Loading...
HomeMy WebLinkAboutFOOTHILLS FASHION MALL EXPANSION - Filed DA-DEVELOPMENT AGREEMENT - 2004-07-26DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this 6th day of July A.D. 1988, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to a:s "the City," and Everwest, a Colorado General Partnership, hereinafter referred to as "the Developer." WITNESSETH: WHEREAS, the Developer is the owner of certain property situated in the County of Lariimer, State of Colorado, and legally described as follows, to -wit: TRACT ONE OF THE FOOTHILLS FASHION MALL EXPANSION, Being a Replat of a part of Southmoor Vil- lage, Fifth Filing; a part of The Strachan Subdivision, Third Filing; a part of East Monroe Drive; and a part of Foothills Parkway, Situate in the Southwest 1/4 of Section 25, Township 7 North, Range 69 West of the Sixth P.M. City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the developer desires to develop said property and has sub- mitted to the City a subdivision plat and/or a site plan, a copy of which is on file in the Office of the City Engineer and made a part hereof by reference; and WHEREAS, the Developer has further submitted to the City a utility plan for said lands, a copy of which is on file in the Office of the City Engineer 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 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. K. Each and every term and condition of this Agreement shall be deemed to be a material element thereof. In the event either party shall fail or refuse to perform according to the terms of this Agreement, such party may be declared in default. In the event a party has been declared in default hereof, such default- ing party shall be allowed a period of five (5) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or, (c) avail itself of any other remedy at law or equity. In the event of 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 attorneys' fees and costs incurred by reason of 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. IN ATTEST: City Clerk APPROVED: City Engin er City Attorney ATTEST: Tracy Hozie, sistant ecretary THE CITY OF FORT COLLINS, COLORADO A Munici al Corporation B y: C- City Manager Everwest, a Colorado General Partnership By: Everitt nterprises, Inc., General P ner Gera Haxton, Presi ent -11- 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. Storm drainage improvements to be installed out of sequence. Not applicable. -12- EXHIBIT "B" The Development Agreement for Tract One of the Foothills Fashion Mall Expansion Not Applicable CO"-T ESTIt'4-aT-E E-0p -WAS-�r2�1T ref;?�t� trL�_ Include only those major storm drainage basin improvements required by an adopted "in master plan. ITEIM DESCRIPTIOM I• Stor-�- sewer, manholes, end sections, etc_ (a) (b) (c) (d) Sub -Total 2. Channel excavation, deion pond excavation and ripr Sub -Total - UAfJITY UNIT C TOTAL COST . f. Ea. Ea. S Ea. Ea. S - S C.Y: $ /C.Y. S C.Y. $ /C.Y. S C.Y. S /C.Y. S S EXHIBIT B - Page 2 4. 5. (c Prep Addr 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 submitted by the Developer subject to certain requirements and conditions which involve the installation of and construction of utilities and other municipal improvements in connection with said lands; and WHEREAS, it is anticipated by the parties that the Foothills Fashion Mall will be further expanded by certain entities who are not parties to this Agreement including, without limitation, Mervyn's, a California corporation, J.C. Penney Properties, Inc., a Delaware corporation, the May Department Stores Company, a New York corporation and May Properties 1976, Inc., a Delaware corporation. Development of additional retail space by the aforesaid entities will impose additional burdens upon the public infrastructure adjacent to and associated with the above described property, and the purpose of this Agree- ment is to insure that certificates of occupancy shall not be issued to the Developer for its improvements which are the subject of this Development Agreement until such time as all such public infrastructure improvements as may be required by the City according to the utility plan, plat, site plan, landscape plan and other documents which are descriptive of this development, are fully completed. 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: 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, "develop- -2- ment 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 improve- ments 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 specifi- cations of the City on file in the Office of the City Engineer at the time of approval of the utility plans relating to the specific utility, subject to a two (2) 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 two (2) years from the date of execution of this agreement, the Developer shall resubmit the project utility plans to the City Engineer for reexamination. The City may require the Developer to comply with approved standards and specifica- tions of the City on file in the Office of the City Engineer at the time of resubmittal. C. No certificate of occupancy of any structure within the develop- ment 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 City Engineer has determined that any water lines, sanitary sewer lines, storm sewer facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the utility plans and shall be installed by the Developer within the time as established under "Special Conditions" in this document. E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer and storm sewer facilities and appurtenances, and all streets, curbing, gutter, sidewalks, bikeways and other public improvements required by this development as shown on the plat, utility and landscape plans, 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. -3- G. The installation of all utilities shown on the utility drawings shall be inspected by the Engineering Division of the City and shall be subjected to such department's approval. The Developer agrees to correct any deficiencies in such installations in order to meet the requirements of the plans and/or specifications applicable to such installation. In case of conflict, the utility drawings shall supersede the standard specifications. H. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent proper- ties against injury and to adequately serve the property to be developed (and other lands as may be required, if any). The Developer has met or exceeded minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer does hereby indemnify and hold harmless the City from any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainage or seepage waters from the development in a manner or quantity different from that which was historically discharged and caused by the design or con- struction of the storm drainage facilities, except for (1) such claims and damages as are caused by the acts or omissions of the City in maintenance of such facilities as have been accepted by the City for maintenance; (2) errors, if any, in the general concept of the City's master plans (but not to include any details of such plans, which details shall be the responsibility of the Developer); and (3) specific directives as may be given to the Developer by the City. Approval of and acceptance by the City of any storm drainage facility design or construction shall in no manner be deemed to constitute a waiver or relinquish- ment by the City of the aforesaid indemnification. The Devel- oper 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 provisions of Chapter 26 are described together with the estimated cost of the improvements on the attached Exhibit "B", which improvements shall include right of way, design and construction costs. J. The Developer shall provide the City Engineer with certified Record Utility Drawing Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construc- tion. 2. Special Conditions. A. Water lines. -4- Not Applicable B. Sewer lines. Not Applicable C. Storm drainage lines and appurtenances. (i) The City and the Developer agree that certain storm drainage improvements are the responsibility of the Developer to complete. The improvements required for each Phase of the Foothills Fashion Mall Expansion are desig- nated on the Site Plan on file in the Office of the City Engineer. The improvements for Phase I shall be completed (and accepted by the City) prior to the issuance of any Certificate of Occupancy for store space within Tract 1 of this development. The improvements required for Phase 2 shall be completed (and accepted by the City) prior to the issuance of a Certificate of Occupancy for more than 50% of the store area of the old Denver Department Store, located within Tract 1 of this Development. To receive Certificates of Occupancy for more than the amounts stated above prior to completion and City approval of the required storm drainage improvements, the Developer shall establish an escrow account with the City to insure that all said improvements are completed. The escrow amount shall be 150% of the average of three, City approved, contrac- tors bids, or 150% of the costs quoted by the contractor under contract with the Developer, for improvements remaining to be completed. (ii) The City and the Developer agree that the construction and maintenance of on -site storm drainage system shown on the utility plans for the development shall be the sole responsibility of the Developer. The Developer agrees to produce such easement agreement(s) required by the City in a form acceptable to the City in favor of any off -site property owners whose property may be served by the on -site storm drainage system. The Developer further agrees to assume all liability pertaining to said storm drainage system, and hereby agrees to indemnify and hold harmless the City from any and all claims for damage to property or injury to persons in any way arising from or relating to the same. D. Streets. (i) The City and the Developer agree that certain street improvements are the responsibility of the Developer to complete. The improvements required for each Phase of the Foothills Fashion Mall Expansion are designated on the Site Plan on file in the Office of the City Engineer. The -5- improvements for Phase 1 shall be completed (and accepted by the City) prior to the issuance of any Certificate of Occupancy for store space within Tract 1 of this develop- ment. The improvements required for Phase 2 shall be completed (and accepted by the City) prior to the issuance of a Certificate of Occupancy for more than 50% of the store area of the old Denver Department Store, located within Tract 1 of this Development. To receive certificates of occupancy for more than the amounts stated above prior to completion and City approval of improvements, the Developer shall establish an escrow account with the City to insure that all said improvements are completed. The escrow amount shall be 150% of the average of three, City approved, contractors bids, or 150% of the costs quoted by the contractor under contract with the Developer, for the improvements remaining to be completed. The improvements required for Phase 1 are listed as follows: 1. Reconstruction of the cross pans on East Monroe Drive on the east side of South College Avenue and on Stanford Road at East Monroe Drive. 2. Installation of the east/west left turn signal phase on Swallow Road at South College Avenue. 3. Construction of curb bulges on Stanford Road at East Monroe Drive and the driveway entrance into the mall i north of East Monroe Drive. 4. Construction of the drive west bound right turn lane on Horsetooth Road at South College Avenue. 5. Widening of the south side of Horsetooth Road to provide space for the installation of west bound double left turn lanes on Horsetooth Road at South College Avenue. The improvements required for Phase 2 are listed as follows: 1. Construction of curb bulges on the south side of the Mathews Street and Swallow Road intersection. 2. Construction of curb bulges on Stanford Road at Foothills Parkway or at the first driveway north of that location which enters into the Foothills East Shopping Center. (ii) The City and the Developer agree that the Developer shall acquire, at it's own expense, the right of way necessary for the construction of the double left turn lanes at Horsetooth Road and South College Avenue. If the Developer is unable to acquire the right of way by private agreement with the property owner, and the City is satisfied that all reasonable attempts have been made by the Developer to so acquire the property, the City staff may, in its discretion, recommend to City Council that the right of way be acquired in the public interest through the exercise of the power of eminent domain, in which event the Developer agrees to pay all costs and attorney's fees related to such IM acquisition by the City. E. 'Transit Center (i) The Developer agrees that a transit center shall be designed and submitted to the City for review and approval as part of Phase 3 of the Development, and that the design of the same shall include the remodeling of the internal circula- tion driveway system between the Foothills Fashion Mall, The Square and Foothills Plaza, to the extent that the Developer is able, upon exerting a good faith effort, to accomplish the same. The Developer acknowledges that the City's approval of the construction of Phase 3 of the Development is expressly conditioned upon the Developer's inclusion of the transit center within such phase. F. Construction Phasing (i) The Developer is required to submit a Construction Phasing and Traffic Control Plan (Plan) to the City and receive City approval prior to beginning any construction. The Plan shall be the guide for establishing all detours and providing access to all properties. If any changes are made in the construction sequence of the development project that differ from the approved Plan, the Developer shall revise the Plan and receive City approval of the revised Plan prior to proceeding with any such change. G. Ancillary Improvements. (i) It is anticipated by the parties hereto that the Foothills Fashion Mall will be further expanded by certain ancillary entities who are not parties to this Agreement including, without limitation, Mervyn's, a California corporation, J.C. Penney Properties, Inc., a Delaware corporation, the May Department Stores Company, New York corporation and May Properties 1976, Inc., a Delaware corporation. Develop- ment of additional retail space by the aforesaid entities will impose additional burdens upon the public infrastruc- ture adjacent to and associated with the above described property. Accordingly, it is understood and agreed that no certificate of occupancy shall be issued to the developer for any improvements upon the property which is the subject of this Agreement, until such public infrastructure and improvements have been completed to adequately serve both the development and the ancillary improvements to be constructed by the aforesaid entities, and the City may withhold such certificates of occupancy as, in its discre- tion, it deems necessary to insure completion of all improvements as shown on the plat, site plan, landscape plan, and other documents descriptive of this development, by the Developer. It is further understood that there exist various understandings and agreements between the Devel- -7- oper and the ancillary entities about which the City has no knowledge, including without limitation, reciprocal easement agreements for vehicular access, storm drainage, and perhaps other items. The Developer has sought the City's permission to commence certain construction in reliance upon the Developer's assurances to the City that such construction is acceptable to the affected ancillary entities and, in order to further ensure that the Developer's proposals and activities are protective of the public interest and welfare, the Developer does hereby agree to indemnify and hold harmless the City from all claims or actions for damages or injuries arising out of the activities of the Developer in commencement and completion of the develop- ment, whether such damages or injuries are suffered by the Developer, any of the ancillary entities, any other merchants or business operators within the Foothills Fashion Mall, or any customer of the Developer, an ancil- lary entity or any other merchant or business operator in the Foothills Fashion Mall; and the Developer further agrees that in the event of any such claim or action being brought against the City arising out of the activities of the Developer in commencing or completing activities of the Developer in commencing or completing the development, or in the City's actions in approving said development and in issuance of building permits or certificates of occupancy in pursuance thereof, the Developer shall defend the City, with all due diligence and vigor, against any such claims, actions or demands. The cost of such defense shall be borne solely by the Developer. 3. Miscellaneous. A. The Developer agrees to provide and install, at his expense, adequate barricades, warning signs and similar safety devices at all construction sites within the public right-of-way and/or other areas as deemed necessary by the City Engineer in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been approved by the City Engineer. B. The Developer shall, at all times, keep the public right-of-way free from accumulation of waste material or rubbish caused by his 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 his 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 City Engineer. If the Developer fails to adequately clean such streets within two (2) days after receipt of written notice, -8- the City may have the streets cleaned at the Developer's expense and the Developer shall be responsible for prompt payment of all such costs. C. The Developer hereby insures that his subcontractors shall cooperate with the City's construction inspectors by ceasing operations when winds are of sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the public health and welfare. D. When the inspector determines that erosion (either by wind or water) is likely to be a problem, the surface area of erodible earth material exposed at any one time shall not exceed 200,000 square feet for earthworks operations. Temporary or permanent erosion control shall be incorporated into the subdivision at the earliest practicable time. By way of explanation and without limitation, said control may consist of seeding of approved grasses, temporary dikes, gabions, and/or other devices. E. The Developer shall, pursuant to the terms of this agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the original plat, or on any replat subsequently filed by the Developer, and the City may withhold such building permits and certificates of occupancy as it deems necessary to ensure performance hereof. F. Nothing herein contained shall be construed as a waiver of any requirements of the City Code, and the Developer agrees to comply with all requirements of the same. G. In the event the City waives any breach of this Agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. H. Financial obligations of the City of Fort Collins payable after the current fiscal year and/or not appropriated or budgeted are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. This Agreement shall run with the real property herein above described and shall be binding upon the parties hereto, their personal representatives, heirs, successors, grantees and assigns. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, assignment of any portion of the Developer's proprietary interest in the real property I'^ AC Pr 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 M