HomeMy WebLinkAboutTIMBERLINE CENTER - Filed DA-DEVELOPMENT AGREEMENT - 2006-09-20DEVELOPMENT AGREEMENT 6ay
THIS AGREEMENT, is made and entered into this 5 of August 2006,
by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation,
hereinafter referred to as the "City"; and TIMBERLINE DEVELOPMENT, LLC a
Wyoming Limited Liability Company, and TIMBERLINE AUTOPLEX, LLC a Colorado
Limited Liability Company hereinafter jointly 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:
Lots 1 through 14, inclusive,Timbedine Center, located in Section 19, Township 7
North, Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer,
State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, plans (including utility plans), reports.and other documents required for
the approval of a final plan according to the City's development application submittal
requirements master list (the "Final Development Plan Documents") copies of which are
on file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and
will further require the installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the Final Development Plan Documents
submitted by the Developer subject to certain requirements and conditions, which
involve the installation of and construction of utilities and other municipal improvements
in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
General Conditions
season inspection, there shall be seventy-five percent (75%) foliage cover of the
specified species planted as measured from five feet (5) directly overhead. No more
than ten percent (10%) of the species noted on the site may be weedy species as
defined by Article III, Section 20-41 of the Code of the City. The Developer shall be
responsible for weed control at all times. Determination of required coverage will be
based on fixed transects each ten meters in length, randomly placed in representative
portions of the seeded areas, with plant species or bare ground/rock/litter being noted
every ten (10) centimeters along each transect. The Developer shall warrant all seeded
areas for three (3) growing seasons from the date of completion. The Developer shall
rework and reseed per original specifications any areas that are dead, diseased, contain
too many weedy species, or fail to meet the coverage requirement at no additional cost
to the City.
3. Fueling facilities shall be located at least one hundred (100) feet
from natural body of water, wetland, natural drainage way or manmade drainage way.
The fuel tanks and fueling area must be set in a containment area that will not allow a
fuel spill to directly flow, seep, run off, or be washed into a body of water, wetland or
drainage way.
4. The Developer shall delineate the Development's property
boundary adjacent to all Limits of Development (L.O.D.) as defined by Article V, Section
5.1.2 of the Land Use Code, including boundaries around existing trees that are to be
undisturbed, with orange construction fence prior to any type of construction, including
ovedot grading.
5. Prior to the commencement of any development activities within the
Limits of Development, the Developer shall relocate or eradicate any prairie dogs
inhabiting any portions of the site using City -approved methods as set forth in Chapter 4
of the City Code. If prairie dogs are present fumigation is best done between late April
and early June and relocation shall occur prior to March 1 or after May 31 of any given
year. The Developer shall consult with the City Department of Natural Resources at
least forty-eight (48) hours prior to the removal any prairie dogs to determine the
boundaries of the area in which prairie dogs will be required to be removed. The
Developer shall immediately remove and appropriately dispose of all visible deceased
animals of any species found on either the construction site or within the prairie dog
removal boundaries.
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 any certificate of occupancy in this Development. Completion of soil
amendments shall include certification by the Developer that the work has been
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completed. This certification shall be submitted to the City at least two (2) weeks prior
to the date of issuance of any 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.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and
hold harmless the City against any damages or injuries to water rights caused, directly
or indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided the Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice of any such claim to the Developer within ninety (90) days after the City first
receives notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause the forgoing indemnities and hold harmless agreements by the
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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. No combustible material will be allowed on the site until a
permanent water system is installed by the Developer and approved by the City.
2. 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.
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 Phase as shown on the Final Development Plan Documents.
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 (or Section 29-12 of the Transitional Land Use Regulations, if applicable),
prior to the Developer commencing construction. The Developer shall pay the required
fees for said Permit and construction inspection, and post security to guarantee
completion of the public improvements required for this Development, prior to issuance
of the Development Construction Permit.
K. Maintenance and Repair Guarantees
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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 for each
phase of the Development. More specific elements of these guarantees are noted in
Exhibit "C." Security for the maintenance guarantee and the repair guarantee shall be
as provided in Section 3.3.2(C) of the Land Use Code, or Section 29-14 of the
Transitional Land Use Regulations, as applicable. Notwithstanding the provisions of
paragraphs III.H and I of this Agreement to the contrary, the obligations of the
Developer pursuant to this paragraph and Exhibit "C" may not be assigned or
transferred to any other person or entity unless the warranted improvements are
completed by, and a letter of acceptance of the warranted improvements is received
from the City by, such other person or entity.
Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook"
and shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of
waste material, rubbish, or building materials caused by the Developer's operation, or
the activities of individual builders and/or subcontractors; shall remove such rubbish as
often as necessary, but no less than daily and; at the completion of the work, shall
remove all such waste materials, rubbish, tools, construction equipment, machinery,
and surplus materials from the public right-of-way. The Developer further agrees to
maintain the finished street surfaces so that they are free from dirt caused by the
Developer's operation or as a result of building activity. Any excessive accumulation of
dirt and/or construction materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until the problem is corrected
to the satisfaction of the City Engineer. If the Developer fails to adequately clean such
streets within two (2) days after receipt of written notice, the City may have the streets
cleaned at the Developer's expense and the Developer shall be responsible for prompt
payment of all such costs. The Developer also agrees to require all contractors within
the Development to keep the public right-of-way clean and free from accumulation of
dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing
operations when winds are of sufficient velocity to create blowing dust which, in the
inspector's opinion, is hazardous to the public health and welfare.
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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.
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
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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 thirty (30) days within which to
cure said default. If the nature of the default is such that it cannot be reasonably cured
within said thirty (30) days, the time for curing said default shall be extended for a
reasonable period of time, provided that the Developer commences efforts to cure
within said thirty (30) day period and continues diligent efforts thereafter until such
default is cured. In the event the default remains uncorrected, the party declaring
default may elect to: (a) terminate the Agreement and seek damages; (b) treat the
Agreement as continuing and require specific performance or; (c) avail itself of any
other remedy at law or equity.
K. In the event of the default of any of the provisions hereof by either party
which shall require the party not in default to commence legal or equitable action
against said defaulting party, the defaulting party shall be liable to the non -defaulting
party for the non -defaulting party's reasonable attorney's fees and costs incurred by
reason of the default. Nothing herein shall be construed to prevent or interfere with the
City's rights and remedies specified in Paragraph III.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement
shall not be construed as or deemed to be an agreement for the benefit of any third
party or parties, and no third party or parties shall have any right of action hereunder for
any cause whatsoever.
M. It is expressly understood and agreed by and between the parties hereto
that this Agreement shall be governed by and its terms construed under the laws of the
State of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set
forth below; and such notice or other communication shall be deemed given when so
hand -delivered or three (3) days after so mailed:
If to the City: Engineering Development Review
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
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If to the Developer: Kris Fleischli
Timberline Development, LLC
P.O. Box 1046
Loveland, CO 80539
If to the Developer: Craig C. Hau
Timberline Autoplex, LLC
2020 Caribou Drive, Suite #101
Fort Collins, CO 80525
Notwithstanding the foregoing, if any party to this Agreement, or its successors,
grantees or assigns, wishes to change the person, entity or address to which notices
under this Agreement are to be sent as provided above, such party shall do so by giving
the other parties to this Agreement written notice of such change.
O. When used in this Agreement, words of the masculine gender shall
include the feminine and neuter gender, and when the sentence so indicates, words of
the neuter gender shall refer to any gender; and words in the singular shall include the
plural and vice versa. This Agreement shall be construed according to its fair meaning,
and as if prepared by all parties hereto, and shall be deemed to be and contain the
entire understanding and agreement between the parties hereto pertaining to the
matters addressed in this Agreement. There shall be deemed to be no other terms,
conditions, promises, understandings, statements, representations, express 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
n�
By: ,Bx� i .
City Marfager T«
ArTTEST: y
I
City Clerk
APPROVED AS TO CONTENT:
16
City Engineer
APPROV AS TO FORM:
Deputy City Attorney
DEVELOPER:
TimbL;Z—A—'
Develo, LLC,
a Wy' Company
By:
Kris Fleischli, Manager
DEVELOPER:
Timberline Autoplex, LLC,
a Colorado Limited Liab .ty Company
B
Craig C. Hau, Manager
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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.
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.
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Not Applicable
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A. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement,
"development activities" shall include, but not be limited to, the following: (1) the actual
construction of improvements, (2) obtaining a permit therefor, or (3) any change in
grade, contour or appearance of the Property caused by, or on behalf of, the Developer
with the intent to construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and
facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on
the Final Development Plan Documents and in full compliance with the standards and
specifications of the City on file in the office of the City Engineer at the time of approval
of the utility plans relating to the specific utility, subject to a three (3) year time limitation
from the date of approval of the site specific development plan, unless extended in
accordance with Section 2.2.11 of the Land Use Code. 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 (plus any
extension), the Developer shall, if requested to do so by the City Engineer, resubmit the
utility plans to the City Engineer for reexamination. The City may then require the
Developer to comply with the approved standards and specifications of the City on file in
the office of the City Engineer at the time of the resubmittal.
C. No building permit for the construction of any structure within the Property
shall be issued by the City until the public water lines and stubs to each lot, fire
hydrants, electrical lines, sanitary sewer lines and stubs to each lot, and public streets
(including curb, gutter, and pavement with at least the base course completed) serving
such structure have been completed and accepted by the City. No building permits
shall be issued for any structure located in excess of six hundred and sixty feet (660')
from a single point of access, unless the structures contain sprinkler systems that are
approved by the Poudre Fire Authority.
D. Any water lines, sanitary sewer lines, storm drainage lines, electrical lines,
and/or streets described on Exhibit 'A," attached hereto, shall be installed within the
time and/or sequence required on Exhibit "A." If the City Engineer has determined that
any water lines, sanitary sewer lines, storm drainage facilities and/or streets are
required to provide service or access to other areas of the City, those facilities shall be
shown on the Final Development Plan Documents and shall be installed by the
Developer within the time as established under "Special Conditions" in this document.
E. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this Development as shown on the Final Development Plan
Documents and other approved documents pertaining to this Development on file with
the City.
`A
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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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
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 (and other lands as may be required, if any). The
Developer shall meet or exceed the minimum requirements for storm drainage facilities
as have been established by the City in the City's current Drainage Master Plans and
Design Criteria. The Developer, for itself and its successor(s) in interest, does hereby
indemnify and hold harmless the City from any and all claims that might arise, directly or
indirectly, as a result of the discharge of injurious storm drainage or seepage waters
from the Property in a manner or quantity different from that which was historically
discharged and caused by the design or construction of the storm drainage facilities,
except for (1) such claims and damages as are caused by the acts or omissions of the
City in maintenance of such facilities as have been accepted by the City for
maintenance; (2) errors, if any, in the general concept of the City's master plans (but not
to include any details of such plans, which details shall be the responsibility of the
Developer); and (3) specific written or otherwise documented directives that may be
given to the Developer by the City. The City agrees to give notice to the Developer of
any claim made against it to which this indemnity and hold harmless agreement by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice of any such claim to the Developer within ninety (90) days after the City first
receives a notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim. Approval of and acceptance by the City of any
storm drainage facility design or construction shall in no manner be deemed to
constitute a waiver or relinquishment by the City of the aforesaid indemnification. The
Developer shall engage a Colorado licensed professional engineer to design the storm
drainage facilities as aforesaid and it is expressly affirmed hereby that such
engagement shall be intended for the benefit of the City, and subsequent purchasers of
property in the Development.
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I. The Developer shall pay storm drainage basin fees in accordance with
Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for
credit or City repayment under the provisions of Chapter 26 are described together with
the estimated cost of the improvements on the attached Exhibit 'B," which
improvements, if applicable, shall include right-of-way, design and construction costs.
See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for
specific instructions.
J. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of 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
portions of the Property dedicated (both in fee simple and as easements) to the City
associated with this Development (whether on or off -site) are in compliance with all
environmental protection and anti -pollution laws, rules,, regulations, orders or
requirements, including solid waste requirements, as defined by the U. S.
Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such
portions of the Property are 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
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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
1. Prior to the issuance of any building permit(s) for this Development,
the Developer shall, in accordance with Section 26-121 of the City Code, reimburse the
City the sum of Sixteen Thousand Ninety -Five Dollars and Four Cents ($16,095.04),
plus inflation for the cost of the Developer's portion of the Timberline Road twenty-four
inch (24") water main. This reimbursement is based upon the front footage along the
water main (1,005.94 feet) which is adjacent to portions of the Development. The
reimbursement plus inflation is currently Twenty -Six Thousand Four Hundred Seventy -
Eight Dollars ($26,478.00); however, the inflation will be adjusted at the time of payment
in accordance with the Construction Cost Index for Denver as published in the
Engineering News Record of April 13, 1989.
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. The Final Development Plan Documents for this Development call
for the phasing of the construction of storm drainage improvements. The Developer
shall complete these improvements sequentially in accordance with said Final
Development Plan Documents starting with Phase 1 and ending with Phase 3. The
sequential completion of these improvements shall necessitate that the required overall
site drainage certification be done in phases in accordance with the following
requirements:
a) All on -site and off -site storm drainage improvements
associated with Phase 1 of this Development, as shown on the Final Development Plan
Documents, shall be completed by the Developer in accordance with said Final
Development Plan Documents prior to the issuance of any certificate of occupancy in
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Phase 1. Phase 1 construction shall include the overlot grading of the entire
development site. Following the overlot grading of the entire site, all the disturbed areas
in Phases 2 through 3 that are slated for future development shall be temporarily
seeded and mulched.
b) All on -site and off -site storm drainage improvements
associated with Phase 2 of this Development, as shown on the Final Development Plan
Documents, shall be completed by the Developer in accordance with said Final
Development Plan Documents prior to the issuance of any certificate of occupancy in
Phase 2.
c) All on -site and off -site storm drainage improvements
associated with Phase 3 of this Development, as shown on the Final Development Plan
Documents, shall be completed by the Developer in accordance with said Final
Development Plan Documents prior to the issuance of any certificate of occupancy in
Phase 3.
d) In all cases, completion of improvements shall include the
certification by a professional engineer licensed in Colorado that the drainage facilities
which serve any particular phase of Development have been constructed in
conformance with said Final Development Plan Documents. Said certification shall be
submitted to the City at least two (2) weeks prior to the date of issuance of any
certificate of occupancy in each phase.
2. The Developer shall be responsible for maintaining the structural
integrity and operational functions of all drainage facilities constructed 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 for each phase of the Development as shown on the Final Development
Plan Documents to stabilize all over -lot grading in and adjacent to, such phase of this
Development. The Developer shall also be required to post a security deposit in the
amount of Twenty -One Thousand Seven Hundred Fifty Dollars ($21,750.00) prior to
beginning construction of Phase 1 of the Development to guarantee the proper
installation and maintenance of the erosion control measures shown on the Final
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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). Said deposit may be in the form of cash, bond, certificate of
deposit, or a bank letter of credit. If, at any time, the Developer fails to abide by the
erosion control provisions of the Final Development Plan Documents or the erosion
control provisions of the Criteria after receiving notice of the same or an emergency
situation exists which would reasonably require immediate mitigation measures, then, in
either event, and notwithstanding any provisions contained in paragraph III.J to the
contrary, the City may enter upon the Property for the purpose of making such
improvements and undertaking such activities as may be necessary to ensure that the
provisions of said plans and the Criteria are properly enforced. The City may apply
such portion of the security deposits 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
requirements shall be followed for all buildings/structures on all lots:
Prior to the issuance of a certificate of occupancy for any lot or building the Developer
shall provide the City with certification that the lot and or the building has been graded
correctly. This grading certification shall demonstrate that the lot or building finish floor
elevation has been built in accordance with the elevation specified on the Final
Development Plan Documents. The certification shall also show that the minimum floor
elevation or minimum opening elevation for any building constructed is in compliance
with the minimum elevation as required on the Final Development Plan Documents.
The certification shall demonstrate as well that any minor swales adjacent to the
building or on the lot have been graded correctly and in accordance with the grades
shown on the Final Development Plan Documents. The certification shall also show that
the elevations of all corners of the lot are in accordance with the elevations shown on
the Final Development Plan Documents. Said certification shall be completed by a
Colorado licensed professional engineer and shall be submitted to the City at least two
(2) weeks prior to the date of issuance of the desired certificate of occupancy.
5. The Developer shall obtain the City's prior approval of any changes
from the Final Development Plan Documents in grade elevations and/or storm drainage
facility configuration that occur as a result of the construction of houses and/or
development of lots, whether by the Developer or other parties. The City reserves the
right to withhold the issuance of building permits and certificates of occupancy for this
Development until the City has deemed such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
6. The Developer shall limit the construction of the off -site 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 off -site storm drainage improvements in accordance with the
Final Development Plan Documents promptly following construction. The Developer
shall ensure that no negative impact occurs to the adjoining properties during the
construction of these drainage improvements. No grading shall be done outside of the
approved areas as shown on the Final Development Plan Documents.
7. The drainage design for this Development provides for the
evacuation of storm drainage runoff in a reasonable amount of time out of the water
quality and detention facilities and into the drainage outfall system. The water quality
and detention facilities have been designed to discharge stormwater runoff from
frequent storms over a forty (40) hour period through a small diameter outlet. Under the
intended operation of the water quality and detention pond, there will not be standing
water in the pond more than forty-eight (48) hours after the end of a rainfall event. If,
during or within two (2) years after construction and acceptance of the detention
facilities associated with this Development, surfacing or standing water conditions
persist in these facilities; and if such conditions are beyond what can be expected in
accordance with the approved stormwater design, the Developer shall promptly, upon
such discovery, install an adequate de -watering system in the detention facilities. Such
a system shall be reviewed and approved by the City prior to installation.
8. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed outside of the public right-of-way, except for
storm drainage line E, which line shall be maintained in its entirety by the City following
certification of this line by the Developer and its acceptance by the City. Storm drainage
line B, from station 6+50 to the downstream end including the flared -end section, and
storm drainage line F, from manhole F-2 to the downstream end, shall be maintained by
the City following certification of these lines by the Developer and their acceptance by
the City.
D. Streets.
1. The Developer is responsible for designing and constructing
Timberline Road within the right-of-way dedicated as a part of this Development prior to
the issuance of the first building permit in accordance with Section 24-95 of the City
Code. However, the parties agree that the Developer has satisfied those requirements
by participating in the Timberline Road, Drake to Prospect, Road Widening Project by
the City of Fort Collins Street Oversizing Department. The Developer has paid One
Hundred Fifteen Thousand Four Hundred Forty -Seven Dollars ($115,447.00) for its
local street portion based on a preliminary estimate. At the completion of the Road
Widening Project, any funds unspent will be reimbursed to the Developer.
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2. To satisfy Pedestrian Level of Service requirements, this
Development is responsible for constructing a temporary asphalt sidewalk on the east
side of Joseph Allen Drive from the southern property boundary to Nancy Gray Avenue
as shown on the Final Development Plan Documents. This shall be constructed by the
Developer prior to the issuance of any building permit. This sidewalk improvement is
not eligible for either a repay or reimbursement.
3. This Development is included in a Special Improvement District,
#95, and is subject to special assessments for improvements to the Prospect and
Timberline intersection.
4. 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.
5. 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.
6. No street oversizing reimbursement from the City is due the
Developer for this Development.
E. Natural Resources
1. The Developer shall ensure that all open space and/or drainage
tracts properly maintained for a three (3) year period following construction thereof to
ensure that the vegetation and hydrologic regime are fully established. Monitoring of
the vegetation shall occur at least in June and September of the first growing season
and in late summer of the remaining growing seasons. The status and effectiveness of
the vegetation shall be evaluated and the results reported to the City of Fort Collins
Current Planning Department semi-annually for review.
2. The areas of the Development that are planned to be seeded, shall
be inspected jointly by the Developer and the City at specified intervals for three (3)
seasons or until determined by the City to be well established in accordance with the
coverage specifications of this paragraph, whichever occurs first. Areas seeded in the
Spring shall be inspected for required coverage each immediately subsequent Autumn
not later than October 1st. Areas seeded at any other time shall be inspected each
immediately subsequent Summer not later than August 1st. The required coverage for
the first inspection shall be ten (10) viable live seedlings of the specified species per
1000 square centimeters (approximately one square foot), or fifty percent (50%)
coverage of the specified foliage as measured from five feet (5') directly overhead, with
no bare spots larger than 1000 square centimeters. At the time of the second growing
E