HomeMy WebLinkAboutSUNSTONE VILLAGE PUD FIFTH - Filed DA-DEVELOPMENT AGREEMENT - 2004-03-01DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this �% ��— day of����/�I4i�
19�k,, by and between THE CITY OF FORT COLLINS, COLORADO, a Munic
pal Corporation, hereinafter referred to as "The City" and SUPER GROUP,
INC., a Colorado Corporation, hereinafter referred to as "the Developer".
WITNESSETH
WHEREAS, the Developer is the Owner of certain property situated in the
County of Larimer, State of Colorado, and legally described as follows, to -wit:
SUNSTONE VILLAGE 5TH SUBDIVISION P.U.D., being a
Subdivision of a portion of the Southwest Quarter of Section
32, Township 7 North, Range 68 West of the 6th P.M., City
of (Fort Collins, County of Larimer, State of Colorado.
WHEREAS, the Developer desires to develop said property and has sub-
mitted 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 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
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.
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:
I. 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.
EXH'.9IT B - Pace 2
I I -_:•1 DEiPT1ON
3. Rir.h',-c`-way F, easement aceuisition
(a)
(b)
Sub-Tctal
Prcressinr,al Design
Other
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Be
Prepared by: Title:
Address:
EXHIBIT C
PAYMENT AGREEMENT
Warren Trunk Sewer Line
THIS AGREEMENT, signed this
made by the City of Fort
Corporation ("the City"); and
Corporation ("Super Group"); and
✓i_S% day of February, 1990, is
Collins, Colorado, a Municipal
Super Group, Inc., a Colorado
WITNESSETH that the parties agree as follows:
1. Recitals of Fact. Super Group has just purchased a 56.9
acre tract of vacant land in Section 32, Township 7 North, Range
68 West of the 6th P.M. ("the Property") that is legally described
in Exhibit A hereof. The Property is located in southeast Fort
Collins. Super Group intends to develop the Property with
residential and commercial uses over the next several years.
The Property is served by the Warren Trunk Sewer Line ("the
Line"). The Line was installed approximately twelve years ago.
Under date of September 8, 1977, the then owners of the
various parcels of land that were to be served by the Line signed
an Agreement: with the City ("the Agreement"), in which said owners
agreed to repay the cost of installing the Line on a pro-rata
basis among the parcels served by it. As each such parcel
developed, payment was due to the City for the developed portion;
the entire balance of such payments was due from all of said
owners by not later than September 8, 1987, regardless of the
status of development on each Parcel on said date.
The Property lies within Tract G referred to in the
Agreement.
The Agreement was signed by T.K.G. Investments, a limited
partnership, which was a predecessor in title to Super Group. The
Agreement was never recorded, and controversies have arisen
between the City and Super Group regarding the Agreement's binding
effect on Super Group.
The parties mutually desire to make this Payment Agreement to
resolve all controversies among them and to set forth an orderly,
equitable payment schedule for the Property.
2. Payment Schedule. The total amount due for the Line
from the Property is $14,892.45. Of said sum, Super Group has
paid $5,286.95 (which relates to the first portion of the Property
which Super Group intends to develop, to be known as Sunstone
Fifth Filing), to the City upon the signing of this Agreement.
1
The $9,605.50 balance shall accrue interest at the rate of
ten percent (10%) per annum, commencing February 1, 1990, and
continuing until said obligation has been paid in full. All
payments received thereon shall be applied first to interest
outstanding on the date of payment, then to principal.
Payments shall be due from Super Group as and when successive
phases of development occur on the Property. Each such payment
shall be due at or prior to the issuance of the first Building
Permit, for each newly platted portion of the Property. Each
payment shall consist of interest to date, plus $261.73 per acre
for all land included within the gross area covered by the Plat
involved.
Notwithstanding any implication to the contrary in the
foregoing, the entire then remaining balance of principal and
interest shall be due and payable in full on February 1, 1995, if
not sooner paid.
Super Group shall have the right, in its discretion, to
prepay said obligation in whole or in part at any time, without
penalty. Any partial prepayment of principal shall apply to the
next Parcel to be platted. The City shall have no obligation to
issue building permits within any newly platted parcel, until the
payment of principal and interest required hereby has been paid in
full, for such newly platted parcel.
3. Other Charges. The payment specified in Paragraph 2
hereof shall pay in full for installation of the Line and shall
satisfy all obligations of Super Group, and of all subsequent
owners of the Property, for such installation, under any theory
whatever, whether or not such theory is based upon the Agreement.
Nothing in this Agreement shall relieve Super Group of its
obligation to pay for the installation of subsidiary sewer lines
connecting with the Line, and for sewer tap fees. All such
connecting costs and tap fees shall be computed and paid in
accordance with the City's policies for said items, then in effect
for all developers.
4. Binding Effect. This Agreement shall inure to the
benefit of, and shall be binding upon, the parties, their
respective successors and assigns. The provisions hereof shall
run with the land described herein and shall be binding upon all
future owners hereof. The transfer, conveyance, or encumbrance of
the Property shall not accelerate the due date of the obligation
set forth in Paragraph 2 hereof.
5. Time of the Essence
this Agreement.
Time shall be of the essence of
2
6. Attorneys' Fees Upon Default. In any litigation brought
to enforce this Agreement, the prevailing party shall be entitled
to judgment against the non -prevailing party for all reasonable
expenses of such litigation, including, but not limited to, court
costs; deposition and other discovery expenses; expert witness
fees; witness fees; reasonable attorneys' fees; and such other
expenses related to the litigation as the court may award.
IN WITNESS WHEREOF, the parties hereto have signed this
Payment Agreement on the day and year first above written.
Approved as to Form:
City Attorney
STATE OF COLORADO )
)ss.
COUNTY OF LARIMER )
CITY OF FORT COLLINS, a Municipal
Corporation
ABY: C
Steven C. Burkett, City Manager
ATTEST:
Wanda M. Kraji e] City Clerk
SUPER GROUP, INC., a Colorado
Corporation
BYC---%2.
Lawrence M. Kendall, President
ATTEST: / _
Susan J. Ewing, Sec tart'
The foregoing instrument was acknowledged before me this
G day of February, 1990, by Steven C. Burkett, City Manager,
and Wanda M. Krajicek, City Clerk, of the City of Fort Collins, a
Municipal Corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF COLORADO )
)ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this
day of February, 1990, by Lawrence M. Kendall, President,
and Susan J. Ewing, Secretary, of Super Group, Inc., a Colorado
Corporation,.
Witness my hand and official seal.
My commission expires:
F. LeAnn
Payton
C
4
Notary Public
EXHIBIT "A
A tract of land located in the West half of Section 32, Township
7 North, Range 68 West of the Sixth Principal Meridian, City of
Fort Collins Larimer County, Colorado, being more particularly
described as follows:
Considering the West line of the Southwest quarter of the said
Section 32 as bearing North 00004144" East and with all bearings
contained herein relative thereto:
Commencing at the Southwest corner of the said Section 32; thence
along the said West line, North 00004144" East 599.65 feet; thence
leaving the said West line, South 89055116" East 70.00 feet to the
easterly Right-of-way of Timberline Road as described in Reception
No. 90001335 in the office of the Clerk and Recorder of said county
and to the TRUE POINT OF BEGINNING of this description; thence
along the said Right -of -Way of Timberline Road, North 00°04'44"
East 2017.71 feet; and again 23.54 feet along the arc of a curve
concave to the Southeast having a central angle of 90018112" a
radius of 15.00 feet, the long chord of the said curve bears North
45013150" East 21.27 feet to the boundary of the proposed plat of
Sunstone Village 5th Subdivision; thence along said boundary the
following four (4) courses and distances (1) South 89037104" West
25.05 feet; (2) South 04022140" West 400.60 feet; (3) North
00004144" East 423.98 feet to a point on the North line of
Southwest quarter of said Section 32; (4) North 00004117" West 9.65
feet to the North line of that certain parcel of land as described
in Book 2253 at Page 2341 as recorded in the office of the Clerk
and Recorder of said County; thence along said North line South
89037104" East 1293.14 feet to the easterly boundary of that
certain tract of land as described in Book 2253 at Page 2341 of the
records of the said Clerk and Recorder; thence South 00002150" East
11.47 feet to the Northeast corner of the West half of the
Southwest quarter of said Section 32; thence continuing along the
said boundary, South 00002155" West 1961.36 feet; thence leaving
the said boundary, North 88036140" West 169.70 feet; thence North
82009150" West: 542.21 feet; thence North 42005101" West 86.16 feet;
thence South 32023147" West 137.93 feet; thence 241.62 feet along
the arc of a curve concave to the Northwest having a central angle
of 57040157" a radius of 240.00 feet, the long chord of the said
curve bears South 61014'16" West 231.55 feet; thence North
89055116" West 212.85 feet to the point of beginning.
The above described tract contains 56.9293 acres more or less gross
and is subject to all easements and rights -of -way now existing or
of record.
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 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. 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 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 development on file with City.
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 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
subjected 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.
-2-
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 estimated cost of the improvements
on the attached Exhibit "B", which improvements 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.
(i) The Developer shall reimburse the City the
sum of $3,668.25
for
the cost of installation
of the 12" water
line adjacent to
the
north property line of
this development.
The amount is
past
due and must be paid
prior to beginning
construction of
the
public improvements for
this development.
B. Sewer lines.
(i) The Developer shall reimburse the City the sum of $5,286.25 for
the cost of installation of the 27" Warren Lake Trunk Sewer
which serves this development. (The Developer owns other lands
of which this development is part, and the total amount due to
-3-
the City from the Developer for the total parcel heretofore
purchased by the Developer is $14,892.45.) The terms of the
developer's obligation to make the aforesaid payment are more
particularly set forth in that certain payment agreement, of even
date herewith, attached hereto and incorporated herein as
Exhibit "C".
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 more than eighteen building
permits. Completion of improvements shall include the
certification by a licensed professional engineer that the
drainage facilities which service this development have been
constructed in conformance with the approved plans.
(i i) 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 by the
Developer prior to the issuance of any building permit.
(iii) The Developer and the City agree that the storm drainage system
for this development contains some features that make it
important both to construct the facilities according to 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 43, 44, 56, and 57:
The certification required pursuant to sub -paragraph (i) above
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. In addition, houses constructed on the above lots shall be
constructed at, or above, the specified minimum elevations
shown on the approved utility plans. To ensure compliance with
said elevation requirement, a certification of the elevation by a
licensed professional engineer or land surveyor must be
submitted to the City prior to the issuance of a certificate of
occupancy for any such house.
D. Streets.
(i) It is agreed that no street oversizing reimbursement is due the
Developer for this development.
(ii) No Building Permit shall be issued for Lot 72 until the street
improvements are completed on the Summerstone Court frontage.
10
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 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.
-5-
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.
This Agreement shall run with the real property herein above
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
after described, as well as any assignment of the Developer's rights to
develop such property under the terms and conditions of this
Agreement.
1. 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 thereof. 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 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.
so
APPROVED AS TOFORM:
z. JCL_ '
D�cctor Engineering
i1 % A
City Attorney
THE CITY OF FORT COLLINS, COLORADO
A Munici al Corporatio
By: c-
City Manager
DEVELOPER:
SUPER GROUP. INC.
a Co rporation
By:
Lawrence M. Kendall
President
AT'
['EST
By:� (corprate seal)
Su an J. Ewing
Secretary
-7-
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.
Not Applicable.
4. Storm drainage improvements to be installed out of sequence.
Not applicable.
EXHIBIT "6"
The Develo;,ment Agreement for Sunstone Village 5th Subdivision, P.U.D. - Not Applicable.
CCST 7 STI6:-TE =^R
Include only those major storm drainage basin improvecents require+ by an adopted basin
raster plan.
GESC';:P T IC'!
GU ;T:if C"IT C^ T ^ 11 r--T
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(d)
Ea.
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2
Sub -Total
Channel excavation, detention pord
excavation and riprap
Sub -Total
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