HomeMy WebLinkAboutWARREN FARMS THIRD - Filed DA-DEVELOPMENT AGREEMENT - 2004-03-11DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this `j day of /lam 'OZ
2000, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; Warren Farms Development Company,
LLC, a Colorado limited liability company, hereinafter referred to as the "Developer."
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property'
or "Development') and legally described as follows, to wit:
Warren Farms, 3'd Filing, a Tract of Land Located in the Southeast Quarter if
Section 26, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins,
County of Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to the
City all plats, plans (including utility plans), reports and other documents required for the
approval of a final plan according to the City's development application submittal
requirements master list (the final development plan documents) copies of which are on
file in the office of the City Engineer and made a part hereof by reference, and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and will
further require the installation of certain improvements primarily of benefit to the lands to
be developed and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the final development plan documents submitted
by the Developer subject to certain requirements and conditions, which involve the
installation of and construction of utilities and other municipal improvements in connection
with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
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
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E. Natural Resources
1. The Developer shall be responsible for implementing mitigation
measures in accordance with the Wetlands Mitigation Plan, attached hereto as Exhibit "G",
to compensate for the disturbance of approximately 0.92 acres of wetlands on this
development site Said mitigation shall be accomplished by the creation of wetlands
through the establishment of hydrologic regime and wetland vegetation for the wetland
area actually disturbed. Construction of said wetland mitigation area shall be completed
prior to the issuance of more than 37 building permits. Notwithstanding the foregoing, the
Developer shall be responsible for maintaining the proposed mitigation area for a minimum
of 3 years from the date of its construction or until acceptance by the City to ensure that
the wetland vegetation and hydrologic regime are fully established. In addition, the
Developer shall warranty the establishment of the proposed mitigation area for a period of
3 years from the date of installation of this vegetation. At the end of the 3-year warranty
period, the City's (Natural Resources Director shall inspect the wetlands planned by the
Developer. If the wetlands have been established in accordance with the Wetlands
Mitigation Plan, they shall be approved and accepted by the City's Natural Resources
Director. If the wetlands have not been established in accordance with the Wetlands
Mitigation Plan, then the Developer shall promptly take such steps as described in the
Wetlands Mitigation Plan to bring the wetlands into conformance. Finally, the Developer
shall obtain the City's prior approval of any changes from the approved final development
plan documents in regard to wetlands mitigation. The City reserves the right to withhold
the issuance of any building permits and certificates of occupancy beyond the 37'h for this
Development until the City has approved such changes.
2. The Developer shall warranty the establishment of the proposed
vegetation in Tract A as shown on the approved final development plan documents for a
period of 3 years from date of installation of this vegetation. In addition, the Developer
shall be responsible for maintaining the wetlands on Tract A for a minimum of 3 years from
the date of its construction or until acceptance by the City to ensure that the wetland
vegetation and hydrologic regime are fully established. Planted wetlands shall be
monitored for their effectiveness and status in accordance with the Wetland Mitigation
Plan, attached hereto as Exhibit "G".
3. The Developer shall delineate all Limits of Development with orange
construction fence prior to any type of construction including over lot grading.
4. 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
1. The City shall not be responsible for, and the Developer hereby
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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.
G. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a permanent
water system is installed by the Developer and approved by the City.
H. Development Construction Permit
1. The Developer shall apply for and obtain a Development Construction
Permit for this Development, in accordance with Division 2.6 of the Land Use Code (or
Section 29-12 of the Transitional Land Use Regulations, if applicable), prior to the
Developer commencing construction. The Developer shall pay the required fees for
said Permit and construction inspection, and post security to guarantee completion of
the public improvements required for this Development, prior to issuance of the
Development Construction Permit.
I. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance guarantee and
a five-year repair guarantee covering all errors or omissions in the design and/or
construction of the public improvements required for this Development, which guarantees
shall run concurrently and shall commence upon the date of completion of the public
improvements and acceptance thereof by the City. More specific elements of these
guarantees are noted in Exhibit "C." Security for the maintenance guarantee and the repair
guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code, or Section 29-14
of the Transitional Land Use Regulations, as applicable. Notwithstanding the provisions
of paragraphs III (H) and (1) of this Agreement to the contrary, the obligations of the
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.
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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 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)
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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 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
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
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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
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
If to the Developer: David E. Bailey
Warren Farms Development Company
C/O Erie County Investment Company
601 Corporate Circle
Golden, CO 80401
With a copy to: Stephen A. Maguire
6300 S. Syracuse Way, Suite 293
Englewood, CO 80111
303/740.8883
Brock Chapmann
Kaufman and Broad of Colorado, Inc.
8401 East Belleview Avenue, Suite #200
Denver, CO 80237
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
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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.
A TEST:
City Clerk
APPROVED AS TID CONTENT:
City Engin6er
APPRO D AS TO FORM:
eputy City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal) Corporation
By: Q-P— q. �''V L
City Ma' ger
DEVELOPER:
Warren Farms Development Company, LLC, a
Colorado Limited Liability Company
David €.Bailey, Manager
ATTEST:
By:
Stephen A. Maguire, Mana er
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EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
3. Schedule of street improvements to be installed out of sequence.
Not Applicable
4. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
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EXHIBIT "B"
The development agreement for the 3"' Filing of Warren Farms,
City of Fort Collins, Larimer County, Colorado.
Cost Estimate for Major Drainage Improvements
The following cost estimate for the improvements constitute costs
associated with major drainage improvements which are eligible
[or developer repay. These costs are based on construction
estimates from The Cumberland Companies and negotiations between
the Developer and the City.
_Item _
Earthwork -- cut
Quantity
Unit Unit Cost
Total Co
1,405
cu. $
$
Earthwork - fill
19,678
yds. 2.00
cu. $
2,810
$
Right-of-way - detention
1.16
yds. 2.00
acres $
39,356
pond
$
Right-of-way --drainage
0.304
20,000
acres $
23,200
$
_easement
Revegetation
103,000
31,312
5.5
acres $
$
Engineering
1.0
650
I.S.
3,575
$
$
Totals
15,000
15,000
$
—
115,253
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EXHIBIT "C"
Refer to the Final Plat for this Development
M
IIx8.5 19
appearance of the Property caused by, or on behalf of, the Developer with the intent to
construct improvements thereon.
P. All water lines, sanitary sewer collection lines, storm sewer lines and
facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on
the approved utility plans and in full compliance with the standards and specifications of
the City on file in the office of the City Engineer at the time of approval of the utility plans
relating to the specific utility, subject to a three (3) year time limitation from the date of
execution of this Agreement. In the event that the Developer commences or performs any
construction pursuant hereto after the passage of three (3) years from the date of
execution of this agreement, the Developer shall resubmit the utility plans to the City
Engineer for reexamination. The City may then require the Developer to comply with the
approved standards and specifications of the City on file in the office of the City Engineer
at the time of the resubmittal.
C. No building permit for the construction of any structure within the Property
shall be issued by the City until the public water lines and stubs to each lot, fire hydrants,
sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and
pavement with at least the base course completed) serving such structure subject to that
phase have been completed and accepted by the City as shown on the Final Utility Plans.
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 for that phase of 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
IIxB.5 20
N 8.5 21
Exhibit 'G'
WETLANDS MITIGATION PLAN
WARREN FARMS
FORT COLLINS, COLORADO
Prepared for
Warren Farm Land Development LLC
Golden, Colorado
Prepared By
Nuszer-Kopatz
Urban Design Associates
Denver, Colorado
February 2000
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Table of Contents
1.0 Introduction........................................................................... 1
2.0 WETLANDS OVERVIEW......................................................... 2
2.1 WETLAND CONSTRUCTION ........................................... 2
2.1a Surveying...................................................................... 2
2.1b Earthwork..................................................................... 2
2.1(b)(1) Vegetation Clearing ................................................... 2
2.11(b)(2) Excavation and Grading .............................................. 2
2.11c Wetland Site Design......................................................... 3
2.1.d Species Composition for Wetland Planting ............................. 3
2.1e Wetland Mitigation Monitoring ........................................... 3
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Wetlands Mitigation Plan
Warren Farms
Fort Collins, Colorado
1.0 Introduction
Warren Farm Land Development LLC, is proposing a 151 unit, single family
development in Central Fort Collins at Horsetooth Rd. and Meadowlark Avenue, which
will result in the: moving and recreating of an existing wetland condition. Wetland
Survey Repot prepared by Cedar Creek Associates, identified the current majority of
species found within the wetland are:
Salix exigua Coyote willow
Juncus balticus Baltic rush
Equisetum laevigatum smooth scouring -rush
Carex aquatilis water sedge
Agropyron smithii Western Wheatgrass
Reed canarygrass
Within the development proper, 0.92 acres of "Waters of the United States" will be
impacted.
In order to mitigate the wetlands a wetland mitigation plan has been prepared to
compensate the habitat of the wetlands lost from construction.
The overall goal of the mitigation plan includes the following
*Compensate lost wetlands at 1.0 to 1.5 ratio per city of Fort Collins requirements.
*Develop wetlands within the approximate area where existing wetlands will be lost;
*Maintain existing hydological processes;
*Provide habitat: for species displaced by the removal of existing wetlands.
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2.0 Wetlands
The mitigation plan details the vegetation to be planted. The hydological functions will
be obtained by grading of the detention pond that will enable surface water inundation
and soil water saturation to occur in the excavated areas. If the compensated goals are not
fully achieved during implementation, modifications to the plan can and will be made.
Once constructed, data will be collected and submitted in monitoring report to the City of
Fort Collins.
2.1 Wetland Construction.
2.1a Surveying
The existing wetland area has been staked and surveyed per the previously submitted
wetland survey and report, and the project engineer has obtained elevations and
measurements of the ground surface. The wetland survey is as shown on this plan. The
information was submitted to the Army Corps of Engineers (COE) and it was their
determination that the area fell under the COE's nation wide permit process, and that no
mitigation would be required. Mitigation, as proposed is, as required by the City of Fort
Collins. The engineer following excavation will verify the correct final grading per the
plans.
2.Ib Earthwork
This item covers the clearing, excavation and grading, disposal, placement, topsoiling
and compaction of all the materials within the limits of work required to construct 1.38
acres of emergent wetlands, and riparian area, combined to replace .92 acres of disturbed
wetlands. See plan for details. All of the work is per the project engineer's grading plans
for the detention and wetland mitigation area. Topography contours as proposed are
shown on the mitigation plan as well for reference.
2.1(b)(1) Vegetation Clearing
The initial step in the implementation of the mitigation plan is the stripping of existing
wetland vegetation. Stripped vegetation would be stockpiled on -site at a depth of 12"+/-,
and adjacent to the mitigation areas. Stripped topsoil shall not be stockpiled for longer
than thirty days because of possible oxidation of the soil, loss of some of the seeds
viability and the possible release of metals that may be toxic to seedlings. This does not
include existing on -site "deadwood" and timber from two existing cottonwoods to be
removed within the detention area.
2.1(b)(2) Excavation and Grading
The wetland topsoil and subsoil, along with the vegetation, would be stripped and stock
piled upland of the excavation area. During excavation the upper 12 inches of wetland
topsoil would be segregated from the subsoil. The topsoil should be stockpiled separately
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within the upland at a depth of 12"+/-, not to exceed longer than thirty (30) days. The
subsoils would be removed to final elevation as described in the final engineering plans.
2.1 c Wetland Site Design
The emergent wetland mitigation plan is designed to re-create the same relative area and
quality of the impacted wetlands. Establishment of site hydrology that provides sufficient
water at the frequent and duration required for wetland vegetation is essential.
Hydrologic conditions from stormwater flows, nuisance irrigation, water from the ditch
and normal ground water will provide sufficient water for wetland inundation. These
flows will be sufficient for the establishment and continuous growth of wetland
vegetation. The; goal for the plan, as designed, is for sufficient soil saturation, surface
inundation and the establishment of wetland vegetation.
2.1d Species Composition for Wetland Planting
It is proposed that stock piled wetlands material will be placed with in the mitigation area
as shown on the: plan, at a +/- 12" depth and the wetlands would be allowed to naturally
revegetate from this material, and seed bank from the reapplied topsoil from the wetland.
2.1 e Wetland Mitigation Monitoring
Following restoration efforts the wetland mitigation area will be assessed for the
effectiveness of the project for three growing seasons. The observations will occur in
June and September of each growing season. The status and effectiveness of the wetland
mitigation will be evaluated and the results will be report to the Clients, the City of Fort
Collins, and to the U.S. Army Corps of Engineers, as appropriate. If it is found that the
seed bank is not sufficient, wetland plants will be planted with plugs on 2-foot centers.
The species repllaced will come from the list below:
Salix exigua Coyote willow
Juncus balticus Baltic rush
Juncus torreyi Torrey rush
Carex nebraskensis Nebraska sedge
Scirpus americanus Threesquare
Any non -viable plant material, will be replaced with same species, size and quantities as
originally installed per above.
The monitoring reports would include, but not limited to vegetation cover, plant species
composition, soil saturation and/ or surface inundation, and the removal of unwanted
non-native species by mechanical methods.
The Developer and the City agree that following the restoration efforts, the mitigation site
will be assessed for the effectiveness of the project. The developer shall also ensure that
the wetlands are properly maintained for a three (3) year period following construction
thereof to ensure that the wetland vegetation and hydrologic regime are fully established.
Monitoring of the wetland would occur at least in June and September of the first
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growing season and in late summer of the remaining growing seasons. The status and
effectiveness of the wetland mitigation will be evaluated and the results will be reported
to the City Natural Resources Department for review.
The Developer and the City agree that the Developer shall be responsible for all seeded
areas for a minimum of two (2) growing seasons from the date of completion or until the
following plant establishment criteria is met.
The Developer .and the City agree 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
spccificd 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 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 two (2) growing seasons from the date
of completion. The Developer shall rework and reseed per original specifications and
areas that are dead, diseased, contain too many weedy species, or fail to meet the
coverage requirement at no additional cost to the City.
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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
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
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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
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
1. Prior to the issuance of any building permit(s) for this development,
the Developer shall, in accordance with Section 26-121 of the City Code, reimburse the
City the sum of $10,039.45, plus inflation, for the cost of installation of the Developer's
portion of the 24-inch water main in Horsetooth Road adjacent to the development. This
reimbursement its based upon the front footage (1,153.96 feet) along Horsetooth Road.
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The inflation shall be calculated based upon the Construction Cost Index for Denver
(2611.92) as published in the Engineering News Record (ENR) on August 16, 1979. The
ENR index for February 14, 2000 was 4528.52. This yields a total amount of $17,406.30
which includes inflation. The actual amount due will be adjusted at the time of payment
to reflect the most current ENR index.
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 more than 37 building permits in this Development.
Completion of improvements shall include the certification by a professional engineer
licensed in Colorado that the drainage facilities which serve this Development have been
constructed in conformance with said final development plan documents. Said certification
shall be submitted to the City at least two weeks prior to the date of issuance of any more
than 37 building permits 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. The Developer shall also be
required to post a security deposit in the amount of $17,528.00 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
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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 and the City agree that it is important that all lots be
graded to drain in the configuration shown on the approved final development plan
documents. For this reason the following additional requirements shall be followed for
building on all lots:
Prior to the issuance of a certificate of occupancy for any lot in this development, the
Developer shall provide the City with certification that the lot has been graded correctly and
in accordance with the approved final development plans. Such certification shall include,
certification for: the grading of any minor swales, (if applicable); certification that the lot
corner elevations surveyed are correct and in accordance with the approved final
development plain documents, and certification that the minimum floor elevation (when
applicable) for all buildings constructed on any lot has been completed in accordance with
the approved final development plan documents. Said certification shall be completed by
a Colorado licensed professional engineer and shall be submitted to the City at least two
weeks prior to the date of issuance of the desired certificate of occupancy.
5. 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.
6. The Developer shall 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 17, lots 43 through 105 and lots 132 through 151.
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 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. The proposed detention pond that will be located on Tract A of this
development shall be dedicated to the City in fee on the Plat. The City shall pay for this
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tract in accordance with Exhibit B attached hereto. The Developer shall warranty the
establishment of the proposed vegetation in Tract A as shown on the approved final
development plan documents for a period of 3 years from date of installation of this
vegetation. In addition, the Developer shall be responsible for maintaining the detention
pond on Tract A for a minimum of 3 years from the date of its construction or until
acceptance by the City.
8. The City agrees to make a cost sharing payment to the Developer for
certain construction and improvement costs to be expended by the Developer that will
benefit a larger area than the Property. The City also agrees to make a payment to the
Developer for certain easements and a right of way granted, or to be granted to the City
on the plat for the Property. The aggregate amount of the said payments will be $115,253
and shall be paid to the Developer within sixty (60) days after the on -site and off -site storm
drain improvements described in subsection II.C.1 have been completed and accepted by
the City. The $115,253 sum is an agreed -upon amount that was negotiated between the
Developer and the City using the pricing information set forth in Exhibit "B" attached hereto.
D. Streets
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Meadowlark
Avenue and Horsetooth Road (adjacent to the right turn lane) for those portions of said
street abutting the Property as shown on the approved final development plan documents.
Reimbursement 'for Meadowlark Avenue shall be for oversizing the street from local
(access) standards to collector standards. Reimbursement for Horsetooth Road (adjacent
to the right turn lane) shall be for oversizing the sidewalk from local (access) standards to
arterial standards. (Said oversizing reimbursements shall be based on the street standards
established in July 1996.) 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 24-1 12 (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).
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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 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).
4. The Developer shall be responsible for the construction of all bicycle
and pedestrian paths as shown on the final development plan documents, including the
associated bridge structures spanning the New Mercer Canal and the portions of path that
extend offsite through The Preserve at the Meadows Project Development Plan (see
Exhibit 'D') prior to issuance of more than 37 building permits in this Development.
However, if the Developer is not able to construct the bridge structures prior to start of the
irrigation season, the Developer shall have the option to escrow cash for the construction
of the bridge structures and complete the construction of said bridge structures no later
than December 31, 2000. The amount of said funds shall be the estimated cost to
construct said improvements, which estimate shall be prepared by the Developer and
approved by the City, plus an additional 15% of the estimate to cover any contingencies
and unexpected costs. Said amount shall be deposited with the City prior to the issuance
of more than 37 building permits for this Development. Notwithstanding the foregoing, the
City will in the future construct a storm main under a portion of the proposed bicycle/
pedestrian path to connect regional detention facilities. Therefore, the Developer shall
construct a temporary eight (8) foot asphalt path in lieu of the proposed eight (8) foot
concrete path and escrow cash for the difference between constructing an eight (8) foot
concrete path versus an eight (8) foot asphalt path (see Exhibit'E' for the portion of bicycle/
pedestrian path in question). The amount of said funds shall be the estimated cost of the
difference to construct said improvements, which estimate shall be prepared by the
Developer and approved by the City, plus an additional 15% of the estimate to cover any
contingencies and unexpected costs. Said amount shall be deposited with the City prior
to the issuance of more than 37 building permits for this Development.
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Except as provided in the following paragraph, any interest earned by the City as a result
of said deposits shall be the property of the City to cover administration and inflation in
order to better assist the City in making reimbursement to the party who constructs said
improvements.
If the Developer is the party that constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the Developer
the amount deposited plus any interest earned by the City as a result of said deposit, less
3% of the total amount remaining, (which includes said amount deposited plus the interest
earned by the City) to be kept by the City to cover its costs for administration of said
deposits.
The Developer and the City also agree that following completion of the aforementioned
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. At such time that the City accepts the aforementioned
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City, the Developer shall maintain all onsite bicycle and pedestrian improvements,
excluding those which are to be maintained by the City (as shown on Exhibit `F' attached
hereto).
The New Mercer Canal Company shall not be responsible for maintenance of any bicycle
and pedestrian paths as shown on the final development plan documents, including without
limitation the associated bridge structures, spanning the New Mercer Canal and portions
of path that extends offsite through The Preserve at the Meadows Project Development
Plan (as shown on Exhibit 'D' attached hereto). The New Mercer Canal Company will not
be responsible for any damages to the bicycle and pedestrian paths that may occur or
result from the reasonable cleaning or maintenance of the canal.
5. The City shall issue no building permit for the construction of any
structure within the Property until such time as Meadowlark Avenue has been constructed
(including curb, gutter, and pavement with at least the base course completed). At such
time that the City requires the Developer to construct the final pavement section for
Meadowlark Avenue, the Developer shall complete the Horsetooth Road right turn lane.
6. Shop drawings for the two bridge structures crossing the New Mercer
Canal shall be submitted to the City's Engineering Department for review and approval two
weeks prior to commencing construction on either bridge structure.
7. 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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