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HomeMy WebLinkAboutGATEWAY AT HARMONY ROAD PUD - Filed DA-DEVELOPMENT AGREEMENT - 2004-06-24DEVELOPMENT AGREEMENT WA 1111S :AGREEMENT, made and entered into this 2Y day of 191" by and between THE CITY OF FORT COLLINS, COLORADO, a Munici- pal Corporation, hereinafter referred to as "the City", and KENSINGTON PROPERTIES, LTD., a Colorado Limited Partnership, hereinafter referred to as "the Developer". SVITNESSETH WHEREAS. the Developer is the owner of certain property situated in the County of . l.arimer, State of Colorado, and legally described as follows, to -wit: THE GATEWAY AT HARMONY ROAD P.U.D., FIRST AND SECOND FILINGS, Being a Replat of a Part of Lot 1, Harmony P.U.D., Situate in the Southeast 1/4 of Section 35, Township 7 North, Range 69 west of the nth P.M., City of Fort Collins, County of Larimer. State of Colorado. WHEREAS, the Developer desires to develop said property and has submitted to the City a subdivision plat and/or a site plan and landscape pl:3n- a copy of which is on file in the Office of the Director of Enginecr- ing and made a part hereof by reference; and WHEREAS, the Developer has further submitted to the City a utilitv plan for said lands, a copy of which is on file in the office of the Director of Engincer.ng 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 construc- tion 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 adc- quacy of which is hereby acknowledged, it is agreed as follows: 1. 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) (it% Clcrk APPROVED AS TO FORM: /15irctTor of .i ;inccring ,Attorn::N' THE CITY OF FORT COLLINS, COLORADO A Municipal Corporation B V: City Manager DEVELOPER: BY: KENSINGTON PROPERTIES, LTD., a Colorado /Limited Partnership 6 y: Cl' Paul liel l ron, % . ging�Partner M1111 EXHIBIT "A" 1. Schcdule of water lines to be installed out of sequence. Vot .Applicable. Schcdule of sanitary sewer lines to be installed out of sequence. Not ❑pplieablc. 3. Schcdule of street improvements to be installed out of sequence. Not Applicable. 4. Storm drainage improvements to be installed out of sequence. Not applicable. EX - The Development Agreement for The Gateway at Harmony Road P.U.D. First and Second Filings NOT APPLICABLE COST ESTI -,TE FOR N CR - - -'TS is Include only those major storm drainage basin ir„prove.-,ents requircd by an adopted basin nastcr plan. ITEM DESCRYTIM I• Storm sewer, manholes, end sections, etc. (a) (b) (c) `(d) Sub -Total 2. Channel excavation, detention pond excavation and riprap (a) (b) (c) Sub -Total CUAhTii' UNTT r^CT TP-W r L.f• /L.f. S L.f. Ea. Ea. S Ea. Ea. S S C.Y: S /C.Y. S C.Y. S /C.Y. 5 C.Y. S /C.Y. S S THE GATEWAY AT HARMONY ROAD P.U.D., FIRST AND SECOND FILINGS AMENDMENT AGREEMENT NO.1 TH AMENDMENT AGREEMENT, made and entered into this 7 day of s of 199.3, by and between the CITY OF FORT COLLINS, COLORA, municipal corporation, hereinafter referred to as the D "City" and GATEWAY LUBE LLL, a Colorado limited liability company, hereinafter referred to as the "Developer," is an amendment to that certain Development Agreement dated the 28th of April, A.D. 1989, by and between the City and KENSINGTON PROPERTIES, LTD. "Development Agreement." WHEREAS, the parties hereto (or their predessor's in interest) previously executed the Development Agreement; and, WHEREAS, GATEWAY LUBE LLL, is now the owner of The Gateway at Harmony First Filing portion of the development (First Filing); and WHEREAS, Gateway Lube LLL agreed as part of its purchase of the First Filing, to become the responsible party for constructing the remaining public improvements required for the First Filing; and WHEREAS, the parties are presently desirous of modifying the Development Agreement; 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, the parties agree as follows: Subheading 2. Special Conditions; section C. Storm Drainage Lines and Appurtenances; subparagraph (ii) shall be modified by deleting the entire subparagraph and replacing it with the following: (ii) 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 $1,624.00 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. Subheading 2. Special Conditions; section D. Streets, shall be modified by adding the following subparagraph (v): (v) It is understood that the sidewalk to be constructed along College Avenue adjacent to Filing 1, as described in Section 2,D,(iv) 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. Except as herein modified, the Development Agreement shall continue in full force and effect. This Agreement and the Development Agreement constitute the entire understanding of the parties. IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first above written. THE CITY OF FORT COLLINS, COLORADO, a Muni ipal Corporation ZG By: City Manager AT EST: CITY CLERK APPROVED AS TO CONTENT: �j Di ector of Engineer n, APPROVED/AS TO FORM: City Attorney DEVELOPER: GATEWAY LUBE LLL, S—QvIorado limited Arthur F. Pater Managing Member Obtaining a building permit therefor, or (3) Any change in grade, contour or appearance of said property caused by or on behalf- oi' 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 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. Except for the footing and foundation permit (Sec: 2E.3.), 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. E:,ccpt 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 the City. F. 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 -2- shall be inspected by the Engineering Department of the City and shall be sub cet to such deoartmcnt's aoprnval. T11c Developer agrees to corrcct any ucticiencics in such instailanons in erdcr 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. H. All storm drainage facilitics shall be so designed and constructed by the Dcveloper 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 hcrcby 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 Dcveloper); and (3) specific directives as may be given to the Dcveloper by the City. Approval of and acceptance by the City of anv 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 hcrcby that such engagement shall be intended for the benefit of the City, and subsequent purchasers of property in the dcvclopment. 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 arc described together ,vi+.h the 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 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. -3- Special Conditions. A. Natcr lines. Not Applicable. B. Scwcr lines. Not Applicable. C. Storm drainage lines and appurtenances. (i) The Developer and the City agree that all on -site and off -site storm drainage improvements required for the First Filing shall be completed by the Developer prior to the issuance of the first ccrtificate of occupancy for said First Filing. The Developer and the City agree that all on -site and off -site storm drainage improvements required for the Second Filing shall be completed by the Developer prior to the issuance of the first certificate of occupancy for said Second Filing. Completion of improvcmcnts 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. (ii) 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 prior to the issuance of any building permit. (iii) The Developer and the City agree that the Developer shall obtain three proposals from environmental/engineering consultants experienced in the field of stormwater treatment. The City shall assist in the consultant selection for a pilot project to design a facility to treat stormwater runoff. Following completion of the design, the Developer shall obtain 3 bids for the construction of the facility and award the contract to the lowest responsible bidder. The City Stormwater Utility shall reimburse the Developer for design, construction, maintenance and monitoring the facility built. Reimbursement shall be made in accordance with the City Code. Reimbursement for maintenance and monitoring shall cease on the date that the City enters into the new ME Environmental Protection Agency (EPA) Water Quality Program (anticipated to be a requirement by February 1992), at which time the Developer shall 'become responsible for maintenance. Monitoring, if continued, shall become the responsibility of the City, unless EPA regulations require the Developer to perform said monitoring. D. Streets. (i) The Developer shall complete all onsite and offsite street improvements in accordance with the approved utility plans prior to the issuance of the first certificate of occupancy. (ii) Prior to beginning construction of improvements to College Avenue, the Developer shall deposit with the Cit a cash guarantee in tic form of a certificate of deposit, cash, performance bond, letter of credit or other City approved means to guarantee the completion of all public improvements to be constructed in the street rights of way in accordance with the approved utility plans on file in the office of the Director of Engineering. The amount deposited shall be equal to 1001% of the estimated cost of the improvements. The estimate shall be prepared by the Dcvcloper and submitted to the Director of Engineering for review and approval. (iii) A State Highway Access Permit must be secured by the Developer prior to beginning construction of the driveway and Kensington Drive accesses to College Avenue. All said improvements shall be completed prior to the issuance of the first certificate of occupancy for either Filing of this development. (iv) Subject to the conditions of this agreement, the City agrees to reimburse the Developer for oversizing public sidewalks improvements along College Avenue, Harmony Road and Mason Street, for those portions of the sidewalks greater than 4' wide (the residential street width) as shown on the approved utility plans. The City shall make reimbursement to the Developer for the aforesaid oversized street improvements in accordance with Section 24-121 of the Code of the City. The Developer agrees and understands that the City shall have no obligation to make reimbursement payments for street oversizing unless funds for such payments shall first have been budgeted and appropriated from the Street Oversizing Fund by 5- 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 .nv .-�vcrsizcd-^orrinn -,F 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 Dcveiuper 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`6) of the Developer's actual expenses incurred and will be calculated in accordance with the formula as set forth in Section 24-121 (d). E. Hazards and Emergency Access. 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. The Developer shall provide an acccssway to any building under construction, adequate to handle any emergency vehicles or equipment, and to properly maintain such acccssway at all times. Such acccssway shall be at a minimum, 20' wick with 4" aggregate base course material compacted according to City Standards and with an 80' radius turnaround at the building end of said accessway. 3. The issuance of any footing foundation permit by the City is made solely a the Developer's own risk and the Developer shall hold the City harmless from any and all damages or injuries arising directly or indirectly out of the issuance of said permit prior to the completion of the requirements in accordance with Section 29-678 of the Code of the City. 3. Miscellaneous. A. The Developer agrees to provide and install, at his expense, adequate barricades, warning signs and similar safcty devices at all construction sites within the public right-of-wav and/or other areas as deemed necessary by the Director of Engineering in accordance with the City's "work Arca 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 wnstc 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 arc 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 -7- improvements or obligations may be shown on the original plat and related documents, or on any rcplat 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. G. In the event the City waives anv breach of this agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. 11. 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. I. 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. J. 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 M default hereof, such defaulting party shall be allowed a period of five (5) days within which to curt 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, 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 r c a s o n 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. M