HomeMy WebLinkAboutSTONE RIDGE PUD FOURTH FIRST PHASE AMENDED - Filed DA-DEVELOPMENT AGREEMENT - 2004-02-26DEVELOPMENT AGREEMENT
_THIS AGREEMENT, made and entered into this //rn day ofb�
199S , by and between the CITY OF FORT COLLINS, COLORAI O, a
Municipal Corporation, hereinafter referred to as the "City" and
THE KAPLAN COMPANY, INC., a Colorado Corporation, hereinafter
referred to as the "Developer".
WITNESSETH:
WHEREAS, the Developer is the Owner of certain property
situated in the County of Larimer, State of Colorado, (hereafter
referred to as the "Property") and legally described as follows, to
wit:
STONE RIDGE P.U.D., Fourth Filing, Phase 1, a Tract of land
located in the Southeast Quarter of Section 29, Township 7
North, Range 68 West of the 6th Principal Meridian, City of
Fort Collins, County of Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has
submitted to the City a subdivision plat and/or a site plan and
landscape plan, a copy of which is on file in the office of the
Director of Engineering and made a part hereof by reference; and
WHEREAS, the Developer has further submitted to the City
utility plans for the Property, a copy of which is on file in the
office of the Director of Engineering and made a part hereof by
reference; and
WHEREAS, the parties hereto have agreed that the development
of the Property will require increased municipal services from the
City in order to serve such area and will further require the
installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a
whole; and
WHEREAS, the City has approved the subdivision plat and/or
site plan and landscape plan submitted by the Developer subject to
certain requirements and conditions which involve the installation
of and construction of utilities and other municipal improvements
in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the
parties hereto and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, it is agreed
as follows:
I. General Conditions
any requirements of the City Code, and the Developer agrees to
comply with all requirements of the same.
F. In the event the City waives any breach of this Agreement,
no such waiver shall be held or construed to be a waiver of any
subsequent breach hereof.
G. Financial obligations of the City of Fort Collins payable
after the current fiscal year and/or not appropriated or budgeted
are contingent upon funds for that purpose being appropriated,
budgeted and otherwise made available.
H. This Agreement shall run with the Property and shall be
binding upon the parties hereto, their personal representatives,
heirs, successors, grantees and assigns. It is agreed that all
improvements required pursuant to this Agreement touch and concern
the Property regardless of whether such improvements are located on
the Property. Assignment of interest within the meaning of this
paragraph shall specifically include, but not be limited to, a
conveyance or assignment of any portion of the Developer's real or
proprietary interest in the Property, as well as any assignment of
the Developer"s rights to develop the Property under the terms and
conditions of this Agreement.
I. In the event the Developer transfers title to the Property
and is thereby divested of all equitable and legal interest in the
Property, the City hereby agrees to release said Developer from
liability under this Agreement with respect to any breach of the
terms and conditions of this Agreement occurring after the date of
any such transfer of interest. In such event, the succeeding
property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to
be a material element hereof. In the event that either party shall
fail to perform according to the terms of this Agreement, such
party may be declared in default. In the event that a party has
been declared in default hereof, such defaulting party shall be
given written notice specifying such default and shall be allowed
a period of five (5) days within which to cure said default. In
the event the default remains uncorrected, the party declaring
default may elect to: (a) terminate the Agreement and seek damages;
(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
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remedies specified in Paragraph III.D of this Agreement.
L. 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.
ATTEST:
CITY CLERK
APPROVED AS CI CONTENT:
C/1
Di ector of Engineeri
APPR D AS TO FORM:
r 4,tJU�t�
City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By:
CitV Manager
DEVELOPER:
THE KAPLAN COMPANY, INC
a Colorado Corporation
By: ✓J�_�� 'v/ �i1t
Lester M. Kaplan, Pr ident
ATTEST:
By:
e Bau art, sistant Secretary
11
(corporate seal)
�ScAL
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.
County Road 9 adjacent to this development shall be completed
together with the County Road 9 improvement obligation for
Stone Ridge P.U.D., Fourth Filing, Phase 2 and it is agreed
that it shall be the obligation of said Phase 2 to construct
the total" County Road 9 local street obligation" for both
Phases and in accordance with that certain agreement be ween
the City and the owner of the Phase 2 property dated Sei. Q
attached Exhibit "C.".
4. Schedule of storm drainage improvements to be installed out
of sequence.
The detention pond on Tract A of the Property shall be
completed and certified prior to the issuance of any building
permits in accordance with paragraph II.C.1. of this
Agreement:.
12
EXHIBIT "B"
NOT APPLICABLE
13
EXHIBIT`0
(STONE RIDGE P.U.D. FOURTH FILING PHASE I)
THIS AGREEMENT is made and entered into this � -� day of
1995, by and between THE CITY OF FORT COLLINS,
COLORADO, a municipal corporation, hereinafter referred to as the
"City," and THE KAPLAN COMPANY, INC., a Colorado corporation,
hereinafter referred to as the "Developer."
WITNESSETH:
WHEREAS, the Developer is the owner of certain property
situated in the County of Larimer, State of Colorado, legally
described as STONE RIDGE P.U.D. FOURTH FILING (hereinafter referred
to as the "Property").
WHEREAS, the Developer intends to develop the Property in two
(2) phases to be known as STONE RIDGE P.U.D. FOURTH FILING PHASE I
(hereinafter referred to as "Phase I") and STONE RIDGE P.U.D.
FOURTH FILING PHASE II (hereinafter referred to as "Phase II").
Phase II is legally described on Exhibit "A" attached hereto and
incorporated herein by reference.
WHEREAS, the City and the Developer have entered into a
Development Agreement concerning the installation of and construc-
tion of utilities and other municipal improvements in connection
with the development of Phase I (hereinafter referred to as the
"Phase I Development Agreement").
WHEREAS, the Property lies adjacent to and to the west of a
public street designated as Larimer County Road 9 (hereinafter
referred to as "County Road 9").
WHEREAS, the Developer has planned the development of the
Property in such a manner as to not have direct vehicular street
connection to County Road 9.
WHEREAS, the City has not required the Developer to take
vehicular access from County Road 9.
WHEREAS, Section 24-95 of the City Code provides that
construction of the local portion of a public street adjacent to
undeveloped real property is the obligation of the adjacent
landowner at the time the property is developed.
WHEREAS, pursuant to Section 24-95 of the City Code, the Phase
I Development Agreement requires the construction of the pavement
section of County Road 9 adjacent to Phase I (hereinafter referred
to as the "Pavement Section of County Road 911).
WHEREAS, the City and the Developer have been unable to reach
an agreement as to whether, under the Fifth Amendment of the United
States Constitution, as recently interpreted by the United States
Supreme Court in the cases of Nollan v. California Coastal
Commission and Dolan v. City of Tigard, the City may require the
Developer to complete the Pavement Section of County Road 9 based
on the development of the Property as presently proposed and
approved by the City.
WHEREAS, the City desires to further consider the constitu-
tionality of Section 24-95 of the City Code as it applies to
development of the Property in light of the recent decisions of the
United States Supreme Court.
WHEREAS, the Developer desires to proceed with development of
Phase I as proposed.
WHEREAS, the parties hereto desire, through this Agreement, to
permit the Developer to proceed with development of Phase I while
the City gives consideration to the application of recent decisions
of the United States Supreme Court to Section 24-95 of the City
Code.
NOW, THEREFORE, the parties hereto agree as follows:
1. The recitals set forth above are an integral part of this
Agreement and are incorporated herein by reference as if fully set
forth.
2. Notwithstanding any of the terms or provisions of the
Phase I Development Agreement, the Developer is expressly autho-
rized and permitted to proceed with development of Phase I in
accordance with the approved plans without completing the Pavement
Section of County Road 9. (The Developer shall construct the curb,
gutter, and sidewalk as required by the Phase I Development
Agreement at the time of construction of Phase II.) The City shall
not prevent or delay the Developer from developing Phase I as
proposed based upon the Developer's failure to complete the
Pavement Section of County Road 9. The City shall not prevent or
delay "development activities," which shall include, but are not
limited to, the following: (a) the actual construction of
improvements; (b) obtaining a building permit therefor; or (c) any
change in grade, contour, or appearance of Phase I caused by or on
behalf of the Developer with the intent to construct improvements
thereon, based solely upon the failure of the Developer to complete
the Pavement Section of County Road 9. The City will not prevent,
place a hold on, create a moratorium on, or otherwise delay the
issuance of building permits for the construction of residential
dwellings within Phase I based solely upon the failure of the
Developer to complete the Pavement Section of County Road 9.
3. The City is not waiving, and hereby expressly reserves,
its rights, if any, to require the Developer to construct and
complete the ]Pavement Section of County Road 9 in connection with
the development of Phase II.
V,
4. The Developer is not waiving its right to contest any
action by the City to require the completion of the Pavement
Section of County Road 9 in connection with the development of
Phase II.
5. Without limiting the generality of the foregoing, the
obligation to construct the Pavement Section of County Road 9 is
hereby limited to the Developer and any person or entity that
acquires all or any portion of Phase II for the purpose of
development. The City hereby expressly waives any right which it
may have to enforce the requirements that the Developer complete
the Pavement Section of County Road 9 against any person or entity
that acquires one or more of the individual lots within Phase I for
residential purposes or for the purpose of constructing residential
dwellings thereon. The City waives any claim which it may have
against the Phase I Property based upon the failure of the
Developer to construct the Pavement Section of County Road 9.
6. In the event of a conflict between the terms and
provisions of this Agreement and the terms and provisions of the
Phase I Development Agreement, the terms and provisions of this
Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the day and year first above written.
THE CITY OF FORT COLLINS,
COLORADO, a municipal
corporation
ATTE BY: Ohm 1 4 BY: /� �, �i-Ad
City Clerk City ifanager
APPROVED AS T9 CONTENT,:
Di ector of Engineering
APPROVE AS TO FORM:
i
City Attorney
3
THE KAPLAN COMPANY, INC.,
a Colorado corporation
LES ER M. KAPLAN,
President
EXHIBIT "A"
DESCRIPTION,
A tract of land located in the Southeast Quarter of Section 29,
Township 7 North, Range 68 West of the 6th Principal Meridian, City
of Fort Collins, County of Larimer, State of Colorado, being more
particularly described as follows:
Considering the South line of the Southeast Quarter of said Section
29 as bearing South 89032125" East from a aluminum cap in range box
at the South Quarter corner to a aluminum cap in range box at the
Southeast corner of said Section 29 and with all bearings contained
herein relative thereto:
Commencing at the Southeast corner of Section 29; thence along the
East line of said Southeast Quarter, North 00010152" West, 65.55
feet; thence, leaving said East line, South 89049108" West 34.00
feet to the POINT OF BEGINNING; thence, North 00010152" West,
533.88 feet; thence, South 83005157" West, 38.27 feet; thence,
South 09045'13" West, 80.26 feet; thence, South 50000154" West,
90.65 feet; thence, South 70018148" West, 107.61 feet; thence,
North 73020105" West, 97.47 feet; thence, North 60000'28" West,
91.91 feet; thence, North 22053'53" West, 83.15 feet; thence, North
04049141" West, 39.65 feet; thence, North 65017106" West, 107.86
feet; thence,. North 47*22127" West, 100.53 feet to a point on a
curve concave to the Northwest having a central angle of 40013'50",
a radius of 416.00 feet and the chord of which bears South
51021'09" West, 286.13 feet; thence along the arc of said curve
292.09 feet; thence, South 71028104" West, 55.90 feet; thence,
South 30000'00" West, 150.94 feet; thence, South O5028159" West,
36.29 feet; thence, South 60000100" East, 113.54 feet; thence,
South 83015 "5911 East, 53.58 feet; thence, North 06044'01" East,
17.00 feet; thence, South 83015159" East, 72.02 feet; thence, South
06044'Ol" West, 16.92 feet to.a point on a non -tangent curve
concave to the South having a central angle of 11°11'5611, a radius
of 314.00 feet and the chord of which bears, South 76016137" East,
61.28 feet; thence along the arc of said curve, 61.37 feet; thence,
South 7004012_�9" East, 70.01 feet to a point on a non -tangent curve
concave to the South having a central angle of 91033141", a radius
of 40.00 feet and the chord of which bears South 74018148" East,
57.33 feet; thence along the arc of said curve 63.92 feet; thence,
South 77003129" East, 73.94 feet; thence, South 04019127' West,
23.13 feet; thence, South 06005107" West, 40.45 feet; thence, South
00027135" West, 97.33 feet; thence, South 89032125" East, 476.25
feet to a curve concave to the Northwest having a central angle of
90038127"1 a radius of 15.00 feet and the chord of which bears
North 4SO0312:2" East 21.33 feet; thence along the arc of said curve
23.73 feet to the Point of Beginning.
The above tract of land contains 8.293 acres and is subject to all
easements and rights -of -way now on record or existing
A. The terms of this Agreement shall govern all development
activities of the Developer pertaining to the Property. For the
purposes of this Agreement, "development activities" shall include,
but not be limited to, the following: (1) The actual construction
of improvements, (2) Obtaining a building permit therefor, or (3)
Any change in grade, contour or appearance of said property caused
by, or on behalf of, the Developer with the intent to construct
improvements thereon.
B. All water lines, sanitary sewer collection lines, storm
sewer lines and facilities, streets, curbs, gutters, sidewalks, and
bikepaths shall be installed as shown on the approved utility plans
and in full compliance with the Council -approved standards and
specifications; of the City on file in the office of the Director of
Engineering at: the time of approval of the utility plans relating
to the specific utility, subject to a three (3) year time
limitation from the date of execution of this Agreement. In the
event that the Developer commences or performs any construction
pursuant hereto after three (3) years from the date of execution of
this agreement:, the Developer shall resubmit the project utility
plans to the Director of Engineering for reexamination. The City
may require the Developer to comply with approved standards and
specification: of the City on file in the office of the Director of
Engineering at the time of resubmittal.
C. No building permit for the construction of any structure
within the development shall be issued by the City until the water
lines, fire hydrants, sanitary sewer lines and streets (including
curb, gutter and sidewalk and pavement with at least the base
course completed) serving such structure have been completed and
accepted by the City. No building permits shall be issued for any
structure located in excess of nine hundred feet (9001) from a
single point of access.
D. Any water lines, sanitary sewer lines, storm drainage
lines, and/or streets described on Exhibit "A," attached hereto,
shall be installed within the time and/or sequence required on
Exhibit "A." If the Director of Engineering has determined that
any water lines, sanitary sewer lines, storm drainage facilities
and/or streets are required to provide service or access to other
areas of the City, those facilities shall be shown on the utility
plans and shall be installed by the Developer within the time as
established under "Special Conditions" in this document.
E. Except as otherwise herein specifically agreed, the
Developer agrees to install and pay for all water, sanitary sewer,
and storm drainage facilities and appurtenances, and all streets,
curbs, gutters, sidewalks, bikeways and other public improvements
required by this development as shown on the plat, site, landscape
and utility plans, and other approved documents pertaining to this
2
development on file with the City.
F. Street improvements (except curbs, gutters and walks)
shall not be installed until all utility lines to be placed therein
have been completely installed, including all individual lot
service lines leading in and from the main to the property line.
G. The installation of all utilities shown on the utility
plans shall be inspected by the Engineering Department of the City
and shall be subject to such department's approval. The Developer
agrees to correct any deficiencies in such installations in order
to meet the requirements of the plans and/or specifications
applicable to such installation. In case of conflict, the utility
plans shall supersede the standard specifications.
H. All .storm drainage facilities shall be so designed and
constructed by the Developer as to protect downstream and adjacent
properties against injury and to adequately serve the Property (and
other lands as may be required, if any). The Developer shall meet
or exceed the minimum requirements for storm drainage facilities as
have been established by the City in its Drainage Master Plans and
Design Criteria. The Developer does hereby indemnify and hold
harmless the City from any and all claims that might arise,
directly or indirectly, as a result of the discharge of injurious
storm drainage or seepage waters from the development in a manner
or quantity different from that which was historically discharged
and caused by the design or construction of the storm drainage
facilities, except for (1) such claims and damages as are caused by
the acts or omissions of the City in maintenance of such facilities
as have been accepted by the City for maintenance; (2) errors, if
any, in the general concept of the City's master plans (but not to
include any details of such plans, which details shall be the
responsibility of the Developer); and (3) specific directives that
may be given to the Developer by the City. Approval of and
acceptance by the City of any storm drainage facility design or
construction shall in no manner be deemed to constitute a waiver or
relinquishment: by the City of the aforesaid indemnification. The
Developer shall engage a licensed professional engineer to design
the storm drainage facilities as aforesaid and it is expressly
affirmed hereby that such engagement shall be intended for the
benefit of the City, and subsequent purchasers of property in the
development.
I. The Developer shall pay storm drainage basin fees in
accordance with Chapter 26, Article VII of the City Code. Storm
drainage improvements eligible for credit or City repayment under
the provisions of Chapter 26 are described together with estimated
cost of the improvements on the attached Exhibit "B," which
improvements, if applicable, shall include right-of-way, design and
construction costs. See Section II.C, Special Conditions, Storm
Drainage Lines and Appurtenances, for specific instructions.
3
J. The Developer shall provide the Director of Engineering
with certified Record Plan Transparencies on Black Image Diazo
Reverse Mylars upon completion of any phase of the construction.
K. The Developer specifically represents that to the best of
its knowledge all portions of the Property dedicated to the City
associated with this development are in compliance with all
environmental protection and anti -pollution laws, rules,
regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection
Agency Regulations at 40 C.F.R., Part 261, and that such portions
of the Property as are dedicated to the City pursuant to this
development, are in compliance with all such requirements
pertaining to the disposal or existence in or on such dedicated
property of any hazardous substances, pollutants or contaminants,
as defined by the Comprehensive Environmental Response Compensation
and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer does hereby indemnify and hold harmless
the City from any liability whatsoever that may be imposed upon the
City by any governmental authority, pertaining to the disposal of
hazardous substances, pollutants or contaminants, and cleanup
necessitated by leaking underground storage tanks, excavation
and/or backfill of hazardous substances, pollutants or
contaminants, or environmental cleanup responsibilities of any
nature whatsoever on, of or related to any property dedicated to
the City pursuant to this development. The Developer further
agrees to indemnify and hold harmless the City from any claims or
actions based directly, indirectly or in any manner on any of the
aforementioned environmental risks brought against the City by
third parties arising as a result of the dedication of portions of
the Property to the City pursuant to this development. Said
indemnification shall not extend to claims, actions or other
liability arising as a result of any hazardous substance, pollutant
or contaminant generated or deposited by the City, its agents or
representatives, upon portions of the Property dedicated to the
City pursuant to this development.
II. Special Conditions
A. Water Lines
1. The Developer shall reimburse the City at the rate of
$16.00 per front foot plus an inflation factor for the cost of
installation of the 16" water line in Horsetooth Road adjacent to
the development. The inflation factor shall be calculated based
upon the Construction Cost Index for Denver as published in the
Engineering News Record of April 13, 1989. Said reimbursement
shall be paid prior to the issuance of the first building permit.
B. Sewer Lines
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Not Applicable
C. Storm Drainage Lines and Appurtenances
1. The Developer and the City agree that all on -site and
off -site storm drainage improvements shall be completed by the
Developer in accordance with the approved plans prior to the
issuance of more than 8 building permits. 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 approved plans. Any deviations from the approved utility
plans shall be the responsibility of the Developer to correct prior
to the issuance of more than said building permits. Said
certification shall be submitted to the City at least two weeks
prior to the date of issuance for any building permit greater than
said building permits.
2. The Developer agrees to provide and maintain erosion
control improvements as shown on the approved utility plans to
stabilize all over -lot grading in and adjacent to this development.
The Developer shall also be required to post a security deposit in
the amount of $20,603.00 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion
control measures shown on the approved plans. Said security
deposit shall be made in accordance with the criteria set forth in
the Storm Drainage Design Criteria and Construction Standards
(Criteria). If, at any time, the Developer fails to abide by the
provisions of the approved utility plans or the Criteria, the City
may enter upon the Property for the purpose of making such
improvements and undertaking such activities as may be necessary to
ensure that the provisions of said plans and the Criteria are
properly enforced. The City may apply such portion of the security
deposit as may be necessary to pay all costs incurred by the City
in undertaking the administration, construction and/or installation
of the erosion control measures required by said plans and the
Criteria.
3. The Developer and the City agree that the storm
drainage system for this development contains some features that
make it important to construct the facilities in accordance with
the plans and to ensure that the facilities are maintained and kept
operational throughout the buildout of this development. For this
reason the following additional requirements shall be followed for
building on Lots 5, 6, 14 and 15 of Block 1:
The portions of the drainage improvement system required to be
constructed on any of the above lots, and other portions not
on said lots but that are necessary for the system serving
said lots to properly function, shall be completed in
accordance with the approved utility plans and said completion
shall be certified as being completed in accordance with said
5
plans by a licensed professional engineer. Said certification
shall be received by the City prior to the issuance of a
building permit for any of the above lots. A certification by
such engineer that the drainage systems' function and adequacy
to serve its purpose has not been impaired by the construction
and landscaping on said lot shall be submitted to the City
prior to the issuance of a certificate of occupancy for each
of the above lots.
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 said lots. Said notice shall
reference! the location of the specific restrictions shown on
plans and notes in the approved utility plans for this
development. Said notice shall be filed in a City approved
form prior to the sale of any lots affected by such
restrictions.
4. Lots 5 through 15 of Block 1 and abut certain storm
drainage facilities and it is agreed that it is of the utmost
importance that no storm water from said facilities enters houses
built on said lots. In order to provide the assurance that houses
built on said lots are constructed at an elevation that said storm
water cannot enter, the approved utility plans contain
specifications; for the minimum elevation for any opening to each
such house. Prior to the issuance of a certificate of occupancy
for each of said lots the Developer shall provide certification
from a licensed surveyor that the lowest opening to any such house
is at or above the minimum elevations required on said utility
plans.
5. The Developer and the City agree that the Developer
shall be responsible to obtain the City's approval of any changes
from the approved utility plans in grade elevations and/or storm
drainage facility configuration that occur as a result of the
construction of houses and/or development of lots, whether by the
Developer or other parties. The City reserves the right to
withhold the issuance of building permits and certificates of
occupancies until the City has approved such changes as being
acceptable for the safe and efficient delivery of storm drainage
water.
6. The Developer agrees to restore and provide all on -
site and off -site erosion control facilities in accordance with the
approved plans prior to beginning any overlot grading for this
development.
D. Streets.
1. Subject to the conditions of this Agreement, the City
agrees to reimburse the Developer for oversizing public street
2
improvements along Horsetooth Road for those portions of said
streets abutting the Property as shown on the approved utility
plans. Reimbursement for Horsetooth Road shall be for oversizing
the street from residential standards to arterial standards. The
City shall make reimbursement to the Developer for the aforesaid
oversized street improvements in accordance with Section 24-121 of
the Code of the City. The Developer agrees and understands that
the City shall have no obligation to make reimbursement payments
for street oversizing unless funds for such payments shall first
have been budgeted and appropriated from the Street Oversizing Fund
by the City Council; and the Developer further understands that to
the extent that funds are not available for such reimbursement, the
City may not, in the absence of the Developer's agreement, require
the construction, at the Developer's expense, of any oversized
portion of streets not reasonably necessary to offset the traffic
impacts of the development. The Developer does hereby agree to
construct the aforesaid oversized street improvements with the
understanding that the Developer may not be fully reimbursed by the
City for the cost of such construction. The Developer further
agrees to accept payment in accordance with Section 24-121 (d) of
the Code of the City as full 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 24-121 (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 24-123. (d).
2. It is understood that the streets to be constructed
as described in this Section II(D) are "city improvements" and, as
such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the
sum of Fifteen Thousand Dollars ($15,000), the contract for the
construction of the same must be submitted to a competitive bidding
process resulting in an award to the lowest responsible bidder; and
evidence must be submitted to the City prior to the commencement of
the work showing that the award was given to the lowest responsible
bidder. If the cost 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.
3. The Developer and the City agree that no building
permits shall be issued for lots 11 through 14 in Block 2 (all of
which lots are in close proximity to Horsetooth Road and,
accordingly, may be impacted by improvements required on Horsetooth
Road) until the street improvements on Horsetooth Road have been
completed with at least the construction of curb, gutter and
sidewalk, and said improvements have been approved by the City.
4. 'The street improvements to Horsetooth Road and County
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Road 9, including related utility and storm drainage improvements,
shall be completed prior to the issuance of more than 8 building
permits for this development. Notwithstanding the forgoing, the
Developer shall have the option to postpone the construction of the
above described improvements required on Horsetooth Road and obtain
issuance of not more than 26 building permits for this development
prior to the completion of said improvements, following the escrow
of funds to be deposited with the City in the form of cash, bond,
nonexpiring letter of credit or other form of City approved
security sufficient to guarantee completion of said improvements.
The escrow amount shall be 150% of the average of three, City
approved, contractor bids for the improvements, excluding the
street oversizing portion for which the Developer may be eligible
for reimbursement. It is further understood that the requirements
of this paragraph are controlled by the provisions of that certain
agreement between the parties hereto dated September $, 1995, a
copy of which is attached hereto as Exhibit "C."
5. The Developer and the City agree that the street
within Block 2 of this development shall be a private street owned
and maintained by the Developer. It is agreed that the
construction of said private street shall be inspected by the City,
as if it were a public street, to assure that the private street is
constructed in accordance with the approved utility plans for this
development and in accordance with City construction standards for
public streets. Said street shall be constructed in accordance
with City standards in every respect except for the following: (1)
Street width shall be 28 feet; (2) No sidewalk shall be
constructed; and (3) All driveways shall be ramped for handicapped
accessibility to the street surface. The Developer, at its
expense, shall have all testing for the construction process for
said private street performed by a licensed soils engineer and
provide copies of all test results to the City for the City's
further benefit to assure that said private street is constructed
to City construction standards.
6. No building permit for the construction of any
structure within Block 2 of this development shall be issued by the
City until the water lines, fire hydrants, sanitary sewer lines and
streets (with at least the base course completed) serving such
structure have been completed and approved by the City. No
certificate of occupancy for any structure within Block 2 of this
development shall be issued until the private street serving said
structure has been completed with the full pavement section.
E. Groundwater.
1. The Developer and the City recognize that this
development has some water features and a detention pond adjacent
to or near this development such that seepage from said water
features and or detention pond may impact the ground water levels
in this development. Accordingly, it is agreed that the City shall
0
not be responsible for any damages or injuries sustained in the
development as a result of groundwater seepage, whether resulting
from groundwater 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.
III. Miscellaneous
A. The Developer agrees to provide and install, at its
expense, adequate barricades, warning signs and similar safety
devices at all construction sites within the public right-of-way
and/or other areas as deemed necessary by the Director of
Engineering in accordance with the City's "Work Area Traffic
Control Handbook" and shall not remove said safety devices until
the construction has been completed and approved by the Director of
Engineering.
B. The Developer shall, at all times, keep the public right-
of-way free from accumulation of waste material or rubbish caused
by the Developer's operation; shall remove such rubbish no less
than weekly and; at the completion of the work, shall remove all
such waste materials, rubbish, tools, construction equipment,
machinery, and surplus materials from the public right-of-way. The
Developer further agrees to maintain the finished street surfaces
so that they are free from dirt caused by the Developer's
operation. Any excessive accumulation of dirt and/or construction
materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until
the problem is corrected to the satisfaction of the Director of
Engineering. If the Developer fails to adequately clean such
streets within two (2) days after receipt of written notice, the
City may have the streets cleaned at the Developer's expense and
the Developer shall be responsible for prompt payment of all such
costs.
C. The Developer hereby agrees that it will require its
subcontractors to cooperate with the City's construction inspectors
by ceasing operations when winds are of sufficient velocity to
create blowing dust which, in the inspector's opinion, is hazardous
to the public health and welfare.
D. The Developer shall, pursuant to the terms of this
Agreement, complete all improvements and perform all other
obligations required herein, as such improvements or obligations
may be shown on the original plat and related documents, or any
replat as subsequently filed by the Developer, and the City may
withhold such building permits and certificates of occupancy as it
deems necessary to ensure performance hereof.
E. Nothing herein contained shall be construed as a waiver of
E