HomeMy WebLinkAboutWATERGLEN PUD - Filed DA-DEVELOPMENT AGREEMENT - 2004-03-12DEVELOPMENT AGREEMENT
THIS AGRE=EMENT, made and entered into this--/ day of A i�li t-�199 �i ,
by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation,
hereinafter referred to as the "City"; Patrick B. Roche, an individual, 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 referred to as the "Property") and legally
described as follows. to wit:
Waterglen P.U.D. located in the East ''/z of Section 4, 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
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
shall be in full satisfaction of the Developer's obligation for off -site 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 Developers payment to the City for such improvements shall be proportionately
reduced so that each party making payment to the City for such improvements is paying
only its proportionate share of the total cost therefor and that the City receives no more
than 100% of such costs from all affected parties.
8. As an alternative to constructing that portion of the off -site Vine Drive
improvements from the intersection of Vine Drive and County Road 9E west to the
intersection of Vine Drive and Lemay, the Developer shall have the option of submitting
design drawings for County Road 9E (Timberline Road) from its intersection with Vine
Drive, south approximately '/2 mile to the improved section of County Road 9E and
constructing the same prior to the issuance of more than 128 Building Permits or Letters
of Completion within this development. The Developer shall have the option of posting an
escrow for such off -site improvements (including the off -site Vine Drive improvements to
the extent the same are not already the subject of an escrow posted with the City) in lieu
of constructing the same, and the conditions forthe posting and the release of such escrow
shall be the same as those provided herein above for the off -site Vine Drive improvements,
with the exception of changes to reflect any difference in the engineer's estimate of cost
of construction. The specific provisions to accomplish this alternative shall be embodied
in an addendum to this Development Agreement.
9. All on -site street improvements shall be constructed by the Developer in
accordance with the attached Phasing Plan.
10. Prior to the construction of any of the off -site Vine Drive improvements
shown on the approved Utility Plans for the development, the Developer shall submit to the
City all remaining permanent and/or temporary easements, if any, required by the City for
the construction of such improvements. Such easements may include, without limitation,
easements that are needed for the purpose of reconstructing, modifying, improving and/or
relocating any driveways along Vine Drive affected by such construction.
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 ofthe
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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 such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
F. Administrative Changes
1. Prior to release of more than 129 building permits and/or Letters of
Completion (25% of 516), the Developer shall have submitted to and received approval
from the City of a minor administrative change to the approved site and landscape plans
which change shall mitigate the visual impacts of the floodwall commencing at the
intersection of Waterglen Drive and Vine Drive and running approximately 500 feet east
from said intersection, (e.g. appropriate plantings and use of exposed aggregate in the
floodwall), provided that such mitigation measures shall be consistent with the approved
stormwater plans. Within such time frame the Developer shall also submit to and receive
approval from the City of any other minor administrative changes to the site and landscape
plans to make such plans conform to the approved utility plans.
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 thiey 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.
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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
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.
E. Nothing herein contained shall be construed as a waiver of any requirements of
the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable) and
the Developer agrees to comply with all requirements of the same.
F. In the event the City waives any breach of this Agreement, no such waiver shall
be held or construed to be a waiver of any subsequent breach hereof.
G. Financial obligations of the City of Fort Collins payable after the current fiscal
year and/or not appropriated or budgeted are contingent upon funds 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 City hereby agrees to release said
Developer from liability under this Agreement with respect to any breach of the terms and
conditions of this Agreement occurring after the date of any such transfer of interest. In
such event, the succeeding property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material element
hereof. In the event that either party shall fail to perform according to the terms of this
Agreement, such party may be declared in default. In the event that a party has been
declared in default hereof, such defaulting party shall be given written notice specifying
such default and shall be allowed a period of ten (10) days within which to cure said
default. In the event the default remains uncorrected, the party declaring default may elect
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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 treasonable attorney's fees and costs incurred by reason of the default.
Nothing herein shall be construed to prevent or interfere with the City's rights and remedies
specified in Paragraph III.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement shall not
be construed as or deemed to be an agreement for the benefit of any third party or parties,
and no third party or parties shall have any right of action hereunder for any cause
whatsoever.
M. It is expressly understood and agreed by and between the parties hereto that
this Agreement shall be governed by and its terms construed under the laws of the State
of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other party
relating to this Agreement shall be hand -delivered or sent by certified mail, return receipt
requested, addressed to such other party at their respective addresses as set forth below,
and such notice or other communication shall be deemed given when so hand -delivered
or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins. Co 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins. Co 80522
If to the Developer: Patrick B. Roche
P.B. Roche Development Co., LLC
361 N. 71"Avenue, Suite 103
P. O. Box 1136
Greeley, Co. 80632
With a copy to: Lucia A. Liley
March & Liley, P.C.
110 E. Oak Street, 2nd Floor
Fort Collins, Co. 80524
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Notwithstanding the foregoing, if any party to this Agreement, or their successors,
grantees or assigns, wishes to change the person, entity or address to which notices under
this Agreement are to be sent as provided above, such party shall do so by giving the other
parties to this Agreement written notice of such change.
O. When used in this Agreement, words of the masculine gender shall include the
feminine and neuter gender, and when the sentence so indicates, words of the neuter
gender shall refer to any gender; and words in the singular shall include the plural and vice
versa. This Agreement shall be construed according to its fair meaning, and as if prepared
by all parties hereto, and shall be deemed to be and contain the entire understanding and
agreement between the parties hereto pertaining to the matters addressed in this
Agreement. There shall be deemed to be no other terms, conditions, promises,
understandings, :statements, representations, expressed or implied, concerning this
Agreement, unless set forth in writing signed by all of the parties hereto. Further,
paragraph headings used herein are fore convenience of reference and shall in no way
define, limit, or prescribe the scope or intent of any provision under this Agreement.
ATTEST:
I V� I ".
City Clerk
APPROVED AS TO CONTENT:
City Engineer
APPROV ASCTO FORM:
GC
�eput'y City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: Cip— a. qanLk
City n(v�ager
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DEVELOPER:
By: a"", I> /(A"
Patrick B. Roche
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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.
East Vine Drive and or County Road 9E (Timberline Road)
4. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
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EXHIBIT"B"
Not Applicable
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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. Except as otherwise approved in the 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, clutters, sidewalks, bikeways and other public improvements required by
this development as shown on the approved final development plan documents and other
approved documents pertaining to this development on file with the City.
F. Street improvements shall not be installed until all utility lines to be placed therein
have been completely installed, including all individual lot service lines leading in and from
the main to the property line.
G. The installation of all utilities shown on the final development plan documents
shall be inspected by the Engineering Department of the City and shall be subject to such
department's approval. The Developer agrees to correct any deficiencies in such
installations in order to meet the requirements of the plans and/or specifications applicable
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to such installation. In case of conflict, the final development plan documents shall
supersede the standard specifications.
H. Developments constructed with privately maintained streets shall be constructed
to the same design standards as those constructed on similar public rights -of -way (ROW).
Public easements shall be provided for access, utilities and drainage as required by the
design and location of such infrastructure and as reflected on the plans. Alignment and
grades on privately maintained streets and drives shall allow for safe access, ingress and
egress by owners, visitors, the general public and public safety officials and equipment, as
approved by the City Engineer.
I. 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.
J. 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,
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shall include right-of-way, design and construction costs. See Section II.C, Special
Conditions, Storm Drainage Lines and Appurtenances, for specific instructions.
K. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City of Fort Collins.
L. 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 clairn and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
II. Special Conditions
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A. Water Lines
"Notwithstanding anything in this Development Agreement to the contrary,
the City acknowledges that the East Larimer County Water District will provide water
service to the Property and, as a result, review and approval of plans for water service
improvements shall be by the District and not the City."
B. Sewer Lines
"Notwithstanding anything in this Development Agreement to the contrary,
the City acknowledges that the Boxelder Sanitation District will provide 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 installed in phases as shown on the Phasing Plan, a copy of which is attached
hereto and incorporated herein by reference ("Phasing Plan"). Phase 1 drainage
improvements shall be completed by the Developer in accordance with said final
development plan documents priorto the issuance of more than 27 building permits and/or
Letters of Completion in phase 1 of this development. In addition, no more then 17
building permits and/or Letters of Completion in phase 2 of this development, no more then
15 building permits and/or Letters of Completion in phase 3, no more then 13 building
permits and/or Leiters of Completion in phase 4, no more then 30 building permits and/or
Letters of Completion in phase 5, no more then 16 building permits and/or Letters of
Completion for phase 6, no building permits and/or Letters of Completion in phase 7, no
more then 2 building permits and/or Letters of Completion in phase 8 and no more then
4 building permits and/or Letters of Completion in phase 10 shall be issued prior to the
completion of all on -site and off -site storm drainage improvements for each respective
phase as shown on the approved final development plan documents. With the exception
of phase 1 improvements, which must be installed and completed as the first phase of
development, the remaining phases may be developed in any sequence as determined by
the Developer, provided thatthe improvements for each phase are installed in accordance
with the above stated requirements. No certificate of occupancy or Letter of Completion
shall be issued for any building in phase 9 of this development prior to the completion and
certification of the drainage improvements associated with phase 9 as shown on the
approved development plan documents. 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 additional building permits or certificates of
occupancy as specified.
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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 $ 105,000.00 prior to beginning
construction to guiarantee 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 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 I II.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 prior to any grading work being
done within this development the developer shall obtain a City flood plain use permit for
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 or Letter of Completion for each
of said lots 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 if applicable 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.
5. The City and the Developer agree that no building permits shall be issued
for lots 338 through 345 until storm drainage improvements are made based upon a City
approved design which protects said lots from stormwater which may overtop or breach the
Larimer & Weld & Canal.
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6. The City and the Developer agree that prior to the issuance of any
certificates of occupancy or Letters of Completion within this development, the developer
shall complete and certify the grading of the major channel along the east and south
property boundary of this development, as well as the channel work at the two ( 2 )
locations adjacent to the Larimer & Weld Canal on the north property boundary of this
development as shown on the approved development plans. Said certification shall be
completed by a Colorado licensed professional engineer.
7. The Developer and the City agree that prior to the issuance of any building
permit for any lot located within a City flood plain as determined by the approved
development plans, the Developer shall obtain a City flood plain use permit for that lot.
Additionally, prior to the issuance of a certificate of occupancy or Letter of Completion for
any lot located within said flood plain, the Developer shall submit a flood plain elevation
certification to the City for each lot, on a FEMA form using City flood plain elevations.
8 The Developer shall obtain the City's prior approval of any changes from
the approved final development plan documents in grade elevations and/orstorm 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, Letters of Completion 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.
9. The Developer and the City agree that, with the exception of the floodwall
to be constructed as part of phase 1 improvements and which will be maintained by the
City, 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.
10. Prior to constructing the off -site portion of Vine Drive as required in sub-
paragraph II.DA, the Developer shall have submitted an application for a Conditional Letter
of Map Revision ("CLOMAR") to the City and shall have had the same approved by FEMA.
D. Streets.
1. The Developer and the City agree that no street oversizing reimbursement
from the City is due the Developer for this development.
23he 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).
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3. The design and construction standards for privately maintained streets
and emergency accessways shall be the same as the standards for public streets.
Grades, alignments, and widths may be modified in accordance with accepted design
principles, only on the condition that safe access is maintained for public safety officials
and equipment. Such modifications from public street standards may be made only if
approved by the City Engineer. Easements for access, utilities and drainage shall be
dedicated to the public and clearly shown on the plat.
4. The Developer and the City agree that all street improvements for Vine
Drive (Off -site and adjacent to the development), as shown on the approved final
development plan documents, shall be completed by the Developer in accordance with
said final development plan documents prior to either (A) the issuance of more than 128
(25 % of 510) building permits and/or Letters of Completion within this development, or (B)
upon determination of the City Engineer that the condition of Vine Drive is no longer safe
for vehicular travel, which ever shall occur first. In addition, the Developer agrees to meet
with the City prior to the issuance of the first building permit, to visually evaluate the
existing condition of the asphalt pavement on Vine Drive and to correct such deficiencies
at the Developer'; expense. Furthermore, prior to the issuance of the first building permit
or Letter of Completion, the Developer shall post a security deposit with the City, in an
amount as estimated by the Developer's consultant, equal to the cost to construct such off -
site street improvements plus twenty five percent (25%). Such estimate shall be subject
to the City's approval and shall be submitted to the City not less than two (2) weeks prior
to the request to establish such escrow. This escrow shall be in the form of cash,
Irrevocable non expiring Letter of Credit, Surety Bond or other form of financial security
acceptable to the City. Any interest earned by the City as a result of said cash escrow
shall be the property of the City to cover administration and inflation in orderto better assist
the City in making reimbursement to the party that constructs the improvements.
In accordance with the following provisions, the City shall return the amount deposited
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 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 his successor or assign, as applicable), upon the posting
with the City of a substitute deposit for those Vine Drive improvements adjacent to the
Property to the extent that the same have not been constructed by such third party or the
E:?
Developer
5. As an alternative to, and in lieu of, the posting of cash or acceptable
collateral with the City as described in subparagraph 4 above, the Developer, at his option,
shall be permitted to pay cash deposits to the City for each building permit or Letter of
Completion released in accordance with the following provisions:
(a) The Developer will pay an amount approved by the City for the improvements
to County Road 9E ( Timberline Road) or an amount approved by the City for the
improvements to Vine Drive prior to the issuance of each building permit or Letter of
Completion for each single-family dwelling unit, multi -family building or garage commencing
with the first building permit or Letter of Completion in the first phase. If any portions of
said sums are paid by the Developer after the year 1999, the Developer agrees to pay the
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 cost index for Denver as published in the Engineering News Record ("ENR") for
October 1998 as the base index ("I -base") and the same index published in the ENR for
the January of each succeeding year immediately preceding payment ("I -year of
payment'). The formula for calculating said inflation factor shall be as follows:
Inf. Fac.-0-year of payment) - (1-base)
(I -Base)
(c) The amount to be added to each payment for either the Vine Drive or County
Road 9E improvements to compensate for inflation shall be equal to either of the approved
payments times the inflation factor. Said amounts added to compensate for inflation shall
not reduce the total (principal) amount due.
6. In order to construct the off -site Vine Drive improvements, certain
easements will be needed from the Burlington Northern Railroad. Such easements shall
be submitted to the City prior to the issuance of more than 128 (25% of 510) building
permits or Letters of Completion within this development, provided that the Developer has
posted an escrow with the City for such offsite improvements prior to release of the first
Certificate of Occupancy or Letter of Completion. If an escrow has not been submitted,
these easements shall be submitted to the City prior to the first Certificate of Occupancy
or Letter of Completion.
7. The City and the Developer agree that if Vine Drive is selected as the
"Truck Route", the Developer will 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 costs
for such 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
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