HomeMy WebLinkAboutSTONE RIDGE PUD FOURTH SECOND PHASE - Filed DA-DEVELOPMENT AGREEMENT - 2004-02-26DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this `'?' ` day of /-X,-* /
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by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation,
hereinafter referred to as the "City"; and THE KAPLAN COMPANY, INC., a Colorado
corporation, hereinafter referred to as the "Developer".
WITNESSETH:
WHEREAS, the Developer has entered into an agreement with the owner to
acquire ownership of certain real property situated in the County of Larimer, State of
Colorado, (hereafter referred to as the "Property") and legally described as follows:
Stone Ridge P.U.D., Fourth Filing, Phase 2, a tract of land located in the
Southeast quarter of Section 29, 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 oi: 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, THE=REFORE, 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
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: Lester M. Kaplan
The Kaplan Company, Inc.
1060 Sailors Reef
Fort Collins, Colorado 80525
With a copy to: n/a
Notwithstanding the foregoing, if any party to this Agreement, or their
successors, grantees or assigns, wishes to change the person, entity or address to
which notices under this Agreement are to be sent as provided above, such party shall
do so by giving the other 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
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
im
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.
ATTEST:
CITY CLERK --
APPROVED AS TO CONTENT:
Director of Engineering
APPROVED AS TO FORM:
As istant City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By:
CitykManager
DEVELOPER:
THE KAPLAN COMPANY, INC., a Colorado
corporation
Lester M. Kaplan, resident
ATTEST:
Ek
P ter aumgart ssistant Secretary (corporate seal)
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.
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EXHIBIT "B"
NOT APPLICABLE
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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
until all utility lines to be placed therein have been completely installed, including all
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individual lot service lines leading in and from the main to the property line.
G. The installation of all utilities shown on the utility plans shall be inspected by
the Engineering Department of the City and shall be subject to such department's
approval. The Developer agrees to correct any deficiencies in such installations in
order to meet the requirements of the plans and/or specifications applicable to such
installation. In case of conflict, the utility plans shall supersede the standard
specifications.
H. All storm drainage facilities shall be so designed and constructed by the
Developer as to protect downstream and adjacent properties against injury and to
adequately serve the property (and other lands as may be required, if any). The
Developer shall meet or exceed the minimum requirements for storm drainage facilities
as have been established by the City in its Drainage Master Plans and Design Criteria.
The Developer does hereby indemnify and hold harmless the City from any and all
claims that might arise, directly or indirectly, as a result of the discharge of injurious
storm drainage or seepage waters from the Property in a manner or quantity different
from that which was historically discharged and caused by the design or construction of
the storm drainage facilities, except for (1) such claims and damages as are caused by
the acts or omissions of the City in maintenance of such facilities as have been
accepted by the City for maintenance; (2) errors, if any, in the general concept of the
City's master plans (but not to include any details of such plans, which details shall be
the responsibility of the Developer), and (3) specific directives that may be given to the
Developer by the City. Approval of and acceptance by the City of any storm drainage
facility design or construction shall in no manner be deemed to constitute a waiver or
relinquishment by the City of the aforesaid indemnification. The Developer shall
engage a Colorado licensed professional engineer to design the storm drainage
facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be
intended for the benefit of the City, and subsequent purchasers of property in the
development.
I. The Developer shall pay storm drainage basin fees in accordance with
Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for
credit or City repayment under the provisions of Chapter 26 are described together with
estimated cost of the improvements on the attached Exhibit "B," which improvements, if
applicable, shall include right-of-way, design and construction costs. See Section II.C,
Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions.
J. The Developer shall provide the Director of Engineering with certified Record
Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of any
phase of the construction.
K. The Developer specifically represents that to the best of its knowledge all
portions of the Property dedicated to the City associated with this development are in
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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 indernnify and hold harmless the City from any liability whatsoever that
may be imposed upon the City by any governmental authority, pertaining to the
disposal of hazardous substances, pollutants or contaminants, and cleanup
necessitated by leaking underground storage tanks, excavation and/or backfill of
hazardous substances, pollutants or contaminants, or environmental cleanup
responsibilities of any nature whatsoever on, of or related to any property dedicated to
the City in connection with this development. The Developer further agrees to
indemnify and hold harmless the City from any claims or actions based directly,
indirectly or in any manner on any of the aforementioned environmental risks brought
against the City by third parties arising as a result of the dedication of portions of the
Property to the City in connection with this development. Said indemnification shall not
extend to claims, actions or other liability arising as a result of any hazardous
substance, pollutant or contaminant generated or deposited by the City, its agents or
representatives, upon portions of the Property dedicated to the City in connection with
this development.
II. Special Conditions
A. Water Lines
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 Developer's portion of the cost of the 24" water main in County Road Nine
adjacent to 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 improvernents, 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 sixteen (16) building permits. Completion of improvements shall
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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 (2) weeks
prior to the date of issuance for any building permit greater than said sixteen (16)
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 $8,114.00 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
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 15 through 46of 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 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.
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4. Lots 34 and 35 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 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.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to reimburse
the Developer for oversizing public street improvements along Horsetooth Road and
County Road Nine for those portions of said street abutting the Property as shown on
the approved utility plans. Reimbursement for Horsetooth Road and County Road Nine
shall be for oversizing the sidewalks from residential (access) standards to arterial
street 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).
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2. It is understood that the streets to be constructed as described in this
Section II(D) 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 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).
4. The Developer and the City agree that the street within this development
shall be a private street owned and maintained by the Developer. It is agreed that the
construction of said private street shall be inspected by the City, as if it were a public
street, to assure that the private street is constructed in accordance with the approved
utility plans for this development and in accordance with City construction standards for
public streets. Said street shall be constructed in accordance with City standards in
every respect except for the following: (1) Street width shall be twenty-eight (28) feet;
(2) No sidewalk shall be constructed; and (3) All driveways shall be ramped for
handicapped accessibility to the street surface. The Developer, at its expense, shall
have all testing for the construction process for said private street performed by a
Colorado licensed soils engineer and provide copies of all test results to the City for the
City's further benefit to assure that said private street is constructed to City construction
standards.
5. No building permit for the construction of any structure within this
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 approved by the City. No certificate of occupancy
for any structure within Block 2 of this development shall be issued until the private
street serving said structure has been completed with the full pavement section.
E. Groundwater.
1. The Developer and the City recognize that this development has some
water features and a detention pond adjacent to or near this development such that
seepage from said water features and or detention pond may impact the ground water
levels in this development. Accordingly, it is agreed that the City shall not be
responsible and that the developer hereby indemnifies the City for any damages or
injuries sustained in the development as a result of groundwater seepage, whether
resulting from groundwater flooding, structural damage or other damage unless such
damages or injuries are sustained as a result of the City's failure to properly maintain
its storm drainage facilities in the development.
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
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 respective personal representatives,
heirs, successors, grantees and assigns. It is agreed that all improvements required
pursuant to this Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest within the meaning
of this paragraph shall specifically include, but not be limited to, a conveyance or
assignment 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
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.
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