HomeMy WebLinkAboutRIDGEWOOD HILLS PUD THIRD - Filed DA-DEVELOPMENT AGREEMENT - 2004-02-04DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this Q 1'1 } day of
2000, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; and Melody Homes, Inc., a Delaware
Corporation, 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 sometimes referred to as the "Property"
or "Development") and legally described as follows, to wit:
Ridgewood Hills P.U.D., Third Filing, located in Section 14, Township 6 North,
Range 69 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 the final development plan documents submitted
by the Developer subject to certain requirements and conditions, which involve the
installation of and construction of utilities and other municipal improvements in connection
with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
I. General Conditions
A. The terms of this Agreement shall govern all development activities of the
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eastern property line, as shown on the final development plan documents.
7. Lots 381 through 394 and 174 shall not have vehicular (driveway)
access off of Avondale Road and Lots 381 through 394 shall have access only to the
shared driveways (circle driveways serving several lots) in front of the lots that access
Avondale Road, as no other vehicular (driveway) access will be allowed.
8. The Developer shall not be issued a building permit for Lot 194 until
the temporary emergency access easement on this lot is vacated. The emergency access
easement on this lot cannot be vacated until the street improvements associated with
Phase 5 are complete.
9. The Developer shall not be issued a building permit for Lots 257, 258
and 259 until: (1) the temporary turnaround easement on this lot is vacated, and (2) the
street improvements in front of the lot are completed including curb, gutter and walk. The
temporary turnaround easement on these lots cannot be vacated until the street
improvements associated with Phase 5 are complete.
10. No access to lot 242 shall be allowed off of Triangle Court until the
street has been completed with either a City approved temporary turnaround or permanent
cul-de-sac, or until the street has been extended to become a through street in accordance
with City standards.
11. No access to lots 136, 266 and 336 shall be allowed off of Matheson
Drive until the street has been completed with either City approved temporary turnarounds
or permanent cul-de-sacs, or until the street has been extended to become a through
street in accordance with City standards.
12. No access to lot 372 shall be allowed off of Peyton Drive until the
street has been completed with either a City approved temporary turnaround or permanent
cul-de-sac, or until the street has been extended to become a through street in accordance
with City standards.
13. No access to lot 319 shall be allowed off of Stonington Lane until the
street has been completed with either a City approved temporary turnaround or permanent
cul-de-sac, or until the street has been extended to become a through street in accordance
with City standards.
14. The Developer agrees that the traffic circle being placed within the
intersection of Triangle Drive and Avondale Road is being placed at the option of the
Developer and is not eligible for any street oversizing sizing reimbursement. The center
island must be maintained by the Developer or it's successor(s) in interest.
15. The Developer is responsible for constructing Avondale Road within
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the right-of-way dedicated as a part of this project. In accordance with the approved
development plan documents the construction of this road will not be to the property line
at this time. Since it is the Developer's responsibility to construct the unbuilt portion to the
property line, the Developer agrees to provide an escrow of funds to cover the cost of the
construction of the pavement, curb, gutter and sidewalk that is not constructed at the time
of development. The escrow of funds shall be deposited with the City in the form of cash,
bond, nonexpiring letter of credit or other form of City approved security sufficient to
guarantee completion of the construction. The amount of said funds shall be the estimated
cost to construct said improvements, which estimate shall be prepared by the Developer
and approved by the City, plus an additional 25% of the estimate to cover any
contingencies and unexpected costs. Said amount shall be deposited with the City prior
to the issuance of any building permit for this Development.
The remaining improvements to Avondale Road shall be made at such time that the
property to the east is developed and Avondale Road is continued onto such property or
at such time that the vacant tracts adjacent to the property are developed. At such time
that the tracts adjacent to Avondale Road are developed and Avondale Road has not been
extended east to SH 287, the recommendations of the traffic study and the City Engineer
shall be followed to determine the improvements necessary to accommodate the
development.
Except as provided in the following paragraph, any interest earned by the City as a result
of said deposit shall be the property of the City to cover administration and inflation in order
to better assist the City in making reimbursement to the party who constructs said
improvements.
If the Developer is the party that constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the Developer
the amount deposited plus any interest earned by the City as a result of said deposit, less
3% of the total amount remaining, (which includes said amount deposited plus the interest
earned by the City) to be kept by the City to cover its costs for administration of said
deposits.
16. A Colorado State Highway Utility Permit must be obtained by the
Developer prior to beginning construction of drainage and/ or utility improvements within
the right-of-way or under SH 287 (South College Avenue). All improvements to said street
shall be completed prior to the issuance of any certificate of occupancy within Phase 4.
17. 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, Subdrains and Water Rights
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1. The City shall not be responsible for, and the Developer, for itself and its
successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any
damages or injuries sustained in the Development as a result of ground water seepage or
flooding, structural damage, or other damage unless such damages or injuries are
sustained as a result of the City's failure to properly maintain its storm drainage facilities
in the Development.
2. If the development includes a subdrain system, any such subdrain
system, whether located within private property or within public property such as street
rights -of -way or utility or other easements, shall not be owned, operated, maintained,
repaired or reconstructed by the City and it is agreed that all ownership, operation,
maintenance, repair and reconstruction obligations shall be those of the Developer or the
Developer's successor(s) in interest. Such subdrain system is likely to be located both
upon private and public property and, to the extent that it is located on public property, all
maintenance, operation, repair or reconstruction shall be conducted in such a manner that
such public property shall not be damaged, or if damaged, shall, upon completion of any
such project, be repaired in accordance with then existing City standards. The City shall
not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby
agrees to indemnify and hold harmless the City against any damages or injuries sustained
in the development as the result of groundwater seepage or flooding, structural damage
or other damage resulting from failure of any such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold
harmless the City against any damages or injuries to water rights caused, directly or
indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
Developer could apply, and the Developer shall have the right to defend any lawsuit based
on such claim and to settle any such claim provided the Developer must obtain a complete
discharge of all City liability through such settlement. Failure of the City to give notice of
any such claim to the Developer within ninety (90) days after the City first receives notice
of such claim under the Colorado Governmental Immunity Act for the same, shall cause
the forgoing indemnities and hold harmless agreements by the Developer to not apply to
such claim and such failure shall constitute a release of the foregoing indemnities and hold
harmless agreements as to such claim.
F. Natural Resources
1. The Developer shall be responsible for implementing mitigation measures
to compensate for the disturbance of off -site wetlands associated with this development.
(Wetland boundaries and disturbance area shall be verified by a qualified wetland
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ecologist in the service of the Developer, and approved by the City to be as shown on the
approved site plan, landscape plan and grading plan. If said wetland boundaries are found
to be different from those shown on the approved site plan, landscape plan and/or grading
plan, the Developer shall modify the approved site plan, landscape plan and/or grading
plan through the administrative change process for a P.D.P. Verification of said wetland
boundaries and the completion of revisions to the site plan, landscape plan and/or grading
plan, if necessary, shall be completed prior to the issuance of any building permits for this
development.)
2. The Developer shall accomplish said mitigation on an acre for acre basis
for the wetland area actually disturbed. A Wetland Mitigation Plan shall be included in the
Utility Plan set and approved by the City Natural Resources Director prior to signing of
construction plans. Construction of said wetland mitigation area shall be completed prior
to the issuance of any building permits in Phase 4 of the project.
3. The City Natural Resources Director shall upon establishment, inspect
the wetlands planned by the Developer pursuant to paragraph 2 above. If the wetlands
have been established in accordance with the approved Wetland Mitigation Plan, they shall
be approved and accepted by the City Natural Resources Director. If the wetlands have
not been established in accordance with the approved Wetland Mitigation Plan, then the
Developer shall promptly take such steps as are necessary to bring the wetlands into
conformance with the approved Wetland Mitigation Plan.
4. Following the restoration efforts the mitigation site will be assessed for
the effectiveness of the project. The Developer shall also ensure that the wetlands are
properly maintained for a three (3) year period following construction thereof to ensure that
the wetland vegetation and hydrologic regime are fully established. Monitoring of the
wetland shall occur at least in June and September of the first growing season and in late
summer of the remaining growing seasons. The status and effectiveness of the wetland
mitigation shall be evaluated and the results shall be reported to the City Natural
Resources Department.
The Developer shiall be responsible for all seeded areas for a period of two (2) growing
seasons from the date of completion or until the plant establishment criteria as contained
in Paragraph (5) below are met, whichever is later.
5. All seeded areas shall be inspected jointly by the Developer and the City
at intervals specified herein. Areas seeded in the spring shall be inspected for required
coverage the following fall not later than October 1. Areas seeded at any other time shall
be inspected the following two summers not later than August 1. The required coverage
for the first inspection shall be ten (10) viable live seedlings of the specified species per
1000 square centimeters (approximately one square foot), or fifty percent (50%) coverage
of the specified foliage as measured from five feet (5') directly overhead, with no bare
spots larger than 1000 square centimeters. At the time of the second growing season
inspection, there shall be seventy-five percent (75%) foliage cover of the specified species
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planted as measured from five (5') directly overhead. No more than ten percent (10%) of
the species noted on the site may be weedy species as defined by Article III, Section 20-41
of the Code of the City of Fort Collins. Determination of required coverage will be based
on fixed transects each ten meters in length, randomly placed in representative portions
of the seeded areas, with plant species or bare ground/rock/litter being noted every ten
(10) centimeters ailong each transect. The Developer shall warrant all seeded areas for
two growing seasons from the date of completion. The Developer shall rework and reseed
per original specifications any areas that are dead, diseased, contain too many weedy
species, or fail to rneet the coverage requirement at no additional cost to the City.
6. The Developer and the City agree that the Developer shall delineate all
Limits of Development with orange construction fence prior to any type of construction
including over lot grading.
7. Fueling facilities shall be located at least one hundred (100) feet from any
body of water, wetland, natural drainage way or manmade drainageway. The fuel tanks
and fueling area must be set in a containment area that will not allow a fuel spill to directly
flow, seep, runoff, or be washed into a body of water, wetland or drainage way.
G. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a permanent
water system is installed by the Developer and approved by the City.
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. Notwithstanding the provisions
of paragraphs III (H) and (1) of this Agreement to the contrary, the obligations of the
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Developer pursuant to this paragraph and Exhibit "C" may not be assigned or transferred
to any other person or entity unless the warranted improvements are completed by, and
a letter of acceptance of the warranted improvements is received from the City by, such
other person or entity.
Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and
shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of waste
material, rubbish, or building materials caused by the Developer's operation, or the
activities of individual builders and/or subcontractors; shall remove such rubbish as often
as necessary, but no less than daily and; at the completion of the work, shall remove all
such waste materials, rubbish, tools, construction equipment, machinery, and surplus
materials from the public right-of-way. The Developer further agrees to maintain the
finished street surfaces so that they are free from dirt caused by the Developer's operation
or as a result of building activity. Any excessive accumulation of dirt and/or construction
materials shall be considered sufficient cause for the City to withhold building permits
and/or certificates of occupancy until the problem is corrected to the satisfaction of the City
Engineer. If the Developer fails to adequately clean such streets within two (2) days after
receipt of written notice, the City may have the streets cleaned at the Developer's expense
and the Developer shall be responsible for prompt payment of all such costs. The
Developer also agrees to require all contractors within the Development to keep the public
right-of-way clean and free from accumulation of dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing operations
when winds are of sufficient velocity to create blowing dust which, in the inspector's
opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements or
obligations may be shown on the final development plan documents, or any documents
executed in the future that are required by the City for the approval of an amendment to
a development plan, and the City may withhold (or to the extent permitted by law, revoke)
such building permits and certificates of occupancy as it deems necessary to ensure
performance in accordance with the terms of this Development Agreement. The
processing and "routing for approval" of the various development plan documents may
result in certain of said documents carrying dates of approval and/or execution that are
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later than the date of execution of this Development Agreement or the Memorandum Of
Agreement (if any) recorded to give record notice of this Agreement. The developer
hereby waives any right to object to any such discrepancy in dates.
E. Nothing herein contained shall be construed as a waiver of any requirements
of the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable)
and the Developer agrees to comply with all requirements of the same.
F. In the event the City waives any breach of this Agreement, no such waiver
shall be held or construed to be a waiver of any subsequent breach hereof.
G. All financial obligations of the City arising under this Agreement that are
payable after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins City
Council, in its discretion.
H. This Agreement shall run with the Property and shall be binding upon and
inure to the benefit of the parties hereto, their respective personal representatives, heirs,
successors, grantees and assigns. It is agreed that all improvements required pursuant
to this Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest within the meaning of
this paragraph shall specifically include, but not be limited to, a conveyance or assignment
of any portion of the Developer's legal or equitable interest in the Property, as well as any
assignment of the Developer's rights to develop the Property under the terms and
conditions of this Agreement.
I. In the event the Developer transfers title to the Property and is thereby
divested of all equitable and legal interest in the Property, the Developer shall be released
from liability under this Agreement with respect to any breach of the terms and conditions
of this Agreement occurring after the date of any such transfer of interest. In such event,
the succeeding property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material
element hereof. In the event that either party shall fail to perform according to the terms
of this Agreement:, such party may be declared in default. In the event that a party has
been declared in default hereof, such defaulting party shall be given written notice
specifying such default and shall be allowed a period of ten (10) days within which to cure
said default. In the event the default remains uncorrected, the party declaring default may
elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as
continuing and require specific performance or; (c) avail itself of any other remedy at law
or equity.
K. In the event of the default of any of the provisions hereof by either party
which shall require the party not in default to commence legal or equitable action against
said defaulting party, the defaulting party shall be liable to the non -defaulting party for the
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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 parry at their respective addresses as set forth
below; and such notice or other communication shall be deemed given when so hand -
delivered or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
If to the Developer:.
With a copy to:
Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees
or assigns, wishes to change the person, entity or address to which notices under this
Agreement are to be sent as provided above, such party shall do so by giving the other
parties to this Agreement written notice of such change.
O. When used in this Agreement, words of the masculine gender shall include
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the feminine and neuter gender, and when the sentence so indicates, words of the neuter
gender shall refer to any gender; and words in the singular shall include the plural and vice
versa. This Agreement shall be construed according to its fair meaning, and as if prepared
by all parties hereto, and shall be deemed to be and contain the entire understanding and
agreement between the parties hereto pertaining to the matters addressed in this
Agreement. There shall be deemed to be no other terms, conditions, promises,
understandings, statements, representations, expressed or implied, concerning this
Agreement, unless set forth in writing signed by all of the parties hereto. Further,
paragraph headings used herein are for convenience of reference and shall in no way
define, limit, or prescribe the scope or intent of any provision under this Agreement.
TTE
-lam
City Clerk
APPROVED A:> TO CONTENT:
City Engin r
AP RO AS TO FORM:
L/
Deputy City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
(�o
By: 2:::q -
City Wnager
DEVELOPER:
Melody homes, Inc., a Delaware Corporation
Tttn4i y J. ratze President Land Development
ATTEST: 7
By:
ii Gc
Gary K. Duke, Vice President Controller
In
EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
3. Schedule of street improvements to be installed out of sequence.
Not Applicable
4. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
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Developer pertaining to the Property. For the purposes of this Agreement, "development
activities" shall include, but not be limited to, the following: (1) the actual construction of
improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or
appearance of the Property caused by, or on behalf of, the Developer with the intent to
construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and
facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on
the approved utility plans and in full compliance with the standards and specifications of
the City on file in the office of the City Engineer at the time of approval of the utility plans
relating to the specific utility, subject to a three (3) year time limitation from the date of
execution of this Agreement. In the event that the Developer commences or performs any
construction pursuant hereto after the passage of three (3) years from the date of
execution of this agreement, the Developer shall resubmit the utility plans to the City
Engineer for reexamination. The City may then require the Developer to comply with the
approved standards and specifications of the City on file in the office of the City Engineer
at the time of the resubmittal.
C. No building permit for the construction of any structure within the Property
shall be issued by the City until the public water lines and stubs to each lot, fire hydrants,
sanitary sewer limes 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.
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EXHIBIT "B"
Not Applicable
ORE
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
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public properties, resulting from 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.
The obligations of the Developer pursuant to the "maintenance guarantee" and 'repair
guarantee" provisions set forth above may not be assigned or transferred to any other
person or entity unless the warranted improvements are completed by, and a letter of
acceptance of the warranted improvements is received from the City by, such other person
or entity.
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G. The installation of all utilities shown on the final development plan documents
shall be inspected by the Engineering Department of the City and shall be subject to such
department's approval. The Developer agrees to correct any deficiencies in such
installations in order to meet the requirements of the plans and/or specifications applicable
to such installation. In case of conflict, the final development plan documents shall
supersede the standard specifications.
H. All storm drainage facilities shall be so designed and constructed by the
Developer as to protect downstream and adjacent properties against injury and to
adequately serve the Property (and other lands as may be required, if any). The Developer
shall meet or exceed the minimum requirements for storm drainage facilities as have been
established by the: City in its Drainage Master Plans and Design Criteria. The Developer,
for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City
from any and all claims that might arise, directly or indirectly, as a result of the discharge
of injurious storm drainage or seepage waters from the Property in a manner or quantity
different from that which was historically discharged and caused by the design or
construction of the storm drainage facilities, except for (1) such claims and damages as
are caused by the acts or omissions of the City in maintenance of such facilities as have
been accepted by the City for maintenance; (2) errors, if any, in the general concept of the
City's master plans (but not to include any details of such plans, which details shall be the
responsibility of the Developer); and (3) specific written or otherwise documented directives
that may be given to the Developer by the City. The City agrees to give notice to the
Developer of any claim made against it to which this indemnity and hold harmless
agreement by the Developer could apply, and the Developer shall have the right to defend
any lawsuit based on such claim and to settle any such claim provided Developer must
obtain a complete! discharge of all City liability through such settlement. Failure of the City
to give notice of any such claim to the Developer within ninety (90) days after the City first
receives a notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim. Approval of and acceptance by the City of any
storm drainage facility design or construction shall in no manner be deemed to constitute
a waiver or relinquishment by the City of the aforesaid indemnification. The Developer
shall engage a Colorado licensed professional engineer to design the storm drainage
facilities as 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 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.
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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
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, for itself and its successor(s) in interest, does hereby
indemnify and hold harmless the City from any liability whatsoever that may be imposed
upon the City by any governmental authority or any third party, pertaining to the disposal
of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking
underground storage tanks, excavation and/or backfill of hazardous substances, pollutants
or contaminants, or environmental cleanup responsibilities of any nature whatsoever on,
of, or related to any property dedicated to the City in connection with this Development,
provided that such damages or liability are not caused by circumstances arising entirely
after the date of acceptance by the City of the public improvements constructed on the
dedicated property, except to the extent that such circumstances are the result of acts or
omissions of the Developer. Said indemnification shall not extend to claims, actions or
other liability arising as a result of any hazardous substance, pollutant or contaminant
generated or deposited by the City, its agents or representatives, upon portions of the
Property dedicated to the City in connection with this Development. The City agrees to give
notice to the Developer of any claim made against it to which this indemnity and hold
harmless agreement by the Developer could apply, and the Developer shall have the right
to defend any lawsuit based on such claim and to settle any such claim provided Developer
must obtain a complete discharge of all City liability through such settlement. Failure of the
City to 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 clairn and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
II. Special Conditions
A. Water Lines
1. Notwithstanding anything in this agreement to the contrary, the
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Property will be provided water service from the Fort Collins -Loveland Water District
("Water District") and all waterline improvements shall be installed and inspected in
accordance with the Water District's regulations and the approved plans therefor.
B. Sewer Lines
1. Notwithstanding anything in this agreement to the contrary, the
Property will be provided sanitary sewer service from the South Fort Collins Sanitation
District ("Sanitary Sewer District") and all waste -waterline improvements shall be installed
and inspected in accordance with the Sanitary Sewer District's regulations and the
approved plans therefor.
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements, as shown on the
approved final development plan documents, shall be completed by the Developer in
accordance with said final development plan documents.
All onsite improvements shown as being part of Phase 1 shall be completed by the
Developer prior to the issuance of more than 14 building permits in Phase 1 of this
Development.
All onsite improvements shown as being part of Phase 2 shall be completed by the
Developer prior to the issuance of more than 13 building permits in Phase 2 of this
Development.
All onsite improvements shown as being part of Phase 3 including the temporary retention
pond shall be completed by the Developer prior to the issuance of more than 10 building
permits in Phase 3 of this Development.
No building permits shall be issued in Phase 4 of this Development until the off -site storm
sewer between this development and Colland Drive, including the storm sewer crossing
under Highway 287 and all associated off -site drainage improvements has been
completed. The Developer shall obtain all necessary Colorado Department of
Transportation Permit(s) for Work in the state right of way before commencing any work
within the Highway 287 rights of way.
All onsite improvements shown as being part of Phase 4 shall be completed by the
Developer prior to the issuance of more than 13 building permits in Phase 4 of this
Development.
All onsite improvements shown as being part of Phase 5 shall be completed by the
Developer prior to the issuance of more than 15 building permits in Phase 5 of this
Development.
All onsite improvements shown as being part of Phase 6 shall be completed by the
Developer prior to the issuance of more than 7 building permits in Phase 6 of this
Development.
All onsite improvements shown as being part of Phase 7 shall be completed by the
Developer prior to the issuance of more than 11 building permits in Phase 7 of this
Development.
All onsite improvements shown as being part of Phase 8 shall be completed by the
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Developer prior to the issuance of more than 12 building permits in Phase 8 of this
Development.
Completion of improvements shall include the certification by a professional engineer
licensed in Colorado that the drainage facilities which serve this Development have been
constructed in conformance with said final development plan documents. Said certification
shall be submitted to the City at least two weeks prior to the date of issuance of additional
building permits for the Development as specified herein.
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. Prior to the issuance of a Development Construction Permit (DCP) for the
work in Phase 4 or subsequent Phases, the Developer shall submit to the City a letter/
agreement from the property at the southeast corner of SH 287 and CR32 (currently a
Schrader Country Store) indicating the intent to allow the construction of the storm sewer
installation across the access drive on CR32. Although the storm sewer work is within the
right-of-way the construction may disrupt the access to this site. Prior to any construction
of the storm sewer or the sanitary sewer the Developer shall have obtained all other
necessary permits needed for the work, including but not limited to County permits and
State Highway permits.
4. The City shall be responsible for maintaining the off -site storm sewer
between Detention Basin #2 and the outfall point East of Colland Drive upon acceptance
by the City of this storm sewer system. Acceptance shall mean acceptance of the
certification of the storm sewer system and all associated construction and re -vegetation
work. The Developer shall provide the City with a 3-year warranty on the materials and
installation of this storm sewer system. The Developer shall also warranty for 3 years the
re -vegetation work that is being done in association with the construction of this storm
sewer. Said warranties shall commence upon completion, and acceptance by the City, of
the storm sewer and vegetation.
5. Notwithstanding the provisions of paragraph II.C.4 above, the
Developer is obligated to maintain all on -site storm drainage facilities not accepted by the
City for maintenance and all off -site storm drainage facilities not accepted by the City for
maintenance serving this Development and outside of the public rights -of -way.
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6. The Developer shall minimize the impact on existing wetlands during
construction of the! off -site storm sewer. If the Developer exceeds the limits of disturbance
as established and shown on the approved final development plan document; then the City
may withhold the issuance of building permits in this Development until corrective action
acceptable to the City has been taken.
7. 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 $169,800.00 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, notwithstanding any provisions contained in paragraph III(J) to
the contrary, the City may enter upon the Property for the purpose of making such
improvements and undertaking such activities as may be necessary to ensure that the
provisions of said plans and the Criteria are properly enforced. The City may apply such
portion of the security deposit(s) as may be necessary to pay all costs incurred by the City
in undertaking the administration, construction, and/or installation of the erosion control
measures required by said plans and the Criteria. In addition, the City shall have the
option to withhold building permits and certificates of occupancy, as stated in Paragraph
III.D of this Agreement, as it deems necessary in order to ensure that the Developer installs
and maintains the erosion control measures throughout the build -out of this Development.
8. The Developer and the City agree that it is important that all lots 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 for
building on all lots:
Prior to the issuance of a certificate of occupancy for any lot in this development, the
Developer shall provide the City with certification that the lot has been graded correctly and
in accordance with the approved final development plans. Such certification shall include,
certification for: the grading of any minor swales, (if applicable); certification that the lot
corner elevations surveyed are correct and in accordance with the approved final
development plan documents; and certification that the minimum floor elevation (when
applicable) for all buildings constructed on any 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.
9. Some lots in this Development abut certain storm drainage facilities and
it is agreed that it is of the utmost importance that no storm water from said facilities enters
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houses built on these lots. In order to provide the assurance that houses built on these lots
are constructed at an elevation that said storm water cannot enter, the approved final
development plan documents contain specifications for the minimum elevation for any
opening to each house. Prior to the issuance of a certificate of occupancy for lots 194
through 220, lots 242 through 249 and 407 through 414; the Developer shall provide
certification from a professional engineer licensed in Colorado that the lowest opening to
any such house is at or above the minimum elevation required on the approved final
development plan documents. Said certification is in addition to, and may be done in
conjunction with, the lot certification described in paragraph II.C.8. above.
10. 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.
11. In addition the Developer shall be required to file a notice for Lots 279
and 280 with the Larimer County Clerk and Recorder describing the landscaping and
fencing restrictions that exist for the drainage easements in this Development. Said notice
shall reference the location of the specific restrictions shown on plans and notes in the
approved final development plan documents. Said notice shall be filed in a City approved
form prior to the sale of any lots affected by such restrictions.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Avondale Road
for those portions of said street abutting the Property as shown on the approved final
development plan documents. Reimbursement for Avondale Road shall be for oversizing
the street from local (access) standards to collector standards. The Developer
understands and agrees that design features and improvements of the Avondale Road and
Triangle Drive intersection, known as a "traffic circle", are a mitigation device elected by
the developer and shall not be eligible for reimbursement as an oversized street
improvement. The City shall make reimbursement to the Developer for the aforesaid
oversized street improvements in accordance with Section 24-112 of the Code of the City.
The Developer agrees and understands that the City shall have no obligation to make
reimbursement payments for street oversizing unless funds for such payments shall first
have been budgeted and appropriated from the Street Oversizing Fund by the City Council;
and the Developer further understands that to the extent that funds are not available for
such reimbursement, the City may not, in the absence of the Developer's agreement,
require the construction, at the Developer's expense, of any oversized portion of streets
not reasonably necessary to offset the traffic impacts of the Development. The Developer
does hereby agree to construct the aforesaid oversized street improvements with the
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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 for the construction of the same must be submitted to a
competitive bidding process resulting in an award to the lowest responsible bidder; and
evidence must be submitted to the City prior to the commencement of the work showing
that the award was given to the lowest responsible bidder. If the cost of such
improvements exceeds Fifty Thousand Dollars ($50,000), the contract for the construction
of the improvements must be insured by a performance bond or other equivalent security.
For purposes of this paragraph, the term "City improvements" shall mean either (1) existing
improvements owned by the City that are to be modified or reconstructed, or (2) any
improvements funded in whole or in part by the City.
3. 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).
4. Construction of Phases of this development must be done in
sequential numeric order and cannot occur until improvements for the prior Phase(s) are
completed. No building permits will be issued within Phases 2, 3,4, 5, 6, 7 and 8 until the
streets and utilities within the preceding Phase(s) have been completed in accordance with
Section I.C. of this agreement. Construction of two or more Phases may occur
simultaneously, however, no building permits in Phase 2, 3, 4, 5, 6, 7, or 8 shall be issued
until improvements have been completed in the previous Phase.
5. No access to lot 14 shall be allowed off of Sedgwick Drive until the
street has been completed with either a City approved temporary turnaround or permanent
cul-de-sac, or until the street has been extended to become a through street in accordance
with City standards.
6. No building permit for lot 174 shall be issued until the temporary
improvements to the traffic circle, as shown on the final development plan documents,
have been removed and the improvements to Avondale Road have been completed to the
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