HomeMy WebLinkAboutHOMESTEAD PUD SECOND - Filed DA-DEVELOPMENT AGREEMENT - 2004-11-12FOSSIL CREEK AREA
DEVELOPMENT AGREEMENT
THIS AGRE=EMENT, is made and entered into this tij day of
200AI by and between the CITY OF FORT COLLINS, COLORADO, a unicipal
Corporation, hereinafter referred to as the "City"; and Legacy Development Corporation,
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:
A parcel of land known as Homestead P.U.D. Phase II, being a "Replat of Tract
D, The Homestead P.U.D.", located in the Northeast Quarter of Section 8,
Township 6 North, Range 68 West of the 6th P.M., City of Fort Collins, County of
Larimer, State of Colorado.
WHEREAS, the Developer has obtained approval from Larimer County, Colorado
(the "County") to develop the Property and has submitted to the County all plats, plans
(including utility plans), reports and other documents required for the approval of final
development plans and a subdivision plat according to the County's development
process, which documents have heretofore been filed with the County and are hereafter
referred to as the "Final Development Plan Documents'; and
WHEREAS, because the property is located in the Fossil Creek Area, the
Developer is required to promptly apply for annexation of the Property into the City and
promptly upon the effective date of the annexation of the Property into the City (the
"Annexation"), the: Developer shall file copies of the Final Development Plan Documents
with the City Engineer which copies, when filed, are made a part of this Agreement by
reference thereto; and
WHEREAS, this Development Agreement is executed between the City and the
Developer in anticipation of the aforesaid annexation and shall become effective
immediately upon the effective date of the Annexation; and
WHEREAS, the parties hereto have agreed that the development of the Property,
when annexed into the City, will require increased municipal services from the City in
order to serve such area and will further require the installation of certain improvements
primarily of benefit to the lands to be developed and not to the City of Fort Collins as a
whole; and
4. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
E. Ground Water, Subdrains and Water Rights
1. The City shall not be responsible for, and the Developer (for itself
and its 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
W
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 Water
District, and the City has been notified by the Water District of such approval.
G. Development Construction Permit
1. To the extent that the Developer has not previously obtained a
development construction permit from the County, 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, prior to the Developer commencing construction and
shall pay the required fees for said Permit and construction inspection, and post security
to guarantee completion of the public improvements required for this Development, prior
to issuance of the Development Construction Permit. Pursuant to the County
development agreement for the Property, the Developer is required at the time of plat
recordation to post security to guarantee completion of all required public improvements
for the Development except landscaping, which security is anticipated to be released by
the County to the Developer promptly after the effective date of the Annexation, at
which time the Developer shall promptly provide the City with security acceptable to the
City. Pursuant to the County development agreement for the Development, the
Developer is permitted to commence installation of infrastructure improvements prior to
the effective date of the Annexation and, to the extent any such improvements are so
commenced, the City agrees that the City shall thereafter perform the inspection and
approval processes required in connection with any such improvements. The County
development agreement for the Development requires the County, if the Property is
annexed, to transfer to the City any portion of the development construction permit fee
paid by the Developer which related to improvements for which work has not been
inspected prior to such annexation. If the Developer has obtained a development
construction permit from the County, the City shall not charge the Developer any
additional development construction permit fees beyond such amount transferred from
the County for that Phase or Phases.
H. 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 "E." Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section
3.3.2(C) of the Land Use Code. Notwithstanding the provisions of paragraphs lll.(H)
11
and III.(I) of this Agreement to the contrary, the obligations of the Developer pursuant to
this paragraph and Exhibit "E" 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.
IV. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook"
and shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of
waste material, rubbish, or building materials caused by the Developer's operation, or
the activities of individual builders and/or subcontractors; shall remove such rubbish as
often as necessary, but no less than daily and; at the completion of the work, shall
remove all such waste materials, rubbish, tools, construction equipment, machinery,
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
12
development plan documents may result in certain of said documents carrying dates of
approval and/or execution that are later than the date of execution of this Development
Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of
this Agreement. The Developer hereby waives any right to object to any such
discrepancy in dates.
E. The City acknowledges that the annexation of the Property is subject to
the County's approval of the Final Development Plan Documents, provided however,
that the statutory vested rights granted the Development shall be in accordance with the
laws of the State of Colorado. Except as is otherwise permitted pursuant to C.R.S. 24-
68-105, the City agrees that it shall impose no additional standards or requirements
beyond those set forth in the Final Development Plan Documents, and the Developer
shall comply with all applicable City procedural and fee requirements for such
improvements which are not inconsistent with the terms of this Agreement, including but
not limited to, obtaining a development construction permit, posting of collateral,
provision of applicable construction warranties and guarantees, inspections, issuance of
building permits and certificates of occupancy and payment of all applicable City fees.
F. In the event the City waives any breach of this Agreement, no such waiver
shall be held or construed to be a waiver of any subsequent breach hereof.
G. All financial obligations of the City arising under this Agreement that are
payable after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins City
Council, in its discretion.
H. This Agreement shall run with the Property and shall be binding upon and
inure to the benefit of the parties hereto, their respective personal representatives,
heirs, successors, grantees and assigns. It is agreed that all improvements required
pursuant to this Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest within the meaning
of this paragraph shall specifically include, but not be limited to, a conveyance or
assignment of any portion of the Developer's legal or equitable interest in the Property,
as well as any assignment of the Developer's rights to develop the Property under the
terms and conditions of this Agreement.
I. In the event the Developer transfers title to the Property and is thereby
divested of all equitable and legal interest in the Property, the Developer shall be
released from liability under this Agreement with respect to any breach of the terms and
conditions of this Agreement occurring after the date of any such transfer of interest. In
such event, the succeeding property owner shall be bound by the terms of this
Agreement.
J. Each and every term of this Agreement shall be deemed to be a material
element hereof. In the event that either party shall fail to perform according to the terms
of this Agreement, such party may be declared in default. In the event that a party has
13
been declared in default hereof, such defaulting party shall be given written notice
specifying such default and shall be allowed a period of ten (10) days within which to
cure said default. In the event the default remains uncorrected, the party declaring
default may elect to: (a) terminate the Agreement and seek damages; (b) treat the
Agreement as continuing and require specific performance or; (c) avail itself of any
other remedy at law or equity.
K. In the event of the default of any of the provisions hereof by either party
which shall require the party not in default to commence legal or equitable action
against said defaulting party, the defaulting party shall be liable to the non -defaulting
party for the non -defaulting party's reasonable attorney's fees and costs incurred by
reason of the default. Nothing herein shall be construed to prevent or interfere with the
City's rights and remedies specified in Paragraph IV.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement
shall not be construed as or deemed to be an agreement for the benefit of any third
party or parties, and no third party or parties shall have any right of action hereunder for
any cause whatsoever.
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: Legacy Development Corporation
James E. Ringenberg
215 West Oak Street
Tenth Floor
Fort Collins, Co. 80521
14
With a copy to: Richard Splittgerber
2801 Hearthstone Drive
Fort Collins, Co. 80528
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.
15
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: C1-�oO D
City Man4ger
AST:
e
City Clerk
APPROVED
\AASS�TO CONTENT:
A- City Engineer
APPROVE TO FORM:
D uty City Attorney
DEVELOPER:
Legacy Development Corporation, a Colorado
Corporation
By: < _
Jaffies E. Ringenberg, President
ATTEST:
By: Li
Ri k��e' r, Se(creta
p g rY
EXHIBIT "A"
EXCERPT FROM COUNTY/DEVELOPER DEVELOPMENT AGREEMENT
4. Conditions of Approval
4.1 If the development has not been annexed into the City of Fort Collins at the time
of building permits are issued, Larimer County Transportation Capital Expansion Fees
will be collected at the time of issuance of the respective building permits for each
dwelling so permitted. Said fee collected shall be the amount in effect at the time of
building permit application. Cash in -lieu of school fees for the Poudre School District R-
1 will be collected at the time of building permit for each dwelling in this development.
Said fee shall be in an amount effective at the time of the building permit application.
4.2 Engineered footings and foundations are required for all new residential structures
within the development.
17
EXHIBIT "B"
EXCERPT FROM COUNTY/DEVELOPER DEVELOPMENT AGREEMENT
40. Annexation of the Property
Pursuant to an intergovernmental agreement between the County and the City,
the Developer must promptly petition to have the Property annexed into the City, which
annexation petition shall be filed concurrently with recording of the subdivision plat for
the Property. In the event that the Property is annexed into the City, then the provisions
of this Development Agreement, with the exception of this Paragraph 40, shall be
superceded immediately upon the effective date of such annexation, by that certain
Development Agreement executed between the Developer and the City, of even date
herewith, pertaining to the Property. Provided the ordinance annexing the Property is
effective no later than January 1, 2004, no building permits shall be issued for the
Property prior to such annexation. The Developer shall be permitted to commence
installation of infrastructure improvements prior to the effective date of the Annexation
and to the extent any such improvements are so commenced, the County agrees that
the City will thereafter perform the inspection and approval processes required in
connection with any such improvements. The County further agrees that in the event
the Developer obtains a development construction permit from the County and
subsequent thereto the Property is annexed to the City, the County shall thereupon
promptly transfer to the City that portion, if any, of the development construction permit
fees which have been collected by the County.
18
EXHIBIT °C"
Schedule of electrical service installation.
Electrical lines need to be installed prior to the installation of the sidewalk, curb
returns, handicap iramps, 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.
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
Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
19
WHEREAS, the City has approved or accepted the Final Development Plan
Documents submitted by the Developer to the County, subject to requirements and
conditions imposed by the County, which are set forth on Exhibit "A", attached hereto
and incorporated hierein by reference.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
Applicability
This Agreement shall become effective and be binding upon the parties hereto
immediately upon Annexation. Pursuant to an intergovernmental agreement between
the County and the City, the Developer must promptly petition to have the Property
annexed into the City, which annexation petition has either heretofore been filed with
the City or will be so filed concurrently with the recording of the subdivision plat for the
Property. In the event that the Property is annexed into the City, then this Agreement
shall supercede all of that certain development agreement except Paragraph 40 thereof
executed between the Developer and the County, of even date herewith, pertaining to
the Property. A copy of Paragraph 40 of such County development agreement is
attached hereto as Exhibit "B".
II. General Conditions
A. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement,
"development activities" shall include, but not be limited to, the following: (1) the actual
construction of improvements, (2) obtaining a permit therefor, or (3) any change in
grade, contour or appearance of the Property caused by, or on behalf of, the Developer
with the intent to construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and
facilities, streets, curbs, gutters, sidewalks, and bike paths shall be installed as shown
on the Final Development Plan Documents (and in full compliance with the standards
and specifications of the County on file with the County) and to be filed with the office of
the City Engineer promptly after the Annexation, subject to a three year (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. Except as otherwise provided herein, no building permit for the
construction of any structure within the Property shall be issued by the City until the
public water lines and stubs to each lot, fire hydrants, electrical lines, sanitary sewer
2
EXHIBIT "D"
Not Applicable
20
EXHIBIT "E"
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 dernands 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.
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,
21
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.
22
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 "C," attached hereto, shall be installed within the
time and/or sequence required on Exhibit "C" and on the Final Development Plan
documents.
E. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this Development as shown on the Final Development Plan
Documents and other approved documents pertaining to this Development on file with
the City.
F. Street improvements shall not be installed until all utility lines to be placed
therein have been completely installed, including all individual lot service lines (water
and sewer) leading in and from the main to the property line and all electrical lines.
G. The installation of all utilities shown on the Final Development Plan
Documents shall be inspected by the Engineering Department of the City and shall be
subject to such department's approval, provided that the water and sanitary sewer
improvements are; special district improvements and their inspection and approval by
the City shall be limited to trenches which are within or which cross City facilities. The
Developer agrees to correct any deficiencies in such installations in order to meet the
requirements of the plans and/or specifications applicable to such installation. In case
of conflict, the Final Development Plan Documents shall supersede the standard
specifications.
H. The Developer, for itself and its successor(s) in interest, does hereby
indemnify and ho!Id 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
3
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 ( or, if applicable the subsequent lot owner[s] ) 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 "D, which improvements, if applicable, shall include right-of-way,
design and construction costs. See Section III.C, Special Conditions, Storm Drainage
Lines and Appurtenances, for specific instructions.
J. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City of Fort Collins.
K. The Developer specifically represents that to the best of its knowledge all
portions of the Property dedicated (both in fee simple and as easements) to the County
or to the City associated with this Development are in compliance with all environmental
protection and anti -pollution laws, rules, regulations, orders or requirements, including
solid waste requirements, as defined by the U. S. Environmental Protection Agency
Regulations at 410 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 E=nvironmental 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
4
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.
m. Special Conditions
A. Water Lines
1. Notwithstanding anything in this Agreement to the contrary, the
Development will be provided water service from the Fort Collins -Loveland Water
District ("Water District"), and all water line improvements shall be installed and
inspected in accordance with the Water District's regulations and the approved plans
therefor.
B. Sewer Lines
1. Notwithstanding anything in this Development Agreement to the
contrary, the Property will be provided sanitary sewer service from the South Fort
Collins Sanitation District ("Sewer District"), and all sewer line improvements shall be
installed and inspected in accordance with the Sewer District's regulations and the
approved plans therefor.
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements associated
with 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 8 building permits in this Development. Completion of improvements shall
include the certification by a professional engineer licensed in Colorado that the
drainage facilities which serve the Development have been constructed in conformance
with 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
5
integrity and operational functions of all drainage facilities throughout the build -out of
this Development. If at any time following certification (as required pursuant to
paragraph one (1) above) of said drainage facilities and during the construction of
structures and /or lots within this Development the City reasonably decides that said
drainage facilities no longer comply with the Final Development Plan Documents, the
City shall give written notice to the Developer of all items which do not comply with the
Final Development Plan Documents. Unless the Developer successfully appeals the
decision of non-compliance, it shall bring such facilities back up to the standards and
specifications as shown on the Final Development Plan Documents. Failure to maintain
the structural integrity and operational function of said drainage facilities following
certification shall result in the withholding of the issuance of additional building permits
and/ or certificates of occupancy until such drainage facilities are repaired to the
operational function and structural integrity which was approved 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 $ 23,523.75 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 lll(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 Plain Documents. The certification shall also show that the minimum floor
z
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.
a. The storm drainage system for this Development contains some
features that make it important to construct the facilities in accordance with the plans
and to ensure that the facilities are maintained and kept operational throughout the
build -out of this Development and at all times thereafter. For this reason the following
additional requirements shall be followed for all construction activities on lots 1 through
19 Block 1 and lots 6 and 7 Block 2:
The portions of the drainage improvement system required to be constructed on any of
the above lots, and other portions not on said lots but that are necessary for the system
serving said lots to properly function, shall be completed in accordance with the Final
Development Plan Documents and said completion shall be certified as being
completed in accordance with said Final Development Plan Documents by a licensed
professional engineer. Said certification shall be received by the City prior to the
issuance of a building permit for any of the above lots. A certification by such engineer
that the drainage systems' function and adequacy to serve its purpose has not been
impaired by the construction and landscaping on said lot shall be submitted to the City
prior to the issuance of a certificate of occupancy for each of the above lots. The
drainage system on said lot(s) shall not be changed or affected in any way after
occupancy, if such change diminishes or impairs the function and/or adequacy of the
system to serve its purpose.
b. In addition the Developer shall be required to file a notice with
the Larimer County Clerk and Recorder describing the landscaping and fencing
restrictions that exist for the drainage easements on each of said lots. Said notice shall
reference the location of the specific restrictions shown on plans and notes in the Final
Development Plan Documents. Said notice shall be filed in a City approved form prior
to the sale of any lots affected by such restrictions.
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 unl:il the City has deemed such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
7
6. The Developer shall limit the construction of the off -site storm
drainane 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 di�-turbed 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 property during the construction of the detention pond facilities. No grading
shall be done outside of the approved areas as shown on the Final Development Flan
Documents.
7. The drainage design for this Development provides for the
evacuation of storm drainage runoff in a reasonable amount of time out of the water
quality ind detention facilities and into the drainage outfall system. The water quality
and detention facilities have been designed to discharge stormwater runoff from
frequent storms over a 40 hour period through a small diameter outlet. Under the
intended operation of the water quality and detention pond, there will not be standing
water ;n the pond more than 48 hours after the end of a rainfall event. If, during -)r
within years after construction and acceptance of the detention facilities associated
with this Development, surfacing or standing water conditions persist in these facilities;
and if such conditions are beyond what can be expected in accordance with the
approved stormwater design, the Developer shall promptly, upon such discovery, install
an adequate de -watering system in the detention facilities. Such a system shall be
reviewed and approved by the City prior to installation.
8. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed outside of the public right-of-way.
9. In accordance with the City's McClelland master drainage plan and
the applicable Final Development Plan Documents, the 100-year developed stormwater
flow from the Development shall be detained, and these developed flows shall be
released, into at a rate not to exceed 0.2 in the 10 year and 0.5 cfs per acre for the 100-
year design storm.
10. In all areas associated with this Development that are to be
landscaped or planted in accordance with the Final Development Plan Documents, and
do not require a building permit, the soils shall be loosened and amended by the
Developer in accordance with Section 3.8.21 of the Land Use Code prior to the
issuance of more than 8 building permits in this Development. Completion of soil
amendments shall include certification by the Developer that the work has been
completed. This certification shall be submitted to the City at least two (2) weeks prior
to the date of issuance of additional building permits in this Development.
8
D. Streets.
1. Subject to the conditions of this Agreement, the Developer may be
reimbursed by the City for oversizing public street improvements along Kechter and
Ziegler Roads for those portions of said streets abutting the Property as shown on the
Final Development Plan Documents. Reimbursement for Kechter and Ziegler Roads
shall be for oversizing the street from local (access) standards to minor arterial
standards. The City shall make reimbursement to the Developer for the aforesaid
oversized street improvements in accordance with Section 24-112 of the Code of the
City. The Developer agrees and understands that the City shall have no obligation to
make reimbursement payments for street oversizing unless funds for such payments
shall first have been budgeted and appropriated from the Street Oversizing Fund by the
City Council; and the Developer further understands that to the extent that funds are not
available for such reimbursement, the City may not, in the absence of the Developer's
agreement, require the construction, at the Developer's expense, of any oversized
portion of streets not reasonably necessary to offset the traffic impacts of the
Development. The Developer does hereby agree to construct the aforesaid oversized
street improvements with the understanding that the Developer may not be fully
reimbursed by the: City for the cost of such construction. The Developer further agrees
to accept payment in accordance with Section 24-112 (d) of the Code of the City as full
and final settlement and complete accord and satisfaction of all obligations of the City to
make reimbursements to the Developer for street oversizing expenses. It is anticipated
by the City that the City's reimbursement, in accordance with Section 24-112 (d), would
not be less than fifty percent (50%) of the Developer's actual expenses incurred and will
be calculated in accordance with the formula as set forth in Section 24-112 (d).
2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section III(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. 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.
0