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HomeMy WebLinkAboutFAIRVIEW SHOPPING CENTER THIRD - Filed DA-DEVELOPMENT AGREEMENT - 2003-10-20DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this �Swday of 199/ by and between the CITY OF FORT COLLINS, COLOR Municipal Corporation, hereinafter referred to as the "City"; TACO CALIENTE, INC.,, dba Taco Bell, an Arizona corporation, hereinafter referred to as the "Developer" and COOK AND ASSOCIATES GENERAL PARTNERSHIP, a Colorado general partnership, hereinafter referred to as the "Owner". WITNESSETH: WHEREAS, the Developer has entered into an agreement with the Owner of certain property situated in the County of Larimer, State of Colorado, (hereafter referred to as the "Property") and legally described as follows, to wit: FAIRVIEW SHOPPING CENTER - FILING III, being a Replat of Lot 1, Fairview Shopping Center - Filing II, and of a part of the Matador Apartments - Phase IV, situate in the Southeast 1/4 of Section 15, T. 7 N., R. 69 W., of the Sixth P.M., 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: DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this 14-AL day of , A.D. 198 , by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as "the City," and WILLIAM D. BARTRAN, owner, hereinafter referred to as "the Developer," IJTTMCCCCTW WHEREAS, the Developer is the owner of certain property situate in the County of Larimer, State of Colorado, and legally described as follows, to -wit: Fairview Shopping Center, Filing III, being a replat of Lot: 3, Fairview Shopping Center, and a portion of the Matador Apartments, Phase IV, located in the Southeast Quarter of Section 15, Township 7 North, Range 69 West of the Sixth P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the Developer desires to develop said property and has submitted to the City a subdivision plat and/or a site plan, a copy of which is on 11ile in the Office of the City Engineer and made a part hereof by reference; and WHEREAS, the Developer has further submitted to the City a utility plan for said lands, a copy of which is on file in the office of the City Engineer and made a part hereof by reference; and WHEREAS, the parties hereto have agreed that the development of said lands 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 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 said lands. NOW, THEREFORE, in consideration of the premises and the terms and conditions acknowledged by the parties hereto, it is agreed as follows: 1. General Conditions. A. All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, side- walks, and bikepaths shall be installed as shown on the approved utility plans and in full compliance with the Council approved standard specifications of the City on file in the Office of the City Engineer at the time of construction of the utility plans relating to the specific utility, subject to any time limitations as provided by Ordinance. B. 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 and streets (with at least the base course completed) serving such struc- ture have been completed and accepted by the City. No build- ing permits shall be issued for any structure located in excess of six hundred sixty feet (660') from a single point of access. -2- C. Any eater 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 City Engineer determines that any water lines, sanitary sewer lines, storm sewer facilities and/or streets shown on the utility plans are required to provide service or access to other areas of the City, those utilities shall be installed within the time determined by the City Engineer as referred to under "Special Conditions" in this document. D. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer and storm sewer facilities and appurtenances, and all streets, curbing, gutter, sidewalks, bikeways and other municipal facilities necessary to serve the lands within the develop- ment. E. Street improvements (except curbing, gutter and walks) shall not be installed until all utility lines to be placed therein have been completely installed, including all indivi- dual lot service lines leading in and from the main to the property line. F. The installation of all utilities shown on the utility draw- ings shall be inspected by the Engineering Division of the City and shall be subject to such department's approval. -3- 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 drawings shall supercede the standard specifications. G. All storm drainage facilities shall be so designed and con- structed by the Developer as to protect downstream and ad- jacent properties against injury and to adequately serve the property to be developed (and other lands as may be required, if any). The Developer has met or exceeded minimum require- ments 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 main- tenance; (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 as may be given to the -4- 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, subsequent purchasers of property in the development and downstream and adjacent property owners all of whom shall be third party beneficiaries of said agreement between the Developer and Engineer. H. The Developer shall pay storm drainage basin fees in accor- dance with Chapter 93 of the City Code. Storm drainage improvements eligible for credit or City repayment under provisions of Chapter 93 are described together with the estimated cost of the improvements on the attached Exhibit "B", which improvements shall include right of way, design and construction costs. The basin fee payable by the Developer shall be reduced by the estimated cost of said eligible improvements. Upon completion of such eligible improvements, the amount of such reduction shall be adjusted to reflect the actual cost. If the cost of the eligible improvements con- structed by the Developer and described in the above mentioned exhibit exceeds the amount of the storm drainage fees payable for the development, the City shall reimburse the excess cost -5- out of the Storm Drainage fund upon completion of the improve- ments and approval of the construction by the City. I. The Developer shall provide the City Engineer with certified Record Utility Drawing Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construc- tion. 2. Special Conditions. A. Storm drainage lines and appurtenances All storm drainage facilities to serve each individual lot shall be completed by the Developer and approved by the City prior to the release of the Certificate of Occupancy for that lot. B. Streets. The City agrees to repay the Developer for oversi zi ng Eliza- beth Street to arterial standards in lieu of local street standards in accordance with the Code of the City of Fort Collins, Article 99-6.F. 3. Miscellaneous. A. The Developer agrees to provide and install, at his 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 City Engi- neer in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been approved by the director. B. The Developer shall, at all times, keep the public right-of- way free from accumulation of waste material or rubbish caused by his 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. He further agrees to maintain the finished street surfaces free from dirt caused by his operation. ' Any excessive ac- cumulation of dirt and/or construction materials shall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until corrected to the satisfaction of the City Engineer. 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 his expense and he shall be responsible for prompt payment of all such costs. C. The Developer hereby insures that his subcontractors shall cooperate with the City's construction inspectors by ceasing operations when winds are of sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the public health and welfare. D. When the inspector determines that erosion (either by wind or water) is likely to be a problem, the surface area of erodable earth material exposed at any one time shall not exceed 200,000 square feet for earthworks operations. Temporary or -7- permanent erosion control shall be incorporated into the subdivision at the earliest practicable time. By way of explanation and without limitation, said control may consist of seeding of approved grasses, temporary dikes, gabions, and/or other devices. E. 1"he 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, or on any replat subsequently filed by the Developer, and the City may withhold such buil- ding permits and certificates of occupancy as it deems neces- sary to ensure performance hereof. F. This Agreement shall be binding upon the parties hereto, their :successors, grantees, heirs, personal representatives, and assigns and shall be deemed to run with the real property above described. G. 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. ATTEST: City Clerk THE CITY OF FORT COLLINS, COLORADO A Municipal Corporation BCly////'/L City Manager In OWNER mom P'YWTRTT "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. Storm drainage improvements to be installed out of sequence. See paragraph 2.A. 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. 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 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 2 EXHIBIT "B" The Development Agreement for Fairview Shopping Center,Filinq II. This exhibit does not apply to this development. COST ESTIMATE FOR MAJOR DRAINAGE IMPROVEMENTS Include only those major storm drainage basin improvements required by an adopted basin master plan. ITEM DESCRIPTION QUANTITY UNIT COST TOTAL COST 1. Storm sewer, manholes, end sections, etc. (a) L.f. /L.f. $ (b) L.f. /L.f. $ (c) Ea. Ea. $ (d) Ea. Ea. $ Sub -Total $ 2. Channel excavation, detention pond excavation and riprap ( a) C.Y. $ /C.Y. $ (b) C.Y. $ /C.Y. $ (c) C.Y. $ /C.Y. $ Sub -Total $ EXHIBIT B - Page 2 ITEM DESCRIPTION QUANTITY UNIT COST TOTAL COST 3. Right-of-way 8; easement acquisition (a) S.F. $ /S.F. $ (b) Ac. $ Inc. S 4. ( a) 5. Sub -Total Professional Design Other 5 Lump Sum $ Total estimated cost of Storm Drainage improvements eligible for credit or City repayment Prepared by: Address: Title: S 17 66 0 M-1 20 A14 la. 12 o t�T! Cr ,(, NOT;,E Please Lake notice that on 3C) 2 �`1Q�' (� , the Planning and Zoning Board of the City of Fort Collins, Colorad;;:. apvove% the Y�Y — PI an of the pl anned uni t devel opm. ent known as iO-\Y (subject property), which development was submitted and processed in accordance with Section 118-83 of the Code of the City of Fort Collins. The Plan of the subject property together with the development agreement dated`(I 1e o&4 between the City of Fort Collins and the developer, out of which documents accrue certain rights and obligations of the developer and/or subsequent owners 'of the subject property, are on file in the office of the Clerk of the City of Fort Collins. It The subject property is more particularly described as follows: Offsite easements required for utilities to serve this planned unit development are recorded with the Laricer County Clerk and Recorder. azz sty e ary, ann g on ng Board City of Fort Collins Dated: / / g 62Z77 p7 .LEGAL DESCRIPTION_ _Xmm_M1_r4enBythese.Eceseats That__the.Lundersigned`.being-theyowners_ and: proprietors of record of the following described land, to -wit; Lot 3, Fairvfev# Shopping Center, and part of the Matador Apartments Phase IV, .situate im the Southeast 1/4 of Section 15, Township 7 North, Range 69- West of the Sixth P-M.., Fort Collins; Larimer County, Colorado whicho consiidersn% the- North line of --the -said Southeast 1/4 as bearing It 89 SW23tt-Wand withr all''bearings contained- herein; relative thereto is ;_Fnreta, nedi within` the boundary wines which -begin at the Northeast Corner I. of said Lot 3 which. bears N 89 54'g8" W I80.0a feet, and again 500 08'Ifl" E 40_00 feet, and again N- 89 54`28" 1 W 420.00 feet from the Nonth- east-Corner of the Northwest I/4 of the said �outheast 1/4 and run thence along the East line of said Lot 3',_500 05'32"W 260.00 feet; thence along the South line of said Lot 32-N 89 54'28"W 366.80 feet; thence. U 05 09'48"W I79.93 feet; -thence !t Ob°21' 18"W $1.34 feet to :.the- South right-of-way line of WesS Elizabeth Street; thence along sa►fd South right-:-of-way l i ne, S 89 54' 28" E 392.41 feet to the point -` ol- beginning containing 98,545 square feet- more or less, have caused ther same ;to be surveyed- and-. subdivided into lots 25 shown on this plat to be -known as FAIRVIEW SHOPPING CEirfER - PHASE II, and is subject _toy all easements and rights -of -way' now on record or existing or in- dicated on this plat and do hereby dedicate and convey to and for public use, forever hereafter, the- easements as are' laid out and .designated on this plat. -..i. 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 constructed by the Developer properties against injury and other lands as may be require exceeded the minimum requirem have been established by the Design Criteria. The Develi harmless the City from any directly or indirectly, as a storm drainage or seepage wat or quantity different from tl and caused by the design or facilities, except for (1) sup the acts or omissions of the C as have been accepted by the any, in the general concept o include any details of such responsibility of the Develop Tnav hcc rri vAn t-n thin nPVPI n facilities shall be so designed and is to protect downstream and adjacent to adequately serve the Property (and i, if any). The Developer has met or ants for storm drainage facilities as :ity in its Drainage Master Plans and iper does hereby indemnify and hold and all claims that might arise, result of the discharge of injurious ers from the development in a manner at which was historically discharged construction of the storm drainage !h claims and damages as are caused by ity in maintenance of such facilities City for maintenance; (2) errors, if the City's master plans (but not to plans, which details shall be the ar); and (3) specific directives that )Pr by the Citv. Annroval 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. 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. 3 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. II. Special Conditions A. Water Lines Not Applicable B. Sewer Lines Not Applicable C. Storm Drainage Lines and Appurtenances 1. The Developer and the City agree that all on -site and off -site storm drainage improvements shall be completed by the Developer in accordance with the approved plans prior to the issuance of a 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 erosion control improvements must be completed prior to beginning construction of parking lot improvements. D. Streets. 1. The Developer and the City agree that no reimbursement is due the Developer for this development. 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, 4 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 insures that its subcontractors shall cooperate with the City's construction inspectors by ceasing operations when winds are of sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the public health and welfare. D. When the inspector determines that erosion (either by wind or water) is likely to be a problem, the surface area of erodable earth material. exposed at any one time shall not exceed 200,000 square feet for earthworks operations. Temporary or permanent erosion control shall be incorporated into the development at the earliest practicable time. By way of explanation and without limitation, said control may consist of seeding with approved grasses, temporary dikes, gabions, and/or other devices. E. The Developer shall, pursuant to the terms of this Agreement, complete all improvements and perform all other obligations, required herein, as such improvements or obligations may be shown on the original plat and related documents, or any replat as subsequently filed by the Developer, and the City may withhold such building permits and certificates of occupancy as it deems necessary to ensure performance hereof. F. Nothing herein contained shall be construed as a waiver of any requirements of the City Code, and the Developer agrees to comply with all requirements of the same. G. In the event the City waives any breach of this Agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. H. Financial obligations of the City of Fort Collins payable after the current fiscal year and/or not appropriated or budgeted are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. I. This Agreement shall run with the Property and shall be binding upon the parties hereto, their personal representatives, heirs, successors, grantees and assigns. It is agreed that all 5 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. J. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the City hereby agrees to release said Developer from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. K. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of five (5) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) Treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. L. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party I s reasonable attorney s fees and costs incurred by reason of the default. Nothing herein shall be construed to ;prevent or interfere with the City 's rights and remedies specified in Paragraph III.E of this Agreement. THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: i Manag C: ATTEST: CITY CLERK QS APPROVED AS TO Dirbct# of Eng City Attorney DEVELOPER: TACO CALIENTE, INC. dba Taco Bell, an Arizona corporation � f By: Les�A. Nojrdha en, Vice President and/Generhl M4nager ATTEST: l By:_ % Camille Krug, Com tr er (corporate semi) OWNER: COOK AND ASSOCIATES GENERAL PARTNERSHIP, a Colorado general partnership By: LeS A. Nord agen, General Partner a 7 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. 8 EXHIBIT "B" NOT APPLICABLE