HomeMy WebLinkAboutSWIFT ADDITION TO FOSSIL LAKE PUD - Filed DA-DEVELOPMENT AGREEMENT - 2004-06-14FOSSIL CREEK AREA
DEVELOPMENT AGREEMENT
THIS FOSSIL CREEK AREA DEVELOPMENT AGREEMENT (the "Agreement"),
is made and entered into this day of c— 2003, by and between the
CITY OF FORT COLLINS, COLORAD0, a Municipal Corporation, hereinafter referred
to as the "City"; and FL — Swift, LLC, a Colorado limited liability company, hereinafter
referred to as the "Developer."
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property"
or "Development") and legally described as follows, to wit:
Swift Addition to Fossil Lake P.U.D., located in Section 9, Township 6 North,
Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer, State of
Colorado.
WHEREAS, the Developer has obtained approval from Larimer County, Colorado
(the "County") to develop the Property in two construction phases and has submitted to
the County all plats, plans (including utility plans), reports and other documents required
for the approval of final development plans and a subdivision plat according to the
County's development process, which documents have heretofore been filed with the
County and are hereafter referred to the "Final Development Plan Documents"; and
WHEREAS, because the Property is located in the Fossil Creek Area, the
Developer is required to promptly apply for annexation of the Property into the City and
promptly upon the effective date of the annexation of the Property into the City (the
"Annexation"), the Developer shall file copies of the Final Development Plan Documents
with the City Engineer which copies, when filed, are made a part of this Agreement by
reference thereto; and
WHEREAS, this Development Agreement is executed between the City and the
Developer in anticipation of the aforesaid annexation and shall become effective
immediately upon the effective date of the Annexation, provided the Annexation is
effective no later than August 1, 2003; and
WHEREAS, the parties hereto have agreed that the development of the Property,
when annexed into the City, 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
February 27, 2003 1
estimated cost to construct said improvements, which estimate shall be prepared by the
Developer and approved by the City, plus an additional 25% of the estimate to cover
any contingencies and unexpected costs. Said amount shall be deposited with the City
prior to the issuance of any building permit by the City for this Development.
The remaining improvements to Rocky Stream Drive shall be made at such time that
the street can be extended and connected through the adjacent property.
Except as provided in the following paragraph, any interest earned by the City as a
result of said deposit shall be the property of the City to cover administration and
inflation in order to better assist the City in making reimbursement to the party who
constructs said improvements.
If the Developer is the party that constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the
Developer the amount deposited plus any interest earned by the City as a result of said
deposit, less 3% of the total amount remaining, (which includes said amount deposited
plus any interest earned by the City) to be kept by the City to cover its costs for
administration of said deposits.
4. The landscaping located in the medians within Shearwater Court,
Green Spring Drive, and Wild View Drive internal to the Development shall not be
maintained by the City and it is agreed that all installation, maintenance, operation,
repair and reconstruction obligations relating to the landscaping and the irrigation of
said landscaping shall be those of the Developer or the Developer's successor(s) in
interest. To the extent that said landscaping and irrigation is located on public property,
all installation, maintenance, operation, repair and reconstruction shall be conducted in
such a manner that such public property shall not be damaged, or if damaged, shall be
repaired in accordance with then existing City standards.
5. The landscaping located in the medians with outfall curb and gutter
within this Development shall be "drip" irrigated. "Spray" type irrigation is permissible
only on medians with drainage inlet and inflow curb and gutter as specified on the Final
Development Plan Documents.
6. The Developer hereby indemnifies and holds the City harmless
from any damage caused to the roadway (concrete, asphalt, curb and gutter) when
such damage is caused, directly or indirectly, by the acts or omissions of the Developer
in irrigating the landscaping within the medians on Shearwater Court, Green Spring
Drive and Wild View Drive internal to this development site. Notwithstanding any
provision in this Agreement to the contrary, this indemnity may be assigned only to a
bonafide homeowner's association which has lawfully assumed the irrigation obligation
from the Developer and only if such assignment is in writing and duly and lawfully
executed by such homeowner's association.
February 27, 2003 10
7. No access to Lot 37, Block 5 of the Property shall be allowed off of
Wild View Drive until Phase 2 infrastructure construction is complete or the street has
been completed with a City approved temporary turnaround for which all necessary
easements shall be provided prior to the acceptance of such turn around and the
issuance of any building permit on this lot. Access for this lot shall be allowed off of
Rocky Stream Drive with Phase 1 construction.
8. A Development Construction Permit for Phase 2 work shall not be
issued until a copy of a recorded conservation easement that was in acceptable format
for the County, on the land east and south of Phase 2 is provided to the Engineering
Department or additional right of way has been dedicated to the City, and plans have
been approved for such change, to provide adequate access to the developable
property to the east and south of Phase 2.
9. 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 in effect on the date of this Agreement.
E. Ground Water, Subdrains and Water Rights
1. 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 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
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.
February 27, 2003 11
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. Trails
The Developer shall be responsible for the installation of that
portion of the City regional trail system as shown on the Final Development Plan
Documents (the "Trail'). The Developer shall build the Trail to a width of ten (10) feet in
accordance with the City trail standards (5" thick, fiber mesh and 2 Ibs/sack Yosemite
Brown in color) as shown on the Final Development Plan Documents.
The Developer shall include the estimated cost of installation of the
Trail in the letter of credit required pursuant to Paragraph III.H. hereof. Upon the
completion of and acceptance of the Trail by the City, the amount of the letter of credit
shall be reduced by the amount added to the letter of credit for the Trail installation.
Construction of the Trail shall be done in a timely manner; and continuous work,
excluding weather -related delays, shall be performed. If the City determines that
ongoing, continuous construction of the Trail is not occurring, the City may withhold
building permits and/or certificates of occupancy to ensure performance. Upon
completion and acceptance of the Trail by the City, the City shall be responsible for the
maintenance of the Trail.
Upon completion of and acceptance of the Trail by the City, the City
shall reimburse the Developer the actual cost paid by the Developer to construct five
and one-half (5 1/2) feet of the width of the Trail, and the cost of adding the color and
fiber mesh to the ten (10) foot width of the Trail.
February 27, 2003 12
G. Hazards and Emergency Access
No combustible material will be allowed on the site until a permanent
water system is installed by the Developer and approved by the Water District, and the
City has been notified by the Water District of such approval.
H. Development Construction Permit/Collateral
1. To the extent that the Developer has not previously obtained a
development construction permit from the County, it shall apply for and obtain a
Development Construction Permit for this Development in accordance with Division 2.6
of the Land Use Code, prior to the Developer commencing construction and 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. Pursuant to the County
development agreement for the Property, the Developer is required at the time of plat
recordation to post security to guarantee completion of all required public improvements
for the Development except landscaping, which security is anticipated to be released by
the County to the Developer promptly after the effective date of the Annexation, at
which time the Developer shall promptly provide the City with security acceptable to the
City. Pursuant to the County development agreement for the Development, the
Developer is permitted to commence installation of infrastructure improvements prior to
the effective date of the Annexation and, to the extent any such improvements are so
commenced, the City agrees that the City shall thereafter perform the inspection and
approval processes required in connection with any such improvements. The County
development agreement for the Development requires the County, if the Property is
annexed, to transfer to the City any portion of the development construction permit fee
paid by the Developer which relates to improvements for which work has not been
inspected prior to such annexation. If the Developer has obtained a development
construction permit from the County, the City shall not charge the Developer any
additional development construction permit fees beyond such amount transferred from
the County for that Phase or Phases.
I. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance
guarantee and a five-year repair guarantee covering all errors or omissions in the
design and/or construction of the public improvements required for this Development,
which guarantees shall run concurrently and shall commence upon the date of
completion of the public improvements and acceptance thereof by the City. More
specific elements of these guarantees are noted in Exhibit "C." Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section
3.3.2(C) of the Land Use Code. Notwithstanding the provisions of paragraphs IV.H.
and IV.I. 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
February 28, 2003 13
acceptance of the warranted improvements is received from the City by, such other
person or entity.
J. Show Homes.
Upon the completion of installation of all underground water, sanitary sewer and
storm sewer facilities, an emergency accessway and curb and gutter (unless otherwise
agreed by the Citys Engineering Inspector), the Developer shall be entitled to receive
building permits for Lots 104 through 109 for show homes. 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.
K. Conservation Easement.
A conservation easement, in a form satisfactory to the County, that restricts
development on the land east and south on Phase 2 of the Property shall be prepared,
executed and delivered to the County prior to the commencement of construction of
Phase 2 in accordance with the Final Development Plan Documents or the Final
Development Plan Documents shall be revised to provide adequate access to the
developable land east and south of phase 2 of the Property.
IV. 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,
February 27, 2003 14
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.
E. The City acknowledges that the annexation of the Property is subject to
the County's approval of the Final Development Plan Documents, provided however,
that the statutory vested rights granted the Development shall be in accordance with the
laws of the State of Colorado. Except as is otherwise permitted pursuant to C.R.S. 24-
68-105, the City agrees that it shall impose no additional standards or requirements
beyond those set forth in the Final Development Plan Documents, and the Developer
shall comply with all applicable City procedural and fee requirements for such
improvements which are not inconsistent with the terms of this Agreement, including but
not limited to, obtaining a development construction permit, posting of collateral,
provision of applicable construction warranties and guarantees, inspections, issuance of
building permits and certificates of occupancy and payment of all applicable City fees.
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.
February 27, 2003 15
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. 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 IV.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.
February 27, 2003 16
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:
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
Developer: FL — Swift, LLC
c/o Stan Everitt
3030 S. College Avenue, Suite 200
Fort Collins, CO 80525
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.
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 for convenience of
reference and shall in no way define, limit, or prescribe the scope or intent of any
provision under this Agreement.
February 27, 2003 17
ATTEST:
City Clerk
APPROVED AS TO CONTENT:
City Engineer
APPROV AS TO FORM:
Deputy City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: Qgl
John F. schbach, City Manager
DEVELOPER:
FL — Swift, LLC, a Colorado limited liability
Company
By: Double E & G, Inc., a Colorado
corporation, Manager
i
By:
David G. Eve itt, President
February 27, 2003 18
STATE OF COLORADO
) ss.
COUNTY OF LARIMER )
a
Th foregoing Development Agreement was executed before me this ,L day
of�, 2003, by David G. Everitt, President of Double E & G, Inc., Manager of
FL -Swift, LLC, a Colorado limited liability company.
WITNESS my hand and official seal.
My commission expires: 2�Z -bs
Notary Public
OP'
r1td E
PUBUC
February 27, 2003 19
WHEREAS, the City has approved or accepted the Final Development Plan
Documents submitted by the Developer to the County, subject to requirements and
conditions imposed by the County, which are set forth on Exhibit "D," attached hereto
and incorporated herein by reference.
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:
This Agreement shall become effective and be binding upon the parties hereto
immediately upon Annexation, provided that the Annexation is effective no later than
August 1, 2003. In the event the Annexation is not effective by such date, this
Agreement shall not take effect and shall be of no force and effect whatsoever.
Pursuant to an intergovernmental agreement between the County and the City, the
Developer must promptly petition to have the Property annexed into the City, which
annexation petition has either heretofore been filed with the City or will be so filed
concurrently with the recording of the subdivision plat for the Property. In the event that
the Property is annexed into the City, then this Agreement shall supercede all of that
certain development agreement except Paragraph 40 thereof executed between the
Developer and the County, of even date herewith, pertaining to the Property. A copy of
Paragraph 40 of such County development agreement is attached hereto as Exhibit "E."
ll. 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 construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and
facilities, streets, curbs, gutters, sidewalks, and bike paths shall be installed as shown
on the Final Development Plan Documents (and in full compliance with the standards
and specifications of the County) on file with the County and to be filed with the office of
the City Engineer promptly after the Annexation, 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.
February 27, 2003 2
EXHIBIT "A"
1. Schedule of electrical service installation.
Electrical lines need to be installed prior to the installation of the sidewalk, curb
returns, handicap ramps, paving and landscaping. If the Developer installs any curb
return, sidewalk or handicap ramp prior to the installation of electrical lines in an area
that interferes with the installation of the electrical line installation, the Developer shall
be responsible for the cost of removal and replacement of those items and any
associated street repairs.
2. Schedule of water lines to be installed out of sequence.
Not Applicable.
3. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
4. Schedule of street improvements to be installed out of sequence.
Not Applicable
5. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
February 27, 2003 20
EXHIBIT "B"
Not Applicable
21
EXHIBIT "C"
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of two (2) years
from the date of completion and first acceptance by the City of the public improvements
warranted hereunder, the full and complete maintenance and repair of the public
improvements constructed for this Development. This warranty and guarantee is made
in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land
Use Regulations, as applicable. This guarantee applies to the streets and all other
appurtenant structures and amenities lying within the rights -of -way, easements and
other public properties, including, without limitation, all curbing, sidewalks, bike paths,
drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any
maintenance and/or repair required on utilities shall be coordinated with the owning
utility company or city department.
The Developer shall maintain said public improvements in a manner that will assure
compliance on a consistent basis with all construction standards, safety requirements
and environmental protection requirements of the City. The Developer shall also correct
and repair, or cause to be corrected and repaired, all damages to said public
improvements resulting from development -related or building -related activities. In the
event the Developer fails to correct any damages within thirty (30) days after written
notice thereof, then said damages may be corrected by the City and all costs and
charges billed to and paid by the Developer. The City shall also have any other
remedies available to it as authorized by this Agreement. Any damages which occurred
prior to the end of said two (2) year period and which are unrepaired at the termination
of said period shall remain the responsibility of the Developer.
REPAIR GUARANTEE:
The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5)
year period, commencing upon the date of completion and acceptance by the City of the
public improvements constructed for this Development, from any and all claims,
damages, or demands arising on account of the design and construction of public
improvements of the Property shown on the approved plans and documents for this
Development; and the Owner furthermore commits to make necessary repairs to said
public improvements, to include, without limitation, the roads, streets, fills,
embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the
right-of-way easements and other public properties, resulting from failures caused by
design and/or construction defects. This agreement to hold the City harmless includes
defects in materials and workmanship, as well as defects caused by or consisting of
settling trenches, fills or excavations.
February 27, 2003 22
Further, the Developer agrees that the City shall not be liable to the Developer during
the warranty period, for any claim of damages resulting from negligence in exercising
engineering techniques and due caution in the construction of cross drains, drives,
structures or buildings, the changing of courses of streams and rivers, flooding from
natural creeks and rivers, and any other matter whatsoever on private property. Any
and all monetary liability occurring under this paragraph shall be the liability of the
Developer.
The obligations of the Developer pursuant to the "maintenance guarantee" and "repair
guarantee" provisions set forth above 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.
February 27, 2003 23
EXHIBIT "D"
EXCERPT FROM COUNTY/DEVELOPER DEVELOPMENT AGREEMENT
4. Conditions of Approval
4.1 Construction activity within the one -quarter (1/4) mile Natural Resource
Area will be scheduled and coordinated with the County Parks and Open
Lands Department so as to limit disturbance of the wildlife during sensitive
seasons. The sensitive nesting period of the herons is of particular
importance in scheduling construction activity. Construction activity is
defined as development improvements such as detention areas as well as
housing construction.
4.2 The applicant shall install fencing along the entire southern boundary of
the subject site as shown on the final plans for the project. Said fencing
shall be constructed to restrict domestic animals from crossing into the
Natural Resource Area.
4.3 Tree planting, as approved, shall be completed along the southern
boundary to provide immediate screening value.
4.4 Perimeter drains shall be incorporated into the construction of all
dwellings.
4.5 Fire hydrants are required with a maximum spacing of 600 feet within
required flows of 1000 gallons per minute and residual pressure of 20
p.s.i. No dwelling may be located more than 800 feet from a fire hydrant.
4.6 Address numerals shall be visible from the street fronting the property
through the use of six-inch (6") numerals on a contrasting background.
This requirement shall be specified in the covenants for the development
and enforced by the Association.
4.7 Individually calculated drainage basin fees will be collected for each lot at
the time a building permit is issued.
4.8 Passive radon mitigation measures shall be included in the construction of
residential structures on the development lots. The results of a radon
detection test conducted in the new dwellings once they are enclosed
shall be submitted to the County Building Department before a certificate
of occupancy is issued. As an alternative, a builder may present a prepaid
receipt from a radon tester, which specifies that a test will be done within
thirty (30) days. A permanent certificate of occupancy can be issued
when the prepaid receipt is submitted.
February 27, 2003 24
4.9 Engineered footings and foundations are required for all new residential
structures within the development.
4.10 A disclosure notice to prospective homeowners shall be prepared for the
development and recorded with the final plat.
4.11 A conservation easement, in a form satisfactory to the County, which
restricts development on the land east and south of Phase 2 of the
development, shall be prepared and executed prior to the commencement
of construction of Phase 2 in accordance with the Final Construction
Plans.
February 27, 2003 25
EXHIBIT "E"
EXCERPT FROM COUNTY/DEVELOPER DEVELOPMENT AGREEMENT
40. Annexation of the Property.
Pursuant to an intergovernmental agreement between the County and the City,
the Developer must promptly petition to have the Property annexed into the City, which
annexation petition shall be filed concurrently with recording of the subdivision plat for
the Property. In the event that the Property is annexed into the City, then the provisions
of this Development Agreement, with the exception of this Paragraph 40, shall be
superceded immediately upon the effective date of such annexation, by that certain
Development Agreement executed between the Developer and the City, of even date
herewith, pertaining to the Property. Provided the ordinance annexing the Property is
effective no later than May 15, 2003, no building permits shall be issued for the Property
prior to such annexation. The Developer shall be permitted to commence installation of
infrastructure improvements prior to the effective date of the Annexation and to the
extent any such improvements are so commenced, the County agrees that the City will
thereafter perform the inspection and approval processes required in connection with
any such improvements. The County further agrees that in the event the Developer
obtains a development construction permit from the County and subsequent thereto the
Property is annexed to the City, the County shall thereupon promptly transfer to the City
that portion, if any, of the development construction permit fee which relates to
infrastructure improvements which have not been inspected by the effective date of the
annexation of the Property.
February 27, 2003 26
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DEVELOPMENT AGREEMENT FOR
the
SWIFT ADDITION TO FOSSIL LAKE P.U.D.
This Agreement is made this 1$"1 day of MA41,( , 2003 between the
Board of County Commissioners of Larimer County, Colorado ("County"); FL -Swift,
LLC, a Colorado limited liability company ("Developer'); and Fossil Lake PUD
Homeowner's Association ("Association').
WHEREAS, Developer is the owner of certain real property situated in Larimer
County, Colorado, described on Exhibit A attached hereto and incorporated herein
("Property');
WHEREAS, County has approved the Amended Preliminary Plat of Swift
Addition to Fossil Lake P.U.D. by Findings and Resolution dated June 25th, 2002 and
recorded July 8th, 2002 at Reception No. 2002072430 of the Larimer County records;
and
WHEREAS, Developer has submitted to County for approval, execution and
recordation a final plat for Swift Addition to Fossil Lake P.U.D.; and
WHEREAS, Developer desires to develop the Property in two phases using a
defined set of improvements; and
WHEREAS, County has considered the final plat, the proposed development and
improvements to the Property, and the requirements to be imposed upon the Property by
reason of the proposed development and improvement of the Property included in the
final plat; and
WHEREAS, County is willing to approve, execute and accept for recordation the
final plat upon the agreement of Developer and Association to the matters described in
this Agreement; and
WHEREAS, County, Developer and Association mutually acknowledge and
agree that the matters described in this Agreement are reasonable conditions and
requirements to be imposed by County in connection with its approval, execution and
acceptance for recordation of the final plat, and that such matters are necessary to protect,
promote and enhance the general welfare.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and the approval, execution and acceptance of the final plat for
recordation by the County, the parties agree as follows.
1. Title of the Development.
2/272003
Page 1
The title of the development is Swift Addition to Fossil Lake P.U.D.
2. Description of Development and Uses.
The Swift Addition to Fossil Lake P.U.D. is a subdivision of 55.172 acres into
116 single family residential lots. The subdivision includes 8.980 acres of
greenbelt.
3. Residual Land Restrictions.
There are no Residual Land Restrictions.
4. Conditions of Approval.
2n7n003
Page 2
4.1 The final plat shall not be recorded until the project site has been
incorporated into the South Fort Collins Sanitation District, and all
applicable construction plans have been reviewed and approved by such
district.
4.2 Construction activity within the one -quarter (%4) mile Natural Resource
Area will be scheduled and coordinated with the County Parks and Open
Lands Department so as to limit disturbance of the wildlife during
sensitive seasons. The sensitive nesting period of the herons is of
particular importance in scheduling construction activity. Construction
activity is defined as development improvements such as detention areas
as well as housing construction.
4.3 The applicant shall install fencing along the entire southern boundary of
the subject site as shown on the final plans for the project. Said fencing
shall be constructed to restrict domestic animals from crossing into the
Natural Resource Area.
4.4 Tree planting, as approved, shall be completed along the southern
boundary to provide immediate screening value.
4.5 Perimeter drains shall be incorporated into the construction of all
dwellings.
4.6 larimer County Transportation Capital Expansion Fees will be collected
at the time of building permits for each new dwelling unit within this
development. Said fee collected shall be the amount in effect at the time
of building permit application. Cash in -lieu of school fees for the Poudre
School District R-Iwill be collected at the time of building permit for each
dwelling in this development. Said fee shall be in the amount effective at
the time of building permit application.
4.7 Fire hydrants are required with a maximum spacing of 600 feet with
required flows of 1000 gallons per minute and residual pressure of 20
p.s.i. No dwelling may be located more than 800 feet from a fire hydrant.
r
C. Except as otherwise provided herein, 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, electrical lines, 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, electrical lines,
and/or streets described on Exhibit "A," attached hereto, shall be installed within the
time and/or sequence required on Exhibit "A" and on the Final Development Plan
documents.
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 (water
and sewer) leading in and from the main to the property line and all electrical lines.
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, provided that the water and sanitary sewer
improvements are special district improvements and their inspection and approval by
the City shall be limited to trenches which are within or which cross City facilities. 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. 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; and (2) 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
February 27, 2003 3
4.8 Address numerals shall be visible from the street fronting the property
through the use of six-inch (6") numerals on a contrasting background.
This requirement shall be specified in the covenants for the development
and enforced by the Association.
4.9 Fees in -lieu of Park Land Dedication fees will be required for each new
dwelling at the time of building permit. Since the property is within the
Urban Growth Area, the UGA park fees will be charged. The amount of
the fee in effect at the time of building permit application will be charged.
4.10 Individually calculated drainage basin fees will be collected for each lot at
the time a building permit is issued.
4.11 Passive radon mitigation measures shall be included in the construction of
residential structures on the development lots. The results of a radon
detection test conducted in the new dwellings once they are enclosed shall
be submitted to the County Building Department before a certificate of
occupancy is issued. As an alternative, a builder may present a prepaid
receipt from a radon tester, which specifies that a test will be done within
thirty (30) days. A permanent certificate of occupancy can be issued when
the prepaid receipt is submitted.
4.12 Engineered footings and foundations are required for all new residential
structures within the development.
4.13 A disclosure notice to prospective homeowners shall be prepared for the
development and recorded with the final plat.
4.14 A conservation easement, in a form satisfactory to the County, which
restricts development on the land east and south of Phase 2 of the
development, shall be prepared and executed prior to the commencement
of construction of Phase 2 in accordance with the Final Construction
Plans.
5. Mineral Interests.
The Property is not subject to any mineral interests.
6. Water Rights and Water Interests.
There are no water rights and/or water interests associated with this property.
7. Improvements.
Developer shall design, construct and install at its own expense all infrastructure
improvements including but not limited to streets, curbs, gutters, sidewalks,
utilities, drainage facilities, water and sewer facilities, flood protection devices
and other improvements shown on the final plat or in the supporting documents in
2/2711003
Page 3
(.� accordance with the plans and specifications, as prepared by Developer's licensed
engineers and professionals, and approved by County.
Developer shall also construct and install at its own expense all off -site
improvements described fy�F al Construction Plans
in accordance with the plans and specifications, as prepared by Developer's
licensed engineers and professionals, and approved by County.
All construction shall be performed in a good and workmanlike manner and in
accordance with applicable County standards, rules and regulations governing
such construction.
8. Completion Date.
All improvements required to be constructed or installed for development of the
Property, and all other matters agreed to be performed shall be installed,
constructed or performed by Developer on or before a date five (5) years from the
recording of Swift Addition to Fossil Lake P.U.D. Final Plat.
9. Water Supply.
Developer shall obtain water service from Fort Collins -Loveland Water District.
Developer shall install the water system improvements necessary to service the
Property in the manner provided,on the approved utility plans. The water supply
system shall be subject to inspection by Fort Collins -Loveland Water District
during construction. Developer shall submit a letter of acceptance from the Fort
Collins -Loveland Water District for the maintenance and responsibility of all
water supply improvements prior to the completion date as stated in Section 8.
10. Sewage.
For public sewer systems:
Developer shall obtain sewer service from South Fort Collins Sanitation District.
All sewer lines required for the Property shall be constructed in accordance with
the requirements of South Fort Collins Sanitation District and as reflected on
approved utility plans. The sewer mains and supply service lines shall be subject
to inspection by South Fort Collins Sanitation District during construction.
Developer shall submit a letter of acceptance from the South Fort Collins
Sanitation District for maintenance and responsibility of all sewer improvements
prior to the completion date as stated in Section 8.
11. Trenches.
Trenches for sanitary sewer and water, storm sewer lines, and utilities shall be
compacted in accordance with specifications defined by County or the water,
sewer, and utility service provider. Developer will test trench compaction while
work is in progress. A sufficient number of tests shall be made to insure adequate
227n003
Page 4
compaction. The test results shall be certified by the soils laboratory and
maintained on file at the site by Developer for review by County personnel. In
the event adequate compaction testing is not provided, County may order such
testing and Developer shall reimburse County for all such costs of testing. No
release of the final construction collateral or release of completed improvements
shall be made until successful compaction tests are received. Compaction tests
must be received and approved by the Engineering Department before the
completion date.
12. Roads.
Developer shall construct all road improvements and install all traffic safety
devices as shown on the final plat and in the supporting documents for the
Development in accordance with the plans and specifications, as prepared by
Developer's licensed engineers and professionals, and approved by the County
Engineer. All street layout and geometric design shall be in accordance with
applicable County standards and as portrayed on the approved constructions
drawings. Developer shall obtain a Development Construction Permit and any
required access or utility permits prior to the start of construction of any road
improvements, either public or private.
Developer shall submit the following items to request the final release of
completed road improvements:
a. A signed and stamped statement must be submitted from a professional
civil engineer registered in Colorado that the road improvements have
been completed in substantial compliance with approved plans and the
Larimer County Road Manual or the Urban Area Street Standards
(whichever is applicable), and that the documenting engineer or his
representative have made regular outside on -site inspections during the
course of construction and the field plans used are the same as those
approved by the County. Copies of all on -site inspection reports
performed by the documenting engineer or his representative must be
submitted as well.
b. Test results must be submitted for all phases of the development as per the
Larimer County Road Manual or the Urban Area Street Standards
(whichever is applicable) for minimum materials sampling, testing and
inspection and as required by the County Engineer.
C. One (1) copy of the "as built" road improvements plans must be submitted
at the time Developer requests a release of collateral. All deviations from
approved plans must be listed and shown on the "as built" plans.
No release of the final construction collateral shall be made until the above listed
items have been submitted. All items listed above must be received and approved
by the Engineering Department before the completion date.
MM003
Page 5
ice' 13. Storm Drainage Improvements.
Developer shall construct all storm drainage improvements as shown on the Final
Plat and in the supporting documents for the development, in accordance with the
Plans and specifications, as prepared by Developer's licensed engineers and
professionals, and approved by the County Engineer. All design shall be in
accordance with applicable County standards and as portrayed on the approved
construction drawings. Developer shall obtain a Development Construction
Permit and any required access or utility permits prior to the start of construction
of any improvements, either public or private.
Developer shall submit the following items to request the final release of
completed storm drainage improvements:
a. A signed and stamped statement must be submitted from a professional
civil engineer registered in Colorado that the storm drainage
improvements have been completed in substantial compliance with
approved plans and the Larimer County Road Manual or the Urban Area
Street Standards (whichever is applicable), as well as the Larimer County
Storm Water Management Manual, and that the documenting engineer or
his representative have made regular outside on -site inspections during the
course of construction and the field plans used are the same as those
approved by the County. Copies of all on -site inspection reports
performed by the documenting engineer or his representative must be
submitted as well.
b. Test results must be submitted for all phases of the development as per the
Larimer County Road Manual or the Urban Area Street Standards
(whichever is applicable) and the Larimer County Storm Water
Management Manual for minimum materials sampling, testing and
inspection and as required by the County Engineer.
C. One (1) copies of the "as built" storm drainage improvements plans must
be submitted at the time Developer requests a release of collateral. All
deviations from approved plans must be listed and shown on the "as built"
plans.
All items listed above must be received and approved by the Engineering
Department before the completion date. Ten (10) working days prior to the
issuance of any certificate of occupancy the portions of the drainage improvement
system that are immediately adjacent to or a part of each lot, including lot grading
required to be constructed on any lot, shall be certified by an engineer licensed in
Colorado confirming that said improvements are completed and operational in
accordance with the final development plan documents. The certification shall
confirm that any construction, landscaping, fencing, or other improvements have
not materially interfered with the system's functionality and adequacy.
Furthermore, the certification shall identify the lot comer elevations and the top of
227,2003
Page 6
lowest opening elevations of any improvements as well as indicate the direction
Of drainage away from improvements, swales, drain lines or any other elements
that may facilitate drainage. The certification shall be submitted to the County
Engineer. No Certificate of Occupancy shall be approved unless certification is
approved by the County Engineer.
Developer and all subsequent owners shall be prohibited from constructing or
storing anything in any drainage easement or in any way disrupting or changing
the drainage pattern as initially designed and installed on the Property per the
County approved storm water drainage plan. Developer certifies that this
prohibition has also been included in Article XI, Section 4 of the Declaration of
Covenants for the Property.
There is a Larimer County approved drainage plan for this development on file
with the Larimer County Engineering Department. This plan details information
containing horizontal and vertical placement of the structure, culvert size and
location and overall site grading. It is the responsibility of the lot owner/builder
to ensure the drainage of the lot is consistent with this plan. This includes
ensuring that the minimum opening elevation/top of foundation is within 2 inches
of design elevation. It is also the responsibility of the lot owner to ensure that the
installation and maintenance of landscaping and fences on the lots complies with
the County approved drainage plan.
14. Natural Gas.
Developer shall obtain natural gas service from Xcel Energy. Developer shall
construct improvements as required by Xcel Energy to supply the Property with
natural gas utility service. improvements shall be in accordance with Xcel
Energy specifications. In no event, however, shall County be responsible for the
inspection and/or acceptance of natural gas utility improvements to the Property.
15. Electric.
Developer shall obtain electric service from City of Fort Collins Light & Power.
Developer shall construct improvements as required by City of Fort Collins Light
& Power to supply the Property with electric utility service. improvements shall
be in accordance with City of Fort Collins Light & Power specifications. In no
event, however, shall County be responsible for the inspection and/or acceptance
of electric utility improvements to the Property.
16. Telephone and Cable.
Developer shall obtain telephone and communication utilities from Qwest and
AT&T Broadband. Developer shall construct improvements as required by
Qwest and AT&T Broadband to supply the Property with adequate telephone and
communication utilities. Improvements shall be made in accordance with Qwest
and AT&T Broadband specifications. In no event, however, shall County be
vaaoos
Page 7
responsible for the inspection and/or acceptance of telephone and/or
communications cable improvements to the Property.
17. "As Built" Plans.
Developer shall provide to County one (1) copy of ,as built' plans prepared by a
Professional engineer for all drainage structures and facilities, road improvements,
erosion control facilities, and other site improvements constructed in connection
with the development of the Property. All testing and quality control reports shall
also be provided to County and must be submitted prior to final County approval.
Developer shall provide to the particular service provider "as built' plans all
water facilities, sewer facilities, and utilities. All as-builts must be received and
approved by the Engineering Department and/or the particular service provider
before the completion date.
IS. Landscaping Improvements.
Developer shall install the landscaping improvements as required in the Final
Landscape Plans for the Development, including but not limited to plant
materials, benches, and boulder play area on or before a date no later than one
Year from the completion and acceptance of the street improvements. Completion
Of improvements shall be certified stating that the improvements have been
constructed in substantial conformance with the final development plan
documents. Building permits and/or certificates of occupancy shall not be subject
to completion of landscaping improvements; however, the final construction
collateral for landscaping improvements will be released only upon the receipt of
the certification of completion and inspection and approval of the landscaping by
the County. Notwithstanding the foregoing, it shall be the responsibility of the
individual lot owners, and not the developer, to install those trees shown on the
Final Landscape Plans which are located within individual lots. The Developer
certifies that Article DC of the Declaration of Covenants for the Property gives
authority to the Association to enforce the landscape requirements as established
on the Landscape Plan for the development. The Developer shall not be required
to provide collateral to the County to secure the installation and replacement of
such trees within individual lots.
19. Erosion Control.
In order to protect the soil resource, Developer shall construct erosion control
facilities at the commencement of construction. The construction and
establishment of acceptable erosion control facilities shall be assured and installed
by Developer and shall be included in the Public Improvements Opinion of Costs
attached hereto as Exhibit C. Erosion control facilities must be installed and
approved and the as-builts must be submitted and approved by the County before
the completion date.
2f272003
Page 8
W
20. Fire Protection.
Fire hydrants are required with a maximum spacing of 600 feet with required
flows of 1000 gallons per minute and residual pressure of 20 p.s.i. No dwelling
may be located more than 800 feet from a hydrant.
21. Addressing.
Developer agrees that individual addressing of the lots in the development is an
important factor for identification and safety during construction. Developer shall
install street signs and temporary address signage prior to the issuance of any
building permit.
22. Public Improvements Opinion of Costs and Guarantee of Improvements.
Construction Collateral. The Public Improvements Opinion of Costs detailing the
costs of completing the improvements required in this Agreement are shown on
Exhibit C. Since the Property is intended to be annexed by the City, Developer
shall famish an irrevocable letter of credit to the County for the completion of the
improvements in the form and for the amounts required by the City for City
developments. The purpose of the construction collateral provided by Developer
is to guarantee that sufficient funds are available for the completion of the
improvements described. In the event that the Annexation is effective no later
than May 15, 2003, all irrevocable letters of credit posted with the County in
connection with the Property shall be transferred and assigned to the City. In the
event the Property is not so annexed, Developer shall post a new substitute letter
of credit in accordance with the following terms:
a. The amount of the letter of credit is equal to at least 115% of the estimated
cost of the improvements;
b. The letter of credit is payable to County upon demand if Developer fails to
perform the obligations specified in this Agreement and County has
notified the issuer of the letter of credit of the failure to perform;
C. At all times the unreleased portion of the letter of credit is equal to at least
115% of the estimated costs of the uncompleted portions of the required
improvements. in no event shall any amount of the letter of credit be
released or reduced without the express written consent of Larimer
County;
d. Fifteen percent (15%) of the total amount will remain available to County
until released by County; and
2n7n003
Page 9
�Q e. The date of expiration will be no earlier than 60 days after the date for
completion of the improvements specified in this Agreement, but in no
event may the letter of credit expire until County has received 60 days
written notice of the pending expiration. The notice must be sent by
certified mail to the County Planning Director.
Developer shall fully comply with County regulations and policies for requests
for release of collateral. County's consent to release collateral shall not be
considered an acceptance of improvements by County for maintenance purposes
unless County specifically states otherwise in writing. Procedures for completion
of improvements and disbursements to County from the collateral shall apply
whether there are one or more defaults, or a succession of defaults on the part of
Developer in performing the terms, conditions and covenants contained in this
Agreement.
Landscape Collateral. In the event that the annexation of the Property by the
City is effective by May 15, 2003, Developer shall not need to post any security
with the County for landscaping improvements but instead shall post with the City
its irrevocable letter of credit at such time and in such form and amount as the
City requires for City developments. If such annexation is not effective by May
15, 2003, the following provisions shall apply.
The installation and warranty for landscaping shall be included with the Public
Improvements Opinion of Costs attached as Exhibit C. Until landscape
improvements are completed, the Developer shall provide collateral to the County
in the form of an irrevocable letter of credit with a federal or state licensed
financial institution on a form approved by the County. Upon completion of
installation of the landscaping and County inspection and approval, Developer
shall provide warranty collateral to the County in the form of an irrevocable letter
of credit from a state or federally licensed financial institution on a form approved
by County equal to 25% of the "grow" items only to ensure their establishment.
The warranty collateral shall be effective for one year. The warranty
memorandum shall include this landscape warranty requirement.
Whether the Developer posts collateral in a form and amount required by the
County or by the City, it shall not be required to post any collateral for installation
and replacement of trees within individual lots which shall be the responsibility of
individual lot owners and enforceable by the Association.
23. Developer Guarantees and Warranty Collateral.
Developer warrants and guarantees that all improvements required to be
constructed pursuant to this Agreement shall be free from defects in materials
and/or workmanship and shall properly function for the purpose intended for a
period of two years (the warranty period). The two-year warranty period for all
improvements shall commence on the date of final county approval of the last
improvement constructed.
2n7/2003
Page 10
11 Within thirty (30) days following County's approval of the last improvement
constructed:
a. County and Developer shall execute a Warranty Memorandum. The
Warranty Memorandum shall specify (i) the date on which the two-year
warranty period commences, (ii) the type of warranty collateral to be
posted by Developer, and (iii) the improvements which are subject to the
warranty collateral. The Warranty Memorandum may allocate a dollar
amount to each improvement. Developer acknowledges and agrees,
however, that the County may apply the warranty collateral allocated to a
particular improvement to any other improvement or category of
improvements.
b. Developer shall post warranty collateral with the County in a form
acceptable to the County. The warranty collateral shall be no less than
15% of the costs of the improvements for which collateral must be posted
and shall remain in effect during the entire two-year warranty collateral
period.
Developer shall correct, replace or repair any improvement discovered to be
defective or faulty during the warranty period. Any required correction, repair or
replacement shall be commenced within thirty (30) days of County's written
notice advising Developer of the necessary work.
In the event Developer fails to make the necessary corrections, repairs, or
replacements:
a. County may use the warranty collateral to do the work to the extent of
available funds. Nothing herein shall be construed to require County to
complete the work in the event the warranty collateral funds are
insufficient to finance the work.
b. County and/or any Property owner may commence an action against
Developer for specific performance or for money damages for costs of the
necessary work; and/or pursue any other legal or equitable action against
Developer.
C. County may withhold building permits.
The above remedies shall be cumulative and the election to pursue one shall not
preclude the use of another.
2/27/2003
Page 11
24. Inspections.
No construction shall commence without written approval of the County
Development Review Construction Inspector in the form of a Development
Construction Permit. The issuance of this permit shall follow a pre -construction
meeting scheduled by the County Development Review Construction Inspector.
Developer shall supply to County Development Review Construction Inspector a
schedule of construction and shall notify the County Development Review
Construction Inspector of commencement of construction. The Developer agrees
to pay the fees associated with the Development Construction Permit.
Field inspections of installations of improvements shall be performed by
Developer's licensed professional engineers. Inspection reports shall be available
for review by County upon request. County shall have the authority to halt
construction of any portion of the construction that may be found to be out of
compliance with the approved plans and specifications for the development.
Developer shall cause such work to be corrected and brought into compliance
within the time frame set by the County Engineer, and if not so corrected, the
County Engineer may declare Developer in default of this Agreement.
25. Issuance of Building Permits.
For purposes of this Agreement, `Building Permit" shall mean any permit to
begin work to construct a building on the Property, including permits for footings
and foundations. Unless otherwise described, Developer acknowledges and
agrees that building permits for individual lots shall only be issued as follows:
a. Footing and Foundation Permits will be issued when all of the following
items are complete:
1. Over lot grading is complete and the County Engineer has
inspected and approved the grading.
2. Final grading of drainage easements and the installation of the
storm water drainage system is complete and the County Engineer
has inspected and approved the grading and installation.
3. Construction of the roadway sub -grade and installation of the
aggregate base course, or other all-weather surface, for the
roadway serving the project is completed and inspected and
approved by the County Engineer.
4. Acceptable density tests for the sub -grade and utility trenches have
been submitted to and approved by the County Engineer.
5. Street signs are properly installed at all intersections and have been
inspected and approved by the County Engineer.
b. Full Building Permits will be issued when all of the following items are
complete:
2a7n003
Page 12
based on such claim and to settle any such claim provided Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice of any such claim to the Developer within ninety (90) days after the City first
receives a notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim. Approval of and acceptance by the City of any
storm drainage facility design or construction shall in no manner be deemed to
constitute a waiver or relinquishment by the City of the aforesaid indemnification. The
Developer shall engage a Colorado licensed professional engineer to design the storm
drainage facilities as aforesaid and it is expressly affirmed hereby that such
engagement shall be intended for the benefit of the City, and subsequent purchasers of
property in the Development.
I. The Developer shall pay storm drainage basin fees in accordance with
Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for
credit or City repayment under the provisions of Chapter 26 are described together with
the estimated cost of the improvements on the attached Exhibit "B," which
improvements, if applicable, shall include right-of-way, design and construction costs.
See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for
specific instructions.
J. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of
the construction. Utilities will not be initially accepted prior to as -built drawings being
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 County
or 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
February 27, 2003 4
kI 1. Roadway surfacing at least through aggregate base course or plant
mix bituminous base application is complete and the County
Engineer has inspected and approved the surfacing.
2. Density tests for the applied material have been submitted to and
approved by the County Engineer.
3. Public water and sewer systems are completely constructed and
evidence of acceptance by the appropriate water, sewer and fire
protection providers has been submitted to the County Engineer
4. Not applicable.
C. Developer shall be entitled to the release of building permits for six (6)
show homes once the items necessary for issuance of a footings and foundation
Permit have been completed pursuant to subparagraph 25a above.
County may restrict the issuance of building permits or Certificates of Occupancy
if construction is not in compliance with an approved schedule, to be agreed upon
by Developer and County.
Prior to the approval of the drainage certification, as described in Paragraph 13,
Storm Drainage Improvements, Developer may receive full building permits for
twenty-nine (29) homes. Release of the final non -warranty collateral is subject to
the submittal and approval of such certification.
Developer acknowledges that some or all of the lots in the development include
building envelopes. All structures must be located within the approved building
envelopes as shown on the approved final plat. Developer agrees that prior to
approval of any footings and foundation installation, Developer or the lot owner
or applicant must submit a written certification by a Colorado Licensed Surveyor
verifying that the structure is located within the building envelope. Such
certification shall also be submitted in instances where the structure requires a
County Setback and Use Permit rather than a building permit.
Developer further agrees that prior to approval of any footings and foundation
installation, Developer or the lot owner or applicant must submit a written
certification by a Colorado Licensed Surveyor verifying that the structure is
located at an elevation that is consistent with all approved drainage plans. Such
certification shall also be submitted in instances where the structure requires a
County Setback and Use Permit rather than a building permit.
26. Fees.
Developer shall pay to County at building permit issuance County and Regional
Transportation Capital Expansion Fees, Community and Regional Park Fees In
Lieu of Dedication, School Fees, and Drainage Fees. The fees shall be the
amount in effect at the time of building permit issuance. Developer
acknowledges and agrees that such fees are roughly proportional to impacts
created by this development. Developer shall also pay any other applicable
vnnoo3
Page 13
JA legislatively formulated and duly adopted fees which are in effect and required to
be paid at the time of building permit issuance provided such fees are imposed on
a broad class of property owners.
27. Maintenance of Improvements, Common Areas, and Residual Land.
a. During the two-year warranty period, Developer shall be solely
responsible to maintain, repair and replace any and all improvements in
the development (including but not limited to roads, bridges, curbs,
gutters, sidewalks, drainage facilities, sewer systems, utilities,
landscaping) and common areas. Upon expiration of the two-year
warranty period, the property owners, either individually or through the
Association, shall be solely responsible for such maintenance, repairs and
replacements. County shall have no liability or obligation for such
maintenance, repairs or replacements.
b. The Association shall set and collect dues and assessments from Property
owners in an amount sufficient to carry out its maintenance
responsibilities. (Note: the Declaration of Covenants should provide for a
specific dollar amount assessment with annual adjustments for inflation to
be held in a separately designated fund for roads and landscaping
maintenance, repairs and replacements.' The Covenants should further
provide that the annual assessments for this purpose can not be decreased
or revoked without the written approval of the Board of County
Commissioners or the governmental authority having jurisdiction over the
property. The County Engineering Department may be consulted for
advice about the nature and frequency of various road repairs or
replacements, estimates of costs, and the adequacy of the assessment to
provide for future maintenance.)
C. There is no residual land associated with the Swift Addition to Fossil Lake
P.U.D.
d. In the event the County determines that the responsible entity/person(s)
has failed to adequately maintain the improvements, common areas or
Residual Land, County shall so notify the responsible entity/person(s) in
writing. Such notice shall specifically state the manner in which the
entity/person(s) has failed to maintain the improvements, common areas or
Residual Land and the steps that must be taken to come into compliance.
The notice shall include a demand that such deficiencies in maintenance
be cured within thirty (30) days of the date of the notice and shall also
state the time and place of a hearing before the Board of County
Commissioners, which shall be held within fifteen (15) days of the notice.
At such hearing, the County may modify the terms of its original notice as to the
deficiencies, and may give an extension of time within which they shall be cured.
If the deficiencies set forth in the original notice, or in the modifications thereof,
2n27n003
Page 14
110 are not cured within said thirty days or any extension thereof, the County, in order
to preserve the taxable values of the property contained within the development,
and to prevent the improvements, common areas, or Residual Land from
becoming a public nuisance and public liability, may undertake to maintain the
same for a period of at least one year.
Before expiration of the maintenance period, the County, upon its initiative or
upon the written request of the responsible entity/person(s) may call a public
hearing before the Board of County Commissioners upon notice to such
responsible entity/person(s) and to the Property owners. At the hearing, the
responsible entity/person(s) shall show cause why maintenance by the County
shall not, at the election of the County continue for an additional set period. If the
Board determines that the responsible entity/person(s) is ready and able to
maintain the improvements, common areas, or Residual Land, the County shall
cease to maintain the improvements, common areas, or Residual Land. If the
Board determines the responsible entity/person(s) is not ready and able to
maintain the improvements, common areas, or Residual Land, the County may, in
its discretion, continue such maintenance for a succeeding set period subject to a
similar hearing and determination prior to the expiration of such period.
The cost of such maintenance by the County and the costs of enforcement
incurred by the County, including but not limited to monitoring, inspections, and
legal fees, shall be paid the owners of the Property that have a right to enjoyment
or use of the improvements involved or the Residual Land. Any unpaid costs
shall become a lien upon said properties. The County shall file a notice of such
lien in the office of the County Clerk and recorder upon the properties affected by
such lien and shall certify such unpaid costs to the County Treasurer for
collection, enforcement and remittance in the manner and with the same priority
as provided by law for the collection, enforcement and remittance of general
property taxes.
28. Declaration of Covenants.
Developer and Association certify that Articles V and VI of the Declaration of
Covenants for the Property provide for a regular maintenance program and
adequate funding for maintenance, repairs and replacements of improvements
including drainage facilities, landscaping and common areas and means of
enforcement; continuous safety inspections and immediate follow-up maintenance
to correct unsafe conditions; the receiving and processing of complaints.
Developer and Association agree that the Association shall not be dissolved
without the written consent of the Board of County Commissioners of the County
and certify that the Bylaws of the Declaration of Covenants includes this
prohibition.
M7/2003
Page 15
114P. 29. Liability/Indemnity.
County's review and approval of any plans, reports, or drawings or County's
inspection and approval of any improvements constructed by Developer under
this Agreement does not constitute a representation, warranty, or guarantee by
County that such improvements are free from defects or will operate adequately
for the purpose intended. Current and successor owners of the Property assume
responsibility for all maintenance, repairs, or replacements of improvements,
including, but not limited to roads, bridges, curbs, gutters, sidewalks, drainage
facilities, sewer systems, utilities, landscaping, common areas and Residual Land.
Developer agrees to indemnify and hold County, its officers, employees and
assigns harmless from and against all claims, costs and liabilities of every kind
and nature, for injury or damage received or sustained by any person or entity in
connection with, or on account of the performance, condition or quality of work at
the development of the Property pursuant to this Agreement. Developer further
agrees to aid and defend County in the event County is named as a defendant in
an action concerning the performance, condition or quality of work pursuant to
this Agreement, except where such suit is brought by Developer against County.
Developer acknowledges it is not an agent or employee of County.
Nothing in this Agreement shall be construed as a waiver, either express or
implied, of the immunities, rights, benefits, and protections afforded County
under the Colorado Governmental Immunity Act.
30. Default/Remedies/Enforcement.
Upon default of the provisions of this Agreement, the parties agree that this
Agreement may be specifically enforced by any party or any party may prod in
any other manner authorized by law for a breach of contract. In addition, the
County may:
a. Demand payment under the irrevocable letter of credit and use the
proceeds to complete the improvements specified herein with or without
public letting as it may deem advisable. In the event the collateral is
insufficient to complete the improvements, County shall be entitled to
payment of such excess in any way permitted by law. Nothing herein shall
be construed as requiring County to complete all of the improvements
specified herein in the event the proceeds of such irrevocable letter of
credit are insufficient to finance all the improvements.
b. Issue a written notice to Developer to appear and show cause why the
subdivision shall not be vacated. Giving notice shall be deemed complete
upon mailing same certified mail to the address stated herein. The notice
shall designate the date, time and place the Board of County
Commissioners will conduct a hearing to consider vacation of the plat.
VIM003
Page 16
The hearing shall be not less than thirty (30) nor more than sixty (60) days
from the date of the notice.
C. Proceed in the manner described in the Larimer County Land Use Code or
State Statutes for a violation of the State or local subdivision regulations.
d. Withhold building permits.
The remedies set forth herein are cumulative and the election to use one shall not
preclude use of another.
In the event of default by Developer or Association, Developer and Association
agree to pay all expenses incurred by County occasioned by said default,
including, but not limited to, a reasonable attorney's fees in enforcing this
Agreement.
31. Applicability of Other Regulations and Conditions.
Notwithstanding anything set forth hereinabove to the contrary, this Agreement
and the terms, conditions and covenants contained herein shall be deemed to
complement and shall be in addition to applicable laws, rules and regulations and
also to the conditions and requirement of the Larimer County Land Use Code and
the Supplemental Regulations to the Larimer County Land Use Code to the extent
the same are not inconsistent with this Agreement.
32. Periodic Reviews.
County may conduct periodic reviews of the status of the development as
appropriate to monitor and enforce the terms of this Agreement.
33. Binding Effect of Agreement.
This Agreement is intended to provide for the orderly construction and
maintenance of structures and other improvements on the Property. This
Agreement shall be a servitude running with the Property. Those owners of the
Property or any portion of the Property who obtain title subsequent to the date of
this Agreement, their heirs, successors, assigns or transferees, and persons holding
under Developer shall comply with the terms hereof.
If the Property becomes included within the boundaries of any city or town, the
County's rights under this Agreement shall automatically pass to the governing
body of the city or town and the successor town or city may enforce this
Agreement against such subsequent owners and those holding under them.
In the event Developer transfers title to the Property and is thereby divested of all
equitable and legal interest in the Property, 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
2/27/2003
Page 17
10 interest. In such event, the succeeding Property owner(s) shall be bound by the
terms of this Agreement.
34. Notations and Recordation.
Developer shall note on the final subdivision plat, as a plat note, and in a
disclosure statement the existence of this Agreement by reference to Reception
Number and Film Number as recorded by the Larimer County Clerk and
Recorder. Developer shall note on the final subdivision plat and in the disclosure
notice the entity/person(s) responsible for maintenance of the improvements,
landscaping, common areas and Residual Land. Developer shall file for recording
with the Larimer County Clerk and Recorder, this Agreement and any deeds
and/or other documents required as part of the final plat approval of this
development by the Board of County Commissioners.
35. Subordination.
Developer shall cause all lenders, lienholders or other persons or entities who
have any interest in the Property to subordinate their interest to this Agreement.
36. Conflict with Other Documents.
In the event of a conflict between the terns or conditions of this Agreement and
the Declaration of Covenants, Plat Notes, Disclosure Notice, or Findings and
Resolution, this Agreement shall control.
37. Severability.
If any Pam, terms, or provision of this Agreement is held by a court to be illegal or
otherwise unenforceable, such illegality or unenforceability will not affect the
validity of any other part, terms, or provision and the rights of the parties will be
construed as if the part, terms, or provision was never part of this Agreement.
38. Amendment.
This Agreement may be amended by mutual consent of the County and 75% of
the Property owners based on one (1) vote per lot, provided such amendment is in
writing.
39. Controlling Law.
This Agreement shall be governed by the laws of the State of Colorado.
M7/2003
Page 18
0 40. Annexation of the Property.
Pursuant to an intergovernmental agreement between the County and the City, the
Developer must promptly petition to have the Property annexed into the City,
which annexation petition shall be filed concurrently with recording of the
subdivision plat for the Property. In the event that the Property is annexed into
the City, then the provisions of this Development Agreement, with the exception
of this Paragraph 40, shall be superceded immediately upon the effective date of
such annexation, by that certain Development Agreement executed between the
Developer and the City, of even date herewith, pertaining to the Property.
Provided the ordinance annexing the Property is effective no later than May 15,
2003, no building permits shall be issued for the Property prior to such
annexation. The Developer shall be permitted to commence installation of
infrastructure improvements prior to the effective date of the Annexation and to
the extent any such improvements are so commenced, the County agrees that the
City will thereafter perform the inspection and approval processes required in
connection with any such improvements. The County further agrees that in the
event the Developer obtains a development construction permit from the County
and subsequent thereto the Property is annexed to the City, the County shall
thereupon promptly transfer to the City that portion, if any, of the development
construction permit fee which relates to infrastructure improvements which have
not been inspected by the effective date of the annexation of the Property.
COUNTY:
Board of County Commissioners of
Larimer County, Colorado
By.
GIMPGibok Chair
ATTEST•
ty Clerk to the Board
DEVELOPER:
FL - Swift, LLC, a Colora�'limited
By: Double E & G, Inc%Q Coloradd
By: / i
David G.
2127/2003
Page 19
!/" ASSOCIATION:
Fossil Lake P.U.D. Homeowners Association
By:
Stanley K. Everitt, Vice President
ATTESc=�v T:
Corporate Secretary
STATE OF COLORADO)
COUNTY OF LARRgER)
Acknowledged before me this day of 2003 by Glen
Gibson as Chair of the Board of County Commissioners of Larimer County, Colorado.
Witness my hand and official seal ul'4e�
My Commission Expires:STATE OF COLORADO)
COUNTY OF LARII411R)
Acknowledged before me this �l� day of �?/�p�ft. 2003 by David G.
Everitt, President of Double E&G, Inc., Manager of FL — Swift, LLC.
r
Notary Public
Witness my hand and official seal (7N!0T
NNEMy Commission Expires:
=712003
Page 20
2� STATE OF COLORADO)
COUNTY OF LARIMER)
Acknowledged before thi
me s -- day of 2003 by Stanley K
Everitt as Vice President of Fossil Lake P.U.D. Hbmeowners Association and Jack A.
Gillum as Secretary of Fossil Lake P.U.D. Homeowners Association.
Notary Public
Witness my hand and official seal
My Commission Expires: 2-,ZF', 6SS
2/27/2003
Page 21
E
NOTARY
00+-yea.
PUBLIC
OF
OCT 21 2002 4:8UPM KING SURVEYORS INC . 9709865021
P.tl
PROPERTY DESCRIPTION
2/y Exhibit A
A parcel of land being a part of the East Half of Section Nine (9), Township Six North (T.6N.),
Range Sixty-eight West (R.68 W.), of the Sixth Principal Meridian (6th P.M.), County of State of Colorado and being more particularly described as follows: Lorimar,
BEGINNING at the Center Quarter Comerof said Section 9 and assuming the West line of the
Northeast Quarter (NE1/4) of said Section 9 to bear North 00000'4211East, with all other bearing
herein relative thereto:
j THENCE North 00*00,42" East along the West line of the Southwest Quarter of said NEl/4 a
distance of 1319.74 feet to the Center North Sixteenth (CNI/16) of said Section 9;
THENCE continuing North 00°00'42" East along the West he of the Northwest Quarter of said
NE1/4 a distance of 5A9 feet;
j THENCE South 8M632" East a distance of 1069.47 feet;
THENCE South 01"43'09" West a distance of27.61 feet;
THENCE South 63e50'53" East a distance of 183.24 feet;
THENCE South 65025,19" East a distance of 23AO feet;
THENCE South 6603l'50" East a distance of 62.22 feet;'
THENCE South 62*3325" East a distanceaf55.01 feet;
THENCE South 54°2446" East a distance of 57.87 feet;
THENCE South 47°28'54" East a distance of 109.70 feet;
THENCE South 42°3595" East a distance of82.97 feet;
THENCE South 41 "0709" East a distance of 81.52 feet;
THENCE South 39e2621" East a distance of 87.37 feet;
THENCE South 30°04'10" East a distance of 23.94 foet7
THENCE South 26e 1946" East a distance of 30.78 feet;
THENCE South 15°14'54" East a distance of 35.16 feet;
THENCE South 00051'15" East a distance of 169.13 feet;
THENCE South 00"4324" East a distance of 284.51 feet;
THENCE South 01 050'52" East a distance of 177.54 feet
THENCE South 03001'30" East a distaace.of 182.43 feet;
THENCE South 03 °44'25" East a distance of 127.99 feet;
THENCE North 89059'20" West a distance of 1718.03 feet to the West line of the Southeast
Quarter (SEI/4) of Section 9;
THENCE along said West line North 00°00'42" East a distance of 192.61 feet to the PGINT OF
BEGINNING.
Said described parcel of land contains 55.172 Acres,.more or less W.
SLZRVFyC)R IS CEgTlpjCA7E
I, Lawrence S. Pepek, a Colorado Registered Professional Land Surveyor do hereby state that this
Property Description was Prepared under my personal supervision and checking, and that it is true
and correct to the best of my knowledge and belief. -
KING SURVEYORS, INC.
9299 Eastman Park Drive
Windsor, Colorado 80550
(970)686-5011
IN:99237
G:%LDDproj19923Tdwg\99237BOUNDARY LEGALA.
Lmt Printed &/1M= 7:30 AM
acceptance by the City of the public improvements constructed on the dedicated
property, except to the extent that such circumstances are the result of acts or
omissions of the Developer. Said indemnification shall not extend to claims, actions or
other liability arising as a result of any hazardous substance, pollutant or contaminant
generated or deposited by the City, its agents or representatives, upon portions of the
Property dedicated to the City in connection with this Development. The City agrees to
give notice to the Developer of any claim made against it to which this indemnity and
hold harmless agreement by the Developer could apply, and the Developer shall have
the right to defend any lawsuit based on such claim and to settle any such claim
provided Developer must obtain a complete discharge of all City liability through such
settlement. Failure of the City to give notice of any such claim to the Developer within
ninety (90) days after the City first receives a notice of such claim under the Colorado
Governmental Immunity Act for the same, shall cause this indemnity and hold harmless
agreement by the Developer to not apply to such claim and such failure shall constitute
a release of this indemnity and hold harmless agreement as to such claim.
III. Special Conditions
A. Water Lines
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
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 this Development, as shown on the Final Development Plan Documents, shall be
completed by the Developer in accordance with said Documents the Final Development
Plan Documents prior to the issuance of more than 29 building permits in this
Development. Completion of improvements shall include the certification by a
professional engineer licensed in Colorado that the drainage facilities which serve the
Development have been constructed in conformance with the Final Development Plan
Documents. This certification shall be submitted to the City at least two weeks prior to
the date of issuance of additional building permits.
February 27, 2003 5
Exhibit C
SWIFT ADDITION TO FOSSIL LAKE
PROJECTED PROJECT COSTS
SUB DEVELOPMENT AGREEMENT IMPROVEMENTS:
Earthwork
Sanitary Sewer
Water Utility
Storm Drainage
Concrete
Asphalt paving
Engineering
Surveying
Soils
Subtotal
Erosion Control
Landscaping
Total Improvements
(subject to guarantee)
OTHER COSTS PAYABLE OUT OF DEVELOPMENT FUNDS:
$244,926
366,714
279,276
271,157
541,073
415,937
17,400
41,342
24,116
2,201,941
67,405
175,500
$2,444,846
Legal / Permits
$35,155
Design & Planning
6,468
Amenities
155,000
Utilities:
Electrical
232,000
Gas
232,000
Telephone
15,000
Irrigation
159,500
Loan Fees
21,087
Supervision
315,000
Miscellaneous
162,500
Interest
142,500
Land
712,284
Total Other Costs $2,188.494
TOTAL PROJECT COSTS $4,633,340
OCT 21 2002 423UPM KING SURVEYORS INC
9706965821 P.H
PROP M ETY DESCRIPTION
Exhibit A
A parcel of land bcing a part of the East Half of Section Nine (9), Township Six North (T.6N.),
Range Sixty-eight West (R.68 W.), of the Sixth Principal Meridian (6th P.M.), County of Larimer,
State of Colorado and being more particularly described as follows:
BEGINNING at the Center Quarter Comer -of said Section 9 and assumi Northeast Quarter (NEl/4) of said Section 9 to bng the West line of the
herein relative thereto; ear North 00000,421, East, with all other. bearing
THENCE North 00000'42" East along the West line of the Southwest Quarter of said NEl/4 a
distance of 1319.74 feet to the Center North Sixteenth (CN1/16) of said Section 9;
THENCE continuing North 00"00'42" East eleng the West line of the Northwest Quarter of said
NE1/4 a distance of 5.49 feet;
THENCE South 88"2632" East a distance of 1069.47 feet;
THENCE South 01 "43'09" West a distance of 27.61 feet;
THENCE South 63050,53"East a distance of 183.24 feet;
THENCE South 65"25'19" East a distance of 23.40 feet;
THENCE South 660311501, East a distance of 62.22 feet;'
THENCE South 62"33'25" East a distanceof55AX feet;
THENCE South 5462446" East a distance of 57.87 feet;
THENCE South 47"2854" East a distance of 109.70 feet;
THENCE South 4203535" East a distance of 82.87 feet;
THENCE South 41 "0709" East a distance of 81.52 feet;
THENCE South 39"2621" East a distance of 87.37 feet;
THENCE South 30004'10" East a distance of 23.94 feet;
THENCE South 26019'46" East a distance of 30.78 feet;
THENCE South 15°14'54" East a distance of 35.16 feet;
THENCE South 00051'15" East a distance of 169.13 feet;
THENCE South 00"4324" Fast a distance of 284.51 feet;
THENCE South 01 050'52" East a distance of 177.54 feet;
THENCE South 03001'30" East a distance of 182.43 feet;
THENCE South 030441250 East a distance of 127.99 feet;
THENCE North 89059'20" West a distance of 1718.03 feet to the West line of the Southeast
Quarter (SEI/4) of Section 9;
THENCE along said West line North 00"00'42" East a distance of 192.61 feet to the POINT OF
BEGINNING.
Said described parcel of ]and contains 55.17.2 Actes,.more or less (t).
LVEUXOR'S CERTIFICATE
1, Lawrence S. Pepek, a Colorado Registered Professional Land Surveyor do hereby state that this
Property Description was prepared under my personal supervision and checking, and that it is true
and correct to the best of my knowledge and.belieE..
Land. Surveyor 433642
MG SURVEYORS, INC.
9299 Eastman Park Drive
Windsor, Colorado 80550
(970)686-5011
IN:99237
G:ULDDpro1199237tdw9\99237BOUNDARY LEGAL.doc
Lest printed 8/19/2002 7:30 AM .
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 reasonably decides that said
drainage facilities no longer comply with the Final Development Plan Documents, the
City shall give written notice to the Developer of all items which do not comply with the
Final Development Plan Documents. Unless the Developer successfully appeals the
decision of non-compliance, it shall bring such facilities back up to the standards and
specifications as shown on the Final Development Plan Documents. Failure to maintain
the structural integrity and operational function of said drainage facilities following
certification shall result in the withholding of the issuance of additional building permits
and/ or certificates of occupancy until such drainage facilities are repaired to the
operational function and structural integrity which was approved with the Final
Development Plan Documents.
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 also be required
to post a security deposit in the amount of $ 50,737.50 prior to beginning construction 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 erosion control provisions of the Final Development Plan Documents after
receiving notice of the same or an emergency situation exists which would reasonably
require immediate mitigation measures, then, in either event, and 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 IV.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. In the event that
some of the erosion control improvements are completed, accepted and deemed to be
stable by the County and the City, prior to the effective date of annexation of the
Property to the City, the amount of the security deposit shall be proportionately reduced
by the amount of stabilized area to the total disturbed area.
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 all buildings/structures on all lots:
February 27, 2003 6
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 the building has 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 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 deemed such changes as being acceptable for the safe
and efficient delivery of storm drainage and water.
6. The Developer shall limit the construction of the off -site storm
drainage improvement lines to the limits of construction as shown on the Final
Development Plan Documents. Promptly following construction, the contractor shall
restore all areas that are disturbed during construction of the off -site storm drainage
improvements in accordance with the Final Development Plan Documents. The
Developer shall ensure that no negative impact occurs to the adjoining properties during
the construction of the water quality detention pond, swales and the off -site storm sewer
facilities. No grading shall be done outside of the approved areas as shown on the
Final Development Plan Documents.
7. The drainage design for this Development provides for the
evacuation of storm drainage runoff in a reasonable amount of time out of the water
quality and detention facilities and into the drainage outfall system. The water quality
and detention facilities have been designed to discharge stormwater runoff from
frequent storms over a 40 hour period through a small diameter outlet. Under the
intended operation of the water quality and detention pond, there will not be standing
water in the pond more than 48 hours after the end of a rainfall event. If, during or
within 2 years after construction and acceptance of the detention facilities associated
with this Development, surfacing or standing water conditions persist in these facilities;
and if such conditions are beyond what can be expected in accordance with the
approved stormwater design, the Developer shall promptly, upon such discovery, install
an adequate de -watering system in the detention facilities. Such a system shall be
reviewed and approved by the City prior to installation.
February 27, 2003 7
8. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed outside of the public right-of-way, except for
those that are shown on the attached Stormwater Maintenance exhibit, Exhibit "F".
Those lines as identified in the said exhibit shall be maintained in their entirety by the
City following certification of these lines by the Developer and their acceptance by the
City. The Developer shall provide to the City access easements to these storm sewer
facilities for the purpose of performing such maintenance activities. The Developer
further agrees that any landscape facilities disturbed during the performance of
maintenance activities by City maintenance personnel, or by their contractors, shall be
restored by the Developer or the HOA (whichever owns and/or is in charge of the
maintenance of the green belt areas where such storm lines are located), provided that
the City shall use reasonable care in performing its maintenance responsibilities.
Disturbed areas which are caused by negligent or reckless acts of the City shall be
restored by the City. The Developer is responsible for ensuring that the Swale located
on the rear of Lots 13 through 25 and the rear of Lots 28, 29 and 30 will remain in
operational condition at all times. Due to the shallowness of the slope on that swale,
the Developer shall pay special attention to the maintenance and removal of debris and
soil erosion from said swale during the construction phase of the Development and will
continue to monitor said swale closely and maintain it on a regular basis until the risk of
erosion is reduced in the Development as lots are developed and landscaping becomes
more established throughout the area contributing sediment to said swale.
9. In addition the Developer shall be required to file a notice with the
Larimer County Clerk and Recorder describing the landscaping and fencing restrictions
that exist for the drainage easements in this Development. Said notice shall specifically
reference the location of the specific restrictions shown on plans and in notes on the
Final Development Plan Documents. These notes shall cover the proposed rear yard
swale and pan proposed on Lots 13 through 25 and Lots 28 through 30 of this
development. Said notice shall be filed in a City approved form prior to the sale of any
lots affected by such restrictions.
10. The Developer shall limit the construction of the off -site storm
drainage improvement lines to the "limits of development' as delineated on the Final
Development Plan Documents. Promptly following the conclusion of construction
activities, the contractor shall restore all areas that are disturbed during construction of
the off -site storm drainage improvements in accordance with the Final Development
Plan Documents.
11. The areas of the Development that are planned to be seeded shall
be inspected jointly by the Developer and the City at specified intervals for three (3)
seasons or until determined by the City to be well established, whichever comes first.
Areas seeded in the spring shall be inspected for required coverage the following falls
not later than October 1. Areas seeded at any other time shall be inspected the
following summers not later than August 1. The required coverage for the first
inspection shall be ten (10) viable live seedlings of the specified species per 1000
February 28, 2003 8
square centimeters (approximately one square foot), or fifty percent (50%) coverage of
the specified foliage as measured from five feet (5') directly overhead, with no bare
spots larger than 1000 square centimeters. At the time of the second growing season
inspection, there shall be seventy-five percent (75%) foliage cover of the specified
species planted as measured from five (5%) directly overhead. No more than ten
percent (10%) of the species noted on the site may be weedy species as defined by
Article III, Section 20-41 of the Code of the City. The Developer shall be responsible for
weed control at all times. Determination of required coverage will be based on fixed
transects each ten meters in length, randomly placed in representative portions of the
seeded areas, with plant species or bare ground/rock/litter being noted every ten (10)
centimeters along each transect. The Developer shall warrant all seeded areas for
three (3) growing seasons from the date of completion of reseeding. The Developer
shall rework and reseed per original specifications any areas that are dead, diseased,
contain too many weedy species, or fail to meet the coverage requirement, at no
additional cost to the City.
12. Fueling facilities shall be located at least one hundred (100) feet
from any City of Fort Collins Natural Area property, natural body of water, wetland,
natural drainage way or manmade drainage way. The fuel tanks and fueling area must
be set in a containment area that will not allow a fuel spill to directly flow, seep, run off,
or be washed into a body of water, wetland or drainage way.
13. The Developer shall survey and delineate the Property boundary
and all Limits of Development, including boundaries that are to be undisturbed, in a
manner consistent: with all applicable Final Development Plan Documents, with orange
construction fence or erosion control silt fence prior to and throughout any type of
construction, including, without limitation, overlot grading and excavation of storm
drainage improvements.
D. Streets.
1. No street oversizing reimbursement from the City is due the
Developer for this Development.
2. Notwithstanding any provision herein to the contrary, the Developer
shall be responsible for all costs for the initial installation of traffic signing and striping
for the internal street operations for this Development.
3. The Developer is responsible for constructing Rocky Stream Drive
within the right-of-way dedicated as a part of this Development. However, until the street
connects through, a temporary turnaround is needed. Since the Developer is
responsible for the construction of the un-built portions of said street and for any costs
to remove the temporary improvements and rebuild these areas to final design
standards, the Developer agrees to provide to the City a cash deposit to cover the cost
of the construction of the pavement, curb, gutter and sidewalk that is not constructed at
the time of development of the Property. The amount of said funds shall be the
February 27, 2003 9