HomeMy WebLinkAboutFAIRBROOKE HEIGHTS PUD - Filed OA-OTHER AGREEMENTS - 2003-10-22FAIRBROOKE HEIGHTS P.U.D.
AMENDMENT AGREEMENT NO. 2
f HIS AMENDMENT AGREEMENT NO. 2, made and entered into this �day of
October, 1998. by and between the CITY OF FORT COLLINS, COLORADO, a municipal
corporation ("City"), and ERIC BOOTON, an individual (`Developer"), is an amendment to that
certain Development Agreement dated June 25, 1996 by and between the City and the Developer,
hereinafter referred to as the "Development Agreement".
FACTUAL RECITALS
The City and the Developer have executed the Development Agreement and an Amendment
Agreement No. I to the Development Agreement dated September 30, 1997 in connection with
Fairbrooke Heights 11.U.D., Phase 2 ("Fairbrooke"). The Developer had installed amajority of the
required storm drainage improvements for Fairbrooke prior to a major storm event which occurred
Oil July 28, 1997. As a result of such storm event, certain repair work needed to be done to the
installed improvements. There was also some corrective work required of the Developer for
improvements which were not damaged by the July 28`h storm event. Further, the City determined
that it would be of public benefit to construct additional storm drainage improvements which go
beyond those required of the Developer. The implementation of such City improvements required
the purchase of certain lots in Fairbrooke, which is the subject of a separate agreement between the
parties.
The Developer and the City now desire to modify the Development Agreement to specify the
rights and obligations of the parties in connection with the above -referenced storm drainage
improvements.
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, the parties
agree as follows:
Storm Drainage Improvements.
1.1. Description. Exhibit "A", attached hereto and incorporated herein by
reference, sets forth the storm drainage improvements which have been completed
in connection with Fairbrooke and the costs of such improvements. The
improvements are separated into three categories: those improvements which are
solely the obligation of the Developer to meet City requirements for Fairbrooke
("Developer hnprovements"); those improvements for which the City is solely
responsible because they exceed development requirements ("City Improvements");
and those improvements for which the Developer and the City share responsibility
("Shared Improvements"), the storm drainage improvements collectively being
referred to herein as the "Storm Drainage Improvements".
1.2. Construction. The City has completed all of the remaining Storm Drainage
Improvements. The Developer shall be required to provide applicable City
construction guarantees or warranties only for improvements he has actually
constructed or installed and which have not been modified by the City.
3. All work that would otherwise disturb or restrict the
flow of water in the existing or relocated ditch shall be performed
during the time from October 1 until the following April 15 of any
year and, in any event, not at a time when the Company is running
water. All work will be done only after prior notice to the
superintendent of the Company, and performance of the work shall be
under the supervision of such superintendent. The cost of such
supervision, which shall be paid by Booton, will be billed by the
Company at Twenty Dollars ($20.00) per hour, up to a maximum total
billing for such supervision of One Thousand Dollars ($1,000.00).
Times for the performance of all work will be coordinated with the
Company's superintendent. Unless otherwise agreed to by the
Company, all work shall be completed simultaneously with the
completion of the infrastructure improvements for Phase 2 of
Fairbrooke Heights P.U.D., estimated to be December 31, 1997, but
in no event later than five (5) years from the date of execution of
this Agreement.
4. To the extent necessary, all headgates or control
structures made inoperative or less efficient by virtue of the
ditch relocation shall be replaced by, and at the expense of,
Booton, to the satisfaction of the Company's superintendent.
5. The relocated ditch shall be lined and otherwise
constructed as shown in the Plan, and will be so constructed so
that it will not visibly seep and so that the amount of seepage
from it will not exceed the historical level of seepage.
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6. on the plat of the Fairbrooke Property, Booton will
dedicate a blanket easement to the City and to the Company, in the
width and length shown on Exhibit "B", to be used for a dual ditch
system containing a ditch belonging to the City and a ditch
belonging to the Company for conveyance of storm drainage and ditch
waters (the "Dual Ditch Easement"). The plat of Fairbrooke
Subdivision First Filing, a development adjacent to the eastern
boundary of the Fairbrooke Property, has previously dedicated an
easement to the Company varying in width from 25 feet to 45 feet.
This easement, when combined with the easement to be dedicated on
the plat of the Fairbrooke Property, will provide a total easement
width for the dual ditch system of 100 feet.
7. After relocation of the existing ditch by Booton, the
Company shall execute a quit claim deed to Booton in the form of
Exhibit "D" attached hereto and incorporated herein by reference,
vacating the easement for the ditch on Parcel 2 of the Tax Sale
Property as shown on Exhibit "B" and shall execute a similar deed
for Parcel 1 of the Tax Sale Property as shown on Exhibit "B" to
either Booton or the City, depending on who is then the owner of
such parcel. In addition, such quit claim deeds shall abandon the
portions of the ditch which have been relocated.
8. Booton assumes all liability that may arise relating to
the construction and agrees to indemnify and hold the Company
harmless therefrom. Such liability includes, without limitation,
injury to property, injury or death to people or animals, seepage
damage, severing or damage to utility lines or cables which may
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exist on Fairbrooke Property. (The Company notes that there may be
such utility lines or cables located under the existing ditch or
located at the proposed location of the relocated ditch. Such
cables and lines may include T.V. cable, gas, electric, water,
sewer, telephone, etc.)
9. Subject to the terms of this paragraph, the Company shall
have the responsibility to maintain and repair the relocated ditch.
a. If, within five (5) years from the date the
Company first runs water through the relocated ditch
(after completion), the Company informs Booton that the
relocated ditch has been negligently or improperly
designed or constructed (including materials and
workmanship) and the Company, in general terms, presents
information showing the state of disrepair which has been
caused by such negligence or improper design or
construction, then Booton (at his expense) will promptly
repair the relocated ditch to the satisfaction of the
Company. Booton shall indemnify and hold the Company
harmless from any liability of any nature whatsoever
(including, without limitation, damage to property or
persons) caused by such negligent or improper design or
construction.
b. If within five (5) years from the date the
Company first runs water through the relocated ditch
(after completion) any person or entity alleges and
demonstrates that seepage from the relocated ditch above
and beyond historical levels has caused damage to
property, injury to persons or otherwise asserts and
demonstrates that such seepage from the relocated ditch
is injurious, Booton shall assume all liability and
agrees to indemnify and hold the Company harmless
therefrom.
10. In the event that the Company reasonably determines to
hire an engineer or engineering firm to assist and advise the
Company independently during the construction of the new ditch,
Booton agrees to reimburse the Company for the reasonable fees and
expenses of such engineer or engineering firm hired by the Company
for such purpose, up to a maximum reimbursement of One Thousand
Dollars ($1,000.00).
11. Booton agrees that he will record protective covenants
for the Fairbrooke Heights P.U.D. in the office of the Clerk and
Recorder of the County of Larimer, State of Colorado. Said
protective covenants shall hereinafter be referred to as "the
Protective Covenants." Booton further agrees to establish a
Colorado non-profit corporation commonly known as a Homeowners'
Association to perform the obligations and duties as recited in
this Agreement and to enforce the terms and conditions of the
Protective Covenants. Said homeowners' association shall
hereinafter be referred to as "the Association" or the "Homeowners'
Association." The Protective Covenants shall contain provisions
prohibiting the dumping of trash, debris, lawn clippings, dead
animals or other similar refuse and rubbish in the relocated ditch
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or any portion thereof. The Association shall be responsible for
the removal of any trash, debris, lawn clippings, dead animals or
other similar refuse or rubbish dumped in the relocated ditch or
any portion thereof by an owner of any lot within the Fairbrooke
Property, members of his family, his guests, invitees or tenants.
The Association shall be responsible for the repair of any damage
done to the relocated ditch by owners of property within the
Fairbrooke Heights Property, members of their families, their
guests, invitees or tenants. The Association will assure and
assume the duties and obligations of Booton under this paragraph
and will itself be bound to perform the duties and the obligations
of Booton under this paragraph.
The Association shall act in good faith and use due
diligence to keep owners of lots within the Fairbrooke Property,
members of their families, their guests, invitees and tenants from
trespassing on the Dual Ditch Easement. In the event the Company
and the City reasonably determine that the Association is unable to
prevent such individuals from trespassing on the Dual Ditch
Easement and in the event the Company and the City reasonably
determine that such trespassers are causing substantial damage to
the relocated ditch or the Dual Ditch Easement or are creating a
serious risk of injury to themselves or others, the Company and the
City may require the Association to pay the cost of constructing a
fence along each side of the easement, which fence shall be of a
size and type sufficient to deter such trespassers.
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12. The covenants for the Fairbrooke Property shall
affirmatively state that the Association has the right to assess
homeowners within the Fairbrooke Property for the payment of any
amounts due from the Association to the Company and shall provide
and require that all property owners within the Fairbrooke Property
are automatically members of the Association. The Association's
Articles shall also provide for the authority of the board or other
governing entity to so assess, and the bylaws shall provide a
procedure for the imposition of liens upon properties within the
Fairbrooke Property if such assessments are not duly paid and for
the required assignment by the Association of such lien rights to
the Company if any final award and/or judgment in favor of the
Company and against the Association is not fully paid within sixty
(60) days following the expiration of all rights of appeal of such
award and/or judgment. The above documents shall not be subject to
amendment without the written consent of the Company, and the
documents shall so state. The required documents shall be approved
by the Company, and the covenants, articles and bylaws shall be
duly recorded in the official records of Larimer County prior to
the start of work.
13. Unless waived in writing by the Company, those with
third -party interests as shown by the ownership and encumbrance
report shall agree in writing, to be executed in recordable form
and before construction of the relocated ditch or on the existing
ditch shall begin, to subordinate their interests to the easements
herein created or provided for and to all rights and
responsibilities herein provided.
MCCAFFREY PROPERTY
14. In order to relocate the Company's ditch and to install
storm drainage facilities for the Fairbrooke Property, Booton is
required by the City to obtain a temporary grading easement from
McCaffrey. Within ten (10) days after receipt from Booton of
written notice that he is commencing the ditch relocation work
contemplated in this Agreement, McCaffrey shall grant to Booton a
temporary grading easement more specifically described on Exhibit
"E" attached hereto and incorporated herein by reference (the
"Temporary Grading Easement"). Booton, or his grantee, shall
provide in the Temporary Grading Easement for an indemnification
from Booton, or his grantee, to McCaffrey, indemnifying McCaffrey
from any and all claims arising out of such grading work and
further providing for the restoration of any disturbed property to
its original condition.
15. Once Booton has relocated the Company's ditch as provided
in this Agreement, the Company will execute a quit claim deed to
McCaffrey, in the form shown on Exhibit "D", to vacate the ditch
easement on the McCaffrey Property and to abandon that portion of
the ditch on the McCaffrey Property.
16. Concurrently with his receipt of the referenced quit
claim deed from the Company, McCaffrey shall dedicate to the City
a permanent drainage and slope easement more specifically described
on Exhibit "F" attached hereto and incorporated herein by reference
-10-
(the "Permanent Drainage and Slope Easement"). The Permanent
Drainage and Slope Easement shall be in a form acceptable to the
City, and those with third -party interests shall be required to
subordinate their interests to such easement.
GENERAL PROVISIONS
17. Prior to the commencement of work but after the
Homeowners' Association has been duly formed (with evidence of such
proper formation being provided to the Company in the form of true,
fully -executed copies of all documents relating to such formation),
the Homeowners' Association shall become a party to this Agreement
by executing it. Attached as the last page to this Agreement is a
signature page for the Association to be used for this purpose. A
properly -completed and properly -executed last page shall be
recorded prior to the start of work, and the Company shall receive
the original recorded last page.
18. This Agreement shall be binding and inure to the benefit
of the parties, their heirs, personal representatives, successors
and assigns, including, without limitation, the Fairbrooke
Homeowners' Association to be formed, provided that the obligations
of Booton under this Agreement for design, construction and
installation of the relocated ditch shall remain solely with
Booton, and the same shall not constitute covenants running with
the land and shall not be binding on Booton's grantee unless the
benefits hereunder are assigned to a grantee and the grantee
assumes the obligations hereunder. In the event of such assignment
and assumption, Booton may request that the Company release him
-11-
from liability under this Agreement, and upon submission in writing
to the Company of such request accompanied with the assignment and
assumption, the Company shall not unreasonably deny the request.
19. This Agreement will be recorded with the Clerk and
Recorder of Larimer County, Colorado, at the expense of Booton and
a recorded copy returned to the Company prior to the commencement
of work.
20. Any notice required or permitted hereunder shall be
deemed effective when deposited in the United States mail, postage
prepaid, first class, and addressed to the party to whom notice is
to be given, as follows:
To the Company: Ed Wendel, Superintendent
3909 Mariah Lane
Fort Collins, CO 80525
To Booton: Eric Booton
951 Conifer Place
Loveland, CO 80538
To McCaffrey: c/o William J. McCaffrey
Sheppard Office Systems
902 West Main Street
Auburn, WA 98001
To the City: Glen Schlueter
Storm Water Utility Department
City of Fort Collins
P. O. Box 580
Fort Collins, CO 80522
Said notice to the Company shall not be effective unless
a copy of any notice is also similarly mailed to the Company's
registered agent, as filed with the Colorado Secretary of State's
office.
-12-
In the event that the person or entity to whom notice
shall be given changes, the other party shall be notified in
writing pursuant to this paragraph.
21. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original, but all of which, taken
together, shall constitute one and the same document.
IN WITNESS WHEREOF, the parties have caused these presents to
be duly and properly executed on the day and year first above
written.
By:
ATTEST:
Alder Hill, Secretary
APPROVED TO FORM:
Duttal•, Asst. City Attorney
A`P'JWST: cy\\
Wanda Krajicet, C ty Jerk
-13-
THE PLEASANT VALLEY AND LAKE
CANAL COMPANY
Willis Smith, President
t-fic Boo on
T. B. McCaffrey
CITY OF FORT COLLINS, COLORADO,
a mu ipal corporation
a. 41.6 ,,,.e
John V. Fischbach, City Manager
1.3. Payment for Storm Drainage Improvements. Exhibit "A" sets forth cost
estimates for each of the Storm Drainage Improvements. The costs owed by the
respective parties for such improvements are based upon their actual costs certified
by the City and the Developer after construction thereof. "Actual Cost" means actual
construction cost and the City's cost for the salary of its construction manager in
supervising the installation of the Storm Drainage Improvements.
The difference between the amount owed by the City and that owed by the Developer
is shown on Exhibit "A". Such amount shall be paid by the City to the Developer
within 30 days of execution of this Amendment Agreement No. 2.
1.4. Letters of Credit/Erosion Control. The Developer has previously deposited
a letter of credit with the City in connection with required erosion control measures
for Fairbrooke. Within 30 days after execution of this Amendment Agreement No.
2, the City shall take the necessary steps to assist the Developer in obtaining the
release of the proportionate percentage of such letter of credit which relates to
erosion control measures affecting any property within Fairbrooke either purchased
by the City or on which the City has installed storm drainage improvements.
2. Payment in Lieu of Pond Regrading.
The Developer, at the City's request, has prepared a grading plan for enlargement of
the existing stormwater detention pond located at Fairbrooke. The estimated cost to
enlarge this pond is $26,000, which the parties agree should be allocated equally
between them.
In addition to those City improvements described on Exhibit "A", the City intends
to construct and install regional storm drainage improvements which potentially will
require an enlargement of the Fairbrooke pond. to lieu of regrading the existing
stormwater detention pond, the City desires that the Developer pay its one-half share
of the cost of regrading to the City to be used for its intended regional basin
improvements. The Developer's payment of $13,000 for the Fairbrooke pond
regrading shall be paid by the Developer to the City within 30 days of execution of
this Amendment Agreement No. 2 and shall be in addition to those costs owed by the
Developer to the City which are described on Exhibit "A" .
3. Building Permits.
This Amendment Agreement No. 2 and its accompanying Exhibit "A" shall serve as a
modification of that portion of the approved utility plans related to storm drainage improvements.
Subject only to compliance with any other remaining obligations not related to stormwater and yet
to be performed by the Developer under the Development Agreement and other applicable laws and
regulations of the City, upon certification by the Developer's engineer of the completion of those
Storm Drainage Improvements which were part of the originally -approved final storm drainage plan
for Fairbrooke and have not been subsequently modified, the Developer shall be entitled to receive
all remaining building permits for Fairbrooke (except for the lots purchased by the City).
2
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this Cl
day of ',' j , 1996, by Willis Smith, as President, and
Alden V. Nill, as Secretary, of The Pleasant Valley and Lake Canal
Company.
Notary Public
My Commission expires
STATE OF
COLORADO
)
) ss.
COUNTY OF
LARIMER
)
7'F,
regoing
instrument
was acknowledged before me this��
'
1996,
by Eric Booton.
C
f
Notary Public
PUBLIC
:'
My Commission expires
C•��;••0
)
ss.
COUNTY OF
)
The
foregoing
instrument
was acknowledged before me this
day of
, 1996,
by T. B. McCaffrey.
STATE OF COLORADO )
COUNTY OF LARIMER )
day of )
of the C
Notary Public
My Commission expires
ss.
trument was acknowledged before me this
?961 by John F. Fischbach as City Manager
s, Colorado.
,) Notary Public
My Commission expires
-14-
In the event that the person or entity to whom notice
shall be given changes, the other party shall be notified in
writing pursuant to this paragraph.
21. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original, but all of which, taken
together, shall constitute one and the same document.
IN WITNESS WHEREOF, the parties have caused these presents to
be duly and properly executed on the day and year first above
written.
THE PLEASANT VALLEY AND LAKE
CANAL COMPANY
By:
Willis Smith, President
ATTEST:
Alden T. Hill, Secretary
Eric Booton
CITY OF FORT COLLINS, COLORADO,
a municipal corporation
By:
John F. Fischbach, City Manager
APPROVED AS TO FORM:
John R. Duval, Asst. City Attorney
ATTEST:
Wanda Krajicek, City Clerk
-13-
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this
day of , 1996, by Willis Smith, as President, and
Alden T. Hill, as Secretary, of The Pleasant Valley and Lake Canal
Company.
Notary Public
My Commission expires
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this
day of , 1996, by Eric Booton.
Notary Public
My Commission expires
STATE OF .y,, , _, )
ss.
CQUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1996, by T. B. McCaffrey.
i
Nbtary Public 1,,TA.
My Commission expires W)iARY PU13IIC ;TAB OFMISSOURI
5T 1 OUIS COUNTY
Rdy C MMISSIOPJ FMP NOV. 13,1998
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this
day of , 1996, by John F. Fischbach as City Manager
of the City of Fort Collins, Colorado.
Notary Public
My Commission expires
CRIEW
The undersigned Homeowners' Association hereby agrees to
become a party to the Ditch Relocation Agreement and Easement
(recorded at Reception Number in the records of the
Clerk and Recorder of Larimer County, Colorado), and agrees to be
bound by all of the terms, conditions and provisions that are
applicable to it. This page, when completed and properly executed,
shall also be recorded in Larimer County, Colorado, at the expense
of the Homeowners' Association, and returned to The Pleasant Valley
and Lake Canal Company, P.O. Drawer J, Fort Collins, Colorado,
80522.
Dated this day of
, 199
[Fill in legal name of Homeowners'
Association]
By:
,President
print name
ATTEST:
Secretary
[print name]
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this
day of , 199_, by as
President, and as Secretary, of
Notary Public
My Commission expires
-15-
EXHIBIT
Legal Description of the "Tax Sale Property"
Lot 22, Block 1, FAIRBROOKE SUBDIVISION, FIRST FILING, in
the City of Fort Collins, County of Larimer, State of
Colorado, EXCEPT portion conveyed in Deed recorded August
4, 1987 at Reception No. 87044406.
EXHIBIT
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The Pleasant Valley and Lake Canal Company, a mutual ditch company ("Grantor"), whose
street address is , for the consideration of Ten Dollars ($10.00) and
other valuable consideration, receipt of which is acknowledged, sells and quit claims to
("Grantee") whose street address is , all right, title
and interest in and to the following described real property, together with all its appurtenances, located
in Larimer County:
Executed by the Grantor on , 19_
THE PLEASANT VALLEY AND LAKE CANAL COMPANY
By
ATTEST:
Secretary
STATE OFCOLORADO 1
1 ss.
COUNTY OF LARIMER )
President
The foregoing instrument was acknowledged before me the day of
1995, by Willis Smith, as President of THE PLEASANT VALLEY AND LAKE CANAL COMPANY.
WITNESS my hand and official seal.
Notary Public
My Commission Expires:
After recording return to:
EXHIBIT
"E'.
�1of
TEMPORARY GRADING EASEMENT
That portion of the Northwest Quarter of Section 21, Township 7 North, Range 69 West
of the 6th PAL Larimer County, Colorado, described as follows:
Considering the West line of the East Half of the Northwest Quarter of said Section 21 as
bearing North 00°07'10" East and with all bearings contained herein relative thereto.
Commencing at the Southwest comer of the Southeast Quarter of the Northwest Quarter
of said Section 21; thence North 20'24'16" East 769.67 feet to the True Point of
Beginning; thence South 26°40'19" East 32.60 feet; thence South 44030'00" West 20.31
feet; thence South 26°40'19" East 28.14 feet; thence South 62000'00" East 118.37 feet;
thence North 63°45'54" East 80.02 feet; thence South 80°00'00" West 41.12 feet; thence
North 79'00'00" West 50.00 feet; thence North 38°00'00" West 65.00 feet; thence North
26°52'05" West 39.54 feet: thence North 89°52'50" West 41.86 feet to the True Point of
Beginning.
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PERNLA�NENT DRAINAGE AND SLOPE EASEMENT
That portion of the Northwest Quarter of Section 21, Township 7 North, Range 69 West
of the 6th P.M., Latimer Count}, Colorado, described as follows:
Considering the West line of the East Half of the Northwest Quarter of said Section 21 as
bearing North 0000710" East and with all bearings contained herein relative thereto.
Commencing at the Southwest comer of the Southeast Quarter of the Northwest Quarter
of said Section 21; thence North 20°2416" East 769.67 feet to the True Point of
Bunning; thence South 26=40'19" East 32.60 feet: thence South 44'30'00" West 20.31
feet: thence South 26'40'19" East 28.14 feet: thence South 62'00'00" East 118.37 feet;
thence North 63'45'54" East 80.02 feet; thence South 80'00'00" West 41.12 feet; thence
North 79'00'00" West 50.00 feet: thence North 38000'00" West 65.00 feet; thence North
26'52'05" Nest 39.54 feet: thence North 89052'50" West 41.86 feet to the True Point of
Begkrung.
A90492C
4. Extensions of P.U.D. Approval.
Under the City's land use regulations, a developer may request that two 6-month extensions
of final P.U.D. approval be given. In recognition of the significant delay in the development of
Fairbrookc resulting from the lengthy discussions and negotiations between the Developer and the
City regarding storm drainage issues, the Director of the City's Stormwater Utility, upon the
Developer's request, will provide the Developer with a written statement endorsing and
recommending approval of such extensions.
5. Liability/Indemnification.
5.1. Construction Liability. Each party shall be solely liable for the work each has
performed in the installation of the Storm Drainage Improvements. The parties
hereby indemnify each other against third party claims in connection with storm
drainage construction work performed by each.
5.2. Liability for Storm Drainage Design. To the extent that any of the Storm
Drainage Improvements have resulted in a modification to the originally -approved
final storm drainage plan for Fairbrooke, the City shall be solely liable for such
modified design, and the City hereby indemnifies the Developer against any third
party claims in connection therewith. The Developer shall remain liable for the
design of those storm drainage improvements for Fairbrooke which have not been so
modified. In the event that installation of the Storm Drainage Improvements or any
additional storm drainage improvements desired by the City modify those
improvements agreed upon in the Ditch Relocation Agreement and Easement dated
April 9, 1996 among the City, the Developer and Pleasant Valley and Lake Canal
Company, the City agrees to prepare and submit to the Developer and Pleasant
Valley and Lake Canal Company an amendment to such agreement in which the City
assumes sole liability for such modified improvements and the Developer is relieved
of all liability for the same.
6. Appeals
In the event that any third party appeals the City's execution of this Amendment Agreement
No. 2 and the terms of this Amendment Agreement No. 2 are not approved by the City Council, this
Amendment Agreement No. 2, at the Developer's option, may be declared null and void in its
entirety, and in such event, the Developer shall be required to fulfill only those obligations set forth
in the Development Agreement and Amendment Agreement No. 1.
7. Exhibit "B" to the Development Agreement and Amendment Agreement No. 1.
The provisions ofthis Amendment Agreement No. 2 shall supercede and replace Exhibit"B"
to both the Development Agreement and the Amendment Agreement No. 1.
3
A.
EXHIBIT
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Except as modified above, all other terms and conditions of the Development Agreement
shall remain unchanged and in full force and effect. Nothing in this Amendment Agreement No. 2
shall be construed to waive, remove, limit or abridge, in any manner or to any extent, either party's
right to seek damages from the other for breach of the Development Agreement between them dated
.Tune 16, 1996 or the Amendment Agreement No. 1 dated September 30, 1997 which occurred prior
to the date hereof or to defend against any such actions for damages, and by execution hereof, neither
party admits to any breach of the Development Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first above
written.
ATTEST:
City Clerk
APPROVED AS TTO CONTENT:
Director of Engineering
APPRED AS TO FORM:
Deputy City Attorney
I°AWPf\l ALB00IOMAMBNDA62 10/1/')8
THE CITY OF FORT COLLINS, COLORADO,
a municipal corporation
By: U q
John F. Yischbach, City Manager
Il
DEVELOPER:
ERIC BOOTON, an individual
EXHIBIT A
FAIRBROOKE HEIGHTS COST SUMMARY
Item
Actual
Developer
City
Cost
Share
Share
Fairbrooke Heights Exhibit "B"
(developer paid)
Ditch and Road Grading
$36,709
$18,354.50
$18,354.50
est. $36,709
Side Weir
$6,415
0
$6,415
est. $6,415
Riprap
$4,145
0
$4,145
est. $4,145
Overflow Structure
$2,677
$1,338.50
$1,338.50
est. $2,680
Relocated Headwalls
$2,680
0
$2,680
est. $2,580
36" RCP
$2,973.75
0
$2,973.75
est. $3,038.75
Compaction Testing
$3,573.00
$1,786.50
$1,786.50
est. $1,000
Engineering
$3,000
0
$3,000
est. $3,000
Survey and Plat
$7,209
$3,604.50
$3,604.50
est. $4,020
Ditch Agreement
$2,068
$1,034
$1,034
est. $1,500
Legal Fees
$6,964.45
$3,482.22
$3,482.23
est. $3,000
Total $68,087.50
$78,414.96
$29,600.22
$48,813.98
Post Flood (City Paid)
Embankment Repair South
$5,720.01
$2,860.00
$2,860.01
of Bike Path
Embankment Repair North '
Gerrard
0
0
of Bike Path
Repaired
Grading
$4,931.03
$2,465.53
$2,465.52
(Northern #1,3,8,10,12)
Concrete Cutoff wall & Chase
$6,262.42
$6,262.42
0
(Northern #5, 11)
Seal Pipe Joints
$156.65
$156.65
0
(Northern #6)
Landscaping
$9,700
$4,850
$4,850
(Northern #7)
Certification Survey
$2,136.70
$2,136.70
0
(Northern #13)
Mobilization
$1,445.34
$793.57
$651.77
5%
Project Management
$1,445.34
$793.57
$651.77
5%
Total
$31,797.49
$20,318.46
$11,479.07
Reimbursement to the developer from the City would be $28,495.53.
This line item has been paid
for by the developer's contractor.
However,
it is unclear if such contractor
seek reimbursement from the developer and/or the City.
In the event such a reimbursement is sought,
will
each party to this agreement reserves the right to assert a claim
against the
other party for all or part of this
line item cost.
DITCH RELOCATION AGREEMENT AND EASEMENT
THIS AGREEMENT, made this �� day of rr/ _, 1996, among
THE PLEASANT VALLEY AND LAKE CANAL COMPANY, a mutual ditch company
(the "Company"), ERIC BOOTON as owner of the Fairbrooke Heights
P.U.D. property and certain property adjacent thereto ("Booton"),
T. B. MCCAFFREY as owner of the Brown Farm Highlands II P.U.D.
property ("McCaffrey") and the CITY OF FORT COLLINS, COLORADO, a
municipal corporation (the "City").
WITNESSETH:
THAT WHEREAS, the Company is the owner of an irrigation ditch
and easement therefor (hereinafter the "existing ditch") that
diverts water from the Cache La Poudre River for the purpose of
carrying and providing it to shareholders of the Company; and
WHEREAS, the Company's existing ditch crosses through two
properties owned by Booton and located in the City of Fort Collins,
Larimer County, Colorado, one of which is being developed as
Fairbrooke Heights P.U.D. (the "Fairbrooke Property") and the other
of which is located adjacent to the Fairbrooke Property and
described on Exhibit "A" attached hereto and incorporated herein by
reference (the "Tax Sale Property"); and
WHEREAS, the Company's existing ditch also crosses through
certain property owned by McCaffrey located in Fort Collins,
Colorado and described as Brown Farm Highlands II P.U.D. (the
"McCaffrey Property"); and
WHEREAS, in conjunction with the development of the Fairbrooke
Property, Booton and the City seek to have a portion of the
existing ditch crossing the Tax Sale Property and all of that
portion of the ditch crossing the McCaffrey Property abandoned and
to relocate said portions of the ditch in an easement within the
Fairbrooke Property; and
WHEREAS, upon Booton's relocation of the existing ditch, the
Company shall abandon the ditch across the McCaffrey Property and
that portion of the ditch across the Tax Sale Property which is to
be relocated, identified on Exhibit "B" attached hereto and
incorporated herein by reference; and
WHEREAS, concurrently with such relocation and abandonment of
the ditch, McCaffrey will dedicate a new storm drainage easement to
the City; and
WHEREAS, in conjunction with the development of the Fairbrooke
Property, Booton will enter into a development agreement with the
City providing for the conveyance to the City of the Tax Sale
Property with the exception of Parcel 2 thereof as shown on Exhibit
"B" and further providing for the allocation of costs between
Booton and the City in connection with relocation of the ditch; and
WHEREAS, Booton will dedicate to the City and the Company on
the plat of the Fairbrooke Property a blanket easement for storm
drainage and ditch purposes to accommodate the relocated ditch as
well as a future City ditch as shown on Exhibit "B"; and
WHEREAS, the Company is agreeable to having its existing ditch
relocated if done in accordance with this Agreement.
NOW, THEREFORE, in consideration of a relocation fee in the
amount of Seven Hundred Fifty Dollars ($750.00), the receipt of
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which is hereby acknowledged by the Company, and in consideration
of the mutual promises contained in this Agreement and for other
valuable consideration (including the payment of the Company's
expenses relating to this Agreement), the receipt and sufficiency
of which consideration is acknowledged, the parties agree as
follows:
FAIRBROORE PROPERTY AND TAX SALE PROPERTY
1. Simultaneously with the execution of this Agreement,
Booton will provide the Company with an ownership and encumbrance
report duly prepared and certified as showing such ownership, as
well as the interests of lenders and other lienholders (third -party
interests) in and to the Fairbrooke Property and the Tax Sale
Property. The Fairbrooke Property is being platted into
residential and other lots as shown in the documents collectively
entitled "Fairbrooke Heights P.U.D." prepared by Northern
Engineering Services and as shown on Exhibit "C" attached hereto
and incorporated herein by reference (the "Plan").
2. Exhibit "B" shows the location of the Company's ditch as
it now exists within the Fairbrooke Property, as well as the ditch
as the same is to be relocated. Booton shall, at his expense,
replace the existing ditch by relocating it to the new location,
all in accordance with the plans and specifications stated in the
Plan. At the time the ditch is relocated, Booton will also fill in
the existing and abandoned ditch on the Fairbrooke Property and
provide a suitable access road for the Company along the relocated
ditch.
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