HomeMy WebLinkAboutBLOCK 6 320 NORTH COLLEGE AVENUE SCHRADER OIL COMPANY - Filed DA-DEVELOPMENT AGREEMENT - 2004-02-10DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this day of 1`' " 4
199 by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City", and Schrader Oil Co., a Colorado
Corporation, hereinafter referred to as the "Developer"; and Schrader Land Co., LLLP, a
Colorado limited liability limited partnership, hereinafter referred to as the "Owner".
WITNESSETH:
WHEREAS, the Developer has entered into an agreement with the owner to develop
certain real property situated in the County of Larimer, State of Colorado, (hereafter
referred to as the "Property") and legally described as follows, to wit:
A parcel of land being part of the Northwest Quarter (NW 1/4) of Section 12,
Township 7 North, Range 69 West, of the 6th P.M., City of Fort Collins, County of
Larimer, State of Colorado and being more particularly described as follows:
Beginning at the West 1/4 Corner of said Section 12 and assuming the West line
of said NW 114 as bearing N 00' 00' 00" W with all other bearings contained herein
relative thereto:
Thence N 00, 00' 00" W along said West line a distance of 965.89 feet to the True
Point of Beginning:
Thence continuing N 00' 00' 00" W along said West line a distance of 20.39 feet;
Thence N 060 16' 00" E a distance of 162.35 feet; Thence N 89' 52' 00" E a
distance of 44.41 feet to a point of curvature (PC); Thence along the arc of a curve
which is concave to the South a distance of 111.79 feet, whose radius is 300.17
feet, whose delta is 210 20' 20", and whose long chord bears S 790 27' 50" E a
distance of 111.15 feet; Thence S 050 48' 02' W along a line non -tangent to the
aforesaid curve a distance of 219.05 feet; Thence N 690 18' 34" W a distance of
159.56 feet to the True Point of Beginning. (a.k.a. Schrader Oil Scout Station, 320
North College)
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
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 such building permits and certificates of
occupancy as it deems necessary to ensure performance in accordance with the terms of
this Development Agreement. The processing and "routing for approval" of the various
development plan documents may result in certain of said documents carrying dates of
approval and/or execution that are later than the date of execution of this Development
Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of
this Agreement. The developer hereby waives any right to object to any such discrepancy
in dates.
E. Nothing herein contained shall be construed as a waiver of any requirements of
the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable) and
the Developer agrees to comply with all requirements of the same.
F. In the event the City waives any breach of this Agreement, no such waiver shall
be held or construed to be a waiver of any subsequent breach hereof.
G. Financial obligations of the City of Fort Collins payable after the current fiscal
year and/or not appropriated or budgeted are contingent upon funds forthat purpose being
appropriated, budgeted and otherwise made available by the Fort Collins City Council.
H. This Agreement shall run with the Property and shall be binding upon and inure
to the benefit of the parties hereto, their respective personal representatives, heirs,
successors, grantees and assigns. It is agreed that all improvements required pursuant
to this Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest within the meaning of
this paragraph shall specifically include, but not be limited to, a conveyance or assignment
of any portion of the Developer's legal or equitable interest in the Property, as well as any
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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 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
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With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
If to the Developer: Schrader Oil Co.
320 North College Avenue
P.O. Box 495
Fort Collins, Co 80522-0495
With a copy to: J. Brad March
March & Liley, P.C.
110 E. Oak Street, Suite 200
Fort Collins, Co 80524
If to the Owner: Schrader Land Co.
320 North College Avenue
P.O. Box 495
Fort Collins, Co 80522-0495
With a copy to: J. Brad March
March & Liley, P.C.
110 E. Oak Street, Suite 200
Fort Collins, Co 80524
Notwithstanding the foregoing, if any party to this Agreement, or their successors, grantees
or assigns, wishes to change the person, entity or address to which notices under this
Agreement are to be sent as provided above, such party shall do so by giving the other
parties to this Agreement written notice of such change.
O. When used in this Agreement, words of the masculine gender shall include the
feminine and neuter gender, and when the sentence so indicates, words of the neuter
gender shall refer to any gender; and words in the singular shall include the plural and vice
versa. This Agreement shall be construed according to its fair meaning, and as if prepared
by all parties hereto, and shall be deemed to be and contain the entire understanding and
agreement between the parties hereto pertaining to the matters addressed in this
Agreement. There shall be deemed to be no other terms, conditions, promises,
understandings, statements, representations, expressed or implied, concerning this
Agreement, unless set forth in writing signed by all of the parties hereto. Further,
paragraph headings used herein are fore convenience of reference and shall in no way
define, limit, or prescribe the scope or intent of any provision under this Agreement.
P. The Owner is made a party to this Agreement solely for the purpose of
subjecting the Property to the covenants contained in this Agreement. The City and the
Developer expressly acknowledge and agree that the Owner shall not be liable for any
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obligations of the Developer under this Agreement, unless the Owner were to exercise any
of the rights of the Developer in which event the obligations of the Developer shall become
those of the Owner.
ATTEST
APPROV'JED,AS TQ CONTENT:
City Engine r
APPRgVE,D AS TO FORM:
Deputy City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Cnorpnoration
By:
City M ager
DEVELOPER:
Schrader it Co., a Color do corporation
By
�i121GG1 , V IIiG 1 -�
� v/,�
ATTE4rS
/
By:
Pchrader, A stant Secretary
OWNER:
Schrader Land Co., LLLP, a Colorado limited liability
limited partnership
By:
ayn K. Schrader, General Partner
IRI
EXHIBIT "A"
Schedule of water lines to be installed out of sequence.
Not Applicable.
Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
Schedule of street improvements to be installed out of sequence.
Not Applicable
4. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
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EXHIBIT "B"
Not Applicable
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EXHIBIT "C"
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of
two (2) years from the date of completion and acceptance by the City of the
public improvements warranted hereunder, the full and complete
maintenance and repair of the public improvements constructed for this
development. This warranty and guarantee is made in accordance with the
City of Fort Collins Land Use Code and/or the Transitional Land Use
Regulations, as applicable. This guarantee applies to the streets and all
other appurtenant structures and amenities lying within the rights -of -way,
easements and other public properties, including, without limitation, all
curbing, sidewalks, bike paths, drainage pipes, culverts, catch basins,
drainage ditches and landscaping. Any maintenance and/or repair required
on utilities shall be coordinated with the owning utility company or city
department.
The Developer shall maintain said public improvements in a manner that will
assure compliance on a consistent basis with all construction standards,
safety requirements and environmental protection requirements of the City.
The Developer shall also correct and repair, or cause to be corrected and
repaired, all damages to said public improvements resulting from
development -related or building -related activities. In the event the Developer
fails to correct any damages within thirty (30) days after written notice
thereof, then said damages may be corrected by the City and all costs and
charges billed to and paid by the Developer. The City shall also have any
other remedies available to it as authorized by this Agreement. Any
damages which occurred prior to the end of said two (2) year period and
which are unrepaired at the termination of said period shall remain the
responsibility of the Developer.
REPAIR GUARANTEE:
The Developer agrees to hold the City of Fort Collins, Colorado, harmless for
a five (5) year period, commencing upon the date of completion and
acceptance by the City of the public improvements constructed for this
development, from any and all claims, damages, or demands arising on
account of the design and construction of public improvements of the
property shown on the approved plans and documents for this development;
and the owner furthermore commits to make necessary repairs to said public
improvements, to include, without limitation, the roads, streets, fills,
embankments, ditches, cross pans, sub -drains, culverts, walls and bridges
within the right-of-way easements and other public properties, resulting from
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failures caused by design and/or construction defects. This agreement to
hold the City harmless includes defects in materials and workmanship, as
well as defects caused by or consisting of settling trenches, fills or
excavations.
Further, the Developer agrees that the City shall not be liable to the
Developer during the warranty period, for any claim of damages resulting
from negligence in exercising engineering techniques and due caution in the
construction of cross drains, drives, structures or buildings, the changing of
courses of streams and rivers, flooding from natural creeks and rivers, and
any other matter whatsoever on private property. Any and all monetary
liability occurring under this paragraph shall be the liability of the Developer.
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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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
appearance of the Property caused by, or on behalf of, the Developer with the intent to
construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities,
streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the
approved utility plans and in full compliance with the standards and specifications of the
City on file in the office of the City Engineer at the time of approval of the utility plans
relating to the specific utility, subject to a three (3) year time limitation from the date of
execution of this Agreement. In the event that the Developer commences or performs any
construction pursuant hereto after the passage of three (3) years from the date of
execution of this agreement, the Developer shall resubmit the utility plans to the City
Engineer for reexamination. The City may then require the Developer to comply with the
approved standards and specifications of the City on file in the office of the City Engineer
at the time of the resubmittal.
C. No building permit for the construction of any structure within the development
shall be issued by the City until the public water lines and stubs to each lot, fire hydrants,
sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and
pavement with at least the base course completed) serving such structure have been
completed and accepted by the City. No building permits shall be issued for any structure
located in excess of six hundred and sixty feet (660') from a single point of access, unless
the structures contain sprinkler systems that are approved by the Poudre Fire Authority.
D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets
described on Exhibit 'A," attached hereto, shall be installed within the time and/or
sequence required on Exhibit "A." If the City Engineer has determined that any water lines,
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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
department's approval. The Developer agrees to correct any deficiencies in such
installations in order to meet the requirements of the plans and/or specifications applicable
to such installation. In case of conflict, the final development plan documents shall
supersede the standard specifications.
H. All storm drainage facilities shall be so designed and constructed by the
Developer as to protect downstream and adjacent properties against injury and to
adequately serve the Property (and other lands as may be required, if any). The Developer
shall meet or exceed the minimum requirements for storm drainage facilities as have been
established by the City in its Drainage Master Plans and Design Criteria. The Developer
does hereby indemnify and hold harmless the City from any and all claims that might arise,
directly or indirectly, as a result of the discharge of injurious storm drainage or seepage
waters from the Property in a manner or quantity different from that which was historically
discharged and caused by the design or construction of the storm drainage facilities,
except for (1) such claims and damages as are caused by the acts or omissions of the City
in maintenance of such facilities as have been accepted by the City for maintenance; (2)
errors, if any, in the general concept of the City's master plans (but not to include any
details of such plans, which details shall be the responsibility of the Developer); and (3)
specific written or otherwise documented directives that may be given to the Developer by
the City. The City agrees to give notice to the Developer of any claim made against it to
which this indemnity and hold harmless agreement by the Developer could apply. and the
Developer shall have the right to defend any lawsuit based on such claim and to settle any
such claim provided Developer must obtain a complete discharge of all City liability through
such settlement. Failure of the City to give notice of any such claim to the Developer within
ninety (90) days after the City first receives a notice of such claim under the Colorado
Governmental Immunity Act for the same, shall cause this indemnity and hold harmless
agreement by the Developer to not apply to such claim and such failure shall constitute a
release of this indemnity and hold harmless agreement as to such claim. Approval of and
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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.
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 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
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and to settle any such claim provided Developer must obtain a complete discharge of all
City liability through such settlement. Failure of the City to give notice of any such claim
to the Developer within ninety (90) days after the City first receives a notice of such claim
under the Colorado Governmental Immunity Act for the same, shall cause this indemnity
and hold harmless agreement by the Developer to not apply to such claim and such failure
shall constitute a release of this indemnity and hold harmless agreement as to such claim.
II. Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. The Developer and the City agree that all on -site and off -site storm
drainage improvements, as shown on the approved final development plan documents,
shall be completed by the Developer in accordance with said final development plan
documents prior to the issuance of any certificate of occupancy for the development.
Completion of improvements shall include the certification by a professional engineer
licensed in Colorado that the drainage facilities which serve this development have been
constructed in conformance with said final development plan documents. Said certification
shall be submitted to the City at least two weeks prior to the date of issuance of any
certificate of occupancy for the development.
2. The developer shall be responsible for maintaining the structural integrity
and operational functions of all drainage facilities throughout the build -out of this
development. If at any time following certification (as required pursuant to paragraph one
(1) above) of said drainage facilities and during the construction of structures and /or lots
within this development the City deems that said drainage facilities no longer comply with
the approved plans, the developer shall bring such facilities back up to the standards and
specifications as shown on the approved plans. Failure to maintain the structural integrity
and operational function of said drainage facilities following certification shall result in the
withholding of the issuance of additional building permits and/ or certificates of occupancy
until such drainage facilities are repaired to the operational function and structural integrity
which was approved by the City.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the approved final development plan documents to stabilize
all over -lot grading in and adjacent to this development. If, at anytime, the Developer fails
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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 maybe necessary to ensure that the provisions of said plans
and the Criteria are properly enforced. The City shall have the option to withhold building
permits and certificates of occupancy, as stated in Paragraph 111.13 of this Agreement, as
it deems necessary in orderto ensure that the Developer installs and maintains the erosion
control measures throughout the buildout of this development.
4. 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.
5. The Developer and the City agree that the Developer is obligated to
maintain all on -site storm drainage facilities not accepted for maintenance by the City and
all off -site storm drainage facilities not accepted for maintenance by the City serving this
development and outside of the public rights -of -way.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to reimburse
the Developer for oversizing public street improvements along Willow Street for those
portions of said street abutting the Property as shown on the approved final development
plan documents. Reimbursement for Willow Street shall be for oversizing the sidewalk
from local (access) standards (4.5 ft) to Collector standards (5 ft). 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 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
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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, or will become, the owner of the Project Development
Plan and is also, or will become, the owner of the land abutting the Project Development
Plan on its Eastern Boundary (the Eastern Property). If the Developer should convey the
Eastern Property to another, then the Developer shall also convey to such grantee an
easement for reasonable access across the Project Development Plan in order to provide
access for the Eastern Property, it being the understanding of the Developer and the City
that access to the Eastern Property will not be available from Willow Street.
4. The City and the Developer agree that the Developer is not responsible
for the dedication of right-of-way and construction of sidewalk from the eastern access
drive on Willow Street East at the time of Development. The Developer agrees that at
such time that the adjacent property (to the east) develops or at such time that the City
deems said dedication and construction of sidewalk necessary, the developer shall
dedicate the right-of-way necessary to meet City standards then in effect and construct
the sidewalk as shown on the approved development plans and also construct said
sidewalk to the eastern Project Development Plan boundary.
5. The Developer and the City agree that the Developer is responsible for
all costs for the initial installation of traffic signing and striping for this development related
to the development's local street operations. In addition the Developer is responsible for
all costs for traffic signing and striping related to directing traffic access to and from the
development (e.g., all signing and striping for a right turn lane into the development site).
6. 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
of the City.
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E. Ground Water
1. The City shall not be responsible for, and the Developer hereby agrees
to indemnify and hold harmless the City against, any damages or injuries sustained in the
development as a result of ground water seepage or flooding, structural damage, or other
damage unless such damages or injuries are sustained as a result of the City's failure to
properly maintain its storm drainage facilities in the development. The City agrees to give
notice to the Developer of any claim made against it to which this indemnity and hold
harmless agreement by the Developer could apply, and the Developer shall have the right
to defend any lawsuit based on such claim and to settle any such claim provided Developer
must obtain a complete discharge of all City liability through such settlement. Failure of the
City to give notice of any such claim to the Developer within ninety (90) days after the City
first receives notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
F. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a permanent
water system is installed by the Developer and approved by the City.
2. Prior to beginning any building construction, and throughout the buildout
of this development, the Developer shall provide and maintain at all times an accessway
to said building or buildings. Such accessway shall be adequate to handle any emergency
vehicles or equipment, and the accessway shall be kept open during all phases of
construction. Such accessway shall be constructed to an unobstructed width of at least
20 feet with 4 inches of aggregate base course material compacted according to city
standards and with an 80 foot diameter turnaround at the building end of said accessway.
The turnaround is not required if an exit point is provided at the end of the accessway.
Prior to the construction of said accessway, a plan for the accessway shall be submitted
to and approved by the Poudre Fire Authority and City Engineer. (Three plan sets shall be
submitted to the Poudre Fire Authority at 102 Remington 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.
G. Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain a Footing and Foundation permit upon the
installation of all underground water, sanitary sewer, and storm sewer facilities, and an
emergency accessway for the Phase in which the permit is being requested. Facilities
shall include but not be limited to all mains, lines, services, fire hydrants and
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appurtenances for the site as shown on the final development plan documents.
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
Developer pursuant to this paragraph and Exhibit "C" may not be assigned to 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.
III. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and
shall not remove said safety devices until the construction has been completed .
B. As required pursuant to Chapter 20, Article IV of the City Code, the Developer
shall, at all times, keep the public right-of-way free from accumulation of waste material,
rubbish, or building materials caused by the Developer's operation, or the activities of
individual builders and/or subcontractors; shall remove such rubbish as often as necessary,
but no less than daily and; at the completion of the work, shall remove all such waste
materials, rubbish, tools, construction equipment, machinery, and surplus materials from
the public right-of-way. The Developer further agrees to maintain the finished street
surfaces so that they are free from dirt caused by the Developer's operation or as a result
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