HomeMy WebLinkAboutAPPLEBLOSSOM - Filed DA-DEVELOPMENT AGREEMENT -RECEPTION#: 20100084238, 12/29/2010 at
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Scott Doyle, Larimer County, CO
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AG EEMENT (the "Agreement"), is made and enteredintothis 3-:;;, day off 2010, by and between the CITY OF FORT
COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and Appleblossom, LLC, a Colorado limited liability company, hereinafter referred to asthe "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:
Appleblossom Subdivision, being a replat of Lot 17 and Lot 18, Block 5,
Westlawn Addition, located in the Northwest Quarter of Section 14, Township 7North, 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 totheCityallplats, 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 PropertywillrequireincreasedmunicipalservicesfromtheCityinordertoservesuchareaand
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 herebyacknowledged, it is agreed as follows:
CitV Clerk's Otfice. ! cOrt (,dins, ('oloradc
General Conditions
A. The terms of this Agreement shall govern all development activities of theDeveloperpertaining „to the Property. For the purposes of this Agreement, development activities shall include, but not be limited to, the following: (1) the actualconstructionofimprovements, (2) obtaining a permit therefor, or (3) any change in
grade, contour or appearance of the Property caused by, or on behalf of, the Developerwiththeintenttoconstructimprovementsthereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines andfacilities, 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 approvaloftheutilityplansrelatingtothespecificutility, subject to a three (3) year time limitationfromthedateofapprovalofthesitespecificdevelopmentplan. In the event that the
Developer commences or performs any construction pursuant hereto after the passageofthree (3) years from the date of approval of the site specific development plan, theDevelopershallresubmittheutilityplanstotheCityEngineerforreexamination. 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 theresubmittal.
C. No building permit for the construction of any structure within the PropertyshallbeissuedbytheCityuntilthepublicwaterlinesandstubstoeachlot, 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) servingsuchstructurehavebeencompletedandacceptedbytheCity. No building permitsshallbeissuedforanystructurelocatedinexcessofsixhundredandsixtyfeet (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 thetimeand/or sequence required on Exhibit "A." If the City Engineer has determined thatanywaterlines, 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 theDeveloperwithinthetimeasestablishedunder "Special Conditions" in this Agreement.
E. Except as otherwise herein specifically agreed, the Developer agrees toinstallandpayforallwater, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other publicimprovementsrequiredbythisDevelopmentasshownontheFinalDevelopmentPlan
Documents and other approved documents pertaining to this Development on file withtheCity.
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 besubjecttosuchdepartment's approval. The Developer agrees to correct any
deficiencies in such installations in order to meet the requirements of the plans and/or
specifications applicable to such installation. In case of conflict, the Final Development
Plan Documents shall supersede the standard specifications, except that if the conflicts
are a result of Federal or State mandated requirements, then the Federal or State
mandated requirements shall prevail.
H. All storm drainage facilities shall be designed and constructed by the
Developer so as to protect downstream and adjacent properties against injury and toadequatelyservetheProperty (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 anydetailsofsuchplans, 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 Cityliabilitythroughsuchsettlement. 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 indemnityandholdharmlessagreementbytheDevelopertonotapplytosuchclaimandsuch
failure shall constitute a release of this indemnity and hold harmless agreement as to
such claim. Approval of and acceptance by the City of any storm drainage facility
design or construction shall in no manner be deemed to constitute a waiver or
relinquishment by the City of the aforesaid indemnification. The Developer shall engage
a Colorado licensed professional engineer to design the storm drainage facilities as
aforesaid and it is expressly affirmed hereby that such engagement shall be intended
for the benefit of the City, and subsequent purchasers of property in the Development.
I. The developer shall pay 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.
J. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of each phaseoftheconstruction. Utilities will not be initially accepted prior to as -built drawings beingsubmittedtoandapprovedbytheCityofFortCollins.
K. The Developer specifically represents that to its knowledge all propertydedicated (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 at40C.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 orcontaminants, as defined by the Comprehensive Environmental ResponseCompensationandLiabilityActof1980, as amended, and regulations promulgatedthereunder. The Developer, for itself and its successor(s) in interest, does herebyindemnifyandholdharmlesstheCityfromanyliabilitywhatsoeverthatmaybeimposed
upon the City by any governmental authority or any third party, pertaining to thedisposalofhazardoussubstances, pollutants or contaminants, and cleanupnecessitatedbyleakingundergroundstoragetanks, excavation and/or backfill ofhazardoussubstances, pollutants or contaminants, or environmental cleanupresponsibilitiesofanynaturewhatsoeveron, 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 ofthepublicimprovementsconstructedonthededicatedproperty, except to the extentthatsuchcircumstancesaretheresultofactsoromissionsoftheDeveloper. 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 suchclaimtotheDeveloperwithinninety (90) days after the City first receives a notice of
such claim under the Colorado Governmental Immunity Act for the same, shall cause
this indemnity and hold harmless agreement by the Developer to not apply to such
claim and such failure shall constitute a release of this indemnity and hold harmless
agreement as to such claim.
L. The Developer acknowledges and agrees that the City, as the owner of
any adjacent property (the "City Property") on which off -site improvements may be
constructed, or that may be damaged by the Developer's activities hereunder, expresslyretains (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 theDeveloperasaneasementrecipient.
M. If the Developer or Contractor or any agent or representative thereof
causes damage to any public infrastructure (including without limitation, any surfacepavers, 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 specificrequirementsforpavers.
Special Conditions
A. Water Lines
Not applicable.
B. Sewer Lines
1. 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 PlanDocumentspriortotheissuanceanycertificateofoccupancy. 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 anycertificateofoccupancyinthisDevelopment.
2. The Developer shall be responsible for maintaining the structural
integrity and operational functions of all drainage facilities throughout the build -out of
this Development. If at any time following certification (as required pursuant to
paragraph one (1) above) of said drainage facilities and during the construction of
structures and/or lots within this Development the City 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 followingcertificationshallresultinthewithholdingoftheissuanceofadditionalbuildingpermitsand/ 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 controlimprovementsasshownontheFinalDevelopmentPlanDocumentstostabilizeallover - lot grading in and adjacent to this Development. The Developer shall also be requiredtopostasecuritydepositintheamountof $1,500.00 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion control measuresshownontheFinalDevelopmentPlanDocuments. Said security deposit(s) shall be
made in accordance with the criteria set forth in the City's Storm Drainage DesignCriteriaandConstructionStandards (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 mitigationmeasures, 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 toensurethattheprovisionsofsaidplansandtheCriteriaareproperlyenforced. The Citymayapplysuchportionofthesecuritydeposit(s) as may be necessary to pay all costsincurredbytheCityinundertakingtheadministration, construction, and/or installation oftheerosioncontrolmeasuresrequiredbysaidplansandtheCriteria. In addition, the
City shall have the option to withhold building permits and certificates of occupancy, asstatedinParagraphIII.D of this Agreement, as it deems necessary in order to ensure
that the Developer installs and maintains the erosion control measures throughout thebuild -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 followingrequirementsshallbefollowedforallbuildings/structures on all lots:
Prior to the issuance of a certificate of occupancy for any lot or buildingtheDevelopershallprovidetheCitywithcertificationthatthelotandorthebuildinghasbeengradedcorrectly. 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 PlanDocuments. 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 leasttwoweekspriortothedateofissuanceofthedesiredcertificateofoccupancy.
5. The Developer shall obtain the City's prior approval of any changesfromtheFinalDevelopmentPlanDocumentsingradeelevationsand/or storm drainagefacilityconfigurationthatoccurasaresultoftheconstructionofhousesand/ordevelopmentoflots, whether by the Developer or other parties. The City reserves therighttowithholdtheissuanceofbuildingpermitsandcertificatesofoccupancyforthisDevelopmentuntiltheCityhasdeemedsuchchangesasbeingacceptableforthesafeandefficientdeliveryofstormdrainagewater.
6. The Developer shall limit the construction of the off -site stormdrainageimprovementstothelimitsofconstructionasshownontheFinalDevelopmentPlanDocuments. The contractor shall re -seed and/or restore all areas that aredisturbedduringconstructionoftheoff -site storm drainage improvements in accordancewiththeFinalDevelopmentPlanDocumentspromptlyfollowingconstruction. The
Developer shall ensure that no negative impact occurs to the adjoining properties duringtheconstructionofthesefacilities. No grading shall be done outside of the approved
areas as shown on the Final Development Plan Documents.
7. A Minor Amendment will be required for any modifications to theperviousparkinglot. This is to ensure the required pervious parking lot remains for thelifeoftheproject.
8. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed outside of the public right-of-way. The Developer
shall also maintain the drainage outfall system in its entirety including the storm sewer,
sidewalk chase and concrete channel located in the public right-of-way.
D. Streets.
1. No street oversizing reimbursement from the City is due theDeveloperforthisDevelopment.
2. Notwithstanding any provision herein to the contrary, the Developer
shall be responsible for all costs for the initial installation of traffic signing and stripingforthisDevelopment, 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 saidimprovementsinaccordancewithSections2.2.3, 3.3.1 and 3.3.2 of the Land Use CodeoftheCity.
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 theDeveloperinaccordancewithSection3.8.21 of the Land Use Code prior to theissuanceofanycertificateofoccupancyinthisDevelopment. Completion of soil
amendments shall include certification by the Developer that the work has beencompleted. This certification shall be submitted to the City at least two (2) weeks priortothedateofissuanceofanycertificateofoccupancyinthisDevelopment.
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 groundwaterseepageorflooding, structural damage, or other damage unless such damages
or injuries are proximately caused by the City's negligent operation or maintenance of its
storm drainage facilities in the Development. However, nothing herein shall be deemed
a waiver by the City of its immunities, defenses, and limitations to liability under theColoradoGovernmentalImmunityAct (Section 24-20-101 CRS, et. seq.) or under anyotherlaw.
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 ortheDeveloper'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 Citystandards. 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 againstanydamagesorinjuriessustainedintheDevelopmentastheresultofgroundwater
seepage or flooding, structural damage or other damage resulting from failure of anysuchsubdrainsystem.
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 andholdharmlesstheCityagainstanydamagesorinjuriestowaterrightscaused, directlyorindirectlybytheconstruction, establishment, maintenance or operation of theDevelopment.
4. The City agrees to give notice to the Developer of any claim madeagainstittowhichtheforegoingindemnitiesandholdharmlessagreementsbytheDevelopercouldapply, and the Developer shall have the right to defend any lawsuitbasedonsuchclaimandtosettleanysuchclaimprovidedtheDevelopermustobtainacompletedischargeofallCityliabilitythroughsuchsettlement. Failure of the City togivenoticeofanysuchclaimtotheDeveloperwithinninety (90) days after the City firstreceivesnoticeofsuchclaimundertheColoradoGovernmentalImmunityActforthesame, shall cause the forgoing indemnities and hold harmless agreements by theDevelopertonotapplytosuchclaimandsuchfailureshallconstituteareleaseoftheforegoingindemnitiesandholdharmlessagreementsastosuchclaim.
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 thebuild -out of this Development, the Developer shall provide and maintain at all times areasonableaccesswaytosaidbuildingorbuildings. Such accessway shall be adequatetohandleanyemergencyvehiclesorequipment, and the accessway shall be kept openduringallphasesofconstruction. 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 isprovidedattheendoftheaccessway. Prior to the construction of said accessway, aplanfortheaccesswayshallbesubmittedtoandapprovedbythePoudreFireAuthorityandCityEngineer. (Three plan sets shall be submitted to the Poudre Fire Authority at102RemingtonStreetforreviewandprocessing.) If such accessway is at any timedeemedinadequatebythePoudreFireAuthorityorCityEngineer, the accessway shallbepromptlybroughtintocomplianceanduntilsuchtimethattheaccesswayisbroughtintocompliance, the City and/or the Poudre Fire Authority may issue a stop work orderforallorpartoftheDevelopment.
Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, theDevelopershallhavetherighttoobtainFootingandFoundationpermitsuponthe
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. Facilitiesshallincludebutnotbelimitedtoallmains, lines, services, fire hydrants and
appurtenances for the site as shown on the Final Development Plan Documents.
Development Construction Permit
1. The Developer shall apply for and obtain a DevelopmentConstructionPermitforthisDevelopment, in accordance with Division 2.6 of the Land
Use Code, prior to the Developer commencing construction. The Developer shall paytherequiredfeesforsaidPermitandconstructioninspection, and post security to
guarantee completion of the public improvements required for this Development, prior toissuanceoftheDevelopmentConstructionPermit.
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. MorespecificelementsoftheseguaranteesarenotedinExhibit "B." Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section3.3.2(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 tothisparagraphandExhibit "B" may not be assigned or transferred to any other personorentityunlessthewarrantedimprovementsarecompletedby, and a letter of
acceptance of the warranted improvements is received from the City by, such otherpersonorentity.
III. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer andTrafficEngineerinaccordancewiththeCity'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 theDeveloper'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 correctedtothesatisfactionoftheCityEngineer. 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 promptpaymentofallsuchcosts. The Developer also agrees to require all contractors within
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the Development to keep the public right-of-way clean and free from accumulation ofdirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors andsubcontractorstocooperatewiththeCity's construction inspectors by ceasingoperationswhenwindsareofsufficientvelocitytocreateblowingdustwhich, in theinspector's opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete allimprovementsandperformallotherobligationsrequiredherein, as such improvementsorobligationsmaybeshownontheFinalDevelopmentPlanDocuments, or anydocumentsexecutedinthefuturethatarerequiredbytheCityfortheapprovalofanamendmenttoadevelopmentplan, and the City may withhold (or to the extent
permitted by law, revoke) such building permits and certificates of occupancy as itdeemsnecessarytoensureperformanceinaccordancewiththetermsofthisAgreement. The processing and "routing for approval" of the various development plandocumentsmayresultincertainofsaiddocumentscarryingdatesofapprovaland/orexecutionthatarelaterthanthedateofexecutionofthisAgreement. 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 anyrequirementsoftheCityCodeortheLandUseCodeandtheDeveloperagreestocomplywithallrequirementsofthesame.
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 CityCouncil, in its discretion.
H. This Agreement shall run with the Property, including any subsequentreplattingofall, or a portion of the Property. This Agreement shall also be binding uponandinuretothebenefitofthepartieshereto, 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 suchimprovementsarelocatedontheProperty. Assignment of interest within the meaningofthisparagraphshallspecificallyinclude, 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 thetermsandconditionsofthisAgreement.
I. In the event the Developer transfers title to the Property and is therebydivestedofallequitableandlegalinterestintheProperty, the Developer shall bereleasedfromliabilityunderthisAgreementwithrespecttoanybreachofthetermsand
conditions of this Agreement occurring after the date of any such transfer of interest. Insuchevent, the succeeding property owner shall be bound by the terms of thisAgreement.
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 termsofthisAgreement, such party may be declared in default. In the event that a party hasbeendeclaredindefaulthereof, such defaulting party shall be given written notice
specifying such default and shall be allowed a period of ten (10) days within which tocuresaiddefault. In the event the default remains uncorrected, the party declaringdefaultmayelectto: (a) terminate the Agreement and seek damages; (b) treat theAgreementascontinuingandrequirespecificperformanceor; (c) avail itself of anyotherremedyatlaworequity.
K. In the event of the default of any of the provisions hereof by either partywhichshallrequirethepartynotindefaulttocommencelegalorequitableaction
against said defaulting party, the defaulting party shall be liable to the non -defaultingpartyforthenon -defaulting party's reasonable attorney's fees and costs incurred byreasonofthedefault. Nothing herein shall be construed to prevent or interfere with theCity'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 sohand -delivered or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
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If to the Developer: Appleblossom LLC
Attn: Prudence Kaley
1212 Clark Street
Fort Collins, CO 80524
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 givingtheotherpartiestothisAgreementwrittennoticeofsuchchange.
O. When used in this Agreement, words of the masculine gender shallincludethefeminineandneutergender, and when the sentence so indicates, words of
the neuter gender shall refer to any gender; and words in the singular shall include thepluralandviceversa. 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 themattersaddressedinthisAgreement. There shall be deemed to be no other terms, conditions, promises, understandings, statements, representations, expressed or
implied, concerning this Agreement, unless set forth in writing signed by all of thepartieshereto. Further, paragraph headings used herein are for convenience of
reference and shall in no way define, limit, or prescribe the scope or intent of anyprovisionunderthisAgreement.
FORT
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ATTEST -L: '•s
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City Cie
APPROVE ENT:
ity Enginee
i
APPRO E A7T9 FORM:
D uty C ity Attorney
THE CITY OF FORT COLLIN COLORADO,
a Municipal Corporati
By:
13
City Manager
DEVELOPER:
Appleb ossom, LLC, a Colorado limited liability
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rudence,
Tle b r
By ,
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Mark S. Goldri ember
STATE OF COLORADO )
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COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day ofCla2C, 2010, by Prudence M. Kaley as member ofAppleblossom, LLC, a Colorado limited liability company. 01113111111,
My Commission Expires:
STATE OF COLORADO )
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COUNTY OF LARIMER )
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The foregoing instrument was acknowledged before me this day of
1010, by Mark S. Goldrich as member of Appleblossom, LLC, a Colorado
limited liability company.
My Commission Expires:
14
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EXHIBIT "A"
Schedule of electrical service installation.
Electrical lines need to be installed prior to the installation of the sidewalk, curbreturns, handicap ramps, paving and landscaping. If the Developer installs any curbreturn, sidewalk or handicap ramp prior to the installation of electrical lines in an areathatinterfereswiththeinstallationoftheelectricallineinstallation, the Developer shall
be responsible for the cost of removal and replacement of those items and anyassociatedstreetrepairs.
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"
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 publicimprovementsresultingfromdevelopment -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 tosaidpublicimprovements, 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 bydesignand/or construction defects. This agreement to hold the City harmless includes
defects in materials and workmanship, as well as defects caused by or consisting of
settling trenches, fills or excavations.
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Further, the Developer agrees that the City shall not be liable to the Developer during
the warranty period, for any claim of damages resulting from negligence in exercising
engineering techniques and due caution in the construction of cross drains, drives,
structures or buildings, the changing of courses of streams and rivers, flooding from
natural creeks and rivers, and any other matter whatsoever on private property. Any
and all monetary liability occurring under this paragraph shall be the liability of the
Developer.
The obligations of the Developer pursuant to the "maintenance guarantee" and "repair
guarantee" provisions set forth above may not be assigned or transferred to any other
person or entity unless the warranted improvements are completed by, and a letter of
acceptance of the warranted improvements is received from the City by, such other
person or entity.
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