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HomeMy WebLinkAboutHARMONY MARKET PUD THIRD - Filed DA-DEVELOPMENT AGREEMENT - 2003-11-20DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this 29th day of November 199 0 , by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as "the City", NASH FINCH COMPANY, a Delaware Corporation, herinafter referred to as "the Developer"; and OAK FARM INC., a Delaware Corporation, hereinafter referred to as "Oak Farm". WITNESSETH This Agreement provides for the installation and construction of certain improvements on or with respect to real property in Latimer, County, Colorado, legally described as follows: HARMONY MARKET P.U.D., THIRD FILING, a tract of land located in the Northeast Quarter of Section 1, Township 6 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, Oak Farm is the owner of fee -simple title to a portion of such property, legally described as follows: LOT 1, HARMONY MARKET P.U.D., THIRD FILING, According to the plat thereof, Larimer County, Colorado. WHEREAS, Oak Farm has granted an option to purchase Lot 1 to Fiest, Meager & Co., Inc., a Colorado Corporation (Fiest Meager); Fiest Meager has assigned the option to purchase to 600 Grant Associates, a Colorado limited partnership (600 Grant); 600 Grant has assigned to option to purchase to the First Interstate Bank of Denver, a national banking association (Bank), and the Bank has entered into an agreement with the Developer whereby the Developer has the contractual right to acquire title to Lot 1; WHEREAS, Oak Farm is the owner of a portion of such property described as follows: Tract A, Tract B, Tract C and Tract D, HARMONY MARKET P.U.D., THIRD FILING, According to the plat thereof, Larimer County, Colorado. WHEREAS, if the Developer acquires title to Lot 1, it plans to develop Lot l and construct improvements thereon and the Developer and Oak Farm desire to cause certain development of Tracts A, B, C and D in conjunction with the development of said Lot 1; and WHEREAS, the Developer 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 a utility plan for said lands, 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 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 said lands. EXHIBIT "A" I. 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 off -site sidewalk improvements shown on the approved utility plans along Lemay Avenue and Oakridge Drive shall be completed prior to the issuance of a certificate of occupancy. 4. Storm drainage improvements to be installed out of sequence. Not applicable. -]0- "EXHIBIT B" NOT APPLICABLE 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. 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: 1. General Conditions A. The terms of this Agreement shall govern all development activities of the Developer pertaining to the subject property described above. 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 and streets (with at least the base course completed) serving such structure have been completed and accepted by the City. Notwithstanding the forgoing, the Developer shall be entitled to receive a building permit for the construction of improvements within the development upon the installation of adequate temporary water lines, fire hydrants, and street access to provide fire protection and other emergency services to the site. All such temporary water lines, hydrants and street access shall be approved by the Poudre Fire Authority prior to issuance of any building permit. 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 sewer facilities and/or streets are required to provide service or access to other areas of -2- 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 sewer facilities and appurtenances, and all streets, curbing, gutter, sidewalks, bikeways and other public improvements required by this development as shown on the plat, utility and landscape plans, and other approved documents pertaining to this develop- ment on file with the City. F. 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 individual lot service lines leading in and from the main to the property line. G. The installation of all utilities shown on the utility drawings 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 drawings 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 to be developed (and other lands as may be required, if any). The Developer has met or exceeded 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 (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 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 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 the -3- 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 2.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. J. The Developer shall provide the Director of Engineering with certified Record Utility Drawing Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construction. 2. Special Conditions. A. Water lines. Not Applicable. B. Sewer lines. Not Applicable. C. Storm drainage lines and appurtenances. (i) The Developer and the City agree that all on -site and off -site storm drainage improvements shall be completed by the Developer 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 the approved plans. (ii) 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 the issuance of any building permits. D. Streets. (i) Subject to the conditions of the agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Harmony Road, Lemay Avenue and Oakridge Drive for those portions of the said streets abutting the property as shown on the approved utility plans. Reimbursement for Harmony Road shall be for oversizing the sidewalk from residential standards to major arterial standards. Reimbursement for Lemay Avenue shall be for oversizing the sidewalk from residential standards to arterial standards. Reimbursement for Oakridge Drive shall be for oversizing the street from residential standards to collector 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 -4- 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). (ii) The Developer shall complete all on -site and off -site street improvements in accordance with the approved utility plans prior to the issuance of the first certificate of occupancy. (iii) Prior to beginning construction of improvements to Lemay Avenue, the Developer shall deposit with the City a cash guarantee in the form of a certificate of deposit, cash, performance bond, letter of credit or other City approved means to guarantee the completion of all public improvements to be constructed in the Lemay Avenue right of way in accordance with the approved utility plans on file in the office of the Director of Engineering. The amount deposited shall be equal to 150% of the estimated cost of the improvements to Lemay Avenue. The estimate shall be prepared by the Developer and submitted to the Director of Engineering for review and approval. Said cash guarantee shall be released by the City upon satisfactory completion of the construction work and acceptance by the City. (iv) The approval of plans for this development are based on the assumption that the previously approved development, Harmony Market P.U.D., Second Filing, would be completed prior to, or concurrently with, this development. If said Second Filing improvements are not completed and accepted by the City prior to the issuance of a certificate of occupancy for this development, then the Developer shall be responsible for the completion of the following items prior to the issuance of the certificate of occupancy. (1) Oakridge Drive shall be constructed from its existing terminus west of Lemay Avenue to the west end of this development. The street improvements shall be constructed in accordance with the approved utility plans for the Harmony Market P.U.D., Second Filing, with said utility plans to be revised to accommodate the temporary deadend of Oakridge at the west end of this development. The -5- street improvements shall include all traffic control signs, striping and barricades. (2) The sidewalk along the north side of Oakridge Drive west of this development to connect to the Harmony Market P.U.D., Second Filing, shall not be constructed by the Developer, and the Developer shall deposit with the City sufficient funds to pay for the cost of construction of said sidewalk by the City at such time the remainder of Oakridge drive is connected from Harmony Market, Third Filing to Harmony Market, First Filing. (3) One of two temporary asphalt paved driveways intended to connect the Second Filing with this development as shown on the approved utility plan, shall be further extended to the west to connect with the Harmony Market P.U.D., First Filing. Prior to the construction of the extension of said temporary driveway, the site plan and utility plans for this development shall be revised to show the design for said driveway. E. Hazards and Emergency Access. (i) No combustible material will be allowed on the site until a permanent water system is installed by the Developer and approved by the City. (i i) The Developer shall provide an accessway to any building under construction, adequate to handle any emergency vehicles or equipment, and to properly maintain such accessway at all times. Such accessway shall be at a minimum 20' wide with 4" aggregate base course material compacted according to City Standards and with an 80' radius turnaround at the building end of said accessway. (iii) The issuance of any footing and foundation 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 requirement as set forth in Section 29-678 of the Code of the City. F. Payback (i) Prior to the issuance of a building permit, the Developer shall reimburse the City for the Developer's proportionate share of the total actual costs to construct water and sewer lines located in Oakridge Drive to the extent that there are existing reimbursement agreements at the time of issuance of said building permit supporting and justifying the collection of such reimbursement to the City. The Developer's share of the total actual cost shall be based upon the proportion of Oakridge Drive fronting on the Developers property (as the numerator) in relation to the total frontage of Oakridge Drive in which said lines are constructed (as the denominator). 10 3. 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 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 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 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 erodible 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 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. 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 on any replat 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. -7- 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 real property herein described and shall be binding upon the parties hereto, their personal representatives, heirs, successors, grantees and assigns. 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 real property herein described, as well as any assignment of the Developer's rights to develop such property under the terms and conditions of this Agreement. J. In the event the Developer transfers title to such real property and is thereby divested of all equitable and legal interest in said 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 and condition of this Agreement shall be deemed to be a material element hereof. In the event either party shall fail or refuse to perform according to the terms of this Agreement, such party may be declared in default. In the event a party has been declared in default hereof, such defaulting party 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'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 3 E of this Agreement. -8- APPROVED AS TO FORM: Direct 'Engineering 'vUU �aj �Ai-� City Attorney THE CITY OF FORT COLLINS, COLORADO A Municipal Corporation By: A(Ai ity Manager DEVELOPER: NASH FINCH COMPANY, a Delaware Corporation 1 R. N. mmel 'President AT EST: J44 nn�0 (corporate seal) Y7 L , J Norman R. Soland, Se retary OWNER: OAK FARM INC., a Delaware Corporation BY,0�2 K1e� ATT S�T:� Michael S. Bryne resident R berta S. Martin, Secretary (corporate seal) 0