HomeMy WebLinkAboutWILLOW SPRINGS PUD THIRD - Filed DA-DEVELOPMENT AGREEMENT - 2004-03-17DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this(311+) day of Nb r-- M$SPL
199LO, by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City"; and
Paragon Point Partners, a Colorado limited partnership, hereinafter
referred to as the "Developer".
WITNESSETH:
WHEREAS, the Developer has entered into an agreement with the
Owner to acquire ownership of certain property situated in the
County of Larimer, State of Colorado, (hereafter referred to as the
"Property") and legally described as follows, to wit:
WILLOW SPRINGS PUD - THIRD FILING, (PATIO HOMES AT WILLOW
SPRINGS), being a replat of Lots 74-101 and Open Spaces "A2,
A3, G, H, J, K, L and M" of Willow Springs PUD, City of Fort
Collins, Situate in the Southeast Quarter of Section 6 and the
Northeast Quarter of Section 7, Township 6 N, Range 68 W of
the 6th P.M., Larimer County, Colorado.
WHEREAS, the Developer desires to develop the Property and has
submitted to the City a subdivision plat and/or a site plan and
landscape plan, a copy of which is on file in the office of the
Director of Engineering and made a part hereof by reference; and
WHEREAS, the Developer has further submitted to the City
utility plans for the Property, a copy of which is on file in the
office of the Director of Engineering and made a part hereof by
reference; and
WHEREAS, the parties hereto have agreed that the development
of the Property will require increased municipal services from the
City in order to serve such area and will further require the
installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a
whole; and
WHEREAS, the City has approved the subdivision plat and/or
site plan and landscape plan submitted by the Developer subject to
certain requirements and conditions which involve the installation
of and construction of utilities and other municipal improvements
in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the
parties hereto and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, it is agreed
as follows:
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.
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 narty or narties shall have anv 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 to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, Cc 80522
With a copy to:
If to the Developer:
With a copy to:
City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Cc 80522
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Notwithstanding the foregoing, if either 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.
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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 pertaining to the matters
addressed in this Agreement. There shall be deemed to be no other
terms, conditions, promises, understandings, statements,
representations, expressed or 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.
ATT T:
CITY CLERK
APPROVED AS TO CONTENT:
Di ector of Engineer'
hPPROVED AS TO FORM: j
Assistant City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: & 0. WU
CityW n ger
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DEVELOPER:
Paragon Point Partners, a Colorado
limited partnership
By: Trustar, Inc., a Colorado
corporation, as General Partner
/7
Byron R. Collins, President
ATTEST:
By;,�.> i c� SEAL
Ruth Collins, s, Secretary 4k J
(Corporate seal)
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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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I. General Conditions
A. The terms of this Agreement shall govern all development
activities of. the Developer pertaining to the Property. For the
purposes of this Agreement, "development activities" shall include,
but not be limited to, the following: (1) the actual construction
of improvements, (2) obtaining a building permit therefor, or (3)
any change in grade, contour or appearance of said property caused
by, or on behalf of, the Developer with the intent to construct
improvements thereon.
B. All water lines, sanitary sewer collection lines, storm
sewer lines and facilities, streets, curbs, gutters, sidewalks, and
bikepaths shall be installed as shown on the approved utility plans
and in full compliance with the Council -approved standards and
specifications of the City on file in the office of the Director of
Engineering at the time of approval of the utility plans relating
to the specific utility, subject to a three (3) year time
limitation from the date of execution of this Agreement. In the
event that the Developer commences or performs any construction
pursuant hereto after three (3) years from the date of execution of
this agreement, the Developer shall resubmit the project utility
plans to the Director of Engineering for reexamination. The City
may require the Developer to comply with approved standards and
specifications of the City on file in the office of the Director of
Engineering at the time of resubmittal.
C. No building permit for the construction of any structure
within the development shall be issued by the City until the water
lines, fire hydrants, sanitary sewer lines and streets (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 approved plat, site,
landscape and utility plans, and other approved documents
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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 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; 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
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Reverse Mylars upon completion of any phase of the construction.
K. The Developer specifically represents that to the best of
its knowledge all portions of the Property dedicated to the City
associated with this development are in compliance with all
environmental protection and anti -pollution laws, rules,
regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection
Agency Regulations at 40 C.F.R., Part 261, and that such portions
of the Property as are dedicated to the City pursuant to this
development, are in compliance with all such requirements
pertaining to the disposal or existence in or on such dedicated
property of any hazardous substances, pollutants or contaminants,
as defined by the Comprehensive Environmental Response Compensation
and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer does hereby indemnify and hold harmless
the City from any liability whatsoever that may be imposed upon the
City by any governmental authority, pertaining to the disposal of
hazardous substances, pollutants or contaminants, and cleanup
necessitated by leaking underground storage tanks, excavation
and/or backfill of hazardous substances, pollutants or
contaminants, or environmental cleanup responsibilities of any
nature whatsoever on, of or related to any property dedicated to
the City 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. Suecial Conditions
A. Water Lines
1. A two (2) foot minimum clear separation shall be
provided between the fire hydrant, located between lots 10 and 11
of the Property, and the driveways for such lots as shown on the
approved utility plans for this development. This clear separation
shall be verified by the City inspector prior to the issuance of
any certification of occupancy upon said lots.
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, 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 three (3) building permits. Completion of
improvements shall 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. Said certification shall be submitted to the
City at least two weeks prior to the date of issuance for any
building permit greater than said three (3)building permits for the
development.
2. The Developer agrees to provide and maintain erosion
control improvements as shown on the Willow Springs PUD Phase 1
utility plans to stabilize all over -lot grading in and adjacent to
this development. A security deposit for this development is
included in the amount specified in the Development Agreement for
Willow Springs PUD Phase 1, dated July 20, 1996, this amount shall
be submitted prior to beginning construction to guarantee the
proper installation and maintenance of the erosion control measures
shown on the approved Willow Springs PUD Phase 1 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 12 and 13 of 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 for this
Development and said completion shall be certified as being
completed in accordance with said plans by a Colorado licensed
professional engineer. Said certification shall be received
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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.
(b) In addition the Developer shall be required to file a
notice with the Larimer County Clerk and Recorder describing
the landscaping and fencing restrictions that exist for the
drainage easements on each of said lots. Said notice shall
reference the location of the specific restrictions shown on
plans and notes in the approved utility plans for this
development. Said notice shall be filed in a City approved
form prior to the sale of any lots affected by such
restrictions.
4. 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. In order to guarantee the completion of the
Developer's share of the required street improvements to Timberline
Road adjacent to Phase 1 of the Willow Springs PUD, of which this
development was a part, the Developer and the City agree that the
Developer shall pay a cash deposit to the City at the time of
building permit issuance with each lot in this development. The
terms for said deposit are described as follows:
(a) The Developer will pay the amount of $1,000 with the
issuance of each building permit for each dwelling unit
commencing with the first building permit issued in this
development and all succeeding building permits in Phase 1.
If any portions of said sums are paid by the Developer after
the year 1997, the Developer agrees to pay the amount
specified above plus an additional amount, to be calculated as
described below, to recognize the effects of inflation with
said amount to be increased each year until payment is
completed in full.
(b) The inflation factor (Inf. Fac.) for each year's payments
shall be calculated using the construction cost index for
Denver as published in the Engineering News Record (ENR) for
July, 1996 as the base index (I -base) and the same index
F1
published in the ENR for the January in each succeeding year
immediately preceding payment (I -year of payment). The
formula for calculating said inflation factor shall be as
follows:
Inf. Fac. = (I -year of payment) - (I -base).
(I -base)
(c) The amount to be added to each $1,000 payment to
compensate for inflation shall be equal to $1,000 times the
inflation factor. In no event shall a negative inflation
factor reduce the principle amount due below $1,000 for each
payment.
(d) Upon the completion of said Timberline Road improvements,
the amount escrowed by the Developer shall be refunded to the
Developer less 3o to cover the City's costs to administer the
collection and administration of said funds.
2. The Developer and the City agree that no street
oversizing reimbursement from the City is due the Developer for
this development.
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
(e.g. all signing and striping for a right turn lane into the
development site).
E. Groundwater.
1. The Developer and the City recognize that this
development is adjacent to the McClelland Drainageway and certain
irrigation ditches and that seepage from said ditch may impact the
ground water levels in this development. Accordingly, it is agreed
that the City shall not be responsible for and that the Developer
hereby indemnifies the City for any claims of damages or injuries
that may be alleged to have been 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.
F. Hazards and Emergency Access.
1. No combustible material will be allowed on the site
until a permanent water system is installed by the Developer and
approved by the City.
2. Prior to beginning any building construction, the
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Developer shall provide and maintain at all times an accessway to
said building or buildings. Such accessway shall be adequate to
handle any emergency vehicles or equipment, and the accessway shall
be kept open during all phases of construction. Prior to the City
allowing combustible material on the site (other than forming
material for concrete footings, foundations and/or concrete walls)
such accessway shall be improved to a width of at least 20 feet
with 4 inches of aggregate base course material compacted according
to City Standards and with an 80 foot diameter turnaround at the
building end of said accessway. The turnaround is not required if
an exit point is provided at the end of the accessway.
III. Miscellan
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
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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 Fort Collins City
Council.
H. This Agreement shall run with the Property and shall be
binding upon and inure to the benefit at 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 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
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