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HomeMy WebLinkAboutINDIAN HILLS VILLAGE PUD - Filed DA-DEVELOPMENT AGREEMENT - 2003-12-04DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this ­�( day of -T= 1991-, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and WONDERLAND HILL DEVELOPMENT 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: INDIAN HILLS VILLAGE P.U.D., Being a Replat of a portion of Indian hills West P.U.D. situate in the Northwest 1\4 of Section 24, Township 7 North, Range 69 West of the Sixth P.M., City of Fort Collins, County of Larimer, State.. of Colorado. WHEREAS, the Developer desires 1�c 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: I. General Conditions APPR9YUED AS TO FOI;y7: _ram City torn�y / DEVELOPER: Wonderland Hill De}2opment Company, a Colorado coroo a on . By: ATTEST: B\\! \ y Bruce L. F:ichardson, Assistant Secretary (corporate seal) M0 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. 11 EXHIBIT "C" Tree Pms.c.i:iorn kegv; remerts India1: nails Vi"i'iagE To ensure the continuation of the existing tree line along the west boundary of Indian Hills Village, the following protection guidelines should be followed. Trees With Diameters Greater Than 8" Provide a six foot wide undisturbed (no grading or filling) tree protection zone along the west property line. The excavation slope for the drainage channel should be no greater than 4:1 starting at the existing grade of the east edge of the six foot tree protection zone. The maximum depth of excavation measured vertically from the base (natural trunk soil interface) of adjacent trees should not exceed I8 inches within a zone measured 10 feet from the outer bark of any adjacent tree over 8 inches diameter. Excavations deeper than 18 inches may occur beyond this 10 foot zone. Tree Diameters 8" or Less Alternative A: Provide a four foot undisturbed (no grading or filling) tree protection zone along the west property line. The excavation slope for the drainage channel should be no greater than 4:1 starting at the existing grade of the east edge of the four foot tree protection zone. The maximum depth of excavation measured vertically from the base (natural trunk soil interface) of adjacent trees should not exceed 18 inches within a zone measured 8 feet from the outer bark of any tree 8 inches in diameter or less. Excavations deeper than 18 inches may occur beyond the 8 foot zone. Alternative B: Provide a six foot wide undisturbed (no grading or filling) tree protection zone along the west property line. A vertical cut of not more than 18" measured from the base (natural trunk soil interface) of adjacent trees can be made at the east edge of the six foot tree protection zone. No excavation greater than 18 inches should be made within 8 feet from the outer bark of any tree 8 inches diameter or less. Excavations deeper than 1S inches may occur beyond this 8 foot zone. ,LLL, —7 City Forester Date LAGUNITAS COMPANY 3; S. C.ilege Aye. Swte 200. Fcr,, Cou,.-s. 3 dCOZ_ 303 225 5000 • FAX 225 4t25 � EXHIBIT "D" TO: Bruce Cohen )� FROM: Jon Prouty I� DATE: June 3, 1994 RE: Draft / Mutual ros , itinnc from Rucnh (ni in _ 1. Lagunitas Company shall consider Busch Court neighbors input and scec:fic / provisions regarding Indian Hills Village covenants and incorporate same Nhere possible. Possibly provide for Busch Court neighbor to be involved in the Incian Hills Village HOA in some fashion as appropriate, such as member, non -voting member, Board of Directors meeting participant or otherwise. 2. Busch Court neighbors reserve the right to have an independent engineer review the drainage plan after ground leveling and prior to City inspection to assure ;hat t meets Cfty requirements (133% tides 100 yeal' flood carrying capacity). Lagurltas Company will make related engineering information available to Busch Ccu, neignbcrs and / or their engineer and furthermore will advise Busch Court neignccrs at least one week prior to City inspection time so that neighborhood and their ergrneer will have time to assess and review the efficacy of the design and provide 'input City. /3. Lagunitas and Hari lyer will draft letters regarding the desirability of including Stuart Street on the new traffic study about to be commenced with copies of each letter ;c each party. A. Lagunitas Company agrees to include a provision in covenants prohibiting Indian Hills Village residents from passing through the Indian Hills Village west boundary line buffer and onto or across Busch Court neighbors yards without their express approval. 5. Lagunitas Company will meet individually with each Busch Court neighbor and consider what their preferences are with regard to thinning and trimming existing buffer and with regard to how it best can be supplemented with new trees, deciduous, evergreen and / or ornamental. Furthermore Lagunitas Company will put together an overall plan for the full west property boundary buffer and review same with the City Forester. Every effort will be made to incorporate Busch Court neighbors suggestions and desires into the overall buffer plan and furthermore every effort will be made to encourage the Cipi, Forester to approve such a plan. 6. Buffer plan shall include evergreen headlight buffers opposite each street and drive which runs perpendicular to west boundary line. y -'— u - Nm -c Crartec to Include a Crovision providing for a month) ` = r, ce charged :o the India^ Hills Village homeowners to go ;n y ,a_ project tree buffers �ning, thinning and replacement prugramerle for the annual 8. Lagunitas Company shall work with the City Forester to modify the west boundary prune, thin, supplement program to include annual contact, to the extent reasonably Possible, with each adjacent Busch Court owner in order to consider their input with regard to annual changes. 9. Lagunitas Company shall work with Power and Light to shield street lights as necessary to minimize street light glare from Indian Hills Village street lights toward Busch Court neighbors. dk 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. No building permits shall be issued for any structure located in excess of nine hundred feet (900' ) from a single point of access. D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets described on Exhibit "A," attached hereto, shall be installed within the time and/or sequence required on Exhibit "A." If the Director of Engineering has determined that any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the utility plans and shall be installed by the Developer within the time as established under "Special Conditions" in this document. 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. 2 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. I. The Developer shall pay storm drainage basin fees in accordance with Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for credit or City repayment under the provisions; of Chapter 26 are described together with estimated cost of the improvements on the attached Exhibit "B," which improvements, if applicable, shall include right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. J. The Developer shall provide the Director of Engineering with certified Record Plan Transparencies on Black Image Diazo r 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 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 more than 18 building permits. 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. Saidcertification shall be submitted to the City at least two weeks prior to the date of issuance for any building permit greater than said 18 building permits. 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 $4,607.00 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 (Criteria). If, at any time, the Developer fails to abide by the provisions of the approved utility plans 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 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. 3. Lots 33 through 37, 40, 41 and 44 through 47 abut certain storm drainage facilities and it is agreed that it is of the utmost importance that no storm water from said facilities enters houses built on said lots. In order to provide the assurance that houses built on said lots are constructed at an elevation that said storm water cannot enter, the approved utility plans contain specifications for the minimum elevation for any opening to each such house. Prior to the issuance of a certificate of occupancy for each of said lots the Developer shall provide certification from a licensed professional engineer that the lowest opening to any such house is at or above the minimum elevations required on said utility plans. 4. The Developer and the City agree that the Developer shall be responsible to obtain the City's approval of any changes from the approved utility plans 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 occupancies until the City has approved such changes as being acceptable for the safe and efficient delivery of storm drainage water. 5 5. The Developer and the City agree that certain lots within this development are located in the current Federal Emergency Management Administration (FEMA) flood way or flood plain for Spring Creek. No building permits shall be issued for Lots 46 and 47 (located in the current FEMA Spring Creek flood way) until said lots have been removed from said flood way by revision to the FEMA map. The Developer may be issued building permits for Lots 1, 2, 21 through 24, and 38 through 45 prior to the revision of the FEMA map for the Spring Creek flood plain only if the lowest finished flour of the houses are constructed at an elevation at least 18 inches above the existing regulatory Spring Creek base flood elevation, in accordance with FEMA requirements. D. Streets. 1. The Developer and the City agree that no street oversizing reimbursement is due the Developer for this development. E. Trees 1. The Developer is required to make his best reasonable efforts consistent with the approved plans to protect all trees designated to be saved on the Property as shown on the approved landscape plan, unless the City Forester determines that any such trees should be removed either now or in the future. In order to protect said trees, the Developer and the City agree that the Developer shall remove all dead and diseased trees and prune and thin all remaining trees for removal of dead wood, safety, tree health, and basic aesthetics (medium prune). The City Forester shall identify all such trees. All such tree removal and pruning shall be completed on any tree or groups of trees prior to any site grading or construction of any storm drains, utilities, streets or alleys within 30 feet of any of said trees. 2. The Developer and the City agree that the Developer is allowed to systematically remove and replace all of the Siberian Elm Trees that exist on the Property along the east and west property lines over a 10 year period from the date of this Agreement. Each year, beginning one year from the date of this Agreement, the Developer shall meet with the City Forester for the purpose of obtaining the City's identification of all dead and diseased trees that need to be removed and obtaining the City's approval of each annual removal and replacement project. In addition, the Developer agrees to contact the adjoining property owners along Busch Court to collect and include their input for the City Forester to consider in approving each annual project. (The goal of this process is to allow new trees to grow and gain some height and density before the old trees are entirely removed.) Healthy and desirable existing trees and shrubs, such as the few Blackberry, cotoneasters, Cottonwood and Box Elder, shall be saved. 3. The Developer shall comply with the "Tree Protection 2 Requirements" attached hereto and incorporated herein as Exhibit "C", which requirements were made a part of the approved utility plans for the development pursuant to Resolution 94-119 of the Council of the City of Fort Collins. F. Grading 1. The Developer has agreed that the property owners adjoining the west property line of this development (Busch Court neighbors) have the right to have an independent engineer review the drainage plan after the ground leveling and prior to the City inspection to assure that it meets City requirements (133% times the 100 year flood carrying capacity), as per the Memo dated June 3, 1994 and attached hereto as Exhibit "D". The City shall review the information presented, if any, by the Busch Court neighbors and shall determine whether such information is sufficiently significant to warrant revisions to the Developer's approved plans. III. Miscellaneous A. The Developer agrees to provide and install, at its expense, adequate barricades, warning signs and similar safety devices at all construction sites within the public right-of-way and/or other areas as deemed necessary by the Director of Engineering :in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until 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 7 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. 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; F] (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. The Developer agrees to comply with the promises and covenants contained in that certain memorandum, dated June 3, 1994, and attached hereto and incorporated herein as Exhibit "D". Since Exhibit "D" constitutes an agreement reached between the Developer and concerned neighbors, the City shall have the right, but not the duty, to enforce the provisions of said exhibit. The neighboring property owners on Busch Court are hereby made and do constitute third party beneficiaries of this (and only this) paragraph for the purpose of enabling said property owners to take such legal or equitable action against the Developer only, as may be necessary to ensure compliance with the provisions of this paragraph "L", however, the losing party in such action shall be liable for the prevailing party's reasonable attorney fees and costs pursuant to this third party beneficiary provision and are pursuant to law, subject to the provisions of Colorado Revised Statutes 13-17-101 which provides for recovery of attorney fees when an action, or any part thereof, is determined to have been substantially frivolous, groundless, or vexatious, or was interposed for delay or harassment. THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By* � rty Manage / 'iTEST• c 0 CITY CLERK APPR ED S TO CONTENT: G 0Dir , ct r f Engineering V