HomeMy WebLinkAboutPRESERVE PUD - Filed DA-DEVELOPMENT AGREEMENT - 1994-07-20DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this _i 111 day of V
199_+, by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City" and
THE PRESERVE AT THE FORT, LTD., 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:
THE PRESERVE P.U.D., being a replat of a portion of Tracts A,
B, E, G, H, I, and K and access and utility easements #1
through #7 of Raintree P.U.D., along with Tract E of the
Raintree Commercial P.U.D., Phase 1, located in the Southeast
Quarter of Section 22, 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,
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;
(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.
10
THE CITY OF FORT COLLINS, COLORADO,
a Muni 'pal Corpor i��/ \
- C
By:
ity Manager
ATTEST:
rk
City Clerk
APPROVED AS TO CONTENT:
1?irector' bf Engineering
APPR�OV AS TO FORM:
Deputy City Attorney
DEVELOPER:
THE PRESERVE AT THE FORT, LTD.,
a Colorado Limited Partnership,
By: THE NORTHERN PRESERVE, LLC,
a Utah Limited Liability Company,
STATE OF COLORADO
ss.
County of�
Vi Subscribed and sworn to before me this,AI-) day of
1994, by David E. Bailey, Manager, The Northern Preserve, LL a
Utah Limited Liability Company, General Partner of The Preserve at
the Fort, Ltd., a Colorado Limited Partnership.
Witness my hand and official seal.
No,ary Public
My Commission Expires:
11
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.
Prior to the commencement of construction of any improvements
in the Drake Road right-of-way, or prior to the issuance of
more than 7 building permits, the final plans for Drake Road
must be approved by the City as described in paragraph II.D.2
4. Schedule of storm drainage improvements to be installed out
of sequence.
Not Applicable.
12
EXHIBIT "B"
NOT APPLICABLE
13
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. Notwithstanding the foregoing,
building permits for construction of the approved structures may be
issued by the City upon installation of a water service, a
functioning fire hydrant, and temporary or permanent emergency
access acceptable to the City and the Poudre Fire Authority. All
other required public improvements, as defined on the approved
utility plans, must be completed and accepted by the City prior to
the issuance of any certificate of occupancy for any structure. No
building permits shall be issued for any structure located in
excess of six hundred sixty feet (660') from a single point of
access for emergency purposes acceptable to the Poudre Fire
Authority.
D. Any water lines, sanitary sewer lines, storm drainage
lines, and/or streets described on Exhibit "A," attached hereto,
shall be installed within the time and/or sequence required on
Exhibit "A." 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.
2
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. The Developer understands and
agrees that it is financially obligated for full payment of its
portion of the Drake Road street improvements as described in
Paragraph II.D. herein. The Developer also understands and agrees
that, in accordance with the conditions of said Paragraph, the City
does not hereby guarantee any payment for the City's portion of the
Drake Road street improvements. Therefore, the Developer shall
define in the Developer's construction contract with its general
contractor said understanding regarding the Developer's obligation
for payment in full of its portion of the Drake Road street
improvements and the City's inability to guarantee payment for the
City's portion of said improvements.
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 any service lines leading
in and from the main to the buildings.
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 as they pertain to the Property,
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
9
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.
H
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
issuance of any certificate of occupancy. Completion of
improvements shall include the certification by a licensed
professional engineer that the drainage facilities which serve this
development have been constructed in conformance with said approved
plans.
2. The Developer agrees to provide and maintain erosion
control improvements as shown on the approved utility plans to
stabilize all over -lot grading in and adjacent to this development.
The Developer shall also be required to post a security deposit in
the amount of $13,352.55 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 recognize that this
development is adjacent to the New Mercer Irrigation Ditch and the
Larimer Country Irrigation Ditch #2 and that seepage from said
Ditches 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.
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 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 buildings 2, 4, 7, S, and 10, as shown on the plat,
which are adjacent to the New Mercer Irrigation Ditch and Detention
Pond B:
5
(a) The drainage improvement system required to be
constructed adjacent to the above buildings shall
be completed in accordance with the approved
utility plans and said completion shall be
certified, as noted in paragraph II.C.1 above, as
being in accordance with said plans by a licensed
professional engineer prior to the issuance of any
certificate of occupancy in the development. Prior
to the issuance of a certificate of occupancy for
each of the above buildings, a recertification by
such engineer that the drainage system's function
and adequacy has not been impaired by the
construction of said building and installation of
landscaping adjacent to said building, shall be
required by the City. In addition, the above
buildings shall be constructed at, or above, the
specified minimum elevations shown on the approved
utility plans. To ensure compliance with said
elevation requirement, a certification of the
minimum opening elevation by a licensed
professional engineer or land surveyor must be
submitted to the City prior to the issuance of a
certificate of occupancy for any such building.
Said certification may be done in conjunction with
the aforementioned recertification of the drainage
system's function and adequacy.
5. The Developer understands that the minimum freeboard
requirement, recommended by the City of Fort Collins Storm Drainage
Design Criteria and Construction Standards, of one foot was not met
at Detention Pond B. The Developer and the City agree that the
Developer specifically asked for a variance to the recommended
design criteria to reduce the freeboard to 0.74 feet and that the
City granted said variance to the Developer on the condition that
the Developer shall be responsible for any future damages or
injuries sustained in the development as a result of failing to
meet the recommended minimum freeboard requirement and the
Developer, for itself and its successors, assigns, tenants, and all
persons claiming through it, does hereby indemnify, save and hold
harmless the City for any such damages or injuries sustained by any
person.
6. The Developer shall be responsible for maintenance of
all storm drainage facilities located outside of the public street
rights -of -way, including the off -site detention ponds, which serve
this development. In addition, the Developer shall be responsible
for maintaining the structural integrity of the berm around the
detention pond and along the New Mercer Irrigation Ditch.
0
D. Streets.
1. Subject to the conditions of this Agreement, the City
agrees to reimburse the Developer for oversizing public street
improvements along Drake Road for those portions of said street
abutting the Property as shown on the approved utility plans.
Reimbursement for Drake Road shall be for oversizing the street
from residential standards to arterial 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, in the absence of the Developer's agreement, require
the construction, at the Developer's expense, of any oversized
portion of streets not reasonably necessary to offset the traffic
impacts of the development. The Developer does hereby agree to
construct the aforesaid oversized street improvements with the
understanding that the Developer may not be fully reimbursed by the
City for the cost of such construction. The Developer further
agrees to accept payment in accordance with Section 24-121 (d) of
the Code of the City as full and final settlement and complete
accord and satisfaction of all obligations of the City to make
reimbursements to the Developer for street oversizing expenses. It
is anticipated by the City that the City's reimbursement, in
accordance with Section 24-121 (d), would not be less than fifty
percent (50%) of the Developer's actual expenses incurred and will
be calculated in accordance with the formula as set forth in
Section 24-121 (d).
2. The Developer shall complete the design plans for
the arterial street improvements to Drake Road along the frontage
of the Property including the reconstruction of pavement along the
south side of Drake Road opposite the Property, and receive City
approval of said plans prior to beginning construction of said
improvements or prior to the issuance of more than 7 building
permits. The cost for completing said design plans shall be shared
between the City and the Developer in accordance with the City Code
requirements for reimbursements for street oversizing described in
Section II.D.1 of this Agreement; and Chapter 26, Article VII of
the City Code.
3. 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 actual 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
actual construction of the same must be submitted to a competitive
bidding process resulting in an award to the lowest responsible
7
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.
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 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 City harmless from any and all damages or injuries arising
directly or indirectly out of the issuance of said permit prior to
the completion of the requirements in accordance with Section 29-
678 of the Code of the City.
III. Miscellaneous
A. The Developer agrees to provide and install, at its
expense, adequate barricades, warning signs and similar safety
devices at all construction sites within the public right-of-way
and/or other areas as deemed necessary by the Director of
Engineering in accordance with the City's "Work Area Traffic
Control Handbook" and shall not remove said safety devices until
the construction has been completed and approved by the Director of
Engineering.
B. The Developer shall, at all times, keep the public right-
of-way free from accumulation of waste material or rubbish caused
by the Developer's operation; shall remove such rubbish no less
than weekly and; at the completion of the work, shall remove all
such waste materials, rubbish, tools, construction equipment,
machinery, and surplus materials from the public right-of-way. The
Developer further agrees to maintain the finished street surfaces
so that they are free from dirt caused by the Developer's
operation. Any excessive accumulation of dirt and/or construction
materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until
0
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
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
VA