HomeMy WebLinkAboutWILLOW BROOK - Filed DA-DEVELOPMENT AGREEMENT - 2004-06-18 (2)DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this Ti+ day of %wc�cs i
2001, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; and Village Homes of Colorado, 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:
Willow Brook, being a tract of land located in the Southeast Quarter of Section 4,
Township 6 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
1
the date the City Council hears on first reading the appropriation ordinance for the project,
which is presently estimated to be September 1, 2001. The City agrees to notify the
Developer of such reading when it is scheduled and to give the Developer a copy of the
bid cost two weeks prior to such City Council hearing. It is understood by the Developer
and the City that failure by the Developer to remit said local street portion by this date may
result in the City deciding not to construct the Kechter Road Improvements. This provision
shall not be construed as creating any obligation on the part of the City to enter into such
an agreement regarding the Kechter Road Improvements and the City may upon its sole
discretion, decide not to construct the Kechter Road Improvements. If the City decides not
to construct the Kechter Road Improvements, the City will release any remittance received
from the Developer, whereupon the Developer shall then be obligated to construct Kechter
Road as shown on the Final Development Plan Documents. In the event that the City has
not constructed Kechter Road by September 1, 2002, the Developer shall have the right
to construct its portion of the road as shown on the Final Development Plan Documents.
If the Developer constructs Kechter Road, the City agrees to expand reimbursement rights
to the Developer as specified in paragraph III.D.1 to include Kechter Road for those
portions of said street abutting the Property as shown on the Final Development Plan
Documents. Reimbursement for Kechter Road shall be for oversizing the street from local
(access) standards to minor arterial standards for the oversized portion of the roadway that
does not need to be removed and replaced with the full -width widening of Kechter Road
by future development.
5. As shown on the Final Development Plan Documents, the
Development contains certain roads extending to the periphery of the Development. Both
parties agree that it would be beneficial if construction of these road improvements is
delayed until such time as the property (or properties) adjoining such roads develops and
needs the construction of such roads to such property or properties. In satisfaction of the
Developer's obligation to construct such roads, the Developer shall have the option to pay
for the future construction of said improvements. The amount of said payment shall be
equal to the estimated cost to construct said improvements, which estimate shall be
prepared by the Developer and approved by the City. This payment shall be in full
satisfaction of the Developer's obligation for such roads. In the event the Developer
constructs any of the improvements and such improvements are completed by the
Developer and accepted by the City, the Developer shall be entitled to a prompt
reimbursement equal to the principal paid to the City for that portion or, in the event
payment for such street portion has not then been made, the Developer shall be relieved
of its obligation to make payment for such street portion. The improvements for which the
above -referenced payment shall be made are as described below:
(A) Rock Creek Drive and Big Dipper Drive east of Northern Lights Drive,
and Northern Lights Drive north of Rock Creek Drive, paid to the City
prior to any building permits in Phase 1 of the Development;
(B) Quasar Way south of Full Moon Drive, and Eclipse Lane west of
Jupiter Drive, paid to the City prior to any building permits in Phase 3
10
of the Development; and
(C) Eclipse Lane east of Northern Lights Drive, paid to the City prior to
any building permits in Phase 4 of the Development.
6. Prior to the release of any building permits in Phase 1, the Developer
shall have completed offsite construction of Rock Creek Drive west of Cambridge Avenue
to Ziegler Road, and construction of the temporary access road along Cinquefoil Drive from
south of Little Dipper Drive to Kechter Road as shown on the Final Development Plan
Documents.
7. The Developer shall not be issued a building permit for Lots 52, 53,
or 95 in Phase 2 of the Development until the temporary turnaround easement on these
lot is vacated and the street improvements to Observatory Drive in front of these lots are
completed including curb, gutter, and sidewalk in accordance with City standards.
8. The Developer shall not be issued a building permit for Lots 39 and
40 in Phase 2 of the Development until the temporary turnaround easement on this lot is
vacated and the street improvements to Galileo Drive in front of this lot are completed
including curb, gutter, and sidewalk in accordance with City standards.
9. The Developer shall not be issued a building permit for Lot 147 of the
Development and no access shall be allowed off of Quasar Way from Lot 147 of the
Development with Phase 2 construction as shown on the Final Development Plan
Documents for this development until Quasar Way has been completed with either
improvements along the full frontage of the lot with a City approved temporary turnaround,
or a permanent cul-de-sac, or alternatively, until Quasar Way has been extended to
become a through street in accordance with City standards. If a temporary turn around is
provided, all necessary easements shall be provided prior to acceptance of such
turnaround and the issuance of any building permit on Lot 147 and allowance of access
off of Quasar Way to Lot 147.
10. Prior to the release of any building permits in Phase 2, or August 1,
2002, whichever is earlier the Developer shall have completed construction of the following
in accordance with the Final Development Plan Documents:
(A) All mid -block pedestrian connections located in Phase 1 (internal to
Parcels J, Q, AAA, and ZZ);
(B) The offsite asphalt pedestrian path connection along the future
extension of Big Dipper Drive; and
(C) The pedestrian path that runs north -south along the Development,
east of Northern Lights Drive from Rock Creek Drive to Kechter Road.
11
11. Prior to the release of more than thirty-one (31) building permits in
Phase 2, the Developer shall have completed construction of all mid -block pedestrian
connections located in Phase 2 (internal to Parcels RR, SS, LL, MM, O, P, and S) as
shown on the Final Development Plan Documents.
12. Prior to the release of more than twenty (20) building permits in Phase
3, the Developer shall have completed construction of the mid -block pedestrian connection
located in Phase 3 internal to Parcel S as shown on the Final Development Plan
Documents.
13. Prior to the release of more than sixteen (16) building permits in
Phase 4, the Developer shall have completed construction of all mid -block pedestrian
connections located in Phase 4 (internal to Parcels T and U) as shown on the Final
Development Plan Documents.
14. No lots that front on the collector roadways, (Cambridge Drive and
Rock Creek Drive) shall have vehicular (driveway) access off of said collector roadways.
15. With the exception of development on Parcel I, no lot that has rear
frontage to a private drive and front frontage to a residential street shall be allowed to have
vehicular (driveway) access off of said residential street.
16. All phases must be constructed in numeric succession and no
construction can occur on any given phase until improvements to the proceeding phase
have been completed. No building permits will be issued within Phases 2, 3, and 4 until
the streets and utility facilities within the preceding Phases have been completed in
accordance with Section I.C. of this agreement.
17. No building permits will be issued for any construction on Parcels A,
B, D, and E until utility plans for each respective parcel are approved and the street
improvements fronting each respective parcel are completed including curb, gutter, and
sidewalk in accordance with City standards.
18. The Developer is responsible for all costs for the initial installation of
traffic signing and striping for this Development related to the Development's local street
operations. In addition the Developer is responsible for all costs for traffic signing and
striping related to directing traffic access to and from the Development (e.g., all signing and
striping for a right turn lane into the Development site).
19. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
12
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 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
13
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.
G. Natural Resources
1. All seeded areas shall be inspected jointly by the Developer and the
City at the following specified intervals. Areas seeded in the spring shall be inspected for
required coverage the following fall not later than October 1. Areas seeded at any other
time shall be inspected the following two summers not later than August 1. The required
coverage for the first inspection shall be ten (10) viable live seedlings of the specified
species per 1000 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 Section 20-41
of the City Code.
a) 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.
b) The Developer shall warrant all seeded areas for two 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.
2. The Developer shall delineate the border of the 50' natural feature
buffer surrounding the existing Significant Cottonwood on the southwest edge of the site,
with orange construction fence prior to commencement of any type of construction,
including without limitation, over lot grading.
3. Fueling facilities shall be located at least one hundred (100) feet from
any significant tree, body of water, wetland, natural drainageway 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, runoff, or be washed into a body of water, wetland or
drainageway.
4. Prior to the commencement of any grading or other construction, any
prairie dogs inhabiting portions of the site within the Limits of Development (LOD) shall be
relocated or eradicated by the developer. City -approved methods or relocation or
eradication as set forth in Chapter 4 of the City Code shall be used, and, when applicable,
the methods shall be reviewed and approved by the Colorado Division of Wildlife. If prairie
14
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.
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.
I. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two (2)-year maintenance
guarantee and a five (5)-year repair guarantee covering all errors or omissions in the
design and/or construction of the public improvements required for this Development,
which guarantees shall run concurrently and shall commence upon the date of completion
of the public improvements and acceptance thereof by the City. More specific elements
of these guarantees are noted in Exhibit "C." Security for the maintenance guarantee and
the repair guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code, or
Section 29-14 of the Transitional Land Use Regulations, as applicable. Notwithstanding
the provisions of paragraphs III (H) and (1) of this Agreement to the contrary, the obligations
of the Developer pursuant to this paragraph and Exhibit "C" may not be assigned or
transferred to any other person or entity unless the warranted improvements are completed
by, and a letter of acceptance of the warranted improvements is received from the City by,
such other person or entity.
III. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and
shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of waste
material, rubbish, or building materials caused by the Developer's operation, or the
activities of individual builders and/or subcontractors; shall remove such rubbish as often
as necessary, but no less than daily and; at the completion of the work, shall remove all
such waste materials, rubbish, tools, construction equipment, machinery, and surplus
15
materials from the public right-of-way. The Developer further agrees to maintain the
finished street surfaces so that they are free from dirt caused by the Developer's operation
or as a result of building activity. Any excessive accumulation of dirt and/or construction
materials shall be considered sufficient cause for the City to withhold building permits
and/or certificates of occupancy until the problem is corrected to the satisfaction of the City
Engineer. If the Developer fails to adequately clean such streets within two (2) days after
receipt of written notice, the City may have the streets cleaned at the Developer's expense
and the Developer shall be responsible for prompt payment of all such costs. The
Developer also agrees to require all contractors within the Development to keep the public
right-of-way clean and free from accumulation of dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing operations
when winds are of sufficient velocity to create blowing dust which, in the inspector's
opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements or
obligations may be shown on the Final Development Plan Documents, or any documents
executed in the future that are required by the City for the approval of an amendment to
a development plan, and the City may withhold (or to the extent permitted by law, revoke)
such building permits and certificates of occupancy as it deems necessary to ensure
performance in accordance with the terms of this Development Agreement. The
processing and "routing for approval" of the various development plan documents may
result in certain of said documents carrying dates of approval and/or execution that are
later than the date of execution of this Development Agreement or the Memorandum Of
Agreement (if any) recorded to give record notice of this Agreement. The developer
hereby waives any right to object to any such discrepancy in dates.
E. 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
16
improvements are located on the Property. Assignment of interest within the meaning of
this paragraph shall specifically include, but not be limited to, a conveyance or assignment
of any portion of the Developer's legal or equitable interest in the Property, as well as any
assignment of the Developer's rights to develop the Property under the terms and
conditions of this Agreement.
I. In the event the Developer transfers title to the Property and is thereby
divested of all equitable and legal interest in the Property, the Developer shall be released
from liability under this Agreement with respect to any breach of the terms and conditions
of this Agreement occurring after the date of any such transfer of interest. In such event,
the succeeding property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material
element hereof. In the event that either party shall fail to perform according to the terms
of this Agreement, such party may be declared in default. In the event that a party has
been declared in default hereof, such defaulting party shall be given written notice
specifying such default and shall be allowed a period of ten (10) days within which to cure
said default. In the event the default remains uncorrected, the party declaring default may
elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as
continuing and require specific performance or; (c) avail itself of any other remedy at law
or equity.
K. In the event of the default of any of the provisions hereof by either party
which shall require the party not in default to commence legal or equitable action against
said defaulting party, the defaulting party shall be liable to the non -defaulting party for the
non -defaulting party's reasonable attorney's fees and costs incurred by reason of the
default. Nothing herein shall be construed to prevent or interfere with the City's rights and
remedies specified in Paragraph 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
17
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: Peter Benson
Division President
Village Homes, Northern Division
310 Lashley Street, Suite 108
Longmont, CO 80501
With a copy to: Donn Eley
President and Chief Operating Officer
Village Homes
6 West Dry Creek Circle
Littleton, CO 80120
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.
THE CITY OF FORT COLLINS, COLORADO,
a Municipal orporation
By „al
City Man er
M.
City Clerk
APPROVED AS TO CONTENT:
C
City Engine r
APPRO AS TO FORM:
Deputy City Attorney
DEVELOPER:
Village Flome$ of Colorado, Inc., a Colorado
0
19
B. BerVson, Oivision President
activities" shall include, but not be limited to, the following: (1) the actual construction of
improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or
appearance of the Property caused by, or on behalf of, the Developer with the intent to
construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities,
streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the
approved utility plans and in full compliance with the standards and specifications of the
City on file in the office of the City Engineer at the time of approval of the utility plans
relating to the specific utility, subject to a three (3) year time limitation from the date of
execution of this Agreement. In the event that the Developer commences or performs any
construction pursuant hereto after the passage of three (3) years from the date of
execution of this agreement, the Developer shall resubmit the utility plans to the City
Engineer for reexamination. The City may then require the Developer to comply with the
approved standards and specifications of the City on file in the office of the City Engineer
at the time of the resubmittal.
C. No building permit for the construction of any structure within the Property
shall be issued by the City until the public water lines and stubs to each lot, fire hydrants,
sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and
pavement with at least the base course completed) serving such structure have been
completed and accepted by the City. No building permits shall be issued for any structure
located in excess of six hundred and sixty feet (660') from a single point of access, unless
the structures contain sprinkler systems that are approved by the Poudre Fire Authority.
D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets
described on Exhibit 'A," attached hereto, shall be installed within the time and/or
sequence required on Exhibit "A." If the City Engineer has determined that any water lines,
sanitary sewer lines, storm drainage facilities and/or streets are required to provide service
or access to other areas of the City, those facilities shall be shown on the utility plans and
shall be installed by the Developer within the time as established under "Special
Conditions" in this document.
E. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this Development as shown on the Final Development Plan
Documents and other approved documents pertaining to this Development on file with the
City.
F. Street improvements shall not be installed until all utility lines to be placed
therein have been completely installed, including all individual lot service lines leading in
and from the main to the property line.
G. The installation of all utilities shown on the Final Development Plan
E
acuarrv_N
1. Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
3. Schedule of street improvements to be installed out of sequence.
Not Applicable
4. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
20
EXHIBIT "B"
Not Applicable
21
EXHIBIT "C"
Refer to the Final Plat for this Development
22
Documents shall be inspected by the Engineering Department of the City and shall be
subject to such department's approval. The Developer agrees to correct any deficiencies
in such installations in order to meet the requirements of the plans and/or specifications
applicable to such installation. In case of conflict, the Final Development Plan Documents
shall supersede the standard specifications.
H. Public easements shall be provided for access, utilities and drainage as
required by the design and location of the privately maintained drives as reflected on the
plans. Alignment and grades on said privately maintained drives shall allow for safe
access, ingress and egress by owners, visitors, the general public and public safety
officials and equipment, as approved by the City Engineer.
I. All storm drainage facilities shall be so designed and constructed by the
Developer as to protect downstream and adjacent properties against injury and to
adequately serve the Property (and other lands as may be required, if any). The Developer
shall meet or exceed the minimum requirements for storm drainage facilities as have been
established by the City in its Drainage Master Plans and Design Criteria. The Developer,
for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City
from any and all claims that might arise, directly or indirectly, as a result of the discharge
of injurious storm drainage or seepage waters from the Property in a manner or quantity
different from that which was historically discharged and caused by the design or
construction of the storm drainage facilities, except for (1) such claims and damages as
are caused by the acts or omissions of the City in maintenance of such facilities as have
been accepted by the City for maintenance; (2) errors, if any, in the general concept of the
City's master plans (but not to include any details of such plans, which details shall be the
responsibility of the Developer); and (3) specific written or otherwise documented directives
that may be given to the Developer by the City. The City agrees to give notice to the
Developer of any claim made against it to which this indemnity and hold harmless
agreement by the Developer could apply, and the Developer shall have the right to defend
any lawsuit based on such claim and to settle any such claim provided Developer must
obtain a complete discharge of all City liability through such settlement. Failure of the City
to give notice of any such claim to the Developer within ninety (90) days after the City first
receives a notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim. Approval of and acceptance by the City of any
storm drainage facility design or construction shall in no manner be deemed to constitute
a waiver or relinquishment by the City of the aforesaid indemnification. The Developer
shall engage a Colorado licensed professional engineer to design the storm drainage
facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be
intended for the benefit of the City, and subsequent purchasers of property in the
Development.
J. The Developer shall pay storm drainage basin fees in accordance with
Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for credit
3
or City repayment under the provisions of Chapter 26 are described together with the
estimated cost of the improvements on the attached Exhibit "B," which improvements, if
applicable, shall include right-of-way, design and construction costs. See Section II.C,
Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions.
K. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City of Fort Collins.
L. The Developer specifically represents that to the best of its knowledge all
portions of the Property dedicated (both in fee simple and as easements) to the City
associated with this Development are in compliance with all environmental protection and
anti -pollution laws, rules, regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40
C.F.R., Part 261, and that such portions of the Property as are dedicated to the City
pursuant to this Development, are in compliance with all such requirements pertaining to
the disposal or existence in or on such dedicated property of any hazardous substances,
pollutants or contaminants, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer, for itself and its successor(s) in interest, does hereby
indemnify and hold harmless the City from any liability whatsoever that may be imposed
upon the City by any governmental authority or any third party, pertaining to the disposal
of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking
underground storage tanks, excavation and/or backfill of hazardous substances, pollutants
or contaminants, or environmental cleanup responsibilities of any nature whatsoever on,
of, or related to any property dedicated to the City in connection with this Development,
provided that such damages or liability are not caused by circumstances arising entirely
after the date of acceptance by the City of the public improvements constructed on the
dedicated property, except to the extent that such circumstances are the result of acts or
omissions of the Developer. Said indemnification shall not extend to claims, actions or
other liability arising as a result of any hazardous substance, pollutant or contaminant
generated or deposited by the City, its agents or representatives, upon portions of the
Property dedicated to the City in connection with this Development. The City agrees to give
notice to the Developer of any claim made against it to which this indemnity and hold
harmless agreement by the Developer could apply, and the Developer shall have the right
to defend any lawsuit based on such claim and to settle any such claim provided Developer
must obtain a complete discharge of all City liability through such settlement. Failure of the
City to give notice of any such claim to the Developer within ninety (90) days after the City
first receives a notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
CI
II. Special Conditions
A. Water Lines
1. Notwithstanding anything in this Agreement to the contrary, the
Development will be provided water service from the Fort Collins -Loveland Water District
("Water District"), and all water line improvements shall be installed and inspected in
accordance with the Water District's regulations and the approved plans therefor.
B. Sewer Lines
1. Notwithstanding anything in this Development Agreement to the
contrary, the Property will be provided sanitary sewer service from the South Fort Collins
Sanitation District ("Sewer District"), and all sewer line improvements shall be installed and
inspected in accordance with the Sewer District's regulations and the approved plans
therefor.
C. Storm Drainage Lines and Appurtenances
1. The Final Development Plan Documents for this Development call for
the phasing of the construction of storm drainage improvements. The Developer shall
complete these improvements sequentially in accordance with said Final Development
Plan Documents starting with Phase 1 and ending with Phase 4. The sequential
completion of these improvements shall necessitate that the required overall site drainage
certification be done in phases in accordance with the following requirements:
a) All on -site and off -site storm drainage improvements
associated with Phase 1 of this Development, as shown on the Final Development Plan
Documents, shall be completed by the Developer in accordance with said Final
Development Plan Documents prior to the issuance of more than 24 building permits in
Phase 1. Phase 1 construction shall include the overlot grading of the entire development
site. Following the overlot grading of the entire site, all the disturbed areas in Phases 2
through 4 that are slated for future development shall be temporarily seeded and mulched.
b) 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 Final
Development Plan Documents prior to the issuance of more than 30 single family building
permits in Phase 2 of the Development. No building permits shall be issued in the
commercial site on Parcel A shown as being part of Phase 2 of this Development prior to
the completion of all drainage improvements associated with this phase of development.
c) All on -site and off -site storm drainage improvements
associated with Phase 3 of this Development, as shown on the Final Development Plan
Documents, shall be completed by the Developer in accordance with said Final
5
Development Plan Documents prior to the issuance of more than 21 building permits in
Phase 3 of the Development.
d) All on -site and off -site storm drainage improvements
associated with Phase 4 of this Development, as shown on the Final Development Plan
Documents, shall be completed by the Developer in accordance with said Final
Development Plan Documents prior to the issuance of more than 16 building permits in
Phase 4 of the Development.
e) In all cases, completion of improvements shall include the
certification by a professional engineer licensed in Colorado that the drainage facilities
which serve any particular phase of Development have been constructed in conformance
with said Final Development Plan Documents. Said certification shall be submitted to the
City at least two weeks prior to the date of issuance of additional building permits in each
phase.
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 approved plans, the City shall give written notice to the Developer of all
items which do not comply with the approved plans. 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 approved plans. Failure to maintain the
structural integrity and operational function of said drainage facilities following certification
shall result in the withholding of the issuance of additional building permits and/ or
certificates of occupancy until such drainage facilities are repaired to the operational
function and structural integrity which was approved 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 $112,575.00 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
0
deposit(s) as may be necessary to pay all costs incurred by the City in undertaking the
administration, construction, and/or installation of the erosion control measures required
by said plans and the Criteria. In addition, the City shall have the option to withhold
building permits and certificates of occupancy, as stated in Paragraph III.D of this
Agreement, as it deems necessary in order to ensure that the Developer installs and
maintains the erosion control measures throughout the build -out of this Development.
4. It is important that all lots be graded to drain in the configuration
shown on the Final Development Plan Documents. For this reason the following additional
requirements shall be followed for building on all lots:
Prior to the issuance of a certificate of occupancy for any lot or building the
Developer shall provide the City with certification that the lot and or the
building has been graded correctly. This grading certification shall
demonstrate that the lot or building Finish Floor elevation has been built in
accordance with the elevation specified on the Final Development Plan
Documents. The certification shall also show that the minimum floor
elevation or minimum opening elevation for any building constructed is in
compliance with the minimum elevation as required on the Final
Development Plan Documents. The certification shall demonstrate as well
that any minor swales adjacent to the building or on the lot have been graded
correctly and in accordance with the grades shown on the Final Development
Plan Documents. The certification shall also show that the elevations of all
corners of the lot are in accordance with the elevations shown on the Final
Development Plan Documents. Said certification shall be completed by a
Colorado licensed professional engineer and shall be submitted to the City
at least two weeks prior to the date of issuance of the desired certificate of
occupancy.
5. The Developer shall obtain the City's prior approval of any changes
from the Final Development Plan Documents in grade elevations and/or storm drainage
facility configuration that occur as a result of the construction of houses and/or
development of lots, whether by the Developer or other parties. The City reserves the right
to withhold the issuance of building permits and certificates of occupancy for this
Development until the City has approved 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 adjoining properties to the
east of the Development during the construction of the detention pond facilities on the east
side of the Development. No grading shall be done outside of the approved areas as
7
shown on the Final Development Plan Documents.
7. The drainage design for this Development provides for the evacuation
of storm drainage runoff in a reasonable amount of time out of the detention facilities and
into the drainage outfall system. If, during or within 2 years after construction and
acceptance of the detention facilities associated with this Development, surfacing or
standing water conditions persist in these facilities; and if such conditions are beyond what
can be expected in accordance with the approved stormwater design, the Developer shall
promptly upon such discovery install an adequate dewatering system in the detention
facilities. Such a system shall be reviewed and approved by the City prior to installation.
8. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed outside of the public right-of-way, except for the
storm drainage lines that are partially serving this development along Rock Creek Drive
and Kechter Road, which lines shall be maintained in their entirety by the City following
certification of these lines by the Developer and their acceptance by the City.
9. The Developer shall obtain a permit to allow discharge of drainage
water into the North Poudre Irrigation Company's ditch prior to the recordation of the
subdivision plat for the Property. Such permit shall include the Developer's Agreement to
indemnify and hold harmless the North Poudre Irrigation Company ("Irrigation Company")
and the City from any claims, damages, injury or cause of action against the Irrigation
Company or the City by the Developer, or its successors and assigns, in relation to the
normal operation and use of the ditch by the Irrigation Company, and the Developer shall
further indemnify and hold harmless the City and the Irrigation Company from any such
claims, damages, injury or cause of action by third parties which result from stormwater
volumes added to the ditch by the Developer in excess of historic flows except as such
claims, damages, injury or cause of action are as a result of a negligent act or acts of the
Irrigation Company.
10. In accordance with the City's McClelland Master Drainage Plan
Update and the Final Development Plan Documents, the 100-year developed stormwater
flow from the Development shall be detained, and these developed flows shall be released
into the Irrigation Company's ditch at a rate not to exceed 0.5 cfs per acre.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Cambridge
Avenue and Rock Creek Drive for those portions of said street abutting the Property as
shown on the Final Development Plan Documents. Reimbursement for Cambridge Avenue
shall be for oversizing the street from local (access) standards to collector standards for
the oversized portion of the roadway that does not need to be removed and replaced with
the full -width widening of Cambridge Avenue by future development. Reimbursement for
Rock Creek Drive shall be for oversizing from local (access) standards to collector
0
standards. The City shall make reimbursement to the Developer for the aforesaid
oversized street improvements in accordance with Section 24-112 of the Code of the City.
The Developer agrees and understands that the City shall have no obligation to make
reimbursement payments for street oversizing unless funds for such payments shall first
have been budgeted and appropriated from the Street Oversizing Fund by the City Council,
and the Developer further understands that to the extent that funds are not available for
such reimbursement, the City may not, in the absence of the Developer's agreement,
require the construction, at the Developer's expense, of any oversized portion of streets
not reasonably necessary to offset the traffic impacts of the Development. The Developer
does hereby agree to construct the aforesaid oversized street improvements with the
understanding that the Developer may not be fully reimbursed by the City for the cost of
such construction. The Developer further agrees to accept payment in accordance with
Section 24-112 (d) of the Code of the City as full and final settlement and complete accord
and satisfaction of all obligations of the City to make reimbursements to the Developer for
street oversizing expenses except in circumstances where a mistake has been made in the
calculation of a payment amount. It is anticipated by the City that the City's
reimbursement, in accordance with Section 24-112 (d), would not be less than fifty percent
(50%) of the Developer's actual expenses incurred and will be calculated in accordance
with the formula as set forth in Section 24-112 (d).
2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II(D) are "City improvements" (as
defined below) and, as such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the sum of Thirty Thousand
Dollars ($30,000), the contract for the construction of the same must be submitted to a
competitive bidding process resulting in an award to the lowest responsible bidder; and
evidence must be submitted to the City prior to the commencement of the work showing
that the award was given to the lowest responsible bidder. If the cost of such
improvements exceeds Fifty Thousand Dollars ($50,000), the contract for the construction
of the improvements must be insured by a performance bond or other equivalent security.
For purposes of this paragraph, the term "City improvements" shall mean either (1) existing
improvements owned by the City that are to be modified or reconstructed, or (2) any
improvements funded in whole or in part by the City.
3. No street oversizing reimbursement shall be due the Developer for Big
Dipper Drive and Cinquefoil Lane.
4. The City is contemplating construction of Kechter Road from Ziegler
Road to Strauss Cabin Road ("Kechter Road Improvements") as a City Street Oversizing
Capital Improvement Project. The Kechter Road Improvements require cooperation
between the City and the Developer as well as other neighboring properties in the area in
order for the City to construct said improvements. In lieu of the Developer's obligation to
construct Kechter Road adjacent to the Development, the Developer shall remit to the City
in cash the Developer's estimated local street portion of Kechter Road as reasonably
determined by the City. The Developer's remittance of said local street portion is due by
Es]