HomeMy WebLinkAboutEVERGREEN PARK SECOND REPLAT - Filed DA-DEVELOPMENT AGREEMENT - 2003-07-31DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this /Z day of o c
199 ), by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City" and
R.J. DEVELCO, INC., a Colorado corporation hereinafter referred to
as the "Developer".
WITNESSETH:
WHEREAS, the Developer is the Owner 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:
REPLAT OF EVERGREEN PARK, SECOND FILING (Lots 1 through 11 of
Block Five; Lots 23 through 45 of Block Four; and Lots 13
through 17 of Block Six), a Subdivision of a Portion of the
East Half of Section 1, Township 7 North, Range 69 West, of
the 6th P.M., City of Fort Collins, County of Larimer, State
of 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 is hereby acknowledged, it is agreed
as follows:
I. General Conditions
The terms of this Agreement shall govern all development
activities of the Developer pertaining to the Property. For the
EXHIBIT "B"
NOT APPLICABLE
10
DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this day of k,Ile"�,��,^
199Z-, by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City" and
R. J. DEVELCO, INC., a Colorado corporation, hereinafter referred
to as the "Developer".
WITNESSETH:
WHEREAS, the Developer is the Owner 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:
REPLAT OF EVERGREEN PARK, SECOND FILING (Lots 1 through 8 of
Block One; Lots 13 through 22 of Block Four and Lots 11 and 12
of Block Six) a Subdivision of a Portion of the East Half of
Section 1, Township 7 North, Range 69 West of the 6th P.M.,
City of Fort Collins, County of Larimer, State of 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 is hereby acknowledged, it is agreed
as follows:
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 (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 (6601) 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
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 tinder "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 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
constructed by the Developer
properties against injury and
other lands as may be require
exceeded the minimum requirem
have been established by the
Design Criteria. The Devel,
harmless the City from any
directly or indirectly, as a
storm drainage or seepage wat
or quantity different from tl
and caused by the design or
facilities, except for (1) sui
the acts or omissions of the C
as have been accepted by the
any, in the general concept o
include any details of such
responsibility of the Develop
may }mac rii vary to the ilavPI n
facilities shall be so designed and
is to protect downstream and adjacent
to adequately serve the Property (and
1, if any). The Developer has met or
Bnts for storm drainage facilities as
,ity in its Drainage Master Plans and
)per does hereby indemnify and hold
and all claims that might arise,
result of the discharge of injurious
ers from the development in a manner
at which was historically discharged
construction of the storm drainage
:h claims and damages as are caused by
ity in maintenance of such facilities
City for maintenance; (2) errors, if
E the City's master plans (but not to
plans, which details shall be the
Br); and (3) specific directives that
,Pr by the City_ Annroval 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, and subsequent purchasers of property in the
development.
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.
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 pursuant to 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 pursuant to 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 pursuant to this development.
II. Special Conditions
A. Water Lines
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
4
issuance of more than 10 building permits. 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 $13,064.00 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 Developer and the City agree that the storm
drainage system for this development contains some features that
make it important to construct the facilities in accordance with
the plans and to ensure that the facilities are maintained and kept
operational throughout the buildout of this development. For this
reason the following additional requirements shall be followed for
building on Lots 5, 6, 7 and 8 of Block One and Lots 13 and 14 of
Block Four:
The drainage improvement system required to be constructed on
the above Lots shall be completed in accordance with the
approved utility plans and said completion shall be certified
as being in accordance with said plans by a licensed
professional engineer. Said certification shall be received
by the City prior to the issuance of a building permit for any
of the above lots. A certification by such engineer that the
drainage systems' function and adequacy to serve its purpose
has not been impaired by the construction and landscaping on
said lot shall be submitted to the City prior to the issuance
of a certificate of occupancy for each of the above lots.
D. Streets.
1. The Developer and the City agree that no street
oversizing reimbursement is due the Developer for this development.
2. The Developer and the City agree that no access shall
be allowed off' Sugarpine Street for Lot 22 of Block Four and Lot 12
of Block Six until said street is provided with a temporary
turnaround constructed to City standards on a dedicated easement or
said street is constructed to connect to an existing completed
street.
3. The street design for this portion of Evergreen Park
Second Filing has been revised such that a portion of the right of
5
way previously dedicated is no longer necessary for street
purposes. It is agreed that the Developer shall prepare legal
descriptions for pursuing a vacation of said right of way by City
Council. City staff shall perform the necessary functions to
request that City Council vacate said right of way. The Developer
understands that no building permits shall be issued by the City
for buildings proposed to encroach onto said right of way unless
and until said right of way is vacated by City Council.
4. The Developer and the City agree that the
construction of street improvements for widening North Lemay Avenue
along the frontage of the Evergreen Park, Second Filing, is a
requirement that has not been completed. Deadlines for said
construction have all expired. The Developer is responsible to
design and construct the Lemay Avenue improvements. The property
within Evergreen Park, Second Filing has now been split up amoung
several owners, and, accordingly, the City agrees that the
Developer may have the option to pay the City its proportionate
share of the estimated cost to design and construct the developer's
portion of the the arterial street improvements to Lemay Avenue,
which share .is estimated to be $27,962.00. With 89 lots remaining
to be built: upon in the Evergreen Park, Second Filing, the
Developer shall pay the City in accordance with the following:
The Developer will pay the amount of $314.18 upon the issuance
of each building permit for each dwelling unit commencing with
the first building permit issued and all succeeding
building permits. If any portion of said sums are paid by the
Developer beyond the year 1993, the Developer agrees to pay
the amount stipulated plus an additional amount added to
recognize the effects of inflation increased each year until
payment is completed in full. The inflation factor (Inf.
Fac.) for each year's payments shall be calculated using the
construction cost index for Denver as published in the
Engineering News Record (ENR) for January, 1993, as the base
index (I -base) and the same index published in the ENR for the
January in each succeeding year immediately preceding payment
(I -year of payment). The formula for calculating said
inflation factor shall be as follows:
Inf. Fac. _ (I -year of payment) -(I -base).
(I -base)
Said amount to be added to each $314.18 payment to compensate
for inflation shall be equal to $314.18 times the inflation
factor. The amounts added to compensate for inflation shall
not count for reducing the total (principal) amount due. Upon
receipt of full payment to the City by the Developer, the
Developer's full obligation for the Lemay Avenue improvements
shall be complete.
E. Previous Development Agreement
2
1. The Developer and the City agree that the previous
development agreement titled "Agreement" dated December 2, 1976;
"Addendum No. i" to said development agreement, dated December 20,
1979, and the! "Amendment to Agreement" amending said development
agreement dated March 31, 1982, are hereby declared void to the
extent (and only to the extent) that as they pertain to the lots in
Evergreen Park, Second Filing that are part of this development as
described on page one (1) of this Development Agreement.
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 Is 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 erodible
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 development at the
earliest practicable time. By way of explanation and without
limitation, said control may consist of seeding with approved
7
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 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.
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 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.
J. 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.
K. 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;
8
(b) Treat the Agreement as continuing and require specific
performance or; (c) avail itself of any other remedy at law or
equity.
L. 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.E of this Agreement.
ATTEST:
CITY CLERK
APPROVED AS j O CONTENT:
r
Dore for o E;ngineer
`•I V
APP OV AS 'I'O FORM:
City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: G
City Manager
DEVELOPER:
R. J. DEVELCO, INC., a Colorado
corporati n-�
l
By Ilk:/��
pencer,, president
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 (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 (6601) 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
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 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 liner leading in and from the main to the property line.
2
ATTEST:
By:
D Stoner, Secretary/
�e er
(corporate seal)
10
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.
11
EXHIBIT "B"
NOT APPLICABLE
12
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 shall be so designed and
constructed loy 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 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 shall be the
responsibility of the Developer); 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 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
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 Myla:rs upon completion of any phase of the construction.
II. Special Conditions
A. Water Lines
Not Applicable
3
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 more than 10 building permits. 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 $ 11,640.00 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 Developer and the City agree that the storm
drainage system for this development contains some features that
make it impertant to construct the facilities in accordance with
the plans and to ensure that the facilities are maintained and kept
operational throughout the buildout of this development. For this
reason the following additional requirements shall be followed for
building on lots 39 and 40 of Block Four:
The drainage improvement system required to be constructed on
the above Lots shall be completed in accordance with the
approved utility plans and said completion shall be certified
as being in accordance with said plans by a licensed
professional engineer. Said certification shall be received
by the City prior to issuance of a building permit for either
of the above lots. A recertification by such engineer that
the drainage system's function and adequacy to serve its
purpose has not been impaired by the construction and
landscaping on said lot shall be submitted to the City prior
to the .issuance of a certificate of occupancy for each.of the
above lots.
D. Streets.
1. The Developer and the City agree that no street
oversizing reimbursement is due the Developer for this development.
2. The Developer and the City agree that the
construction of street improvements for widening North Lemay Avenue
along the frontage of the Evergreen Park, Second Filing, is a
requirement that has not been completed. Deadlines for said
4
construction have all expired. The Developer is responsible to
design and construct said Lemay Avenue improvements. The property
within Evergreen Park, Second Filing has now been split up among
several owners, and, accordingly, the City agrees that the
Developer may have the option to pay the City its proportionate
share of the estimated cost to design and construct the developer's
portion of the arterial street improvements to Lemay Avenue, which
share is estimated to be $27,962.00. With 89 lots remaining to be
built upon in the Evergreen Park, Second Filing at the time of
preparation of this estimate, the Developer shall pay the City in
accordance with the following:
The Developer will pay the amount of $314.18 upon the issuance
of each building permit for each dwelling unit commencing with
the first building permit issued and all succeeding building
permits. If any portion of said sums are paid by the
Developer beyond the year 1993, the Developer agrees to pay
the amount above stipulated plus an additional amount added to
recognize the effects of inflation increased each year until
payment is complete in full. The inflation factor (Inf. Fac.)
for each year's payments shall be calculated using the
construction cost index for Denver as published in the
Engineering News Record (ENR) for January, 1993, as the base
index (1-base) and the same index published in the ENR for the
January in each succeeding year immediately preceding payment
(I -year of payment). The formula for calculating said
inflation factor shall be as follows:
Inf. Fac. = (I -year of payment) - (I -base)
(I -base)
Said amount to be added to each $314.18 payment to compensate
for inflation shall be equal to $314.18 times the inflation
factor. The amounts added to compensate for inflation shall
not count for reducing the total (principal) amount due. Upon
receipt of full payment to the City by the Developer, the
Developer's full obligation for Lemay Avenue improvements
shall be satisfied.
E. Previous Development Agreement
1. The Developer and the City agree that the previous
development agreement titled "Agreement" dated December 2, 1976;
"Addendum No. 1" to said development agreement, dated December 20,
1979, and the "Amendment Agreement" amending said development
agreement dated March 31, 1982, are hereby declared void to the
extent (and only to the extent) that as they pertain to the lots in
Evergreen Park, Second Filing that are part of this development as
described on page one (1) of this Development Agreement.
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.
5
2. The Developer shall provide an accessway to any
building under construction which is, adequate to handle any
emergency vehicles or equipment, and shall properly maintain such
accessway at all times. Such accessway shall be at a minimum, 20'
wide with 4" aggregate base course material compacted according to
City Standards and with an 80' diameter turnaround at the building
end of said 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 Cit!t 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
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 erodible
earth material exposed at any one time shall not exceed 200,000
square feet for earthworks operations. Temporary or permanent
N.
erosion control shall be incorporated into the development at the
earliest practicable time. By way of explanation and without
limitation, said control may consist of seeding with 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 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.
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 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.
J. 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.
K. 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 leclared 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;
7
(b) Treat the Agreement as continuing and require specific
performance or; (c) avail itself of any other remedy at law or
equity.
L. In the event of the default of any of the provisions
hereof by eilther 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.E of this Agreement.
ATTEST:
n
CITY CLERK
APPROVED AS 'TO CONTENT:
Dii7ector of Engineei i-b-►g
APPROVED AS 'TO FORM:
City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Mun�icipal Corporatio
By:,�� C 4�_
City Manager
DEVELOPER:
R. J. DEyE`4 INC.',
a Colptaor& c, oration ✓" f
!Pz6n . Spencer, President
ATTEST: J
By:
J . Stoner, Secretary/ (corporate seal)
Tr.;surer
8
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.
E