HomeMy WebLinkAboutHORSETOOTH EAST BUSINESS PARK PUD SECOND - Filed DA-DEVELOPMENT AGREEMENT - 2003-12-01DEVELOPMENT AGREEMENT
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THIS AGREEMENT, is made and entered into this day of Yt i
199`1, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City'; and Timberline Partners, Limited, LLLP,
a Colorado limited liability limited partnership, hereinafter referred to as the "Developer".
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer, State of Colorado, (hereafter referred to as the "Property") and legally
described as follows, to wit:
Horsetooth East Business Park PUD, Second Filing, being a replat of Lot 8-A of the
South Collins Tech Center Second Filing, a portion of Lot 8-B of the South Collins
Tech Center Third Filing, a vacated portion of Elk Road, a vacated portion of Otter
Drive, and a portion of unplatted land located in the Northeast Quarter of Section
31, Township 7 North, Range 68 West of the 6th P.M., City of Fort Collins, County
of Larimer, State of Colorado.
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 thefinal 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
clean and free from accumulation of dirt, rubbish, and building materials.
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 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. Financial obligations of the City of Fort Collins payable after the current fiscal
year and/or not appropriated or budgeted are contingent upon funds forthat purpose being
appropriated, budgeted and otherwise made available by the Fort Collins City Council.
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 such event, the
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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
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If to the Developer: Timberline Partners, Limited, LLLP
Attn: Gerald P. Lee
4875 Pearl East Circle, Suite 300
Boulder, Co 80301
With a copy to: Michael A. Maxwell, Esq.
Hasler, Fonfara and Maxwell LLP
125 South Howes Street, Sixth Floor
Fort Collins, Co 80521
Notwithstanding the foregoing, if any party to this Agreement, or their 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 fore convenience of reference and shall in no way
define, limit, or prescribe the scope or intent of any provision under this Agreement.
City ClerK
APPROVED AS TO ONTENT:
City Engineer
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: 14. 4-;�
City M nager
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I
APP OVER AS TO FORM:
��—�
Deputy City Attorney
DEVELOPER:
Timberline Partners, Limited, LLLP, a Colorado limited
liability partnership, By
GB Ventures, LLP, a Colorado limited liability
partnership, i s general partner
By:
Gerald P. Lee, General Partner
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EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of sequence.
The existing sanitary sewer connection in Timberline Road shall be abandoned by
disconnecting the pipe at the main, as shown on the approved documents, after the
completion of the on -site sanitary sewer system.
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
EXHIBIT "C"
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of
two (2) years from the date of completion and acceptance by the City of the
public improvements warranted hereunder, the full and complete
maintenance and repair of the public improvements constructed for this
development. This warranty and guarantee is made in accordance with the
City of Fort Collins Land Use Code and/or the Transitional Land Use
Regulations, as applicable. This guarantee applies to the streets and all
other appurtenant structures and amenities lying within the rights -of -way,
easements and other public properties, including, without limitation, all
curbing, sidewalks, bike paths, drainage pipes, culverts, catch basins,
drainage ditches and landscaping. Any maintenance and/or repair required
on utilities shall be coordinated with the owning utility company or city
department.
The Developer shall maintain said public improvements in a manner that will
assure compliance on a consistent basis with all construction standards,
safety requirements and environmental protection requirements of the City.
The Developer shall also correct and repair, or cause to be corrected and
repaired, all damages to said public improvements resulting from
development -related or building -related activities. In the event the Developer
fails to correct any damages within thirty (30) days after written notice
thereof, then said damages may be corrected by the City and all costs and
charges billed to and paid by the Developer. The City shall also have any
other remedies available to it as authorized by this Agreement. Any
damages which occurred prior to the end of said two (2) year period and
which are unrepaired at the termination of said period shall remain the
responsibility of the Developer.
REPAIR GUARANTEE:
The Developer agrees to hold the City of Fort Collins, Colorado, harmless for
a five (5) year period, commencing upon the date of completion and
acceptance by the City of the public improvements constructed for this
development, from any and all claims, damages, or demands arising on
account of the design and construction of public improvements of the
property shown on the approved plans and documents for this development;
and the owner furthermore commits to make necessary repairs to said public
improvements, to include, without limitation, the roads, streets, fills,
embankments, ditches, cross pans, sub -drains, culverts, walls and bridges
within the right-of-way easements and other public properties, resulting from
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failures caused by design and/or construction defects. This agreement to
hold the City harmless includes defects in materials and workmanship, as
well as defects caused by or consisting of settling trenches, fills or
excavations.
Further, the Developer agrees that the City shall not be liable to the
Developer during the warranty period, for any claim of damages resulting
from negligence in exercising engineering techniques and due caution in the
construction of cross drains, drives, structures or buildings, the changing of
courses of streams and rivers, flooding from natural creeks and rivers, and
any other matter whatsoever on private property. Any and all monetary
liability occurring under this paragraph shall be the liability of the Developer.
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DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this )4"4' day of e4S61M4,
199` by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City"; and
TYCO OIL COMPANY, a Colorado corporation, hereinafter referred to
as the "Developer".
WITNESSETH:
WHEREAS, the Developer is the Owner of certain property
situated in the County of Larimer, State of Colorado, (hereafter
referred to as the "Property") and legally described as follows, to
wit:
CARRIAGE WASH P.U.D., being a replat of a part of South
Collins Tech Center Third Filing and a part of the Northeast
Quarter of Section 31, Township 7 North, Range 69 West of the
6th Principal Meridian, City of Fort Collins, County of
Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has
submitted to the City a subdivision plat and/or a site plan and
landscape plan, a copy of which is on file in the office of the
Director of Engineering and made a part hereof by reference; and
WHEREAS, the Developer has further submitted to the City
utility plans for the Property, a copy of which is on file in the
office of the Director of Engineering and made a part hereof by
reference; and
WHEREAS, the parties hereto have agreed that the development
of the Property will require increased municipal services from the
City in order to serve such area and will further require the
installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a
whole; and
WHEREAS, the City has approved the subdivision plat and/or
site plan and landscape plan submitted by the Developer subject to
certain requirements and conditions which involve the installation
Of and construction of utilities and other municipal improvements
in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the
parties hereto and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, it is agreed
as follows:
1. General Conditions
A. The terms of this Agreement shall govern all development
activities of the Developer pertaining to the Property. For the
purposes of this Agreement, "development activities" shall include,
but not be limited to, the following: (1) The actual construction
of improvements, (2) obtaining a building permit therefor, or (3)
Any change in grade, contour or appearance of said property caused
by, or on behalf of, the Developer with the intent to construct
improvements thereon.
B. All water lines, sanitary sewer collection lines, storm
sewer lines and facilities, streets, curbs, gutters, sidewalks, and
bikepaths shall be installed as shown on the approved utility plans
and in full compliance with the Council -approved standards and
specifications of the City on file in the office of the Director of
Engineering at the time of approval of the utility plans relating
to the specific utility, subject to a three (3) year time
limitation from the date of execution of this Agreement. In the
event that the Developer commences or performs any construction
pursuant hereto after three (3) years from the date of execution of
this agreement, the Developer shall resubmit the project utility
plans to the Director of Engineering for reexamination. The City
may require the Developer to comply with approved standards and
specifications of the City on file in the office of the Director of
Engineering at the time of resubmittal.
C. No building permit for the construction of any structure
within the development shall be issued by the City until the water
lines, fire hydrants, sanitary sewer lines and streets (including
curb, gutter and sidewalk and pavement with at least the base
course completed) serving such structure have been completed and
accepted by the City. Notwithstanding the foregoing, the Developer
shall be entitled to receive a footing and foundation permit for
the construction of improvements within the development upon the
installation of access to provide fire protection and other
emergency services to the site during construction. Adequate water
lines and fire hydrants shall be installed prior to the Developer
being allowed to place combustible materials on the site. All such
access (temporary or permanent) completed prior to footing and
foundation permit and water lines and fire hydrants (temporary or
permanent) completed prior to the placement of combustible material
on the site shall be accepted by the Director of Engineering. No
building permits shall be issued for any structure located in
excess of nine hundred feet (9001) from a single point of access.
D. Any water lines, sanitary sewer lines, storm drainage
lines, and/orstreets described on Exhibit "A," attached hereto,
shall be installed within the time and/or sequence required on
Exhibit "A." If the Director of Engineering has determined that
any water lines, sanitary sewer lines, storm drainage facilities
and/or streets are required to provide service or access to other
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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 development
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 approved final development plan documents and other
approved documents pertaining to this development on file with the City.
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
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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 plat, site, landscape
and utility plans, and other approved documents pertaining to this
development on file with the City.
F. Street improvements (except curbs, gutters and walks)
shall not be installed until all utility lines to be placed therein
have been completely installed, including all individual lot
service lines leading in and from the main to the property line.
G. The installation of all utilities shown on the utility
plans shall be inspected by the Engineering Department of the City
and shall be subject to such department's approval. The Developer
agrees to correct any deficiencies in such installations in order
to meet the requirements of the plans and/or specifications
applicable to such installation. In case of conflict, the utility
plans shall supersede the standard specifications.
H. All storm drainage 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 does hereby indemnify and hold
harmless the City from any and all claims that might arise,
directly or indirectly, as a result of the discharge of injurious
storm drainage or seepage waters from the development in a manner
or quantity different from that which was historically discharged
and caused by the design or 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 directives that
may be given to the Developer by the City. Approval of and
acceptance by the City of any storm drainage facility design or
construction shall in no manner be deemed to constitute a waiver or
relinquishment by the City of the aforesaid indemnification. The
Developer shall engage a licensed professional engineer to design
the storm drainage facilities as aforesaid and it is expressly
affirmed hereby that such engagement shall be intended for the
benefit of the City, and subsequent purchasers of property in the
development.
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I. The Developer shall pay storm drainage basin fees in
accordance with Chapter 26, Article VII of the City Code. Storm
drainage improvements eligible for credit or City repayment under
the provisions of Chapter 26 are described together with estimated
cost of the improvements on the attached Exhibit "B," which
improvements, if applicable, shall include right-of-way, design and
construction costs. See Section II.C, Special Conditions, Storm
Drainage I,ines; and Appurtenances, for specific instructions.
J. The Developer shall provide the Director of Engineering
with certified Record Plan Transparencies on Black Image Diazo
Reverse Mylars> upon completion of any phase of the construction.
K. The Developer specifically represents that to the best of
its knowledge all portions of the Property dedicated 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 does hereby indemnify and hold harmless
the City from any liability whatsoever that may be imposed upon the
City by any governmental authority, 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 pursuant to this development. The Developer further
agrees to indemnify and hold harmless the City from any claims or
actions based directly, indirectly or in any manner on any of the
aforementioned environmental risks brought against the City by
third parties arising as a result of the dedication of portions of
the Property to the City pursuant to this development. 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 pursuant to this development.
II. Special Conditions
A. Water Lines
Not Applicable
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B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. The Developer and the City agree that all on -site and
off -site storm drainage improvements shall be completed by the
Developer in accordance with the approved plans prior to the
issuance of any certificate of occupancy. Completion of
improvements shall include the certification by a licensed
professional engineer that the drainage facilities which serve this
development have been constructed in conformance with said approved
plans. Said certification shall be submitted to the City at least
two weeks prior to the date of issuance for any certificate of
occupancy.
2. The Developer agrees to provide and maintain erosion
control improvements as shown on the approved utility plans to
stabilize all over -lot grading in and adjacent to this development.
The Developer shall also be required to post a security deposit in
the amount of $5,625.00 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion
control measures shown on the approved Plan. Said security deposit
shall be made in accordance with the criteria set forth in the
Storm Drainage Design Criteria and Construction Standards.
D. Streets
1. Subject to the conditions of this Agreement, the City
agrees to reimburse the Developer for oversizing public street
improvements along Timberline Road for that portion of said street
abutting the Property as shown on the approved utility plans.
Reimbursement for Timberline Road shall be for oversizing the
sidewalk from residential standards to major arterial standards.
The City shall make reimbursement to the Developer for the
aforesaid oversized street improvements in accordance with Section
24-121 of the Code of the City. The Developer agrees and
understands that the City shall have no obligation to make
reimbursement payments for street oversizing unless funds for such
payments shall first have been budgeted and appropriated from the
Street Oversizing Fund by the City Council; and the Developer
further understands that to the extent that funds are not available
for such reimbursement, the City may not, in the absence of the
Developer's agreement, require the construction, at the Developer's
expense, of any oversized portion of streets not reasonably
necessary to offset the traffic impacts of the development. The
Developer does hereby agree to construct the aforesaid oversized
street improvements with the understanding that the Developer may
not be fully reimbursed by the City for the cost of such
construction. The Developer further agrees to accept payment in
accordance with Section 24-121 (d) of the Code of the City as full
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and final settlement and complete accord and satisfaction of all
obligations of the City to make reimbursement to the Developer for
street oversizing expenses. It is anticipated by the City that the
City's reimbursement, in accordance with Section 24-121 (d), would
not be less than fifty percent (50a) of the Developer's actual
expenses incurred and will be calculated in accordance with the
formula as set forth in Sect -on 24-121(d).
2. It is understood that the streets to be constructed as
described in this Section II(D) are "city improvements" and, as
such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the
sum of Fifteen Thousand Dollars ($15,000), the contract for the
construction of the same must be submitted to a competitive bidding
process resulting in an award to the lowest responsible bidder; and
evidence must be submitted to the City prior to the commencement of
the work showing that the award was given to the lowest responsible
bidder. If the cost for 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.
3. The Developer and the City agree that the Developer is
responsible for the completion of all public improvements,
including curb, gutter, and sidewalk, in accordance with the
approved utility plans, prior to the issuance of any certificate of
occupancy for the development.
E. Hazards and Emergency Access.
1. No combustible material will be allowed on the site
until a permanent water system is installed by the Developer and
approved by the City.
2. Prior to beginning any building construction, 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. Prior to the City
allowing combustible material on the site (other than forming
material for concrete footings, foundations and/or concrete walls)
such accessway shall be improved to a 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.
3. The issuance of any building permit by the City is
made solely at the Developer's own risk and the Developer shall
hold the City harmless from any and all damages or injuries arising
directly or indirectly out of the issuance of said permit prior to
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the completion of the requirements in accordance with Section 29-
678 of the Code of the City.
III. Miscellaneous
A. The Developer agrees to provide and install, at its
expense, adequate barricades, warning signs and similar safety
devices at all construction sites within the public right-ef-way
and/or other areas as deemed necessary by the Director of
Engineering in accordance with the City's "Work Area Traffic
Control Handbook" and shall not remove said safety devices until
the construction has been completed and approved by the Director of
Engineering.
B. The Developer shall, at all times, keep the public right-
of-way free from accumulation of waste material or rubbish caused
by the Developer's operation; shall remove such rubbish no less
than weekly and; at the completion of the work, shall remove all
such waste materials, rubbish, tools, construction equipment,
machinery, and surplus materials from the public right-of-way. The
Developer further agrees to maintain the finished street surfaces
so that they are free from dirt caused by the Developer's
operation. Any excessive accumulation of dirt and/or construction
materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until
the problem is corrected to the satisfaction of the Director of
Engineering. If the Developer fails to adequately clean such
streets within two (2) days after receipt of written notice, the
City may have the streets cleaned at the Developer's expense and
the Developer shall be responsible for prompt payment of all such
costs.
C. The Developer hereby agrees that it will require its
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 original plat and related documents, or any
replat as subsequently filed by the Developer, and the City may
withhold such building permits and certificates of occupancy as it
deems necessary to ensure performance hereof.
E. Nothing herein contained shall be construed as a waiver of
any requirements of the City Code, and the Developer agrees to
comply with all requirements of the same.
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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. Financial obligations of the City of Fort Collins payable
after the current fiscal year and/or not appropriated or budgeted
are contingent upon funds for that purpose being appropriated,
budgeted and otherwise made available.
H. This Agreement shall run with the Property and shall be
binding upon the parties hereto, their personal representatives,
heirs, successors, grantees and assigns. It is agreed that all
improvements required pursuant to this Agreement touch and concern
the Property regardless of whether such improvements are located on
the Property. Assignment of interest within the meaning of this
paragraph shall specifically include, but not be limited to, a
conveyance or assignment of any portion of the Developer's real or
proprietary interest in the Property, as well as any assignment of
the Developer's rights to develop the Property under the terms and
conditions of this Agreement.
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 City hereby agrees to release said Developer from
liability under this Agreement with respect to any breach of the
terms and conditions of this Agreement occurring after the date of
any such transfer of interest. In such event, the succeeding
property owner shall be bound by the terms of this Agreement.
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 five (5) days within which to cure said default. In
the event the default remains uncorrected, the party declaring
default may elect to: (a) terminate the Agreement and seek damages;
(b) Treat the Agreement as continuing and require specific
performance or; (c) avail itself of any other remedy at law or
equity.
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.
3
L. 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 in which event the
obligations of the Developer shall become those of the Owner.
M. 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.
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: ap T • 4►J"
CitV Manager
AyTEST:
1\�
CITY CLERK
APPROVED AS TO CONTENT:
i
Director of Engineers
APpROVWAS/TKO FORM:
City Attorney
DEVELOPER:
TYCO OIL COMPANY, a Colorado
corporation
By:
Mark R. Tingey, President
ATTEST
1
By (corporate seal)
Polly Jj Tingey; Secretary
7
EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of
sequence.
Not Applicable.
3. Schedule of street improvements to be installed out of
sequence..
Not Applicable.
4. Schedule of storm drainage improvements to be installed out
of sequence.
Not Applicable.
IM
EXHIBIT "B"
NOT APPLICABLE
11
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. 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
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 aforesaid and it is expressly affirmed hereby that
such engagement shall be intended forthe benefit of the City, and subsequent purchasers
of property in the development.
I. The Developer shall pay storm drainage basin fees in accordance with Chapter
26, Article VII of the City Code. Storm drainage improvements eligible for credit or City
repayment under the provisions of Chapter 26 are described together with 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.
J. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of
3
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City of Fort Collins.
K. 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 does hereby indemnify and hold harmless the City from any
liability whatsoever that may be imposed upon the City by any governmental authority,
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 disposal or cleanup is not
necessitated 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. The Developer
further agrees to indemnify and hold harmless the City from any claims or actions based
directly, indirectly or in any manner on any of the aforementioned environmental risks
brought against the City by third parties arising as a result of the dedication of portions of
the Property to the City in connection with this development. 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 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
Not Applicable
4
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. The Developer and the City agree that all on -site and off -site storm
drainage improvements, as shown on the approved final development plan documents,
shall be completed by the Developer in accordance with said final development plan
documents prior to the issuance of any certificate of occupancy for the 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 any
certificate of occupancy for the development.
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 deems that said drainage facilities no longer comply with
the approved plans, 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 approved 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 $ 3,440.70 prior to beginning
construction to guarantee the proper installation and maintenance of the erosion control
measures shown on the approved 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 approved final development plan
documents or the Criteria, 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
Ni
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 buildout of
this development.
4. The Developer and the City agree that it is important that the site be
graded to drain in the configuration shown on the approved final development plan
documents. For this reason the following additional requirements shall be followed:
Prior to the issuance of a certificate of occupancy the Developer shall provide the
City with certification that the site has been graded correctly (including the grading
of any minor swales, if applicable); the lot corner elevations specified on the
approved final development plan documents are correct and in accordance with the
approved final development plan documents; and the minimum floor elevation for
all buildings constructed on said lot has been completed in accordance with the
approved 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 approved 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 and the City agree that the Developer is obligated to
maintain all on -site storm drainage facilities not accepted for maintenance by the City and
all off -site storm drainage facilities not accepted for maintenance by the City serving this
development and outside of the public rights -of -way.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to reimburse
the Developer for oversizing public street improvements along Timberline Road for those
portions of said street as shown on the approved final development plan documents.
Reimbursement for Timberline Road shall be for oversizing the street , placement of a
median within Timberline Road, from local (access) standards to arterial standards. 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
0
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 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 forthe 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. The internal drive through the development (from Automation Way to
Timberline Road) and the improvements on Timberline Road, (including the right turn lane
and the median) shall be constructed, and said improvements to Timberline Road shall be
accepted by the City prior to the issuance of any certificate of occupancy for the
Development..
4. The Developer and the City agree that 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).
5. 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 29-13 and 29-14 of the Transitional Land Use
Regulations of the City.
E. Ground Water
7
1. The City shall not be responsible for, and the Developer 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 sustained as a result of the City's failure to
properly maintain its storm drainage facilities in the 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 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 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.
F. 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 buildout
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 Streetfor 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.
G. 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 site as shown on the final development plan documents.
1.1
H. 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 completion of the public
improvements required for this development, prior to issuance of the Development
Construction Permit.
I. 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.
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
0