HomeMy WebLinkAbout1997-013-02/04/1997-OAKEY EMO REIMBURSEMENT AGREEMENT WAKEROBIN LANE WATER LINE RESOLUTION 97-13
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROVING A REIMBURSEMENT AGREEMENT
WITH THEODORE OAKEY, MARTIN C. EMO AND
MICHAEL C. EMO FOR PARTIAL REIMBURSEMENT OF THE COSTS
FOR A WATER LINE INSTALLED IN WAKEROBIN LANE
WHEREAS, on May 16, 1996, the City of Fort Collins (`the City") was served with two
Writs of Garnishments in Theodore Oakey, et al. v. Rohert Peterson, et al., Case No. 94 CV 336,
filed in Larimer County District Court (`the Garnishment Action"); and
WHEREAS, in the Garnishment Action the Plaintiff Judgment Creditors, Theodore Oakey,
Martin C. Emo and Michael C. Emo (`the Judgment Creditors") served the City with the Writs of
Garnishment seeking to garnish from the City any monies it owed to Robert Peterson, one of the
the Judgment Debtors in the Garnishment Action, (`the Judgment Debtor"); and
WHEREAS,the City has previously entered into the following development agreements with
the Judgment Debtor: (1) the Villages at Harmony West P.U.D. Development Agreement, dated
August 31, 1983; (2)the Belaire P.U.D. Amendment Agreement No. 1, dated March 18, 1985; (3)
the Pineview P.U.D. Phase I Development Agreement, dated June 23, 1983; and (4) the Pineview
P.U.D.Phase 11 Development Agreement,dated August 31, 1983,(`the Development Agreements");
and
WHEREAS, under the Development Agreements the City had agreed to pay the Judgment
Debtor, in accordance with the City Code, for oversizing costs associated with certain water and
sewer line improvements and street improvements; and
WHEREAS,the Development Agreements also provided that pursuant to the City Code the
Judgment Debtor, as a developer, may be entitled to certain reimbursements for costs of installing
water or sewer lines or streets through undeveloped areas of the City by submitting an application
to the City for the City to enter into reimbursement agreements with the Judgment Debtor that would
entitle the Judgment Debtor to reimbursement for a portion of the construction costs of such
improvements whenever any adjacent property owner benefits from such improvements by
beginning to use them; and
WHEREAS,the Judgment Creditors have claimed in the Garnishment Action that they, as
past partners of the Judgment Debtor, are entitled to enter into the said reimbursement agreements
with the City as a result of the installation of certain water and sewer lines and streets through
undeveloped areas of the City as contemplated in the Development Agreements; and
WHEREAS,in settlement of the Garnishment Action, the City and the Judgment Creditors
entered into a Stipulation dated December 9, 1996 (`the Stipulation"), pursuant to which the parties
settled the Judgment Creditor's claims to garnish the oversizing payments due to the Judgment
Debtor from the City under the Development Agreements for the oversizing of certain water and
sewer lines and street improvements; and
WHEREAS,the City and the Judgment Creditors further agreed in the Stipulation that they
would enter into reimbursement agreements as contemplated in the Development Agreements,which
reimbursement agreements would entitle the Judgment Creditors to receive reimbursement for a
portion of their costs to install water and sewer lines and streets through undeveloped areas of the
City as adjacent properties were developed and benefited by such improvements;provided,however,
that such reimbursement agreements would be expressly contingent upon the Fort Collins City
Council approving such agreements by resolution on or before February 4, 1997; and
WHEREAS, one such reimbursement agreement is attached hereto as Exhibit "A",
incorporated herein by this reference, and concerns reimbursement for the construction of the 12"
water line that starts at a connection to an existing water main in the intersection of Wakerobin Lane
and Shields Street,then west in Wakerobin Lane 984 feet to the west edge of the Pineview P.U.D.
Phase I development ("the Reimbursement Agreement").
NOW, THEREFORE,BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS,that the Reimbursement Agreement is hereby approved upon the terms and conditions
shown on Exhibit"A".
Passed and adopted at a regular meeting of the City Co il h'eId this 4t y of ebruary,
A.D., 1997.
avor
ATTEST:
City Clerk
REIMB TRS .ME.NT AG RE
THIS AGREEMENT is made and entered into this 24th day of December, 1996, by and
between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, hereinafter
referred to as "the City," and THEODORE OAKEY, MARTIN C. EMO and MICHAEL C.
EMO, hereinafter referred to as "the Developer."
WITNESSETH :
WHEREAS, Section 26372 of the Code of the City of Fort Collins permits a developer,
after he has installed a water or sewer line through undeveloped areas of the city, to submit an
application to the City for a Reimbursement Agreement which would provide that the developer
may be reimbursed a portion of the construction cost of the water or sewer line whenever any
property specially benefitted by said line first utilizes said line; and
WHEREAS, the Developer has submitted an application to the City for a Reimbursement
Agreement as a result of the construction of a 12-inch water line ("the Improvement") at the
following described location:
Starting at a connection to an existing water main in the intersection of Wakerobin
Lane and Shields Street, then west in Wakerobin Lane 984 feet to the west edge
of the Pineview Phase I development.
The Improvement is further described on Exhibit "A" attached hereto and incorporated herein by
this reference; and
WHEREAS, the Developer has provided the City with the legal descriptions of all
properties that in the future may be specially and directly benefitted by the installation of the
Improvement, all as set forth on Exhibit "B" attached hereto and incorporated herein by this
reference.
NOW THEREFORE, it is agreed by and between the parties hereto as follows:
1. That the Improvement installed by the Developer has been inspected and found to
be in accordance with the City standards and requirements.
2. That the Developer has presented the City with adequate documentation to establish
that the total cost for the construction of the Improvement is Twenty-nine Thousand Eight
Hundred Sixty-two Dollars ($29,862.00).
3. That in the event any of the properties specially and directly benefitted by the
installation of the Improvement should commence activities to utilize the Improvement (which
properties are described on Exhibit "B" attached hereto), the City shall make at least one attempt
to collect a charge from the owners of such properties in order to reimburse the DeveIoDer for
EXHIBIT
A
some of the costs associated with the construction of the Improvement. For purposes of this
Agreement, utilization of the Improvement shall be deemed to commence upon receipt by the City
of an application for service and collection of the appropriate fee from the Developer. Such
charge shall be on a front-foot basis according to the schedule attached hereto and incorporated
herein by this reference as Exhibit"C" and a percentage added to recognize the effects of inflation.
This inflation factor shall be calculated using the construction cost index for Denver as published
in the Engineering News Record (ENR) of may 29 , 19 85, and the same index
published in the ENR of the month preceding payment of the reimbursement. Should any
property anticipated herein to benefit from the installation of the Improvement be developed in
such a manner so as to not make direct connection to the Improvement or otherwise directly
benefit from the Improvement, there shall be no assessment against that property. Should any
property anticipated herein to directly benefit from the Improvement be subdivided into one or
more parcels for development purposes, the amount to be assessed shall be based on a pro-rats
share of the actual front footage of the property so developed. For purposes of this Agreement,
"direct connection/benefit" shall mean physical connection directly to the Improvement
immediately adjacent to the developed property and not connection indirectly through some other
sewer line or lines at some other point on the system.
4. Upon the actual receipt of the assessment set forth above, the City agrees to pay
the same over to the Developer, less three percent (3%) to be retained by the City to defray
administrative costs. In no event shall the City be obligated to pay the Developer interest on
collected or uncollected fees pursuant to this Agreement. The term of this Agreement shall expire
on November 15, 2004. After said date, all the City's obligations under this Agreement shall
terminate and the Developer shall not be entitled to any extension of the term of this Agreement.
5. The services of the City in attempting to assess and collect the reimbursement fees
described herein are offered solely as an accommodation to the Developer. Accordingly, the City
will not be liable for its failure in any fashion to collect the monies specified herein and shall have
no obligation to commence litigation for the purpose of attempting to make such collection. In
the event that the City's attempt(s) to collect such charge, including without limitation the City's
withholding of building permits, results in the filing of any claim against the City and/or the
commencement of litigation against the City, the Developer agrees to pay all costs and fees
incurred by the City in defense of the same, including without limitation reasonable attorneys'
fees. The Developer further agrees to indemnify and hold harmless the City from any damages
or awards arising from or relating to any such claim or litigation. Prior to the City being required
to litigate any claim under this Agreement, the City may require the Developer to pay to the City
cash funds or provide to the City other collateral acceptable to the City sufficient to cover the
amount of any damages sought in the litigation as well as a reasonable amount to cover the City's
anticipated costs and attorneys' fees in the litigation or, if damages are not sought in the lawsuit,
then in such amount as the City may consider reasonably necessary to ensure payment of all of
the City's costs and attorneys' fees which may result therefrom. Notwithstanding the foregoing,
the City shall not commence any litigation to collect any charge under this Agreement without the
prior written consent of the Developer.
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6. In the event that the Developer is in default with regard to any other obligation to
the City, the City shall have the right to set off any reimbursements that may be due hereunder
to satisfy, in whole or in part, any such default. In the event that a Developer has received
reimbursement directly from the owner or developer of any property which may be subject to
assessment in accordance with the terms of this Agreement, the Developer shall immediately upon
receipt thereof notify the City, in writing, of the amount collected, the name and address of the
person from whom collection was made and the property to which the collection is applicable.
7. This Agreement may not be assigned by the Developer to any other party without
the prior written consent of the City, which consent shall not be unreasonably withheld. City
Code Section 26-372 is incorporated herein by this reference and it shall govern interpretation of
the various provisions of this Agreement.
8. This Agreement is hereby made expressly contingent upon the City Council of the
City of Fort Collins (hereinafter referred to as "the Council") approving this Agreement by
resolution, which resolution must be passed by the Council on or before February 4, 1997. If the
Council does not pass such a resolution on or before February 4, 1997, then this Agreement shall
be automatically terminated and both parties shall be released from all obligations hereunder.
DATED the day and year first above written.
THE CITY OF FORT COLLINS, COLORADO,
A Municipal Corporation
By.
iane Jones, uty City Manager
ATTEST: J
rl.
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.APPROVED AS TO FORM:
Assistant City Attorney
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DEVELOPER:
Theodore Oakey
A
Ll��
Martin C. Emo
Michael C. Emo
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EXHIBIT A I I
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'I OWNER: KNUDSON, DARRELL L. J
PARCEL NO.: 97344-00-019
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\ OWNER: KNU➢SON, DARRELL L.
\ PARCEL N➢.: 97344-00-003 I
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HARMONY ROAD
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EXHIBIT B
to Reimbursement Agreement for
12-inch Water Line (on site)
Ref .#1
Current Owner: Darrell . L. Knudson
Parcel #97344-00-003 (part)
THAT PORTION OF PARCEL #97344-00-003 DESCRIBED IN THE
DEED RECORDED NOVEMBER 2, 1992 AT RECEPTION #92068801,
WHICH LIES NORTH AND NORTHEAST OF WAKEROBIN LANE, NORTH
AND WEST OF TRACT A OF PINEVIEW PUD PHASE 1 (PARCEL
#97344-05-002) , WEST OF SHIELDS STREET, AND SOUTH AND
SOUTHEAST OF PARCEL #97344-00-019 .
Ref .#2
Current Owner: Darrell L. Knudson
Parcel #97344-00-019
A TRACT OF LAND LOCATED IN THE SOUTHEAST QUARTER OF
SECTION 34, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH
P.M. , CITY OF FORT COLLINS, LARIMER COUNTY, COLORADO,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
CONSIDERING THE EAST LINE OF THE SOUTHEAST QUARTER OF
SECTION 34 AS BEARING NORTH 0 DEGREES 00' 10" EAST FROM A
FOUND P.K. NAIL AT THE SOUTHEAST CORNER TO A FOUND #4
REBAR IN A RANGE BOX AT THE EAST QUARTER CORNER OF SAID
SECTION 34 AND WITH ALL BEARINGS CONTAINED HEREIN
RELATIVE THERETO: COMMENCING AT THE SOUTHEAST CORNER OF
SAID SECTION 34 ; THENCE ALONG THE EAST LINE OF THE
SOUTHEAST QUARTER OF SAID SECTION 34 NORTH 0 DEGREES
00' 10" EAST 1, 159 . 13 FEET TO THE POINT OF BEGINNING;
THENCE NORTH 89 DEGREES 59' 50" WEST 345 . 01 FEET; THENCE
SOUTH 46 DEGREES 47' 18" WEST 397 .33 FEET TO THE NORTH
LINE OF PINEVIEW PUD PHASE I RECORDED IN LARIMER COUNTY
RECORDS; THENCE ALONG THE NORTH LINE OF SAID PINEVIEW PUD
NORTH 38 DEGREES 00' 07" WEST 45 . 00 FEET TO A POINT ON A
CURVE CONCAVE TO THE SOUTHWEST HAVING A CENTRAL ANGLE OF
22 DEGREES 0212111 , A RADIUS OF 627 . 00 FEET AND A CHORD OF
WHICH BEARS NORTH 49 DEGREES O1118" WEST 239 . 69 FEET;
THENCE ALONG THE ARC OF SAID CURVE 241. 18 FEET TO A POINT
ON THE EASTERLY LINE OF THAT CERTAIN PARCEL OF LAND
DESCRIBED IN BOOK 2025, PAGE 538 RECORDED IN LARIMER
COUNTY RECORDS; THENCE ALONG SAID EASTERLY LINE THE
FOLLOWING 6 COURSES AND DISTANCES; NORTH 13 DEGREES
54141" EAST 109 .37 FEET; THENCE NORTH 34 DEGREES 08111"
EAST 109 . 66 FEET; THENCE NORTH 0 DEGREES 13 ' 44" WEST
65 . 56 FEET; THENCE NORTH 22 DEGREES 44 ' 24" WEST 144 . 02
FEET' THENCE NORTH 02 DEGREES 35' 59" WEST 117 .22 FEET;
THENCE NORTH 04 DEGREES 51121" EAST 211 . 51 FEET; THENCE
NORTH 75 DEGREES 35' 33" EAST 52 . 97 FEET; THENCE NORTH 43
DEGREES 10 ' 20" EAST 322 . 00 FEET; THENCE NORTH 27 DEGREES
13 ' 40" EAST 134 . 32 FEET TO A POINT ON THE PROPOSED
CENTERLINE OF TROUTMAN PARKWAY, SAID POINT ALSO BEING ON
A CURVE CONCAVE TO THE NORTH HAVING A CENTRAL ANGLE OF 27
DEGREES 12' 58" , A RADIUS OF 575 . 00 FEET AND THE CHORD OF
WHICH BEARS SOUTH 76 DEGREES 23 ' 21" EAST 270 . 57 FEET;
THENCE ALONG SAID CENTERLINE OF TROUTMAN PARKWAY AND
ALONG THE ARC OF SAID CURVE 273 . 13 FEET; THENCE SOUTH 89
DEGREES 59' 50" EAST 203 . 56 FEET TO THE EAST LINE OF THE
SOUTHEAST QUARTER OF SAID SECTION 34 ; THENCE ALONG SAID
EAST LINE SOUTH 0 DEGREES 00' 10" WEST 948 .39 FEET TO THE
POINT OF BEGINNING.
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EXHIBIT C
to Reimbursement Agreement for
12-inch Water Line (on site)
TOTAL COST = $29 , 862
Reimbursement $29 , 862/1, 968 if = $15 . 17 per front foot
TOTAL FRONTAGE
Front-
Ref .# Parcel# Footage Repay
1 97344-00-003 620 . 58' $ 9, 414 . 20
(part)
2 97344-00-019 284 . 69' $ 4, 318 . 75
The percentage added to recognize the effects of inflation will be
based on the Denver construction cost index published in the
"Engineering News-Record" and the following formula:
(ENR) Denver construction cost published in the month before
payment = X
(ENR) Denver cost index published
X - = Y
(Y/X) x (100) = Percentage to be added
Payee -