HomeMy WebLinkAboutWILLOW SPRINGS PUD FOURTH - Filed DA-DEVELOPMENT AGREEMENT - 2004-03-17DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this N day of 1.
199 by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City";
Genesee Communities III, Inc., a Colorado corporation, hereinafter
referred to as the "Developer" and Paragon Point Partners, a
Colorado limited partnership, hereinafter referred to as the
"Owner."
WITNESSETH:
WHEREAS, the Developer has entered into an agreement with the
Owner to acquire ownership of certain property situated in the
County of Larimer, State of Colorado, (hereafter referred to as the
"Property") and legally described as follows, to wit:.
Willow Springs PUD - Fourth Filing, The Village at Willow
Springs, Being a Replat of Tract A and Tract G of Willow
Springs PUD and vacated Right -of -Way according to Ordinance
No. 141, City of Fort Collins, Situate in the Southeast
Quarter of Section 6 and the Northeast Quarter of Section 7,
TGN, R6814 of the 6th P.M., Larimer County, Colorado.
WHEREAS, the Developer desires to develop the Property and has
submitted to the City a subdivision plat and/or a site plan and
landscape plan, a copy of which is on file in the office of the
Director of Engineering and made a part hereof by reference; and
WHEREAS, the Developer has further submitted to the City
utility plans for the Property, a copy of which is on file in the
office of the Director of Engineering and made a part hereof by
reference; and
WHEREAS, the parties hereto have agreed that the development
of the Property will require increased municipal services from the
City in order to serve such area and will further require the
installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a
whole: and
WHEREAS, the City has approved the subdivision plat and/or
site plan and landscape plan submitted by the Developer subject to
certain requirements and conditions which involve the installation
of and construction of utilities and other municipal improvements
in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the
parties hereto and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, it is agreed
as follows:
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.
M. 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.
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:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
10
With a copy to:
If to the Developer:
With a copy to:
If to the Owner:
With a copy to:
Fort Collins, Co 80522
City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Cc 80522
Genesee Communities III, Inc.
534 Commons Drive
Go en CO 80401
—AEFr,: Kurt Wolter
Otten, Johnson, Robinson
950 17th Street #1600
Denver CO 80202
Attn: Mike Viliano
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
party 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 singulan shall include the plural and vice versa.
This Agreement: shall be construed according to its fair meaning,
and as if prepared by all parties hereto pertaining to the matters
addressed in this Agreement. There shall be deemed to be no other
terms, cond_tions, promises, understandings, statements,
representations, expressed or implied, concerning this Agreement,
unless set forth in writing signed by all of the parties hereto.
Further, paragraph headings used herein are for convenience of
reference and shall in no way define, limit or prescribe the scope
or intent of any provision under this Agreement.
11
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: Q0 I
Cit Manager
ATTEST
CITY CLERK
APPROVED AS TO CONT NT:
'
Dir ctor of EngineerlN
APPROVED AS TO FO
Ass stant City Attorney
DEVELOPER:
Genesee Communities III, Inc., a
Colorado Corporation
By: Z-
Robert R. Short, President
By: A—o C�
Kurt Wolter, Vice President
ATTEST:
By: '�_Clkb E'_LL( 6 � ,;, �( ---
Kimberly A. Jens�en, Secretary/Treasurer
lwf
ATTEST:
Ruth' Collins, Secretary
OWNER:
Paragon Point Partners, a Colorado
limited partnership
By: Trustar, Inc., a Colorado
corporation, as General Partner
Byron R. Collins, President
13
(Corporate seal)
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.
14
EXHIBIT "B"
NOT APPLICABLE
15
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 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. 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 waterlines, fire hydrants and emergency
access to provide fire protection and other emergency services to
the site. Notwithstanding the forgoing, the Developer shall be
allowed building permits prior to the installation of public
sidewalks, but shall not be issued any certificates of occupancy
until all sidewalk along the public streets has been installed and
accepted by the City. No building permits shall be issued for any
structure located in excess of six hundred and sixty feet (660')
from a single point of access.
D. Any water lines, sanitary sewer lines, storm drainage
lines, and/or streets described on Exhibit "A," attached hereto,
shall be installed within the time and/or sequence required on
Exhibit "A." If the Director of Engineering has determined that
any water lines, sanitary sewer lines, storm drainage facilities
and/or streets are required to provide service or access to other
2
areas of the City, those facilities shall be shown on the utility
plans and shall be installed by the Developer within the time as
established under "Special Conditions" in this document.
E. Except as otherwise herein specifically agreed, the
Developer agrees to install and pay for all water, sanitary sewer,
and storm drainage facilities and appurtenances, and all streets,
curbs, gutters, sidewalks, bikeways and other public improvements
required by this development as shown on the approved plat, site,
landscape and utility plans, and other approved documents
pertaining to this development on file with the City.
F. Street improvements (except curbs, gutters and walks)
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 required for the development
shall be so designed and constructed by the Developer as to protect
downstream and adjacent properties against injury and to adequately
serve the Property (and other lands as may be required, if any).
The Developer shall meet or exceed the minimum requirements for
storm drainage facilities as have been established by the City in
its Drainage Master Plans and Design Criteria. The Developer does
hereby indemnify and hold harmless the City from any and all claims
that might arise, directly or indirectly, as a result of the
discharge of injurious storm drainage or seepage waters from the
Property in a manner or quantity different from that which was
historically discharged and caused by the design or construction of
the storm drainage facilities, except for (1) such claims and
damages as are caused by the acts or omissions of the City in
maintenance of such facilities as have been accepted by the City
for maintenance; (2) errors, if any, in the general concept of the
City's master plans; and (3) specific directives that may be given
to the Developer by the City. Approval of and acceptance by the
City of any storm drainage facility design or construction shall in
no manner be deemed to constitute a waiver or relinquishment by the
City of the aforesaid indemnification. The Developer shall engage
a Colorado licensed professional engineer to design the storm
drainage facilities as aforesaid and it is expressly affirmed
hereby that :such engagement shall be intended for the benefit of
the City, and subsequent purchasers of property in the development.
I. The Developer shall pay storm drainage basin fees in
3
accordance with Chapter 26, Article VII of the City Code. Storm
drainage improvements eligible for credit or City repayment under
the provision,; 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 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
9
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. The Developer and the City agree that all on -site and
off -site storm drainage improvements, as shown on the approved
utility plans for this development for Phase 1, shall be completed
by the Developer in accordance with the approved plans prior to the
issuance of any certificate of occupancy for this development.
Completion of improvements shall include the certification by a
professional engineer licensed in Colorado that the drainage
facilities which serve this development have been constructed in
conformance with said approved plans. Any deviations from the
approved utility plans for Phase 1 of the development shall be the
responsibility of the Developer to correct prior to the issuance of
any certificate of occupancy. Said certification shall be
submitted to the City at least two (2) weeks prior to the date of
issuance for any certificate of occupancy for Phase 1 of the
development. The Developer and the City agree that all on -site and
off -site storm drainage improvements, as shown on the approved
utility plans for this development for Phase 2, shall be completed
by the Developer in accordance with the approved plans prior to the
issuance of any certificate of occupancy for Phase 2 of this
development. Completion of improvements shall include the
certification by a professional engineer licensed in Colorado that
the drainage facilities which serve this development have been
constructed in conformance with said approved plans. Any
deviations from the approved utility plans for Phase 2 of the
development shall be the responsibility of the Developer to correct
prior to the: issuance of any certificate of occupancy. Said
certification shall be submitted to the City at least two (2) weeks
prior to the date of issuance for any certificate of occupancy for
Phase 2 of 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 $ 5,974 prior to beginning construction to guarantee
the proper installation and maintenance of the erosion control
measures shown on the approved Plan. Said security deposit shall
be made in accordance with the criteria set forth in the City's
Storm Drainage Design Criteria and Construction Standards
(Criteria). If, at any time, the Developer fails to abide by the
provisions of the approved utility plans or the Criteria, the City
may enter upon the Property for the purpose of making such
improvements and undertaking such activities as may be necessary to
ensure that the provisions of said plans and the Criteria are
properly enforced. The City may apply such portion of the security
deposit as may be necessary to pay all costs incurred by the City
61
in undertaking the administration, construction and/or installation
of the erosion control measures required by said plans and the
Criteria.
3. Buildings 9 through 17 as shown on the plat filed
with this PUD abut certain storm drainage facilities and it is
agreed that it is of the utmost importance that no storm water
from said facilities enters said buildings. In order to provide
the assurance that the buildings are constructed at an elevation
that said storm water cannot enter, the approved utility plans
contain specifications for the minimum elevation for any opening to
each building. Prior to the issuance of a certificate of occupancy
for each of said buildings the Developer shall provide
certification from a Colorado licensed professional engineer that
the lowest opening to any such building is at or above the minimum
elevations required on said utility plans.
4. 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 until the City has approved such changes as being
acceptable for the safe and efficient delivery of storm drainage
water.
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. For this Development to meet the requirements for
access (per Section I Paragraph C of this Agreement) Battlecreek
Drive will need to be constructed from Timberline Road to White
Willow Drive and White Willow Drive will need to be constructed
from Battlecreek Drive to the existing White Willow Drive, thereby
providing two points of access for this development. Therefore the
Developer will be required to build said roads in accordance with
the design found in the approved utility plans for Willow Springs
PUD, Phase I, if they have not already been constructed, prior to
the issuance of any building permit for this development.
3. The Developer is required to construct Battlecreek
Drive along the frontage of the Property. If the improvements to
Battlecreek Drive, Golden Willow Drive, and Willow Springs Way
south of the Willow Springs PUD - Fourth Filing frontage have not
been put in place to provide a connection to the existing roadway
system in the Willow Springs PUD, Phase I Development by the
adjacent development (either Willow Springs PUD, Phase I or Willow
Springs PUD, Phase II)at the time any certificate of occupancy is
0
requested in this development, the Developer is responsible for
providing the appropriate easements necessary and constructing a
public turn around, as required by Section 29-657 (c) of the City
Code, prior to the issuance of any certificate of occupancy for any
building within this development, unless such turn around has been
provided by the adjacent development.
4. All sidewalk along the frontage of the Property along
Batticreek Drive and White Willow Drive shall be constructed and
approved by the City prior to the issuance of any certificate of
occupancy for the development.
5. The Developer and the City agree that no building
permits shall be issued for buildings 1 and 17 and garages lA and
17, which building envelopes are shown on the recorded plat with
this property, (all of which buildings are in close proximity to
White Willow Drive and, accordingly, may be impacted by
improvements required on White Willow Drive) until the street
improvements on White Willow Drive have been completed with at
least the construction of curb and gutter, and said improvements
have been approved by the City. White Willow Drive shall be built
in accordance with the design found in the approved utility plans
for Willow Springs PUD, Phase I.
6. The Developer and the City agree that no building
permits shall be issued for buildings 3, 4, 8 and 9 and garages 1A,
and 3 through 8, which building envelopes are shown on the plat
filed with this project (all of which buildings are in close
proximity to Battlecreek Drive and, accordingly, may be impacted by
improvements required on Battlecreek Drive) until the street
improvements on Battlecreek Drive have been completed with at least
the construction of curb and gutter, and said improvements have
been approved by the City. Battlecreek Drive shall be built in
accordance with the design found in the approved utility plans for
Willow Springs PUD, Phase I and Willow Springs PUD, Phase II.
7. 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).
E. Groundwater.
1. The Developer and the City recognize that this
development is adjacent to the McClelland Channel and that seepage
from said channel may impact the ground water levels in this
development. Accordingly, it is agreed that the City shall not be
responsible for and that the Developer hereby indemnifies the City
7
for any claims of damages or injuries that may be alleged to have
been sustained in the development as a result of groundwater
seepage, whether resulting from groundwater flooding, structural
damage or other damage unless such damages or injuries are
sustained as a result of the City's failure to properly maintain
its storm drainage facilities in the development.
F. Hazards and Emergency Access.
1. No combustible material will be allowed on the site
until a permanent water system is installed by the Developer and
approved by the City.
2. Prior to beginning any building construction in 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, 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
9
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 tiie 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
bindin<j upon and inure to the benefit at the parties hereto, their
personal representatives, heirs, successors, grantees and assigns.
It is agreed that all improvements required pursuant to this
Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest
within the meaning of this paragraph shall specifically include,
but not be limited to, a conveyance or assignment of any portion of
the Developer's legal or equitable interest in the Property, as
well as any assignment of the Developer's rights to develop the
Property under the terms and conditions of this Agreement.
I. In the event the Developer transfers title to the Property
and is thereby divested of all equitable and legal interest in the
Property, the City hereby agrees to release said Developer from
liability under this Agreement with respect to any breach of the
terms and conditions of this Agreement occurring after the date of
any such transfer of interest. In such event, the succeeding
property owner shall be bound by the terms of this Agreement.
Lj