HomeMy WebLinkAboutFRONT RANGE BAPTIST CHURCH MINOR SUB - Filed DA-DEVELOPMENT AGREEMENT - 2007-01-31DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this Isr day of p yg ,P
2006, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; and Front Range Baptist Church of
Fort Collins, a Colorado Nonprofit 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:
Located in the northeast Y+ of Section 1, Township 6 North, Range 69 West of
the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, plans (including utility plans), reports and other documents required for
the approval of a final plan according to the City's development application submittal
requirements master list (the "Final Development Plan Documents") copies of which are
on file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and
will further require the installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the Final Development Plan Documents
submitted by the Developer subject to certain requirements and conditions, which
involve the installation of and construction of utilities and other municipal improvements
in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
3. The Developer, will not damage or injure any water rights 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.
H. Hazards and Emergency Access
1. Prior to beginning any building construction, and throughout the
build -out of this Development, the Developer shall provide and maintain at all times an
accessway to said building or buildings. Such accessway shall be adequate to handle
any emergency vehicles or equipment, and the accessway shall be kept open during all
phases of construction. Such accessway shall be constructed to an unobstructed width
of at least 20 feet with 4 inches of aggregate base course material compacted according
to city standards and with an 100 foot diameter turnaround at the building end of said
accessway. The turnaround is not required if an exit point is provided at the end of the
accessway. Prior to the construction of said accessway, a plan for the accessway shall
be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three
plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for
review and processing.) If such accessway is at any time deemed inadequate by the
Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into
compliance and until such time that the accessway is brought into compliance, the City
and/or the Poudre Fire Authority may issue a stop work order for all or part of the
Development.
I. Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain a Footing and Foundation permit upon the
installation of all underground water, sanitary sewer, and storm sewer facilities, and an
emergency accessway for the Phase in which the permit is being requested. Facilities
shall include but not be limited to all mains, lines, services, fire hydrants and
appurtenances for the site as shown on the Final Development Plan Documents.
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J. 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 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.
K. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance
guarantee and a five-year repair guarantee covering all errors or omissions in the
design and/or construction of the public improvements required for this Development,
which guarantees shall run concurrently and shall commence upon the date of
completion of the public improvements and acceptance thereof by the City. More
specific elements of these guarantees are noted in Exhibit "C." Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section
3.3.2(C) of the Land Use Code.. Notwithstanding the provisions of paragraphs III (H)
and (1) of this Agreement to the contrary, the obligations of the Developer pursuant to
this paragraph and Exhibit "C" may not be assigned or transferred to any other person
or entity unless the warranted improvements are completed by, and a letter of
acceptance of the warranted improvements is received from the City by, such other
person or entity.
III. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook"
and shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of
waste material, rubbish, or building materials caused by the Developer's operation, or
the activities of individual builders and/or subcontractors; shall remove such rubbish as
often as necessary, but no less than daily and; at the completion of the work, shall
remove all such waste materials, rubbish, tools, construction equipment, machinery,
and surplus materials from the public right-of-way. The Developer further agrees to
maintain the finished street surfaces so that they are free from dirt caused by the
Developer's operation or as a result of building activity. Any excessive accumulation of
dirt and/or construction materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until the problem is corrected
to the satisfaction of the City Engineer. If the Developer fails to adequately clean such
streets within two (2) days after receipt of written notice, the City may have the streets
cleaned at the Developer's expense and the Developer shall be responsible for prompt
payment of all such costs. The Developer also agrees to require all contractors within
the Development to keep the public right-of-way clean and free from accumulation of
dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing
operations when winds are of sufficient velocity to create blowing dust which, in the
inspector's opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements
or obligations may be shown on the Final Development Plan Documents, or any
documents executed in the future that are required by the City for the approval of an
amendment to a development plan, and the City may withhold (or to the extent
permitted by law, revoke) such building permits and certificates of occupancy as it
deems necessary to ensure performance in accordance with the terms of this
Development Agreement. The processing and "routing for approval" of the various
development plan documents may result in certain of said documents carrying dates of
approval and/or execution that are later than the date of execution of this Development
Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of
this Agreement. The Developer hereby waives any right to object to any such
discrepancy in dates.
E. Nothing herein contained shall be construed as a waiver of any
requirements of the City Code, Land Use Code, or Transitional Land Use Regulations
(as applicable) and the Developer agrees to comply with all requirements of the same.
F. In the event the City waives any breach of this Agreement, no such waiver
shall be held or construed to be a waiver of any subsequent breach hereof.
G. All financial obligations of the City arising under this Agreement that are
payable after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins City
Council, in its discretion.
H. This Agreement shall run with the Property and shall be binding upon and
inure to the benefit of the parties hereto, their respective personal representatives,
heirs, successors, grantees and assigns. It is agreed that all improvements required
pursuant to this Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest within the meaning
of this paragraph shall specifically include, but not be limited to, a conveyance or
assignment of any portion of the Developer's legal or equitable interest in the Property,
as well as any assignment of the Developer's rights to develop the Property under the
terms and conditions of this Agreement.
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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 IILD 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
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With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
If to the Developer: Front Range Baptist Church
c/o Jeff Redlin
625 E. Harmony Road, Fort Collins, CO 80525
With a copy to: Sumner Law Office
c/o Jerry Sumner
425 W. Mulberry Street, Suite 101, Fort Collins, CO 80521
Notwithstanding the foregoing, if any party to this Agreement, or its successors,
grantees or assigns, wishes to change the person, entity or address to which notices
under this Agreement are to be sent as provided above, such party shall do so by giving
the other parties to this Agreement written notice of such change.
0. When used in this Agreement, words of the masculine gender shall
include the feminine and neuter gender, and when the sentence so indicates, words of
the neuter gender shall refer to any gender; and words in the singular shall include the
plural and vice versa. This Agreement shall be construed according to its fair meaning,
and as if prepared by all parties hereto, and shall be deemed to be and contain the
entire understanding and agreement between the parties hereto pertaining to the
matters addressed in this Agreement. There shall be deemed to be no other terms,
conditions, promises, understandings, statements, representations, expressed or
implied, concerning this Agreement, unless set forth in writing signed by all of the
parties hereto. Further, paragraph headings used herein are for convenience of
reference and shall in no way define, limit, or prescribe the scope or intent of any
provision under this Agreement.
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
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By: llGin� I .`��i�e,.
- -tv City Marfbger
TTEST-
luhl�4i.
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City Clerk
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APPROVED AS TO CONTENT:
City Eriginee/
APPROV29AS TO FORM:
Deputy City Attorney
G
0
DEVELOPER:
Front Ran a Baptist Church of Fort Collins, a
Colorado N nprofit Corporation
..
Steve,Qorwine, Pr ident
By:
Gary Sw , Vice- Pres di t
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EXHIBIT "A"
Schedule of electrical service installation.
Electrical lines need to be installed prior to the installation of the sidewalk, curb
returns, handicap ramps, paving and landscaping. If the Developer installs any curb
return, sidewalk or handicap ramp prior to the installation of electrical lines in an area
that interferes with the installation of the electrical line installation, the Developer shall
be responsible for the cost of removal and replacement of those items and any
associated street repairs.
2. Schedule of water lines to be installed out of sequence.
Not Applicable.
3. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
4. Schedule of street improvements to be installed out of sequence.
Not Applicable
5. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
rri
EXHIBIT "B"
Not Applicable
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EXHIBIT "C"
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of two (2) years
from the date of completion and first acceptance by the City of the public improvements
warranted hereunder, the full and complete maintenance and repair of the public
improvements constructed for this Development. This warranty and guarantee is made
in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land
Use Regulations, as applicable. This guarantee applies to the streets and all other
appurtenant structures and amenities lying within the rights -of -way, easements and
other public properties, including, without limitation, all curbing, sidewalks, bike paths,
drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any
maintenance and/or repair required on utilities shall be coordinated with the owning
utility company or city department.
The Developer shall maintain said public improvements in a manner that will assure
compliance on a consistent basis with all construction standards, safety requirements
and environmental protection requirements of the City. The Developer shall also correct
and repair or cause to be corrected and repaired, all damages to said public
improvements resulting from development -related or building -related activities. In the
event the Developer fails to correct any damages within thirty (30) days after written
notice thereof, then said damages may be corrected by the City and all costs and
charges billed to and paid by the Developer. The City shall also have any other
remedies available to it as authorized by this Agreement. Any damages which occurred
prior to the end of said two (2) year period and which are unrepaired at the termination
of said period shall remain the responsibility of the Developer.
REPAIR GUARANTEE:
The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5)
year period, commencing upon the date of completion and acceptance by the City of the
public improvements constructed for this Development, from any and all claims,
damages, or demands arising on account of the design and construction of public
improvements of the Property shown on the approved plans and documents for this
Development; and the Owner furthermore commits to make necessary repairs to said
public improvements, to include, without limitation, the roads, streets, fills,
embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the
right-of-way 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.
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Further, the Developer agrees that the City shall not be liable to the Developer during
the warranty period, for any claim of damages resulting from negligence in exercising
engineering techniques and due caution in the construction of cross drains, drives,
structures or buildings, the changing of courses of streams and rivers, flooding from
natural creeks and rivers, and any other matter whatsoever on private property. Any
and all monetary liability occurring under this paragraph shall be. the liability of the
Developer.
The obligations of the Developer pursuant to the "maintenance guarantee" and "repair
guarantee" provisions set forth above may not be assigned or transferred to any other
person or entity unless the warranted improvements are completed by, and a letter of
acceptance of the warranted improvements is received from the City by, such other
person or entity.
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General Conditions
A. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property.
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 City on file in the office of the City Engineer at the time of
approval of the utility plans relating to the specific utility, subject to a three (3) year time
limitation from the date of approval of the site specific development plan. In the event
that the Developer commences or performs any construction pursuant hereto after the
passage of three (3) years from the date of approval of the site specific development
plan, the Developer shall resubmit the utility plans to the City Engineer for
reexamination. The City may then require the Developer to comply with the approved
standards and specifications of the City on file in the office of the City Engineer at the
time of the resubmittal.
C. No building permits shall be issued for any structure located in excess of
six hundred and sixty feet (660') from a single point of access, unless the structures
contain sprinkler systems that are approved by the Poudre Fire Authority.
D. Any water lines, sanitary sewer lines, storm drainage lines, electrical lines,
and/or streets described on Exhibit "A," attached hereto, shall be installed within the
time and/or sequence required on Exhibit "A." If the City Engineer has determined that
any water lines, sanitary sewer lines, storm drainage facilities and/or streets are
required to provide service or access to other areas of the City, those facilities shall be
shown on the Final Development Plan Documents and shall be installed by the
Developer within the time as established under "Special Conditions" in this document.
E. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this Development as shown on the Final Development Plan
Documents and other approved documents pertaining to this Development on file with
the City.
F. Street improvements shall not be installed until all utility lines to be placed
therein have been completely installed, including all individual lot service lines (water
and sewer) leading in and from the main to the property line and all electrical lines.
G. The installation of all utilities shown on the Final Development Plan
Documents shall be inspected by the Engineering Department of the City and shall be
subject to such department's approval. The Developer agrees to correct any
deficiencies in such installations in order to meet the requirements of the plans and/or
specifications applicable to such installation. In case of conflict, the Final Development
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Plan Documents shall supersede the standard specifications, except that if the conflicts
are a result of Federal or State mandated requirements, then the Federal or State
mandated requirements shall prevail.
H. All storm drainage facilities shall be so designed and constructed by the
Developer as to protect downstream and adjacent properties against injury and to
adequately serve the Property. 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); (3) specific written or otherwise documented
directives that may be given to the Developer by the City; and (4) any storm drainage
flows generated by areas outside of this development that drain into or through the
property covered by 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. Approval of and acceptance by the City of any
storm drainage facility design or construction shall in no manner be deemed to
constitute a waiver or relinquishment by the City of the aforesaid indemnification. The
Developer shall engage a Colorado licensed professional engineer to design the storm
drainage facilities as aforesaid and it is expressly affirmed hereby that such
engagement shall be intended for the benefit of the City, and subsequent purchasers of
property in the Development.
I. The Developer shall pay storm drainage basin fees in accordance with
Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for
credit or City repayment under the provisions of Chapter 26 are described together with
the estimated cost of the improvements on the attached Exhibit "B " which
improvements, if applicable, shall include right-of-way, design and construction costs.
See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for
specific instructions.
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J. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of each 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
property dedicated (both in fee simple and as easements) to the City associated with
this Development (whether on or off -site) is 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 property as is dedicated to the City
pursuant to this Development, is 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 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 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 a notice of
such claim under the Colorado Governmental Immunity Act for the same, shall cause
this indemnity and hold harmless agreement by the Developer to not apply to such
claim and such failure shall constitute a release of this indemnity and hold harmless
agreement as to such claim.
L. The Developer acknowledges and agrees that the City, as the owner of
any adjacent property (the "City Property") on which off -site improvements may be
constructed, or that may be damaged by the Developer's activities hereunder, expressly
retains (and does not by this Development Agreement waive) its rights as property
owner. The City's rights as owner may include without limitation those rights
associated with the protection of the City Property from damage, and/or the
enforcement of restrictions, limitations and requirements associated with activities on
the City Property by the Developer as an easement recipient.
II. Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. All on -site 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 any
certificate of occupancy for 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. Additionally on -site certification shall
provide documentation that the open space areas that are part of this Development
have been graded in a manner consistent with the approved Final Development Plan
Documents. The elevations of the open space areas adjacent to the existing homes to
the west of the Development shall be certified to be in conformance with the approved
Final Development Plan documents. This certification shall be submitted to the City at
least two weeks prior to the date of issuance of the Certificate of Occupancy.
2. The developer shall be responsible for maintaining the structural
integrity and operational functions of all drainage facilities throughout the build -out of
this Development. If at any time following certification (as required pursuant to
paragraph one (1) above) of said drainage facilities and during the construction of
structures and/or lots within this Development the City deems that said drainage
facilities no longer comply with the approved plans, the developer shall bring such
facilities back up to the standards and specifications as shown on the approved plans.
Failure to maintain the structural integrity and operational function of said drainage
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 approved Final Development Plan Documents to
stabilize all over -lot grading in and adjacent to this Development. The Developer shall
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also be required to post a security deposit in the amount of $ 9,420.00 prior to beginning
construction to guarantee the proper installation and maintenance of the erosion control
measures shown on the approved Final Development Plan Documents. Said security
deposit(s) shall be made in accordance with the criteria set forth in the City's Storm
Drainage Design Criteria and Construction Standards (Criteria). If, at any time, the
Developer fails to abide by the provisions of the approved Final Development Plan
Documents or the Criteria, notwithstanding any provisions contained in paragraph III(J)
to the contrary, the City may enter upon the Property for the purpose of making such
improvements and undertaking such activities as may be necessary to ensure that the
provisions of said plans and the Criteria are properly enforced. The City may apply
such portion of the security deposit(s) as may be necessary to pay all costs incurred by
the City in undertaking the administration, construction, and/or installation of the erosion
control measures required by said plans and the Criteria. In addition, the City shall
have the option to withhold building permits and certificates of occupancy, as stated in
Paragraph III.D of this Agreement, as it deems necessary in order to ensure that the
Developer installs and maintains the erosion control measures throughout the build -out
of this Development.
4. All buildings shall be graded to drain in the configuration shown on
the approved Final Development Plan Documents. To ensure performance, the
following additional requirements shall be followed for all buildings in this Development:
Prior to the issuance of a certificate of occupancy for any building in this Development
the Developer shall provide the City with a development grading certification. Such
certification shall verify that the finished floor elevation of that building and all adjacent
grades to that building have been graded correctly - including the grading of any minor
swales, when applicable. That certification shall also certify that the minimum -floor
elevation (when applicable) for the building constructed has been completed in
accordance with the approved 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 approved Final Development Plan Documents in grade elevations and/or storm
drainage facility configuration that occur as a result of the construction of structures,
whether by the Developer or other parties. The City reserves the right to withhold the
issuance of building permits and/or certificates of occupancy for this Development until
the City has approved such changes as being acceptable for the safe and efficient
delivery of storm drainage water.
6. The Developer is obligated to maintain all on -site storm drainage
facilities not accepted for maintenance by the City and outside of the public right-of-way.
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
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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 limit the construction of the storm drainage
improvements 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 storm drainage improvements in accordance with the Final
Development Plan Documents promptly following construction.
D. Streets.
1. No street oversizing reimbursement from the City is due the
Developer for this Development.
2. Notwithstanding any provision herein to the contrary, the Developer
shall be responsible for all costs for the initial installation of traffic signing and striping
for this Development, including both signing and striping related to the Developer's
internal street operations and the signing and striping of any adjacent or adjoining local,
collector or arterial streets that is made necessary because of the Development.
3. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
4. A driveway access at Harmony Road is being allowed at this time
as shown on the Final Development Plan Documents. The adopted Harmony Road
(SH68) Access Control Plan Update Report states that this access will someday be
eliminated, and accordingly, to the extent permitted by law, the City reserves the right to
close or restrict this access point. Following such closure, access may be maintained
as an emergency only access if necessary to provide adequate emergency service to
the site. The above provisions do not in any way preclude the Developer from applying
for an amendment to the access control plan in the future. Any application for
amendment would need to comply with the amendment application criteria and
requirements as identified in the adopted access control plan.
5. In accordance with Section 24-95 of the City Code, the Developer
is responsible for constructing the local portion (45) of sidewalk along Harmony Road
adjacent to the site, for an approximate length of 17 feet, prior to the issuance of the first
building permit. However, the parties agree that the construction of this piece of
sidewalk will not be completed with this Development because there is an overhead
power pole serving Fairway Estates 3rd Filing, which is directly conflicting with the
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desired sidewalk location. Also, additional offsite grading (which is not desirable at this
time) would be required in order to build the sidewalk in conformance with City
standards. Since the Developer is responsible for the construction of the unbuilt
portions of said sidewalk and for any costs to remove temporary improvements and
rebuild these areas to final design standards, the Developer agrees to provide to the
City a cash deposit in the amount of $252.45 to cover the cost of the design and
construction of the sidewalk. The amount of said funds is the estimated cost to
construct said improvements. Said amount ($252.45) shall be deposited with the City
prior to the issuance of any building permit for this Development.
If any portion of this fee is paid by the Developer after the year 2006, the Developer
agrees to pay the amount specified above plus an additional amount to be calculated as
described below to recognize the effect of inflation, with said amount to be increased
each year until payment is completed in full. Upon payment of each fee required under
this Subsection, the Developer's obligation to pay its share of the costs for constructing
sidewalk along Harmony Road in conjunction with the Development shall be satisfied.
The inflation factor (Inf. Fac.) for each year's increase in the amount of the fee shall be
calculated using the construction cost index for Denver as published in the Engineering
News Record (ENR) for April 2006, as the base index (1-base) and the same index
published in the ENR for the January in each succeeding year immediately preceding
payment (1-year of payment). The formula for calculating said inflation factors shall be
as follows:
Inf. Fac. = (1-year of payment) - (1-base)
(1-base)
The amount to be added to the fee to compensate for inflation shall be equal to the
amount of the fee times the inflation factor. Said amounts added to compensate for
inflation shall not reduce the total (principal) amount due.
Said improvements to the sidewalk on Harmony Road shall be constructed at such time
that the City deems the improvements to be necessary.
Except as provided in the following paragraph, any interest earned by the City as a
result of said deposit shall be the property of the City to cover administration and
inflation in order to better assist the City in making reimbursement to the party who
constructs said improvements.
If the Developer is the party that constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the
Developer the amount deposited plus any interest earned by the City as a result of said
deposit, less 3% of the total amount remaining, (which includes said amount deposited
plus any interest earned by the City) to be kept by the City to cover its costs for
administration of said deposits.
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E. Natural Resources
Not Applicable
F. Soil Amendment
1. 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 a certificate of occupancy 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 a certificate of occupancy in this Development.
G. 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.
W