HomeMy WebLinkAboutHUNTINGTON HILLS PUD SECOND - Filed DA-DEVELOPMENT AGREEMENT - 1992-10-09DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this_day of riGc'L t
199 71 by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City";
HUNTINGTON HILLS CORPORATION, a Colorado corporation, hereinafter
referred to as the "Developer" and 327006 ALBERTA, LTD., a Canadian
corporation, hereinafter referred to as the "Owner."
WITNESSETH:
WHEREAS, the Developer has entered into an agreement with the
Owner to acquire ownership 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:
HUNTINGTON HILLS, FILING 2, being a portion of The Estates at
Huntington Hills, Filing One a Planned Unit Development,
situate :in the Northwest 1/4 of Section 12, Township 6 North,
Range 69 West of the 6th 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:
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'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.
ATTEST:
CITY CLFAZK
APPROVED AS TO CONTENT:
Di ector of Engine $i g
v
APPRO D AS TO FORM:
`� a
City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
4::�By:
City Manager
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DEVELOPER:
HUNTINGTON HILLS CORPORATION,
a Colorado corporation
Mar(?(Is Pal owitsh, President
ATTEST: /3
ichard B. Connell, Secretary
(corporate seal)
OWNER:
327006 ALBERTA, LTD.,
a Canadian corporation
G, W May�D\ rector
ATTEST:
By:
Name:
Title:
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(corporate seal)
►z.uR
EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of
sequence.
Not Applicable.
3. Schedule of street improvements to be installed out of
sequence.
The improvements to Skyway Drive shall be done in accordance
with the provisions stated in Sections II.D.2. and II.D.3. of
this Agreement.
4. Schedule of storm drainage improvements to be installed out
of sequence.
Not Applicable.
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EXHIBIT "B"
NOT APPLICABLE
fi1g]
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
and utility plans, and other approved documents pertaining to this
development on file with the City.
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F. Street improvements (except curbs, gutters and walks)
shall not be installed until all utility lines to be placed therein
have been completely installed, including all individual lot
service lines leading in and from the main to the property line.
G. The installation of all utilities shown on the utility
plans shall be inspected by the Engineering Department of the City
and shall be subject to such department's approval. The Developer
agrees to correct any deficiencies in such installations in order
to meet the requirements of the plans and/or specifications
applicable to such installation. In case of conflict, the utility
plans shall supersede the standard specifications.
H. All storm drainage facilities shall be so designed and
constructed by the Developer as to protect downstream and adjacent
properties against injury and to adequately serve the Property (and
other lands as may be required, if any). The Developer has met or
exceeded the minimum requirements for storm drainage facilities as
have been established by the City in its Drainage Master Plans and
Design Criteria. The Developer does hereby indemnify and hold
harmless the City from any and all claims that might arise,
directly or indirectly, as a result of the discharge of injurious
storm drainage or seepage waters from the development in a manner
or quantity different from that which was historically discharged
and caused by the design or construction of the storm drainage
facilities, except for (1) such claims and damages as are caused by
the acts or omissions of the City in maintenance of such facilities
as have been accepted by the City for maintenance; (2) errors, if
any, in the general concept of the City's master plans (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 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
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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 pursuant to 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 pursuant to this development. Said
indemnification shall not extend to claims, actions or other
liability arising as a result of any hazardous substance, pollutant
or contaminant generated or deposited by the City, its agents or
representatives, upon portions of the Property dedicated to the
City pursuant to this development.
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 needed for all lots located
south of Saturn Drive shall be completed by the Developer in
accordance with the approved plans prior to the issuance of more
than 17 building permits for all lots south of Saturn Drive. The
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Developer and the City agree that all on -site and off -site storm
drainage improvements needed for all lots located north of Saturn
Drive shall be completed by the Developer in accordance with the
approved plans prior to the issuance of more than 10 building
permits for all lots north of Saturn Drive. Completion of
improvements shall include the certification by a licensed
professional engineer that the drainage facilities which serve this
development have been constructed in conformance with said approved
plans.
2. The Developer agrees to provide and maintain erosion
control improvements as shown on the approved utility plans to
stabilize all over -lot grading in and adjacent to this development.
The Developer shall also be required to post a security deposit(s)
prior to beginning construction of the various phases (defined on
the approved utility plans for this development) to guarantee the
proper installation and maintenance of the erosion control measures
shown on the approved Plan, for that particular Phase being
developed. Said security deposit(s) shall be made in accordance
with the criteria set forth in the Storm Drainage Design Criteria
and Construction Standards, but shall be done on a phased basis.
The Developer shall submit the proposed phasing and proposed
security deposit in connection with each designated phase of
construction.
3. The Developer and the City agree that the storm
drainage system for this 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 124, 125, 141, 142, 147, 148, 201 and 202:
The drainage improvement system required to be constructed on
the above Lots shall be completed in accordance with the
approved utility plans and said completion shall be certified
as being in accordance with said plans by a licensed
professional engineer. Said certification shall be received
by the City prior to the issuance of a building permit 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.
D. Streets.
1. The Developer and the City agree that no street
oversizing reimbursement is due the Developer for this development.
2. The Developer and the City agree that the Developer
is obligated to construct certain public improvements on Skyway
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Drive adjacent. to this development consisting of one-half of the
local street and other related improvements. In lieu of
constructing said improvements, the Developer shall have the option
(which the Developer has hereby exercised) to deposit with the City
cash to be used by the City to pay for the future construction of
said improvements. The amount of said cash shall be equal to the
estimated cost to construct said improvements, which estimate shall
be prepared by the Developer and approved by the City, plus 10% to
cover the cost. of construction engineering, surveying and project
management. Said amount inclusive of the 10% has been determined
to be $49,500.00. Since the Developer has exercised the aforesaid
option, the Developer shall pay the City $49,500.00 for its share
of the Skyway Drive public improvements. The method of making said
payment to the City shall be that the Developer will pay the amount
of $300.00 per lot with the issuance of each building permit for
each lot commencing with the first building permit issued in this
development and until such time as the Developer and/or its
successors or assigns, has obtained 66 building permits. At the
time of issuance of the 67th building permit for a lot in this
development, the remaining balance of the Developer's contribution
($29,700.00) shall be due and payable in full and neither the 67th
building permit nor any subsequent building permits shall be issued
until said sum is paid to the City. If any portion of said sums
are paid by the Developer beyond the year 1992, the Developer
agrees to pay the amount stipulated plus an additional amount added
to recognize the effects of inflation which "Inflation Factor"
shall be added each year until payment is completed in full. The
inflation factor (Inf. Fac.) for each year's payments shall be
calculated using the construction cost index for Denver as
published in 'the Engineering News Record (ENR) for January, 1993,
as the base index (I -base) and the same index published in the ENR
for the January in each succeeding year immediately preceding
payment (I -year of payment). The formula for calculating said
inflation factor shall be as follows:
Inf. Fac. _ (I -year of payment) -(I -base).
(I -base)
Said amount to be added to each $300.00 payment and to the final
payment of $29,700.00 to compensate for inflation shall be equal to
the amount to be paid times the inflation factor. The amounts
added to compensate for inflation shall not count for reducing the
total (principal) amount due. Upon receipt of full payment to the
City by the Developer, the Developer's obligation for the Skyway
Drive improvements shall be deemed to be satisfied.
Any interest earned by the City as a result of said deposits shall
be the property of the City to cover administration and inflation
in order to better assist the City in making reimbursement to the
party that constructs said improvements.
If the Developer is the party that constructs said improvements,
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upon completion of said improvements, including acceptance by the
City, the City shall return to the Developer the amount deposited
plus any interest earned by the City as a result of said deposit,
less 3% of the total amount returned, (which includes said amount
deposited plus the interest earned by the City) to be kept by the
City to cover its costs for administration of said deposits.
If said improvements are not scheduled for construction as
determined by the City, within ten years from the date of the
Developer's final deposit to the City, the City shall return the
amount deposited to the Developer the amount deposited plus
interest earned by the City as a result of said deposit, less 3% of
the total amount returned, (which includes said amount deposited
plus the interest earned by the City) to be kept by the City to
cover its costs for administration of said deposits.
If it is determined by the City that said improvements are not
required to be constructed, because development of property
adjoining this development to the south changes the alignment of
Skyway Drive such that Skyway Drive no longer adjoins this
development, the City shall return said deposits made by the
Developer to the Developer following final City Planning and Zoning
Board approval for development of said adjoining property to the
south. Said deposits returned to the Developer shall include such
interest earned by the City, less 3% of the total amount returned,
(which includes said amount deposited plus the interest earned by
the City) to be kept by the City to cover its costs for
administration of said deposits.
3. The Developer shall construct the permanent curb,
gutter and sidewalk on Skyway Drive adjacent to lot 106 in
accordance with the approved utility plans prior to the issuance of
any building permit for lot 106. The City agrees that improvements
required to be completed prior to the issuance of building permits
for lots 106-115 inclusive, are completed and in place in
accordance with all City requirements except for construction of
the aforesaid curb, gutter and sidewalk on Skyway Drive adjacent to
lot 106.
E. Previous Development Agreement
1. The Developer and the City agree that the previous
Development Agreement dated May 14, 1984, for this development
shall be void following the execution of this Agreement.
F. Wetland Mitigation.
1. The Developer and the City agree that the Developer
shall be responsible for taking mitigation measures to compensate
for the proposed disturbance of the estimated 1.06 (more or less)
acres of wetlands on this development site. Said mitigation
measures shall be to restore, reclaim or create wetlands through
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the establishment of wetland vegetation and hydrologic regime on an
acre for acre basis for the area actually disturbed. If said
mitigation cannot be fully accomplished on the development site, it
shall be accomplished in conjunction with development of future
phases of the Huntington Hills master plan area. In order to
create the legal right and duty to fulfill the off -site obligation,
the City and the owner of the remaining area in the Huntington
Hills master plan area have entered into a separate agreement
(attached Exhibit "C") to assure the Developer's full obligation
and ability to provide all mitigation measures required off -site.
2. The establishment by the Developer of all wetlands
shall be monitored by the City during construction and shall
require approval of and acceptance by the City. Said acceptance
shall include at least a two year period needed to assure that
vegetation and hydrologic regime are fully established.
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 shall require its
subcontractors to cooperate with the City Is 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.
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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 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
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, or a portion thereof, 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
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