HomeMy WebLinkAboutGROVE AT FORT COLLINS - Filed DA-DEVELOPMENT AGREEMENT - 2012-03-09RECEPTION#: 20120012827, 02/28/2012 at
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Scott Doyle, Larimer County, CO
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement"), is made and entered
into this —,a day of l+F�3 , v�� 2012, by and between the CITY OF FORT
COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City";
and Campus Crest at Fort Collins, LLC, a Delaware limited liability company, hereinafter
referred to as the "Developer"; and Colorado State University Research Foundation, a
Colorado non-profit corporation, hereinafter referred to as the "Owner."
WITNESSETH:
WHEREAS, the Owner 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:
The Grove at Fort Collins, being a replat of a portion of Tract C, Windtrail
Townhomes P.U.D., First Replat; a replat of a portion of lot 1, Centre for
Advanced Technology P.U.D., Ninth Filing and a tract of land, located in Section
23, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins,
County of Larimer, State of Colorado, except Tract A thereof.
WHEREAS, the Owner and the Developer have entered into agreements
pursuant to which the Developer has acquired a long-term leasehold interest in a
portion of the Property and temporary and permanent easements over and across all of
the Property; and
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
Property 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
City Clerk's Office, Fon Collins, Colorado
limits as delineated on the Final Development Plan Documents for this Project. An
approved no -rise certification must accompany the floodplain use permit for construction
elements within the floodway portion of the floodplain.
15. A FEMA Elevation Certificate shall be provided to and approved by
the Fort Collins Floodplain Administrator prior to the issuance of a Certificate of
Occupancy for any structure in the 100-year floodplain. This certification can be
completed in conjunction with the grading certification required in paragraph II.C.4
above.
16. Failure to comply with all floodplain requirements in sections 9.12
above shall result in a stop work order and/or the withholding of the issuance of
additional building permits and/ or certificates of occupancy until the violation(s) are
corrected and approved by the City in accordance with Chapter 10 of City Code.
D. Streets
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along New Rolland
Moore Drive for those portions of said street abutting the Property as shown on the
Final Development Plan Documents. Reimbursement for New Rolland Moore Drive
shall be for oversizing the street from local (access) standards to collector standards;
however, said reimbursement shall not include 460 feet in linear length of the overall
approximately 1,796 feet of roadway due to the City's previous reimbursement for the
460 feet of Existing Rolland Moore Drive roadway abutting the Gardens at Spring
Creek. The City shall make reimbursement to the Developer for the aforesaid oversized
street improvements in accordance with Section 24-112 of the Code of the City. The
Developer agrees and understands that the City shall have no obligation to make
reimbursement payments for street oversizing unless funds for such payments shall first
have been budgeted and appropriated from the Street Oversizing Fund by the City
Council; and the Developer further understands that to the extent that funds are not
available for such reimbursement, the City may not, in the absence of the Developer's
agreement, require the construction, at the Developer's expense, of any oversized
portion of streets not reasonably necessary to offset the traffic impacts of the
Development. The Developer does hereby agree to construct the aforesaid oversized
street improvements with the understanding that the Developer may not be fully
reimbursed by the City for the cost of such construction. The Developer further agrees
to accept payment in accordance with Section 24-112 (d) of the Code of the City as full
and final settlement and complete accord and satisfaction of all obligations of the City to
make reimbursements to the Developer for street oversizing expenses.
2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Paragraph II(D) are "City improvements" (as
defined below) and, as such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the sum of Thirty
Thousand Dollars ($30,000), the contract for the construction of the same must be
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submitted to a competitive bidding process resulting in an award to the lowest
responsible bidder; and evidence must be submitted to the City prior to the
commencement of the work showing that the award was given to the lowest responsible
bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the
contract for the construction of the improvements must be insured by a performance
bond or other equivalent security. For purposes of this paragraph, the term "City
improvements" shall mean either (1) existing improvements owned by the City that are
to be modified or reconstructed, or (2) any improvements funded in whole or in part by
the City.
3. The Developer hereby indemnifies and holds the City harmless
from any damage caused to the roadway (concrete, asphalt, curb and gutter, pavement
subgrade) when such damage is caused, directly or indirectly, by the acts or omissions
of the Developer in the operation and maintenance of the rain gardens along New
Rolland Moore Drive within the Development (including the irrigating of the landscaping
within the rain gardens) as shown on the Final Development Plan Documents.
4. Portions of the right-of-way for the Existing Rolland Moore Drive
(which were dedicated to the City in conjunction with the Gardens at Spring Creek
development) are no longer required because of the shortening and reconfiguration of
the roadway. The Developer shall be responsible for (i) payment to the City of costs to
vacate such right-of-way, which include the City's Transportation Development Review
Fee of $800 and Larimer County recording fees (presently estimated to be $50) for the
ordinance approving the vacation; and (ii) the provision of a legal description and exhibit
acceptable to the City for the area to be vacated. The City reserves the right to withhold
the issuance of building permits and certificates of occupancy until the above described
costs and materials are provided to the City. The City shall be responsible for
processing the right-of-way vacation upon receipt of the items to be submitted by the
Developer. The ordinance of the City vacating such right-of-way shall provide that the
vacation shall be effective upon the City's acceptance of the public streets constructed
within the Project and the City shall be responsible for recording such ordinance upon
acceptance of the public streets. In the event that the actual recording fees submitted
by the Developer exceed the amount submitted by the Developer therefor, the City shall
refund the excess fees to the Developer.
5. 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 the 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.
6. Following completion and City acceptance 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.
I
E. Natural Resources
1. The Final Development Plan Documents identify areas within the
Property which are not to be disturbed in order to prevent environmental damage to the
natural habitats and features ("Natural Habitat Buffer Zone"). Neither the Owner,
Developer nor its contractor shall intrude upon, remove, fill, dredge, build upon, degrade
or otherwise alter natural habitats and features delineated on the Final Development
Plan Documents, except as defined in Section 3.4.1(E)(2) of the Land Use Code or as
noted in the Final Development Plan Documents. The Developer shall notify the City of
Fort Collins Environmental Planner when on -site construction begins; the City's
Environmental Planner shall periodically inspect the site to ensure compliance with the
buffer zone requirements (as set forth in Section 3.4.1(E) of the Land Use Code)
established in the Final Development Plan Documents.
2. The Developer shall delineate the Development's property
boundary adjacent to all Limits of Development (L.O.D.) as defined by Section
3.4.1(E)(2)(N) of the Land Use Code, including boundaries around existing trees that
are to be undisturbed with orange construction fence, or another method approved by
the City pursuant to said Section 3.4.1(E)(2)(N) of the Land Use Code prior to any type
of construction, including overlot grading.
3. All weed control, vegetation management, and monitoring efforts
must adhere to the Long -Term Monitoring and Weed Management Plan prepared by
Cedar Creek Associates and attached to this Development Agreement as Exhibit "C".
An estimate for said monitoring shall prepared by the Developer and approved by the
City. Developer shall provide to the City prior to issuance of the Development
Construction Permit an acceptable form of security (cash, bond, or letter of credit) to
guarantee completion of the monitoring outlined in the above -referenced plan at 125%
of the approved estimate for said monitoring. The City shall return the security to the
Developer upon completion of the term of the monitoring as provided in the Long Term
Monitoring and Weed Management Plan.
4. Developer shall provide to the City prior to issuance of any building
permits an acceptable form of security (cash, bond, or letter of credit) to guarantee
completion of the buffer zone landscape improvements. An estimate for said landscape
improvements shall be prepared by the Developer and approved by the City. Said
estimate of landscape improvements shall constitute plant material and irrigation system
improvements at 67% of the construction value to be held until said landscape
improvements are constructed and accepted by the City. The City shall return the
security to the Developer upon the Developer's installation of the landscape
improvements and the City's acceptance thereof (see the Long -Term Monitoring and
Weed Management Plan for these criteria). If the buffer zone improvements have not
been established in accordance with the approved plans, then the Developer shall
promptly take such steps as are necessary (with a written proposal of steps and timing
to be approved by the City) to bring the buffer zone into conformance with the approved
plans (this step can be completed in conjunction with the reporting and adaptive
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management strategies associated with the Long -Term Monitorinq and Weed
Manaaement Plan, referenced above). If the Developer does not take action to bring the
buffer zone into conformance with the approved plans, the City shall use the security
provided by the Developer to install said landscape improvements and the Developer
shall forfeit any right to the security.
5. The trees along the Larimer Canal No. 2 shall be surveyed prior to
any construction to confirm the presence or absence of raptor nesting activity. If an
active nest is documented, the buffer zone setbacks in 3.4.1 shall apply, and as per the
applicant's Ecological Characterization Study, "should be maintained during the
breeding, nesting, and nestling rearing period."
6. Fueling facilities shall be located at least one hundred (100) feet
from natural body of water, wetland, natural drainage way or manmade drainage way.
The fuel tanks and fueling area must be set in a containment area that will not allow a
fuel spill to directly flow, seep, run off, or be washed into a body of water, wetland or
drainage way.
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 or as noted below, 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. For those
areas of the plan designated as Natural Habitat Buffer Zones, soil testing prior to
amending the soil can be completed to determine if the existing topsoil meets the
standards set forth in Section 3.8.21 of the Land Use Code. If the topsoil within the
Natural Habitat Buffer Zones meets or exceeds these standards, then only soil
loosening shall be required. Completion of soil amendments shall include certification
by the Developer that the work has been completed. This certification shall be
submitted to the City at least two (2) weeks prior to the date of issuance of any
certificate of occupancy in this Development.
G. Parks and Recreation
1. The Owner agrees to reimburse the City the sum of $69,050,00,
plus a percentage added to recognize the effects of inflation, for the cost to construct
Existing Rolland Moore Drive adjacent to the Property and Tract A of the Grove at Fort
Collins. The inflation factor shall be calculated using the construction cost index for
Denver as published in the Engineering News Record (ENR) of June, 2003, and the
same index published in the ENR in the month preceding payment of the
reimbursement. (For reference, the inflation cost adjustment from June 2003 to
November 2011 is 37%, resulting in the reimbursable amount of $94,598.50 with the
37% added to recognize the effects of inflation, as of November 2011.) Payment shall
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be made to the City prior to the issuance of the first building permit within the
Development.
2. The Developer is responsible for the removal of any and all portions
of Existing Rolland Moore Drive not needed due to reconfiguration of the road as shown
on the Final Development Plan Documents. This responsibility includes all concrete
curb, gutter, and sidewalk, roadway asphalt and road base, and landscaping. The
Developer will furnish and place clean fill to a depth within 4" of finished grade and
furnish and place 4" of top soil leveled to match existing surrounding grades. Fill
material and topsoil must be approved by the City (Park Maintenance) prior to
installation. The topsoil must be prepared for seeding per Sec. 12-132 of the City Code
regarding soil amendment. All disturbed areas shall then be seeded by the Developer
with a seed mix approved by the City (Park Maintenance
prior to seeding. The City
(Park Maintenance) must be given two weeks notice prior to any work being done on
this portion of Existing Rolland Moore Drive. The Developer shall be responsible for all
labor, materials, erosion protection, permits and traffic control to properly complete the
project.
3. As shown on the Final Development Plan Documents, the
Developer is responsible for the ongoing maintenance of the approximately 65 feet of
sidewalk that is outside of Property, situated in the Existing Rolland Moore Drive right-
of-way, and follows both the west side of Perennial Lane and the west side of the
maintenance driveway for the Gardens at Spring Creek.
H. 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
the City's 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
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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.
4. 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.
5. 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.
Property. 6. No basements are allowed for any residential structure within the
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 a
reasonable accessway to each building. 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
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and/or the Poudre Fire Authority may issue a stop work order for all or part of the
Development.
3. The Developer shall ensure that tree canopies do not encroach
within any fire lanes (denoted as emergency access easements, as shown on the Final
Development Documents) for a vertical distance of 14' from the ground level.
J. Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain Footing and Foundation permits 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.
K. Development Construction Permit
1. The Developer shall apply for and obtain a Development
Construction Permit for the 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 the Development as
shown on the Final Development Plan Documents, prior to issuance of the
Development Construction Permit. In addition, prior to the issuance of the Development
Construction Permit, the Developer is required to apply for, and pay to the City, the
costs associated with the street name change of Existing Rolland Moore Drive.
L. 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 the Development in
accordance with the Final Development Plan Documents, 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 "B." 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 "B"
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.
M. Building Construction Standards
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1. At least one multi -family building that is constructed within the
Development (the "LEED Building") must be Leadership in Energy and Environmental
Design ("LEED") certified. Prior to the issuance of a building permit for the LEED
Building, the Developer shall provide evidence to the City of the official registration of
the LEED Building with the U.S. Green Building Council's LEED for Homes Rating
System and a preliminary scorecard. Prior to issuance of the certificate of occupancy
for the LEED Building, the Developer shall provide evidence to the City of the complete
submittal package provided to the U.S. Green Building Council ("USGBC") for
determination of project certification. Developer shall obtain LEED certification for the
LEED Building no later than two (2) years after issuance of the certificate of occupancy
for such building, and provide evidence thereof to the City.
2. All other buildings within the Project shall be built to the same or
comparable specifications and standards as the LEED Building, but such buildings are
not required to go through the LEED certification process or be LEED certified. Prior to
issuance of the certificate of occupancy for each such building, the Developer shall
submit to the City a statement from a third -party LEED Accredited Professional and a
LEED Green Rater (i.e. not including an employee of the Developer) which verifies that
each such building in the Project has been built to the same or comparable
specifications and standards as the LEED Building, and shall also provide with such
statement reasonable detail (in the form of documentation of the results of visual
inspections'conducted periodically during construction) in support thereof.
N. Heating
1. Buildings constructed within the Development shall not be equipped
with electric sourced heating systems.
O. Ditch Realignment
1. No final certificate of occupancy for any building constructed within
the Development shall be issued by the City until the new channel for the Larimer No. 2
Canal has been excavated for the rerouting of irrigation water flows, and is fully
operational.
P. Prohibition of Pets
1. To the extent permitted by law, all leases for residential units
constructed within the Development shall prohibit pets.
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
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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
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 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 or the Land Use Code 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.
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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, including any subsequent
replatting of all, or a portion of the Property. This Agreement shall also 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 Owner'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 Owner transfers title to the Property and is thereby
divested of all equitable and legal interest in the Property, the Owner 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. In the event the Developer transfers its interest in 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.
K. 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 that such defaulting party is the Owner, the City shall
provide a copy of such notice to the Developer within the same time period. The
Developer shall have the right, but not the obligation, to cure a default of the Owner. 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.
L. 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
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involve the installation of and construction of utilities and other municipal improvements
in connection with the development of the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
I. General Conditions
A. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement,
development activities shall include, but not be limited to, the following: (1) the actual
construction of improvements, (2) obtaining a permit therefor, or (3) any change in
grade, contour or appearance of the Property caused by, or on behalf of, the Developer
with the intent to construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and
facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on
the Final Development Plan Documents and in full compliance with the standards and
specifications of the City on file in the office of the City Engineer at the time of approval
of the utility plans relating to the specific utility, subject to a three (3) year time limitation
from the date of approval of the site specific development plan. In the event that the
Developer commences or performs any construction pursuant hereto after the passage
of three (3) years from the date of approval of the site specific development plan, the
Developer shall resubmit the utility plans to the City Engineer for reexamination. The
City may then require the Developer to comply with the approved standards and
specifications of the City on file in the office of the City Engineer at the time of the
resubmittal.
C. No building permit for the construction of any structure within the Property
shall be issued by the City until the public water lines and stubs to each lot, fire
hydrants, electrical lines, sanitary sewer lines and stubs to each lot, and public streets
(including curb, gutter, and pavement with at least the base course completed) serving
such structure have been completed and accepted by the City. No building permits
shall be issued for any structure located in excess of six hundred and sixty feet (660')
from a single point of access, unless the structures contain sprinkler systems that are
approved by the Poudre Fire Authority.
D. Any water lines, sanitary sewer lines, storm drainage lines, electrical lines,
and/or streets described on Exhibit 'A," attached hereto, shall be installed within the
time and/or sequence required on Exhibit "A." If the City Engineer has determined that
any water lines, sanitary sewer lines, storm drainage facilities and/or streets are
required to provide service or access to other areas of the City, those facilities shall be
shown on the Final Development Plan Documents and shall be installed by the
Developer within the time as established under "Special Conditions" in this Agreement.
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reason of the default. Nothing herein shall be construed to prevent or interfere with the
City's rights and remedies specified in Para h III
i.D of this Agreement.
M. 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.
N. 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.
0. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set
forth below; and such notice or other communication shall be deemed given when so
hand -delivered or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
If to the Developer: Campus Crest at Fort Collins, LLC
Attn: Robbie Robinson
2100 Rexford Road, Suite 414
Charlotte, NC 28211
With a copy to: Liley Rogers & Martell, LLC
Attn: Lucia A. Liley
300 S, Howes Street
Fort Collins, CO 80521
If to the Owner: CSURF
Attn: Nancy Hurt
P.O. Box 483
Fort Collins, CO 80522
With a copy to: David L. Wood
303 West Prospect Road
Fort Collins, CO 80526
20
grantees or assigns, wishes to change the person, entity or address Notwithstanding the foregoing, if any party to this Agreement, or its successors,
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.
P. 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
matters addressed in this Agreement. There shall be deemed to be noother 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.
Q. Unless the Owner were to exercise any of the rights of the Developer in
which event the obligations of the Developer shall become those of the Owner, the City
and the Developer expressly acknowledge and agree that the Owner shall not be liable
for any obligations imposed on the Developer under this Agreement and shall be liable
only for those obligations expressly stated in the Agreement to be obligations of the
Owner. Furthermore, the City and the Owner expressly acknowledge and agree that
the Developer shall not be liable for any obligations imposed on the Owner under this
Agreement.
R. This Agreement may be executed in separate counterparts. When all
parties have executed a copy of this Agreement, it shall be binding upon the parties the
same as if they had all executed the original document.
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
as
City Manager
21
APPROVED AS TO CONTENT:
.ro, cityn�r
APPROV AS TO FORM:
Deputy City Attorney
WA
DEVELOPER:
Campus Crest at Fort Collins, LLC, a Delaware
limited liability company
By: Campus Crest Properties, LLC, a North
Carolina limited liability company, its Manager
Printed Name: ;
Title: Manager
STATE OF NORTH CAROLINA )
) ss.
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 9 day of
✓UA/ , 2012, by Campus Crest at Fort Collins, LLC, a Delaware limited liability
company y CaEdn'atj
us Crest Prop rties, LLC, a North Carolina limited liability company,
its Manager, by L. L�-�y,,., its Manager.
1
Notary Public
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Notary Public
Mecklenburg county
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23
OWNER:
Colorado State University Research
Foundation, a Colorado non-profit corporation
By:
Kathleen Henry, CEO/ r sident
G
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this _[41 _— day of
Colo7, 2012, by Kathleen Henry as CEO/President and by Julie Birdsall as CFO of
roState University Research Foundation, a Colorado non-profit corporation.
My Commission Expires: / 6 /Z/?
PublicNotary .rr
O,�PFtY pC1��i
MARTHA JO
* ' WILSON
�OF C01-C�
24
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.
25
EXHIBIT "B"
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 Project. 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 Project, from any and all claims, damages, or
demands arising on account of the design and construction of public improvements of
the Project shown on the approved plans and documents for this Project; and the
Developer 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.
26
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.
27
EXHIBIT "C"
LONG-TERM MONITORING
AND
WEED MANAGEMENT PLAN
FOR
THE GROVE AT FORT COLLINS
PREPARED BY STEPHEN LONG
CEDAR CREEK ASSOCIATES
12-08-2011
WEED CONTROL PLAN SUMMARY
This section summarizes the elements of the weed control plan to be prepared for the
Natural Habitat Buffer Zone (project area) if weeds are deemed to be detrimental to plant
establishment success or are required to be eradicated as per regulations. No more than 10 %
weeds (see below for "weed" definition), as estimated based on total plant cover, will be permitted
in the project area at the end of the three-year monitoring period. The project area will be
evaluated twice per year for weed establishment; once in mid -growing season and once at the
end of each growing season for a period of three years following construction and planting, or as
needed based on field determinations. The completed plan will be submitted to governmental
agencies, including the City of Fort Collins Natural Areas Program and Larimer County, as
required for review and approval.
The weed control plan will be prepared by a Commercial Pesticide Applicator licensed in the
Rangeland category by the Colorado Department of Plant Industry (LCPA). All subsequent weed
control activities will also be conducted by an LCPA. The plan to be prepared will take the form of
an Integrated Pest Management Plan (IPM) that will consider all methods of control that would
potentially be applicable to the project area. These methods include mechanical, chemical,
cultural, and biological techniques. Prior to plan preparation, a visit to the project area will be
conducted at the end of the first growing season by the LCPA accompanied by representatives of
the City of Fort Collins, Campus Crest at Fort Collins LLC, and Larimer County, as appropriate.
The objective of this site visit is to assess site conditions, routes of access, weedy species
present, the relationship of surrounding water / wetland bodies to the proposed areas to be
treated, potential sources of run-on and run-off, and any other factors relevant to the weed control
planning process. Given the presence of wetlands adjacent to project area, initial emphasis will
be given to weed control methods other than those of a chemical nature, though chemical
controls do exist that are considered by the Corps of Engineers to be appropriate in such cases.
Plant species to be considered as weeds and controlled and/or eradicated at this project
site, as per City code, are those listed by the Larimer County Weed Control District and those
listed as noxious by the Colorado Weed Law. Species listed by Larimer County, or observed on
the site, and to be controlled are as follows. Additional species may be identified for specific
control in the effort to reach 90% non -weed species cover.
Canada Thistle Russian knapweed
Dalmatian toadflax Spotted knapweed
Diffuse Knapweed Tamarisk (saltcedar)
Leafy spurge Yellow toadflax
Bindweed Musk Thistle
Note: Smooth brome was planted across the site for haying purposes in the past and is the
predominant non -wetland species on the site. It will be very difficult to eradicate this species.
Reasonable efforts will be made to control smooth brome and cheat grass however, they are not
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
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. Public easements shall be provided for access, utilities and drainage as
required by the design and location of such infrastructure and as reflected on the plans.
Alignment and grades on privately maintained streets and drives shall allow for safe
access, ingress and egress by owners, visitors, the general public and public safety
officials and equipment, as approved by the City Engineer.
I. All storm drainage facilities required by the Final Development Plan
Documents shall be designed and constructed by the Developer so as to protect
downstream and adjacent properties against injury and to adequately serve the
Property (and other lands as may be required, if any). The Developer shall meet or
exceed the minimum requirements for storm drainage facilities as have been
established by the City in its Alternative Analysis for the Design of the Mason Street
Outfall, as a part of the Spring Creek Master Drainage Plan, 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 required by the Final
Development Plan Documents, 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
3
to be considered as part of the weed species listed above and will not be counted as part of the
10% allowable weed species.
VEGETATION SUCCESS MONITORING
At the end of each of the first three full growing seasons following initial planting, the Natural
Habitat Buffer Zone (project area) will be monitored quantitatively to determine the overall level of
site stability and vegetation establishment. The results of this assessment will be submitted to
the City of Fort Collins in a report on or about December 31 of each monitoring year. Information
and showings to be submitted with each annual quantitative monitoring report include a project
location map, project history summary, a discussion of the conditions of the mitigation sites, a
summary of the data collected, copies of all data sheets completed in the field, and a continuation
of the photographic record submitted with the first annual report. As appropriate,
recommendations will be made with respect to the continued maintenance and monitoring of the
mitigation area.
Native Species Planting Success Assessment
Revegetation success will be judged based on three criteria. These criteria include (1) the
percent total ground cover of native grass and forb species present in the project area, (2) the
percent success of the shrub and tree plantings and (3) the suppression of weed species.
The total ground cover criterion will be assessed on an annual basis. During the first growing
season, the required coverage shall be 40% coverage (not including the weed species identified
in the weed plan) with no significant bare spots. During the second growing season's inspection,
there shall be 60% foliage cover (not including the weed species identified in the weed plan) of
the specified species as found during the methodology described below. In the third growing
season, or as needed until the success criterion is met, the total ground cover contributed by all
grass, forb, and shrub species (not including the weed species identified in the weed plan)
present in the project area is equal to or greater than 80%. In addition, there will be no evidence
of erosion detrimental to vegetation establishment or site stability.
Shrub and tree plantings will be considered successful when 90 percent of the total shrub
and tree plantings are alive at the end of growing season three. In the case of shrubs, volunteer
plants of all native species will be included in the tally.
The weed suppression criteria will be met if, after three growing seasons, the total cover
provided by weed -classed species does not exceed 10 percent across the project area.
In terms of surficial stability, the presence of rills and gullies, if any, will be noted. All gullies
will be repaired at the first opportunity and reseeded / mulched at the next recognized planting
season. All rills determined to be detrimental to the establishment of a stable, self-perpetuating
b\
vegetation community will be obliterated by surficial manipulation or repaired as noted for
identified gullies.
Any actions deemed necessary by the applicant (with approval from the City) or the City to
enhance mitigation success and / or site stability will be taken as a result of each annual
monitoring assessment. Monitoring will continue on at least an annual basis for a period of three
years, or until determined by the City that the vegetation is well established in accordance with
the coverage specifications described above, whichever occurs first.
Sampling Technique Specifics
Plant cover will be evaluated at the end of each growing season using the point -intercept
method. A 100-foot tape will be laid out along the surface at a maximum of eight locations in the
planted uplands. Transects will be sited to represent the vegetation conditions common within
the project area. At each one -foot interval along each transect, a "hit' will be recorded. A hit will
consist of vegetation (by species), "free water", floating algae, or bare ground/rock/litter
combined. The percent total plant cover will then be calculated for each transect.
Shrub and tree species planted will be tallied at the end of each growing season by a simple
count of viable species present at the time of monitoring fieldwork. Any indications of insect or
animal damage will be noted as will any indications of nutrient deficiencies.
ADDITIONAL. MONITORING REQUESTED BY THE CITY
Construction activities will occur in close proximity to existing wetlands near the Windtrail
Drainage. All attempts will be made during construction to avoid all disturbances to wetlands.
Where wetland disturbances cannot be avoided, disturbances will be limited to passage over the
wetlands by construction equipment. The wetlands will be protected with a construction mat
across which construction equipment will travel. At the termination of construction, the
construction mat will be removed and the wetland allowed to return to natural conditions. As
requested by the City, the disturbances related to construction in these wetlands will be assessed
at the end of the growing season following the termination of construction. Should it be
determined that the effected wetlands are not re-establishing to a pre -disturbance condition as
compared to the abutting undisturbed wetlands, a site preparation/planting plan will be developed
and implemented to mitigate these disturbances. The disturbed/revegetated areas will be
included in the vegetation monitoring activities as noted above. Given the presumed small sizes
and disjunct locations of the wetlands potentially to be disturbed, the vegetation success
evaluations will be completed using a plot/cover estimate technique similar to that currently in use
at the project site at the end of the first growing season following planting.
harmless agreement by the Developer could apply, and the Developer shall have the
right to defend any lawsuit based on such claim and to settle any such claim provided
Developer must obtain a complete discharge of all City liability through such settlement.
Failure of the City to give notice of any such claim to the Developer within ninety (90)
days after the City first receives a notice of such claim under the Colorado
Governmental Immunity Act for the same, shall cause this indemnity and hold harmless
agreement by the Developer to not apply to such claim and such failure shall constitute
a release of this indemnity and hold harmless agreement as to such claim. Approval of
and acceptance by the City of any storm drainage facility design or construction shall in
no manner be deemed to constitute a waiver or relinquishment by the City of the
aforesaid indemnification. The Developer shall engage a Colorado licensed
professional engineer to design the storm drainage facilities as aforesaid and it is
expressly affirmed hereby that such engagement shall be intended for the benefit of the
City, and subsequent purchasers of property in the Development.
J. The Developer shall pay the applicable "stormwater plant investment fee"
in accordance with Chapter 26, Article VII of the City Code. This fee is included with
building permit fees and shall be paid prior to the issuance of each building permit.
K. 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.
L. The Developer specifically represents that to 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
4
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.
M. 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 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.
N. If the Developer or Contractor or any agent or representative thereof
causes damage to any public infrastructure (including without limitation, any surface
pavers, flagstones, or other stone or concrete surfaces, planters, street and decorative
lights, or canopies) such damage shall be promptly repaired with the same kind, quality,
color, serviceability and material composition aspects as was possessed by the
infrastructure damaged, unless otherwise expressly agreed to by the City in writing.
II. Special Conditions
A. Water and Sewer Lines
Not applicable
B. Rolland Moore Drive
1. As shown on the Final Development Plan Documents, the
Developer has proposed a design alignment that provides connectivity of Rolland Moore
Drive from Centre Avenue to Shields Street in conformance with the City's Master
Street Plan. This alignment is a revised alignment from the previously approved 2003
CSURF Centre for Advanced Technology Overall Development Plan ("2003 ODP") and
does not utilize an existing section of Rolland Moore Drive constructed by the Gardens
at Spring Creek development ("Existing Rolland Moore Drive") in accordance with the
2003 ODP. Instead, the Developer has proposed a new connection of Rolland Moore
Drive that provides connectivity of the roadway from Centre Avenue to Shields Street
through an additional connection to Centre Avenue ("New Rolland Moore Drive") that is
5
approximately 800 feet south of the Existing Rolland Moore Drive in conformance with
the Amendment CSURF Centre for Advanced Technology Overall Development Plan
approved in 2011. The usage of the terms Existing Rolland Moore Drive and New
Rolland Moore Drive are for clarifying purposes throughout this Agreement and shall not
be construed as the actual roadway names. It is intended that Existing Rolland Moore
Drive, known and existing as Rolland Moore Drive as of the date of this Agreement, will
be renamed and New Rolland Moore Drive will become "Rolland Moore Drive" because
it will provide connectivity from Centre Avenue to Shields Street.
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements associated
with this Development, as shown on the Final Development Plan Documents, shall be
completed by the Developer in accordance with said Final Development Plan
Documents prior to the issuance any certificate of occupancy. Completion of
improvements shall include the certification by a professional engineer licensed in
Colorado that the drainage facilities which serve this Development have been
constructed in conformance with said Final Development Plan Documents. Said
certification shall be submitted to the City at least two weeks prior to the issuance of any
certificate of occupancy in this Development.
2. The Developer shall be responsible for maintaining the structural
integrity and operational functions of all drainage facilities as shown on the Final
Development Plan Documents 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 in accordance with the approved Final
Development Plan Documents following certification shall result in the withholding of the
issuance of additional building permits and/ or certificates of occupancy until such
drainage facilities are repaired to the operational function and structural integrity which
was approved by the City.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the Final Development Plan Documents to stabilize all over -
lot grading in and adjacent to this Development. The Developer shall also be required
to post a security deposit in the amount of $28,320 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion control measures
shown on the Final Development Plan Documents. Said security deposit(s) shall be
made in accordance with the criteria set forth in the City's Storm Drainage Design
Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to
6
abide by the erosion control provisions of the Final Development Plan Documents or the
erosion control provisions of the Criteria after receiving notice of the same or an
emergency situation exists which would reasonably require immediate mitigation
measures, then, in either event, and notwithstanding any provisions contained in
Paragraph III(J) to the contrary, the City may enter upon the Property for the purpose of
making such improvements and undertaking such activities as may be necessary to
ensure that the provisions of said plans and the Criteria are properly enforced. The City
may apply such portion of the security deposit(s) as may be necessary to pay all costs
incurred by the City in undertaking the administration, construction, and/or installation of
the erosion control measures required by said plans and the Criteria. In addition, the
City shall have the option to withhold building permits and certificates of occupancy, as
stated in Paragraph III.D of this Agreement, as it deems necessary in order to ensure
that the Developer installs and maintains the erosion control measures throughout the
build -out of this Development.
4. It is important that all lots be graded to drain in the configuration
shown on the Final Development Plan Documents. For this reason the following
requirements shall be followed for all buildings/structures on all lots:
Prior to the issuance of a certificate of occupancy for any lot or building
the Developer shall provide the City with certification that the lot and or the
building has been graded correctly. This grading certification shall
demonstrate that the lot or building finish floor elevation has been built in
accordance with the elevation specified on the Final Development Plan
Documents. The certification shall also show that the minimum floor
elevation or minimum opening elevation for any building constructed is in
compliance with the minimum elevation as required on the Final
Development Plan Documents. The certification shall demonstrate as well
that any minor swales adjacent to the building or on the lot have been
graded correctly and in accordance with the grades shown on the Final
Development Plan Documents. The certification shall also show that the
elevations of all corners of the lot are in accordance with the elevations
shown on the Final Development Plan Documents. Said certification shall
be completed by a Colorado licensed professional engineer and shall be
submitted to the City at least two weeks prior to the date of issuance of the
desired certificate of occupancy.
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 any off -site storm
drainage improvements to the limits of construction as shown on the Final Development
Plan Documents. The contractor shall re -seed and/or restore any areas that are
disturbed during construction of 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 any such facilities. 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 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 48 hours after the end of a rainfall event. If after
construction and acceptance of the detention facilities, as provided in the Final
Development Plan Documents, 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 by the Developer outside of the public right-of-
way in accordance with the Final Development Plan Documents. The Developer shall
maintain the major swale constructed by the Developer in Outlot A to ensure the swale
functions as designed including flow capacity and all slopes while meeting all natural
area and landscaping requirements. The Developer shall also maintain the rain gardens
located within New Rolland Moore Drive right-of-way including the custom chase grates
for the public sidewalk as shown on the Final Development Plan Documents. The rain
gardens shall be maintained per City of Fort Collins specifications. If the City
determines that the rain gardens have failed, then the City will at its expense, retrofit the
rain gardens and maintain the retrofitted improvement thereafter.
9. The parties acknowledge that:
a. neither the Owner nor the Developer are responsible for maintenance of
the storm drainage facilities located within the Stormwater Drainage Easement
recorded at Reception # 97028757, and depicted on Sheet 2 of the plat of this
Development (the "Windtrail Park Easement"), which facilities benefit the real
property known and described as the Windtrail Park PUD, a Common Interest
Community; maintenance of such storm drainage facilities is the sole
responsibility of the homeowners association(s) for the properties located within
the Windtrail Park PUD and any subsequent replats thereof; and
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b. neither the Owner nor the Developer are responsible for maintenance of
the Drainage Easement dedicated on the plat of the Windtrail Townhomes
P.U.D., First Replat at Reception #96002674), and depicted on Sheet 2 of the
plat of this Development (the "Windtrail Townhomes Easement"), which Drainage
Easement benefits the real property known and described as the Windtrail
Townhomes P.U.D., a Common Interest Community; maintenance of the
improvements within such easement is the sole responsibility of the homeowners
association(s) for the properties located within the Windtrail Townhomes P.U.D.
First Replat and any subsequent replats thereof.
10. The parties further acknowledge that the Windtrail Park Easement
and the Windtrail Townhomes Easement are both located within Outlot A, which is a
portion of the platted area of the Development. Notwithstanding any other provision of
this Agreement to the contrary, neither the Developer nor the Owner shall be liable for
any damage caused in connection with the maintenance of, or the failure to maintain,
the drainage improvements and/or facilities located within such easements and neither
the Developer nor the Owner waive any right to assert any and all claims that may arise,
directly or indirectly, from the maintenance or lack of maintenance of such easements.
11. All retaining walls shown on the Final Development Plan
Documents over four feet in height, measured from the low side grade to the top of the
wall, will require a separate permit from the Building Department. A separate permit is
not required for retaining walls that are not over four feet in height, measured from the
low side grade to the top of the wall, provided the horizontal distance to the next uphill
retaining wall is at least equal to the total height of the lower retaining wall (unless
supporting a surcharge or impounding Class I, II or IIIA Liquids, as defined in the 2009
International Building Code, as adopted and amended by the City). Structural designs
shall accompany all retaining walls requiring building permit approval.
12. Portions of this Property are located in the FEMA-regulatory 100-
year flood fringe and floodway of Spring Creek according to FEMA FIRM Panel No.
08069C0987F, effective December 19, 2006. All activities in this Development are
subject to the applicable requirements of Chapter 10 of the Fort Collins Municipal Code.
Basements shall be expressly prohibited in any structure built in the Spring Creek flood
fringe within this Development.
13. The overnight storage of any construction materials or equipment in
the Spring Creek currently effective FEMA-regulatory floodway is expressly prohibited.
This includes, but is not limited to, machinery, stockpiles, fences, and any other
construction materials that can be dislodged or floated offsite and obstruct floodway
conveyance. Violations of this requirement will be subject to the penalties outlined in
Chapter 10 of the Fort Collins Municipal Code.
14. Approved floodplain use permits are required prior to mobilization
for all structures and each site construction element (detention ponds, bike paths,
parking lot, utilities, landscaped areas, etc.) within the Spring Creek 100-year floodplain
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