HomeMy WebLinkAboutTOYS R US/WESTERN AUTO PUD - Filed DA-DEVELOPMENT AGREEMENT - 2004-11-02DEVELOPMENT AGREEMENT \u
THIS AGREEMENT, made and entered into this \� N day of
1991, by and between the CITY OF FORT COLLINS, COLORA ,
Municipal Corporation, hereinafter referred to as the "City";
WOODLAND PARADISE CORPORATION, a Colorado corporation, hereinafter
referred to as the "Developer"; and Wayne K. Schrader, Trustee, et
a4, and Fred H. Bockman, an Individual, collectively hereinafter
referred to as the "Owner".
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:
TOYS "R" US / WESTERN AUTO P.U.D., a replat of Lot 8, Lot 9
and Part of Lots 7, 10, 12, and 13 Observatory Heights
located in the West Half of the Northwest Quarter of Section
36, Township 7 North, Range 69 West of the 6th P.M., in the
City of Fort Collins, County of Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has
submitted to the City a subdivision plat and/or a site plan and
landscape plan, a copy of which is on file in the office of the
Director of Engineering and made a part hereof by reference; and
WHEREAS, the Developer has further submitted to the City
utility plans for the Property, a copy of which is on file in the
office of the Director of Engineering and made a part hereof by
reference; and
WHEREAS, the parties hereto have agreed that the development
of the Property will require increased municipal services from the
City in order to serve such area and will further require the
installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a
whole; and
WHEREAS, the City has approved the subdivision plat and/or
site plan and landscape plan submitted by the Developer subject to
certain requirements and conditions which involve the installation
of and construction of utilities and other municipal improvements
in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the
parties hereto and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, it is agreed
as follows:
THE CITY OF FORT COLLINS, COLORADO
A Muni 'pal Corporatio�L�� \
By: ` /'7 L JLd
City Manager
CITY CLERK
•
APPPRROVEE AS .TO FORM:
Di,rectgp of Enginee
ity Attorney
DEVELOPER:
WOODLAND PARADISE CORPORATION,
a Colorado corporation
i
By:
Jay A. I senbaum, President
ATTEST:
By: _ (corporate seal)
Warren H. Dean,
Secretary/Treasurer
OWNER: o
n K. Schrader, Trustee, et
red H. gockman
`i
I
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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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EXHIBIT "C"
Should Tract "A" develop prior to Tract "B" the public improvements
which will be required by Tract "A" are all water, sanitary sewer
and storm drainage facilities and appurtenances, and all streets,
curbs, gutters, sidewalks, bikeways and other public improvements
required by Tract "A" of this development as highlighted on Exhibit
"D" attached hereto.
Should Tract "B" develop prior to Tract "A" the public improvements
which will be required by Tract "B" are all water, sanitary sewer
and storm drainage facilities and appurtenances, and all streets,
curbs, gutters, sidewalks, bikeways and other public improvements
required by Tract "B" of this development as highlighted on Exhibit
"E" attached hereto.
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State of Colorado
County of El Paso
The foregoing instrument was acknowledged before me this day of
,1991 by JAY A. ROSENBAUM, President of WOODLAND PARADISE
CO ORA ON, A COLORADO CORPORATION
My Commission expires: /O -.30 -q`j
1Z"')1-"L�;)zj"e40V -
Notary ubli
State of Colorado
County of El Paso
The foregoing instrument was acknowledged before me this
,1991 by
of WOODLAND PARADISE CORPORATION, A COLORADO CORPORATION
My commission expires:
Public
day of
as Secretary/Treasurer
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 (with at
least the base course completed) serving such structure have been
completed and accepted by the City. Notwithstanding the foregoing,
the Developer shall be entitled to receive a building permit for
the construction of improvements within the development upon the
installation of adequate water lines, fire hydrants and street
access to provide fire protection and other emergency services to
the site during construction. All such water lines, fire hydrants
and street access (temporary or permanent) shall be approved by the
Poudre Fire Authority prior to the issuance of any building permit.
No building permits shall be issued for any structure located in
excess of six hundred sixty feet (6601) 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.
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E. Except as otherwise herein specifically agreed, the
Developer agrees to install and pay for all water, sanitary sewer,
and storm drainage facilities and appurtenances, and all streets,
curbs, gutters, sidewalks, bikeways and other public improvements
required by this development as shown on the plat, site, landscape
and utility plans, and other approved documents pertaining to this
development on file with the City. Should the Property develop in
phases the public improvements required by each phase shall be as
outlined in Exhibit "C".
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
constructed by the Developer
properties against injury and
other lands as may be require
exceeded the minimum requirem
have been established by the
Design Criteria. The Develi
harmless the City from any
directly or indirectly, as a
storm drainage or seepage wat
or quantity different from tt
and caused by the design or
facilities, except for (1) su(
the acts or omissions of the C
as have been accepted by the
any, in the general concept o
include any details of such
responsibility of the Develop
may hA nivon to the neveln
facilities shall be so designed and
is to protect downstream and adjacent
to adequately serve the Property (and
3, if any). The Developer has met or
ants for storm drainage facilities as
:ity in its Drainage Master Plans and
)per does hereby indemnify and hold
and all claims that might arise,
result of the discharge of injurious
ers from the development in a manner
at which was historically discharged
construction of the storm drainage
:h claims and damages as are caused by
ity in maintenance of such facilities
City for maintenance; (2) errors, if
E the City's master plans (but not to
plans, which details shall be the
ar); and (3) specific directives that
ier by the Citv. Annroval of and
acceptance by the City of any storm drainage facility design or
construction shall in no manner be deemed to constitute a waiver or
relinquishment by the City of the aforesaid indemnification. The
Developer shall engage a licensed professional engineer to design
the storm drainage facilities as aforesaid and it is expressly
affirmed hereby that such engagement shall be intended for the
benefit of the City, and subsequent purchasers of property in the
development.
I. The Developer shall pay storm drainage basin fees in
accordance with Chapter 26, Article VII of the City Code. Storm
drainage improvements eligible for credit or City repayment under
the provisions of Chapter 26 are described together with estimated
cost of the improvements on the attached Exhibit "B," which
improvements, if applicable, shall include right-of-way, design and
construction costs. See Section II.C, Special Conditions, Storm
Drainage Lines and Appurtenances, for specific instructions.
J. The Developer shall provide the Director of Engineering
with certified Record Plan Transparencies on Black Image Diazo
Reverse Mylars upon completion of any phase of the construction.
II. Special Conditions
A. water Lines
Not Applicable
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. The Developer and the City
off -site storm drainage improvements
Developer in accordance with the ap
issuance of the first certificate of
improvements shall include the cer
professional engineer that the drainage
development, have been constructed
approved plans.
p
agree that all on -site and
shall be completed by the
roved plans prior to the
occupancy. Completion of
tification by a licensed
facilities which serve this
in conformance with said
2. The Developer agrees to provide and maintain erosion
control improvements as shown on the approved utility plans to
stabilize all over -lot grading in and adjacent to this development.
The erosion control improvements must be completed prior to the
issuance of any building permits.
D. Streets.
1. The Developer shall complete all on -site and off -
site street improvements in accordance with the approved utility
plans prior to the issuance of the first certificate of occupancy.
2. Subject to the conditions o
agrees to reimburse the Developer for
improvements along South College Avenue
street abutting the Property as shown
plans. Reimbursement for South Coll
oversizing the sidewalk from residen
arterial street standards. The City s
the Developer for the aforesaid oversiz
accordance with Section 24-121 of the
H
f this Agreement, the City
oversizing public street
for those portions of said
on the approved utility
ege Avenue shall be for
tial standards to major
hall make reimbursement to
ed street improvements in
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 the City Council;
and the Developer further understands that to the extent that funds
are not available for such reimbursement, the City may not, in the
absence of the Developer's agreement, require the construction, at
the Developer's expense, of any oversized portion of streets not
reasonably necessary to offset the traffic impacts of the
development. The Developer does hereby agree to construct the
aforesaid oversized street improvements with the understanding that
the Developer may not be fully reimbursed by the City for the cost
of such construction. The Developer further agrees to accept
payment in accordance with Section 24-121 (d) of the Code of the
City as full and final settlement and complete accord and
satisfaction of all obligations of the City to make reimbursements
to the Developer for street oversizing expenses. It is anticipated
by the City that the City's reimbursement, in accordance with
Section 24-121 (d), would not be less than fifty percent (50%) of
the Developer's actual expenses incurred and will be calculated in
accordance with the formula as set forth in Section 24-121 (d).
3. A Colorado State Highway Access Permit must be
obtained by the Developer prior to beginning construction of the
street intersection and related improvements of Bockman Drive on
South College Avenue. All improvements, excluding the traffic
signal which is covered in paragraphs 5 and 6 below, to said
intersection shall be completed prior to the issuance of the first
certificate of occupancy for this development.
4. Prior to commencing construction of improvements on
South College Avenue, the Developer shall deposit with the City a
cash guarantee in the 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 South College Avenue right 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
150% of the estimated cost of the improvements to South College
Avenue. The estimate shall be prepared by the Developer and
submitted to the Director of Engineering for review and approval.
Said cash guarantee shall be released by the City upon satisfactory
completion of the construction work and acceptance by the City.
5. The Developer and the City agree that a traffic signal
is planned to be installed at the intersection of Bockman Drive and
South College Avenue. During the development construction period
the City shall install all elements of said signal except for the
mast arms and signal heads. The City shall install the mast arms
and signal heads and activate the signal after appropriate signal
warrants are met and after receiving approval to do so from the
State of Colorado District Engineer.
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6. The Developer and the City agree that the Developer is
obligated to pay up to $40,000 for material costs to construct the
traffic signal at the intersection of Bockman Drive and South
College Avenue. The City shall purchase all materials for said
signal and bill the Developer for those costs. All bills shall be
paid prior to the traffic signal activation.
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 the I ,
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.i
E. 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. The Developer shall provide an accessway to any
building under construction, adequate to handle any emergency
vehicles or equipment, and to properly maintain such accessway at
all times. Such accessway shall be at a minimum , 20' wide with 4"
aggregate base course material compacted according to City
Standards and with an 80' diameter turnaround at the building end
of said accessway.
3. The issuance of any building permit by the City is
made solely at 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.
III. Miscellaneous
A. The Developer agrees to provide and install, at its
expense, adequate barricades, warning signs and similar safety
devices at all construction sites within the public right-of-way
and/or other areas as deemed necessary by the Director of
Engineering in accordance with the City's "Work Area Traffic
Control Handbook" and shall not remove said safety devices until
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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 insures that its 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 development at the
earliest practicable time. By way of explanation and without
limitation, said control may consist of seeding with 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 and related documents, or any
replat as subsequently filed by the Developer, and the City may
withhold such building permits and certificates of occupancy as it
deems necessary to ensure performance hereof.
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.
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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.
I. This Agreement shall run with the Property and shall be
binding upon the parties hereto, their personal representatives,
heirs, successors, grantees and assigns. It is agreed that all
improvements required pursuant to this Agreement touch and concern
the Property regardless of whether such improvements are located on
the Property. Assignment of interest within the meaning of this
paragraph shall specifically include, but not be limited to, a
conveyance or assignment of any portion of the Developer's real or
proprietary interest in the Property, as well as any assignment of
the Developer's rights to develop the Property under the terms and
conditions of this Agreement.
J. In the event the Developer or either of the parties
referred to as Owner transfers title to the Property or that
portion of the Property owned by such party and is thereby divested
of all equitable and legal interest in the Property, the City
hereby agrees to release said Developer or Owner 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 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.
L. In the event of the default of any of the provisions
hereof by either party which shall require the party not in default
to commence legal or equitable action against said defaulting
party, the defaulting party shall be liable to the non -defaulting
party for the non -defaulting party I 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.E of this Agreement.
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