HomeMy WebLinkAboutFOUR SEASONS PUD FIFTH - Filed DA-DEVELOPMENT AGREEMENT - 2004-06-18DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this 1�day of ,T `-�( ,
A.D. 198by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as (thef/. C�,,tt�y," and BROWN FARM, a joint
venture arrd (j17oQxc rr�ereinafter referred to as "the
1
eveloper,"
WITNESSETH:
WHEREAS, the Developer is the owner of certain property situate in
the County of Larimer, State of Colorado, and legally described as
follows, to-w1t:
Four Seasons Fifth Filing, a planned unit development located in
the Northwest Quarter of Section 35, Township 7 North, Range 69
West, of the Sixth Principal Meridian, and being a replat of a
portion of Four Seasons Second Filing (Lot 134) City of Fort
Collins, Larimer County, Colorado.
WHEREAS, the developer desires to develop said property and has
submitted to the City a subdivision plat and/or a site plan, a copy of
which is on file in the Office of the City Engineer and made a part hereof
by reference: and
WHEREAS, the Developer has further submitted to the City a utility
plan for said lands, a copy of which is on file in the office of the City
Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of said
lands 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
APPROVED:
City Engineer
City Attorney
BROWN FARM, a joint venture
John R.P. Wheeler, Joint Venturer
POUDRE SCHOOL DISTRICT NO. R-1
Jay Dee —Ho leman, Director of
Wacilities Services
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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.
See paragraph 2.C.
4. Storm drainage improvements to be installed out of sequence.
See paragraph 2.B.
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EXHIBIT "B"
The Development Agreement for Four Seasons P.U.D.
COST ESTIMATE FOR MAJOR DRAINAGE IMPROVEMENTS
Include only those major storm drainage basin improvements required by an
adopted basin master plan.
ITEM DESCRIPTION QUANTITY UNIT COST TOTAL COST
1. Storm sewer, manholes, end sections, etc.
(a) Not Applicable
2. Channel excavation, detention pond excavation and riprap
(a) Excavation 4,781 C.Y. $ 6.75/C.Y. $ 32,272
Sub -Total $ 32,272
3. Right-of-way & easement acquisition
(a) $22,500/Ac. at 80% X 0.65Ac.
Sub -Total
4. Professional Design
(a) Lump Sum
5. Other
(a) Not Applicable
4'C ,1l
0.65 Ac. $ -181000/Ac. $-11,700
$ -11,700 .
$ 2,500
Total estimated cost of Storm Drainage improvements
eligible for credit or City Repayment $ 46,472
ADDENDUM
THIS ADDENDUM is made and entered into this 8th day of
December, by and between the City of Fort Collins, Colorado, a
Municipal Corporation ("the City") and Brown Farm Joint Venture,
a Colorado Joint Venture ("the Developer").
WHEREAS, the City and the Developer previously entered into
a Development Agreement dated July 18, 1985, pertaining to the
development of Four Seasons 5th Filing ("the Property"); and
WHEREAS, the Development Agreement refers to the Developer
as "Brown Farm" and the correct legal name of the Developer is
"Brown Farm Joint Venture"; and
WHEREAS, the Development Agreement includes a provision in
paragraph 2 C'. that all storm drainage facilities for the Property
were to be completed prior to the release of more than
thirty-five (35) building permits; and
WHEREAS, more than thirty-five (35) building permits have to
date been issued by the City, and the completion of said storm
drainage facilities has been delayed by pending litigation
pertaining to the same; and
WHEREAS, certain lots within the Property have been sold by
the Developer or are under contract for sale to third parties
upon whom the prohibition against further development will work
an undue hardship; and
WHEREAS, the parties are desirous of modifying the
above -mentioned provision of the Development Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
obligations herein contained and other good and valuable con-
sideration, the receipt and adequacy of which is hereby confessed
and acknowledged, the parties agree as follows:
1. The Developer shall, within fifteen (15) days after
written request therefor, reimburse the City for: (a)
any expenses actually incurred by the City in
acquiring, through condemnation or otherwise, such real
property as is necessary for the construction of storm
drainage improvements which will, in the judgment of
the City Engineer, provide adequate storm drainage
facilities for the Property and adjacent properties,
and (b) the actual cost of design and construction of
such storm drainage improvements.
2. In order to secure at least partial payment of the
aforementioned obligation by the Developer to the City,
the Developer shall, on or before December 15, 1987,
furnish to the City an irrevocable, unconditional
letter of credit in the amount of Forty -Two Thousand
Dollars ($42,000.00) ("the Letter of Credit"). If at
any time the Developer fails to make the payments owing
to the City as set forth herein within fifteen (15)
days after written request therefor, then the City, at
its sole discretion, may draw upon the Letter of Credit
in the amount of such indebtedness owing to the City by
the Developer. The amount of the Letter of Credit
shall not in any way limit the Developer's obligation
to pay the full amount of all expenses actually
incurred by the City as described in paragraph 1 above.
In the event that the Letter of Credit is insufficient
in amount to fully reimburse the City for such actual
expenses, the City shall be entitled to those remedies
upon default which are described in paragraph 3 E of
the Development Agreement and such other remedies, if
any, as may be available at law or in equity.
3. Upon the City's receipt of the Letter of Credit, the
City shall release building permits only for those two
lots within the Property which have heretofore been
sold by the Developer or are under contract for sale to
third parties.
4. The Developer shall forebear from selling, contracting
for sale or offering for sale any additional lots
within the Property until the occurrence of either of
the following events, whichever first occurs: (a)
storm drainage facilities for the Property, approved by
the City Engineer, are completed and any legal
challenge to the same is resolved by order of court; or
(b) the City acquires by court order or agreement a
right of possession of all real property which is
necessary, in the judgment of the City Engineer, for
construction of the above -described drainage
facilities.
5. The Letter of Credit must be for a term expiring no
earlier than one (1) year from the date of execution,
provided that such Letter of Credit shall be renewed
annually for additional one (1) year terms or the
Developer shall furnish the City with replacement
Letters of Credit for one (1) year terms at least
fifteen (15) days prior to the expiration of the Letter
of Credit or any replacement thereof. The failure of
the Developer to provide the City with such replacement
or extended Letter of Credit on or before fifteen (15)
days prior to the expiration date thereof shall be a
default hereunder entitling the City to draw the entire
amount of such Letter of Credit for payment of the
expenses described herein with the excess, if any,
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being returned to the Developer upon completion of the
storm drainage improvements as set forth herein. Any
such replacement Letters of Credit shall be clean,
irrevocable and unconditional Letters of Credit issued
by United Bank of Fort Collins, N.A. or another bank or
savings and loan association acceptable to the City and
shall be in a form acceptable to the City.
6. The Letter of Credit shall be released at such time as
the storm drainage facilities for the Property,
approved by the City Engineer, are completed and any
legal challenge to the same is resolved by order of the
court.
7. All notices requesting reimbursement for expenses
incurred by the City pursuant to the terms of the
Addendum shall be addressed to the Developer at:
812 Eighth Street, Greeley, Colorado 80631.
8. Except as modified herein, all terms and conditions of
the Development Agreement shall remain in full force
and effect.
ATTEST:
�r
A
City Clerk
APPROVED:
THE CITY OF FORT COLLINS, COLORADO,
a Muni ipal Corporation
By"IL c
City Manager
BROWN FARM JOINT VENTURE, a
Colorado Joint Venture
1
�� ��. PZ�
By --11- -
Joh R.P. Wheeler,
Joint Venturer
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RCPTN # 85044918 - /06/85 10:03:06 # OF PtiGES - 1 FEE -
J. ULVANG, RECORDER - LARIMER COUNTY, CO. DOC. FEE- $.00
NOTICE
Please take notice that on July 22, 1985, the Planning and Zoning Board of
the City of Fort Collins, Colorado, approved the Final Plan known as Four
Seasons Fifth Filing P.U.D., Phase 1 which development was submitted and
processed in accordance with Section 118-83 of the Code of the City of Fort
Collins. The Final Plan of the subject property together with the
development agreement dated July 18, 1985 between the City of Fort Collins
and the developer, out of which documents accrue certain rights and
obligations of the developer and/or subsequent owners of the subject
property, are on file in the office of the Clerk of the City of Fort
Collins.
The subject property is more particularly described as follows:
A planned unit development located in the northwest 1/4 of
Section 35, Township 7 North, Range 69 West of the 6th P.M.
and being a replat of a portion of Four Seasons Second Filing
(Lot 134) City of Fort Collins, Larimer County, Colorado
City Clerk Secr tart', Planning and Zoning Board
Cit of Fort Collins
Dated: bf0/kir
$3.00
RCPTN # 86019151D 04, �/86 10:36:33 # OF PAC — 1 FEE — $3.00
J. ULVANG, RECORDER --ARIMER COUNTY, CO. DOC. FhE- $.00
NOTICE
Please take notice that on September 25, 1985, the Planning and Zoning
Board of the City of Fort Collins, Colorado, approved the Final Plan known
as Four Seasons Fifth Filing - Phase Two Planned Unit Development which
development was submitted and processed in accordance with Section, 118-83
of the Code of the City of Fort Collins. The Final Plan of the subject
property together with the development agreement dated July 18, 1985
between the City of Fort Collins and the developer, out of which documents
accrue certain rights and obligations of the developer and/or subsequent
owners of the subject property, are on file in the office of the Clerk of
the City of Fort Collins.
The subject property is more particularly described as follows:
A planned unit development located in the northwest quarter of Section
35, T. 7 N., R. 69 W. of the 6th P.M. and being a replat of a portion
of Four Seasons Second Filing (Lot 134) City of Fort Collins, Larimer
County, Colorado.
i 91
u►,\� �.
Secretary, Pianning and Zoning Board
City of Fort Collins
Dated:
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 said lands.
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:
1. General Conditions.
A. 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 City Engineer at the time of
approval of the utility plans relating to the specific
utility, subject to a two (2) 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 two (2) years from the date of execution of this
agreement, the Developer shall resubmit the project utility
plans to the City Engineer 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 City
Engineer at the time of resubmittal.
B. 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 and streets (with
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at least the base course completed) serving such structure
have seen completed and accepted by the City. No building
permits shall be issued for any structure located in excess
of six hundred sixty feet (660') from a single point of
access.
C. 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 City Engineer has determined that any
water lines, sanitary sewer lines, storm sewer 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.
D. Except as otherwise herein specifically agreed, the Developer
agrees to install and pay for all water, sanitary sewer and
storm sewer facilities and appurtenances, and all streets,
curbing, gutter, sidewalks, bikeways and other municipal
facilities necessary to serve the lands within the
development.
E. Street improvements (except curbing, gutter 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.
F. The installation of all utilities shown on the utility
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drawings shall be inspected by the Engineering Division of
the City and shall be subjected 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 drawings
shall supercede the standard specifications.
G. 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 to be developed (and other lands as may be
required, if any). The Developer has met or exceeded 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
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shall be the responsibility of the Developer); and (3)
specific directives as 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, subsequent purchasers of property in the
development and downstream and adjacent property owners
all of whom shall be third party beneficiaries of said
agreement between the Developer and Engineer.
H. The Developer shall pay storm drainage basin fees in
accordance with Chapter 93 of the City Code. Storm drainage
improvements eligible for credit or City repayment under
provisions of Chapter 93 are described together with the
estimated cost of the improvements on the attached Exhibit
"B", which improvements shall include right of way, design
and construction costs. The basin fee payable by the
Developer shall be reduced by the estimated cost of said
eligible improvements. Upon completion of such eligible
improvements, the amount of such reduction shall be adjusted
to reflect the actual cost. If the cost of the eligible
improvements constructed by the Developer and described in
the above mentioned exhibit exceeds the amount of the storm
drainage fees payable for the development, the City shall
-5-
reimburse the excess cost out of the Storm Drainage fund upon
completion of the improvements and approval of the
construction by the City.
I. The Developer shall provide the City Engineer with certified
Record Utility Drawing Transparencies on Black Image Diazo
Reverse Mylars upon completion of any phase of the
construction.
2. Special Conditions.
A. Sewer lines.
The Developer agrees to pay the City for his portion of the
Warren Lake Trunk Sewer Basin fee in the amount of $178.00
(one hundred, seventy-eight dollars and no cents) per acre.
The Developer also agrees to pay the City for his portion of
the Warren Lake Trunk Sewer line in the amount of $15.84
(fifteen dollars and eighty-four cents) per foot plus an
inflation factor to be determined as follows. The
Engineering' News Recdrd Construction Costs Index for Denver,
Colorado for April, 1981 (said index was 2998.01) shall be
subtracted from the index reported the month preceding the
request for the first building permit. If the difference
between the indices is a positive number, then such
difference will be multiplied by the number of feet
comprising the frontage of the property, and by $15.84 per
foot, with the product thereof constituting the inflation
factor. If, on the other hand, subtraction of the indices
results in a negative number, then no inflation factor shall
be considered, and the Developer's payment shall be limited
to $15.84 per foot of frontage. All payments due under the
provisions of this paragraph shall be payable on or before
the Developer's request of the first building permit for the
Development.
C. Storm drainage lines and appurtenances.
All storm drainage facilities shall be completed prior to the
release of more than 35 building permits. Under no circum-
stances shall the City be responsible for the maintenance of
the detention pond.
D. Streets.
The City agrees to repay the developer for oversizing Wabash
Drive to collector standards in lieu of local street
so
standards in accordance with Section 99-6.B.(6) of the Code
of the City of Fort Collins. When payment is requested by
the Developer, City's obligation for payment shall be limited
to those funds then budgeted, appropriated, and available by
the City for that development or work then completed.
3. Miscellaneous.
A. The Developer agrees to provide and install, at his 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 City Engineer
in accordance with the City's "Work Area Traffic Control
Handbook" and shall not remove said safety devices until the
construction has been approved by the City Engineer.
B. The Developer shall, at all times, keep the public
right-of-way free from accumulation of waste material or
rubbish caused by his 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. He further agrees to maintain the finished
street surfaces free from dirt caused by his 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
corrected to the satisfaction of the City Engineer. 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 his expense and he shall be
responsible for prompt payment of all such costs.
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C. The Developer hereby insures that his subcontractors shall
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. When the inspector determines that erosion (either by wind or
water) is likely to be a problem, the surface area of
erodable earth material exposed at any one time shall not
exceed 200,000 square feet for earthworks operations.
Temporary or permanent erosion control shall be incorporated
into the subdivision at the earliest practicable time. By way
of explanation and without limitation, said control may
consist of seeding of approved grasses, temporary dikes,
gabions, and/or other devices.
E. 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, or on any replat 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. In addition, it is
agreed and understood between the developer and the City that
the City shall have the right to refuse issuance of building
permits and certificates of occupancy in the subject
development as the City, in its sole discretion, shall deem
necessary in order to insure performance by the developer of
any other obligation the developer may have to the City,
whether pursuant to other development agreements, or
otherwise.
F. 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.
G. 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.
H. 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.
I. This Agreement shall be binding upon the parties hereto,
their successors, grantees, heirs, personal representatives,
and assigns and shall be deemed to run with the real property
above described.
Ism
THE CITY OF FORT COLLINS, COLORADO
A Municipal Corporation
By
i Manager