HomeMy WebLinkAboutASPEN HEIGHTS - Filed DA-DEVELOPMENT AGREEMENT -RECEPTION#: 20130087791, 12/02/2013 at
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Angela Myers, Clerk $ Recorder, Larimer
County, CO
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement"), is made and entered
into this 2 s-r day of _AVoyLmngg 2013, by and between the CITY OF FORT
COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City";
and Breckenridge Group Fort Collins Colorado, LLC, a Texas 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:
Aspen Heights Subdivision, located in Section 1, 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.
WHERAS, the Final Development Plan Documents for this Development consist
of multiple plan sets and, at the time of execution of this document, a portion of such
plans (consisting of but not limited to the design for New Vine Drive and Redwood
Street and the utilities within the right-of-ways for said streets) remain to be submitted
t,,,tIty Clerk's Office
City of Fort Collins
1 P.O. Box 580
Fort Collins, CO 80522
to, reviewed by, and approved by the City. Upon approval of these documents by the
City they are to be considered a part of the Final Development Plan Documents for this
Development and fall under the jurisdiction of this Agreement.
WHEREAS, there are four (4) phases of construction for the Development and
these are shown on that portion of the Final Development Plan Documents entitled
Utility Plans for Aspen Heights -Fort Collins, Final Development Plans," as follows:
Sheet 66 of 70 entitled "Overall Phasing Plan"; and Sheets 67 through 70 entitled,
respectively, "Phase I Plan - NE," "Phase II Plan - SE," "Phase III Plan - NW," and
Phase IV — SW."
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
General Conditions
A. The terms of this Agreement shall govem all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement,
development activities" shall include, but not be limited to, the following: (1) the actual
construction of improvements, (2) obtaining a permit therefor, or (3) any change in
grade, contour or appearance of the Property caused by, or on behalf of, the Developer
with the intent to construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and
facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on
the Final Development Plan Documents and in full compliance with the standards and
specifications of the City on file in the office of the City Engineer at the time of approval
of the utility plans relating to the specific utility, subject to a three (3) year time limitation
from the date of approval of the site specific development plan. In the event that the
Developer commences or performs any construction pursuant hereto after the passage
of three (3) years from the date of approval of the site specific development plan, the
Developer shall resubmit the utility plans to the City Engineer for reexamination. The
City may then require the Developer to comply with the approved standards and
specifications of the City on file in the office of the City Engineer at the time of the
resubmittal.
C. No building permit for the construction of any structure within the Property
shall be issued by the City until the public water lines and stubs to each lot, fire
hydrants, electrical lines, sanitary sewer lines and stubs to each lot, and public streets
including curb, gutter, and pavement with at least the base course completed) serving
such structure have been completed and accepted by the City. No building permits
shall be issued for any structure located in excess of six hundred and sixty feet (660')
from a single point of access, unless the structures contain sprinkler systems that are
approved by the Poudre Fire Authority.
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D. Any water lines, sanitary sewer lines, storm drainage lines, electrical lines,
and/or streets described on Exhibit "A," attached hereto, shall be installed within the
time and/or sequence required on Exhibit "A." If the City Engineer has determined that
any water lines, sanitary sewer lines, storm drainage facilities and/or streets are
required to provide service or access to other areas of the City, those facilities shall be
shown on the Final Development Plan Documents and shall be installed by the
Developer within the time as established under "Special Conditions" in this Agreement.
E. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this Development as shown on the Final Development Plan
Documents and other approved documents pertaining to this Development on file with
the City.
F. Street improvements shall not be installed until all utility lines to be placed
therein have been completely installed, including all individual lot service lines (water
and sewer) leading in and from the main to the property line and all electrical lines.
G. The installation of all utilities shown on the Final Development Plan
Documents shall be inspected by the Engineering Department of the City and shall be
subject to such department's approval. The Developer agrees to correct any
deficiencies in such installations in order to meet the requirements of the plans and/or
specifications applicable to such installation. In case of conflict, the Final Development
Plan Documents shall supersede the standard specifications, except that if the conflicts
are a result of Federal or State mandated requirements, then the Federal or State
mandated requirements shall prevail.
H. 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,
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and the Developer shall have the right to defend any lawsuit based on such claim and to
settle any such claim provided Developer must obtain a complete discharge of all City
liability through such settlement. Failure of the City to give notice of any such claim to
the Developer within ninety (90) days after the City first receives a notice of such claim
under the Colorado Governmental Immunity Act for the same, shall cause this indemnity
and hold harmless agreement by the Developer to not apply to such claim and such
failure shall constitute a release of this indemnity and hold harmless agreement as to
such claim. Approval of and acceptance by the City of any storm drainage facility
design or construction shall in no manner be deemed to constitute a waiver or
relinquishment by the City of the aforesaid indemnification. The Developer shall engage
a Colorado licensed professional engineer to design the storm drainage facilities as
aforesaid and it is expressly affirmed hereby that such engagement shall be intended
for the benefit of the City, and subsequent purchasers of property in the Development.
I. The developer shall pay 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 permanent Black Image Mylars upon completion of each phase of
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City of Fort Collins.
K. The Developer specifically represents that to its knowledge all property
dedicated (both in fee simple and as easements) to the City associated with this
Development (whether on or off -site) is in compliance with all environmental protection
and anti -pollution laws, rules, regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection Agency Regulations at
40 C.F.R., Part 261, and that such property as is dedicated to the City pursuant to this
Development, is in compliance with all such requirements pertaining to the disposal or
existence in or on such dedicated property of any hazardous substances, pollutants or
contaminants, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer, for itself and its successor(s) in interest, does hereby
indemnify and hold harmless the City from any liability whatsoever that may be imposed
upon the City by any governmental authority or any third party, pertaining to the
disposal of hazardous substances, pollutants or contaminants, and cleanup
necessitated by leaking underground storage tanks, excavation and/or backfill of
hazardous substances, pollutants or contaminants, or environmental cleanup
responsibilities of any nature whatsoever on, of, or related to any property dedicated to
the City in connection with this Development, provided that such damages or liability are
not caused by circumstances arising entirely after the date of acceptance by the City of
the public improvements constructed on the dedicated property, except to the extent
that such circumstances are the result of acts or omissions of the Developer. Said
indemnification shall not extend to claims, actions or other liability arising as a result of
any hazardous substance, pollutant or contaminant generated or deposited by the City,
its agents or representatives, upon the property dedicated to the City in connection with
this Development. The City agrees to give notice to the Developer of any claim made
against it to which this indemnity and hold harmless agreement by the Developer could
apply, and the Developer shall have the right to defend any lawsuit based on such claim
and to settle any such claim provided the Developer must obtain a complete discharge
of all City liability through such settlement. Failure of the City to give notice of any such
claim to the Developer within ninety (90) days after the City first receives a notice of
such claim under the Colorado Governmental Immunity Act for the same, shall cause
this indemnity and hold harmless agreement by the Developer to not apply to such
claim and such failure shall constitute a release of this indemnity and hold harmless
agreement as to such claim.
L. The Developer acknowledges and agrees that the City, as the owner of
any adjacent property (the "City Property') on which off -site improvements may be
constructed, or that may be damaged by the Developer's activities hereunder, expressly
retains (and does not by this 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.
M. 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 required for
each applicable phase of construction of the Development, as such phasing is
described above and as shown on the Final Development Plan Documents, shall be
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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
this Development and through the warranty periods described in Section ILL below and
on Exhibit "B" attached hereto. 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 $23,664.45 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
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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 these facilities. No grading shall be done outside of the approved
areas as shown on the Final Development Plan Documents.
7. The drainage design for this Development provides for the
evacuation of storm drainage runoff in a reasonable amount of time out of the water
quality and detention facilities and into the drainage outfall system. The water quality
and detention facilities have been designed to discharge stormwater runoff from
frequent storms over a 40 hour period through a small diameter outlet. Under the
intended operation of the water quality and detention pond, there will not be standing
water in the pond more than 48 hours after the end of a rainfall event. If after
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construction and acceptance of the detention facilities associated with this
Development, surfacing or standing water conditions persist in these facilities; and if
such conditions are beyond what can be expected in accordance with the approved
stormwater design, the Developer shall promptly, upon such discovery, install an
adequate de -watering system in the detention facilities. Such a system shall be
reviewed and approved by the City prior to installation.
8. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed outside of the public right-of-way, except for the
storm drainage lines that are to be built as part of the Northeast College Corridor Outfall
City storm water improvements outlined in Exhibit "C" attached hereto (the "NECCO
Improvements"), which lines shall be maintained in their entirety by the City following
certification of these lines by the Developer, their acceptance by the City and expiration
of the warranty periods described on Exhibit "B" attached hereto. The Developer is
responsible for maintaining all private storm water improvements per the Standard
Operating Procedures attached hereto as Exhibit "D".
9. The Developer and the City agree that the installation of the
NECCO Improvements being constructed by this Development shall be paid by the
Developer. In accordance with Sec. 26-545, the City shall reimburse the Developer for a
portion of the costs associated with building these improvements. The Developer shall
not be required to submit three proposals as required in Sec. 26-545 (b)(3). As shown
on Exhibit C, the total cost of the NECCO Improvements is estimated to be
1,021,029.59 ($887,851.82 estimated costs plus a 15% contingency). The
Development's portion of the NECCO Improvement costs is $372,569.00. Therefore in
the event that the actual costs of the NECCO Improvements exceeds $1,021,029.59,
the City shall have no obligation to reimburse the Developer for any amount greater
than $648,460.59.
10. The City shall reimburse the Developer within 60 days from
submittal of invoices as long as the City has available funds appropriated for that
purpose at the time these invoices are submitted. If not, the City shall reimburse the
Developer as soon as funds are appropriated for that purpose. The invoice submitted to
the City shall be the actual invoices from Developer's contractor.
11. The Developer and the City agree that the portion of this agreement
dealing with the repay of the NECCO Improvements is to be carried out only if the
Developer of this Development completes, or causes the completion of, the actual
improvements in accordance with paragraph II.C.9 above. If such improvements are
built by someone other than Developer or its contractor, then no reimbursement shall be
due to the Developer and any portion of this Agreement that deals with the repay for
NECCO Improvements, including Exhibit "C" attached hereto, shall be null and void.
12. The parties acknowledge that the Developer entered into a
redevelopment agreement with the Fort Collins Urban Renewal Authority (the "URA") on
March 29, 2013 (the "Redevelopment Agreement") to provide for reimbursement to the
Developer by the URA of a portion of the cost of the local street and landscaping
improvements for New Vine Drive and Redwood Street, and certain tree removal and
replacement. Section 3.5 of the Redevelopment Agreement also provides for a possible
temporary loan from the URA to the City to expedite the payment of reimbursement of
the NECCO Improvements in the event that such reimbursement is not fully
appropriated and paid to the Developer by the City upon Developer's completion of the
NECCO Improvements. To the extent that the URA reimburses the Developer for any
of the costs of the NECCO Improvements, the City reimbursement obligations under
this Agreement shall be reduced accordingly.
D. Streets
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Conifer Street
for those portions of said street abutting the Property as shown on the Final
Development Plan Documents. Reimbursement for Conifer Street shall be for
oversizing the street sidewalk from local (access) standards to collector standards. The
City shall make reimbursement to the Developer for the aforesaid oversized street
improvements in the manner provided in and in accordance with Section 24-112 of the
Code of the City. The Developer agrees and understands that the City shall have no
obligation to make reimbursement payments for street oversizing unless funds for such
payments shall first have been budgeted and appropriated from the Street Oversizing
Fund by the City Council; and the Developer further understands that to the extent that
funds are not available for such reimbursement, the City may not, in the absence of the
Developer's agreement, require the construction, at the Developer's expense, of any
oversized portion of streets not reasonably necessary to offset the traffic impacts of the
Development. The Developer does hereby agree to construct the aforesaid oversized
street improvements with the understanding that the Developer may not be fully
reimbursed by the City for the cost of such construction. The Developer further agrees
to accept payment in accordance with Section 24-112 (d) of the Code of the City as full
and final settlement and complete accord and satisfaction of all obligations of the City to
make reimbursements to the Developer for street oversizing expenses.
2. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Redwood
Street for those portions of said street abutting the Property as shown on the Final
Development Plan Documents. Reimbursement for Redwood Street shall be for
oversizing the street sidewalk only from Conifer Street south to a point 180 feet south of
the south property line (where the existing pavement section ends) as shown on the
Final Development Plan Documents and for oversizing the street from a point 180 feet
south of the south property line (where the existing pavement section ends) to Cajetan
Street from local (access) standards to collector standards. The City shall make
reimbursement to the Developer for the aforesaid oversized street improvements in the
manner provided in and in accordance with Section 24-112 of the Code of the City. The
Developer agrees and understands that the City shall have no obligation to make
reimbursement payments for street oversizing unless funds for such payments shall first
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have been budgeted and appropriated from the Street Oversizing Fund by the City
Council; and the Developer further understands that to the extent that funds are not
available for such reimbursement, the City may not, in the absence of the Developer's
agreement, require the construction, at the Developer's expense, of any oversized
portion of streets not reasonably necessary to offset the traffic impacts of the
Development. The Developer does hereby agree to construct the aforesaid oversized
street improvements with the understanding that the Developer may not be fully
reimbursed by the City for the cost of such construction. The Developer further agrees
to accept payment in accordance with Section 24-112 (d) of the Code of the City as full
and final settlement and complete accord and satisfaction of all obligations of the City to
make reimbursements to the Developer for street oversizing expenses.
3. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along the arterial
street located along the south boundary of the property (official name not yet known, but
the street is currently being referred to as 'New Vine Drive') for those portions of said
street abutting the Property as shown on the Final Development Plan Documents.
Reimbursement for New Vine Drive shall be for oversizing the street from local (access)
standards to arterial standards. The City shall make reimbursement to the Developer for
the aforesaid oversized street improvements in the manner provided in and in
accordance with Section 24-112 of the Code of the City. The Developer agrees and
understands that the City shall have no obligation to make reimbursement payments for
street oversizing unless funds for such payments shall first have been budgeted and
appropriated from the Street Oversizing Fund by the City Council; and the Developer
further understands that to the extent that funds are not available for such
reimbursement, the City may not, in the absence of the Developer's agreement, require
the construction, at the Developer's expense, of any oversized portion of streets not
reasonably necessary to offset the traffic impacts of the Development. The Developer
does hereby agree to construct the aforesaid oversized street improvements with the
understanding that the Developer may not be fully reimbursed by the City for the cost of
such construction. The Developer further agrees to accept payment in accordance with
Section 24-112 (d) of the Code of the City as full and final settlement and complete
accord and satisfaction of all obligations of the City to make reimbursements to the
Developer for street oversizing expenses.
4. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II(D) are "City improvements" (as
defined below) and, as such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the sum of Thirty
Thousand Dollars ($30,000), the contract for the construction of the same must be
submitted to a competitive bidding process resulting in an award to the lowest
responsible bidder; and evidence must be submitted to the City prior to the
commencement of the work showing that the award was given to the lowest responsible
bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the
contract for the construction of the improvements must be insured by a performance
bond or other equivalent security. For purposes of this paragraph, the term "City
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improvements" shall mean either (1) existing improvements owned by the City that are
to be modified or reconstructed, or (2) any improvements funded in whole or in part by
the City.
5. In accordance with Section 24-95 of the City Code the Developer is
responsible for constructing the portion of Lupine Street adjacent to the site prior to the
issuance of the first building permit. Notwithstanding the foregoing, the Developer shall
have the option to postpone the Lupine Street construction from station 10+00 to station
10+13.10, by delivering to the City a cash deposit sufficient to guarantee completion of
the construction of the improvements and the removal of the interim pan. The amount
of said funds shall be the estimated cost of the removal of the interim improvements in
the right-of-way plus the City adopted 'Local Street Cost' for the year in which the
payment is made. The Local Street Cost is a per linear foot cost estimate prepared
yearly and approved by the City for the cost to install the local street portion of a
roadway. The estimate includes but is not limited to the cost of the pavement and
subgrade, curb, gutter and 4.5 feet (in width) of sidewalk, and the parkway landscaping.
The removal estimate shall be prepared by the Developer and approved by the City,
plus an additional 25% of the estimate to cover any contingencies and unexpected
costs. The total of the Local Street Cost and removal costs shall be deposited with the
City prior to the issuance of any building permit for this Development.
The improvements to Lupine Street shall be constructed at such time that the City
deems the improvements to be necessary or at such time as improvements are made to
adjacent portions of Lupine Street, whichever shall first occur; provided, however, that
the City shall not withhold building permits or certificates of occupancy on account of
such 13.10 feet of improvements not having been completed so long as the Developer
timely commences and completes the construction of the remaining street portion as
provided herein and has made the substitutionary payment described above.
Any interest earned by the City as a result of said deposit shall be the property of the
City.
If the Developer is the party that constructs, or causes the construction of, said
improvements, upon completion of said improvements and acceptance of them by the
City, the City shall return to the Developer the amount deposited, less 3% of the total
amount remaining, (which includes said amount deposited plus any interest earned by
the City) to be kept by the City to cover its costs for administration of said deposits.
6. Only public utilities (utilities owned and maintained by the City and
gas utilities owned by Xcel Energy) or utility providers that have a franchise agreement
with the City are allowed to be installed and located within public right-of-ways and
public easements. Private utilities are allowed to cross public rights -of -way and
easements provided that the crossing is perpendicular to the public right-of-way or
easement, that sleeves are provided for the crossing in accordance with City standards,
encroachment permits for such crossing are obtained, and the utility is registered with
the utility locate center. Any private utilities found within public rights -of -way or
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easements not meeting the above criteria serving the site shall be required to be
removed by the Developer at the Developer's expense. All sleeves across the right-of-
way shall be designed and installed in accordance with City standards then in effect.
7. 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.
8. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
E. Natural Resources
1. The Developer agrees that, in order to comply with Section 3.4.1 of
the Land Use Code, it must establish at least 0.69 acres of wetlands in order to mitigate
the loss of 0.69 acres of wetlands located in the project site. To meet this requirement,
the Developer has requested that the City mitigate for said 0.69 acre by establishing
mitigation wetlands as part of a City project within the Poudre River Corridor in the City,
conditioned upon the payment by the Developer to the City of the amount of $48,300
prior to the issuance of a Development Construction Permit. The City will inform the
Developer of the location and boundary of such mitigation wetlands after they have
been determined by the City. Upon making such payment, the Developer shall be
deemed to have fully met its obligation to mitigate the loss of 0.69 acres of wetlands and
shall have no further obligation in connection therewith.
2. The Developer agrees, in order to further comply with Section 3.4.1
of the Land Use Code, to replace the lost ecological value from the removal of the site's
prairie dog colony in the following manner.
a. First, the Developer shall provide a cash -in -lieu payment of
900 per acre to the City of Fort Collins. The total area of disturbance is 31
acres, conditioned upon the payment by the Developer to the City of the amount
of $27,900 prior to the issuance of a Development Construction Permit.
b. Second, the Developer agrees to conduct one (1) week of
live trapping of prairie dogs on the site prior to the humane eradication of the
prairie dogs. The live trapping of prairie dogs shall be delivered to the U.S. Fish
and Wildlife Service Ferret Research Center. The Developer shall notify the City
prior to initiating the live trapping.
C. Third, after the completion of the live trapping but prior to the
commencement of any development activities within the Limits of Development
12
L.O.D.), the Developer shall relocate or eradicate any prairie dogs inhabiting any
portions of the site using City -approved methods as set forth in Chapter 4 of the
City Code. If prairie dogs are present, fumigation is best done between late April
and early June and relocation shall occur prior to March 1 or after May 31 of any
given year.
3. Fueling facilities shall be located at least one hundred (100) feet
from natural body of water, wetland, natural drainage way or manmade drainage way.
The fuel tanks and fueling area must be set in a containment area that will not allow a
fuel spill to directly flow, seep, run off, or be washed into a body of water, wetland or
drainage way.
4. The Developer shall delineate the Development property boundary
adjacent to all Limits of Development (L.O.D.) as defined by Article V, Section 5.1.2 of
the Land Use Code, including boundaries around existing trees that are to be
undisturbed, with orange construction fence prior to any type of construction, including
overlot grading.
F. Soil Amendment
1. In all areas within each applicable phase of construction of 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
13
the Developer's successor(s) in interest. Such subdrain system is likely to be located
both upon private and public property and, to the extent that it is located on public
property, all maintenance, operation, repair or reconstruction shall be conducted in such
a manner that such public property shall not be damaged, or if damaged, shall, upon
completion of any such project, be repaired in accordance with then existing City
standards. The City shall not be responsible for, and the Developer, for itself and its
successor(s) in interest, hereby agrees to indemnify and hold harmless the City against
any damages or injuries sustained in the Development as the result of groundwater
seepage or flooding, structural damage or other damage resulting from failure of any
such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and
hold harmless the City against any damages or injuries to water rights caused, directly
or indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided the Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice of any such claim to the Developer within ninety (90) days after the City first
receives notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause the forgoing indemnities and hold harmless agreements by the
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 for each applicable phase 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
14
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.
Building Permits
1. Notwithstanding anything to the contrary in Section I.C. of this
Agreement, the following provisions shall govern the issuance of building permits for
this Development.
a. No building permit for the construction of any structure within
Phase 1 of the Property shall be issued by the City until the public water lines
and stubs to each building, fire hydrants, electrical lines, sanitary sewer lines and
stubs to each building, and public streets (including curb, gutter, sidewalk, and
pavement with at least the base course completed) serving such structure in
Phase 1 have been completed and accepted by the City. Public streets for
Phase 1 include Lupine Street (from Redwood Street to Blue Spruce Drive,
including the sidewalk on the north side of this portion of roadway), Blue Spruce
Drive (Lupine Street to Conifer Street — no sidewalk needs to be installed with
phase 1 along this portion of roadway), Conifer Street (sidewalk along Conifer
from Jax Surplus to Redwood Street), Redwood Street (sidewalk from Conifer
Street to Lupine Street).
b. No building permit for the construction of any structure within
Phase 2 of the Property shall be issued by the City until the public water lines
and stubs to each building, fire hydrants, electrical lines, sanitary sewer lines and
stubs to each building, and public streets (including curb, gutter, sidewalk, and
pavement with at least the base course completed) serving such structure in
Phase 2 have been completed and accepted by the City. Public Streets for
Phase 2 include infrastructure constructed with Phase 1, the public sidewalk
along the south side of Lupine Street adjacent to Phase 2, and sidewalk along
the west side of Redwood Street adjacent to Phase 2.
C. No building permit for the construction of any structure within
Phase 3 of the Property shall be issued by the City until security for the New Vine
Drive and Redwood Street roadway infrastructure construction has been
provided to the City in acceptable form and until Phase 3 public water lines and
stubs to each building, fire hydrants, electrical lines, sanitary sewer lines and
stubs to each building, and public streets (including curb, gutter, sidewalk, and
pavement with at least the base course completed) serving such structure in
Phase 3 have been completed and accepted by the City. Public streets for Phase
3 include infrastructure constructed with Phase 1 and 2, the extension of Lupine
Street from Blue Spruce Drive to the west property line, and sidewalks on the
north side of Lupine Street adjacent to Phase 3 and sidewalk on Blue Spruce
Drive from Lupine Street to Conifer Street.
15
d. No building permit for the construction of any structure within
Phase 4 of the Property shall be issued by the City until the public water lines
and stubs to each building, fire hydrants, electrical lines, sanitary sewer lines and
stubs to each building, public streets (including curb, gutter, sidewalk, and
pavement with at least the base course completed) serving such structure in
Phase 4, and New Vine Drive and Redwood Drive have been completed and
accepted by the City. Public streets for Phase 4 include infrastructure
constructed with Phases 1, 2, and 3, Blue Spruce Drive from Lupine Drive to
New Vine Drive, New Vine Drive from the west property line to Redwood Street
including sidewalk along both sides of the roadway), and Redwood Street from
Lupine Drive to Cajetan Street (sidewalk on the west side only), and all sidewalk
along Lupine Street adjacent to Phase 3.
2. Notwithstanding any provision of this Agreement to the contrary,
the Developer shall have the right to obtain Footing and Foundation permits upon the
installation of all underground water, sanitary sewer, and storm sewer facilities, and an
emergency accessway for the phase in which the permit is being requested. Facilities
shall include, but not be limited to, all mains, lines, services, fire hydrants and
appurtenances for the phase as shown on the Final Development Plan Documents.
J. Development Construction Permit
1. The Developer shall apply for and obtain a Development
Construction Permit for this Development, in accordance with Division 2.6 of the Land
Use Code, 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 "B." Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section
3.3.2(C) of the Land Use Code. Notwithstanding the provisions of Paragraphs III (H)
and (1) of this Agreement to the contrary, the obligations of the Developer pursuant to
this paragraph and Exhibit "B" may not be assigned or transferred to any other person
or entity unless the warranted improvements are completed by, and a letter of
acceptance of the warranted improvements is received from the City by, such other
person or entity.
16
L. Shuttle Service
1. The Developer, or an operator under contract to the Developer,
shall, prior to the issuance of more than eighty (80) certificates of occupancy, provide
shuttle bus services between the development site and the main campus of Colorado
State University. This shuttle bus service shall operate on weekdays whenever
Colorado State University is holding classes and shall run on at least an hourly
departure schedule between the hours of 7 am and 5 pm. if there is insufficient
ridership demand to support the need for the shuttle bus service the Developer may
apply for a minor amendment to the approved final plan for the Development to reduce
the routes or eliminate the shuttle bus service. All shuttle bus services provided under
this paragraph shall be for the use of the residents of the Development only, and shall
be provided free of charge to such residents.
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 Developers operation, or
the activities of individual builders and/or subcontractors; shall remove such rubbish as
often as necessary, but no less than daily and; at the completion of the work, shall
remove all such waste materials, rubbish, tools, construction equipment, machinery,
and surplus materials from the public right-of-way. The Developer further agrees to
maintain the finished street surfaces so that they are free from dirt caused by the
Developer's operation or as a result of building activity. Any excessive accumulation of
dirt and/or construction materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until the problem is corrected
to the satisfaction of the City Engineer. If the Developer fails to adequately clean such
streets within two (2) days after receipt of written notice, the City may have the streets
cleaned at the Developer's expense and the Developer shall be responsible for prompt
payment of all such costs. The Developer also agrees to require all contractors within
the Development to keep the public right-of-way clean and free from accumulation of
dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing
operations when winds are of sufficient velocity to create blowing dust which, in the
inspector's opinion, is hazardous to the public health and welfare.
17
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
W
specifying such default and shall be allowed a period of ten (10) days within which to
cure said default or, if such default cannot reasonably be cured within such ten (10) day
period, such period as is reasonably necessary to cure such default, but in no event
longer than sixty (60) days. In the event the default remains uncorrected, the party
declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat
the Agreement as continuing and require specific performance or; (c) avail itself of any
other remedy at law or equity.
K. In the event of the default of any of the provisions hereof by either party
which shall require the party not in default to commence legal or equitable action
against said defaulting party, the defaulting party shall be liable to the non -defaulting
party for the non -defaulting party's reasonable attorney's fees and costs incurred by
reason of the default. Nothing herein shall be construed to prevent or interfere with the
City's rights and remedies specified in Paragraph III.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement
shall not be construed as or deemed to be an agreement for the benefit of any third
party or parties, and no third party or parties shall have any right of action hereunder for
any cause whatsoever.
M. It is expressly understood and agreed by and between the parties hereto
that this Agreement shall be governed by and its terms construed under the laws of the
State of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set
forth below; and such notice or other communication shall be deemed given when so
hand -delivered or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
19
If to the Developer: Breckenridge Group Fort Collins Colorado, LLC
Attn.: Ryan Fetgatter
1301 S. Capital of Texas Hwy, Suite B-201
Austin, TX 78746
With a copy to: Winstead PC
Attn: Jeff Matthews
500 Winstead Bldg
2728 N. Harwood St.
Dallas, TX 75201
With a copy to: JP Morgan Chase Bank, N.A.
Attn: Diane Chavez
TX1-2953
2200 Ross Avenue, Floor 9
Dallas, TX 75201-2787
With a copy to: Locke Lord LLP
Attn: Brad Hawley
600 Congress Avenue, Suite 2200
Austin, TX 78701
With a copy to: Liley, Rogers & Martell, LLC
Attn: Lucia Liley
300 South Howes Street
Fort Collins, Colorado 80521
Notwithstanding the foregoing, if any party to this Agreement, or its successors,
grantees or assigns, wishes to change the person, entity or address to which notices
under this Agreement are to be sent as provided above, such party shall do so by giving
the other parties to this Agreement written notice of such change.
O. When used in this Agreement, words of the masculine gender shall
include the feminine and neuter gender, and when the sentence so indicates, words of
the neuter gender shall refer to any gender; and words in the singular shall include the
plural and vice versa. This Agreement shall be construed according to its fair meaning,
and as if prepared by all parties hereto, and shall be deemed to be and contain the
entire understanding and agreement between the parties hereto pertaining to the
matters addressed in this Agreement. There shall be deemed to be no other terms,
conditions, promises, understandings, statements, representations, 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
20
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 JPMorgan
Chase Bank, N.A., a national banking association (the "Lender"), that the Lender
intends to extend 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 in Section N
above. 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
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporatio
Bye7-; --1`.
City Manager
P•....• O
APPROVED AS TO CONTENT:
Ci ngi eter
APPROVE A O FJDRM:
Attorney
21
STATE OF TEXAS )
ss.
COUNTY OF TRAVIS )
The foregoing instrument was
j 6vr s , 2013, by Greg Henry as
Colorado, LLC.
DEVELOPER:
Breckenridge Group Fort Collin olol
LLC, a Texas limited liability mpany
Henry, Manager
acknowledged before me this I S day of
Manager of Breckenridge Group Fort Collins
x';;":'• JENNI SIMMONS
Notary PublIC, State of Texas /1
my Commission Expires Y -'
en Simmbns, Notary PublicoMarch05, 2016
hlrmN''
My Commission Expires: 3
22
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.
23
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 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.
24
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.
25
EXHIBIT "C"
The quantities, unit prices and amounts set out in the following table represent an
estimate of the elements of work that are to be completed and the corresponding costs
that are expected to be incurred by the Developer in connection with construction of the
NECCO regional drainage improvements, and for which the Developer is eligible to
receive reimbursement. These costs are based on analysis prepared by Owen
Consulting Group, Inc., applying unit prices quoted to the Developer by the site
improvements contractor, Connell Resources, Inc., and presented to the City for review
and acceptance.
The City shall make payments to the Developer on the basis of actual costs,
substantiated by Contractor invoices, and submitted to the City, by the Developer, within
60 days of receipt of invoices.
The maximum net amount reimbursed by the City for major drainage improvements (the
NECCO Storm Drainage Improvements) shall not exceed $648,460.59, as detailed
below.
Estimated Total Cost
Contingency Allowance (15%)
Maximum Reimbursable Cost
Less: Developer's Share of NECCO Costs
Maximum Net Reimbursable Amount
887,851.82
133,177.77
1,021,029.59
372,569.00
U48.460.59
FM
NECCO STORM DRAINAGE IMPROVEMENTS
REIMBURSEMENT ESTIMATE OF COSTS
Item Description Est. Quantity Unit of Meas. Unit Price Amount
General Conditions
Mobilization 0.12 LS 9,000.00 5,880.00
Site Management 4.00 WK 2,760.00 11.040.00
Pothole Existing Utilities 24.00 HR 183.00 392.00
Surveying 0.40 LS 18,200.00 7,280.00
Bond 0.40 LS 19,500.00 7,800.00
36,392.00
Removals
Tree Removals Allowance 0.40 LS 33,200.00 113,280.00
13,280.00
Erosion Control
Silt Fence 260.00 LF 1.85 481.00
481.00
Earthwork
Excavation - Cut to Fill Pond Area 23,236.00 CY 2.85 66,222.60
Extra for Excav'n of Unstable Subgrade 23,236.00 CY 2.45 56,928.20 Finish
Grading 23,200.00 SY 0.39 9,048.00 132,
198.80 Storm
Drain Dewatering
for Storm Drain Installation 4.00 WK 8,090.00 32,360.00 24"
Storm Drain 40.00 LF 52.70 2,108.00 30"
Storm Drain 64.00 LF 65.60 198.40 736
Storm Drain 1,000.00 LF 95.00 95,000.00 36"
RCP FES with Scour Stop1.00 EA 2,400.00 2,400.00 48"
RCP Storm Drain 88.00 LF 144.00 12,672.00 54"
RCP Storm Drain 24.00 LF 166.00 3,984.00 66"
RCP Storm Drain 896.00 LF 216.00 193,536.00 72"
RCP Storm Drain 389.00 LF 254.00 98,806.00 Bulkhead
5.00 EA 1,520.00 7,600.00 Precast
Bend 4.00 EA 1,980.00 7,920.00 Stabilization
Gravel Allowance 1,000.00 TON 18.80 18,800.00 Headwall
2.00 EA 340.00 8,680.00 Flowfill
Cutoff Wall 8.00 EA 800.00 400.00 Storm
Manhole Box Base (Large) 3.00 EA 14,300.00 42,900.00 Storm
Manhole Tee Base 1.00 EA 4,500.00 500.00 Storm
Manhole 8' 3.00 EA 11,800.00 35,400.00 Storm
Junction 66" x 30" Wye 1.00 EA 1,400.00 1,400.00 Manhole
Snout 2.00 EA 6,650.00 64.
00
5591,
964.40 Direct
Cost Subtotal 774,316.20 Indirect
Costs Replacement
Tree U sizi 00 Prairie
D Removal Habitat
Loss Compensation 21717.
00 8,
487.00 Engineering &
Construction M mt 10% Allowance 77 431.62 Indirect
Cost Subtotal 1 113,535.62 Estimated
Total Cost 1 887,851.82 27
EXHIBIT "D"
STANDARD OPERATING PROCEDURES (SOPS)
Aspen Heights, Fort Collins, CO
A. PURPOSE
In order for physical stormwater Best Management Practices (BMPs) to be effective, proper
maintenance is critical. 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. BMPS SUBJECT TO SOP REQUIREMENTS
The following stormwater facilities contained within the Aspen Heights Fort Collins project
are subject to SOP requirements:
Extended Detention Basin (EDB)
Storm Sewers and Tree Roots
The location of said facilities can be found on the Site Plan, Landscape Plans, and Utility
Plans for Aspen Heights.
C. SITE -SPECIFIC STANDARD OPERATING PROCEDURES
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, latest revision. The Storm Sewer maintenance
procedures follow. The Storm Sewer Lines (Table 1) and Extended Detention Basin (Table
2) maintenance plans are as follows:
Storm Sewer Lines Maintenance Plan
The storm sewer lines are located in close proximity to many trees. The situation is
unavoidable; therefore, special maintenance has been identified to ensure these storm drain
systems perform as they were designed. In addition, Inlets and outlet rip -rap will need to be
maintained.
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Table 1— Routine Storm Sewer Line Maintenance
Re uired Action Maintenance Obiective Frequency of Action
Use a video camera to inspect the Routine -Annual inspection of
condition of the storm sewer hydraulic and structural facilities.
Line Inspections
pipes. Cleanout pipes as needed. Also check for obvious problems
If the integrity of the pipe is during routine maintenance visits,
compromised, then repair the especially for plugging of outlets.
damaged sections .
Routine — Annual inspection of
Inlet Inspections
Inspect and clean inlet weirs and
boxes of any debris.
inlets to ensure proper operation
and prevent plugging.
Maintain riprap (rock) storm Routine — Annual inspection of
Riprap Outlet Protection sewer outlet protection to ensure riprap to replace dislodged stones,
Inspections
proper operation. remove debris, etc.
Extended Detention Basin Maintenance Plan
Table 1 Routine EDB Maintenance (Summary from Table EDB-1, Chapter 6 of UDFCD)
Required Action Maintenance Ob'ective cy of Action
Occasional mowing to limit
unwanted vegetation. Maintain
irrigated turf grass as 2 to 4 inches Routine - Depending on aesthetic
Lawn mowing and Lawn care tall and non -irrigated native turf requirements.
grasses at 4 to 6 inches.
Routine - Including just before
Removal of sediment, debris, and annual storm seasons (April and
Sediment, Debris, and Litter litter from the entire pond to May), end storm season after
removal minimize outlet clogging and leaves have fallen, and following
improve aesthetics. significant rainfall events.
Non -routine - Performed when
sediment accumulation occupies 20
percent of the WQCV. This may vary
Remove accumulated sediment from considerably, but expect to do this
Major Pond Sediment removal* the bottom of the basin. every 10 to 20 years, as necessary per
inspection if no construction activities
take place in the tributary watershed.
More often if they do.
Inspect basins to insure that the basin
continues to function as initially
intended. Examine the outlet for
clogging, erosion, slumping, Every two to five years. Inspections excessive sedimentation levels,
overgrowth, embankment and
spillway integrity and damage to any
structural element.
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