HomeMy WebLinkAboutBROOKFIELD - Filed DA-DEVELOPMENT AGREEMENT - 2003-05-28�J� t
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DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this 257--11 day of
200 ', by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; and South Harmony LLC, a Colorado
limited liability company, hereinafter referred to as the "Developer" and Electric
Equipment and E=ngineering Co., Employee Profit Sharing Trust hereinafter referred to
as the "Owner."
WITNESSETH:
WHEREAS, the Developer is the owner of a portion of that certain real property
situated in the County of Larimer, State of Colorado, (hereafter sometimes referred to
as the "Property" or "Development") and legally described as follows, to wit:
Brookfield, a tract of land located in Section 4, Township 6 North, Range 68 West
of the 6th IP.M., City of Fort Collins, County of Larimer, State of Colorado.
WHEREAS, the Developer has entered into an agreement with the Owner to
acquire the ownership of the remaining portion of the above described real property;
and
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, plans (including utility plans), reports and other documents required for
the approval of a final plan according to the City's development application submittal
requirements master list (the "Final Development Plan Documents") copies of which are
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 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 Final Development Plan Documents
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:
accordance with the Final Development Plan Documents. Prior to the release of more
than five building permits in Phase 2 the Developer shall have completed construction
of the access path that runs north -south along the eastern boundary of Phase 2 in
accordance with the Final Development Plan Documents.
7. 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).
8. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
E. Ground Water, Subdrains and Water Rights
1. The City shall not be responsible for, and the Developer, for itself
and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City
against any damages or injuries sustained in the Development as a result of ground
water seepage or flooding, structural damage, or other damage unless such damages
or injuries are proximately caused by the City's negligent operation or maintenance of its
storm drainage facilities in the Development. However, nothing herein shall be deemed
a waiver by the City of its immunities, defenses, and limitations to liability under the
Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any
other law.
2. If the Development includes a subdrain system, any such subdrain
system, whether located within private property or within public property such as street
rights -of -way or utility or other easements, shall not be owned, operated, maintained,
repaired or reconstructed by the City and it is agreed that all ownership, operation,
maintenance, repair and reconstruction obligations shall be those of the Developer or
the Developer's successor(s) in interest. Such subdrain system is likely to be located
both upon private and public property and, to the extent that it is located on public
property, all maintenance, operation, repair or reconstruction shall be conducted in such
a manner that such public property shall not be damaged, or if damaged, shall, upon
completion of any such project, be repaired in accordance with then existing City
standards. The City shall not be responsible for, and the Developer, for itself and its
successor(s) in interest, hereby agrees to indemnify and hold harmless the City against
any damages or injuries sustained in the Development as the result of groundwater
seepage or flooding, structural damage or other damage resulting from failure of any
such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and
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hold harmless the City against any damages or injuries to water rights caused, directly
or indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided the Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice of any such claim to the Developer within ninety (90) days after the City first
receives notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause the forgoing indemnities and hold harmless agreements by the
Developer to not apply to such claim and such failure shall constitute a release of the
foregoing indemnities and hold harmless agreements as to such claim.
F. Natural Resources
1. All seeded areas shall be inspected jointly by the Developer and
the City at specified intervals. Areas seeded in the spring shall be inspected for
required coverage the following fall not later than October 1. Areas seeded at any other
time shall be inspected the following two summers not later than August 1. The
required coverage for the first inspection shall be ten (10) viable live seedlings of the
specified species per 1000 square centimeters (approximately one square foot), or fifty
percent (50%) coverage of the specified foliage as measured from five feet (5') directly
overhead, with no bare spots larger than 1000 square centimeters. At the time of the
second growing season inspection, there shall be seventy-five percent (75%) foliage
cover of the specified species planted as measured from five (5') directly overhead. No
more than ten percent (10%) of the species noted on the site may be weedy species as
defined by Article III, Section 20-41 of the Code of the City of Fort Collins. Determination
of required coverage will be based on fixed transects each ten meters in length,
randomly placed in representative portions of the seeded areas, with plant species or
bare ground/rock/litter being noted every ten (10) centimeters along each transect. The
Developer shall warrant all seeded areas for two growing seasons from the date of
completion. The Developer shall rework and reseed per original specifications any
areas that are dead, diseased, contain too many weedy species, or fail to meet the
coverage requirement at no additional cost to the City.
2. The Developer shall delineate all Limits of Development with
orange construction fence prior to any type of construction including over lot grading.
3. Fueling facilities shall be located at least one hundred (100) feet
from any body of water, wetland, natural drainage way or manmade drainage way. The
fuel tanks and fueling area must be set in a containment area that will not allow a fuel
spill to directly fllow, seep, runoff, or be washed into a body of water, wetland or
drainage way.
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4. No construction activity shall occur within the Natural Habitat and
Feature buffers located around the fox den and wetlands as identified on the Final
Development Plan Documents. If any accidental construction activity occurs, the
Developer shall contact the City of Fort Collins Natural Resources Department (221-
6600) and shall be required to mitigate all damages resulting therefrom.
G. 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, and throughout the
build -out of this Development, the 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. Such accessway shall be constructed to an unobstructed 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. Prior to the construction of said accessway, a plan for the accessway shall
be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three
plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for
review and processing.) If such accessway is at any time deemed inadequate by the
Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into
compliance and until such time that the accessway is brought into compliance, the City
and/or the Poudre Fire Authority may issue a stop work order for all or part of the
Development.
H. Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain a Footing and Foundation permit upon the
installation of all underground water, sanitary sewer, and storm sewer facilities, and an
emergency accessway for the Phase in which the permit is being requested. Facilities
shall include but not be limited to all mains, lines, services, fire hydrants and
appurtenances for the Phase as shown on the Final Development Plan Documents.
Development Construction Permit
1. The Developer shall apply for and obtain a Development
Construction Permit for this Development, in accordance with Division 2.6 of the Land
Use Code (or Section 29-12 of the Transitional Land Use Regulations, if applicable),
prior to the Developer commencing construction. The Developer shall pay the required
fees for said Permit and construction inspection, and post security to guarantee
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completion of the public improvements required for this Development, prior to issuance
of the Development Construction Permit.
J. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance
guarantee and a five-year repair guarantee covering all errors or omissions in the
design and/or construction of the public improvements required for this Development,
which guarantees shall run concurrently and shall commence upon the date of
completion of the public improvements and acceptance thereof by the City. More
specific elements of these guarantees are noted in Exhibit "C." Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section
3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use
Regulations, as applicable. Notwithstanding the provisions of paragraphs III (1) and (J)
of this Agreement to the contrary, the obligations of the Developer pursuant to this
paragraph and Exhibit "C" may not be assigned or transferred to any other person or
entity unless the warranted improvements are completed by, and a letter of acceptance
of the warranted iimprovements is received from the City by, such other person or entity.
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 City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook"
and shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of
waste material, rubbish, or building materials caused by the Developer's operation, or
the activities of individual builders and/or subcontractors; shall remove such rubbish as
often as necessary, but no less than daily 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 or as a result of building activity. 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, 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. The Developer also agrees to require all contractors within
the Development to keep the public right-of-way clean and free from accumulation of
dirt, rubbish, and building materials.
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C. The Developer hereby agrees that it will require its contractors and
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 Final Development Plan Documents, or any
documents executed in the future that are required by the City for the approval of an
amendment to a development plan, and the City may withhold (or to the extent
permitted by law, revoke) such building permits and certificates of occupancy as it
deems necessary to ensure performance in accordance with the terms of this
Development Agreement. The processing and "routing for approval" of the various
development plan documents may result in certain of said documents carrying dates of
approval and/or execution that are later than the date of execution of this Development
Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of
this Agreement. The Developer hereby waives any right to object to any such
discrepancy in dates.
E. Nothing herein contained shall be construed as a waiver of any
requirements of the City Code, Land Use Code, or Transitional Land Use Regulations
(as applicable) 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. All financial obligations of the City arising under this Agreement that are
payable after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins City
Council, in its discretion.
H. This Agreement shall run with the Property and shall be binding upon and
inure to the benefit of the parties hereto, their respective 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 Developer shall be
released 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
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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 ten (10) 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 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 atorney'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. Except as may be otherwise expressly provided herein, 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 party or parties shall have any 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 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, CO 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
If to the Developer: South Harmony, LLC
15
8101 E. Prentice Ave.
Suite 815
Greenwood Village, CO 80111
Attn: Alan Kirkhope
If to the Owner: Electric Equipment and Engineering Co.
Employee Profit Sharing Trust
c/o Thomas J. Morroni, Trustee
P.O. Box 16383
Denver, CO 80216
With a copy to: Robert F. Fiori, Esq.
3300 E. First Ave., Suite 600
Denver, CO 80206-5809
Notwithstanding the foregoing, if any party to this Agreement, or its 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 parties to this Agreement written notice of such change.
O. 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, and shall be deemed to be and contain the
entire understanding and agreement between the 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.
P. The Owner is made a party to this Agreement solely for the purpose of
subjecting the Property to the covenants contained in this Agreement. The City and the
Developer expressly acknowledge and agree that the Owner shall not be liable for any
obligations of the Developer under this Agreement, unless the Owner were to exercise
any of the rights of the Developer to undertake any of the development activities
described in this Agreement, in which event the obligations of the Developer shall
become those of the Owner.
ATTEST::/
City Clerk
APPROVED AS TO ONTENT:
c°
City Engineer
APP OV S TO FORM:
Deputy City Attorney
ATT
By:
Jeff Kocs' , A,cY&ntant
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: 0-0- 4. .
City Mkiager
DEVELOPER:
South Harmony, LLC
a Colorado Limited Liability Company
By:
Bradford . Bennet, Manager
OWNER:
Electric Equipment & Engineering Co.
Employee Profit Sharing Trust
Thomas J. Morroni, Trustee
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EXHIBIT "A"
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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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 permit therefor, or (3) any change in
grade, contour or appearance of the 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 standards and specifications 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 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 the passage of three (3) years from the date of
execution of this agreement, the Developer shall resubmit the utility plans to the City
Engineer for reexamination. The City may then require the Developer to comply with
the approved standards and specifications of the City on file in the office of the City
Engineer at the time of the resubmittal.
C. No building permit for the construction of any structure within the Property
shall be issued by the City until the public water lines and stubs to each lot, fire
hydrants, sanitary sewer lines and stubs to each lot, and public streets (including curb,
gutter, and pavernent 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 and sixty feet (660') from a single point of
access, unless the structures contain sprinkler systems that are approved by the
Poudre Fire Authority.
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 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 Final Development Plan
Documents and other approved documents pertaining to this Development on file with
the City.
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EXHIBIT "C"
Refer to the Final Plat for this Development
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DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this ZSTI) day of ,!,
200 by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; and South Harmony LLC, a Colorado
limited liability company, hereinafter referred to as the "Developer" and Electric
Equipment and E=ngineering Co., Employee Profit Sharing Trust hereinafter referred to
as the "Owner."
WITNESSETH:
WHEREAS, the Developer is the owner of a portion of that certain real property
situated in the County of Larimer, State of Colorado, (hereafter sometimes referred to
as the "Property" or "Development") and legally described as follows, to wit:
Brookfield, a tract of land located in Section 4, Township 6 North, Range 68 West
of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado.
WHEREAS, the Developer has entered into an agreement with the Owner to
acquire the ownership of the remaining portion of the above described real property;
and
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, ,plans (including utility plans), reports and other documents required for
the approval of a final plan according to the City's development application submittal
requirements master list (the "Final Development Plan Documents") copies of which are
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 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 Final Development Plan Documents
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:
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 permit therefor, or (3) any change in
grade, contour or appearance of the 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 standards and specifications 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 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 the passage of three (3) years from the date of
execution of this agreement, the Developer shall resubmit the utility plans to the City
Engineer for reexamination. The City may then require the Developer to comply with
the approved standards and specifications of the City on file in the office of the City
Engineer at the time of the resubmittal.
C. No building permit for the construction of any structure within the Property
shall be issued by the City until the public water lines and stubs to each lot, fire
hydrants, sanitary sewer lines and stubs to each lot, and public streets (including curb,
gutter, 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 six hundred and sixty feet (660') from a single point of
access, unless the structures contain sprinkler systems that are approved by the
Poudre Fire Authority.
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 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 Final Development Plan
Documents and other approved documents pertaining to this Development on file with
the City.
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F. Street improvements 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 Final Development Plan
Documents 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 Final Development
Plan Documents shall supersede the standard specifications.
H. Public easements shall be provided for access, utilities and drainage as
required by the design and location of the privately maintained drives as reflected on the
plans. Alignment and grades on said privately maintained drives shall allow for safe
access, ingress and egress by owners, visitors, the general public and public safety
officials and equipment, as approved by the City Engineer.
I. 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, for itself and its successor(s) in interest, 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 (but not to include any
details of such plans, which details shall be the responsibility of the Developer); and (3)
specific written or otherwise documented directives that may be given to the Developer
by the City. The City agrees to give notice to the Developer of any claim made against
it to which this indemnity and hold harmless agreement by the Developer could apply,
and the Developer shall have the right to defend any lawsuit based on such claim and to
settle any such claim provided Developer must obtain a complete discharge of all City
liability through such settlement. Failure of the City to give notice of any such claim to
the Developer within ninety (90) days after the City first receives a notice of such claim
under the Colorado Governmental Immunity Act for the same, shall cause this indemnity
and hold harmless agreement by the Developer to not apply to such claim and such
failure shall constitute a release of this indemnity and hold harmless agreement as to
such claim. 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
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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.
J. 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
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 II.C:, Special Conditions, Storm Drainage Lines and Appurtenances, for
specific instructions.
K. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City of Fort Collins.
L. The Developer specifically represents that to the best of its knowledge all
portions of the Property dedicated (both in fee simple and as easements) 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 2:61, 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, for itself and its successor(s) in
interest, does hereby indemnify and hold harmless the City from any liability whatsoever
that may be imposed upon the City by any governmental authority or any third party,
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, provided that such damages or liability are
not caused by circumstances arising entirely after the date of acceptance by the City of
the public improvements constructed on the dedicated property, except to the extent
that such circumstances are the result of acts or omissions of the Developer. 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. The City agrees to give notice to the Developer of
any claim made .against it to which this indemnity and hold harmless agreement by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
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give notice of any such claim to the Developer within ninety (90) days after the City first
receives a notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
II. Special Conditions
A. Water Lines
1. Water service for the Development will be provided by the City.
The Final Development Plan Documents include connections to a water main in
Cambridge Avenue. The water main in Cambridge Avenue has not yet been
constructed but is included in the final development plan documents for Harmony
Technology Park 2nd Filing. If the Development proceeds before the Harmony
Technology Park, 2nd Filing, the Developer shall be responsible for the construction of
certain water mains included in the final development plan documents for Harmony
Technology Park 2nd Filing at no cost to the City. The Developer shall coordinate with
the Harmony Technology Park 2nd Filing developer to revise and submit to the City for
approval, portions of those final development plan documents (the water main phasing
plan). No building permits shall be issued prior to the completion and acceptance of all
water mains included in the Final Development Plan Documents, and the water mains in
Cambridge Avenue included in the Harmony Technology Park 2nd Filing final
development plan documents.
B. Sewer Lines
1. Notwithstanding anything in this Development Agreement to the
contrary, the Property will be provided sanitary sewer service from the South Fort
Collins Sanitation District ("Sewer District"), and all sewer line improvements shall be
installed and inspected in accordance with the Sewer District's regulations and the
approved plans therefor.
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements associated
with this Development, as shown on the Final Development Plan Documents, shall be
completed by the Developer in accordance with said Final Development Plan
Documents prior to the issuance of more than 15 building permits in this Development.
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 Final Development Plan Documents. Said
certification shall be submitted to the City at least two weeks prior to the date of
issuance of additional building permits.
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2. The Developer shall be responsible for maintaining the structural
integrity and operational functions of all drainage facilities throughout the build -out of
this Development. If at any time following certification (as required pursuant to
paragraph one (1) above) of said drainage facilities and during the construction of
structures and/or lots within this Development the City reasonably decides that said
drainage facilities no longer comply with the approved plans, the City shall give written
notice to the Developer of all items which do not comply with the approved plans.
Unless the Developer successfully appeals the decision of non-compliance, the
Developer shall bring such facilities back up to the standards and specifications as
shown on the approved plans. Failure to maintain the structural integrity and
operational function of said drainage facilities following certification shall result in the
withholding of the issuance of additional building permits and/or certificates of
occupancy until such drainage facilities are repaired to the operational function and
structural integrity which was approved by the City.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the Final Development Plan Documents 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 $36,900.00 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion control measures
shown on the Final Development Plan Documents. Said security deposit(s) 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 Final Development Plan Documents or the erosion control
provisions of the Criteria after receiving notice of the same or an emergency situation
exists which would reasonably require immediate mitigation measures, then, in either
event, and notwithstanding any provisions contained in paragraph III(J) to the contrary,
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(s) 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. In addition, the City shall have the
option to withhold building permits and certificates of occupancy, as stated in Paragraph
III.D of this Agreement, as it deems necessary in order to ensure that the Developer
installs and maintains the erosion control measures throughout the build -out of this
Development.
4. It is important that all buildings be graded to drain in the
configuration shown on the Final Development Plan Documents. For this reason the
following additional requirements shall be followed for all buildings and all lots:
a. Prior to the issuance of a certificate of occupancy for any lot
or building the Developer shall provide the City with certification
that the lot and/or building has been graded correctly. This grading
certification shall demonstrate that the lot or building Finish Floor
elevation has been built in accordance with the elevation specified
on the Final Development Plan Documents. The certification shall
also show that the minimum floor elevation or minimum opening
elevation for any building constructed is in compliance with the
minimum elevation as required on the Final Development Plan
Documents. The certification shall demonstrate as well that any
minor swales adjacent to the building or on the lot have been
graded correctly and in accordance with the grades shown on the
Final Development Plan Documents. The certification shall also
show that the elevations of all corners of the lot are in accordance
with the elevations shown on the Final Development Plan
Documents. Said certification shall be completed by a Colorado
licensed professional engineer and shall be submitted to the City at
least two weeks prior to the date of issuance of the desired
certificate of occupancy.
5. The Developer shall obtain the City's prior approval of any changes
from the Final Development Plan Documents 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 occupancy for this
Development until the City has approved such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
6. The Developer shall limit the construction of the off -site storm
drainage improvement lines to the limits of construction as shown on the Final
Development Plan Documents. The contractor shall re -seed and restore all areas that
are disturbed during construction of the off -site storm drainage improvements in
accordance with the Final Development Plan Documents promptly following
construction. The Developer shall ensure that no negative impact occurs to the
adjoining properties to the east of the Development during the construction of the
detention pond facilities on the east side of the Development. No grading shall be done
outside of the approved areas as shown on the Final Development Plan Documents.
7. The drainage design for this Development provides for the
evacuation of storm drainage runoff in a reasonable amount of time out of the detention
facilities and into the drainage outfall system. If, during or within 2 years after
construction and acceptance of the detention facilities associated with this
Development, surfacing or standing water conditions persist in these facilities; and if
such conditions are beyond what can be expected in accordance with the approved
stormwater design, the Developer shall promptly upon such discovery, install an
adequate dewatering system in the detention facilities. Such a system shall be
reviewed and approved by the City prior to installation.
8. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed outside of the public right-of-way, except for the
storm drainage lines ST-1 East, ST-2 and ST-3 East as designated on the Final Plan
Documents that are serving this Development. These lines shall be maintained in their
entirety by the City following certification by the Developer and acceptance by the City.
9. The Developer shall obtain a permit to allow discharge of drainage
water into the North Poudre Irrigation Company's ditch prior to the recordation of the
subdivision plat for the Property. Such permit shall include the Developer's Agreement
to indemnify and hold harmless the North Poudre Irrigation Company ("Irrigation
Company") and the City from any claims, damages, injury or cause of action against the
Irrigation Company or the City by the Developer, or its successors and assigns, in
relation to the normal operation and use of the ditch by the Irrigation Company, and the
Developer shall further indemnify and hold harmless the City and the Irrigation
Company from any such claims, damages, injury or cause of action by third parties
which result from stormwater volumes added to the ditch by the Developer in excess of
historic flows except as such claims, damages, injury or cause of action are as a result
of a negligent act or acts of the Irrigation Company.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Rock Creek
Drive for those portions of said street abutting the Property as shown on the Final
Development Plan Documents. Reimbursement for Rock Creek Drive shall be for
oversizing the street from local (access) standards to collector standards for any
portion of said roadway constructed by the Developer. The City shall make
reimbursement to the Developer for the aforesaid oversized street improvements in
accordance with Section 24-112 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 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 24-112 (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 24-112 (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 24-112 (d).
2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II(D) are "City improvements" (as
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defined below) 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 Thirty
Thousand Dollars ($30,000), 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. For purposes of this paragraph, the term "City
improvements" shall mean either (1) existing improvements owned by the City that are
to be modified or reconstructed, or (2) any improvements funded in whole or in part by
the City.
3. No street oversizing reimbursement shall be due the Developer for
Cinquefoil Lane.
4. Prior to the release of any building permits in Phase 1, the
Developer shall have completed offsite construction of the full -width of Rock Creek
Drive from the intersection of Northern Lights Drive to Ziegler Road (if not already
constructed), construction of the temporary access road along Precision Drive (west of
Brookfield Drive) to Cinquefoil Lane north to Harmony Road, and if not already
constructed, the Developer shall construct the full -width of Northern Lights Drive from
the intersection of Rock Creek Drive to the Development, as shown on the Final
Development Plan Documents. Upon completion and acceptance by the City of this
Northern Lights Drive improvement (if by the Developer), the Developer shall be entitled
to a prompt reimbursement no greater than the payment received by the City from the
developer of the Willow Brook PDP. No reimbursement will be due the Developer from
the City for the construction of this portion of Northern Lights Drive until such time as
said payment is received from the City by the developer of the Willow Brook PDP;
however, if said payment is not received from the City by the developer of the Willow
Brook PDP, the Developer may then enter into a reimbursement agreement with the
City in accordance with Section 3.3.2(F)(2) of the Land Use Code for the "local street
portion" of streets being built to city standards.
5. With the exception of Phases 2 and 3, all phases must be
constructed in numeric succession and no construction can occur on any given phase
until improvements to the preceding phase have been completed. Phase 3 may begin
construction prior to Phase 2; however, no building permits will be issued within Phases
2 or 3, until the streets and utility facilities within Phase 1 have been completed in
accordance with Section I.C. of this agreement. No building permits will be issued
within Phases 4 and 5 until the streets and utility facilities within the preceding phases
have been completed in accordance with Section I.C. of this agreement.
6. Prior to the release of more than six building permits in Phase 1 the
Developer shall have completed construction of the access path that runs north -south
along the eastern boundary and east -west along the southern boundary of Phase 1 in
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F. Street improvements 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 Final Development Plan
Documents 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 Final Development
Plan Documents shall supersede the standard specifications.
H. Public easements shall be provided for access, utilities and drainage as
required by the design and location of the privately maintained drives as reflected on the
plans. Alignment and grades on said privately maintained drives shall allow for safe
access, ingress and egress by owners, visitors, the general public and public safety
officials and equipment, as approved by the City Engineer.
I. 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, for itself and its successor(s) in interest, 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 (but not to include any
details of such plans, which details shall be the responsibility of the Developer); and (3)
specific written or otherwise documented directives that may be given to the Developer
by the City. The City agrees to give notice to the Developer of any claim made against
it to which this indemnity and hold harmless agreement by the Developer could apply,
and the Developer shall have the right to defend any lawsuit based on such claim and to
settle any such claim provided Developer must obtain a complete discharge of all City
liability through such settlement. Failure of the City to give notice of any such claim to
the Developer within ninety (90) days after the City first receives a notice of such claim
under the Colorado Governmental Immunity Act for the same, shall cause this indemnity
and hold harmless agreement by the Developer to not apply to such claim and such
failure shall constitute a release of this indemnity and hold harmless agreement as to
such claim. 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
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accordance with the Final Development Plan Documents. Prior to the release of more
than five building permits in Phase 2 the Developer shall have completed construction
of the access path that runs north -south along the eastern boundary of Phase 2 in
accordance with the Final Development Plan Documents.
7. 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).
8. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
E. Ground Water, Subdrains and Water Rights
1. The City shall not be responsible for, and the Developer, for itself
and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City
against any damages or injuries sustained in the Development as a result of ground
water seepage or flooding, structural damage, or other damage unless such damages
or injuries are proximately caused by the City's negligent operation or maintenance of its
storm drainage facilities in the Development. However, nothing herein shall be deemed
a waiver by the City of its immunities, defenses, and limitations to liability under the
Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any
other law.
2. If the Development includes a subdrain system, any such subdrain
system, whether located within private property or within public property such as street
rights -of -way or utility or other easements, shall not be owned, operated, maintained,
repaired or reconstructed by the City and it is agreed that all ownership, operation,
maintenance, repair and reconstruction obligations shall be those of the Developer or
the Developer's successor(s) in interest. Such subdrain system is likely to be located
both upon private and public property and, to the extent that it is located on public
property, all maintenance, operation, repair or reconstruction shall be conducted in such
a manner that such public property shall not be damaged, or if damaged, shall, upon
completion of any such project, be repaired in accordance with then existing City
standards. The City shall not be responsible for, and the Developer, for itself and its
successor(s) in interest, hereby agrees to indemnify and hold harmless the City against
any damages or injuries sustained in the Development as the result of groundwater
seepage or flooding, structural damage or other damage resulting from failure of any
such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and
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hold harmless the City against any damages or injuries to water rights caused, directly
or indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided the Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice of any such claim to the Developer within ninety (90) days after the City first
receives notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause the forgoing indemnities and hold harmless agreements by the
Developer to not apply to such claim and such failure shall constitute a release of the
foregoing indemnities and hold harmless agreements as to such claim.
F. Natural Resources
1. All seeded areas shall be inspected jointly by the Developer and
the City at specified intervals. Areas seeded in the spring shall be inspected for
required coverage the following fall not later than October 1. Areas seeded at any other
time shall be inspected the following two summers not later than August 1. The
required coverage for the first inspection shall be ten (10) viable live seedlings of the
specified species per 1000 square centimeters (approximately one square foot), or fifty
percent (50%) coverage of the specified foliage as measured from five feet (5') directly
overhead, with no bare spots larger than 1000 square centimeters. At the time of the
second growing season inspection, there shall be seventy-five percent (75%) foliage
cover of the specified species planted as measured from five (5') directly overhead. No
more than ten percent (10%) of the species noted on the site may be weedy species as
defined by Article III, Section 20-41 of the Code of the City of Fort Collins. Determination
of required coverage will be based on fixed transects each ten meters in length,
randomly placed in representative portions of the seeded areas, with plant species or
bare ground/rock/litter being noted every ten (10) centimeters along each transect. The
Developer shall warrant all seeded areas for two growing seasons from the date of
completion. The Developer shall rework and reseed per original specifications any
areas that are dead, diseased, contain too many weedy species, or fail to meet the
coverage requirement at no additional cost to the City.
2. The Developer shall delineate all Limits of Development with
orange construction fence prior to any type of construction including over lot grading.
3. Fueling facilities shall be located at least one hundred (100) feet
from any body of water, wetland, natural drainage way or manmade drainage way. The
fuel tanks and fueling area must be set in a containment area that will not allow a fuel
spill to directly flow, seep, runoff, or be washed into a body of water, wetland or
drainage way.
n
4. No construction activity shall occur within the Natural Habitat and
Feature buffers located around the fox den and wetlands as identified on the Final
Development Plan Documents. If any accidental construction activity occurs, the
Developer shall contact the City of Fort Collins Natural Resources Department (221-
6600) and shall be required to mitigate all damages resulting therefrom.
G. 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, and throughout the
build -out of this Development, the 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. Such accessway shall be constructed to an unobstructed 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. Prior to the construction of said accessway, a plan for the accessway shall
be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three
plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for
review and processing.) If such accessway is at any time deemed inadequate by the
Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into
compliance and until such time that the accessway is brought into compliance, the City
and/or the Poudre Fire Authority may issue a stop work order for all or part of the
Development.
H. Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain a Footing and Foundation permit upon the
installation of all underground water, sanitary sewer, and storm sewer facilities, and an
emergency accessway for the Phase in which the permit is being requested. Facilities
shall include but not be limited to all mains, lines, services, fire hydrants and
appurtenances for the Phase as shown on the Final Development Plan Documents.
Development Construction Permit
1. The Developer shall apply for and obtain a Development
Construction Permit for this Development, in accordance with Division 2.6 of the Land
Use Code (or Section 29-12 of the Transitional Land Use Regulations, if applicable),
prior to the Developer commencing construction. The Developer shall pay the required
fees for said Permit and construction inspection, and post security to guarantee
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completion of the public improvements required for this Development, prior to issuance
of the Development Construction Permit.
J. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance
guarantee and a five-year repair guarantee covering all errors or omissions in the
design and/or construction of the public improvements required for this Development,
which guarantees shall run concurrently and shall commence upon the date of
completion of the public improvements and acceptance thereof by the City. More
specific elements of these guarantees are noted in Exhibit "C." Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section
3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use
Regulations, as applicable. Notwithstanding the provisions of paragraphs III (1) and (J)
of this Agreement to the contrary, the obligations of the Developer pursuant to this
paragraph and Exhibit "C" may not be assigned or transferred to any other person or
entity unless the warranted improvements are completed by, and a letter of acceptance
of the warranted improvements is received from the City by, such other person or entity.
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 City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook"
and shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of
waste material, rubbish, or building materials caused by the Developer's operation, or
the activities of individual builders and/or subcontractors; shall remove such rubbish as
often as necessary, but no less than daily 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 or as a result of building activity. 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, 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. The Developer also agrees to require all contractors within
the Development to keep the public right-of-way clean and free from accumulation of
dirt, rubbish, and building materials.
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C. The Developer hereby agrees that it will require its contractors and
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 Final Development Plan Documents, or any
documents executed in the future that are required by the City for the approval of an
amendment to a development plan, and the City may withhold (or to the extent
permitted by law, revoke) such building permits and certificates of occupancy as it
deems necessary to ensure performance in accordance with the terms of this
Development Agreement. The processing and "routing for approval" of the various
development plan documents may result in certain of said documents carrying dates of
approval and/or execution that are later than the date of execution of this Development
Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of
this Agreement. The Developer hereby waives any right to object to any such
discrepancy in dates.
E. Nothing herein contained shall be construed as a waiver of any
requirements of the City Code, Land Use Code, or Transitional Land Use Regulations
(as applicable) 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. All financial obligations of the City arising under this Agreement that are
payable after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins City
Council, in its discretion.
H. This Agreement shall run with the Property and shall be binding upon and
inure to the benefit of the parties hereto, their respective 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 Developer shall be
released 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
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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 ten (10) 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 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. Except as may be otherwise expressly provided herein, 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 party or parties shall have any 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 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, CO 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
If to the Developer: South Harmony, LLC
IN
8101 E. Prentice Ave.
Suite 815
Greenwood Village, CO 80111
Attn: Alan Kirkhope
If to the Owner Electric Equipment and Engineering Co.
Employee Profit Sharing Trust
c/o Thomas J. Morroni, Trustee
P.O. Box 16383
Denver, CO 80216
With a copy to: Robert F. Fiori, Esq.
3300 E. First Ave., Suite 600
Denver, CO 80206-5809
Notwithstanding the foregoing, if any party to this Agreement, or its 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 parties to this Agreement written notice of such change.
O. 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, and shall be deemed to be and contain the
entire understanding and agreement between the 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.
P. The Owner is made a party to this Agreement solely for the purpose of
subjecting the Property to the covenants contained in this Agreement. The City and the
Developer expressly acknowledge and agree that the Owner shall not be liable for any
obligations of the Developer under this Agreement, unless the Owner were to exercise
any of the rights of the Developer to undertake any of the development activities
described in this Agreement, in which event the obligations of the Developer shall
become those of the Owner.
16
ATTEST
Y4 >
City Clerk 1/(✓
APPROVED AS TO CONTENT:
0�'1� Isla
City Enginee
APPROV AS TO FORM:
eputy City Attorney
ATTEST:
By:
Jeff Kocs , Acc 6untant
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By:���
City M6rfiager
DEVELOPER:
South Harmony, LLC
a Colorado Limited Liability Company
Bradford . Bennet, Manager
OWNER:
Electric Equipment & Engineering Co.
Employee Profit Sharing Trust
By:
Thomas J. Morroni, Trustee
17
EXHIBIT "A"
Schedule of water lines to be installed out of sequence.
Not Applicable.
Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
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.
18
EXHIBIT "B"
Not Applicable
19
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.
J. 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
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 II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for
specific instructions.
K. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City of Fort Collins.
L. The Developer specifically represents that to the best of its knowledge all
portions of the Property dedicated (both in fee simple and as easements) 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, for itself and its successor(s) in
interest, does hereby indemnify and hold harmless the City from any liability whatsoever
that may be imposed upon the City by any governmental authority or any third party,
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, provided that such damages or liability are
not caused by circumstances arising entirely after the date of acceptance by the City of
the public improvements constructed on the dedicated property, except to the extent
that such circumstances are the result of acts or omissions of the Developer. 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. The City agrees to give notice to the Developer of
any claim made against it to which this indemnity and hold harmless agreement by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
4
EXHIBIT "C
Refer to the Final Plat for this Development
20
give notice of any such claim to the Developer within ninety (90) days after the City first
receives a notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
II. Special Conditions
A. Water Lines
1. Water service for the Development will be provided by the City.
The Final Development Plan Documents include connections to a water main in
Cambridge Avenue. The water main in Cambridge Avenue has not yet been
constructed but is included in the final development plan documents for Harmony
Technology Park 2nd Filing. If the Development proceeds before the Harmony
Technology Park 2nd Filing, the Developer shall be responsible for the construction of
certain water mains included in the final development plan documents for Harmony
Technology Park 2nd Filing at no cost to the City. The Developer shall coordinate with
the Harmony Technology Park 2nd Filing developer to revise and submit to the City for
approval, portions of those final development plan documents (the water main phasing
plan). No building permits shall be issued prior to the completion and acceptance of all
water mains included in the Final Development Plan Documents, and the water mains in
Cambridge Avenue included in the Harmony Technology Park 2nd Filing final
development plan documents.
B. Sewer Lines
1. Notwithstanding anything in this Development Agreement to the
contrary, the Property will be provided sanitary sewer service from the South Fort
Collins Sanitation District ("Sewer District"), and all sewer line improvements shall be
installed and inspected in accordance with the Sewer District's regulations and the
approved plans therefor.
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements associated
with this Development, as shown on the Final Development Plan Documents, shall be
completed by the Developer in accordance with said Final Development Plan
Documents prior to the issuance of more than 15 building permits in this Development.
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 Final Development Plan Documents. Said
certification shall be submitted to the City at least two weeks prior to the date of
issuance of additional building permits.
5
2. The Developer shall be responsible for maintaining the structural
integrity and operational functions of all drainage facilities throughout the build -out of
this Development. If at any time following certification (as required pursuant to
paragraph one (1) above) of said drainage facilities and during the construction of
structures and/oir lots within this Development the City reasonably decides that said
drainage facilities no longer comply with the approved plans, the City shall give written
notice to the Developer of all items which do not comply with the approved plans.
Unless the Developer successfully appeals the decision of non-compliance, the
Developer shall bring such facilities back up to the standards and specifications as
shown on the approved plans. Failure to maintain the structural integrity and
operational function of said drainage facilities following certification shall result in the
withholding of the issuance of additional building permits and/or certificates of
occupancy until such drainage facilities are repaired to the operational function and
structural integrity which was approved by the City.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the Final Development Plan Documents 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 $36,900.00 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion control measures
shown on the Final Development Plan Documents. Said security deposit(s) 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 Final Development Plan Documents or the erosion control
provisions of the Criteria after receiving notice of the same or an emergency situation
exists which would reasonably require immediate mitigation measures, then, in either
event, and notwithstanding any provisions contained in paragraph III(J) to the contrary,
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(s) 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. In addition, the City shall have the
option to withhold building permits and certificates of occupancy, as stated in Paragraph
III.D of this Agreement, as it deems necessary in order to ensure that the Developer
installs and maintains the erosion control measures throughout the build -out of this
Development.
4. It is important that all buildings be graded to drain in the
configuration shown on the Final Development Plan Documents. For this reason the
following additional requirements shall be followed for all buildings and all lots:
a. Prior to the issuance of a certificate of occupancy for any lot
or building the Developer shall provide the City with certification
that the lot and/or building has been graded correctly. This grading
certification shall demonstrate that the lot or building Finish Floor
M
elevation has been built in accordance with the elevation specified
on the Final Development Plan Documents. The certification shall
also show that the minimum floor elevation or minimum opening
elevation for any building constructed is in compliance with the
minimum elevation as required on the Final Development Plan
Documents. The certification shall demonstrate as well that any
minor swales adjacent to the building or on the lot have been
graded correctly and in accordance with the grades shown on the
Final Development Plan Documents. The certification shall also
show that the elevations of all corners of the lot are in accordance
with the elevations shown on the Final Development Plan
Documents. Said certification shall be completed by a Colorado
licensed professional engineer and shall be submitted to the City at
least two weeks prior to the date of issuance of the desired
certificate of occupancy.
5. The Developer shall obtain the City's prior approval of any changes
from the Final Development Plan Documents 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 occupancy for this
Development until the City has approved such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
6. The Developer shall limit the construction of the off -site storm
drainage improvement lines to the limits of construction as shown on the Final
Development Plan Documents. The contractor shall re -seed and restore all areas that
are disturbed during construction of the off -site storm drainage improvements in
accordance with the Final Development Plan Documents promptly following
construction. The Developer shall ensure that no negative impact occurs to the
adjoining propedJes to the east of the Development during the construction of the
detention pond facilities on the east side of the Development. No grading shall be done
outside of the approved areas as shown on the Final Development Plan Documents.
7. The drainage design for this Development provides for the
evacuation of storm drainage runoff in a reasonable amount of time out of the detention
facilities and into the drainage outfall system. If, during or within 2 years after
construction and acceptance of the detention facilities associated with this
Development, surfacing or standing water conditions persist in these facilities; and if
such conditions are beyond what can be expected in accordance with the approved
stormwater design, the Developer shall promptly upon such discovery, install an
adequate dewatering system in the detention facilities. Such a system shall be
reviewed and approved by the City prior to installation.
8. The Developer shall be responsible for maintenance of all storm
drainage facilities; that are constructed outside of the public right-of-way, except for the
storm drainage lines ST-1 East, ST-2 and ST-3 East as designated on the Final Plan
Documents that are serving this Development. These lines shall be maintained in their
entirety by the City following certification by the Developer and acceptance by the City.
9. The Developer shall obtain a permit to allow discharge of drainage
water into the North Poudre Irrigation Company's ditch prior to the recordation of the
subdivision plat for the Property. Such permit shall include the Developer's Agreement
to indemnify and hold harmless the North Poudre Irrigation Company ("Irrigation
Company") and the City from any claims, damages, injury or cause of action against the
Irrigation Company or the City by the Developer, or its successors and assigns, in
relation to the normal operation and use of the ditch by the Irrigation Company, and the
Developer shall further indemnify and hold harmless the City and the Irrigation
Company from any such claims, damages, injury or cause of action by third parties
which result from stormwater volumes added to the ditch by the Developer in excess of
historic flows except as such claims, damages, injury or cause of action are as a result
of a negligent act or acts of the Irrigation Company.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Rock Creek
Drive for those (portions of said street abutting the Property as shown on the Final
Development Plan Documents. Reimbursement for Rock Creek Drive shall be for
oversizing the street from local (access) standards to collector standards for any
portion of said roadway constructed by the Developer. The City shall make
reimbursement to the Developer for the aforesaid oversized street improvements in
accordance with Section 24-112 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 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 24-112 (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 24-112 (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 24-112 (d).
2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II(D) are "City improvements" (as
s
defined below) 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 Thirty
Thousand Dollars ($30,000), 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. For purposes of this paragraph, the term "City
improvements" shall mean either (1) existing improvements owned by the City that are
to be modified or reconstructed, or (2) any improvements funded in whole or in part by
the City.
3. No street oversizing reimbursement shall be due the Developer for
Cinquefoil Lane.
4. Prior to the release of any building permits in Phase 1, the
Developer shall have completed offsite construction of the full -width of Rock Creek
Drive from the intersection of Northern Lights Drive to Ziegler Road (if not already
constructed), construction of the temporary access road along Precision Drive (west of
Brookfield Drive) to Cinquefoil Lane north to Harmony Road, and if not already
constructed, the Developer shall construct the full -width of Northern Lights Drive from
the intersection of Rock Creek Drive to the Development, as shown on the Final
Development Plan Documents. Upon completion and acceptance by the City of this
Northern Lights Drive improvement (if by the Developer), the Developer shall be entitled
to a prompt reimbursement no greater than the payment received by the City from the
developer of the 'Willow Brook PDP. No reimbursement will be due the Developer from
the City for the construction of this portion of Northern Lights Drive until such time as
said payment is received from the City by the developer of the Willow Brook PDP;
however, if said payment is not received from the City by the developer of the Willow
Brook PDP, the Developer may then enter into a reimbursement agreement with the
City in accordance with Section 3.3.2(F)(2) of the Land Use Code for the "local street
portion" of streets being built to city standards.
5. With the exception of Phases 2 and 3, all phases must be
constructed in numeric succession and no construction can occur on any given phase
until improvements to the preceding phase have been completed. Phase 3 may begin
construction prior to Phase 2; however, no building permits will be issued within Phases
2 or 3, until the streets and utility facilities within Phase 1 have been completed in
accordance with Section I.C. of this agreement. No building permits will be issued
within Phases 4 and 5 until the streets and utility facilities within the preceding phases
have been completed in accordance with Section I.C. of this agreement.
6. Prior to the release of more than six building permits in Phase 1 the
Developer shall have completed construction of the access path that runs north -south
along the eastern boundary and east -west along the southern boundary of Phase 1 in
9