HomeMy WebLinkAboutHEARTHFIRE PUD SECOND - Filed DA-DEVELOPMENT AGREEMENT - 2004-06-14DEVELOPMENT AGREEMENT
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THIS AGREEMENT, is made and entered into this t day of n1ttLi
2003, by and between the CITY OF FORT COLLINS, COLORADO, a M nicipal
Corporation, hereinafter referred to as the "City"; and Hearthfire, Inc., a Colorado
Corporation, hereinafter referred to as the "Developer."
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property"
or "Development") and legally described as follows, to wit:
Hearthfire PUD Second Filing, located in the Northwest Quarter of Section 30,
Township 8 North, Range 68 West of the 6th P.M., City of Fort Collins, County of
Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, plans (including utility plans), reports and other documents required for
the approval of a final plan according to the City's development application submittal
requirements master list (the "Final Development Plan Documents") copies of which are
on file in the office; of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and
will further require the installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the Final Development Plan Documents
submitted by the Developer subject to certain requirements and conditions, which
involve the installation of and construction of utilities and other municipal improvements
in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
I. General Conditions
A. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement,
"development activities" shall include, but not be limited to, the following: (1) the actual
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portions of County Road 13, whichever shall first occur. In the event that the east one-
half of County Road 13 is not constructed within twenty (20) years after the date of this
Agreement, the City shall return the amount originally 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 deposit.
If a party other than the City constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the party
making such improvements the cost incurred by such other party, but not to exceed 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.
8. In accordance with the condition of approval placed on this project
by the Planning and Zoning Board, Bateleur Lane shall not be connected to County
Road 13 at this time, but shall terminate in a temporary cul-de-sac until such time as the
City deems the connection of this roadway to County Road 13 necessary. In order to
complete the construction of Bateleur Lane to County Road 13 at the time that it is
deemed necessary by the City, the Developer shall deliver to the City a cash
"contribution in aid" in an amount sufficient to guarantee completion of Bateleur Lane to
City street design standards. The amount of said funds shall be the estimated cost to
remove the temporary improvements including but not limited to the turnaround surface
and the culvert and to construct said improvements, including but not limited to the
pavement, subgrade, curb, gutter, sidewalks, sidewalk ramps, and the street trees,
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 for
this Development and shall be held by the City for the sole purpose of constructing the
Bateleur Lane connection to County Road 13. Upon construction of the temporary cul-
de-sac and deposit of the contribution in aid with the City, the Developer's obligation to
construct the permanent connection of Bateleur Lane to County Road 13 shall be
satisfied.
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.
The Bateleur Lane connection to County Road 13 shall be constructed by the City at
such time that the City deems the improvements to be necessary. In the event that
such improvements are not constructed within twenty (20) years after the date of this
Agreement, the City shall return the amount originally deposited plus any interest
earned by the City as a result of said deposit, less 3% of the total amount remaining
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(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 deposit.
If a party other than the City constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the party
making such improvements the cost incurred by such other party, but not to exceed 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.
9. In accordance with Section 24-95 of the City Code the Developer is
responsible for constructing the portion of Turnstone Lane within the site as a residential
local street (the "Turnstone Lane Improvements") prior to the issuance of the first
building permit. Notwithstanding the foregoing, the City and the Developer agree that
the Developer shall have the option to postpone this street construction by delivering to
the City a cash "contribution in aid" sufficient to guarantee completion of the Turnstone
Lane Improvements to meet City street design standards. The amount of said funds
shall be the estimated cost to construct said improvements, including but not limited to
the future inlet(s), stormdrain line(s), culvert(s), pavement, subgrade, curb, gutter,
sidewalks, sidewalk ramps, and the street trees, 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
upon recording of the final subdivision plat for the Development and shall be held by the
City for the sole purpose of making turnstone Lane Improvements. Upon the
Developer's deposit of such funds into escrow with the City, all obligations of the
Developer for construction of Turnstone Lane Improvements shall be fulfilled.
Except as provided in the following paragraphs, 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.
The Turnstone Lane Improvements shall be constructed by the City of a third party at
such time that the City deems such improvements to be necessary or at such time as
the adjacent property develops and an improved roadway is needed for access,
whichever shall first occur. In the event that the Turnstone Lane Improvements are not
constructed within ten (10) years after the date of this Agreement, the City shall return
the amount originally 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 deposit, to The Water Supply and Storage Company, Attn:
President, P.O. Box 1584, Fort Collins, Colorado 80522.
If a party other than the City constructs the Turnstone Lane Improvements, upon
completion of said improvements and acceptance of them by the City, the City shall
return to the party making such improvements the cost incurred by such other party, but
not to exceed 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.
10. The Developer shall place a fence along Turnstone Lane at the
edge of the right-of-way adjacent to Lots 25 and 26 at the time the lots are developed.
11. Construction of Phases 1, 2 and 3 of this development must be
done in sequential order and cannot occur until improvements for the prior Phase(s) are
completed. No building permits will be issued within Phases 2 and 3 until the streets
and utilities within the preceding Phases have been completed in accordance with
Section I.C. 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 successors) in interest) hereby agrees to indemnify and hold harmless the City
against, any damages or injuries sustained in the Development as a result of ground
water seepage or flooding, structural damage, or other damage unless such damages
or injuries are proximately caused by the City's negligent operation or maintenance of its
storm drainage facilities in the Development. However, nothing herein shall be deemed
a waiver by the City of its immunities, defenses, and limitations to liability under the
Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any
other law.
2. If the Development includes a subdrain system, any such subdrain
system, whether located within private property or within public property such as street
rights -of -way or utility or other easements, shall not be owned, operated, maintained,
repaired or reconstructed by the City and it is agreed that all ownership, operation,
maintenance, repair and reconstruction obligations shall be those of the Developer or
the Developer's successor(s) in interest. Such subdrain system is likely to be located
both upon private and public property and, to the extent that it is located on public
property, all maintenance, operation, repair or reconstruction shall be conducted in such
a manner that such public property shall not be damaged, or if damaged, shall, upon
completion of any such project, be repaired in accordance with then existing City
standards. The City shall not be responsible for, and the Developer, for itself and its
successor(s) in interest, hereby agrees to indemnify and hold harmless the City against
any damages or injuries sustained in the Development as the result of groundwater
seepage or flooding, structural damage or other damage resulting from failure of any
such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and
hold harmless the City against any damages or injuries to water rights caused, directly
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or indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided the Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice of any such claim to the Developer within ninety (90) days after the City first
receives notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause the forgoing indemnities and hold harmless agreements by the
Developer to not apply to such claim and such failure shall constitute a release of the
foregoing indemnities and hold harmless agreements as to such claim.
F. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a
permanent water system is installed by the Developer and approved by the City.
2. The Developer has constructed an accessway from Town Center
Drive in Hearthfire PUD 15r Filing to County Road 13 in accordance with the plans
therefore approved by Poudre Fire Authority and the City Engineer. In the event that
relocation of the accessway becomes necessary in order to complete grading and/or the
installation of utilities for the Development a plan for the relocated 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.) The Developer shall continue to provide such accessway, in its
current location or as relocated, and shall keep it open during all phases of construction.
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.
G. Natural Resources
1. The Developer shall ensure that all wetlands and uplands are
properly maintained for a two (2) year period following construction thereof to ensure
that the vegetation and hydrologic regime are fully established. Monitoring of the
vegetation shall occur at least in June and September of the first growing season and in
late summer of the remaining growing seasons. The status and effectiveness of the
vegetation shall be evaluated and the results reported to the City of Fort Collins Natural
Resources Department semi-annually for review. If the wetlands have been established
in accordance with the approved Wetland Mitigation Plan, they shall be approved and
accepted by the City Natural Resources Director. If the wetlands have not been
established in accordance with the approved Wetland Mitigation Plan, then the
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Developer shall promptly take such steps as are necessary to bring the wetlands into
conformance with the approved Wetland Mitigation Plan.
2. The Developer shall be responsible for implementing mitigation
measures to compensate for the complete removal 0.22 acres of wetlands on this
Development. (If said wetland boundaries are found to be different from those shown on
the Final Development Plan Documents, the Developer shall modify the Final
Development Plan Documents through the amendment process as established in
Section 2.2.10 of the Land Use Code. Verification of said wetland boundaries and the
completion of revisions to the Final Development Plan Documents, if necessary, shall
be completed prior to the issuance of any building permits for the Development.)
3. The Developer shall accomplish said mitigation by the creation of
wetlands through the establishment of hydrologic regime and wetland vegetation.
Construction of 0.33 acres of wetland shall be completed prior to the issuance of more
than twenty-five percent (25%) of the total building permits for the Development.
4. The areas of the Development that are planned to be seeded, not
including the wetland mitigation, shall be inspected jointly by the Developer and the City
at specified intervals for two (2) seasons or until determined by the City to be well
established in accordance with the coverage specifications of this paragraph, whichever
occurs first. Areas seeded in the spring shall be inspected for required coverage each
immediately subsequent Autumn not later than October 1st. Areas seeded at any other
time shall be inspected each immediately subsequent Summer not later than August 15t
The required coverage for the first inspection shall be ten (10) viable live seedlings of
the specified species per 1000 square centimeters (approximately one square foot), or
fifty percent (500/6) 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 two (2) growing seasons from the date of completion. 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.
5. The Developer shall delineate the Development's property
boundary adjacent to all Limits of Development as defined by Article V, Section 5.1.2 of
the Land Use Code, including boundaries around wetlands that are to be undisturbed,
with orange construction fence prior to any type of construction, including overlot
grading.
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6. Fueling facilities shall be located at least one hundred (100) feet
from 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.
7. Prior to the commencement of any development activities within the
Limits of Development, the Developer shall relocate or eradicate any prairie dogs
inhabiting any portions of the site using City -approved methods as set forth in Chapter 4
of the City Code. If prairie dogs are present fumigation is best done between late April
and early June and relocation shall occur prior to March 1 or after May 31 of any given
year.
8. The Developer shall construct a 0.51-acre island in Pond 2 of the
Hearthfire P.U.D. First Filing and complete the associated grading prior to the issuance
of more than nineteen (19) building permits in Phase 1, and prior to the issuance of any
building permits in either Phase 2 or Phase 3 of this Development.
9. Any portion of the wetlands within the 2.21-acre area between the
existing edge of the wetlands and the new high water level of Pond 2 that is disturbed
during construction of the island in Pond 2 of the Hearthfire P.U.D. First Filing and the
associated grading shall be covered with the wetland seed bed topsoil to a depth of six
(6) inches and shall be reseeded with a wetland seed mix, all in accordance with the
approved Wetland Mitigation Plan.
H. Development Construction Permit
1. The Developer shall apply for and obtain a Development
Construction Permit for this Development, in accordance with Division 2.6 of the Land
Use Code (or Section 29-12 of the Transitional Land Use Regulations, if applicable),
prior to the Developer commencing construction. The Developer shall pay the required
fees for said Permit and construction inspection, and post security to guarantee
completion of the public improvements required for this Development, prior to issuance
of the Development Construction Permit.
Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance
guarantee and a five-year repair guarantee covering all errors or omissions in the
design and/or construction of the public improvements required for this Development,
which guarantees shall run concurrently and shall commence upon the date of
completion of the public improvements and acceptance thereof by the City. More
specific elements of these guarantees are noted in Exhibit "C." Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section
3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use
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Regulations, as applicable. Notwithstanding the provisions of Paragraphs III (H) and (1)
of this Agreement to the contrary, the obligations of the Developer pursuant to this
paragraph and Exhibit "C" may not be assigned or transferred to any other person or
entity unless the warranted improvements are completed by, and a letter of acceptance
of the warranted improvements is received from the City by, such other person or entity.
Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook"
and shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of
waste material, rubbish, or building materials caused by the Developer's operation, or
the activities of individual builders and/or subcontractors; shall remove such rubbish as
often as necessary, but no less than daily and; at the completion of the work, shall
remove all such waste materials, rubbish, tools, construction equipment, machinery,
and surplus materials from the public right-of-way. The Developer further agrees to
maintain the finished street surfaces so that they are free from dirt caused by the
Developer's operation or as a result of building activity. Any excessive accumulation of
dirt and/or construction materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until the problem is corrected
to the satisfaction of the City Engineer. If the Developer fails to adequately clean such
streets within two (2) days after receipt of written notice, the City may have the streets
cleaned at the Developer's expense and the Developer shall be responsible for prompt
payment of all such costs. The Developer also agrees to require all contractors within
the Development to keep the public right-of-way clean and free from accumulation of
dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing
operations when winds are of sufficient velocity to create blowing dust which, in the
inspector's opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements
or obligations may be shown on the Final Development Plan Documents, or any
documents executed in the future that are required by the City for the approval of an
amendment to a development plan, and the City may withhold (or to the extent
permitted by law, revoke) such building permits and certificates of occupancy as it
deems necessary to ensure performance in accordance with the terms of this
Development Agreement. The processing and "routing for approval" of the various
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development plan documents may result in certain of said documents carrying dates of
approval and/or execution that are later than the date of execution of this Development
Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of
this Agreement. The Developer hereby waives any right to object to any such
discrepancy in dates.
E. Nothing herein contained shall be construed as a waiver of any
requirements of the City Code, Land Use Code, or Transitional Land Use Regulations
(as applicable) and the Developer agrees to comply with all requirements of the same.
F. In the; event the City waives any breach of this Agreement, no such waiver
shall be held or construed to be a waiver of any subsequent breach hereof.
G. All financial obligations of the City arising under this Agreement that are
payable after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins City
Council, in its discretion.
H. This Agreement shall run with the Property and shall be binding upon and
inure to the benefit of the parties hereto, their respective personal representatives,
heirs, successors, grantees and assigns. It is agreed that all improvements required
pursuant to this Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest within the meaning
of this paragraph shall specifically include, but not be limited to, a conveyance or
assignment of any portion of the Developer's legal or equitable interest in the Property,
as well as any assignment of the Developer's rights to develop the Property under the
terms and conditions of this Agreement. The written assignment to the homeowner's
association created for the Development of all maintenance and ownership obligations,
following completion of the Development and approval and acceptance by the City,
except for the Developer's obligation for maintenance and repair pursuant to Paragraph
II(I)(1) of this Agreement, shall relieve the Developer from such obligations.
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
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Agreement as continuing and require specific performance or; (c) avail itself of any
other remedy at law or equity.
K. In the event of the default of any of the provisions hereof by either party
which shall require the party not in default to commence legal or equitable action
against said defaulting party, the defaulting party shall be liable to the non -defaulting
party for the non -defaulting party's reasonable attorney's fees and costs incurred by
reason of the default. Nothing herein shall be construed to prevent or interfere with the
City's rights and remedies specified in Paragraph III.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement
shall not be construed as or deemed to be an agreement for the benefit of any third
party or parties, and no third party or parties shall have any right of action hereunder for
any cause whatsoever.
M. It is expressly understood and agreed by and between the parties hereto
that this Agreement shall be governed by and its terms construed under the laws of the
State of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set
forth below; and such notice or other communication shall be deemed given when so
hand -delivered or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
If to the Developer: Hearthfire, Inc.
c/o Tom Kennedy
11941 W. 48th Avenue, Suite 200
Wheatridge, CO 80033
With a copy to: Lucia A. Liley, Esq.
Liley, Rogers & Martell, L.L.C.
300 S. Howes St.
Fort Collins, Co 80521
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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.
AjEST:,',,k
City Clerk
APPROVED AS TO CONTENT:
OmAck]
City Enginee
APP EL'C/ O FORM:
Deputy City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporations
By: Q2 -f-�
CityMarf4ger
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construction of improvements, (2) obtaining a permit therefor, or (3) any change in
grade, contour or appearance of the Property caused by, or on behalf of, the Developer
with the intent to construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and
facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on
the Final Development Plan Documents and in full compliance with the standards and
specifications of the City on file in the office of the City Engineer at the time of approval
of the utility plans relating to the specific utility, subject to a three (3) year time limitation
from the date of approval of the site specific development plan. In the event that the
Developer commences or performs any construction pursuant hereto after the passage
of three (3) years from the date of approval of the site specific development plan. the
Developer shall resubmit the utility plans to the City Engineer for reexamination. The
City may then require the Developer to comply with the approved standards and
specifications of the City on file in the office of the City Engineer at the time of the
resubmittal.
C. No building permit for the construction of any structure within the Property
shall be issued by the City until the public water lines and stubs to each lot, fire
hydrants, 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." If the City Engineer has determined that
any water lines, sanitary sewer lines, storm drainage facilities and/or streets are
required to provide service or access to other areas of the City, those facilities shall be
shown on the Final Development Plan Documents and shall be installed by the
Developer within the time as established under "Special Conditions" in this document.
E. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this Development as shown on the Final Development Plan
Documents and other approved documents pertaining to this Development on file with
the City.
F. Street improvements shall not be installed until all utility lines to be placed
therein have been completely installed, including all individual lot service lines (water
and sewer) leading in and from the main to the property line and all electrical lines.
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ATTEST:
Ardith White, Secretary
DEVELOPE
Hearthfire, I rado corporation
By:
Tom Kennedy, President
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EXHIBIT "A"
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.
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.
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EXHIBIT "B"
Not Applicable
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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 easernents 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.
23
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.
24
DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this 'ZV day of \��J
2003, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; and Hearthfire, Inc., a Colorado
Corporation, hereinafter referred to as the "Developer."
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer. State of Colorado, (hereafter sometimes referred to as the 'Property"
or "Development') and legally described as follows, to wit:
Hearthfire PUD Second Filing, located in the Northwest Quarter of Section 30,
Township 8 North, Range 68 West of the 6th P.M., City of Fort Collins, County of
Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, plans (including utility plans), reports and other documents required for
the approval of a final plan according to the City's development application submittal
requirements master list (the "Final Development Plan Documents") copies of which are
on file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and
will further require the installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the Final Development Plan Documents
submitted by the Developer subject to certain requirements and conditions, which
involve the installation of and construction of utilities and other municipal improvements
in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
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 bikepaths shall be installed as shown on
the Final Development Plan Documents and in full compliance with the standards and
specifications of the City on file in the office of the City Engineer at the time of approval
of the utility plans relating to the specific utility, subject to a three (3) year time limitation
from the date of approval of the site specific development plan. In the event that the
Developer commences or performs any construction pursuant hereto after the passage
of three (3) years from the date of approval of the site specific development plan, the
Developer shall resubmit the utility plans to the City Engineer for reexamination. The
City may then require the Developer to comply with the approved standards and
specifications of the City on file in the office of the City Engineer at the time of the
resubmittal.
C. No building permit for the construction of any structure within the Property
shall be issued by the City until the public water lines and stubs to each lot, fire
hydrants, 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." If the City Engineer has determined that
any water lines, sanitary sewer lines, storm drainage facilities and/or streets are
required to provide service or access to other areas of the City, those facilities shall be
shown on the Final Development Plan Documents and shall be installed by the
Developer within the time as established under "Special Conditions" in this document.
E. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this Development as shown on the Final Development Plan
Documents and other approved documents pertaining to this Development on file with
the City.
F. Street improvements shall not be installed until all utility lines to be placed
therein have been completely installed, including all individual lot service lines (water
and sewer) leading in and from the main to the property line and all electrical lines.
2
G. The installation of all utilities shown on the Final Development Plan
Documents shall be inspected by the Engineering Department of the City and shall be
subject to such department's approval. The Developer agrees to correct any
deficiencies in such installations in order to meet the requirements of the plans and/or
specifications applicable to such installation. In case of conflict, the Final Development
Plan Documents shall supersede the standard specifications.
H. All storm drainage facilities shall be so designed and constructed by the
Developer as to protect downstream and adjacent properties against injury and to
adequately serve the Property (and other lands as may be required, if any). The
Developer shall meet or exceed the minimum requirements for storm drainage facilities
as have been established by the City in its Drainage Master Plans and Design Criteria.
The Developer, for itself and its successor(s) in interest, does hereby indemnify and
hold harmless the City from any and all claims that might arise, directly or indirectly, as
a result of the discharge of injurious storm drainage or seepage waters from the
Property in a manner or quantity different from that which was historically discharged
and caused by the design or construction of the storm drainage facilities, except for (1)
such claims and damages as are caused by the acts or omissions of the City in
maintenance of such facilities as have been accepted by the City for maintenance; (2)
errors, if any, in the general concept of the City's master plans (but not to include any
details of such plans, which details shall be the responsibility of the Developer); and (3)
specific written or otherwise documented directives that may be given to the Developer
by the City. The City agrees to give notice to the Developer of any claim made against
it to which this indemnity and hold harmless agreement by the Developer could apply,
and the Developer shall have the right to defend any lawsuit based on such claim and to
settle any such claim provided Developer must obtain a complete discharge of all City
liability through such settlement. Failure of the City to give notice of any such claim to
the Developer within ninety (90) days after the City first receives a notice of such claim
under the Colorado Governmental Immunity Act for the same, shall cause this indemnity
and hold harmless agreement by the Developer to not apply to such claim and such
failure shall constitute a release of this indemnity and hold harmless agreement as to
such claim. Approval of and acceptance by the City of any storm drainage facility
design or construction shall in no manner be deemed to constitute a waiver or
relinquishment by the City of the aforesaid indemnification. The Developer shall engage
a Colorado licensed professional engineer to design the storm drainage facilities as
aforesaid and it is expressly affirmed hereby that such engagement shall be intended
for the benefit of the City, and subsequent purchasers of property in the Development.
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.
e3
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 City
associated with this Development are in compliance with all environmental protection
and anti -pollution laws, rules, regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection Agency Regulations at
40 C.F.R., Part 261, and that such portions of the Property as are dedicated to the City
pursuant to this Development, are in compliance with all such requirements pertaining
to the disposal or existence in or on such dedicated property of any hazardous
substances, pollutants or contaminants, as defined by the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, and
regulations promulgated thereunder. The Developer, for itself and its successor(s) in
interest, does hereby indemnify and hold harmless the City from any liability whatsoever
that may be imposed upon the City by any governmental authority or any third party,
pertaining to the disposal of hazardous substances, pollutants or contaminants, and
cleanup necessitated by leaking underground storage tanks, excavation and/or backfill
of hazardous substances, pollutants or contaminants, or environmental cleanup
responsibilities of any nature whatsoever on, of, or related to any property dedicated to
the City in connection with this Development, provided that such damages or liability are
not caused by circumstances arising entirely after the date of acceptance by the City of
the public improvements constructed on the dedicated property, except to the extent
that such circumstances are the result of acts or omissions of the Developer. Said
indemnification shall not extend to claims, actions or other liability arising as a result of
any hazardous substance, pollutant or contaminant generated or deposited by the City,
its agents or representatives, upon portions of the Property dedicated to the City in
connection with this Development. The City agrees to give notice to the Developer of
any claim made against it to which this indemnity and hold harmless agreement by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice of any such claim to the Developer within ninety (90) days after the City first
receives a notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
L. The Developer acknowledges and agrees that the City, as the owner of
any adjacent property (the "City Property") on which off -site improvements may be
constructed, or that may be damaged by the Developer's activities hereunder, expressly
retains (and does not by this Development Agreement waive) its rights as property
owner. The City's rights as owner may include without limitation those rights associated
with the protection of the City Property from damage, and/or the enforcement of
4
restrictions, limitations and requirements associated with activities on the City Property
by the Developer as an easement recipient.
II. Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements associated
with Phase 1 of this Development, as shown on the Final Development Plan
Documents, shall be completed by the Developer in accordance with said Documents
prior to the issuance of more than 7 building permits in Phase 1 of 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 said 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.
All on -site and off -site storm drainage improvements associated with Phase 2 of this
Development, as shown on the Final Development Plan Documents, shall be completed
by the Developer in accordance with said Documents prior to the issuance of more than
9 building permits in Phase 2 of 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 said 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.
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
5
G. The installation of all utilities shown on the Final Development Plan
Documents shall be inspected by the Engineering Department of the City and shall be
subject to such department's approval. The Developer agrees to correct any
deficiencies in such installations in order to meet the requirements of the plans and/or
specifications applicable to such installation. In case of conflict, the Final Development
Plan Documents shall supersede the standard specifications.
H. All storm drainage facilities shall be so designed and constructed by the
Developer as to protect downstream and adjacent properties against injury and to
adequately serve the Property (and other lands as may be required, if any). The
Developer shall meet or exceed the minimum requirements for storm drainage facilities
as have been established by the City in its Drainage Master Plans and Design Criteria.
The Developer, for itself and its successor(s) in interest, does hereby indemnify and
hold harmless the City from any and all claims that might arise, directly or indirectly, as
a result of the discharge of injurious storm drainage or seepage waters from the
Property in a manner or quantity different from that which was historically discharged
and caused by the design or construction of the storm drainage facilities, except for (1)
such claims and damages as are caused by the acts or omissions of the City in
maintenance of such facilities as have been accepted by the City for maintenance; (2)
errors, if any, in the general concept of the City's master plans (but not to include any
details of such plans, which details shall be the responsibility of the Developer); and (3)
specific written or otherwise documented directives that may be given to the Developer
by the City. The City agrees to give notice to the Developer of any claim made against
it to which this indemnity and hold harmless agreement by the Developer could apply,
and the Developer shall have the right to defend any lawsuit based on such claim and to
settle any such claim provided Developer must obtain a complete discharge of all City
liability through such settlement. Failure of the City to give notice of any such claim to
the Developer within ninety (90) days after the City first receives a notice of such claim
under the Colorado Governmental Immunity Act for the same, shall cause this indemnity
and hold harmless agreement by the Developer to not apply to such claim and such
failure shall constitute a release of this indemnity and hold harmless agreement as to
such claim. Approval of and acceptance by the City of any storm drainage facility
design or construction shall in no manner be deemed to constitute a waiver or
relinquishment by the City of the aforesaid indemnification. The Developer shall engage
a Colorado licensed professional engineer to design the storm drainage facilities as
aforesaid and it is expressly affirmed hereby that such engagement shall be intended
for the benefit of the City, and subsequent purchasers of property in the Development.
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.
3
certification shall result in the withholding of the issuance of additional building permits
and/ or certificates of occupancy until such drainage facilities are repaired to the
operational function and structural integrity which was approved by the City.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the 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 $ 21,150.00 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 or the
erosion control provisions of the Criteria 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 III.D of this Agreement, as it deems necessary in order to ensure
that the Developer installs and maintains the erosion control measures throughout the
build -out of this Development.
4. It is important that all lots be graded to drain in the configuration
shown on the Final Development Plan Documents. For this reason the following
additional requirements shall be followed for all buildings/structures on all lots:
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.
M
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 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. The contractor shall re -seed and restore all areas that
are disturbed during construction of the off -site storm drainage improvements in
accordance with the Final Development Plan Documents promptly following
construction. The Developer shall ensure that no negative impact occurs to the existing
wetlands, except for the wetland removal and mitigation authorized by Paragraphs
II.G.2. and 3 of this Agreement, during the construction of the water quality pond
facilities. No grading shall be done outside of the approved areas as shown on the
Final Development Plan Documents.
7. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed outside of the public right-of-way including the
water quality ponds located in the open space area.
8. Some lots in this Development abut certain storm drainage facilities
and it is agreed that it is of the utmost importance that no storm water from said facilities
enters houses built on these lots. In order to provide the assurance that houses built on
these lots are constructed at an elevation that said storm water cannot enter, the Final
Development Plan Documents contain specifications for the minimum elevation for any
opening to each house. Prior to the issuance of a certificate of occupancy for Lots 33
through 38 and lots 45 through 47; the Developer shall provide certification from a
professional engineer licensed in Colorado that the lowest opening to any such house is
at or above the minimum elevation required on the Final Development Plan Documents.
Said certification is in addition to, and may be done in conjunction with, the lot
certification described in Paragraph II.C.7. above.
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 this Development, including both signing and striping related to the Developer's
internal street operations and the signing and striping of any adjacent or adjoining local,
collector or arterial streets that is made necessary because of the Development.
3. 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 29-13 and 29-14 of the Transitional Land
Use Regulations of the City.
4. a. The Developer shall be responsible for payment of
$32,743.40 as its proportionate share, based on traffic generation of the Development,
of the City's costs for the Northeast Area Overlay Project (NAOP) as estimated for the
Hearthfire PUD 15t filing and the Development in that document entitled "Interim
Improvements for County Roads 9E and 11" prepared by the Fort Collins Engineering
Department and dated February 11, 2002 to be paid in conjunction with the issuance of
residential building permits in the Development as described hereinbelow.
b. The issuance of each residential building permit for the 56 lots of the
Development shall require the payment of a fee in the amount of $584.71 (NAOP Fee),
which is equal to 1/56 of the Developer's obligation for the Development. If any NAOP
Fee is paid by the Developer after the year 2003, the Developer agrees to pay the
amount specified above plus an additional amount to be calculated as described below
to recognize the effect of inflation, with said amount to be increased each year until
payment is completed in full. Upon payment of every NAOP Fee required under this
Subsection, the Developer's obligation to pay a proportionate share of the NAOP costs
in conjunction with the Development shall be satisfied.
C. The inflation factor (Inf. Fac.) for each year's increase in the amount of the NAOP
Fee shall be calculated using the construction cost index for Denver as published in the
Engineering News Record (ENR) for March 2002, as the base index (I -base) and the
same index published in the ENR for the January in each succeeding year immediately
preceding payment (I -year of payment). The formula for calculating said inflation factors
shall be as follows:
Inf. Fac. _ (1-year of payment) — (1-base)
(1-base)
The amount to be added to the NAOP Fee to compensate for inflation shall be equal to
the amount of the NAOP Fee times the inflation factor. Said amounts added to
compensate for inflation shall not reduce the total (principal) amount due.
5. The Developer agrees to be responsible for payment of $20,436.75
which is to be paid on a per lot basis in conjunction with the issuance of residential
building permits in the Development for the sole purpose of making improvements to the
intersection of State Highway 1 and Douglas Road (the "County Intersection"). The
issuance of each residential building permit for the 56 lots of the Development shall
require the payment of a fee in the amount of $364.95 (the "County Intersection Fee"),
which is equal to 1/56 of the Developer's obligation for the Development. Upon receipt
of each County Intersection Fee, the City shall be responsible for its prompt delivery to
the County to be placed in a reserve account and used solely for improvements to the
s
County Intersection. Upon payment of every County Intersection Fee required under
this Subsection, the Developer's obligation for improvements to the County Intersection
in conjunction with the Development shall be satisfied.
6. Prior to the issuance of a total of 91 building permits in the
Hearthfire PUD First and Second Filings (at least 78 of which building permits have
been heretofore been issued in the 1st Filing) the Developer is obligated to construct a
collector street to connect Hearthfire Drive to County Road 11 if this connection has not
already been built. This street system has been designed and approved as a part of the
Richards Lake PUD, Filing One. Any revisions necessary to the Richards Lake PUD,
Filing One plans for phasing changes and updates to current standards that may be
required (if 3 or more years have passed since the plans were approved) are the
responsibility of the Developer. All changes shall be reviewed and approved prior to
starting any work shown by those plans. In the event that the Developer constructs the
collector street from Hearthfire Drive to County Road 11, it shall be eligible to file a
repay agreement against the adjacent property owners in accordance with Section
3.3.2(F) of the City's Land Use Code.
7. In accordance with Section 24-95 of the City Code the Developer is
responsible for constructing east one-half of County Road 13 adjacent to the
Development prior to the issuance of the first building permit. Notwithstanding the
foregoing, but in accordance with the condition of approval placed on this project by the
Planning and Zoning Board and in lieu of the requirements of Section 24-95 if the City
Code, County Road 13 adjacent to the Development shall not be constructed by the
Developer, but the Developer shall deliver a cash "contribution in aid" to the City in an
amount sufficient to guarantee completion of County Road 13 adjacent to the
Development to meet City street design standards. The amount of said contribution in
aid shall be the estimated cost to construct said improvements, including but not limited
to the future inlet(s), stormdrain line(s), culvert(s), pavement, subgrade, curb, gutter,
sidewalks, sidewalk ramps, and the street trees, 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 for this Development and shall be held by
the City for the sole purpose of constructing the east one-half of County Road 13
adjacent to the Development. Upon deposit of the contribution in aid with the City, the
Developer's obligation to construct County Road 13 adjacent to the Development shall
be satisfied.
Except as provided in the following paragraphs, 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.
The improvements to County Road 13 adjacent to the Development shall be
constructed by the City at such time that the City deems the improvements to be
necessary or at such time as improvements are made by third parties to adjacent
t
portions of County Road 13, whichever shall first occur. In the event that the east one-
half of County Road 13 is not constructed within twenty (20) years after the date of this
Agreement, the City shall return the amount originally 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 deposit.
If a party other than the City constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the party
making such improvements the cost incurred by such other party, but not to exceed 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.
8. In accordance with the condition of approval placed on this project
by the Planning and Zoning Board, Bateleur Lane shall not be connected to County
Road 13 at this time, but shall terminate in a temporary cul-de-sac until such time as the
City deems the connection of this roadway to County Road 13 necessary. In order to
complete the construction of Bateleur Lane to County Road 13 at the time that it is
deemed necessary by the City, the Developer shall deliver to the City a cash
"contribution in aid" in an amount sufficient to guarantee completion of Bateleur Lane to
City street design standards. The amount of said funds shall be the estimated cost to
remove the temporary improvements including but not limited to the turnaround surface
and the culvert and to construct said improvements, including but not limited to the
pavement, subgrade, curb, gutter, sidewalks, sidewalk ramps, and the street trees,
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 for
this Development and shall be held by the City for the sole purpose of constructing the
Bateleur Lane connection to County Road 13. Upon construction of the temporary cul-
de-sac and deposit of the contribution in aid with the City, the Developer's obligation to
construct the permanent connection of Bateleur Lane to County Road 13 shall be
satisfied.
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.
The Bateleur Lane connection to County Road 13 shall be constructed by the City at
such time that the City deems the improvements to be necessary. In the event that
such improvements are not constructed within twenty (20) years after the date of this
Agreement, the City shall return the amount originally deposited plus any interest
earned by the City as a result of said deposit, less 3% of the total amount remaining
10
(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 deposit.
If a party other than the City constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the party
making such improvements the cost incurred by such other party, but not to exceed 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.
9. In accordance with Section 24-95 of the City Code the Developer is
responsible for constructing the portion of Turnstone Lane within the site as a residential
local street (the "Turnstone Lane Improvements") prior to the issuance of the first
building permit. Notwithstanding the foregoing, the City and the Developer agree that
the Developer shall have the option to postpone this street construction by delivering to
the City a cash "contribution in aid" sufficient to guarantee completion of the Turnstone
Lane Improvements to meet City street design standards. The amount of said funds
shall be the estimated cost to construct said improvements, including but not limited to
the future inlet(s), stormdrain Iine(s), culvert(s), pavement, subgrade, curb, gutter,
sidewalks, sidewalk ramps, and the street trees, 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
upon recording of the final subdivision plat for the Development and shall be held by the
City for the sole purpose of making turnstone Lane Improvements. Upon the
Developer's deposit of such funds into escrow with the City, all obligations of the
Developer for construction of Turnstone Lane Improvements shall be fulfilled.
Except as provided in the following paragraphs, 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.
The Turnstone Lane Improvements shall be constructed by the City of a third party at
such time that the City deems such improvements to be necessary or at such time as
the adjacent property develops and an improved roadway is needed for access,
whichever shall first occur. In the event that the Turnstone Lane Improvements are not
constructed within ten (10) years after the date of this Agreement, the City shall return
the amount originally 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 deposit, to The Water Supply and Storage Company, Attn:
President, P.O. Box 1584, Fort Collins, Colorado 80522.
If a party other than the City constructs the Turnstone Lane Improvements, upon
completion of said improvements and acceptance of them by the City, the City shall
11
return to the party making such improvements the cost incurred by such other party, but
not to exceed 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.
10. The Developer shall place a fence along Turnstone Lane at the
edge of the right-of-way adjacent to Lots 25 and 26 at the time the lots are developed.
11. Construction of Phases 1, 2 and 3 of this development must be
done in sequential order and cannot occur until improvements for the prior Phase(s) are
completed. No building permits will be issued within Phases 2 and 3 until the streets
and utilities within the preceding Phases have been completed in accordance with
Section I.C. 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.
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
12
or indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided the Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice of any such claim to the Developer within ninety (90) days after the City first
receives notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause the forgoing indemnities and hold harmless agreements by the
Developer to not apply to such claim and such failure shall constitute a release of the
foregoing indemnities and hold harmless agreements as to such claim.
F. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a
permanent water system is installed by the Developer and approved by the City.
2. The Developer has constructed an accessway from Town Center
Drive in Hearthfire PUD Vt Filing to County Road 13 in accordance with the plans
therefore approved by Poudre Fire Authority and the City Engineer. In the event that
relocation of the accessway becomes necessary in order to complete grading and/or the
installation of utilities for the Development a plan for the relocated 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.) The Developer shall continue to provide such accessway, in its
current location or as relocated, and shall keep it open during all phases of construction.
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.
G. Natural Resources
1. The Developer shall ensure that all wetlands and uplands are
properly maintained for a two (2) year period following construction thereof to ensure
that the vegetation and hydrologic regime are fully established. Monitoring of the
vegetation shall occur at least in June and September of the first growing season and in
late summer of the remaining growing seasons. The status and effectiveness of the
vegetation shall be evaluated and the results reported to the City of Fort Collins Natural
Resources Department semi-annually for review. If the wetlands have been established
in accordance with the approved Wetland Mitigation Plan, they shall be approved and
accepted by the City Natural Resources Director. If the wetlands have not been
established in accordance with the approved Wetland Mitigation Plan, then the
13
Developer shall promptly take such steps as are necessary to bring the wetlands into
conformance with the approved Wetland Mitigation Plan.
2. The Developer shall be responsible for implementing mitigation
measures to compensate for the complete removal 0.22 acres of wetlands on this
Development. (If said wetland boundaries are found to be different from those shown on
the Final Development Plan Documents, the Developer shall modify the Final
Development Plan Documents through the amendment process as established in
Section 2.2.10 of the Land Use Code. Verification of said wetland boundaries and the
completion of revisions to the Final Development Plan Documents, if necessary, shall
be completed prior to the issuance of any building permits for the Development.)
3. The Developer shall accomplish said mitigation by the creation of
wetlands through the establishment of hydrologic regime and wetland vegetation.
Construction of 0.33 acres of wetland shall be completed prior to the issuance of more
than twenty-five percent (25%) of the total building permits for the Development.
4. The areas of the Development that are planned to be seeded, not
including the wetland mitigation, shall be inspected jointly by the Developer and the City
at specified intervals for two (2) seasons or until determined by the City to be well
established in accordance with the coverage specifications of this paragraph, whichever
occurs first. Areas seeded in the spring shall be inspected for required coverage each
immediately subsequent Autumn not later than October 1st. Areas seeded at any other
time shall be inspected each immediately subsequent Summer not later than August 15t
The required coverage for the first inspection shall be ten (10) viable live seedlings of
the specified species per 1000 square centimeters (approximately one square foot), or
fifty percent (50%) coverage of the specified foliage as measured from five feet (5')
directly overhead, with no bare spots larger than 1000 square centimeters. At the time
of the second growing season inspection, there shall be seventy-five percent (75%)
foliage cover of the specified species planted as measured from five (5') directly
overhead. No more than ten percent (10%) of the species noted on the site may be
weedy species as defined by Article III, Section 20-41 of the Code of the City. 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 two (2) growing seasons from the date of completion. 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.
5, The Developer shall delineate the Development's property
boundary adjacent to all Limits of Development as defined by Article V, Section 5.1.2 of
the Land Use Code, including boundaries around wetlands that are to be undisturbed,
with orange construction fence prior to any type of construction, including overlot
grading.
14
6. Fueling facilities shall be located at least one hundred (100) feet
from 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.
7. Prior to the commencement of any development activities within the
Limits of Development, the Developer shall relocate or eradicate any prairie dogs
inhabiting any portions of the site using City -approved methods as set forth in Chapter 4
of the City Code. If prairie dogs are present fumigation is best done between late April
and early June and relocation shall occur prior to March 1 or after May 31 of any given
year.
8. The Developer shall construct a 0.51-acre island in Pond 2 of the
Hearthfire P.U.D. First Filing and complete the associated grading prior to the issuance
of more than nineteen (19) building permits in Phase 1, and prior to the issuance of any
building permits in either Phase 2 or Phase 3 of this Development.
9. Any portion of the wetlands within the 2.21-acre area between the
existing edge of the wetlands and the new high water level of Pond 2 that is disturbed
during construction of the island in Pond 2 of the Hearthfire P.U.D. First Filing and the
associated grading shall be covered with the wetland seed bed topsoil to a depth of six
(6) inches and shall be reseeded with a wetland seed mix, all in accordance with the
approved Wetland Mitigation Plan.
H. Development Construction Permit
1. The Developer shall apply for and obtain a Development
Construction Permit for this Development, in accordance with Division 2.6 of the Land
Use Code (or Section 29-12 of the Transitional Land Use Regulations, if applicable),
prior to the Developer commencing construction. The Developer shall pay the required
fees for said Permit and construction inspection, and post security to guarantee
completion of the public improvements required for this Development, prior to issuance
of the Development Construction Permit.
Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance
guarantee and a five-year repair guarantee covering all errors or omissions in the
design and/or construction of the public improvements required for this Development,
which guarantees shall run concurrently and shall commence upon the date of
completion of the public improvements and acceptance thereof by the City. More
specific elements of these guarantees are noted in Exhibit "C." Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section
3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use
15
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 City
associated with this Development are in compliance with all environmental protection
and anti -pollution haws, rules, regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection Agency Regulations at
40 C.F.R., Part 261, and that such portions of the Property as are dedicated to the City
pursuant to this Development, are in compliance with all such requirements pertaining
to the disposal or existence in or on such dedicated property of any hazardous
substances, pollutants or contaminants, as defined by the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, and
regulations promulgated thereunder. The Developer, for itself and its successor(s) in
interest, does hereby indemnify and hold harmless the City from any liability whatsoever
that may be imposed upon the City by any governmental authority or any third party,
pertaining to the disposal of hazardous substances, pollutants or contaminants, and
cleanup necessitated by leaking underground storage tanks, excavation and/or backfill
of hazardous substances, pollutants or contaminants, or environmental cleanup
responsibilities of any nature whatsoever on, of, or related to any property dedicated to
the City in connection with this Development, provided that such damages or liability are
not caused by circumstances arising entirely after the date of acceptance by the City of
the public improvements constructed on the dedicated property, except to the extent
that such circumstances are the result of acts or omissions of the Developer. Said
indemnification shall not extend to claims, actions or other liability arising as a result of
any hazardous substance, pollutant or contaminant generated or deposited by the City,
its agents or representatives, upon portions of the Property dedicated to the City in
connection with this Development. The City agrees to give notice to the Developer of
any claim made against it to which this indemnity and hold harmless agreement by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice of any such claim to the Developer within ninety (90) days after the City first
receives a notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
L. The Developer acknowledges and agrees that the City, as the owner of
any adjacent property (the "City Property") on which off -site improvements may be
constructed, or that may be damaged by the Developer's activities hereunder, expressly
retains (and does not by this Development Agreement waive) its rights as property
owner. The City's rights as owner may include without limitation those rights associated
with the protection of the City Property from damage, and/or the enforcement of
4
Regulations, as applicable. Notwithstanding the provisions of Paragraphs III (H) and (1)
of this Agreement to the contrary, the obligations of the Developer pursuant to this
paragraph and Exhibit "C" may not be assigned or transferred to any other person or
entity unless the warranted improvements are completed by, and a letter of acceptance
of the warranted improvements is received from the City by, such other person or entity.
III. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer it accordance with the City's "Work Area Traffic Control Handbook"
and shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of
waste material, rubbish, or building materials caused by the Developer's operation, or
the activities of individual builders and/or subcontractors; shall remove such rubbish as
often as necessary, but no less than daily and; at the completion of the work, shall
remove all such waste materials, rubbish, tools, construction equipment, machinery,
and surplus materials from the public right-of-way. The Developer further agrees to
maintain the finished street surfaces so that they are free from dirt caused by the
Developer's operation or as a result of building activity. Any excessive accumulation of
dirt and/or construction materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until the problem is corrected
to the satisfaction of the City Engineer. If the Developer fails to adequately clean such
streets within two (2) days after receipt of written notice, the City may have the streets
cleaned at the Developer's expense and the Developer shall be responsible for prompt
payment of all such costs. The Developer also agrees to require all contractors within
the Development to keep the public right-of-way clean and free from accumulation of
dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing
operations when winds are of sufficient velocity to create blowing dust which, in the
inspector's opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements
or obligations may be shown on the Final Development Plan Documents, or any
documents executed in the future that are required by the City for the approval of an
amendment to a development plan, and the City may withhold (or to the extent
permitted by law, revoke) such building permits and certificates of occupancy as it
deems necessary to ensure performance in accordance with the terms of this
Development Agreement. The processing and "routing for approval" of the various
16
development plan documents may result in certain of said documents carrying dates of
approval and/or execution that are later than the date of execution of this Development
Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of
this Agreement. The Developer hereby waives any right to object to any such
discrepancy in dates.
E. Nothing herein contained shall be construed as a waiver of any
requirements of the City Code, Land Use Code, or Transitional Land Use Regulations
(as applicable) and the Developer agrees to comply with all requirements of the same.
F. In the event the City waives any breach of this Agreement, no such waiver
shall be held or construed to be a waiver of any subsequent breach hereof.
G. All financial obligations of the City arising under this Agreement that are
payable after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins City
Council, in its discretion.
H. This Agreement shall run with the Property and shall be binding upon and
inure to the benefit of the parties hereto, their respective personal representatives,
heirs, successors, grantees and assigns. It is agreed that all improvements required
pursuant to this Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest within the meaning
of this paragraph shall specifically include, but not be limited to, a conveyance or
assignment of any portion of the Developer's legal or equitable interest in the Property,
as well as any assignment of the Developer's rights to develop the Property under the
terms and conditions of this Agreement. The written assignment to the homeowner's
association created for the Development of all maintenance and ownership obligations,
following completion of the Development and approval and acceptance by the City,
except for the Developer's obligation for maintenance and repair pursuant to Paragraph
II(I)(1) of this Agreement, shall relieve the Developer from such obligations.
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
17
Agreement as continuing and require specific performance or; (c) avail itself of any
other remedy at law or equity.
K. In the event of the default of any of the provisions hereof by either party
which shall require the party not in default to commence legal or equitable action
against said defaulting party, the defaulting party shall be liable to the non -defaulting
party for the non -defaulting party's reasonable attorney's fees and costs incurred by
reason of the default. Nothing herein shall be construed to prevent or interfere with the
City's rights and remedies specified in Paragraph III.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement
shall not be construed as or deemed to be an agreement for the benefit of any third
party or parties, and no third party or parties shall have any right of action hereunder for
any cause whatsoever.
M. It is expressly understood and agreed by and between the parties hereto
that this Agreement shall be governed by and its terms construed under the laws of the
State of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set
forth below; and such notice or other communication shall be deemed given when so
hand -delivered or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
If to the Developer: Hearthfire, Inc.
c/o Tom Kennedy
11941 W. 48`h Avenue, Suite 200
Wheatridge, CO 80033
With a copy to: Lucia A. Liley, Esq.
Liley, Rogers & Martell, L.L.C.
300 S. Howes St.
Fort Collins, Co 80521
18
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.
0. 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.
1 ' •k
City Clerk
APPROVED AS TO,CONTENT:
0
City
TO FORM:
Deputy
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation By: n � _ I � L-4�n
City Man er
19
ATTEST:
By: --
Ardith White, Secretary
DEVELOPER:
Hearthfire, In� a C�or corporation
By:
Tom K nnedy, President
20
EXHIBIT "A"
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.
21
EXHIBIT "B"
Not Applicable
MA
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.
23
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.
24
restrictions, limitations and requirements associated with activities on the City Property
by the Developer as an easement recipient.
II. Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements associated
with Phase 1 of this Development, as shown on the Final Development Plan
Documents, shall be completed by the Developer in accordance with said Documents
prior to the issuance of more than 7 building permits in Phase 1 of 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 said 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.
All on -site and off -site storm drainage improvements associated with Phase 2 of this
Development, as shown on the Final Development Plan Documents, shall be completed
by the Developer in accordance with said Documents prior to the issuance of more than
9 building permits in Phase 2 of 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 said 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.
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
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certification shall result in the withholding of the issuance of additional building permits
and/ or certificates of occupancy until such drainage facilities are repaired to the
operational function and structural integrity which was approved by the City.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the 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 $ 21,150.00 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 or the
erosion control provisions of the Criteria 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 III.D of this Agreement, as it deems necessary in order to ensure
that the Developer installs and maintains the erosion control measures throughout the
build -out of this Development.
4. It is important that all lots be graded to drain in the configuration
shown on the Final Development Plan Documents. For this reason the following
additional requirements shall be followed for all buildings/structures on all lots:
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.
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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 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. The contractor shall re -seed and restore all areas that
are disturbed during construction of the off -site storm drainage improvements in
accordance with the Final Development Plan Documents promptly following
construction. The Developer shall ensure that no negative impact occurs to the existing
wetlands, except for the wetland removal and mitigation authorized by Paragraphs
II.G.2. and 3 of this Agreement, during the construction of the water quality pond
facilities. No grading shall be done outside of the approved areas as shown on the
Final Development Plan Documents.
7. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed outside of the public right-of-way including the
water quality ponds located in the open space area.
8. Some lots in this Development abut certain storm drainage facilities
and it is agreed that it is of the utmost importance that no storm water from said facilities
enters houses built on these lots. In order to provide the assurance that houses built on
these lots are constructed at an elevation that said storm water cannot enter, the Final
Development Plan Documents contain specifications for the minimum elevation for any
opening to each house. Prior to the issuance of a certificate of occupancy for Lots 33
through 38 and lots 45 through 47; the Developer shall provide certification from a
professional engineer licensed in Colorado that the lowest opening to any such house is
at or above the minimum elevation required on the Final Development Plan Documents.
Said certification is in addition to, and may be done in conjunction with, the lot
certification described in Paragraph II.C.7. above.
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 this Development, including both signing and striping related to the Developer's
internal street operations and the signing and striping of any adjacent or adjoining local,
collector or arterial streets that is made necessary because of the Development.
3. 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 29-13 and 29-14 of the Transitional Land
Use Regulations of the City.
4. a. The Developer shall be responsible for payment of
$32,743.40 as its proportionate share, based on traffic generation of the Development,
of the City's costs for the Northeast Area Overlay Project (NAOP) as estimated for the
Hearthfire PUD 15t filing and the Development in that document entitled "Interim
Improvements for County Roads 9E and 11" prepared by the Fort Collins Engineering
Department and dated February 11, 2002 to be paid in conjunction with the issuance of
residential building permits in the Development as described hereinbelow.
b. The issuance of each residential building permit for the 56 lots of the
Development shall require the payment of a fee in the amount of $584.71 (NAOP Fee),
which is equal to 1/56 of the Developer's obligation for the Development. If any NAOP
Fee is paid by the Developer after the year 2003, the Developer agrees to pay the
amount specified above plus an additional amount to be calculated as described below
to recognize the effect of inflation, with said amount to be increased each year until
payment is completed in full. Upon payment of every NAOP Fee required under this
Subsection, the Developer's obligation to pay a proportionate share of the NAOP costs
in conjunction with the Development shall be satisfied.
C. The inflation factor (Inf. Fac.) for each year's increase in the amount of the NAOP
Fee shall be calculated using the construction cost index for Denver as published in the
Engineering News Record (ENR) for March 2002, as the base index (I -base) and the
same index published in the ENR for the January in each succeeding year immediately
preceding payment (I -year of payment). The formula for calculating said inflation factors
shall be as follows:
Inf. Fac. _ (1-year of payment) — (1-base)
(1-base)
The amount to be added to the NAOP Fee to compensate for inflation shall be equal to
the amount of the NAOP Fee times the inflation factor. Said amounts added to
compensate for inflation shall not reduce the total (principal) amount due.
5. The Developer agrees to be responsible for payment of $20,436.75
which is to be paid on a per lot basis in conjunction with the issuance of residential
building permits in the Development for the sole purpose of making improvements to the
intersection of State Highway 1 and Douglas Road (the "County Intersection"). The
issuance of each residential building permit for the 56 lots of the Development shall
require the payment of a fee in the amount of $364.95 (the "County Intersection Fee"),
which is equal to 1/56 of the Developer's obligation for the Development. Upon receipt
of each County Intersection Fee, the City shall be responsible for its prompt delivery to
the County to be placed in a reserve account and used solely for improvements to the
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County Intersection. Upon payment of every County Intersection Fee required under
this Subsection, the Developer's obligation for improvements to the County Intersection
in conjunction with the Development shall be satisfied.
6. Prior to the issuance of a total of 91 building permits in the
Hearthfire PUD First and Second Filings (at least 78 of which building permits have
been heretofore been issued in the 1st Filing) the Developer is obligated to construct a
collector street to connect Hearthfire Drive to County Road 11 if this connection has not
already been built. This street system has been designed and approved as a part of the
Richards Lake PUD, Filing One. Any revisions necessary to the Richards Lake PUD,
Filing One plans for phasing changes and updates to current standards that may be
required (if 3 or more years have passed since the plans were approved) are the
responsibility of the Developer. All changes shall be reviewed and approved prior to
starting any work shown by those plans. In the event that the Developer constructs the
collector street from Hearthfire Drive to County Road 11, it shall be eligible to file a
repay agreement against the adjacent property owners in accordance with Section
3.3.2(F) of the City's Land Use Code.
7. In accordance with Section 24-95 of the City Code the Developer is
responsible for constructing east one-half of County Road 13 adjacent to the
Development prior to the issuance of the first building permit. Notwithstanding the
foregoing, but in accordance with the condition of approval placed on this project by the
Planning and Zoning Board and in lieu of the requirements of Section 24-95 if the City
Code, County Road 13 adjacent to the Development shall not be constructed by the
Developer, but the Developer shall deliver a cash "contribution in aid" to the City in an
amount sufficient to guarantee completion of County Road 13 adjacent to the
Development to meet City street design standards. The amount of said contribution in
aid shall be the estimated cost to construct said improvements, including but not limited
to the future inlet(s), stormdrain line(s), culvert(s), pavement, subgrade, curb, gutter,
sidewalks, sidewalk ramps, and the street trees, 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 for this Development and shall be held by
the City for the sole purpose of constructing the east one-half of County Road 13
adjacent to the Development. Upon deposit of the contribution in aid with the City, the
Developer's obligation to construct County Road 13 adjacent to the Development shall
be satisfied.
Except as provided in the following paragraphs, 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.
The improvements to County Road 13 adjacent to the Development shall be
constructed by the City at such time that the City deems the improvements to be
necessary or at :such time as improvements are made by third parties to adjacent
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