HomeMy WebLinkAboutPINECONE APARTMENTS PUD - Filed DA-DEVELOPMENT AGREEMENT - 2004-01-21DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this G fday of
199-3, by and between the CITY OF FORT COLLINS, COLORAD a
Municipal Corporation, hereinafter referred to as the "City" and
TIMBERLINE PARTNERS, LIMITED, a Colorado Limited Partnership,
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:
PINECONE APARTMENTS, P.U.D., located in the Southwest Quarter
of Section 29, Township 7 North, Range 68 West of the 6th
P.M., City of Fort Collins, County of Larimer, State of
Colorado.
WHEREAS, the Developer desires to develop 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
ATTEST:
CITY CLERK
APPROVED AS TO CONTENT: /
Directoor of Engineerim
APPROVED AS TO FORM:
City Attorney
DEVELOPER:
TIMBERLINE PARTNERS, LIMITED, a
Colorado Limited Partnership
By:
Gerd P. Lee, General P
By: �1
illiam W. Re Ids, General
Partner IT
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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.
Redesign and reconstruction of the outlet from the detention
pond, if necessary, shall be completed in accordance with
provisions stated in section II,C,4 of this Agreement.
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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
on Lot 1 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. Building permits for construction of the
approved structures on Lot 2 may be issued by the City upon
installation �Df a water service, a functioning fire hydrant, and
temporary or permanent emergency access acceptable to the City and
Pouder Fire Athority. All other required public improvements
required to service Lot 2 must be completed and accepted by the
City prior to issuance of any certificate of occupancy for any
structure on Lot 2. No Building permits shall be issued for any
structure located in excess of six hundred sixty feet (6601) from
a single point: of access. The "right -out only" drive on Timberline
road on Lot 1 north of Vermont Drive shall be considered a second
point of emergency 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
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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 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 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, 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
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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 to the best of
its knowledge 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. For the
purposes of this paragraph K, the term "to the best of its
(Developer's) knowledge," shall mean to the best of the actual
knowledge of William W. Reynolds and Gerald P. Lee.
II. Special Conditions
A. Water Lines
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Not Applicable
B. Sewer Lines
1. The Developer and the City agree that the off -site
sanitary sewer which serves this development (shown on the Utility
Plans on file with the City titled "Utility Plans for Dakota Ridge
P.U.D., First Filing") must be completed up to the point of
connection at the intersection of Red Mountain Drive and Pine Cone
Circle by the Developer or the developer of Dakota Ridge P.U.D.,
First Filing and accepted by the City prior to the issuance of any
certificate of occupancy for this development.
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. It is understood that the landscape improvements along the
Foothills Regional Channel may be delayed so as to be completed in
conjunction with the construction of the Regional Channel; and that
some landscape design modifications may be required as a result of
the final engineering design of the Regional Channel. It is
understood that any landscaping above and beyond the City's normal
criteria (trees planted by the Developer) that is desired by the
Developer shall be paid for by the Developer and maintained by the
Developer until said trees become established. The establishment
period shall hie at least 2 years and may be extended by the City if
said trees are determined by the City Forester to be "not
established."
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 $1,901.25 for Lot 2 and $8,754.75 for Lot 1 prior to
beginning construction on the affected lot 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 City shall
acquire at fair market value a tract of land (shown on the approved
plans for this development as the Foothills Channel) that may
include a portion of this development for construction of the
Foothills Regional Channel. The City agrees to maintain all
portions of the tract acquired from this development.
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4. The Developer acknowledges that the detention pond
(and outlet therefrom) into the Interim Foothills Channel initially
approved for construction on the Property is designed to provide
appropriate storm drainage into the Interim Foothills Channel, but
that the City intends at its sole expense to design and construct
a permanent regional storm drainage channel in the future. At such
time as the City completes design and construction of the permanent
Foothills Regional Channel, the Developer shall at its sole cost
and expense, undertake such redesign and modifications of the
outlet from the approved detention pond as may be necessary to
accommodate the final construction of the permanent regional
channel. It is understood that: (A) The Developer will be
consulted regularly by the City during the design and construction
process of the Foothills Regional Channel; and (B) The City agrees
to complete the improvement to the portion of the Foothills
Regional Channel adjacent to Pinecone Apartments by the end of
1995, or if not constructed by said time, then the City agrees to
bear the costs of redesign and construction of the Pinecone
detention pond outlet. In no event shall the Developer, by
agreeing to make such modifications to the existing outlet, be
required to exceed the requirements for such storm drainage outlets
as established by the City in its drainage master plans and design
criteria.
D. Streets.
1. Subject to the conditions of this Agreement, the City
agrees to reimburse the Developer for oversizing public street
improvements along Vermont Drive and Pinecone Circle for those
portions of said street abutting the Property as shown on the
approved utility plans. Reimbursement for Vermont Drive shall be
for oversizing the street from residential standards to collector
standards. Reimbursement for Pinecone Circle 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 24-12L 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, 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
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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. The Developer and the City agree that the Developer
is obligated to complete street improvements to Timberline Road
along the frontage of this development. In lieu of designing and
constructing Timberline Road street improvements and other related
improvements (storm drainage, water lines, sewer lines,
landscaping, sidewalk, etc.) along the frontage of the Property,
the Developer shall deposit with the City funds in the form of
cash, bond, nonexpiring letter of credit or other form of City
approved security sufficient to guarantee completion of said
improvements. The amount of said funds shall be equal to 150% of
the estimated cost to design and construct the Developer's local
street portion of said improvements (which estimate shall be
prepared by the Developer and approved by the City, plus 10% to
cover the cost of construction engineering, surveying and project
management). Said funds shall be deposited with the City in
amounts proportional to the length of frontage on each of lots 1
and 2 at the time of building permit issuance for each of said
lots.
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.
2. The Developer shall provide an accessway to any
building under construction which accessway shall be adequate to
handle any emergency vehicles or equipment, and the Developer shall
properly maintain such accessway at all times. Such accessway
shall be 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.
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
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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. 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.
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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 that the Developer transfers title to the
Property and is thereby divested of all equitable and legal
interest in the Property, the Developer shall, from and after the
date of recording of such transfer, be released and discharged from
liability under this Agreement with respect to any breach of the
terms and conditions of this Agreement which occur after the date
of recording of such transfer. 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
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.E of this Agreement.
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: I � C 44�g�
City Manager
W