HomeMy WebLinkAboutPONDS AT OVERLAND TRAIL - Filed DA-DEVELOPMENT AGREEMENT - 2004-01-26DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this l L day of tw.a.
199, by and between the CITY OF FORT COLLINS, COLD O, a
Municipal Corporation, hereinafter referred to as the "City";
GATEWAY AMERICAN PROPERTIES LLC, a Colorado limited liability
company, hereinafter referred to as the "Developer"; and WALLACE R.
NOEL, an individual, hereinafter referred to as the "Owner".
WITNESSETH:
WHEREAS, the Developer has entered into an Agreement with the
the Owner to purchase and develop certain real property situated in
the County of Larimer, State of Colorado, (hereafter referred to as
the "Property") and legally described as follows, to wit:
THE PONDS AT OVERLAND TRAIL, FIRST FILING, situate in the
Southeast 1/4 of Section 17, 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
City's 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.
utility plans for this development, shall be completed and accepted
by the City of Fort Collins Engineering Department prior to the
issuance of more than twenty-one (21) building permits for the
development.
4. The Developer and the City agree that the Developer
is responsible for all costs for the initial installation of
traffic signing and striping for this development related to the
development's local street operations. In addition, the Developer
is responsible for all costs for traffic signing and striping
related to directing traffic access to and from the development
(e.g. all s-gning and striping for a right turn lane into the
development site).
5. The Developer and the City agree that no building
permit shall be issued for Lots 61 through 81 of this development,
which Lots are designed to take access off the adjoining dead-end
street (West Prospect Road) on which said lots front, until the
adjoining street is either completed and terminated in a City
approved temporary public turnaround and an easement for such
turnaround is dedicated to the City, or until a permanent public
street connection is made to eliminate the dead-end, in accordance
with Section 29-657(b) and (c) of. the City Code.
6. The Developer and the City agree that Lot 84 shall
take access off of West Prospect Road unless a temporary turnaround
easement is dedicated to the City and a temporary turnaround is
constructed at the end of Banyan Drive or until Banyan Drive is
connected to a permanent public street to eliminate the dead-end in
accordance with Section 29-657 (b) and (c) of the City Code.
E. Ground Water
1. The Developer and the City recognize that this
development :is below the Dixon Canal and adjacent to the Pleasant
Valley and Lake Canal and that seepage from said ditches may impact
the ground water levels in the development. Accordingly, it is
agreed that the Developer shall be allowed to install a subdrain
system, designed to help prevent water from seeping into basements
of homes constructed within the development, in accordance with the
approved plans for this development. The Developer and the City
agree that the City shall not be responsible for the maintenance of
10
said subdrain system and that it shall be the responsibility of the
Developer to maintain said subdrain system.
2. The City shall not be responsible for, and the
Developer hereby agrees to indemnify the City against, any damages
or injuries sustained in the development as a result of ground
water 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 storm drainage facilities in the development.
III. Miscellaneous
A. The Developer agrees to provide and install, at its
expense, adequate barricades, warning signs and similar safety
devices at aL1 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-wav 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
11
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 by the Fort Collins City
Council.
H. This Agreement shall run with the Property and shall be
binding upon and inure to the benefit of 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 legal or equitable interest in the Property, as
well as any assignment of the Developer's rights to develop the
Property under the terms and conditions of this Agreement.
I. In the event the Developer transfers title to the Property
and is thereby divested of all equitable and legal interest in the
Property, the City hereby agrees to release said Developer from
liability under this Agreement with respect to any breach of the
terms and conditions of this Agreement occurring after the date of
Y
any such transfer of interest. In such event, the succeeding
property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to
be a material. element hereof. In the event that either party shall
fail to perform according to the terms of this Agreement, such
party may be declared in default. In the event that a party has
been declared in default hereof, such defaulting party shall be
given written notice specifying such default and shall be allowed
a period of five (5) days within which to cure said default. In
the event the default remains uncorrected, the party declaring
default may elect to: (a) terminate the Agreement and seek damages;
(b) treat the Agreement as continuing and require specific
performance or; (c) avail itself of any other remedy at law or
equity.
K. In the event of the default of any of the provisions
hereof by either party which shall require the party not in default
to commence legal or equitable action against said defaulting
party, the defaulting party shall be liable to the non -defaulting
party for the non -defaulting party's reasonable attorney's fees and
costs incurred by reason of the default. Nothing herein shall be
construed to prevent or interfere with the City's rights and
remedies specified in Paragraph III.D of this Agreement.
L. The Owner is made a party to this Agreement solely for the
purpose of subjecting the Property to the covenants contained in
this Agreement. The City and the Developer expressly acknowledge
and agree that the Owner shall not be liable for any obligations of
the Developer under this Agreement, unless the Owner were to
exercise any of the rights of the Developer in which event the
obligations of the Developer shall become those of the Owner.
M. This Agreement shall not be construed as or deemed to be
an agreement for the benefit of any third party or parties, and no
third party or parties shall have any right of action hereunder for
any cause whatsoever.
N. It :is expressly understood and agreed by and between the
parties hereto that this Agreement shall be governed by and its
terms construed under the laws of the State of Colorado and the
City of Fort Collins, Colorado.
13
0. When used in this Agreement, words of the masculine gender
shall include the feminine and neuter gender, and when the sentence
so indicates, words of the neuter gender shall refer to any gender;
and words in the singular shall include the plural and vice versa.
This Agreement shall be construed according to its fair meaning,
and as if prepared by all parties hereto, and shall be deemed to be
and contain the entire understanding and agreement between the
parties hereto pertaining to the matters addressed in this
Agreement. There shall be deemed to be no other terms, conditions,
promises, understandings, statements, representations, expressed or
implied, concerning this Agreement, unless set forth in writing
signed by all of the parties hereto. Further, paragraph headings
used herein are fore convenience of reference and shall in no way
define, limit, or prescribe the scope or intent of any provision
under this Agreement.
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By:Q�-I-ULL
City Manager
ATTEST:
CITY CLERK
APPROVED AS TO CONTENT:
Director of Engineer
PP OVED TO�FORM:
`6
As istant City Attorney
14
DEVELOPER:
GATEWAY AMERICAN PROPERTIES LLC,
a Colorado mited lial lity c�mpany
H�/E. Deutsch, Manager
rein I J"Z41.4
By:
Wallace R. Noel, an individual
15
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.
W1
EXHIBIT "B"
NOT APPLICABLE
17
NOW, THEREFORE, in consideration of the promises of the
parties hereto and other good and valuable consideration, the
receipt and adequacy of which are 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 public streets
(including curb, gutter and sidewalk and pavement 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 approved 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 line:; 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 shall meet
or exceed 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 Property 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
3
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 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
51
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 in. connection with 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 in connection with 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 in connection with this development.
L. The parties agree that the conducting of earth work
activity in or around a live, active prairie dog colony could
constitute, under Section 4-70(a) of the City Code, cruel ill-
treatment and abuse of the affected animals. Accordingly, all
prairie dogs residing on the Property shall either be humanely
relocated or exterminated in accordance with Section 4-119 of the
City Code, prior to the commencement of any earth work in or around
any such prairie dog colony.
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 for Phase 1, as shown on the
approved utility plans for the development, shall be completed by
the Developer in accordance with said approved plans prior to the
issuance of more than thirteen (13) building permits in Phase 1 of
61
the development. Completion of improvements shall include the
certification by a professional engineer licensed in Colorado 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 thirteen (13) building permits. The Developer and the City
agree that all on -site and off -site storm drainage improvements for
Phase 2, as shown on the approved utility plans for the
development, shall be completed by the Developer in accordance with
said approved plans prior to the issuance of more eight (8)
building permits in Phase 2 of the development. Completion of
improvements shall include the certification by a professional
engineer licensed in Colorado 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 eight (8) 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 $21,000.00 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
City's 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
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 Developer shall obtain the City's prior 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
y
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.
4. The Developer and the City agree that the site
topography and the storm drainage system for this development
contains some features that make it important to construct the
storm drainace facilities in accordance with the approved 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 in the development:
(a) The drainage improvement system required to be constructed
on each lot in this development, including the lot grading,
swale grading, minor swale grading, and lot corner elevations,
as shown on the approved utility plans for the development,
shall be completed in accordance with said approved plans and
said completion shall be certified as being in accordance with
said plans by a professional engineer licensed in Colorado. A
certification by such engineer that the lot grading, swale
grading, minor swale grading, lot corner elevations, and the
drainage system's function and adequacy to serve its purpose
has not been impaired by the construction and landscaping on
each such lot, shall be submitted to the City prior to the
issuance of a certificate of occupancy for each lot in the
development. Said certification shall be submitted to the
City at least two weeks prior to the date of issuance of any
certificate of occupancy.
(b) 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 lots 28 through 42, 45 through
53, and 57 through 67. Said notice shall reference the
location of the specific restrictions shown on the 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.
7
5. Lots 4 through 18 abut certain storm drainage
facilities and it is agreed that 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 storm water cannot
enter, the approved utility plans for this development contain
specifications for the minimum elevation for any opening to each
such house. Prior to the issuance of a certificate of occupancy
for houses on Lots 4 through 18, the Developer shall provide
certification from a professional engineer licensed in Colorado
that the lowest opening to any such house is at or above the
minimum elevations required on the approved utility plans for the
development, and that the lot corner elevations for each lot are
the same as those specified on the approved utility plans. Said
certification. is in addition to, and may be done in conjunction
with, the certification of the lot grading, swale grading, minor
swale grading, and lot corner elevations, described in paragraph
II.C.4. above.
6. The Developer and the City agree that all on -site
storm drainage facilities and all off -site storm drainage
facilities installed by or improved by Developer located east to
Overland Park serving this development that have not been accepted
by the City shall be maintained by the Developer in accordance with
Section 26-547 of the City Code.
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 for those portions of said street
abutting the Property as shown on the approved utility plans.
Reimbursement for Overland Trail shall be for oversizing the west
side of the street, beginning at station 9+00 and ending at station
22+74.87 as shown on the approved utility plans, from residential
standards to arterial standards, and reconstruction of the east
side of Overland Trail beginning at station 13+50 and ending at
station 15+50, as shown on the approved utility plans, to repair
and replace the existing improvements. The City shall also
reimburse the developer for construction of the public sidewalk
connection on the east side of Overland Trail beginning at station
21+55 and ending at station 23+15 as shown on the approved utility
plans. (Reimbursement shall not include the additional right-of-
way necessary on the west side of Overland Trail due to the
location of the existing power transmission line since the location
of said line does not require any offset of the roadway.) 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, in the absence of the Developer's agreement require
the construction, at the Developer's expense, of any oversized
portion of streets not reasonably necessary to offset the traffic
impacts of the development. The Developer does hereby agree to
construct the aforesaid oversized street improvements with the
understanding that the Developer may not be fully reimbursed by the
City for the cost of such construction. The Developer further
agrees to accept payment in accordance with Section 24-121 (d) of
the Code of the City as full and final settlement and complete
accord and satisfaction of all obligations of the City to make
reimbursements to the Developer for street oversizing expenses. It
is anticipated by the City that the City's reimbursement, in
accordance with Section 24-121 (d), would not be less than fifty
percent (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 street improvements 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
the City prior to the commencement of the work showing that the
award was given to the lowest responsible bidder. If the cost for
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.
3. The Developer and the City agree that the arterial
street improvements to Overland Trail, as shown on the approved
7