment by the City of the aforesaid indemnification. The
Developer shall engage a licensed professional engineer to design
the storm drainage facilities as aforesaid and it is expressly
affirmed hereby that such engagement shall be intended for the
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
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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 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 pursuant to 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 pursuant to this development. Said
indemnification shall not extend to claims, actions or other
liability arising as a result of any hazardous substance, pollutant
or contaminant generated or deposited by the City, its agents or
representatives, upon portions of the Property dedicated to the
City pursuant to this development.
II. Special Conditions
A. Water Lines
Not Applicable
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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 shall be completed by the
Developer in accordance with the approved plans prior to the
issuance of more than 14 building permits. Completion of
improvements shall include the certification by a licensed
professional engineer that the drainage facilities which serve 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 building permit
greater than said 14 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 $12,938.00 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion
control measures shown on the approved Plan. Said security deposit
shall be made in accordance with the criteria set forth in the
Storm Drainage Design Criteria and Construction Standards
(Criteria). If, at any time, the Developer fails to abide by the
provisions of the approved utility plans or the Criteria, the City
may enter upon the Property for the purpose of making such
improvements and undertaking such activities as may be necessary to
ensure that the provisions of said plans and the Criteria are
properly enforced. The City may apply such portion of the security
deposit as may be necessary to pay all costs incurred by the City
in undertaking the administration, construction, and/or
installation of the erosion control measures required by said plans
and the Criteria.
3. The Developer and the City agree that the Developer shall
be responsible to obtain the City's approval of any changes from
the approved utility plans in grade elevations and/or storm
drainage facility configuration that occur as a result of the
construction of 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
acceptable for the safe and efficient delivery of storm drainage
water.
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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 facilities in accordance with the 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 4 through 14, 37, 38, 56, and 57:
The drainage improvement system required to be constructed on
the above lots shall be completed in accordance with the
approved utility plans and said completion shall be certified
as being in accordance with said plans by a licensed
professional engineer. Said certification shall be received
by the City prior to the issuance of a building permit for any
of the above lots. A certification by such engineer that the
drainage systems' function and adequacy to serve its purpose
has not been impaired by the construction and landscaping on
said lot shall be submitted to the City prior to the issuance
of a certificate of occupancy for each of the above lots.
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 said lots. Said notice shall
reference the location of the specific restrictions shown on
the plans and notes 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 15 through 33 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 a= an elevation that said storm water cannot enter, the
approved utility plans contain specifications for the minimum
elevation for any opening to each such house. Prior to the
issuance of a certificate of occupancy for each of said lots, the
Developer shall provide certification from a licensed professional
engineer that the lowest opening to any such house is at or above
the minimum elevations required on said utility plans.
6. The Developer and the City agree that Lot 55 has special
grading requ-rements due to the potential for overflow from the
Pleasant Valley and Lake Canal. Sheets 4 and 19 of the approved
utility plans specify detailed grading requirements for said lot.
The drainage improvement system required to be constructed on lot
SS shall be completed in accordance with the approved utility plans
and said completion shall be certified as being in accordance with
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said plans by a licensed professional engineer. Said certification
shall be received by the City prior to the issuance of a
certificate of occupancy for Lot 55.
7. Due to the number of existing utilities in Shields Street
adjacent to the Property, the Developer and the City agree that the
construction of the storm sewer crossing under Shields Street as
shown on the approved utility plans requires special care in
locating all existing utilities prior to beginning construction.
Therefore, the Developer may be required to "pot -hole" the street
to locate the existing utilities prior to construction. If the
actual location of the existing utilities requires modification of
the design of the storm sewer crossing shown on the approved
utility plans, the Developer shall contact the City Storm Drainage
Utility before making any changes in the alignment of the storm
sewer. Certain changes may require City approval of revisions to
the utility plans prior to beginning construction of the storm
sewer crossing. The Developer is responsible for any disruption
of, repair to, and/or relocation of existing utilities due to
construction of the storm sewer crossing.
8. Upon the completion of: (1) the construction of the storm
sewer crossing under Shields Street the off -site drainage swale
located on the Front Range Community College property; (2) the
City's acceptance of said improvements; and (3)the Developer's full
and final payment to its contractor(s) for the completion of said
improvements, the Developer may request that the City Storm
Drainaqe Utility prepare a reimbursement agreement so that the
Developer may seek recovery of portions of its expenses incurred in
constructing the storm sewer crossing and swale from future
development which may utilize said storm sewer crossing and swale.
Said reimbursement agreement will only be prepared at the written
request of the Developer and the Developer is responsible for
supplying the City with copies of all documents which may include
bids, receipts, invoices, etc. necessary to establish and document
the actual cost of construction of said improvements.
D. Streets
1. Subject to the conditions of this Agreement, the City
agrees to reimburse the Developer for oversizing public street
improvements along Shields Street for those portions of said street
abutting the Property as shown on the approved utility plans.
Reimbursement for Shields Street shall be for oversizing the street
from residential standards to arterial 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
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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
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 street improvements to be
constructed as described in this Section II(D) are "city
improvements" and, as such, any contract for the construction of
the same must be executed in writing. If the cost of such
improvements exceeds the sum of Fifteen Thousand Dollars ($15,000),
the contract for the construction of the same must be submitted to
the City prior to the commencement of the work showing that the
award was given to the lowest responsible bidder. If the cost for
such improvements exceeds fifty thousand dollars ($50,000), the
contract for the construction of the improvements must be insured
by a performance bond or other equivalent security.
3. The Developer and the City agree that the Developer is
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 site).
4. Upon the completion of: (1) the construction of the right
turn lane on Shields Street; (2) the completion of the construction
of Westbury Drive;(3) the City's acceptance of said improvements;
and (4) the Developer's full and final payment to its contractor(s)
for the completion of said improvements, the Developer may request
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that the City Engineering Department prepare a reimbursement
agreement so that the Developer may seek recovery of portions of
its expenses incurred in constructing said improvements from future
development which may utilize said improvements by taking direct
access off of Westbury Drive. Said reimbursement agreement will
only be prepared at the written request of the Developer and the
Developer is responsible for supplying the City with copies of all
documents which may include bids, receipts, invoices, etc.
necessary to establish and document the actual cost of construction
of said improvements.
E. Ground Water
1. The Developer and the City recognize that this
development is adjacent to the Pleasant Valley and Lake Canal
irrigation ditch and that seepage from said ditch may impact the
ground water levels in the development. Accordingly, it is agreed
that the Developer shall be allowed to install a subdrain system,
designed to help prevent water from seeping into basements of homes
constructed within the development, in accordance with the approved
plans for this development. The Developer and the City agree that
the City shall not be responsible for the maintenance of said
subdrain system and that it shall be the responsibility of the
Developer to maintain said subdrain system. In addition, the
subdrain system for this development has also been designed to
serve the currently proposed development project (entitled
"Cottonwood Ridge P.U.D") on the adjacent property to the south.
If the Developer desires to share maintenance of the subdrain
system with the property owner to the south, it shall be the
Developer's responsibility to establish a maintenance agreement
with that property owner.
2. 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 ground water
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.
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.
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