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HomeMy WebLinkAboutTIMBER CREEK PUD - Filed DA-DEVELOPMENT AGREEMENT - 2004-03-03DEVELOPMENT AGREEMENT / THIS AGREEMENT, made and entered into this � �?L-day of FJimix,U 199 \ by and between the CITY OF FORT COLLINS, COLORADO, a/ Municipal Corporation, hereinafter referred to as the "City" and STROMBERGER LAND, 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, (hereafter referred to as the "Property") and legally described as follows, to wit: TIMBER CREEK P.U.D., FIRST FILING, a Tract of land located in the West :Half of Section 5, Township 6 North, Range 68 West of the 6th 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 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: I. General Conditions 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. A�T ES-- f1� CITY CLERK APPROVED AS TO CONTENT: Ditector of Engineerii APPROV ,�IAS TO FjORM: Attorney THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: ) I 'It1 ,Zity Mana er DEVELOPER: Stromberger Land, Inc., a Colorado corporation By: �! Davi ` veri t, President ATTEST: By: Gary der, Secretary/Treasurer (corporate seal) 10 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,. Timberline Road improvements will be completed by separate plans and in conformance with section II.D. 1, 2, 3, 4 and 5 of this Agreement. 4. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. 11 EXHIBIT "B" NOT APPLICABLE at this time. This Exhibit shall be added by an amendment to this Agreement in accordance with paragraph II.C.5. of this Agreement. 12 A. The germs 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 nine hundred feet (9001) 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 E development on. file with the City. F. Street improvements (except curbs, gutters and walks) shall not be installed until all utility lines to be placed therein have been completely installed, including all individual lot service lines leading in and from the main to the property line. G. The installation of all utilities shown on the utility plans shall be inspected by the Engineering Department of the City and shall be subject to such department's approval. The Developer agrees to correct any deficiencies in such installations in order to meet the requirements of the plans and/or specifications applicable to such installation. In case of conflict, the utility plans shall supersede the standard specifications. H. All ;storm drainage 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 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. 3 J. The Developer shall provide the Director of Engineering with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construction. 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 shall be completed by the Developer in accordance with the approved plans prior to the 4 issuance of more than 38 building permits. 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. Said certification shall be submitted to the City at least two weeks prior to the issuance more than said 38 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 $85,215.00 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 Storm Drainage Design Criteria and Construction Standards. 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 6 through 15, 28 through 31, 60 through 62, 71 through 74, 77 through 97, 103 through 107 and 136 through 152: 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. 4. Lots 33 through 37, 64 through 70 and 98 through 101 are adjacent to a major storm water channel, and it is agreed that it is of the utmost importance that no storm water from said channel enters houses built on said lots. In order to ensure that houses built on said lots are constructed at an elevation that said storm water cannot enter, the Developer shall provide certification from a licensed professional engineer that the lowest opening to any such house is at or above the minimum allowable elevation prior to the issuance of a certificate of occupancy for each of said lots. Said minimum allowable elevation shall be determined to be no less than the maximum water surface elevation plus one foot of freeboard in the channel adjacent to the respective lot as shown on the approved utility plans. 5 5. The Developer and the City agree that the Developer shall construct regional storm drainage improvements along the McClelland's drainage way. It is agreed that in order for the Developer to be entitled to reimbursement from the City for any expenses incurred in constructing said improvements Exhibit "B" describing the improvements and showing the cost thereof must be completed by amendment to this Agreement prior to the commencement of any construction (excluding grading) of said improvements by the Developer. 6. The Developer and the City agree that maintenance of the regional channel known as the McClelland's Drainageway which traverses this development shall be the sole responsibility of the Developer. It is understood that maintenance shall include, without limitation, maintenance of the physical channel facility as well as the vegetation. The facility maintenance shall include periodic cleanups so that the channel is free from any obstructions; maintaining and ensuring bank and channel stability; and maintaining all erosion control structures. The Developer understands that this maintenance responsibility shall be valid under all future conditions which may include an increase in sustained low flows due to new development upstream of this development. In the event of a major storm event that exceeds the 100 year design storm (defined in the City of Fort Collins Storm Drainage Criteria Manual) for this drainage facility, the City will restore the channel to a condition which complies with the then existing minimum City requirements for drainage and erosion protection. 7. The Developer and the City agree that the Developer shall be responsible to obtain the City's 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 Timberline Road for those portions of said street abutting the Property as shown on the approved utility plans. Reimbursement for Timberline Road shall be for oversizing the street from residential standards to arterial 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 sha1L have no obligation to make reimbursement payments 2 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). 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 improvements to Timberline Road, including related utility and storm drainage improvements, shall be completed prior to the issuance of more than 38 building permits. Notwithstanding the forgoing, the Developer shall have the option to postpone the construction of the above described improvements required on Timberline Road and obtain issuance of not more than 76 building permits for this development prior to the completion of said improvements, following the escrow of funds to be deposited with the City in the form of cash, bond, nonexpiring letter of credit or other form of City approved security sufficient to guarantee completion of said improvements. The escrow amount shall be 150% of the average of three, City approved, contractor bids for the improvements, excluding the street oversizing portion for which the Developer may be eligible for reimbursement. 4. The Developer and the City agree that no building permits shall be issued for lots 131, 132, 133 and 135 (all of 7 which lots have frontage on Timberline Road) until the street improvements on Timberline Road have been completed with at least the construction of curb, gutter and sidewalk, and said improvements have been approved by the City. 5. The Developer and the City understand that the Developer is a part of a group of land owners along Timberline Road who have contracted with a consulting engineer to design the street, water, sewer and storm drainage improvements to Timberline Road from the north side of the intersection of Harmony Road to a point approximately 3,500 feet south of Harmony Road, which includes the entire frontage of this development. Said design shall be completed and must receive City approval prior to beginning construction of said improvements. The cost for completing said design plans shall be shared between the City and the Developer in accordance with the City street oversizing policies and City Code requirements as are described in Section II.D.1 of this Agreement. 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 A 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. H. 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. 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 0