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HomeMy WebLinkAboutDRY CREEK MINOR SUB - Filed DA-DEVELOPMENT AGREEMENT - 2003-07-31DEVELOPMENT AGREEMENT THIS AGRE=EMENT, made and entered into this /V j~day of , k,,- _ 199_1, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and DRY CREEK L.L.C. a Michigan limited liability company, hereinafter referred to as the "Developer"; and PARSONS & ASSOCIATES, INC., a Colorado Corporation, hereinafter referred to as the "Owner". WITNESSETH: WHEREAS, the Developer has entered into an agreement with the owner to acquire ownership of 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: DRY CREEK MINOR SUBDIVISION, located in the Northeast 1/4 of Section 7, Township 7 North, Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the Developer desires to develop the Property and has submitted to the City a subdivision plat and/or a site plan and landscape plan, a copy of which is on file in the office of the 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. 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: Fort Collins, Co 80522 With a copy to: City Attorney's Office City of Fort Collins P.O. Box 580 Fort Collins, Co 80522 If to the Developer: Robin J. Eldridge 2660 Kerr Gultch Road Evergreen, CO. 80439 With a copy to: Uniprop 280 Daines St., Suite 300 Birmingham, MI. 48009 If to the Owner: Parsons and Associates, Inc. 432 Link Lane Fort Collins, CO. 80524 With a copy to: Lucia Liley March and Myatt P.O. Box 469 Fort Collins, CO. 80522 Notwithstanding the foregoing, if any party to this Agreement, 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 parties 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, 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. P. 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 IM 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. THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: City Manager ATTEST: City Clerk APPROVED AS TO CONTENT: Director of Engineering APPROVED AS TO FORM: Deputy City Attorney DEVELOPER: DRY CREEK L.L.C., a Michigan limited liability compan By: Robin J. Eldri ge, Manager OWNER: PARSONS AND ASSOCIATES, INC., a Colorado Corporation Donald M. Parsdns, President 11 ATTEST: Lee J. Parsons, Secretary 12 EXHIBIT "A" 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. 13 EXHIBIT "B" Not Applicable 14 F1 L E CC>Pv DRY CREEK AMENDMENT AGREEMENT NO. 1 THIS AMENDMENT AGREEMENT, made and entered into this ,yn day of 166 _ , of 1998, by and between the CITY OF FORT COLLINS, COLORADO, a municipal corporation, ("City") and DRY CREEK L.L.C., a Michigan limited liability company ("Developer"), is an amendment to that certain Development Agreement dated October 14, 1997 by and between the City and DRY CREEK L.L.C., a Michigan limited liability company (as "Developer") and Parsons and Associates, Inc., a Colorado Corporation (as the then "Owner"), hereinafter referred to as the "Development Agreement." WHEREAS, the Developer has acquired ownership of the development from Parsons & Associates, Inc., and WHEREAS, the City and the Developer/Owner (DRY CREEK L.L.C.) are presently desirous of modifying the Development Agreement. 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, the parties agree that subheading I (General Conditions) Paragraph C shall be replaced with the following paragraph to read as follows to wit: C. No letter of completion for the construction of any structure within a phase of this development shall be issued by the City until the water lines, fire hydrants, sanitary sewer lines, storm drainage lines, ponds, swales, overlot grading and 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. IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first above written. THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: City Mager U�_ APPROVED AS TO CONTENT: Director of Engineering APP•R"ED AS TO FORM: City Attorney DEVELOPER: DRY CREEK L.L.C., a Michigan Limited Liability Company O By: Robin J. Eldri ige, Co -manager AT 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 the 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 E=ngineering 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 public water lines, fire hydrants, sanitary sewer lines, and public streets (including curb, gutter, 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 six hundred and sixty feet (660') 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. VA 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 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 (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 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. 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 3 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 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 and wetland mitigation and grading, 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 any certificate of occupancy for 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 certificate of occupancy for the development. 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 $29,449.00 prior to beginning construction to guarantee the proper installation and maintenance _of the erosion control measures shown on the approved utility plans for this development. Said security deposit(s) 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(s) 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. In addition, the City shall have the option to withhold building permits and certificates of occupancy, as stated in Paragraph III.D of this Agreement, as it deems necessary in order to ensure that the Developer installs and maintains the erosion control measures throughout the buildout of this development. 3. The Developer and the City agree that all manufactured home pad sites located within the Dry Creek 100 year flood plain, as delineated on the approved utility plans, shall require certification for finished pad elevation, minimum flood plain elevation and finished floor elevation prior to issuance of a certificate of occupancy for said manufactured home pad sites. The certifications shall be conducted by a professional engineer licensed in Colorado. 4. All improvements and manufactured homes of any Tract within, wholly or partially, the Dry Creek 100 year flood plain shall conform to all City of Fort Collins Code and policy as stated in Chapter 10 "Flood Prevention and Protection" with emphasis on the standards stated under Chapter 10, Division 3. Standards for Flood Hazard Reduction. 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 manufactured home pad sites and/or development of the lot, whether by the Developer or other parties. The City reserves the right to withhold the issuance of building permits and certificates of occupancies for this development until the City has approved such changes as being acceptable for the safe and efficient delivery of storm drainage water. 6. The Developer and the City agree that the Developer is obligated to 5 maintain all on -site storm drainage facilities not accepted for maintenance by the City and all off -site storm drainage facilities not accepted for maintenance by the City serving this development and outside of the public rights -of -way. D. Streets.. 1. The Developer and the City agree that no street oversizing reimbursement from the City is due the Developer for this development. 2. The Developer and the City agree that the Developer shall be responsible for providing a South bound right turn / deceleration lane at the intersection of Summit View Drive and International Boulevard. The Developer shall deposit with the City a guarantee in the form of a certificate of deposit, cash, performance bond, letter of credit or other City approved means for cost of constructing said right turn lane prior to the issuance of any building permit for this development. The City will build said right turn lane with the construction of the North Timberline Road Extension Project and provide the Developer with the actual costs for said right turn lane construction upon completion of said Timberline Road construction. Any excess guarantee shall be reimbursed to the Developer or the City shall request payment for any additional costs associated with said right turn lane. 3. The Developer and the City agree that the Developer has chose to provide private drives through out the Development and that said private drives do not meet City street standards as defined in the "Design and Construction Criteria, Standards and Specifications for Streets, Sidewalks, Alleys and Other Public Ways" City of Fort Collins, Colorado, revised July 1996 and that the City shall not maintain, nor assume any responsibility for said streets until such time that the private drives are reconstructed to City standards current at that time and accepted by the City. 4. The Developer and the City agree that International Boulevard is a County street and the maintenance of said street is the responsibility of the existing business owners and this development. The City shall not assume any responsibility for International Boulevard until the street is annexed into the City and the street is brought up to City street standards current at that time. 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. Ground Water C: 1. 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 or 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. Wetlands 1. The Developer shall post a security deposit in the amount of $9,720.00 prior to beginning construction to guarantee the proper installation and maintenance of the wetland mitigation measures shown on the approved utility plans for this development. If, at any time, the Developer fails to abide by the provisions of the approved wetland mitigation plans, 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, installation, establishment, and/or maintenance of the wetland mitigation measures required by said plans. In addition, the City shall have the option to withhold building permits and certificates of occupancy, as stated in Paragraph III. D of this Agreement, as it deems necessary in order to ensure that the Developer installs, monitors, maintains, and protects from construction, the wetland mitigation measures throughout the buildout of this development, and/or throughout a two year establishment period following construction. Said two year establishment period shall commence upon release of the first full building permit by the City. Said security deposit, or any unused portion thereof, shall be released to the Developer by the City's Natural Resources staff, following said staffs inspection and approval of satisfactory establishment of said mitigation measures. Said inspection shall be initiated by request from the Developer. 2. The Developer and the City agree that no grading, other than that delineated on the approved Wetland Mitigation plan, shall be performed in the wetland areas. All wetlands to be perserved shall be delineated with a construction fence and said construction fence shall be installed prior to any other construction of this development. Contractor shall meet with the City Natural Resources and Stormwater Utilities staff on -site prior to commencement of any on -site grading activities. 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 7 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 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 respective 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 0 of any portion of the Developers 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 sui:ceeding 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 ten (10) 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 I II. 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: Engineering Development Review City of Fort Collins P.O. Box 580 9