HomeMy WebLinkAboutFORT COLLINS GOOD SAMARITAN VILLAGE - Filed DA-DEVELOPMENT AGREEMENT - 2004-06-10DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this Z IT//clay of
2001, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; The Evangelical Lutheran Good
Samaritan Society DBA Fort Collins Good Samaritan Village, a North Dakota non-profit
corporation 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:
Fort Collins Good Samaritan Village First Subdivision P.D.P., located in Section
11, Township 6 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
completion of any such project, be repaired in accordance with then existing City
standards. The City shall not be responsible for, and the Developer, for itself and its
successor(s) in interest, hereby agrees to indemnify and hold harmless the City against
any damages or injuries sustained in the Development as the result of groundwater
seepage or flooding, structural damage or other damage resulting from failure of any
such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and
hold harmless the City against any damages or injuries to water rights caused, directly
or indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements 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 the 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 the forgoing indemnities and hold harmless agreements by the
Developer to not apply to such claim and such failure shall constitute a release of the
foregoing indemnities and hold harmless agreements 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
build -out of this Development, the Developer shall provide and maintain at all times an
accessway to said building or buildings. Such accessway shall be adequate to handle
any emergency vehicles or equipment, and the accessway shall be kept open during all
phases of construction. Such accessway shall be constructed to an unobstructed width
of at least 20 feet with 4 inches of aggregate base course material compacted according
to city standards and with an 80 foot diameter turnaround at the building end of said
accessway. The turnaround is not required if an exit point is provided at the end of the
accessway. Prior to the construction of said accessway, a plan for the accessway shall
be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three
plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for
review and processing.) If such accessway is at any time deemed inadequate by the
Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into
compliance and until such time that the accessway is brought into compliance, the City
and/or the Poudre Fire Authority may issue a stop work order for all or part of the
Development.
Ini
G. Model Home Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain building permits in Phase 1 of the Development
upon the installation of an emergency accessway and the installation of the fire line and
hydrant for this phase as shown on the Final Development Plan Documents. The
Developer shall have the right to obtain a conditional temporary certificate of occupancy
for Phase 1 of the Development upon completion of all improvements associated with
Phase 1 as shown on the Final Development Plan Documents. It is understood that the
construction of the model homes (Phase 1) is allowed to occur without the installation of
all underground water, sanitary sewer, and storm sewer facilities necessary for home
occupancy of this phase and a conditional temporary certificate of occupancy may be
issued as outlined herein; however, a full certificate of occupancy for home occupation
of these model units (Phase 1) shall not be allowed until such time as the installation of
said utility facilities and public and private improvement are completed as shown on
Phase 2 of the Final Development Plan Documents. Facilities shall include but not be
limited to all mains, lines, services, fire hydrants and appurtenances for the
Development.
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.
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.
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 (or to the extent
permitted by law, revoke) 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.
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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. All financial obligations of the City arising under this Agreement that are
payable after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins City
Council, in its discretion.
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. 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.
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L. 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.
M. 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: Fort Collins Good Samaritan Village
c/o Ms. Sherry Friesen
508 West Trilby Road
Fort Collins, CO 80525
With a copy to: The Evangelical Lutheran Good Samaritan Society
c/o Mr. Lenny Kemnitz AIA
4800 West 57`h Street
PO Box 5038
Sioux Falls. SD 57117-5038
Notwithstanding the foregoing, if any party to this Agreement, or its 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.
N. 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
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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 EST:
City Clerk
APPROVED AS TO CONTENT:
City Engine r
APPROV�Ffl�AS TO FORM:
putt' i y Attorney'
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: (—)o 0,
City M nager
DEVELOPER:
The Evangelical Lutheran Good Samaritan
Society DBA Fort Collins Good Samaritan
Village,
1a North Dakota non-profit corporation
By:`—f/
David J Ho zdovsk
Vice President for Operatio�
and Chief Operating Officer
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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.
I 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.
EXHIBIT "B"
Not Applicable
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EXHIBIT "C"
Refer to the Final Plat for this Development
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A. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement,
"development activities" shall include, but not be limited to, the following: (1) the actual
construction of improvements, (2) obtaining a permit therefor, or (3) any change in
grade, contour or appearance of the Property caused by, or on behalf of, the Developer
with the intent to construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and
facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on
the approved utility plans and in full compliance with the standards and specifications of
the City on file in the office of the City Engineer at the time of approval of the utility plans
relating to the specific utility, subject to a three (3) year time limitation from the date of
execution of this Agreement. In the event that the Developer commences or performs
any construction pursuant hereto after the passage of three (3) years from the date of
execution of this agreement, the Developer shall resubmit the utility plans to the City
Engineer for reexamination. The City may then require the Developer to comply with
the approved standards and specifications of the City on file in the office of the City
Engineer at the time of the resubmittal.
C. No building permit for the construction of any structure within the 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
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 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.
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G. The installation of all utilities shown on the Final Development Plan
Documents shall be inspected by the Engineering Department of the City and shall be
subject to such department's approval. The Developer agrees to correct any
deficiencies in such installations in order to meet the requirements of the plans and/or
specifications applicable to such installation. In case of conflict, the Final Development
Plan Documents shall supersede the standard specifications.
H. 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, for itself and its successor(s) in interest, 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, 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, for itself and its successor(s) in
interest, 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
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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 Agreement to the contrary, the
Development will be provided water service from the Fort Collins -Loveland Water
District ("Water District"), and all water line improvements shall be installed and
inspected in accordance with the Water District's regulations and the approved plans
therefor.
B. Sewer Lines
1. Notwithstanding anything in this Development Agreement to the
contrary, the Property will be provided sanitary sewer service from the South Fort
Collins Sanitation District ("Sewer District"), and all sewer line improvements shall be
installed and inspected in accordance with the Sewer District's regulations and the
approved plans therefor.
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements associated
with Phase 1 of this Development, as shown on the Final Development Plan
Documents, shall be completed by the Developer in accordance with said Final
Development Plan Documents prior to the issuance of any certificate of occupancy in
Phase 1. All on -site and off -site storm drainage improvements associated with the
remaining phase of this Development and modifications to Phase 1 improvements, shall
be completed by the Developer in accordance with said Final Development Plan
Documents prior to the issuance of any additional certificate of occupancy 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 certificate of occupancy for the Development.
2. The Developer shall be responsible for maintaining the structural
integrity and operational functions of all drainage facilities throughout the build -out of
this Development. If at any time following certification (as required pursuant to
paragraph one (1) above) of said drainage facilities and during the construction of
structures and/or lots within this Development the City deems that said drainage
facilities no longer comply with the approved plans, the Developer shall bring such
facilities back up to the standards and specifications as shown on the approved plans.
Failure to maintain the structural integrity and operational function of said drainage
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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
C ity.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the Final Development Plan Documents to stabilize all over -
lot grading in and adjacent to this Development. The Developer shall be required to
post a security deposit in the amount of $2,538.00 prior to beginning construction in
Phase 1 to guarantee the proper installation and maintenance of the erosion control
measures shown on the Final Development Plan Documents. The Developer shall also
be required to post a security deposit in the amount of $27,972.75 prior to beginning
construction in the remaining phase of the Development to guarantee the proper
installation and maintenance of the erosion control measures shown on the 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
Final Development Plan Documents or the Criteria, notwithstanding any provisions
contained in paragraph III(J) to the contrary, the City may enter upon the Property for
the purpose of making such improvements and undertaking such activities as 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. It is important that all lots be graded to drain in the configuration
shown on the Final Development Plan Documents. For this reason the following
additional requirements shall be followed for building on all lots:
a. Prior to the issuance of a certificate of occupancy for any lot
or building the Developer shall provide the City with
certification that the lot and/or building been graded
correctly. This grading certification shall demonstrate that
the lot or building Finish Floor elevation has been built in
accordance with the elevation specified on the Final
Development Plan Documents. The certification shall also
show that the minimum floor elevation or minimum opening
elevation for any building constructed is in compliance with
the minimum elevation as required on the Final Development
Plan Documents. The certification shall demonstrate as well
that any minor swales adjacent to the building or on the lot
have been graded correctly and in accordance with the
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grades shown on the Final Development Plan Documents.
The certification shall also show that the elevations of all
corners of the lot are in accordance with the elevations
shown on the 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 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 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. The
Developer shall ensure that the temporary (Phase 1 pond) and permanent retention
facilities are maintained and that the pumping system that is installed in conjunction with
the permanent retention facility are in good operational condition at all times. The
Developer shall further guarantee that the Phase 1 retention pond shall be maintained
in a way that will guarantee that it would not become a nuisance to the public, and shall
make sure that the pond does not have a permanently exposed water surface.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Trilby Road for
those portions of said street abutting the Property as shown on the Final Development
Plan Documents. Reimbursement for Trilby Road shall be for oversizing the sidewalk
from local (access) standards to minor arterial standards. The City shall make
reimbursement to the Developer for the aforesaid oversized street improvements in
accordance with Section 24-112 of the Code of the City. The Developer agrees and
understands that the City shall have no obligation to make reimbursement payments for
street oversizing unless funds for such payments shall first have been budgeted and
appropriated from the Street Oversizing Fund by the City Council; and the Developer
further understands that to the extent that funds are not available for such
reimbursement, the City may not, in the absence of the Developer's agreement, require
the construction, at the Developer's expense, of any oversized portion of streets not
reasonably necessary to offset the traffic impacts of the Development. The Developer
does hereby agree to construct the aforesaid oversized street improvements with the
understanding that the Developer may not be fully reimbursed by the City for the cost of
such construction. The Developer further agrees to accept payment in accordance with
Section 24-112 (d) of the Code of the City as full and final settlement and complete
accord and satisfaction of all obligations of the City to make reimbursements to the
Developer for street oversizing expenses. It is anticipated by the City that the City's
reimbursement, in accordance with Section 24-112 (d), would not be less than fifty
percent (50%) of the Developer's actual expenses incurred and will be calculated in
accordance with the formula as set forth in Section 24-112 (d).
2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II(D) are "City improvements" (as
defined below) and, as such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the sum of Thirty
Thousand Dollars ($30,000), the contract for the construction of the same must be
submitted to a competitive bidding process resulting in an award to the lowest
responsible bidder; and evidence must be submitted to the City prior to the
commencement of the work showing that the award was given to the lowest responsible
bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the
contract for the construction of the improvements must be insured by a performance
bond or other equivalent security. For purposes of this paragraph, the term "City
improvements" shall mean either (1) existing improvements owned by the City that are
to be modified or reconstructed, or (2) any improvements funded in whole or in part by
the City.
3. No street oversizing reimbursement shall be due for the
construction of the median on Trilby Road as shown on the Final Development Plan
Documents.
4. The Developer is responsible for the installation and establishment
of landscaping located in the median ("median landscaping") within Trilby Road
adjacent to the Development. The City shall then agree to take over the maintenance
responsibility from the Developer upon completion of the establishment period. (For the
purposes of the provisions herein, "establishment period" shall be defined as the length
of time following the installation of the median landscaping in which said landscaping is
maintained and nurtured by the Developer to ensure that said median landscaping can
survive and thrive without man-made irrigation. This length of time shall be no less than
two years.) The aforementioned obligations by the City and the Developer are detailed
as follows:
a. The Developer shall install median landscaping in
accordance with the Final Development Plan Documents.
Upon completion of said installation, the Developer shall
maintain the median landscaping for a two-year period to
ensure the establishment of all plant material.
b. At the conclusion of the two-year period, representatives of
the City and the Developer shall jointly conduct an inspection
of the median landscaping for the purpose of identifying any
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median landscaping that has not been fully established. If it
is jointly determined that all median landscaping is fully
established, the City shall assume responsibility for
maintaining the median landscaping. If portions of the
median landscaping are not fully established, the City may
still agree to take over maintenance responsibilities in whole
for the median landscaping; however, the City reserves the
right to not assume any maintenance responsibilities until
such time as the entire median landscaping is fully
established.
5. All access to the property for the purposes of on -site work during
construction of the Development shall take place off of Trilby Road.
6. 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).
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.
E. Ground Water, Subdrains and Water Rights
1. The City shall not be responsible for, and the Developer, for itself
and its successors) in interest, 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 proximately caused by the City's negligent operation or maintenance of its
storm drainage facilities in the Development. However, nothing herein shall be deemed
a waiver by the City of its immunities, defenses, and limitations to liability under the
Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any
other law.
2. If the Development includes a subdrain system, any such subdrain
system, whether located within private property or within public property such as street
rights -of -way or utility or other easements, shall not be owned, operated, maintained,
repaired or reconstructed by the City and it is agreed that all ownership, operation,
maintenance, repair and reconstruction obligations shall be those of the Developer or
the Developer's successor(s) in interest. Such subdrain system is likely to be located
both upon private and public property and, to the extent that it is located on public
property, all maintenance, operation, repair or reconstruction shall be conducted in such
a manner that such public property shall not be damaged, or if damaged, shall, upon
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