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HomeMy WebLinkAboutSAGE CREEK - Filed DA-DEVELOPMENT AGREEMENT - 2000-08-10DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into this C' day of 2000, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; the James Construction Company, Inc., a Colorado Corporation, hereinafter referred to as the "Developer." WITNESSETH: WHEREAS, the Developer is the owner of certain real property situated in the County of Larimeir, State of Colorado, (hereafter sometimes referred to as the "Property" or "Development") and legally described as follows, to wit: Sage Creek, A tract of land located in the East Half of Section 5, Township 6 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 the final development plan documents submitted by the Developer subject to certain requirements and conditions, which involve the installation of and construction of utilities and other municipal improvements in connection with the Property. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is agreed as follows: I. General Conditions A. The terms of this Agreement shall govern all development activities of the Developer pertaining to the Property. For the purposes of this Agreement, "development activities" shall include, but not be limited to, the following: (1) the actual construction of improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or 1 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. Notwithstanding the provisions of Paragraph LC of this Agreement and in accordance with Section 3.3.2(F) of the Land Use Code, all subdivisions must have access to an improved arterial street. Therefore all on -site and off -site improvements (including curb, gutter, sidewalk, and pavement with at least the first lift of asphalt) for Ziegler Road shall be completed prior to the issuance of any building permit for the site. Said improvements shall be completed in accordance with the final project development plan documents and the Sage Creek/ Harvest Park County Road 9, Box Culvert, and McClelland Channel Improvement plans. In the event that the Developer is unable to complete construction of the first lift of asphalt pavement for Ziegler Road prior to January 1, 2001, the Developer shall construct a temporary pavement section. The depth and length of said temporary pavement section shall be determined by the City Engineer prior to construction of the temporary roadway. Under no circumstances shall the Developer be allowed more than 12 building permits (or 25% of the single family attached lots) for Phase 1 prior to completing the entirety of the Ziegler Road improvements (including curb, gutter, sidewalk, and the full asphalt pavement section). 4. Prior to the issuance of any building permit, the Developer shall construct Phase 1 of Kechter Road (including curb, gutter, sidewalk, and pavement with at the least the first lift of asphalt) as shown on the final project development plan documents. Said improvements shall include, without limitation, the Ziegler Road/ Kechter Road intersection, all necessary tapers and transitions east of Ziegler Road for the purpose of aligning the street through the Ziegler Road/ Kechter Road intersection, and the temporary transition west of Cornerstone Drive to safely direct vehicles back to existing street conditions. In the event that the Developer is unable to complete construction of the first lift of asphalt pavement for Ziegler Road prior to January 1, 2001, the Developer shall construct a temporary pavement section. The depth and length of said temporary pavement section shall be determined by the City Engineer prior to construction of the temporary roadway. Under no circumstances shall the Developer be allowed more than 12 building permits (or 25% of the single family attached lots) for Phase 1 prior to completing the entirety of the Kechter Road improvements (including curb, gutter, sidewalk, and the full asphalt pavement section). 5. Prior to the issuance of more than 36 building permits (or 50% of the building permits for the single family attached lots, which shall be buildings I, J, K, L, M, and N) in Phase 2, the Developer shall construct the remaining portion of Kechter Road. Said Phase 2 improvements shall be completed in accordance with the final development plan documents. If weather conditions place an undue hardship upon the Developer's ability to construct Kechter Road prior to the issuance of more than 36 building permits (or 50% of the building permits for the single family attached lots), then the Developer shall be required to escrow 125% of the estimated cost of the total Kechter Road improvements prior to the issuance of more than 36 building permits (or 50% of the building permits for m the single family attached lotstwhich shall be buildings I, J, K, L, M, and N) in Phase 2. If the aforementioned situation should occur, the Developer shall be allowed no more than a total of 54 building permits (or a total of 75% of building permits for the single family attached lots (which shall be buildings I, J, K, L, M, N, R, S, and T) in Phase 2 of the development before said improvements are in place and accepted by the City. 6. No building permits shall be issued for Phase 2 until the improvements as required under the provisions of Paragraphs 1.C, 2.D.3, and 2.D.4 of this agreement for Phase 1 of the development have been completed. No building permits shall be issued for Phases 3 and 4 until the improvements as required under the provisions of Paragraphs 1.C, 2.D.3, 2.D.4, and 2.D.5 of this agreement for Phases 1 and 2 of the development have been completed. 7. The Developer is responsible for the inspection and rating of the three box culverts across the McClelland Channel on Corbett Drive, Old Mill Road, and Ziegler Road in accordance with State of Colorado criteria. Said inspection and rating shall include a Load Factor Rating Summary and Maintenance Activities Report conducted by a State of Colorado approved party not affiliated with the design or construction of said box culverts. This report must be submitted to the City and must be accepted by the City as demonstrating that the design and construction meets acceptable standards and are efficient for HS-20 design loading prior to any City acceptance of the box culvert structures. 8. The Developer is responsible for the maintenance and construction of any pedestrian facilities located within Tracts A, C, D, and K. Said maintenance responsibilities for the pedestrian facilities apply to all pedestrian amenities within the dedicated tracts, including, without limitation, all sidewalks and pedestrian bridges. Said construction responsibilities for the pedestrian amenities within Tracts C, D, and K shall be completed prior to issuance of 18 building permits (or 25% of the building permits for the single family attached lots) for Phase 2. Said construction responsibilities for the pedestrian amenities within Tract A shall be completed prior to more than 14 building permits for Phase 4 of the development. Type III barricades shall be installed at the termination of the! pedestrian bridges (if the pedestrian trail system to the north of the bridge has not been completed at the time of construction of each bridge). The construction obligations outlined herein shall be completed as shown on the approved final development plan documents and the Sage Creek/ Harvest Park County Road 9, Box Culvert, and McClelland Channel Improvement plans. 9. Prior to any building permits in Phase 2, the Developer shall have completed construction of Corbett Drive across the McClelland Channel. Type III barricades shall be installed at the termination of Corbett Drive across the channel (if Corbett Drive north of the culvert and McClelland Channel has not be completed at this time). The construction obligations outlined herein shall be completed as shown on the approved final development plan documents and the Sage Creek/ Harvest Park County Road 9, Box Culvert, and McClelland Channel Improvement plans. 11 10. Prior to the issuance of more than 13 building permits in Phase 3, the Developer shall have completed construction of Old Mill Road across the McClelland Channel. Type III barricades shall be installed at the termination of Old Mill Road across the channel (if Old Mill Road north of the culvert has not been completed at this time). The construction obligations outlined herein shall be completed as shown on the approved final development plan documents and the Sage Creek/ Harvest Park County Road 9, Box Culvert, and McClelland Channel Improvement plans. 11. No vehicular (driveway) access off of Corbett Drive shall be allowed for Lot 10, Block 6, Lots 10 and 11, Block 7, and Lots 10 and 11, Block 8. 12. 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). 13. The landscaping located in the traffic circle median for Corbett Drive shall not be maintained by the City and it is agreed that all installation, maintenance, operation, repair and reconstruction obligations relating to the landscaping and the irrigation of said landscaping shall be that of the Developer or the Developer's successor(s) in interest. To the extent that said landscaping and irrigation is located on public property, all installation, maintenance, operation, repair and reconstruction shall be conducted in such a manner that such public property shall not be damaged, or if damaged, shall be repaired in accordance with then existing City standards. 14. The landscaping located in the traffic circle median for Corbett Drive shall be "drip" irrigated. 15. The Developer hereby indemnifies and holds the City harmless from any damage caused to the roadway (concrete, asphalt, curb and gutter) when such damage is caused, directly or indirectly, by the acts or omissions of the Developer in irrigating the landscaping within the traffic circle median for Corbett Drive. Notwithstanding any provision in this Agreement to the contrary, this indemnity may be assigned only to a bonafide homeowner's association which has lawfully assumed the irrigation obligation from the Developer and only if such assignment is in writing and duly and lawfully executed by such homeowner's association and approved in writing by the City. 16. The Developer agrees that the traffic circle for Corbett Drive is subject to the sight distance easement restriction language as specified in the final development plan documents. 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 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code 12 of the City. E. Natural Resources 1. The Developer agrees that following the installation of the McClelland Channel improvements the site will be assessed for the effectiveness of the project. The Developer shall also ensure that all vegetation within the channel is properly maintained for a three- (3) year period following construction thereof to ensure that the vegetation and hydrologic regime are fully established. Monitoring of the vegetation shall occur in June and September of the first growing season and in late summer of the remaining growing seasons. The status and effectiveness of the vegetation shall be evaluated and the results shall be reported to the City of Fort Collins for review. 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. The Developer and the City agree that the Developer shall be responsible for all seeded areas for a minimum of three (3) growing seasons from the date of completion or until the plant establishment criteria set forth in Paragraph 4 below are met. 2. The Developer is responsible for implementing mitigation measures to compensate for the disturbance of approximately 0.17 acres of wetlands on this development site. (If said wetland boundaries are found to be different from those shown on the approved project development plan documents, the Developer shall modify the approved project development plan documents through the administrative change process for a P.D.P.) 3. The Developer agrees to accomplish said mitigation by the creation of wetlands through the establishment of hydrologic regime and wetland vegetation. Construction of said wetland mitigation area shall be completed prior to the issuance of more than 18 building permits (for the single family attached lots) in Phase 2. 4. The Developer agrees that all seeded areas shall be inspected jointly by the Developer and the City at specified intervals. Areas seeded in the spring shall be inspected for required coverage the following fall not later than October 1. Areas seeded at any other time shall be inspected the following two summers not later than August 1. The required coverage for the first inspection shall be ten (10) viable live seedlings of the specified species per 1000 square centimeters (approximately one square foot), or fifty percent (50%) coverage of the specified foliage as measured from five feet (5') directly overhead, with no bare spots larger than 1000 square centimeters. At the time of the second growing season inspection, there shall be seventy-five percent (75%) foliage cover of the specified species planted as measured from five (5') directly overhead. No more than ten percent (10%) of the species noted on the site may be weedy species as defined 13 by Article III, Section 20-41 of the Code of the City of Fort Collins. Determination of required coverage will be based on fixed transects each ten meters in length, randomly placed in representative portions of the seeded areas, with plant species or bare ground/rock/litter being noted every ten (10) centimeters along each transect. The Developer shall warrant all seeded areas for three growing seasons from the date of completion. The Developer shall rework and reseed per original specifications any areas that are dead, diseased, contain too many weedy species, or fail to meet the coverage requirement at no additional cost to the City. 5. Fueling facilities shall be located at least one hundred (100) feet from any body of water, wetland, natural drainage way or manmade drainage way. The fuel tanks and fueling area must be set in a containment area that will not allow a fuel spill to directly flow, seep, runoff, or be washed into a body of water, wetland or drainage way. F. Ground Water, Subdrains and Water Rights 1. The City shall not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the Development as a result of ground water seepage or flooding, structural damage, or other damage unless such damages or injuries are 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. 14 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. G. Hazards and Emergency Access 1. No combustible material will be allowed on the site until a permanent water system is installed by the Developer and approved by the City. 2. Prior to beginning any building construction, and throughout the build - out of this Development, the Developer shall provide and maintain at all times an accessway to said building or buildings. Such accessway shall be adequate to handle any emergency vehicles or equipment, and the accessway shall be kept open during all phases of construction. Such accessway shall be constructed to an unobstructed width of at least 20 feet with 4 inches of aggregate base course material compacted according to city standards and with an 80 foot diameter turnaround at the building end of said accessway. The turnaround is not required if an exit point is provided at the end of the accessway. Prior to the construction of said accessway, a plan for the accessway shall be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for review and processing.) If such accessway is at any time deemed inadequate by the Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into compliance and until such time that the accessway is brought into compliance, the City and/or the Poudre Fire Authority may issue a stop work order for all or part of the Development. H. Footing and Foundation Permits 1. Notwithstanding any provision in this Agreement to the contrary, the Developer shall Ihave 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 Phases 1 and 2 in which the permit is being requested. Facilities shall include but not be limited to all mains, lines, services, fire hydrants and appurtenances for Phases 1 and 2 as shown on the final development plan documents. No Footing and f=oundation permits shall be allowed for Phases 3 and 4. 15 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. J. Maintenance and Repair Guarantees 1. The Developer agrees to provide a two-year maintenance guarantee and a five-year repair guarantee covering all errors or omissions in the design and/or construction of the public improvements required for this Development, which guarantees shall run concurrently and shall commence upon the date of completion of the public improvements and acceptance thereof by the City. More specific elements of these guarantees are noted in Exhibit "C." Security for the maintenance guarantee and the repair guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use Regulations, as applicable. Notwithstanding the provisions of paragraphs III (H) and (1) of this Agreement to the contrary, the obligations of the Developer pursuant to this paragraph and Exhibit "C" may not be assigned or transferred to any other person or entity unless the warranted improvements are completed by, and a letter of acceptance of the warranted improvements is received from the City by, such other person or entity. Ill. 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 16 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 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. 17 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 beer. 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 IN With a copy to: City Attorney's Office City of Fort Collins P.O. Box 580 Fort Collins, Co 80522 If to the Developer: Jim Postle James Construction Company, Inc. 2919 Valmont Road, Suite 204 Boulder, CO 80301 (303)443.6666 Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees or assigns, wishes to change the person, entity or address to which notices under this Agreement are to be sent as provided above, such party shall do so by giving the other parties to this Agreement written notice of such change. O. When used in this Agreement, words of the masculine gender shall include the feminine and neuter gender, and when the sentence so indicates, words of the neuter gender shall refer to any gender; and words in the singular shall include the plural and vice versa. This Agreement shall be construed according to its fair meaning, and as if prepared by all parties hereto, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto pertaining to the matters addressed in this Agreement. There shall be deemed to be no other terms, conditions, promises, understandings, statements, representations, expressed or implied, concerning this Agreement, unless set forth in writing signed by all of the parties hereto. Further, paragraph headings used herein are for convenience of reference and shall in no way define, limit, or prescribe the scope or intent of any provision under this Agreement. TT City Clerk APPROVED AS TO CONTENT: City Enginee THE CITY OF FORT COLLINS, COLORADO, a Municipal) o�rporation By: �. LjkL City Ma'ft&ger 19 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, excluding the garage structures for Phases 1 &2 within the Property shall be issued by the City until the public water lines and stubs to each lot, fire hydrants, sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, 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 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 shall be inspected by the Engineering Department of the City and shall be subject to such Ir APPROVE�AS TO FORM: Deputy City Attorney DEVELOPER: James Construe Corporation, Inc., a Colorado Corporation 7 0 ATTEST: — By: G enee McCanley, Marketing sistant v ME President 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. 21 Exhibit "B" The Development Agreement for Sage Creek PDP- City of Fort Collins, Larimer County, Colorado. The following cost estimates for "McClelland Channel' improvements constitute costs associated with major drainage improvements that are eligible for repay to the developer. These costs are based on analysis presented to the City by Sear Brown for Structural Improvements on March 22, 2000; and by Vignette Studios on April 18, 2000 for the "Enhanced Landscaping" Improvements. The City shall make payments to the Developer on the basis of actual costs as submitted by the Developer, based on actual Contractor Invoices within 60 days from submittal of invoices. The City reimbursed costs for Structural Improvements (Riffle Pools and Drop Structures) shall not exceed the maximum amount of $83,403.00 as detailed and listed below. The City reimbursed costs for "Enhanced Landscaping" Improvements (Trees and Shrubs) shall not exceed the maximum amount of $24,006.25 as detailed and listed below. McCllellands Channel Improvements for Sage Creek Cost estimate for Riffle Pools, Drop Structures and Enhanced Landscaping Riffle Pools and Drop Structures costs calculated by: Jim Allen -Morley, PE of Sear Brown, March 22, 2000 Enhanced Landscaping Costs calcualted by Terence Hoaglund, ASLA of Vignette Studios, April 18 2000 Structural Channel Improvements (Riffle Pools and Drop Structures): Item Unit Unit Cost $ CITY Total Cost $ Two Riffle Pools Dewatering Grout Ground Waiter barrier L.S. L.S. $2,000.0 $1,000.0 1 1 $2,000 $1,000 22 ype II Bedding ype L River tock(Installatiori) V to 4' River tock(installation) ype L River Rock(material) �' to 4' River Rock(Material) Ton C.Y. C.Y. Ton Ton $20.40 $35.00 $35.00 $46.00 $21.00 5 203 116 15 254 Subtotal $103 $7,097 $4,044 $700 $5,339 $20,283 1 Control Structures lewatering L.S. $2,000.0 1 $2,000 ype L River C.Y. $35.00 517 $18,083 ;ock(Installation) 'to 4' River C.Y. $35.00 276 $9,644 ;ock(installation) ype L River Rock(material) Ton $46.00 39 $1,783 'to 4' River Rock(Material) Ton $21.00 606 $12,731 ngineering L.S. $6,000.0 1 $6,000 urveying L.S. $2,000.0 1 $2,000 Subtotal $52,241 Subtotal $72524 15% cont $10:879 Total $83,403 23 Enhanced Landscaping Improvements: Item Size Units QTY 1/2 of QTY Unit TOTAL Cost (Total) (City's ($) ($) Share) us Shade Trees 2" CAL ea 82 41 200 8200 us Trees 6-8' B&B ea 34 17 250 4250 us Shrubs 5 Gal ea 674 337 25 8425 Subtotal $20,875 15% Contigency $3,131.25 Total $24,006.25 Landscaoina Maximum Reimbursable Amount by the City for all McCllelland Channel Improvements (Including contingency) Total Structural $83,403. Total Landscaping $24,006.25 Total Channel $107,409.25 Improvements 24 EXHIBIT "C" Refer to the Final Plat for this Development 25 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, the Developer, 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, 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 notiice 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. IL Special Conditions A. Water Lines 1. Not Applicable B. Sewer Lines 0 Not Applicable C. Storm Drainage Lines and Appurtenances 1. The storm drainage improvements associated with Phase 1 of this development, as shown on the approved final development plan documents and the Sage Creek/ Harvest Park County Road 9, Box Culvert, and McClelland Channel Improvement plans, shall be completed by the Developer in accordance with said final development plan documents and the Sage Creek/ Harvest Park County Road 9, Box Culvert, and McClelland Channel Improvement plans prior to the issuance of more than 12 building permits (for the single family attached lots) in Phase 1 of this Development. The storm drainage improvements associated with Phase 2 of this development, as shown on the approved final development plan documents and the Sage Creek/ Harvest Park County Road 9, Box Culvert, and McClelland Channel Improvement plans, shall be completed by the Developer in accordance with said final development plan documents and the Sage Creek/ Harvest Park County Road 9, Box Culvert, and McClelland Channel Improvement plans prior to the issuance of more than 18 building permits (for the single family attached lots) in Phase 2 of this Development. Phase 2 certification shall include the certification of the "McClelland Channel' improvements including all the box culvert crossings of the channel (both for pedestrian paths and street crossings) as shown on the approved Development Plan and the Sage Creek/ Harvest Park County Road 9, Box Culvert, and McClelland Channel Improvement plans documents for this Development. In the event that the "McClelland Channel' improvements are completed by a third party, the Developer of Sage Creek will still be obligated to ensure that these improvements are completed and certified prior the issuance of more than 12 building permits (for the single family attached lots) in Phase 2 of this Development. If landscaping in the McClelland Channel cannot be installed due to seasonal restrictions then the Developer shall be allowed to escrow 125% of said channel landscaping improvements and obtain additional building permits as necessary. The storm drainage improvements associated with Phase 3 of this development, 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 more than 12 building permits in Phase 3 of this Development. The storm drainage improvements associated with Phase 4 of this development, 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 more than 14 building permits in Phase 4 of this Development. Completion of drainage improvements shall mean the certification by a professional engineer licensed in Colorado that said drainage facilities have been constructed in conformance with said final development plan documents. All required certifications shall be submitted to the City at least two weeks prior to the date of issuance of additional building permits upon approval of such certification as specified in this paragraph. 2. The Developer shall be responsible for maintaining the structural integrity and operational functions of all drainage facilities throughout the build -out of this !.i Development for a warranty period not to exceed five years. If within the warranty period 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 $66,300.00 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. 4. The Developer agrees that it is important that all lots and buildings are to 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 all buildings and all lots in this subdivision: Prior to the issuance of a certificate of occupancy for any dwelling unit in Phases 1 and 2 of this development the Developer shall provide the City with certification that the building which this unit is part has been graded correctly (including the grading of any minor swales, if applicable); the finish floor and the minimum floor elevation for said building has been completed in accordance with the approved final development plan documents. Prior to the issuance of a certificate of occupancy for any lot in Phases 3 and 4 of this development the Developer shall provide the City with certification that [. said lot 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 (where applicable). Said certifications 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. Some lots in this Development abut certain storm drainage facilities. In order to provide the assurance that houses built on such lots are constructed at an elevation that storm water cannot enter, the approved final development plan documents 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 Lots 7 through 14, Block 2; the Developer shall provide certification from a professional engineer licensed in Colorado that the lowest opening to any house built on said lots 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 site certification described in paragraph II.C.4 ;above. 6. In addition the Developer shall be required to file a notice with the Larimer County Clerk and Recorder describing the landscaping and fencing restrictions that exist for the drainage easements on each of Lots 1 through 5, Block 1, and Lots1 through 7, Block 2. 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. 7. 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. 8. The installation of the channel improvements commonly known as the "McClelland Channel" being constructed by this project shall be the responsibility of the Developer. The City shall reimburse the Developer for the costs associated with building the drop structures and riffle pools in the McClelland Channel, and for half of the landscaping costs associated with the construction of that channel referred to as "Enhanced Landscaping" costs. The "Enhanced Landscaping" costs shall be defined as the costs of the trees and shrubs being placed in the "McClelland Channel" area. The City 7 shall reimburse the Developer the costs of the installation of two riffle pools and 11 grade control structures in the channel area, which costs are estimated by the developer's engineer to be $72,524.00 as detailed in "Exhibit B" attached. The City shall reimburse the Developer for this construction based on actual costs, as long as these costs do not exceed the estimated $72,524.00 plus a 15% contingency. Thus the reimbursement by the City for these structures shall not exceed the sum of $83,472.00. The City shall also reimburse the Developer for up to half of the costs of installing the "Enhanced Landscaping" in the channel. The City shall reimburse the Developer for its share of the "Enhanced Landscaping" based on actual costs, as long as these costs do not exceed the sum of $24,006.25. This sum represents the City's share of the "Enhanced Landscaping" costa plus a 15% contingency based on the submitted estimate by the landscape architect for this Development as detailed and listed in "Exhibit B" attached. 9. The City shall reimburse the Developer within 60 days from submittal of invoices as long as the City has available funds appropriated for that purpose at the time these invoices are submitted. If not the City shall reimburse the Developer as soon as funds are appropriated for that purpose. These invoices shall be the actual Contractor submitted invoices. 10. The portion of this agreement dealing with the repay of the "McClelland Channel" improvements shall become effective only if the Developer of this subdivision completes the actual improvements in accordance with paragraph II.C.8 above. If the improvements are built by a third party then, no reimbursement shall be due to the Developer of Sage Creek and any portion of this Development Agreement that deals with the repay for "McClelland Channel" Improvements, including "Exhibit B" attached, shall be null and void. 11. The Developer shall warranty the installation of all vegetation within the McClelland Channel for a period of 3 years from date of installation. 12. The City shall assume maintenance of the channel upon completion of the channel improvements and acceptance by the City of these improvements. The City shall accept these improvements upon certification by a licensed professional engineer in the state of Colorado that these improvements were built in accordance with the approved development plan documents and the Sage Creek/ Harvest Park County Road 9, Box Culvert, and McClelland Channel Improvement plans, and upon verification that the installed vegetation in the channel area has been stabilized. The City shall maintain all City owned property within the McClelland Channel area except for the bike/pedestrian path. The Developer agrees that the bike/pedestrian path and all associated channel crossing improvements which cross the City owned property shall be maintained by the Developer. 13. Notwithstanding the foregoing, 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 Ziegler Road (formerly County Road 9), Kechter Road (formerly County Road 36), and Corbett Drive for those portions of said street abutting the Property as shown on the approved final development plan documents. Reimbursement for Ziegler Road and Kechter Road shall be for oversizing the street from local (access) standards to minor arterial standards. No reimbursement will be due for Kechter Road east of Ziegler Road. In addition, reimbursement for Ziegler Road shall be for oversizing the bridge spanning the McClelland Channel from local (access) standards to minor arterial standards. Reimbursement for Corbett Drive shall be for oversizing the street and the bridge spanning the McClelland Channel from local (access) standards to collector standards. The City shall make reimbursement by the Developer for the aforesaid oversized street improvements in accordance with Section 24-112 of the Code of the City. In accordance with Section 24- 112(a) of the Code of the City, all additional expense to Corbett Drive as the result of the addition of the Developer requested traffic circle intersection, shall not be reimbursable. The Developer agrees and understands that the City shall have no obligation to make reimbursement payments for street oversizing unless funds for such payments shall first have been budgeted and appropriated from the Street Oversizing Fund by the City Council; and the Developer further understands that to the extent that funds are not available for such reimbursement, the City may not, in the absence of the Developer's agreement, require the construction, at the Developer's expense, of any oversized portion of streets not reasonably necessary to offset the traffic impacts of the Development. The Developer does hereby agree to construct the aforesaid oversized street improvements with the understanding that the Developer may not be fully reimbursed by the City for the cost of such construction. The Developer further agrees to accept payment in accordance with Section 24-112 (d) of the Code of the City as full and final settlement and complete accord and satisfaction of all obligations of the City to make reimbursements to the Developer for street oversizing expenses. It is anticipated by the City that the City's reimbursement, in accordance with Section 24-112 (d), would not be less than fifty percent (50%) of the Developer's actual expenses incurred and will be calculated in accordance with the formula as set forth in Section 24-112 (d). 2. It is understood that the improvements that are to be constructed in the public right-of-way as described in this Section II(D) are "City improvements" (as 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 ,vas 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. 0