HomeMy WebLinkAboutWATERFIELD PUD FIRST FILING - Filed DA-DEVELOPMENT AGREEMENT - 2004-03-12DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this 11P'r4day of ( A V 199 ),
by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation,
hereinafter referred to as the "City", and COUNTRY CLUB FARMS, L.L.C., a Colorado
Limited Liability Company ("Country Club"), and BULL RUN LIMITED PARTNERSHIP, an
Ohio limited partnership ("Bull Run"), hereinafter collectively referred to as the "Owner", and
REAL ESTATE ADVISORS OF FLORIDA, INC., a Florida corporation ("Advisors"), and
COUNTRY CLUB are hereinafter collectively referred to as the "Developer".
WITNESSETH:
WHEREAS, Advisors has entered into an agreementwith Bull Run to develop, along
with Country Club, certain real property situated in the County of Larimer, State of
Colorado, (hereafter referred to as the "Property") and legally described as follows, to wit:
Waterfield P.U.D., First Filing, located in the Southwest 1 /4 of Section 5, Township
7 North, Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer,
State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to the
City all plats, plans (including utility plans) reports and other documents required for the
approval of a final plan according to the City's Development application submittal
requirements master list (the final development plan documents) copies of which are on
file in the office of the City Engineer and made a part hereof by reference, and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and will
further require the installation of certain improvements primarily of benefit to the lands to
be developed and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the final development plan documents submitted
by the Developer subject to certain requirements and conditions which involve the
installation of and construction of utilities and other municipal improvements in connection
with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
I. General Conditions
A. The terms of this Agreement shall govern all development activities of the
harmless agreement as to such claim.
F. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a permanent
water system is installed by the Developer and approved by the City.
2. Prior to beginning any building construction, and throughout the buildout
of this development, the Developer shall provide and maintain at all times an accessway
to said building or buildings. Such accessway shall be adequate to handle any emergency
vehicles or equipment, and the accessway shall be kept open during all phases of
construction. Such accessway shall be constructed to an unobstructed width of at least
20 feet with 4 inches of aggregate base course material compacted according to city
standards and with an 80 foot diameter turnaround at the building end of said accessway.
The turnaround is not required if an exit point is provided at the end of the accessway.
Prior to the construction of said accessway, a plan for the accessway shall be submitted
to and approved by the Poudre Fire Authority and City Engineer. (Three plan sets shall be
submitted to the Poudre Fire Authority at 102 Remington Street for review and processing.)
If such accessway is at any time deemed inadequate by the Poudre Fire Authority or City
Engineer, the accessway shall be promptly brought into compliance and until such time
that the accessway is brought into compliance, the City may issue a stop work order for all
or part of the Development.
G. Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain a Footing and Foundation permit upon the
installation of all underground water, sanitary sewer, and storm sewer facilities, and an
emergency accessway for the Phase in which the permit is being requested. Facilities
shall include but not be limited to all mains, lines, services and appurtenances for the site
as shown on the final development plan documents. All of such facilities need not be
installed prior to receiving a Footing and Foundation permit if an alternative plan for
emergency access is submitted to and approved by The Poudre Fire Authority, in which
case the alternative plan will dictate the improvements which will be required for such
permit.
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.
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B. The Developer shall maintain all storm drainage facilities within the public rights -
of -way along Timberline Road and Vine Drive for two (2) full years after construction is
approved by the City, at which time the City will inspect the landscaping and condition of
such drainage facilities, and if such inspection reveals that the landscaping and condition
is viable, then the City will assume all maintenance thereafter.
C. 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.
D. 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.
E. 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
required by the City Engineer 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 hereof.
F. Nothing herein contained shall be construed as a waiver of any requirements of
the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable) and
the Developer agrees to comply with all requirements of the same.
G. 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.
H. 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.
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I. 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.
J. 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.
K. 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.
L. 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.
M. Except as may be otherwise expressly provided herein, this Agreement shall not
be construed as or deemed to be an agreement for the benefit of any third party or parties,
and no third party or parties shall have any right of action hereunder for any cause
whatsoever.
N. 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.
0. 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:
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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: Country Club Farms, L.L.C.
Attn: James R. McCory
c/o Colorado Land Source, Ltd.
8101 E. Prentice Avenue, Suite M180
Englewood, CO 80111
Real Estate Advisors of Florida, Inc.
Attn: William O. Brisben
c/o W.O. Brisben Companies, Inc.
7800 East Kemper Road
Cincinnati, OH 45249
With a copy to: Brisben Companies
Attn: Scott McFadden
St. Elmo Building
1433 17`h Street, Suite 110
Denver, CO 80202
If to the Owner: Country Club Farms, L.L.C.
Attn: James R. McCory
c/o Colorado Land Source, Ltd.
8101 E. Prentice Avenue, Suite M180
Englewood, CO 80111
Bull Run Limited Partnership
Attn: William O. Brisben
c/o W.O. Brisben Companies, Inc.
7800 East Kemper Road
Cincinnati, OH 45249
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With a copy to: Brisben Companies
Attn: Scott McFadden
St. Elmo Building
1433 17'h Street, Suite 110
Denver, CO 80202
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.
P. When used in this Agreement, words of the masculine gender shall include the
feminine and neuter gender, and when the sentence so indicates, words of the neuter
gender shall refer to any gender; and words in the singular shall include the plural and vice
versa. This Agreement shall be construed according to its fair meaning, and as if prepared
by all parties hereto, and shall be deemed to be and contain the entire understanding and
agreement between the parties hereto pertaining to the matters addressed in this
Agreement. There shall be deemed to be no other terms, conditions, promises,
understandings, statements, representations, expressed or implied, concerning this
Agreement, unless set forth in writing signed by all of the parties hereto. Further,
paragraph headings used herein are fore convenience of reference and shall in no way
define, limit, or prescribe the scope or intent of any provision under this Agreement.
TEST: 1
I
City Clerk
APPROVED AS TO CONTENT:
APPR ED AS TO FORM:
epu y City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
City Manage�fsslT.* r«
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ATTEST:
By: William O.
Name:
DEVELOPER:
Country Club Farms, L.L.C.. a Colorado Limited Liability
Company
By:
James R. McCory, er
Real Estate Advisors of FI ida, Inc., a Florida
corporation /
in
William 0. Brisbep( President
Secretary
OWNER:
Bull Run Limited Partnership, an Ohio limited partnership
ATTEST: By: W.O. Brisben Compa es West, Inc., a Florida
corporation, Gener artner
By: William O. sben
Name: SecretaryB
Y
William 0. f3risb6n, President
Country Club Farms L.L.C., a Colorado limited liability
company
By: L
James R. McCory, Manager
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EXHIBIT "A"
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"
Not Applicable
17
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Developer pertaining to the Property. For the purposes of this Agreement, "development
activities" shall include, but not be limited to, the following: (1) the actual construction of
improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or
appearance of the Property caused by, or on behalf of, the Developer with the intent to
construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities,
streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the
approved utility plans and in full compliance with the standards and specifications of the
City on file in the office of the City Engineer at the time of approval of the utility plans
relating to the specific utility, subject to a three (3) year time limitation from the date of
execution of this Agreement. In the event that the Developer commences or performs any
construction pursuant hereto after the passage of three (3) years from the date of
execution of this agreement, the Developer shall resubmit the utility plans to the City
Engineer for reexamination. The City may then require the Developer to comply with the
approved standards and specifications of the City on file in the office of the City Engineer
at the time of the resubmittal.
C. No building permit for the construction of any structure within the development
shall be issued by the City until the public water lines and stubs to each lot, fire hydrants,
sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and
pavement with at least the base course completed) serving such structure have been
completed and accepted by the City. No building permits shall be issued for any structure
located in excess of six hundred and sixty feet (660') from a single point of access, unless
the structures contain sprinkler systems that are approved by the Poudre Fire Authority.
D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets
described on Exhibit 'A," attached hereto, shall be installed within the time and/or
sequence required on Exhibit "A." If the City Engineer has determined that any water lines;
sanitary sewer lines, storm drainage facilities and/or streets are required to provide service
or access to other areas of the City, those facilities shall be shown on the utility plans and
shall be installed by the Developer within the time as established under "Special
Conditions" in this document.
E. Except as otherwise herein specifically agreed, the Developer agrees to install
and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and
all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by
this development as shown on the approved final development plan documents and other
approved documents pertaining to this development on file with the City.
F. Street improvements shall not be installed until all utility lines to be placed therein
have been completely installed, including all individual lot service lines leading in and from
the main to the property line.
G. The installation of all utilities shown on the final development plan documents
2
FXIWIRIT D
BRISBEN COMPANIES P46f I or 3
7800 EAST XEMPER ROAD
CINCINNATI. CoHIO 45249
(513) 489-1990
FAX (513) 489-2780
October 29, 1998
Mr. Davi Stringer
Engineering Department, City of Fort Collins
281 North Co ege
Fort Collins, C 80522
Re: Waterfield
Dear Dave:
On September 24, 1998, a meeting was held at the City of Fort Collins to discuss the
Waterfield PUD First Filing. Attending the meeting were John Gambini of Sycamore
Construction, the general contractor for Bull Run Apartments, Kim Vowell of the Brisben
Companies, the developer of Bull Run Apartments, Lucia Liley of March and Liley,
attorney for the developer, James R. McCory of Colorado Land Source, Ltd., the
developer of Waterfield PUD and David Stringer, representing the City of Fort Collins.
The purpose of the meeting was to discuss and arrive at a solution to enable Brisben to
develop the Bull Run Apartments in view of the fact that certain obligations of the overall
PUD could not be met in a timely fashion, potentially forcing the apartment
development's demise.
The following represents our understanding of the agreements that were reached:
The City agreed that it would immediately prepare a Development Agreement for all
of Waterfield PUD Filing 1. This agreement would be prepared; however, with the
understanding that the City will later approve two separate Development Agreements
dividing improvements and obligations between the single family and multi -family
developments. Such amendment would relieve Brisben of certain of the overall PUD
development requirements that are ultimately required upon development of the
single family portion of the PUD. It was agreed that such action is necessitated so
that Brisben's affordable housing effort is not overly encumbered by development
costs and improvements not benefiting the apartment development.
Brisben will not have to construct County Road 9E adjacent to its property; however,
the City will require that an escrow (at 125% of the cost of the improvement)
guaranteeing the future construction of the road to full City standards be in place prior
to issuance of the first C.O. The escrow amount will be for the ultimate build -out and
will be just for that portion of County Road 9E that is adjacent to the multi -family.
REGIONAL OFFICES:
2525 PERIMETER PLACE DRIVE . SUITE 129 . NASHVILLE. TENNESSEE 32214 (615) 889-1998 FAX (615) 889-3334
"00-1 STUART ANDREW BOULEVARD . CNARLOTTE, NORTH CAROLINA 28217 (704) 523-4115 FAX (704) 523-4415
4891 INDEPENDENCE STREET - SUITE 149 . DENVER, COLORADO 80033 . (303) 421-9990 FAX (303) 432-8661
2325 N. W. 33RD STREET FT. LAUDERDALE. FLORIDA 33309 . (954) 239-0000 . FAX (954) 939-9563
4051 E%ECU"FIVE PARK DRIVE HARRISBURG, PENNSYLVANIA 17111 . (712) 561-2555 - FAX (217) 561-2580
EMBIT D
.040E I Of a
Mr. Dave Stringer
October 29, 1998
Page 2
Brisben will construct a 36' paving lane and appurtenances on East Vine Drive from
the intersection of County Road 9E to Merganser Drive, to include the intersection of
Merganser Drive (`Interim Improvements"). The City will require an escrow or cash
payment (at 125% of the cost of the improvement) for the ultimate build -out of East
Vine Drive prior to the issuance of the first C.O., provided, however, that the cost of
those portions of the Interim Improvements which will not need to be removed in
order to build Vine Drive to full City standards will be deducted from the escrow
amount and provided further that such escrow will include only that portion of Vine
Drive adjacent to Bull Run and will not include the outparcels adjacent to Vine Drive.
Brisben will construct full -width pavement and appurtenances (water, sewer and
storm) that serve and benefit the apartments on the west side of the apartment
development. The paving, sanitary sewer and water line designed to continue north
on Merganser Drive (serving the single family) will be terminated and plugged at the
north property line of the multi -family parcel (approximately Sta. 19+74).
• Brisbet1w�'�i�r�ll construct all downstream sanitary sewer and stormwater facilities in
Vine bt n front of the future apartments and in Merganser Road (up to Sta. 19+74;
necessary to serve the apartment project. The stormwater improvements shall include
excavation of the entire detention pond facility and installation of the outfall structure
(Storm Line L). Brisben will install within the pond only the east -west concrete
trickle channel that serves the upstream apartment improvements. The remainder of
the trickle channel (the north -south channel) within the pond will be constructed by
the single-family development (Filing 1, Phase 2 of Waterfield PUD) prior to the
issuance of any building permits for such single-family development.
Brisben will construct the 24" irrigation line within the apartment development
property and partially across County Road 9E where it will connect to the existing
18" irrigation pipe. The 24" line will be terminated and be plugged at the apartment
property line.
Bull Run PUD will have no responsibility for the construction and/or escrowing of
funds for off -site street improvements. Such improvements shall be the responsibility g
of the single-family development (Filing 1, Phase 2 of Waterfield PUD), provided 0-3
that the developer of Filing 1, Phase 2 shall have the option of escrowing 125% of th
cost of such off -site street improvements in lieu of construction. ertscrflucys "k. _` ot4
posted with the City, such-iNpr-ov b_.Yust-46�,ompk-4-sd prior to the issuance of,,,,*
the first certificate of occupancy. [3 ,S) t"�>��,.-.e. -V'
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PAGE 3 Of 3
Mr. Dave Stringer
October 29, 1998
Page 3
If the aboveT
ly represents our agreement, please indicate by signing below.
Sincerely,
✓fin r
E. ScottMcFadden
Director of Development
Western Region
Read and Approved this 241 day ofj t, t�, 1998.
B�,r
David Stringer
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 orderto 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
9
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City of Fort Collins.
K. The Developer specifically represents that to the best of its knowledge all
portions of the Property dedicated (both in fee simple and as easements) to the City
associated with this development are in compliance with all environmental protection and
anti -pollution laws, rules, regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40
C.F.R., Part 261, and that such portions of the Property as are dedicated to the City
pursuant to this development, are in compliance with all such requirements pertaining to
the disposal or existence in or on such dedicated property of any hazardous substances,
pollutants or contaminants, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer does hereby indemnify and hold harmless the City from any
liability whatsoever that may be imposed upon the City by any governmental authority,
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. 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 in
connection with 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 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. Notwithstanding anything in this Development Agreement to the contrary,
the City acknowledges that the East Larimer County Water District will be providing water
service to the Property and, as a result, review and approval of plans for water service
n
improvements shall be by the District and not the City.
B. Sewer Lines
1. Notwithstanding anything in this Development Agreement to the contrary,
the City acknowledges that the Boxelder Sanitation District will be providing sanitary sewer
service to the Property and, as a result, review and approval of plans for sanitary sewer
service improvements shall be by the District and not the City.
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 10 building permits in the single family
portion of the development or any certificate of occupancy for the multi -family portion of the
development, which ever occurs first. Completion of improvements shall include the
certification by a professional engineer licensed in Colorado that the drainage facilities
which serve this development have been constructed in conformance with said final
development plan documents. Said certification shall be submitted to the City at least two
weeks prior to the date of issuance of any certificate of occupancy for the development.
2. The Developer 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 $42.612.00 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, the City, after giving the Developer written notice of such failure
and a stated period of time within which to correct the same, may enter upon the Property
for the purpose of making such improvements and undertaking such activities as may be
necessary to ensure that the provisions of said plans and the Criteria are properly
enforced. The City may apply such portion of the security deposit(s) as may be necessary
to pay all costs incurred by the City in undertaking the administration, construction, and/or
installation of the erosion control measures required by said plans and the Criteria. In
addition, the City shall have the option to withhold building permits and certificates of
occupancy, as stated in Paragraph III.D of this Agreement, as it deems necessary in order
to ensure that the Developer installs and maintains the erosion control measures
throughout the buildout of this development.
3. 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
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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 the Developer shall
provide the City with certification that the lot has been graded correctly (including
the grading of any minor swales, if applicable), the lot corner elevations specified
on the approved final development plan documents are correct and in accordance
with the approved final development plan documents; and the minimum floor
elevation for all buildings constructed on said lot has been completed in accordance
with the approved final development plan documents. 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.
4. The Developer shall obtain the City's prior approval of any changes from
the approved final development plan documents in grade elevations and/or storm drainage
facility configuration that occur as a result of the construction of houses and/or
development of lots, whether by the Developer or other parties. The City reserves the right
to withhold the issuance of building permits and certificates of occupancies for this
development until the City has approved such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
5. The Developer and the City agree that the Developer is obligated to
maintain all on -site storm drainage facilities not accepted for maintenance by the City and
all off -site storm drainage facilities not accepted for maintenance by the City serving this
development and outside of the public rights -of -way with the exception of the crossing of
the Lake Canal. The Developer shall be responsible for the maintenance of the drainage
crossing Lake Canal for a period of two (2) years from the date of completion of such
crossing or until its acceptance by the City for maintenance, whichever shall first occur.
D. Streets.
1. It is the obligation of the Developer to improve Vine Drive from the
intersection of Vine Drive and Timberline Road (CR 9E) west to Merganser Drive. It is also
the responsibility of the Developer to improve Timberline Road (CR 9E) from the
intersection of Vine Drive and Timberline Road (CR 9E) north to the Larimer and Weld
County Canal bridge crossing. Improvements to the aforementioned streets shall include
all necessary tapers and transitions necessary to connect the proposed roadway
improvements to the existing roadway in a manner which is safe for public use. Said
improvements shall include any related utility and storm drainage improvements and shall
be in accordance with the approved final development plan documents, the Code of the
City, and Exhibit C (depiction of Vine Drive and County Road 9E street improvements)
attached hereto and incorporated herein by reference. It is agreed that said improvements
are not considered offsite road improvements and accordingly, construction of said
improvements shall be completed and accepted by the City prior to the issuance of the first
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certificate of occupancy (see Exhibit "C"). In lieu of installing the aforesaid street
improvements, the Developer shall have the option of escrowing cash, an irrevocable non -
expiring letter of credit, security bond or other form of financial security acceptable to the
City. Such escrow, which shall be deposited with the City prior to the issuance of the first
certificate of occupancy, shall be in the amount of 125% of the estimated cost of such
improvements, and such escrow shall be released upon completion of the above described
improvements and their acceptance by the City.
2. To satisfy its off -site street improvement requirements, the Developershall
have the option of designing and constructing either (1) Vine Drive interim improvements
from the western boundary of the Property to the intersection of Vine Drive and Lemay
Avenue; or (2) County Road 9E interim improvements from its intersection with Vine Drive
south approximately'/2 mile to the improved section of County Road 9E.
However, since the traffic impacts do not necessitate these improvements
at this time, the Developer, in lieu of construction of the same, shall have the option of
escrowing cash, an irrevocable non -expiring letter of credit, security bond or otherform of
financial security acceptable to the City for such improvements prior to the issuance of the
first certificate of occupancy for the development. If the Developer selects Vine Drive off -
site improvements, the sum of $500,000.00 shall be escrowed and if County Road 9E is
selected, the amount escrowed shall be $250,000.00,
3. As an alternative to, and in lieu of, the posting of cash or acceptable
collateral with the City as described in subparagraph 2 above, the Developer, at its option,
shall be permitted to pay cash deposits to the City for each building permit released in
accordance with the following provisions:
(a) The Developer will pay the amount of $3,424.66 for the
improvements to Timberline Road (CR 9E) or $6,849.32 for the
improvements to Vine Drive prior to the issuance of each building
permit for each single-family dwelling unit, multi -family building, or
garage commencing with the first building permit issued in the first
filing and all succeeding building permits in the first filing. If any
portions of said sums are paid by the Developer after the year 1999,
the Developer agrees to pay the amount specified above plus an
additional amount, to be calculated as described below to recognize
the effects of inflation with said amount to be increased each year
until payment is completed in full.
(b) The inflation factor (Inf. Fac.) for each year's payments shall be
calculated using the construction cost index for Denver as published
in the Engineering News Record (ENR) for October, 1998, as the
base index (1-base) and the same index published in the ENR for the
January in each succeeding year immediately preceding payment (I -
year of payment). The formula for calculating said inflation factor
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shall be as follows:
Inf. Fac. = (1-year of payment) - (1-base).
(I -base)
(c) The amount to be added to each $3,424.66 or $6,849.32 payment
to compensate for inflation shall be equal to $3,424.66 or $6,849.32
times the inflation factor. Said amounts added to compensate for
inflation shall not reduce the total (principal) amount due.
4. In accordance with the following provisions, the City shall return to the
Developer the amounts deposited for off -site street improvements plus, if a cash deposit,
any interest earned by the City as a result of such cash deposit and less 3% of such total
cash amount remaining (which includes said amount deposited with the City plus the
interest earned by the City) to be kept by the City to cover its costs for administration of
said cash deposit:
(a) If the Developer constructs such street improvements, the deposit
shall be returned to the Developer.
(b) If a successor or assign of the Developer constructs such street
improvements, the deposit shall be returned to the Developer unless
such successor or assign also posted the deposit with the City.
(c) If a third party constructs the off -site Vine Drive improvements, the
deposit shall be released to the Developer (or a successor or assign
of the Developer, as applicable), upon the posting with the City of a
substitute deposit for those Vine Drive improvements adjacent to the
Property to the extent the same have been constructed by such third
party or the Developer.
5. In the event that the Developer selects the Vine Drive off -site street
improvements to satisfy its obligation and the City selects Vine Drive as its "Truck Route",
the Developer shall only be obligated to improve Vine Drive adjacent to the Property. In
such event, the City shall release the deposit posted by the Developer for Vine Drive upon
a cash payment by the Developer to the City equal to 100% of the cost for the off -site Vine
Drive improvements (and not the adjacent improvements to Vine Drive) based upon the
earlier engineer's estimate approved by the City. Such payment shall be in full satisfaction
of the Developer's obligation for off -site street improvements.
In the event that Vine Drive is selected as the "Truck Route" and the City has received
other deposits for such off -site Vine Drive improvements from a third party or parties, the
amount of the Developer's payment to the City for such improvements shall be
proportionately reduced so that each party making a payment to the City for such
improvements is paying only its proportionate share of the total cost therefor and that the
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City receives no more than 100% of such cost from all affected parties
6. The City and the Developer acknowledge that a phasing plan is being
prepared by the Developer to split the Property into two (2) separate projects, with the
apartment project (Bull Run PUD) to be developed by Real Estate Advisors of Florida, Inc.
and the single-family project to be developed by Country Club Farms, L.L.C.. In order
separate these projects, such phasing plan must be approved by the City and an
addendum to this Agreement for each separate project executed by the City and the
respective developer. The parties have agreed upon certain provisions to be included in
such addenda, and a copy of the letter agreement between the parties is attached as
Exhibit D and incorporated herein by reference.
7. The construction of Merganser Drive and Garganey Drive including curb,
gutter, and sidewalk shall be constructed and accepted by the City as shown on the
approved final development plan documents prior to the issuance of the first certificate of
occupancy. In lieu of installing the aforesaid street improvements, the Developer shall
have the option of escrowing cash, irrevocable non -expiring letter of credit, security bond
or other form of financial security acceptable to the City. Such escrow shall be in the
amount of 125% of the estimated cost of the local street portion of any of the aforesaid
street improvements which have not been completed at the time of posting of such escrow.
8. The Developer and the City agree that no street oversizing reimbursement
from the City is due the Developer for this development.
9. 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).
E. Ground Water
1. The City shall not be responsible for, and the Developer hereby agrees
to indemnify and hold harmless the City against, any damages or injuries sustained in the
development as a result of ground water seepage or flooding, structural damage, or other
damage unless such damages or injuries are sustained as a result of the City's failure to
properly maintain its storm drainage facilities in the development. The City agrees to give
notice to the Developer of any claim made against it to which this indemnity and hold
harmless agreement by the Developer could apply, and the Developer shall have the right
to defend any lawsuit based on such claim and to settle any such claim provided Developer
must obtain a complete discharge of all City liability through such settlement. Failure of the
City to give notice of any such claim to the Developer within ninety (90) days after the City
first receives notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
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