HomeMy WebLinkAboutOAKRIDGE BUSINESS PARK PUD FIFTH - Filed DA-DEVELOPMENT AGREEMENT - 2004-10-05DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this t day of October,
A.D. 1996, by and between THE CITY OF FORT COLLINS, COLORADO, a Munici-
pal Corporation, herein after referred to as "the City," and Everitt
Enterprises Limited Partnership No. 1, a Colorado Limited Partnership,
by Everitt Enterprises Inc., a Colorado Corporation, General Partner,
herein referred to as "the Developer,"
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 -wit:
Oak Ridge Business Park, Fifth Filing, P.U.D., Located
in the Northwest Quarter of Section 6, Township 6
North, Range 68, West of the 6th P.M., City of Fort
Collins, County of Larimer, State of 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 util-
ity 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
grantees and assigns. Assignment of interest within the
meaning of this paragraph shall specifically include, but
not be limited to, assignment of any portion of the Devel-
oper's proprietary interest in the real property hereinaf-
ter described, as well as any assignment of the Devel-
oper's rights to develop such property under the terms and
conditions of this agreement.
J. In the event the Developer herein after transfers title to
such real property and is thereby divested of all equit-
able and legal interest in said property, the City hereby
agrees to release said Developer from liability under this
Agreement with respect to any breach of the terms and con-
ditions of this Agreement occurring after the date of any
such transfer of interest.
K. Each and every term and condition of this Agreement shall
be deemed to be a material element thereof. In the event
either party shall fail or refuse to perform according to
the terms of this Agreement, such party may be declared in
default. In the event a party has been declared in
default hereof, such defaulting party 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 Agree-
ment and seek damages; (b) treat the Agreement as conti-
nuing and require specific performance; or, (c) avail
itself of any other remedy at law or equity.
L. In the event of default of any of the provisions hereof by
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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 attorneys' fees and costs incurred by reason of
default. Nothing herein shall be construed to prevent or
interfere with the City's rights and remedies specified in
Paragraph 3 E of this Agreement.
ATTEST:
lnia
City Clerk
APPROVED AS TO FORM:
4
'Uty Wgineer
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THE CITY OF FORT COLLINS, COLORADO
A Municipal Corporation �¢
By v C
City Manager
� � l
� L
City Attorney
ATTEST
Gar Sauder, Vice President
Everitt Enterprises, Limited
Partnership No. 1, a Colorado
Limited Partnership
By: Everitt Enterprises Inc., a
Corporation, General Pa e
By: Y
emerald R. Haxton, Pres
(corporate seal)
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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. Storm drainage improvements to be installed out of sequence.
Not applicable.
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EXHIBIT "B"
Ts Development Agreement for Oak Ridge Business Park, Fifth Filing.
This exhibit does not apply to this development.
COST ESTIMATE FOR MAJOR DRAINAGE INPROVENENTS
Irclude only those major storm drainage basin improvements required by an adopted basin
mister plan.
I"=`1 DESCRIPTION
1. Storm sewer, manholes, end sections, etc.
Sub -Total
p. Channel excavation, detention pond
excavation and riprap
QUANTITY UNIT COST TOTAL COST
L.f.
/L.f. S
L.f.
/L.f. $
Ea.
Ea. $
Ea.
Ea. $
S
C.Y.
$
/C.Y. $
C.Y.
$
/C.Y. S
C.Y.
$
/C.Y. $
Sub -Total E
EXHIBIT B - Page 2
ITEM DESCRIPTION
3. Right-of-way & easement acquisition
(a)
(b)
Sub -Total
QUANTITY UNIT COST TOTAL COST
S.F.
$
/S.F. $
Ac.
$
/Ac. $
w
4. Professional Design
(a) Lump Sum $
5. Other
(a) $
(b) $
(c) $
Total estimated cost of Storm Drainage improvements eligible for
credit or City repayment
$
Prepared by: Title:
Address:
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 submitted by the Developer subject to certain requirements and
conditions which involve the installation of and construction of utili-
ties 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 ade-
quacy of which is hereby acknowledged, it is agreed as follows:
1. General Conditions.
A. The terms of this Agreement shall govern all development
activities of the Developer pertaining to the subject
property described above. For the purposes of this Agree-
ment, "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 the 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, side-
walks, 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
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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 reexam-
ination. 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.
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 and streets
(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 six hundred 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 City Engineer has deter-
mined 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 facil-
ities 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.
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E, Except as otherwise herein specifically agreed, the Devel-
oper 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 public improvements required by this development as
shown on the plat, utility and landscape plans, and other
approved documents pertaining to this development on file
with the City.
F. 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.
G. The installation of all utilities shown on the utility
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 instal-
lation. In case of conflict, the utility drawings 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 to be developed (and other lands as may be
required, if any). The Developer has met or exceeded min-
imum requirements for storm drainage facilities as have
1M
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 facili-
ties, 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 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 drain-
age 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.
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I. The Developer shall pay storm drainage basin fees in
accordance with Chapter 93 of the City Code. Storm drain-
age 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 eli-
gible 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 develop-
ment, the City shall reimburse the excess cost out of the
Storm Drainage fund upon completion of the improvements
and approval of the construction by the City.
J. The Developer shall provide the City Engineer with certi-
fied Record Utility Drawing Transparencies on Black Image
Diazo Reverse Mylars upon completion of any phase of the
construction.
2. Special Conditions.
A. Water lines.
Not Applicable
B. Sewer lines.
Not Applicable
10
C. Storm drainage lines and appurtenances.
(i) All storm drainage facilities, as shown in the
utility plans on file in the City Engineer's
Office, must be completed and accepted by the City
prior to the issuance of more than 1 building
permit.
(ii)The City will not maintain the above mentioned
storm drainage facilities. It shall be the
responsibility of the Developer to keep these
maintained and operating properly.
D. Streets
(i) All improvements of Oak Ridge Drive shall be com-
pleted by the Developer prior to the issuance of
the first certificate of occupancy.
(ii)The Developer shall be reimbursed by the City for
the oversizing Oak Ridge Drive from a local street
width to a standard collector street width in
accordance with Section 99-6F of the Code of the
City of Fort Collins.
When payment is requested by the Developer, the
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.
(iii)All landscaping in the City right-of-way proposed
by this development, including the medians, shall
be constructed at the Developer's expense and
maintained by the Developer.
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
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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 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
free from dirt caused by the Developer's operation. Any
excessive accumulation of dirt and/or construction materi-
als 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
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 the
Developer's expense and the Developer shall be responsible
for prompt payment of all such costs.
C. The Developer hereby insures that his subcontractors shall
cooperate with the City's construction inspectors by ceas-
ing 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
erodible earth material exposed at any one time shall not
exceed 200,000 square feet for earthworks operations. Tem-
porary 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 agree -
merit, complete all improvements and perform all other
obligations required herein, as such improvements or obli-
gations may be shown on the original plat, or on any
repiat 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.
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 run with the real property herein
above described and shall be binding upon the parties
hereto, their personal representatives, heirs, successors,