HomeMy WebLinkAboutPROSPECT PARK PUD - Filed DA-DEVELOPMENT AGREEMENT - 2004-01-28DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this ?' day of
199 by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City"; and
Prospect Park L.L.C., a Colorado Limited Liability Company,
hereinafter referred to as the "Developer".
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property
situated in :he County of Larimer, State of Colorado, (hereafter
referred to as the "Property") and legally described as follows, to
wit:
Prospect. Park PUD, located in the Northeast Quarter of Section
22, Township 7 North, Range 69 West of the 6th P.M., City of
Fort Collins, County of Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has
submitted to the City a subdivision plat and/or a site plan and
landscape plan, a copy of which is on file in the office of the
Director of Engineering and made a part hereof by reference; and
WHEREAS, the Developer has further submitted to the City
utility plans: for the Property, a copy of which is on file in the
office of the Director of Engineering and made a part hereof by
reference; and
WHEREAS, the parties hereto have agreed that the development
of the Property will require increased municipal services from the
City in order to serve such area and will further require the
installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a
whole; and
WHEREAS, the City has approved the subdivision plat and/or
site plan and landscape plan submitted by the Developer subject to
certain requirements and conditions which involve the installation
of and construction of utilities and other municipal improvements
in connection. with the Property.
NOW, THEREFORE, in consideration of the promises of the
parties hereto and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, it is agreed
as follows:
I. General Conditions
A. The terms of this Agreement shall govern all development
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 at 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
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. Except as otherwise set forth
herein, 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
thirty (30) days within which to cure said default, or within such
period as may be reasonably required to cure such default if it is
of such a nature that it cannot be cured within said thirty (30)
day period, provided that the party in default shall have commenced
to effect such a cure within said thirty (30) day period and shall
have proceeded with due diligence to complete said cure. In the
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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. 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.
M. 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.
N. Any notice or other communication given by any party
hereto to any other party relating to this Agreement shall be hand -
delivered or sent by certified mail, return receipt requested,
addressed to such other party at their respective addresses as set
forth below; and such notice or other communication shall be deemed
given when so hand -delivered or three (3) days after so mailed:
If to the City:
With a copy to:
If to the Developer:
With a copy to:
Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Cc 80522
Prospect Park LLC
5445 DTC Parkway, P-4
Englewood, Cc 80111
Rebecca Givens
Montgomery. ET AL
5445 DTC Parkway
Suite 800
Englewood, Cc 80111
Notwithstanding the foregoing, if either party to this Agreement,
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or their successors, grantees or assigns, wishes to change the
person, entity or address to which notices under this Agreement are
to be sent as provided above, such party shall do so by giving the
other party to this Agreement written notice of such change.
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 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 for convenience of
reference and shall in no way define, limit or prescribe the scope
or intent of any provision under this Agreement.
,!�T EST:
CITY CLERK
APPROVED AS TO CONTENT:
erector 61 Enginee i7g
APPROVED AS TO FORM:
As istant dily Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: (k �.
Citly Manager
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DEVELOPER:
Prospect Park L.L.C., A Colorado Limited
Liability Company
By: SB Advisors, Inc., a Colorado
Corporation
Manager
By;
Michael C. Bullock, President
C
]3
Timothy B. Sittema, Vice President
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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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 on any lot within
the development shall be issued by the City until the water lines,
fire hydrants, and sanitary sewer lines serving such lot have been
completed and accepted by the City in accordance with Section 29-
678 of the City Code. Notwithstanding the foregoing, the Developer
shall be entitled to receive a footing and foundation permit for
the construction of improvements within the development upon the
installation of adequate waterlines, fire hydrants and emergency
access to provide fire protection and other emergency services to
the site. No building permits shall be issued for any structure
located in excess of six hundred and sixty feet (6601) from a
single point of access.
D. Any water lines, sanitary sewer lines, storm drainage
lines, and/or streets described on Exhibit "A," attached hereto,
shall be installed within the time and/or sequence required on
Exhibit "A." If the Director of Engineering has determined that
any water lines, sanitary sewer lines, storm drainage facilities
and/or streets are required to provide service or access to other
areas of the City, those facilities shall be shown on the utility
plans and shall be installed by the Developer within the time as
established under "Special Conditions" in this document.
E. Except as otherwise herein specifically agreed, the
Developer agrees to install and pay for all water, sanitary sewer,
and storm drainage facilities and appurtenances, and all streets,
curbs, gutters, sidewalks, bikeways and other public improvements
required by this development as shown on the approved plat, site,
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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 required for this
development 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 as have been accepted by the
City for maintenance; (2) errors, if any, in the general concept of
the City's master plans; 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 Colorado 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.
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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 back:fill 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.
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, as shown on the approved
utility plans for this development for Phase 1, shall be completed
by the Developer in accordance with the approved plans prior to the
issuance of any certificate of occupancy for any phase of this
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. Any
deviations from the approved utility plans for Phase 1 of the
development shall be the responsibility of the Developer to correct
prior to the issuance of any certificate of occupancy for any phase
of this development. Said certification shall be submitted to the
City at least two (2) weeks prior to the date of issuance for any
certificate of occupancy. The Developer and the City agree that
all on -site and off -site storm drainage improvements, as shown on
the approved utility plans for this development for Phase 2, shall
be completed by the Developer in accordance with the approved plans
prior to the issuance of any certificate of occupancy in Phase 2.
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. Any deviations from the
approved utility plans for Phase 2 of the development shall be the
responsibility of the Developer to correct prior to the issuance of
any certificate of occupancy in Phase 2. Said certification shall
be submitted to the City at least two (2) weeks prior to the date
of issuance for any certificate of occupancy in Phase 2. The
Developer and the City agree that all on -site and off -site storm
drainage improvements, as shown on the approved utility plans for
this development for Phase 3, shall be completed by the Developer
in accordance with the approved plans prior to the issuance of any
certificate of occupancy for Phase 3. 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. Any deviations from the approved utility plans for Phase 3
of the development shall be the responsibility of the Developer to
correct prior- to the issuance of any certificate of occupancy in
Phase 3. Said certification shall be submitted to the City at
least two (2) weeks prior to the date of issuance for any
certificate of occupancy for Phase 3. The Developer and the City
agree that all on -site and off -site storm drainage improvements, as
shown on the approved utility plans for this development for Phase
4, shall be completed by the Developer in accordance with the
approved plans prior to the issuance of any certificate of
occupancy for Phase 4. 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. Any
deviations from the approved utility plans for Phase 4 of the
development shall be the responsibility of the Developer to correct
prior to the issuance of any certificate of occupancy in Phase 4.
Said certification shall be submitted to the City at least two (2)
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weeks prior to the date of issuance for any certificate of
occupancy for Phase 4.
2. The Developer and the City agree that the on site and
off site storm drainage improvements indicated in Phase 1, as shown
on the approved utility plans for this development must be
completed prior to the issuance of any certificate of occupancy in
any phase of this development. The remaining Phases 2 through 4
can be constructed in any sequence.
3. 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 $ 7,790 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.
4. All buildings in this development, on lots 1 thru 4
of the Property, abut certain storm drainage facilities and it is
agreed that it is of the utmost importance that no storm water
from said facilities enters any building built on said lots. In
order to provide the assurance that buildings built on said lots
are constructed at an elevation that said storm water cannot enter,
the approved utility plans contain specifications for the minimum
elevation for any opening to each such building. Prior to the
issuance of a certificate of occupancy for each of said lots the
Developer shall provide certification from a Colorado licensed
professional engineer that the lowest opening to any such building
is at or above the minimum elevations required on said utility
plans.
5. 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 the Property,
whether by the Developer or other parties. The City reserves the
right to withhold the issuance of building permits and certificates
of occupancies until the City has approved such changes as being
acceptable for the safe and efficient delivery of storm drainage
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water.
D. Streets.
1. Subject to the conditions of this Agreement, the City
agrees to reimburse the Developer for oversizing public street
improvements along Prospect Road and Shields Street for those
portions of said streets abutting the Property as shown on the
approved utility plans. Reimbursement for Prospect Road shall be
for oversizing the sidewalk from four (4) foot residential (access)
standards to five (5) foot arterial street standards.
Reimbursement for Shields Street shall be for oversizing the
sidewalk from four (4) foot residential (access) standards to eight
(8) foot arterial street standards (for Shields Street between
Drake Road and Prospect Road). 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 Fort Collins
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) , will not be less than fifty
percent (506) 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 and agreed by the Developer that the
improvements to be constructed for Prospect Road and Shields Street
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 waiting. 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 bidding
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
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improvements must be insured by a performance bond or other
equivalent security.
3. The Developer and the City agree that there are
significant differences in grade within the site and the adjoining
streets. In order to ensure that the pads and the parking lots are
graded correctly, the Developer shall provide certification by a
Colorado licenced professional engineer certifying that the overlot
grading of the parking lot and building pad for each lot relative
to the adjoining streets have been graded in accordance with the
approved plans, prior to any concrete being placed for the building
or parking lot for the involved lot.
4. The Developer and the City agree that the street
improvements, as shown on the approved utility plans for this
development, for Phase 1 must be completed prior to the issuance of
any certificate of occupancy in any phase of this development. The
remaining Phases 2 through 4 may be constructed in any sequence.
5. 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 signing and striping for a right turn lane into the
development site).
E. Groundwater.
1. The Developer and the City recognize that since this
development is adjacent to the Cannel Importation Channel that
seepage from said channel may impact the ground water levels in
this development. Accordingly, it is agreed that the City shall
not be responsible for and that the Developer hereby indemnifies
the City for .any claims of damages or injuries that may be alleged
or established to have been 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 storm drainage facilities in the development.
F. 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. Prior to beginning any building construction, the
Developer shall provide and maintain at all times an accessway to
said buildincr or buildings. Such accessway shall be adequate to
handle any emergency vehicles or equipment, and the accessway shall
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be kept open during all phases of construction. Prior to the City
allowing combustible material on the site (other than forming
material for concrete footings, foundations and/or concrete walls)
such accessway shall be improved to a width of at least 20 feet
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. The turnaround is not required if
an exit point is provided at the end of the accessway.
III. Miscel:Lan
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. If the Developer is provided written notice from the
City that there is an excessive accumulation of dirt and/or
construction materials within the public right-of-way and the
Developer has failed to cure said problem within two (2) days after
receipt of said written notice, such 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 reasonable
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
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