HomeMy WebLinkAboutOLD TOWN FLATS - Filed DA-DEVELOPMENT AGREEMENT - 2014-03-21RECEPTION#: 20140017178, 04/07/2014 at
03:55:12 PM,1 OF 23, R $121.00 TD Pgs: 0
Angela Myers, Clerk & Recorder, Larimer
County, CO
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement"), is made and entered
into this 21sr day of 201-L, by and between the CITY OF FORT
COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City";
and OLD TOWN FLATS L.L.C., a Utah limited liability company, hereinafter referred to
as the "Developer."
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer, State of Colorado (hereafter sometimes referred to as the "Property"
or "Development") and legally described as follows, to wit:
Old Town Flats, located in Section 11, Township 7 North, Range 69 West of the
6th P.M., City of Fort Collins, County of Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, plans (including utility plans), reports and other documents required for
the approval of a final plan according to the City's development application submittal
requirements master list (the "Final Development Plan Documents") copies of which are
on file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and
will further require the installation of certain improvements primarily of benefit to the
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
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:
J City Clerk's Office, Fort Collins, Colorado
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.
J. Development Construction Permit
1. The Developer shall apply for and obtain a Development
Construction Permit for this Development, in accordance with Division 2.6 of the Land
Use Code, prior to the Developer commencing construction. The Developer shall pay
the required fees for said Permit and construction inspection, and post security to
guarantee completion of the public improvements required for this Development, prior to
issuance of the Development Construction Permit.
K. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance
guarantee and a five-year repair guarantee covering all errors or omissions in the
design and/or construction of the public improvements required for this Development,
which guarantees shall run concurrently and shall commence upon the date of
completion of the public improvements and acceptance thereof by the City. More
specific elements of these guarantees are noted in Exhibit "C." Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section
3.3.2(C) of the Land Use Code. Notwithstanding the provisions of paragraphs III (H)
and (1) of this Agreement to the contrary, the obligations of the Developer pursuant to
this paragraph and Exhibit "C" may not be assigned or transferred to any other person
or entity unless the warranted improvements are completed by, and a letter of
acceptance of the warranted improvements is received from the City by, such other
person or entity. Notwithstanding any term or condition in this Agreement, the two-year
maintenance guarantee and the five-year repair guarantee do not apply to, and the
Developer is not responsible for, any repair or maintenance costs or obligations to
public improvements associated with damage caused by the acts or omissions of the
City.
Ill. 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
inspectors 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.
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 Developer's legal or equitable interest in the Property,
as well as any assignment of the Developer's rights to develop the Property under the
terms and conditions of this Agreement.
I. In the event the Developer transfers title to the Property and is thereby
divested of all equitable and legal interest in the Property, the Developer shall be
released from liability under this Agreement with respect to any breach of the terms and
conditions of this Agreement occurring after the date of any such transfer of interest. In
such event, the succeeding property owner shall be bound by the terms of this
Agreement.
J. Each and every term of this Agreement shall be deemed to be a material
element hereof. In the event that either party shall fail to perform according to the terms
of this Agreement, such party may be declared in default. In the event that a party has
been declared in default hereof, such defaulting party shall be given written notice
specifying such default and shall be allowed a period of ten (10) days within which to
cure said default. In the event the default remains uncorrected, the party declaring
default may elect to: (a) terminate the Agreement and seek damages; (b) treat the
Agreement as continuing and require specific performance or; (c) avail itself of any
other remedy at law or equity.
K. In the event of the default of any of the provisions hereof by either party
which shall require the party not in default to commence legal or equitable action
against said defaulting party, the defaulting party shall be liable to the non -defaulting
party for the non -defaulting party's reasonable attorney's fees and costs incurred by
reason of the default. Nothing herein shall be construed to prevent or interfere with the
City's rights and remedies specified in Paragraph III.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement
shall not be construed as or deemed to be an agreement for the benefit of any third
party or parties, and no third party or parties shall have any right of action hereunder for
any cause whatsoever.
M. It is expressly understood and agreed by and between the parties hereto
that this Agreement shall be governed by and its terms construed under the laws of the
State of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set
forth below; and such notice or other communication shall be deemed given when so
hand -delivered or three (3) days after so mailed:
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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: Old Town Flats L.L.C., a Utah limited liability company
c/o Lance Bullen
2733 E. Parleys Way, Suite 300
Salt Lake City, UT 84109
Old Town Flats L.L.C., a Utah limited liability company
c/o Walker Kennedy III
2733 E. Parleys Way, Suite 300
Salt Lake City, UT 84109
With a copy to: Brinkman Development, LLC
c/o Kevin Brinkman
3003 E. Harmony Road, Suite 300
Fort Collins, CO 80528
Brinkman Development, LLC
c/o Dave Derbes
3003 E. Harmony Road, Suite 300
Fort Collins, CO 80528
With a copy to: First National Bank of Omaha
c/o Brian Diedrichsen
11404 West Dodge Road, Stop 4300
Omaha, NE 68154
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,
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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.
P. Lender Acknowledgment
1. The City acknowledges (i) that it has been informed by First
National Bank of Omaha, a national banking association (the "Lender"), that the Lender
has extended a loan (the "Loan') to the Developer to finance the costs of constructing
and equipping the Development.
2. The City acknowledges that, pursuant to Section III.N of this
Agreement, the Developer has requested that copies of all notices given by the City to
the Developer shall also be given to the Lender at the address set forth therein. The
City further acknowledges that the Lender has a right (but not the obligation) to remedy
or cure any default by the Developer under this Agreement on behalf of the Developer
and that the City will accept such remedy or cure if properly carried out by the Lender
on behalf of the Developer.
3. Nothing contained herein shall be construed to impose any liability
or obligation of the City to the Lender, except as expressly provided in the Section III.P.
ATTEST:
{
City Clerk
APPROVED AS TO CONTE
/OF
i �r.1
City Aftorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corpo ion
By:
ity Manager
Q,
: o
14
DEVELOPER:
OLD TOWN FLATS L.L.C., a Utah limited
liability company
By: WOODBURY STRATEGIC PARTNERS
FUND, L.P., a Delaware limited partnership, its
Manager
By: WSP TRUFFLES L.L.C., a Delaware
limited liability company, its General Partner
By: WOODBURY STRATEGIC PARTNERS
MANAGEMENT L.L.C., a Utah limited liability
company, its Manager
By: WOODBURY CORPORATION, a Utah
corporatiQn, its Manager
M
O. Randall Woodbury, Presi ent
13�-
oodbury, V resident
I �75
ATTEST:
By:
hua B. Woodbury, Secre
STATE OF UTAH )
) ss.
COUNTY OF SALT LAKE )
The foregoing instrument was acknowledged before me this day of
20±, by OLD TOWN FLATS L.L.C., a Utah limited liabili Otpany, by
WOODBURY STRATEGIC PARTNERS FUND, L.P., a Delaware limited partnership, its
Manager, by WSP TRUFFLES L.L.C., a Delaware limited liability company, its General
Partner, by WOODBURY STRATEGIC PARTNERS MANAGEMENT L.L.C., a Utah
15
limited liability company , its Manager, by WOODBURY CORPORATION, a Utah
corporation, its Manager, by O. Randall Woodbury its President, by Jeffrey K. Woodbury
its Vice President, and by Joshua B. Woodbury, its Secretary
Notary Public
My Commission Expires: —L —■ — — —_— — — — —�
DEBORANotwpubft
1
EXHIBIT "A"
1. 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.
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EXHIBIT "B"
STANDARD OPERATING PROCEDURES (SOPs)
A. Purpose
In order for physical stormwater Best Management Practices (BMPs) to be effective, proper
maintenance is essential. Maintenance includes both routinely scheduled activities, as well as
non -routine repairs that may be required after large storms, or as a result of other unforeseen
problems. Standard Operating Procedures (SOPs) should clearly identify BMP maintenance
responsibility. BMP maintenance is typically the responsibility of the entity owning the BMP.
Identifying who is responsible for maintenance of BMPs and ensuring that an adequate budget is
allocated for maintenance is critical to the long-term success of BMPs. Maintenance responsibility
may be assigned either publicly or privately. For this project, the privately owned BMPs shown in
Section B below are to be maintained by the property owner, homeowner's association (HOA), or
property manager.
B. Site -Specific SOPs
The following stormwater facilities contained within Old Town Flats are subject to SOP
requirements:
- Directly Connected Downspouts
- Permeable Modular Block Pavers (MBPs)
- Storm Drains and Tree Roots
The location of said facilities can be found on the Utility Plans and Landscape Plans for Old Town
Flats. Inspection and maintenance procedures and frequencies, specific maintenance
requirements and activities, as well as BMP-specific constraints and considerations shall follow
the guidelines outlined in Volume 3 of the Urban Drainage and Flood Control District (UDFCD)
Urban Storm Drainage Criteria Manual.
SOP Maintenance Summary Table
Stormwater Facility / Ownership / UDFCD Maintenance Reference
BMP Responsibility
Directly Connected Roof Private Follow guidelines for Roof Gutters and Downspouts
Gutters and Downspouts
Follow guidelines for Permeable Modular Block Pavers
Permeable Modular (Chapter 6 —Section 11.0)
Block Pavers (MBPs) Private Refer to Section 5. Maintenance from Permeable
Interlocking Concrete Pavements, 4 Edition (PICP
Manual)
Perforated Subdrain Private Follow applicable guidelines for Perforated Subdrain
The complete UDFCD BMP maintenance references listed above, except for the roof gutters and
downspouts, can be found in Chapter 6 of Volume 3. Applicable BMP maintenance excerpts can
be found at the end of this document.
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Directly Connected Downspouts
Many of the downspouts connect directly to the storm drain system. The following SOP generally applies
to all direct downspout connections, and more specifically to those which drain directly to the reservoir
areas beneath the Modular Block Pavers. At each of these connections, the downspout discharges to a
perforated drain basin. The drain basins discharge directly to the MBP reservoir. The drain basins are
designed to prevent debris and sediment from entering the MBP reservoir area. Debris and sediment
compromise the functionality and effectiveness of the system.
Routine Maintenance Table for Directly Connected Downspouts
Required Action Maintenance Objective Frequency of Action
Inspect the downspout and basin to
Inspections ensure the system functions as it was Routine
designed. Repair or replace damaged
downspouts as needed.
Remove debris and litter from the Routine —just before annual storm seasons (i.e.,
Sediment, Debris April/May); at the end of storm season after
basin. Remove sediment from the
and Litter removal sump. leaves have fallen; and following significant
rainfall events.
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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, sidewalk, 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 are
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.
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.
Permeable Modular Block Pavers (MBPs)
There is one large MBP sections associated with the project serving a critical role in the drainage system.
These systems provide storage and important water quality benefits.
Proper maintenance is critical to ensure lasting performance and integrity of the system. The more
frequent and diligent the routine maintenance procedures are, the more likely it is to avoid and/or
postpone significant repair and replacement actions. Such major remedies would include removal of the
surface pavers to access (and potentially replace) the underlying sub -base material and/or underdrain
pipes should either become clogged or otherwise fail to function properly.
For additional information on the maintenance of the Modular Block Pavers, refer to Section 5:
Maintenance from Permeable Interlocking Concrete Pavements, 4th Edition (PICP Manual) by the
Interlocking Concrete Pavement Institute.
Routine Maintenance Table for Permeable Pavement Systems
Required Action Maintenance Objective Frequency of Action
Inspect the pavement condition and
Inspection observe infiltration either during a rain
event or with a garden hose to ensure At least annually.
that water infiltrates into the surface.
Debris Removal, Use a regenerative air or vacuum As necessary - the frequency depends on use
Sweeping and sweeper to maintain infiltration rates. types (e.g., foot traffic only versus vehicle traffic)
Vacuuming Replace infill aggregate as needed. and patterns as well as specific site conditions
such as tributary basin characteristics.
DO NOT apply sand to the MBP surface.
Snow Removal Mechanical snow and ice removal As necessary.
should be used.
If the surface is completely dogged and
rendering minimal surface infiltration
Full and Partial
rate, restoration of surface infiltration can
Replacement of
be achieved by removing the first'/ to 1
the Pavement or
inch of soiled aggregate infill material
Infill Material
with a vacuum sweeper. Refill the
openings with dean aggregate infill
materials.
Should stormwater leach out pollutants
Trash Enclosure from the trash enclosure area, or should
Leakage, or other other similar contaminants collect in the
Surface paver joint filler aggregate, said material
Contamination/ shall be removed and properly disposed
Pollution of, and replaced with new infill
aggregate.
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Routine — Annual inspection of hydraulic and
structural facilities. Also check for obvious
problems during routine maintenance visits,
especially for plugging of outlets.
As necessary, based on routine observation and
inspection by the professional property
management and maintenance contractor.
1�1
Perforated Subdrain Maintenance Plan
The perforated subdrain system storm drain outfall at the bottom of the Modular Block Paver (MBP)
system is critical to the overall function of the paver subbase. As such, special maintenance has been
identified to ensure these perforated drain systems perform as they were designed.
Routine Maintenance Table
Required Action Maintenance Objective Frequency of Action
Use a video camera to inspect the
condition of the perforated drain pipes.
Inspection Cleanout pipes as needed. If the Every two to five years.
integrity of the pipe is compromised,
then repair the damaged section(s).
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 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.
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
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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 departments 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 Final
Development Plan Documents. 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 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 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, or otherwise, 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
zz
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
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, or otherwise, for the same,
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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 as an easement recipient.
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.
Paver repair and replacement in Downtown alleys shall comply with the City's specific
requirements for pavers.
II. Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
Not Applicable
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 throughout the build -out of
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this Development. If at any time following certification (as required pursuant to
paragraph one (1) above) of said drainage facilities and during the construction of
structures and/or lots within this Development the City reasonably decides that said
drainage facilities no longer comply with the Final Development Plan Documents, the
City shall give written notice to the Developer of all items which do not comply with the
Final Development Plan Documents. Unless the Developer successfully appeals the
decision of non-compliance, it shall bring such facilities back up to the standards and
specifications as shown on the Final Development Plan Documents. Failure to maintain
the structural integrity and operational function of said drainage facilities following
certification shall result in the withholding of the issuance of additional building permits
and/ or certificates of occupancy until such drainage facilities are repaired to the
operational function and structural integrity which was approved by the City.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the Final Development Plan Documents to stabilize all over -
lot grading in and adjacent to this Development. The Developer shall also be required
to post a security deposit in the amount of $6,296.48 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion control measures
shown on the Final Development Plan Documents. Said security deposit(s) shall be
made in accordance with the criteria set forth in the City's Storm Drainage Design
Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to
abide by the erosion control provisions of the Final Development Plan Documents or the
erosion control provisions of the Criteria after receiving notice of the same or an
emergency situation exists which would reasonably require immediate mitigation
measures, then, in either event, and notwithstanding any provisions contained in
paragraph III(J) to the contrary, the City may enter upon the Property for the purpose of
making such improvements and undertaking such activities as may be necessary to
ensure that the provisions of said plans and the Criteria are properly enforced. The City
may apply such portion of the security 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 comers 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 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/or 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 the detention pond facilities. No grading shall be done outside of the
approved areas as shown on the Final Development Plan Documents.
7. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed outside of the public right-of-way per the
Standard Operating Procedures located in Exhibit B.
D. Streets.
1. No street oversizing reimbursement from the City is due the
Developer for this Development.
2. Notwithstanding any provision herein to the contrary, the Developer
shall be responsible for all costs for the initial installation of traffic signing and striping
for this Development, including both signing and striping related to the Developer's
internal street operations and the signing and striping of any adjacent or adjoining local,
collector or arterial streets that is made necessary because of the Development.
3. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
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improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
E. Natural Resources
Not Applicable
F. Soil Amendment
1. In all areas associated with this Development that are to be
landscaped or planted in accordance with the Final Development Plan Documents, and
do not require a building permit, the soils shall be loosened and amended by the
Developer in accordance with Section 3.8.21 of the Land Use Code prior to the
issuance of any certificate of occupancy in this Development. Completion of soil
amendments shall include certification by the Developer that the work has been
completed. This certification shall be submitted to the City at least two (2) weeks prior
to the date of 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
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
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.
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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, or
otherwise, for the same, shall cause the forgoing indemnities and hold harmless
agreements by the Developer to not apply to such claim and such failure shall constitute
a release of the foregoing indemnities and hold harmless agreements as to such claim.
H. Hazards and Emergency Access
1. 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
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 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
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