HomeMy WebLinkAboutLORY ANN ESTATES - Filed DA-DEVELOPMENT AGREEMENT - 2003-12-12DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this JfHday of
199 ' by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City" and
G.A.S. PROPERTIES LLC, a Colorado limited liability company,
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:
LORY ANN ESTATES SUBDIVISION, previously known as Trailside
Subdivision, being a portion of the Southwest 1/4 of Section 16,
Township 7 North, Range 69 West of the 6th P.M., City of 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
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:
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
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, scarifying soils, 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.
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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,
weather conditions permitting. In 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.
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.
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A TEST:
c
CITY CLERK
APPROVED AS TO CONTENT:
AqDi ector o Engineeri g
APPROVED TO FORM:
y Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
( )
By: ti/ 6�lIL
pity Manager
L'
DEVELOPER:
G.A.S. PROPERTIES LLC,
a Colorado limited
liability company
By:
(yrc f r" James . Scavo,
Managing Member
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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. 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
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 nine hundred feet
(9001) 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 p-ans, and other approved documents pertaining to this
development on file with the City.
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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 facilities designed for this
development, :including storm drainage facilities both on -site and
those off -site from the development to the Overland Park Ponds,
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 by the design or construction of
the storm drainage facilities, (both on -site and those off -site to
the point at which the storm drainage enters existing detention
ponds known as the Overland Park Ponds), 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
r]
construction costs. See Section II.C, Special Conditions, Storm
Drainage Line; 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
1. The Developer shall reimburse the City for the
Developer's portion of the cost of the 12" water main in Elizabeth
Street along the frontage of the Property in accordance with
Section 26-372 of the City Code.
2. The Developer shall reimburse the City for the
Developer's portion of the cost of the 8" water main which lies
within the right-of-way for Cuerto Lane, a portion of the right-of-
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way for Tierra Lane, and the easement between lots 13 and 14, as
shown on the approved utility plans, in accordance with Section 26-
372 of the City Code.
B. Sewer Lines
1. The Developer acknowledges that a sanitary sewer line
and a storm sewer line are required to be constructed in the
fifteen (15) foot wide utility and drainage easements which are
dedicated on lots 20 and 21 and in a portion of the twenty (20)
foot wide utility and drainage easement dedicated along the eastern
boundary of the Property and across the Pleasant Valley and Lake
Canal as shown on the approved utility plans. In addition, the
aforementioned sanitary and storm sewer lines required to be
constructed continue off -site in an existing ten (10) foot wide
utility and drainage easement dedicated on Lot 18 of Overland Trail
Farm Phase II as shown on the approved utility plans. The
Developer agrees that all work associated with the excavation and
installation of the aforementioned lines must occur on the Property
or within the existing utility easements. The Developer hereby
agrees to indemnify and hold harmless the City from and against any
claims, damage, liability, loss, or expense associated with the
excavation, installation, and/or construction of said sanitary
sewer line and/or storm sewer line.
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 20 building permits on 7 lots. 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. Said certification shall be submitted to the City at least
two weeks prior to the date of issuance for any building permit
greater than said 20 building permits.
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 $12,225.00 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
(Criteria). If, at any time, the Developer fails to abide by the
provisions of the approved utility plans or the Criteria, the City
may enter upon the Property for the purpose of making such
improvements and undertaking such activities as may be necessary to
ensure that the provisions of said plans and the Criteria are
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properly enforced. The City may apply such portion of the security
deposit as may be necessary to pay all costs incurred by the City
in undertaking the administration, construction, and/or
installation of the erosion control measures required by said plans
and the Criteria.
3. The approved utility plans contain specifications and
elevations for grading of a swale on lot 9 which must be completed
in accordance with said plans. Said completion shall be certified
as being in accordance with said plans by a licensed professional
engineer and said certification shall be received by the City prior
to the issuance of a building permit for lot 9. Prior to the
issuance of a certificate of occupancy for said lot, a
recertification by such engineer that the drainage swale's function
and adequacy has not been impaired by the construction and
landscaping on said lot, shall be required by the City.
4. 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 all lots except lots 1, 7, 28, and 29:
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.
In addition, the Developer shall be required to file a notice
with the Larimer County Clerk and Recorder describing the
landscaping and fencing restrictions that exist for the
drainage easements on each of said lots. Said notice shall
reference the location of the specific restrictions shown on
plans and notes in the approved utility plans for this
development. Said notice shall be filed in a City approved
form prior to the sale of any lots affected by such
restrictions.
5. Lots 13 through 21 abut certain storm drainage
facilities and it is agreed that it is of the utmost importance
that no storm water from said facilities enters houses built on
said lots. In order to provide the assurance that houses built on
said lots are constructed at an elevation that said stormwater
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cannot enter, the approved utility plans contain specifications for
the minimum elevation for any opening to each such house. Prior to
the issuance of a certificate of occupancy for each of said lots,
the Developer shall provide certification from a licensed
professional engineer that the lowest opening to any such house is
at or above the minimum elevations required on said utility plans.
6. Prior to issuance of any certificate of occupancy for
any building on any lot within the Property, the Developer shall
submit to the City the declaration of covenants and restrictions
proposed for the Property. Such covenants shall contain provisions
acceptable to the City which notify owners of lots on the Property
of the existence of back -lot detention areas and which impose
reasonable and necessary restrictions on the uses of such lots and
such detention areas consistent with the purposes for such areas.
Specifically, such covenants shall provide that the owners shall be
responsible for maintenance of the back -lot detention areas and
that such areas shall not be graded in any manner contrary to the
approved plans, or fenced.
7. The Developer and the City recognize that this
development is adjacent to the Pleasant Valley and Lake Canal and
that seepage from said Canal may impact the groundwater levels in
the development. Accordingly, it is agreed that the City shall not
be responsible for any damages or injuries sustained in the
development as a result of groundwater seepage, whether resulting
from groundwater flooding, structural damage or other damage unless
such damages or injuries are sustained as a result of the City's
failure to properly maintain its water, wastewater and/or storm
drainage facilities in the development.
8. The Developer and the City agree that the City shall
not be responsible for maintenance of the off -site storm sewer as
shown on the approved utility plans and including on -site
facilities and those off -site facilities from the development to
the Overland Park Ponds, and that maintenance of said storm sewer
shall be the responsibility of the Developer. The Developer hereby
agrees to indemnify and hold harmless the City from and against any
claims, damage, liability, loss, or expense associated with the
excavation, installation, and/or construction of said storm sewer
line.
9. The Developer and the City agree that the Developer
shall be responsible to obtain the City's approval of any changes
from the approved utility plans in grade elevations and/or storm
drainage facility configuration that occur as a result of the
construction of houses and/or development of lots, whether by the
Developer or other parties. The City reserves the right to
withhold the issuance of building permits and certificates of
occupancy until the City has approved such changes as being
acceptable for the safe and efficient delivery of storm drainage
water.
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D. Streets.
1. Subject to the conditions of this Agreement, the City
agrees to reimburse the Developer for oversizing public street
improvements along Overland Trail and West Elizabeth Street for
those portion: of said streets abutting the property as shown on
the approved utility plans. Reimbursement for Overland Trail shall
be for oversizing the sidewalk from residential standards to major
arterial standards and for oversizing the street from residential
standards to arterial standards. Reimbursement for West Elizabeth
Street shall be for oversizing the street from residential
standards to collector standards. The City shall make
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 street
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,n 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 (500) 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 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. If the cost of such improvements exceeds fifty thousand
dollars ($50,000), the contract for the construction of the
improvements must be insured by a performance bond or other
equivalent security.
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3. The Developer is obligated for the construction of a
pedestrian bridge over the Pleasant Valley and Lake Canal as shown
on the approved utility plans. The Developer shall be reimbursed
the entire cost of the construction of such pedestrian bridge from
the escrow account established with the City with the Overland Farm
Phase II development, and if such escrow account is insufficient to
reimburse the Developer for the entire cost of such bridge, the
Developer shall be eligible for street oversizing reimbursement to
pay the additional amount owed to the Developer.
E. Previous Development Agreement
1. The Developer and the City agree that the previous
development agreement for Trailside Subdivision (Lory Ann Estates)
titled "Utility Agreement" and dated September 29, 1978 is hereby
superseded by this agreement and hereby declared void as it
pertains to this development.
F. City Code References
1. All references in this Section II of this Agreement
to specific Sections of the City Code shall be interpreted to mean
those Sections as they exist at the time of application for
reimbursement; it being understood that said Sections may be
amended from time to time by the City Council and may even be
assigned different Section numbers.
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
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