HomeMy WebLinkAboutBOSTON CHICKEN AT LEMAY AND PENNOCK PUD - Filed DA-DEVELOPMENT AGREEMENT - 2003-05-28DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this 14th day of JUNE
1994, by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City"; BC
REAL ESTATE INVESTMENTS, INC., a Delaware corporation (BCREI) and
DOUBLE "D" DELIS, a Colorado Limited Liability Company,
collectively, hereinafter referred to as the "Developer"; and LEMAY
PROPERTIES, a Colorado joint venture, hereinafter referred to as
the "Owner."
WITNESSETH:
WHEREAS, the Developer has entered into agreements 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:
BOSTON CHICKEN AT LEMAY AND PENNOCK, P.U.D., situate in the
Northwest 1/4 of Section 18, Township 7 North, Range 68 West
of the 61--h P.M., Fort Collins, 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
land 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:
By: Fort Collins Urological
Associates, P.C. Profit Sharing
Trust, Member
Trustee
By: Northern Colorado Surgical
Associates, P.C. Profit Sharing
Trust, formerly Henson, Wise
and Otteman P.C. Surgical
Associates Profit Sharing
Tr
QI
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DEVELOPER:
DOUBLE "D" DELIS, a Colorado
Limited Liability Company
By: b }h..A-160/ lt�w ff I I I w
DON HOF anager
EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
The fire: hydrant proposed for installation at the southwest
corner of the Property shall be installed prior to the
issuance of a building permit for lot 2. Lot 1 is not
restricted by this requirement.
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:.
The traffic signal at the Lemay Avenue and Pennock Place
intersection shall be constructed by the City in accordance
with paragraph II.D.3 of this Agreement.
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, curbs, gutters, and sidewalks shall be
installed as shown on the approved utility plans and in full
compliance with the Council -approved standards and specifications
of the City ort 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 hydrant and sanitary sewer lines serving such structure
have been completed and accepted by the City. Notwithstanding the
foregoing, the Developer shall be entitled to receive a building
permit for the construction of improvements within the development
upon the installation of access to provide fire protection and
other emergency services to the site during construction. Adequate
water lines and fire hydrants shall be installed prior to the
Developer being allowed to place combustible materials on the site.
All such access (temporary or permanent) completed prior to
building permit and water lines and fire hydrants (temporary or
permanent) completed prior to placement of combustible material on
the site shall be approved by the Poudre Fire Authority.
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."
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
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required by its development of the Property as shown on the plat,
site, landscape and utility plans, and other approved documents
pertaining specifically to the Property and on file with the City.
F. 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 Is 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.
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 (and
other lands as may be required, if any). The Developer has met or
exceeded 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 b-y 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 givers 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.
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
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.
II. Special Conditions
A. Water Lines
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Not Applicable
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 any certificate of occupancy. 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.
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 $1950.00 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.
3. The buildings on this development 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 said 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 such building. Prior to the
issuance of a certificate of occupancy for each of said buildings
the Developer shall provide certification from a 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 and the City agree that any completion
of the future access drives to adjoining properties to the east
shall be constructed in such a way as to maintain the approved
storm drainage detention capacity in the parking lot area of this
Property.
D. Streets.
1. Subject to the conditions of this Agreement, the City
agrees to reimburse the Developer for oversizing the public
sidewalk along Lemay Avenue and abutting the Property from
residential standards to arterial standards. The City shall make
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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 sidewalk
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 streets 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 a competitive bidding
process resulting in an award to the lowest responsible bidder; and
evidence must be submitted to the City prior to the commencement of
the work showing that the award was given to the lowest responsible
bidder.
3. The Developer and the City agree that the cost to
install a traffic signal at the Lemay Avenue and Pennock Place
intersection shall be shared equally by the Developer and the City.
The Developer agrees to pay the City $23,774.20, determined to be
one-half of the traffic signal cost, prior to the issuance of the
first building permit for this development. In addition, the City
shall not order materials for the traffic signal installation until
said payment from the Developer is received by the City. The City
shall install the traffic signal.
E. 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.
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2. Prior to beginning any building construction, 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 (luring 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 at least 20 feet wide 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.
3. The issuance of any building permit by the City is
made solely at the Developer's own risk and the Developer shall
hold the City harmless from any and all damages or injuries arising
directly or indirectly out of the issuance of said permit prior to
the completion of the requirements in accordance with Section 29-
678 of the Code of the City.
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
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
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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.
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
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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. 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 th 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.
ATT ST:
��k 1A
CITY CLERK
APPROVED AS TO CONTENT:
Di ector of Engineer cp
A PRO E AS TO FORM:
City 'Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Mun' ipal Corporation
By; C
City Manager
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DEVELOPER:
BC REAL ESTATE INVESTMENTS, INC., a
Delaware corporation
By:
Thomas Sprague, Senior Vice
President Real Estate
ATTEST:
By: 4
y • !Ji''
Name: o- f --
Title: F-F45R-- r!�C „t�ra.— r���r t-� , (corporate seal)
SCHLOTZSKY' DELI RESTAURANT,
DOUBLE 'V LI S, LLC
Name:
Title:
Notary /
Name:
/7�%1/�/•`/ r� M� , �» ,,� - �, a (¢�if7`d seal)
...y'
a� OWNER:
zw LEMAY PROPERTIES, a Colorado joint
venture
By: Fort Collins Urological
•,.e. Associates, P.C. Pension Trust,
Member
By:
Trus e
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