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HomeMy WebLinkAboutSHOPKO PUD - Filed DA-DEVELOPMENT AGREEMENT - 2004-02-11DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this AZday of -Ti-me, 199.5, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; SHOPKO STORES, INC., a Minnesota Corporation, hereinafter referred to as the "Developer"; and WOODLAND PARP_DISE CORPORATION, a Colorado Corporation, JAMES F. COOK FAMILY TRUST and the DEVELOPER, collectively hereinafter referred to as the "Owner." WITNESSETH: WHEREAS, the Developer and the Owner are owners 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: SHOPKO P.U.D., a Replat of a portion of Lots 7, 10, 11, 12, 13, 15 and "Muddy Road" of Observatory Heights Subdivision located in the Northwest Quarter of Section 36, 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: WOODLAND PARADISE CORPORATION, a Colorado corporation By: Jay A-- senbaum, President ATTEST: By: ) (corporate seal) Warren H. Dean, Secretary/Treasurer JAMES F. COOK FAMILY TRUST By: James F. Cook, Co -Trustee By: v Carolyn S. COOK, Co -Trustee 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. The design and construction of improvements to JFK Parkway shall be completed in accordance with Section II,D,3 of this Agreement. 4. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. 11 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, the Developer shall be entitled to receive a building permit for the construction of improvements within the development upon the installation of access to provide fire protection and other emergency services to the site during construction. Adequate water lines and fire hydrants shall be installed prior to the Developer being allowed to place combustible materials on the site. All such access (temporary or permanent) completed prior to building permit and water lines and fire hydrants (temporary or permanent) completed prior to placement of combustible material on the site shall be approved by the Poudre Fire Authority. No building permits shall be issued for any structure located in excess of six hundred 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 2 areas of the City, those facilities shall be shown on the utility plans and shall be installed by the Developer within the time as established under "Special Conditions" in this document. E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by this development as shown on the plat, site, landscape and utility 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; 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. The City agrees to promptly notify the Developer of any such claims arising against the City, and the Developer shall have the right to participate in the defense of any such claims. I. The Developer shall pay storm drainage basin fees in accordance with Chapter 26, Article VII of the City Code. J. The Developer shall provide the Director of Engineering with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of the construction. K. The Developer and Owner specifically represent that to the best of their knowledge each of their respective 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 arty 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 and Owner do 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 each of their respective portions of the Property dedicated to the City pursuant to this development. The Developer and Owner further agree 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 each of their respective 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, and/or liability arising as a result of any hazardous substance, pollutant or contaminant generated or deposited after completion of this development by others not parties to this Agreement. II. special Conditions A. Water Lines Not Applicable. 4 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 $21,999.33 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. D. Streets. 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along South College Avenue and JFK Parkway for those portions of said streets abutting the Property as shown on the approved utility plans. Reimbursement for South College Avenue shall be for oversizing the sidewalk from residential standards to major arterial standards. Reimbursement for JFK Parkway 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 5 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. It is understood that the streets to be constructed as described in this Section II(D) are "city improvements" and, as such, any contract for the construction of the same must be executed in writing. If the cost of such improvements exceeds the sum of Fifteen Thousand Dollars ($15,000), the contract for the construction of the same must be submitted to a competitive 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. 3. The Developer and the City are aware that the design for the JFK Parkway street and related storm drainage improvements are not yet completed and approved by the City. It is agreed that the design with City approval and construction of said improvements shall be completed prior to the issuance of the first certificate of occupancy for this development. 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 L 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. 7 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 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. 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 or, if said default cannot reasonably be cured within said five (5) day period the Developer shall be allowed such additional time as is reasonably necessary to cure said default, provided that the Developer diligently and substantially endeavor to cure said default, and present evidence to the City each week of the Developer's progress in curing 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 Is reasonable attorney s fees and costs incurred by reason of the default, provided that the non - defaulting party prevails in such legal/equitable action. 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 may be executed in multiple counterparts, which counterparts, combined, shall constitute one Agreement. 10 THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By ity Ma ag �l CITY CLERK APPROVED AS TO CONTENT: Di ector of Engineeriulqj APPROVED AS TO FORM: City Attorney DEVELOPER: SHOPKO STORES, INC., a Minnesota Corporation R-ch Events, ATTEST: Dale P. Kramer, President CEO By: Tym-'da•6WT�� David A. Liebergdb, Secretary (corporate seal) OWNER: SHOPKO STORES, INC., a Minnesota Corporation By: ___t , ATTEST: --AA Dale P. Kramer, President CEO By: N( -'1Q. 0-- David A. Liebe en, Secretary (corporate seal) N