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HomeMy WebLinkAboutENGLISH RANCH SOUTH PUD - Filed DA-DEVELOPMENT AGREEMENT - 2003-07-31DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this ""` day of �, / // , 199L, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and English Ranch South, LLC, a Colorado limited liability company, hereinafter referred to as the "Developer". WITNESSETH: WHEREAS, the Developer is the owner 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: English Ranch South P.U. D., First Filing a tract of land located in the Northeast quarter of Section 32, Township 7 North, Range 68 West of the Sixth Principal Meridian, 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: I. General Conditions 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 registered or 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 mailed to the City: Engineering Development Review City of Fort Collins P.O. Box 580 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: English Ranch South, LLC P.O. Box 277 Timnath, CO. 80547 With a copy to: Arthur E. March Jr. March and Myatt, P.C. P.O. Box 469 Fort Collins, CO. 80522-0469 Notwithstanding the foregoing, if either 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 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 10 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 for convenience of reference and shall in no way define, limit or prescribe the scope or intent of any provision under this Agreement. THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation 'anager � 0 r ATTEST: APPROVED AS TO CONTENT: Director of Engineering APPROVED AS TO FORM: I ri A istant City Attorney DEVELOPER: English Ranch South, LLC, a Colorado limited liability company William D. Bartran, anager 11 FXHIRIT "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. 12 EXHIBIT "B" Cost Estimate for Maior Drainage Improvements Fox Meadows Basin, County Road 9 Crossing ITEM UNIT QUANTITY UNIT COST TOTAL COST 30 inch Ductile Iron Pie LF 180 $93.35 $16,803 27 inch RCP Storm Sewer LF 200 35.75 7,150 5 ft diameter Manhole EA 3 1,250 3,750 Headwall EA 2 1,500 3,000 Traffic Control LS 1 3,500 3,500 CR 9 Asphalt Repair LS 1 8,500 8,500 Encase Sanita ( Sewer LS 1 1,500 1,500 Testing LS 1 700 700 Final Grading and Seeding LS 1 3,450 3,450 Utility Adjustments LS 1 2,000 2,000 Engineering LS 1 9,200 9,200 Field Engineering LS 1 2,400 2,400 Contract Administration LS 1 3,000 3,000 subtotal $64,953 Conti enc 10% 6,500 TOTAL $71,453 Prepared by : Lincoln H. Mueller, Jr., P.E. Title: Stormwater Capital Projects Engineer August 16, 1996. This cost estimate is solely for the City of Fort Collins portion of the storm drainage improvements as described in paragraph II.C.7 of this Development Agreement. 13 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 (including curb, gutter and sidewalk and pavement with at least the base course completed) serving such structure have been completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred 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. F. Street improvements (except curbs, gutters and walks) shall not be installed E 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 City's master plans; and (3) specific directives that may be given to the Developer by the City. The City agrees to give notice to Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to Developer within thirty (30) days after the City first receives a notice of claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. In addition, the City shall not settle any such claim without the Developer's prior written concent. 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.7., 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 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. The City agrees to give notice to Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to Developer within thirty (30) days after the City first receives a notice of claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. In addition, the City shall not settle any such claim without the Developer's prior written consent. 4 II. Special Conditions A. Water (Lines 1. Prior to the issuance of any building permit for this development, the Developer shall, in accordance with Section 26-372 of the City Code, reimburse the City for the Develloper's portion of the cost of the 24" water main in County Road Nine along the frontage of the Property. 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, shall be completed by the Developer in accordance with the approved plans prior to the issuance of more than eighteen (18) building permits. 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 shall be the responsibility of the Developer to correct prior to the issuance of more than said building permits. Said certification shall be submitted to the City at least two weeks prior to the date of issuance for any building permit greater than said eighteen (18) building permits. 2. The Developer agrees to provide and maintain erosion control improvements as shown on the approved utility plans to stabilize all over -lot grading in and adjacent to this development. The Developer shall also be required to post a security deposit in the amount of $16,200.00 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the approved Plan. Said security deposit shall be made in accordance with the criteria set forth in the City's Storm Drainage Design Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to abide by the provisions of the approved utility plans or the Criteria, the City may enter upon the Property for the purpose of making such improvements and undertaking such activities as may be necessary to ensure that the provisions of said plans and the Criteria are properly enforced. The City may apply such portion of the security deposit as may be necessary to pay all costs incurred by the City in undertaking the administration, construction and/or installation of the erosion control measures required by said plans and the Criteria. 3. The Developer and the City agree that the storm drainage system for this 5 development contains some features that make it important to construct the facilities in accordance with the plans and to ensure that the facilities are maintained and kept operational throughout the buildout of this development. For this reason the following additional requirements shall be followed for building on Lots 2 through 16, 18 through 30, 32 through 43, 45 through 50, 52, 53, 54 and 62 through 65 of the Property: a. The portions of the drainage improvement system required to be constructed on any of the above lots, and other portions not on said lots but that are necessary for the system serving said lots to properly function, shall be completed in accordance with the approved utility plans and said completion shall be certified as being completed in accordance with said plans by a Colorado licensed professional engineer. Said certification shall be received by the City prior to the issuance of a certificate of occupancy for any of the above lots. A certification by such engineer that the drainage systems' function and adequacy to serve its purpose has not been impaired by the construction and landscaping on said lot shall be submitted to the City prior to the issuance of a certificate of occupancy for each of the above lots. b. In addition the Developer shall be required to file a notice with the Larimer County Clerk and Recorder describing the landscaping and fencing restrictions that exist for the drainage easements on each of said lots. Said notice shall reference the location of the specific restrictions shown on plans and notes in the approved utility plans for this development. Said notice shall be filed in a City approved form prior to the sale of any lots affected by such restrictions. 4. Lots 65 through 70 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 houses built on said lots. In order to provide the assurance that houses built on said lots are constructed at an elevation that said storm water cannot enter, the approved utility plans contain specifications for the minimum elevation for any opening to each such house. 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 house 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 lots, 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 water. 6. The Developer and the City agree that all on -site detention ponds and easements are to be maintained by this developments Home Owners Association. 7. The Developer and the City agree that the Developer shall construct regional storm drainage improvements along, under and east of County Road Nine as shown on the utiliity plans for this project. The Developer and the City agree that "Exhibit B" of this Development Agreement details the amount of reimbursement due the Developer from the City. The said reimbursement is for the part of the storm drainage line under and east of County Road Nine. D. Streets. 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along County Road 9 for those portions of said street abutting the Property as shown on the approved utility plans. Reimbursement for County Road 9 shall be for oversizing the street from residential (access) 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. It is understood that the street improvement to be constructed for County Road 9 as described in Section II.D.1 above 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. If the cost of such improvements exceeds 11 fifty thousand dollars ($50,000), the contract for the construction of the improvements must be insured by a performance bond or other equivalent security. 3. The Developer and the City agree that the 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 (eg. all signing and striping for a right turn lane into the development site). 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 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 n-1 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 City of Fort Collins Council. H. This Agreement shall run with the Property and shall be binding upon and inure to the benefit of the parties hereto, their personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. I. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the City hereby agrees to release said Developer from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. J. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of five (5) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. K. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall be liable to the non -defaulting