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HomeMy WebLinkAboutTOYS R US/WESTERN AUTO PUD - Filed OA-OTHER AGREEMENTS - 2004-03-05AGREEMENT THIS AGREEMENT is made and entered into this ��day of 1992, by and between The City of Fort Collins, Colorado, a municipal corporation, hereinafter referred to as "Applicant," and Larimer County Canal No. 2 Irrigating Company, a Colorado mutual irrigation company, hereinafter referred to as "Ditch Company." PROJECT DESCRIPTION A five {5} foot by twenty {20) foot three (3) sided box culvert as part of JFK Parkway Improvements is proposed to span the irrigation canal of the Ditch Company. This structure will be placed on footings located three (3) feet below the canal bottom. The structure will include wing walls, parapet walls, brick facing and tube railing. In addition, an eight {81 inch water line will be constructed along this length of the roadway terminating with a fire hydrant at the northwest corner of the box culvert. The plans and specifications for this portion of the JFK Parkway Improvements are attached hereto and made a part hereof. WITNESSETH WHEREAS, the Ditch Company is the owner of an irrigation ditch and the right-of-way therefor through land located as shown on Exhibit "A" attached hereto and made a part hereof by reference. WHEREAS, Applicant desires to construct a roadway across the Ditch Company's right-of-way and a box culvert to span the ditch, all in accordance with the details in Exhibit "A" attached hereto and made a part hereof by reference. Said Exhibit "A" consisting of 7 sheets with face sheet labelled Construction Plans for JFK Parkway, Bockman Drive to Larimer #2 Canal, Fort Collins, Colorado, September, 1991 , prepared by Parsons & Associates, Project 91.13 JFK; WHEREAS, Exhibit "A" sets forth all the plans and specifications and terms of this grant, and shall be in no way modified or changed by any subsequent or related plans or materials not included therein; and WHEREAS, the Ditch Company is willing to grant to Applicant this right upon the terms and conditions hereinafter expressed; NOW, THEREFORE, in consideration of the premises and the terms of the within Agreement, it is agreed, as follows: 1. The Ditch Company grants unto Applicant the right to install, construct and maintain the above described roadway and box culvert within the existing right-of-way of Ditch Company, and further grants unto the Applicant the right of ingress and egress to a part of its ditch as shall be reasonable and necessary for the exercise of the rights granted herein. CD CD 0 CD (A N 7 CD. CD c to CD 0 D r m m D 0 c z 0 m ca 0 x n c (D 0 0 W O O O O W W N N W — —I A Cl) mcnm o or N (D W 3 CL 77 (D (D 3 (D -Wo 90 D W n n 0 000 000000 G)-I OOOOOOOO C700 mA W r� " W �j "D-D(7nC'�Amm 0 W 0 W W o o O N W O W 0 0 o c7) 0 0 0 cn-0 W -0 -0 l 1 1 N' (D (n (D ((D (D (D (D 0 7 (DQ� W (D (D (D 1 n n D W . v m 3 (o < -o � (o m m 00 (D -i 7 N 7 0) N 0 O_ X ` N N 7 o n> D 7 <fl to 6s cn <n 1 1 1 _A _W _O _W _cn _� _O co _W W O A OD CO O 00 W N (D W CO Fq 0 0) O O a) 0 (D V A O (D co O O 0000000000 0000000000 fH 6s Q)EA 69 69 69 � W W -4 W N A W m W— U V (D N O (D (D N (D .P .A O A O N 0) 0) (0 W N A m 0 0 —O(n(no mA00 W 0 0 0 0 0 0 0 0 Efl (A EA Efl ,I Co W j (D v m(DIli (DAA .A m 0)(D WN A--O Ut UTO O W O O O O <fl ffl En EA m N A co (D IV 0 (D O A O N A m O O Ot A O 0 0000 ffl fA 69 Efl -' Efl - A POW ((n OAO m A w (D (D W A W (D W Om W (D Am V m W O N m (D W CO m O O O N� N �I O N O O O O N O Cl) O O O CD 3 O m^_ 0 O N w 0 s Z N Q (D z N O w FAA W V SCHRADER 61L April 20, 1994 P.O. Box 495 • Fort Collins, CO 80522 • (303) 484-1225 Matt J. Baker City of Fort Collins Engineering Dept. P.O. Box 580 Fort Collins, CO 80522-0580 Dear Matt, I have now completed the section of JFK, along with the required bridge, on the east side of Toys R-US. I would like to request reimbursement from the city for the street oversize funds due me. Please call if you need further information about this work. Best Regards, Wavre K. Schrader ��o y 3/, ys AGREEMENT This Agreement is made and entered into this 15� day of July, 1991, by and between the City of Fort Collins, Colorado, a municipal corporation ("City") and Wayne K. Schrader, Trustee ("Schrader"). WITNESSETH WHEREAS, Schrader is the owner of certain property in the City of Fort Collins, Colorado, situate in the County of Larimer, State of Colorado (the "Property") and legally described on Exhibit A attached hereto and by reference incorporated herein; and WHEREAS, Schrader has entered into an agreement with Toys "R" Us, Inc. ("Toys") whereby Schrader is obligated to construct certain street improvements to JFK Parkway adjacent to property which Toys is purchasing in the Toys "R" Us/Western Auto P.U.D.; and WHEREAS, the obligations of Schrader for the construction of such street. improvements are specifically described in a Development Agreement dated July 12, 1991, between the City, Schrader, Bockman and Woodland Paradise Corporation, the developer of the Toys "R" Us/Western Auto P.U.D. (the "Development Agreement"); and WHEREAS, the parties desire to incorporate certain provisions of the Development Agreement in this Agreement. NOW THEREFORE, the parties agree as follows: 1. The terms and conditions of Paragraph II D 7 of the Development Agreement are attached hereto as Exhibit B and by this reference fully incorporated herein. 2. 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. IN WITNESS WHEREOF, the parties hereto have signed this agreement the day and year first above written. ATTEST: iy -J:�FITY CLERK—' APPROVED AS 110 FORM: Director of EngineeniSg ,City Attorney THE CITY OF FORT COLLINS, COLORADO, a municipal corporation Steve Burkett, City Manager WAYNE K. SCHRADER, TRUSTEE '11T/ K. S rader, Trustee EXHIBIT A LEGAL DESCRIPTION That portion of Lots 7, 10, 12, and 13, OBSERVATORY HEIGHTS, situated in the Northwest Quarter of Section 36, Township 7 North, Range 69 West of the 6th Principal Meridian, City of Fort Collins, County of Larimer, State of Colorado said tract being more particularly described as follows: Considering the West line of the Northwest Quarter of said Section 36 as bearing South 000 29' 00" East and with bearings contained herein relative thereto; commencing at the Northwest corner of Section 36; thence continuing along the west line of the Northwest Quarter of said Section 36 South 000 29' 00" East a distance of 893.00 feet; thence North 850 08' 00" East a distance of 256.50 feet; thence South 700 51' 00" East a distance of 179.40 feet; thence South 890 02' 00" East a distance of 212.10 feet; thence South 850 47' 00" East a distance of 294.50 feet; thence South 520 53' 00" East a distance of 62.01 feet to a point on the Easterly Right -of -Way of JFK Parkway and the TRUE POINT OF BEGINNING; Thence continuing South 520 53' 00" East a distance of 123.19 feet; thence South 250 43' 12" East a distance of 52.25 feet; thence South 630 39' 55" West a distance of 6.93 feet; thence South 280 17' 15" East a distance of 78.00 feet; thence South 310 09' 15" East a distance of 116.20 feet; thence South 000 31' 00" East a distance of 35.51 feet; thence South 300 07' 00" East a distance of 275.11 feet to a point on the West Right -of -Way line of Landings Drive; thence continuing along said Right -of -Way South 000 16' 56" East a distance of 458.82 feet; thence Southwesterly along the arc of a curve to the right a distance of 248.53 feet having a central angle of 240 43' 20" a radius of 576.00 feet and a long chord which bears South 120 04' 08" West a distance of246.61 feet; thence South 240 25' 48" West a distance of 26.57 feet; thence Southwesterly along the arc of a curve to the right a distance of 23.56 feet having a central angle of 900 00' 0011, a radius of 15.00 feet and a long chord which bears South 670 25' 48" West a distance of 21.21 feet to a point on the North Right -of -Way line of Boardwalk Drive; thence North 650 34' 12" West a distance of 1.25 feet; thence North 000 29' 00" West a distance of 374.42 feet; thence South 890 13' 58" West a distance of 285.89 feet; thence North 000 31' 00" West a distance of 441.10 feet to a point on the Easterly Right -of -Way line of JFK Parkway; thence along said Right -of -Way North 100 39' 53" East a distance of 24.66 feet; thence Northerly along the arc of a curve to the left a distance of 221.57 feet having a central angle of 111, 17' 04"; a radius of 1125.00 feet and a long chord which bears North 050 21' 01" East a distance of 221.21 feet; thence North 000 17' 31" West a distance of 240.82 feet to the TRUE POINT OF BEGINNING. said parcel contains 273,865 square feet (6.28 acres) more or less, and is subject to all Rights of Way, easements or restrictions, now on record or existing. CAUTION: This legal description has been prepared as a general guideline for estimating areas for development agreements. This legal description was prepared using available information utilizing adjacent boundary surveys, plats, construction plans and County Assessor maps. This legal description is not created from a boundary :survey and no field survey work or title work was completed tc develop this description. This legal description should NOT be used to transfer ownership. EXHIBIT B Paragraph II D 7 to the Development Agreement between the City of Fort Collins, Colorado Woodland Paradise Corporation, Wayne K. Schrader and Fred H. Bockman 7. The Developer and the City agree that the Developer is obligated to construct the "local street portion" of the street improvements on the west half of JFK Parkway abutting the Property and extending across the north half of the street intersection with Bockman Drive. Such "local street portion" consists of the following: a. Twelve feet of required street base and asphalt; b. Two and one-half (2 1/2) feet of concrete curb and gutter; C. Four (4) foot wide concrete walk; d. Nineteen and one-half (19.5) feet (measured perpendicular to the centerline of JFK Parkway) of 5 ft. x 20 ft. box culvert for Larimer No. 2 Ditch, including parapet wall with hand rail and wing walls; e. Approximately three hundred fifty-five (355) feet of eight (8) inch water line of which approximately forty (40) feet will be inside a twenty (20) inch casing under the Larimer No. 2 Ditch. f. Storm drainage improvements substantially as shown on the utility plans for the development. g. Grading and relandscaping along the frontage of the JFK Parkway street improvements. The City agrees that, upon submission and approval of detailed engineering plans and design for such local street portion of the JFK Parkway street improvements, the Developer's obligation under this Paragraph 7 shall be limited to completion of such improvements in accordance with such approved engineering plans and design. In lieu of the Developer constructing said improvements, Wayne K. Schrader, Trustee ("Schrader") who is the owner of the property abutting the east half of JFK Parkway has agreed to construct and pay for the improvements in accordance with an agreement between Schrader and Toys "R" Us, Inc. ("Toys") and a separate agreement with the City. Pursuant to said agreements, Toys is required to provide a letter of credit to Schrader. Schrader's obligation shall only be in effect after the letter of credit is provided. Therefore, no certificate of occupancy will be issued on the building improvements of Toys until the required letter of credit has been provided to Schrader. Schrader's obligation to install and pay for the local street share of such street improvements shall continue for a period of twenty (20) years from the date of this agreement. At the end of said twenty (20) year period, Schrader's obligation hereunder shall cease and the property owner abutting JFK Parkway shall become obligated for the cost of construction of the local street share of the improvements and such owner shall be required to participate in any street improvement district formed by the City for the purpose of installing said improvements. The City agrees that Schrader may install both the east and west sides of the local street portion of the street improvements for JFK Parkway at any time as he may elect after approval of the final engineering plans and design for the same, and. the City will not require that improvements for other portions of such street, including the oversizing portions of such street, be installed at that same time. The provisions of this paragraph 7 shall be controlling and supersede any and all provisions inconsistent therewith in this Agreement. In the event that agreements referenced herein are not executed, the Developer shall have the option of completing the local street portion of JFK Parkway as described herein. 2. Applicant will pay to Ditch Company an application fee in the amount of Six Hundred Dollars {5600.00}. This is determined to be a minimum initial payment to cover preliminary expenses, such as legal work, time and motor vehicles for use by superintendent and/or directors; review of the application; and other preliminary matters. 3. The construction herein contemplated shall be in strict accordance with the final set of plans with modifications set forth in Exhibit "A" to be attached and initialled by the parties hereto. Except as noted, no changes of any kind shall be made to the ditch and the banks and bottom shall be undisturbed. Said work shall further be done under the supervision of the superintendent or other designated agents of the Ditch Company. Applicant agrees to carefully install and construct said items so that the level of the flow of the ditch is unchanged and so that the flow of irrigation water is unimpeded. Applicant agrees to construct said box culvert so that no erosion of the ditch will occur on the bottom or sides of the ditch. 4. All construction shall be commenced involving the actual ditch during irrigation season. This period is mandatory, except as may be extended by the President of Ditch Company or other duly authorized representative of the Ditch Company, and said construction shall in no way interrupt, impede or interfere with the flow of irrigation water, nor shall such construction adversely affect the quality of the water. All construction shall proceed with due care to make certain that no contamination of the irrigation water occurs. 5. Upon the completion of the project, the Applicant shall promptly notify the Ditch Company, and the parties shall jointly inspect the ditch at the place of construction. If there are any deficiencies in the work of the Applicant or any variations from the plans set forth in the Exhibit, the Applicant shall forthwith remedy the same, in so doing, the Applicant shall meet all reasonable requirements of the Ditch Company for the protection of the ditch and surrounding property. 6. It is the intent of this Agreement that Applicant shall exercise due care in said construction. Accordingly, it is hereby recognized by and between the parties hereto that the Ditch Company is in no way responsible for any damages caused by such construction or installation. 7. The project shall be without cost to the Ditch Company, and the Applicant shall be responsible for all costs associated with the construction project. Applicant also agrees to require that the contractor provide liability insurance in connection with the construction of the project in the amount of no less than $1,000,000.00. 8. The Ditch Company shall have full power to operate, maintain, alter, enlarge or relocate its ditch, provided that the Ditch Company notifies the Applicant in writing at least 14 days prior to commencement of such activities. Any expenses caused thereby to Applicant shall not be chargeable to the Ditch Company. 9. The Applicant agrees that, because of possible increased maintenance expenses and difficulties occasioned by the location and construction of the roadway and the construction of the box culvert within the ditch right-of-way, it shall conduct such maintenance activities to the roadway and box culvert as is necessary to facilitate the customary carriage of irrigation water in said section of the ditch. Applicant shall maintain such construction in perpetuity and shall monitor the roadway and box culvert so that no erosion occurs, and the integrity of the ditch bank is fully maintained. 10. In the event either the Applicant or the Ditch Company shall be in default in any of their covenants herein, so as to require the party not in default to retain counsel to attempt to enforce the covenants by negotiations or otherwise, or to commence legal or equitable action against the defaulting party, the defaulting party agrees to pay all reasonable expenses of said litigation incurred by the enforcing party, including, but not limited to docket fees, depositions and reasonable attorneys' fees. THIS AGREEMENT shall extend to and be binding upon the heirs, successors and assigns of the respective parties hereto. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first hereinabove written. ATTEST: %(L_C.,.,1. - li � t' I • � , i (� � I I' ' : t Title A Gen&-E. Fischer, Secretary STATE OF COLORADO ) 1 ss. COUNTY OF LARIMER ) THE CITY OF FORT COLLINS, COLORADO a municipal corporation n Title LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY, a Colorado mutual irrigation company By: J On Strachan, President L /,!,, The above, and foregoing A regment was acknowledged before me this IO day of r' ' 1' L LE2rin and attested to by L-- �{�rPl,"1992, by, t1 ry ��u tuLl as � x ��i,l �� � F1 L r� as LL4L of The City of Fort Collins, Colorado, a municip I corporation. WITNESS my hand and official seal. expires: VICKI A MESA ivoiary ruonc STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The above and foregoing Agreement was acknowledged before me this L day of Aprrl, 1992, by John Strachan as President and attested to by Gene E. Fischer as Secretary of Larimer County Canal No. 2 Irrigating Company, a Colorado mutual irrigation company. ESS my hand and official seal. G� sion expires: December 30, 1995 M®VARY �pp PUBLIC i Notary Public 4 REIMBURSEMENT AGREEMENT This Reimbursemnt Agreement ("Agreement") is made and entered into this Cf'; day of -1-1r nQ 1995, by and between THE CITY OF FORT C—�OLLINS, COLORADO, a municipal corporation, hereinafter referred to as "the City," and Wayne K. Schrader, Trustee, hereinafter referred to as "the Developer." WITNESSETH: WHEREAS, Section 29-678 of the Code of the City of Fort Collins ( "Ordinance") permits any person who has constructed street improvements through previously underdeveloped areas of the City to submit an application to the City for a Reimbursement Agreement which would provide that such person would be reimbursed for a portion of the construction cost of the street improvements whenever any property specially benefitted by said improvements thereafter begins to first utilize said improvements by making direct connection thereto; and WHEREAS, the Developer has submitted an application to the City for a Reimbursement Agreement as a result of his construction of an 8 X 20-foot box culvert over the Larimer County Canal No. 2 on JFK Parkway , 380 feet north of the intersection of Beckman Drive ("Improvements") at the following location: Toys "R" Us/Western Auto P.U.D., a replat of Lot 8, Lot 9, and parts of Lots 7, 10, 12, and 13, Observatory Heights. Said improvements are more particularly described on the map attached hereto as Exhibit "A" and incorporated herein by this reference; and WHEREAS, the Developer has provided the City with the names and the legal descriptions of all properties specially and directly benefitted by the installation of said improvements, all as set forth on Exhibit "B" attached hereto and incorporated herein by this reference. NOW, THEREFORE, it is agreed by and between the parties hereto as follows: 1. That the 8 x 20 foot box culvert on JFK Parkway (and related improvements) installed by the Developer have been inspected and found to be in accordance with the City standards and requirements. 2. The Developer has presented the City with adequate documentation to establish that the total cost actually paid by the Developer for the construction of the Improvements was $155,731.00 (see Exhibit "C" attached hereto and incorporated herein by this reference). 3. That, at such time as any of the property specially and directly benefitted by the installation of the Improvements should commence activities to utilize the Improvements, the City may attempt to collect a charge from the owner of such property in order to reimburse the Developer for some of the costs associated with the construction of the Improvements. Such charge shall be made according to the calculations attached hereto and incorporated herein by this reference as Exhibit "D" and a percentage added to recognize the effects of inflation. This inflation factor shall be calculated using the construction cost index for Denver as published in the Engineering News record (ENR) of May 9, 1994, and the same index published in the ENR of the month preceding the application for a building permit or tap. Should any property anticipated herein to benefit from the installation of the Improvements not gain direct access to JFK Parkway, there shall be no charge collected from the owner of that property. For purposes of this Agreement, "direct access" shall mean the taking of access directly to or from JFK Parkway and not indirectly through other streets. Should any property anticipated herein to directly benefit from the Improvements be subdivided into one or more parcels for development purposes, the amount charged shall be based on a pro-rata share of the actual front footage of the property so developed. 4. Upon the actual receipt of any of the charges set forth above, the City agrees to pay the same over to the Developer less three percent (3'�) to be retained by the City to defray administration costs. In no event shall the City be obligated to pay the Developer interest on collected or uncollected fees pursuant to this Agreement. The term of this Agreement shall not extend for a period of more than ten (10) years from the date of acceptance of the Improvements by the City, which date is acknowledged by the parties to be March 16, 1994. The Council of the City of Fort Collins may, upon application by the Developer, extend the ten (10) year limitation herein set forth. 5. The services of the City in attempting to collect the reimbursement fees described herein are offered solely as an accommodation to the Developer. Accordingly, the City will not be liable for its failure in any fashion to collect the monies specified herein and shall have no obligation to commence litigation for the purpose of attempting to make such collection. In the event that the City's attempts to collect such charge, including without limitation the City's withholding of building permits, result in the filing of any claims against the City, the Developer agrees to pay all costs and fees incurred by the City in defense of the same, including attorney's fees. The Developer further agrees to indemnify and hold harmless the City from any damages or awards arising from or relating to the City's actions and/or any such claim or civil action. At the City's option, the 2 Developer may be required to provide the City with a letter of credit as security for this indemnification in the amount of any damages sought or, if no such amount is specified, then in such amount as the City may consider reasonably necessary to ensure payment of all costs, fees and/or damages which may result therefrom. 6. In the event that the Developer is in default with regard to any other obligation to the City, the City shall have the right to set off any reimbursements that may be due hereunder to satisfy, in whole or in part, any such default. In the event that the Developer has received reimbursement subject to the payment of a charge to the City in accordance with the terms of this Agreement, the Developer shall immediately, upon receipt thereof, notify the City in writing of the amount collected, the name and address of the person from whom collection was made and the property to which the collection is applicable. 7. This Agreement may be assigned by the Developer to any other party without the express written consent of the City. The Ordinance is incorporated herein by this reference, and it shall govern interpretation of the various provisions of this Agreement. 8. Either party hereto shall be entitled to record this Agreement with the Clerk and Recorder of Larimer County, Colorado so as to provide record notice of the terms and conditions contained herein to the owners of the properties described on Exhibit "B". Dated the day and year first above written. TEST Wanda K-- Ice ty Clerk THE CITY OF FORT COLLINS, COLORADO, a municipal corporation By: iane Jones Interim C Manager DEVELOPER: I ye K. 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