HomeMy WebLinkAboutLegal - Agreement - 09/03/20251
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND
COLORADO IMPORT MOTORS LIMITED AND PEDERSON PROPERTIES LIMITED
THIS DEVELOPMENT AGREEMENT (the “Agreement”) is made and entered into on the
date of the last signature below, by and between the CITY OF FORT COLLINS,
COLORADO, a Municipal Corporation, hereinafter referred to as the “City”; and
COLORADO IMPORT MOTORS LIMITED, a Colorado Corporation, hereinafter referred
to as the “Developer”; and PEDERSEN PROPERTIES LLLP, a Colorado limited liability ,
limited partnership, hereinafter referred to as the “Owner.”
WITNESSETH:
{Use if Developer is not the Owner}
WHEREAS, the Developer has entered into an agreement with the Owner to
acquire ownership of certain real property situated in the County of Larimer, State of
Colorado, (hereafter sometimes referred to as the “Property” or, in context with the
proposed improvements, as the “Development”) and legally described as follows:
{Use if the Developer and the Owner are the same}
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:
{use legal description off of the top of the plat for the Property here - if the plat
name and the project name are not the same place the project name after the plat
name in parenthesis - such as }, located in Section Southeast Quarter of Section
35#, Township 7# North, Range 69# West of the 6th P.M., City of Fort Collins,
County of Larimer, State of Colorado.
WHEREAS, the Development is known to the City as Pederson Toyota Filing NO.
1 {insert project name, which may match the subdivision plat name/legal description
above}, ID# {insert Accela ID number(s)}MJA250001; and
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, plans (including utility plans), reports and other documents required for
the approval of a final plan according to the City’s development application submittal
requirements master list (the “Final Development Plan Documents”) copies of which are
on file in the office of the City Engineer and made a part hereof by reference; and
Formatted: Not Highlight
2
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 P roperty
and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the Final Development Plan Documents
submitted by the Developer, subject to certain requirements and conditions, which involve
the installation of and construction of utilities and other municipal improvements in
connection with the development of the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
I. General Conditions
A. The Recitals set forth above are hereby incorporated in and made a part of
this Agreement by this reference.
B. References to the City Code, Land Use Code, or other laws, regulations, or
rules shall include subsequent amendments thereto or adopted laws, regulations, or rules
intended to replace or otherwise supersede prior laws, regulations, or rules. By way of
example, if the City were to adopt in the future a revised Land Use Code that replaces
and supersedes the current Land Use Code, then the relevant section of the revised Land
Use Code would apply in lieu of the Land Use Code provisions referenced herein.
Notwithstanding, the foregoing language is not intended to alter or otherwise affect valid
vested rights except as may be provided for in § 24-68-105, C.R.S. The term “City Code”
used herein shall mean the “Code of the City of Fort Collins.”
C. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement, “development
activities” shall include, but not be limited to, the following: (1) the actual construction of
public and private improvements, (2) obtaining a permit therefor, or (3) any change in
grade, contour, use or appearance of the Property caused by, or on behalf of, the
Developer with the intent to construct improvements thereon.
D. All improvements, including but not limited to water lines, sanitary sewer
collection lines, storm sewer lines and facilities, streets, curbs, gutters, sidewalks, and
bikepaths shall be paid for and installed by the Developer as shown on the approved 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 year time limitation from
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the date of approval of the Final Development Plan Documents. In the event that the
Developer commences or performs any construction pursuant hereto after the passage
of three years from the date of approval of the Final Development Plan Documents, 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.
E. 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 (in cluding
curb, gutter, sidewalk, and pavement with at least the base course completed) serving
such structure have been completed and accepted by the City. No building permits shall
be issued for any structure located in excess of 660 feet from a single point of access,
unless the structures contain sprinkler systems that are approved by the Poudre Fire
Authority.
F. Any water lines, sanitary sewer lines, storm drainage lines, electrical lines,
and/or streets described on Exhibit A, attached hereto and incorporated herein by
reference, 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 a nd shall
be installed by the Developer within the time as established under “Special Conditions” in
this Agreement.
G. 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 and
private 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.
H. 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.
I. 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
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Federal or State mandated requirements, then the Federal or State mandated
requirements shall prevail.
J. Unless authorized by the City in writing and pursuant to law, the public right-
of-way shall not be used for staging or storage of materials , equipment, or construction
debris (“Staging”) associated with the Development, nor shall it be used for parking by
any contractors, subcontractors, or other personnel working for or hired by the Developer
to construct the Development. The Developer shall find a location(s) on private pro perty
to accommodate any necessary Staging and/or parking needs associated with the
completion of the Development. Information on the location(s) of these areas shall be
provided to the City as a part of the Development Construction Permit application.
{include this paragraph only if applicable and true}
K. Developments constructed with privately maintained streets shall be
constructed to the same design standards as those constructed on similar public rights -
of-way (ROW). Public easements shall be provided for access, utilities and drainage as
required by the design and location of such infrastructure and as reflected on the Final
Development Plan Documents. Alignment and grades on privately maintained streets
and drives shall allow for safe access, ingress and egress by owners, visitors, the general
public and public safety officials and equipment, as approved by the City Engineer.
L. 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 ’s 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. No
language in this Paragraph shall be construed or interpreted as establishing in any way
the City’s liability for any act or omission and the terms of this Paragraph solely relate to
the Developer’s obligation to indemnify and hold harmless the City. The City agrees to
give notice to the Developer of any claim made against it to which this indemnity and hold
harmless agreement by the Developer could apply, and the Developer shall have the right
to defend any lawsuit based on such claim and to settle any such claim provided
Developer must obtain a complete discharge of all City liability through such settlement.
5
Failure of the City to give notice of any such claim to the Developer within 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 rel ease 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 ma nner 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 he reby that
such engagement shall be intended for the benefit of the City, and subsequent purchasers
of property in the Development.
M. The Developer shall provide the City Engineer with certified Record Plan
Transparencies (“as-built drawings”) by electronic file 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.
N. 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
6
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 w ithin 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 constitu te a release of this
indemnity and hold harmless agreement as to such claim.
O. 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 of the City Property 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.
P. 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. {delete following
sentence if project is not near a downtown alley} Paver repair and replacement in
Downtown alleys shall comply with the City’s specific requirements for pavers.
Q. Future development of any lot(s) within the Property shall require the
Developer or its successor(s) in interest to enter into a new development agreement(s)
with the City governing the development of such lot(s). The Developer or its successor(s)
in interest and the City may enter into a new development agreement(s) without amending
this Agreement and without the consent of other parties to this Agreement other than the
City, as long as the new development agreement(s) does not alter or otherwise contradict
the provisions of this Agreement that are applicable to the oth er parties.
R. A determination of adequacy for the supply of potable and non-potable
water, where applicable, has been found by the City based on evidence and information
provided by the Developer and the water service provider, as required by the Land Use
Code. Any change in the water supply or demand (I.e., changes in land use or
landscaping) may be subject to revision of that finding , and a review of the water supply
requirements by the water service provider.
S. Before final acceptance of improvements and release of final guarantee, the
Developer shall ensure that all land, improvements, and facilities intended to be owned,
operated, and maintained by one or more owners associations or metropolitan districts,
7
are fully conveyed to the appropriate entity. With such conveyance, a copy of all final or
as-built drawings for any development, construction, building, and landscaping plans, and
operations and maintenance plans, manuals, and other information shall be provided by
the Developer to said entities, to include but not be limited to: stormwater facilities, private
drives, parking areas, open space, parks, trails, natural hazard buffer zones, and irrigation
systems.
T. Landscaping watering and maintenance in public right-of-way shall be the
responsibility of the Developer. {unless specified otherwise in the Final Development Plan
Documents and/or the Special Conditions section of this Agre ement}
II. Special Conditions
A. Public Benefit Agreement (when applicable – MD &/or PUD)
1. The Developer acknowledges the current agreement with the City for
required public benefits as outlined in the Public Benefit Agreement for XXX
[Development name], dated ___________, and recorded at Reception No.
________________. This Development, or portion thereof, is in alignment with
requirements of that agreement, and more specifically satisfies the following required
community benefits as stated in sections X and Y of the Public Benefit Agreement :
2. Housing:
3. Other:
B. Water Lines
Not Applicable {delete if there are paragraphs}
{sample paragraphs – use and modify as necessary}
1. Notwithstanding anything in this Agreement to the contrary, the
Development will be provided water service from the Fort Collins-Loveland Water District
(“Water District”), and all water line improvements shall be installed and inspected in
accordance with the Water District’s regulations and the approved plans therefor.
2. The Developer shall reimburse the City at the rate of $16.00 per front
foot plus an inflation factor for the cost of installation of the 16” water line in Horsetooth
Road adjacent to the Development. The inflation factor shall be calculated based upon
the Construction Cost Index for Denver as published in the Engineering News Record of
April 13, 1989. Said reimbursement shall be paid before the issuance of the first building
permit.
3. The City will be constructing a water line in ___________ during the
summer of _____. The Developer shall be obligated to reimburse the city for the cost of
Formatted: Highlight
8
the Developer’s proportionate share of said water line. The amount to be reimbursed
shall be determined at the time of completion of said water line installation and in
accordance with the provisions of Section 26-121 of City Code. The Developer shall
reimburse the City before the issuance of the first building permit following the issuance
of an invoice by the city to the Developer for said amount or before the issuance of more
than 25 building permits, whichever comes first.
C. Sewer Lines
Not Applicable {delete if there are paragraphs}
{sample paragraph – use and modify as necessary}
1. Notwithstanding anything in this Agreement to the contrary, the
Property will be provided sanitary sewer service from the South Fort Collins Sanitation
District (“Sewer District”), and all sewer line improvements shall be installed and
inspected in accordance with the Sew er District’s regulations and the approved plans
therefor.
D. Storm Drainage Lines and Appurtenances
{Choose either No erosion, Erosion security, or Erosion security w/ phases and delete
others}
{No erosion security associated}
1. The Developer agrees to provide and maintain the Property in a
clean and orderly condition to ensure that pollutants such as dirt, paints, concrete, and
other construction pollutant sources are kept from leaving the Property, and from reaching
any storm drainage infrastructure, pursuant to City Code § 26-498, Water Quality Control,
and City Code § 12-153, Prevention of Fugitive Dust Emissions. The Developer agrees
that at any time during construction if pollutants are not safeguarded from leaving the
Property, a City Erosion Control Inspector may require any or all of the following to ensure
that the Property will not contribute any pollution loading to the City’s storm sewer system:
(1) The installation and maintenance of erosion control measures; (2) Erosion control
plans and reports for City review and approval; and (3) An erosion control escrow to
guarantee that erosion control measures are installed and maintained .
{Erosion security}
2. The Developer agrees to provide and maintain erosion and sediment
control improvements as shown on the Final Development Plan Documents until all
disturbed areas in and adjacent to this Development's construction activities are
stabilized. The Developer shall also be required to post a security deposit in the amount
shown in the Final Development Plan Documents before beginning construction to
guarantee the proper installation and maintenance and, upon completion, removal of the
9
erosion and sediment 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 Stormwater Criteria Manual referenced at City Code § 26-500 and in the Dust
Prevention and Control Manual referenced in City Code § 12-152, hereinafter the
Stormwater Criteria Manual and the Dust Prevention and Control Manual shall be
collectively referred to as the “Criteria.” When said security deposit(s) is a letter of credit
or a bond the Developer shall replace the security no later than 30 days before its
expiration date. If the security posted by the Developer is a Letter of Credit, and such
letter has not been replaced or renewed within 30 days of its expiration date, the City may
elect to draw and hold the funds as it sees fit. The City shall have the option in any case
to also withhold building permits and certificates of occupancy, as stated in Paragraph
III.D of this Agreement, as it deems necessary in order to ensure that at all times the
Developer is maintaining appropriate levels of security to guarantee completion of the
erosion and sediment control improvements. If, at any time, the Developer fails to abide
by the erosion control provisions of the Final Development Plan Documents o r 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 the Final Development Plan Documents and the Criteria. In
addition, the City shall have the option to withhold building permits and certificates of
occupancy, as stated in Paragraph III.D of this Agreement, as it deems necessary in order
to ensure that the Developer installs, maintains, and ultimately removes the erosion and
sediment control measures throughout the build-out of this Development. When identified,
any violations of applicable laws, regulations, or policies regarding erosion and sediment
control are to be corrected immediately per Part I.D.8 of the Developer’s Colorado
Discharge Permit System (“CDPS”) Permit for Stormwater Discharges Associated with
Construction Activity as required by the Colorado Department of Public Health and
Environment (“CDPHE”), City Code § 26-498, Water Quality Control, and City Code
§ 12-153, Prevention of Fugitive Dust Emissions. If no CDPS Permit is required,
violations of any applicable laws, regulations, or policies regarding erosion and sediment
control are to be corrected immediately as required b y the CDPHE and the Environmental
Protection Agency (EPA) in accordance with the Clean Water Act, City Code § 26 -498,
Water Quality Control, and City Code § 12-153, Prevention of Fugitive Dust
Emissions. Failure to correct any violation shall prevent the Developer from building in
any future phases until fully corrected. Upon stabilization of the disturbed areas, and upon
the request of the Developer, the City will confirm that the Property is stabilized from
potential erosion and sediment discharges and fugitive dust emissionscontrol discharges
from resulting from construction activities and that all temporary erosion and sediment Commented [A1]: Not sure what this is supposed to say
10
and dust control measures used by the Developer are removed. In confirmation by the
City that the Property is stabilized, any remaining portions of the security deposit that is
associated with the adequate maintenance of erosion and sediment control
improvements shall be returned.
{Erosion security w/ phases}
3. The Developer agrees to provide and maintain erosion and sediment
control improvements as shown on the Final Development Plan Documents until all
disturbed areas in and adjacent to this Development's construction activities are
stabilized. The Developer shall also be required to post a security deposit for each phase
of construction. The amount of the security deposit required for each phase is shown in
the Final Development Plan Documents. The security deposit for each phase shall be
deposited before beginning construction on such phase, respectively, to guarantee the
proper installation and maintenance and, upon completion, removal of the erosion and
sediment control measures shown on the Final Development Plan Documents for such
phase. Said security deposit(s) shall be made in accordance with the criteria set forth in
the Stormwater Criteria Manual referenced in City Code § 26-500 and in the Dust
Prevention and Control Manual referenced in City Code § 12 -153, hereinafter the
Stormwater Criteria Manual and the Dust Prevention and Control Manual shall be
collectively referred to as the “Criteria.” When said security deposit(s) is a letter of credit
or a bond the Developer shall replace the security no later than 30 days before its
expiration date. If the security posted by Developer is a Letter of Credit, and such letter
has not been replaced or renewed within 30 days of its expiration date, the City may elect
to draw and hold the funds as it sees fit. The City shall have the option in any case to also
withhold building permits and certificates of occupancy, as stated in Paragraph III.D of
this Agreement, as it deems necessary in order to ensure that at all times the Developer
is maintaining appropriate levels of security to guarantee completion of the erosion and
sediment control improvements. 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, installation, maintenance, and/or removal of
the erosion control measures required by the Final Development Plan Documents and
the Criteria. In addition, the City shall have the option to withhold building permits and
certificates of occupancy, as stated in Paragraph III.D of this Agreement, as it deems
necessary in order to ensure that the Developer installs, maintains, and ultimately
removes the erosion and sediment control measures throughout the build -out of this
Development. Upon stabilization of all the disturbed areas in each phase, and upon the
request of the Developer, the City will confirm that the phase is stabilized from potential
11
erosion and sediment control discharges from construction activities and that all
temporary erosion and sediment control measures from the phase by the Developer are
removed. In confirmation by the City that a phase is stabilized, any remaining portions of
the security deposit from that respective phase that is associated with the adequate
maintenance of erosion and sediment control improvements shall be returned. The
Developer further agrees that construction in any future phase shall not commence until
the Developer has corrected any potential or actual erosion, sedimentation, and/or
pollution violations. When identified, any violation of applicable laws, regulations, or
policies regarding erosion and sediment control must be corrected immediately per Part
I.D.8 of the Developer’s Colorado Discharge Permit System (“CDPS”) Permit for
Stormwater Discharges Associated with Construction Activity as required by the Colorado
Department of Public Health and Environment (“CDPHE”), City Code § 26-498, Water
Quality Control, and City Code § 12-153, Prevention of Fugitive Dust Emissions . If no
CDPS Permit is required, violations of any applicable laws, regulations, or policies
regarding erosion and sediment control are to be corrected immediately as required by
the CDPHE and the Environmental Protection Agency (EPA) in accordance with the
Clean Water Act, City Code § 26-498, Water Quality Control, and City Code § 12-153,
Prevention of Fugitive Dust Emissions.
4. {Insert Stormwater’s language here}
E. Floodplain
1. Portions of this property {or lots _____} are located in the
_______100-year floodplain {and floodway}. The Developer shall obtain a Floodplain Use
Permit from the City and pay all applicable floodplain use permit fees before commencing
any construction activity (building of structures, grading, fill, detention ponds, bike paths,
parking lots, utilities, landscaped areas, flood control channels, etc.) within the _____
Floodplain Limits as delineated on the Final Development Pl an Documents for this
Development. All activities in this Development are subject to the requirements of
Chapter 10 of the City Code.
All structures in the 100-year floodplain shall be built in accordance with the Floodplain
Protection Detail and in accordance with stated elevations as shown on _______ of the
Final Development Plan Documents for this Development. This includes elevating the
lowest floor and all HVAC, electrical, and mechanical to the regulatory flood protection
elevation, which is __ ft. above the 100 -year flood elevation. The regulations stipulate that
basements shall be expressly prohibited in any structure built on any of these lots.
2. A FEMA elevation certificate shall be submitted and approved,
before the issuance of a certificate of occupancy for any structure that is located in the
100-year floodplain. Said certification shall be submitted to the City at least two weeks
before the date of issuance of the desired certificate of occupancy.
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At-risk population, essential services, hazardous material or government services critical
facilities are prohibited in the 100 -year floodplain as delineated on the approved plans.
Failure to comply with all floodplain requirements in sections _____ above shall result in
a stop work order and/or the withholding of the issuance of additional building permits
and/ or certificates of occupancy until the violation(s) are corrected and approved by the
City in accordance with Chapter 10 of City Code. {This should be the last note.}
For properties that may have upcoming mapping changes (i.e LOMR, City Map Revision,
new floodplain maps, etc.):
The requirements in effect at the time of a building permit must be met for work under the
permit, in addition to any requirements set forth in this development agreement, which
may be more restrictive.
Floodway
For no construction in the floodway:
1. No construction activities shall be undertaken within the ______ Floodway
as delineated on the Final Development Plan Documents. The developer shall stake the
floodway in the field before commencing any site work. The floodway is considered a no-
disturbance area.
The area encompassed within the floodway limits cannot be used during
construction for equipment storage, material storage, or temporary storage of fill dirt.
Failure to comply with such a condition shall result in the stoppage of work on the site,
withholding of building permits and/or certificates of occupancy in this Development and
all other applicable City floodplain and floodway regulations.
For construction in the floodway:
2. An approved no-rise certification must accompany the floodplain use
permit for construction elements within the floodway portion of the floodplain. An as -built
no-rise certification signed by a registered professional engineer in the State of Colorado
is required for construction elements within the floodway portion of the floodplain. Said
certification shall be submitted to the City at least two weeks before the desired date of
approval. The as-built no-rise certification shall be submitted and approved before
approval of the overall drainage site certification.
No fill shall be placed in the floodway. All fencing in the floodway shall be break -away,
including any construction fencing.
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For future development after a map change:
3. Lots ____are located in the _____ floodway and shall not be
developed, including construction of fencing, until such time as they are removed from
the floodway by a map revision. At the time the floodway is removed, the structures must
comply with any requirements of Chapter 10 of the City Code based on the floodplain
delineations effective at time of construction.
CLOMR/LOMR
4. CLOMR xx-xx-xxxx was approved by FEMA before signing of the
Final Development Plans and before commencing any construction activity within the
_______ Floodway. A LOMR must be approved by the City and submitted to FEMA
before issuance of the Certificate of Occupancy for the building.
For any buildings planned in the effective floodway, no building permits shall be issued
for structures until approval of the LOMR by the City and by FEMA for this project.
Floodproofing and Venting
5. The developer must submit and receive approval of the floodproofing
design, including a Pre-Construction Floodproofing Certification before approval of the
floodplain use permit. The Developer must submit an as -built Floodproofing Certificate
in order for a Certificate of Occupancy to be released. Said certification shall be submitted
to the City at least two weeks before the date of issuance of the desired certificate of
occupancy. The developer is responsible for all operation and maintenance of the
floodproofing design measures.
This project utilizes permanent flood vents to equalize water pressure on the walls of the
building. The developer is responsible for the maintenance of these vents and to make
sure they are free from blockage such that they may function properly during a flood
event. Any vented area is to be used only for parking and storage.
Poudre River
6. The construction staging area, including all storage of equipment and
materials shall be located outside the ____________ 100-year floodplain limits as
delineated on the approved plans.
14
All floatable materials (picnic tables, bike racks, tables, chairs, trash dumpsters, etc.) in
the 100-year floodplain shall be anchored to prevent floatation. There shall be no
overnight parking of unattended vehicles (i.e. fleet vehicles) in the 100-year floodplain.
At-risk population or essential services critical facilities are prohibited in the 100 -year or
500-year floodplain as delineated on the approved plans. In addition, hazardous material
or government services critical facilities are prohibited in the 100-year floodplain as
delineated on the approved plans.
The developer is required to submit an Emergency Response and Preparedness Plan for
each structure in the 100-year floodplain before approval of the floodplain use permit. It
is the responsibility of the building owner to submit the annual review and conduct practice
drills in accordance with the requirements in Chapter 10 of City Code.
Bank Stabilization – River Work
7. No work including but not limited to the placement of coffer dams or
equipment and machinery accessing or operating in the river shall take place in the
channel of the Poudre River from April 15th – September 30th due to flood concerns.
City Stormwater must be notified before the commencement of the bank stabilization
work. City staff will be making periodic inspections of the bank stabilization construction.
The Flood Control Channel and erosion revetment features shall be constructed per
manufacturer’s specifications and Final Development Plan documents. The Developer
shall maintain Flood Control Channel per Final Development Plan documents and
CLOMR-approved support materials. The Developer shall irrigate the Flood Control
Channel vegetation until full establishment as determined by City Officials. Irrigation shall
continue for no less than two years. If mowing is desired, the Developer shall not mow
Flood Control Channel to height of less than six inches.
Erosion Buffer
8. Any work that is not specifically allowed within the erosion buffer per
Chapter 10 of City Code is required to have an Erosion Buffer Waiver approved by the
Utilities Executive Director before starting construction within the buffer.
Any work within the Erosion Buffer zone is required to minimize disturbance of channel
bed, bank, vegetation, etc.
Variance
15
9. All conditions of any floodplain variance approved by the Water
Board on _______for construction of __________shall be met.
Other
The developer shall submit anchoring designs showing the structures are able to
withstand the depths, velocities, and the impact of potential debris.
F. Streets
{use if street oversizing reimbursement is due}
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along {put street
name(s) in here} for those portions of said street abutting the Property as shown on the
Final Development Plan Documents. Reimbursement for {put street name(s) in here}
shall be for increasing the streets and/or sidewalks width {or indicate specifics if not all,
i.e. sidewalk} from local access standards to {indicate type of street, minor arterial ,
collector, etc.} standards {add right-of-way portion only if applicable} and for the cost of
the right-of-way necessary to accommodate the expansion of such street and sidewalk .
The City shall make reimbursement to the Developer for the aforesaid oversized street
improvements in the manner provided in and in accordance with City Code Section
24-112. As identified in City Code, the City shall not participate in the cost of
transportation improvements required solely for the special use and benefit of the
Development required by the transportation impact study for the Development, or by the
City Traffic Engineer. The Developer acknowledges that the City shall have no obligation
to make reimbursement payments for street oversizing unless funds for such payments
are budgeted and appropriated from the transportation improvements fund by the City
Council. 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 City Code Section 24-112(d) as the 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.
{use when reimbursement paragraph (#1) is used}
2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II.F 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 $60,000, the
contract for the construction of the same must be submitted to a competitive bidd ing
process resulting in an award to the lowest responsible bidder; and evidence must be
submitted to the City before the commencement of the work showing that the award was
16
given to the lowest responsible bidder. If the cost of such improvements exceeds
$100,000, the contract for the construction of the improvements must be insured by a
performance bond or other equivalent security. For purposes of this Paragraph, the term
“City improvements” shall mean either (1) existing improvements owned by the City that
are to be modified or reconstructed, or (2) any improvements funded in whole or in part
by the City.
{use if NO street oversizing reimbursement is to occur}
3. No street oversizing reimbursement from the City is due the
Developer for this Development.
{use if a reimbursement is due the City - modify as necessary}
4. The Developer agrees to reimburse the City the sum of , plus
a percentage added to recognize the effects of inflation, for the cost to construct
adjacent to the Property. The inflation factor shall be calculated
using the construction cost index for Denver as published in the Engineering News
Record (ENR) of , 202_, and the same index published in the ENR in the month
preceding payment of the reimbursement, as delineated in subsection 5.b. of this section.
Payment shall be made to the City before the issuance of the first building permit.
{use if the developer is delaying a portion of a road ($ amount known) – modify as
necessary}
5. In accordance with Section 24-95 of City Code the Developer is
responsible for constructing the portion of {name of road} adjacent to the site before the
issuance of the first building permit. Notwithstanding the foregoing, the Developer has
designed the project so that the local curb, gutter, pavement, sidewalk and parkway for
{name of road} will be postponed by delivering to the City a cash deposit sufficient to
guarantee completion of the design and construction o f the improvements. {OR}>>>shall
have the option to postpone this {name of road} construction (except for the sidewalk) by
delivering to the City a cash deposit sufficient to guarantee com pletion of the design and
construction of the improvement necessary for {name of road} to meet City design
standards. The amount of said funds shall be $____, the estimated cost to design and
construct said improvements, including but not limited to the future inlet, stormdrain line,
pavement, subgrade, curb, gutter, sidewalk ramps, and right-of-way plantings and
irrigation. Said amount shall be deposited with the City before the issuance of any
building permit for this Development.
a. If any fee is paid by the Developer after the year {year}, the
Developer agrees to pay the amount specified above plus an
additional amount to be calculated as described below to
recognize the effect of inflation, with said amount to be
increased each year until payment is completed in full. Upon
17
payment of each fee required under this Subsection, the
Developer’s obligation to pay its share of the {name of road}
improvements in conjunction with this Development shall be
satisfied.
b. The inflation factor (Inf. Fac.) for each year’s increase in the
amount of the fee shall be calculated using the construction
cost index for Denver as published in the Engineering News
Record (ENR) for {current month and year}, as the base index
(I-base) and the same index published in the ENR in the
month preceding payment (I-year of payment). The formula
for calculating said inflation factors shall be as follows:
Inf. Fac. = (I-year of payment) – (I-base)
(I-base)
The amount to be added to the fee to compensate for inflation
shall be equal to the amount of the fee times the inflation
factor. Said amounts added to compensate for inflation shall
not reduce the total (principal) amount due.
c. Any interest earned by the City as a result of said deposit shall
belong to the City.
d. If the Developer is the party that constructs said
improvements, upon completion and acceptance of said
improvements by the City, the City shall return to the
Developer the amount deposited, less three percent of the
total amount remaining. The three percent to be retained by
the City is to cover the costs of administering the deposited
funds. The total amount remaining for calculation of the three
percent shall consist of the amount of the deposit plus accrued
interest.
{use if the developer is delaying a portion of a road ($ per local street cost) – modify as
necessary}
6. In accordance with Section 24-95 of City Code the Developer is
responsible for constructing the portion of {name of road} adjacent to the site before the
issuance of the first building permit. Notwithstanding the foregoing, the Developer has
designed the project so that the local curb, gutter, pavement, sidewalk and parkway for
{name of road} will be postponed by delivering to the City a cash deposit sufficient to
guarantee completion of the design and construction or the improvements.
{OR}>>>Notwithstanding the foregoing, the Developer shall have the option to postpone
18
the {name of road} 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 estim ate prepared yearly and approved b y 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 before the issuance of any building permit for this
Development.
a. The improvements to {name of road} 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 {name of road}, 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.
b. Any interest earned by the City as a result of said deposit shall
belong to the City.
c. If the Developer is the party that constructs, or causes the
construction of, said improvements, upon completion and
acceptance of said improvements by the City, the City shall
return to the Developer the amount deposited, less three
percent of the total amount remaining. The three percent to
be retained by the City is to cover the costs of administering
the deposited funds. The total amount remaining for
calculation of the three percent shall consist of the amount of
the deposit plus accrued interest.
{use if the developer is delaying a portion of a road ($ amount unknown) – modify as
necessary}
7. In accordance with Section 24-95 of City Code the Developer is
responsible for constructing the portion of {name of road} adjacent to the site before the
19
issuance of the first building permit. Notwithstanding the foregoing, the Developer shall
have the option to postpone the {name of road} construction, with the exception of the
curb, gutter and sidewalk from station 0+00 to station 7+50, by delivering to the City a
cash deposit sufficient to guarantee completion of the design and construction of the
improvements. The amount of said funds shall be the estimated cost of the design and
local street portion of the pavement and subgrade for the full length of the street (station
0+00 to station 8+32), the fill, curb, gutter and 5 feet (in width) of sidewalk for the
remaining portion of the street for which is not to be constructed at this time (station 7+50
to station 8+32), and two street trees. The estimate shall be prepared by the Developer
and approved by the City, plus an additional twenty-five percent of the estimate to cover
any contingencies and unexpected costs. Said amount shall be deposited with the City
before the issuance of any building permit fo r this Development.
{use when applicable and true}
8.
{use in all agreements}
9. As identified in Article III, Chapter 23 of City Code (“Encroachment s”)
no encroachments or obstructions are allowed within the public rights -of-way without a
permit (“Encroachment Permit”). The Developer understands and acknowledges that if
the Final Development Plan Documents now or in the future, through an amendment
process, include any encroachments or obstructions in the public rights -of-way the
Developer shall apply for, meet any requirements or conditions, and obtain an approved
Encroachment Permit before the installation of the encroachment(s).
a. All requirements and conditions as identified on the
Encroachment Permit and identified as Encroachments shall
be met and maintained both before and after issuance of the
Encroachment Permit. The Encroachment Permit, which is
non-transferable, is issued to the property owner or to the
lessee of the property (with the property owner’s consent) in
which the encroachment is adjacent to or benefits and the
Developer understands that at such time as ownership of that
parcel changes and/or a new lessee exists (as applicable) a
new encroachment permit will need to be applied for and new
liability insurance will need to be provided by the property
owner. The permit is revocable pursuant to Chapter 23 of City
Code.
b. The Developer, for itself and its successor(s) in interest, does
hereby release and hold harmless the City from any damages
to the encroachment arising from the City’s actions in
maintaining, repairing and/or replacing the public
Commented [A2]: Is there supposed to be a paragraph
where it says #8? I think this used to be the paragraph about
private streets.
20
infrastructure including utilities, except as caused by the City’s
gross negligence or willful misconduct.
c. The City shall have no responsibility for the installation and
maintenance of any encroachment and 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 Developer’s
installation or maintenance of any encroachments onto the
public right-of-way.
d. Only public utilities (defined as 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 rights -of-way
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
easements not meeting the above criteria serving the
Property shall be required to be removed by the Developer at
the Developer’s expense or apply for and obtain an approved
Encroachment Permit. All sleeves across the right-of-way
shall be designed and installed in accordance with City
standards then in effect.
e. If there is any conflict between this provision and the
Encroachment Regulations, then the Encroachment
Regulations will control. The Developer acknowledges that,
as with any regulation, the Encroachment Regulations are
subject to change and Developer agrees to abide by any
changes to the Encroachment Regulations.
10. 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 related to the Developer’s internal street operations and of
any adjacent or adjoining local, collector or arterial streets that is made necessary
because of the Development.
21
11. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with the Land Use Code.
G. Natural Resources
Not Applicable {delete if there are paragraphs and insert Natural Resources
language}
1. The Final Development Plan Documents identify areas within the
Property which are not to be disturbed in order to prevent environmental damage to the
natural habitats or features (“Natural Habitat Buffer Zone” or “NHBZ”). Neither the
Developer nor its contractor shall intrude upon, remove, fill, dredge, build upon, degrade
or otherwise alter natural habitats and features delineated on the Final Development Plan
Documents, except for the limited purposes allowed within the F inal Development Plan
Documents. These activities are allowable under Land Use Code §5.6.1. The City’s
Environmental Planner shall periodically inspect the Property to ensure compliance with
the NHBZ requirements established in the Final Development Plan D ocuments.
2. The Developer shall ensure that all landscaping and restoration
activities within the Natural Habitat Buffer Zone are properly maintained for a three year -
minimum period following construction thereof to ensure that the vegetation is fully
established and maintained in accordance with the Adaptive Management and
Restoration Plan attached to this Development Agreement as Exhibit “y”.
3. Before the issuance of a Development Construction Permit (DCP),
the Developer shall provide the City an acceptable form of security (escrow, bond, or
letter of credit) to guarantee completion of the NHBZ landscape improvements that meets
City standards for acceptability. The security must match the cost of mitigation,
restoration, and landscape improvement efforts, which shall include plant material and
irrigation system improvements, weed management, and a minimum of three years of
monitoring and annual reporting equal to 125% of the cost to be held until said
improvements are constructed and accepted by the City. The City shall return the security
to the Developer upon the Developer’s installations of the landscape improvements and
the City’s Environmental Planner acceptance thereof. If the seeded areas have not been
established in accordance with the Final Development Plan Documents, then the
Developer shall promptly provide the City’s Environmental Planner with a written proposal
of steps and timing to bring the areas into conformance with such Documents for the
City’s approval and, after receipt of approval shall promptly take such steps as are
necessary to implement the approved plan and bring the areas into conformance. If the
Developer does not take action to bring any and all NHBZ areas and plantings into
conformance with the approved Final Development Plan documents, the City shall use
the security provided by the Developer to install said NHBZ landscape improvements and
the Developer forfeits any right to the security.
22
4. The areas of the Development that are planned to be seeded shall
be inspected jointly by the Developer and the City at specified intervals for a minimum of
three growing seasons or until determined by the City to be well established in accordance
with the coverage specifications of this paragraph, whichever occurs first. The NHBZ
success criteria are as follows:
(1) The total vegetative ground cover contributed by all desirable plant
species (excepting mature trees) is equal to or greater than the desirable
vegetative cover of the applicable reference area(s) from that calendar
year,
(2) No more than five percent of the species noted on the site may be weedy
or noxious species as defined by City Code Section 20 -41 and Colorado
Department of Agriculture’s Noxious Weed List as defined by the Colorado
Noxious Weed Act §§35-5.5,
(3) The development site shall display no evidence of detrimental erosion
due to rills, gullies or excessive bare spots of ground,
(4) Survival rate of all planted shrubs and trees is equal to or greater than
80 percent, and
(5) Any diversity standards applied according to the City Environmental
Planner’s discretion. Diversity standards should be reflective of the
reference area or target habitat conditions provided by the City.
Total vegetative ground cover and diversity standards (if applicable) will be
determined using a reference area approach, where the reference areas are
representative of the target vegetative community(ies) and are selected by the City
Environmental Planner. The total vegetative ground cover of the applicable
reference area(s) will be measured annually at the end of the growing season (late
summer to early fall) to the point of demonstrating sample adequacy in order to
provide an accurate level of vegetative cover reflective of local climatic conditions.
Acceptable desirable total vegetative cover of the NHBZ cannot be less than 40
percent. Determination of required coverage of the NHBZ will be measured using
a line point intercept method with a number of transects approved by the
Environmental Planner across the target habitat type(s) present, distributed either
randomly or on a grid-based pattern, to gain an adequate representation of the
seeded areas.
The Developer shall be responsible for weed control at all times and as prescribed
by the Weed Management Plan (Appendix A of Exhibit “y”). The Developer shall
warranty all seeded areas for three growing seasons minimum from the date of
completion. The Developer shall rework and reseed per original specifications any
areas that are dead, diseased, contain too many weedy species, or fail to meet the
coverage requirement at no additional cost to the City.
Temporary irrigation systems intended to assist the establishment of native
seeding efforts within the NHBZ may only be used for the first two growing seasons
after which any temporary irrigation systems supporting the establishment of native
23
seeding efforts within the NHBZ must be removed by the Developer before the
release of the NHBZ security.
5. The Developer shall provide an Adaptive Management and
Restoration Plan/Wetland Mitigation/etc. that encompasses revegetation techniques,
monitoring methodology and timeline, and weed management before, during, and after
construction, included in Exhibit “y” of this Development Agreement, prepared by a
qualified natural resource professional and reviewed and approved by the City’s
Environmental Planner.
6. The Developer shall provide a Wildlife Management Plan (Appendix
C of Exhibit “y”) that guides nesting raptor/tree protection standards and any seasonal
restrictions associated with the NHBZ, prairie dog mitigation efforts, and any songbird
nesting survey guidelines.
7. Before the commencement of grading or other construction on the
development site, burrowing owl surveys will be conducted by a qualified wildlife biologist
according to Colorado Parks and Wildlife Division recommended protocols. If the site is
cleared of burrowing owls, then prairie dogs inhabiting the site will be removed according
to methods approved by the City Environmental Planner. The removal must be verified
through an onsite inspection by the City Environmental Planner.
8. Before issuance of DCP the Developer shall submit a payment in lieu
fee of $xxx.xx to the City of Fort Collis for prairie dog mitigation to the Natural Areas
Department.
9. The red-tailed hawk nest identified by the Wildlife Management Plan
will be monitored during the nesting season (February 15 – July 15) for nesting activity.
Construction activities will be suspended within the buffer identified on the development
plans if active nesting is observed. Any damage to the nest tree shall be subject to an
appraisal of the damages and a payment in lieu fee to the Natural Areas Department.
10. At the time that a homeowners association (HOA) is formed, the
Developer will ensure that the HOA is adequately informed of the NHBZ establishment
process and long-term maintenance requirements.
11. Fueling facilities shall be located at least 100 feet from any 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. Fueling
facilities not in compliance shall be moved at the Developers expense.
12. The Developer shall delineate the Development’s property boundary
adjacent to all Limits of Development (L.O.D.) as defined by Land Use Code Section 5.1.2
and Section 5.6.1(N), including boundaries around existing trees that are to be
undisturbed, with orange construction fence before any type of construction, including
over lot grading.
24
H. Forestry
{Insert the following language for projects with existing/proposed street trees}
1. A Street Tree Permit must be obtained from the City Forester
pursuant to City Code, before any trees noted on the Final Development Plan Documents
are planted or pruned on, or removed from, any public right -of-way or City property. This
includes areas between the sidewalk and curb, medians, and other City property. The
City may withhold any certificate of occupancy for the Development if the Developer fails
to obtain a Street Tree Permit, until the Developer obtains said permit and the planting,
pruning, and removal of trees or shrubs on or from the public right -of-way or City property
is in compliance with the Street Tree Permit and Final Development Plan Documents. In
addition to withholding any certificate of occupancy, the City may avail itself of any other
legal remedy provided by law for the failure to obtain a Street Tree Permit. As a condition
of the Street Tree Permit and of this Agreement, at least one week before planting any
trees the Developer shall: (1) allow City Forestry Division staff to in spect the proposed
planting sites to review compliance with the Final Development Plan Documents and
applicable regulations; and (2) allow City Forestry Division staff to inspect and approve,
at the nursery if possible, all trees to be planted. City Forest ry has the right to reject and/or
substitute any trees that do not meet the Forestry Divisions standards. Existing and new
street trees must continue to be watered at a minimum of forty gallons per week during
all construction activities to maintain current tree condition in temperatures above forty
degrees using irrigation or hauled water sources. If street trees are damaged or die due
to lack of water during construction activities, the developer will be charged the value of
the trees as per appraisal by City Forestry Division Staff.
{Insert the following language for with existing trees to be removed on -site}
2. All tree pruning and removal on the Property must be done by an
arborist licensed by the City of Fort Collins and the name of such arborist shall be provided
to the City Forestry Division before any pruning or removal commencing. A list of licensed
arborists is maintained by the City Forestry Division and is available upon request or at
fcgov.com/forestry. The use of heavy construction equipment, including but not limited to
excavators, backhoes, and bulldozers, to remove trees is not allowed without prior
Forestry Division written permission.
{Insert the following language for projects with existing trees to be protected and/or
removed on-site}
3. During construction, before either DCP issuance or of any
demolition, grading, excavation, or site work commencing on the Property, whichever
occurs earlier, tree protection must be installed around all trees that are shown to
be preserved and protected on the Final Development Plan Documents and an arborist
licensed by the City of Fort Collins must provide written confirmation to the City that such
tree protection has been installed. Required tree protection measures are set forth in
Land Use Code Section 5.10(G) and include, but are not limited to, the requirement that
a minimum four-foot-high barrier be erected no closer than six feet from the trunk or one -
half the length to the drip line (i.e. the canopy edge), whichever is greater.
25
4. Before landscape work commences on the Property, the Developer
shall schedule a meeting between City Forestry Division staff and the landscapers who
will perform the work.
5. Tree protection must be maintained throughout the duration of
construction activities on the Property. At any time during construction, and upon City
Forestry Division written notice that tree protection is not adequate for one or more trees,
the Developer shall cease construction activities adjacent to such tree or trees until
required tree protection measures are in place to the satisfaction of the City Forestry
Division.
{Insert the following language for projects with trees that Forestry has identified as having
structural}
6. The Developer, for itself and its successors in interest, understands
that the City has identified one or more trees on the Property that have structural issues
that may result in all or part of such tree or trees to fail and cause harm to people or
property. The Developer has voluntarily decided to retain such tree or trees. The
Developer, for itself and its successors 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 any tree located on the Property that causes harm t o any person or damage to
property.
{Insert the following language for projects with a payment -in-lieu for replacement trees}
7. Pursuant to Land Use Code, suitable locations for planting all
required replacement trees within one -half mile of the Property were not located and the
Developer wishes to submit a payment-in-lieu for such trees. Before issuance of the
Development Construction Permit, the Developer shall submit to the City Forestry
Division a payment as determined by the City Forester for [insert number of
replacement trees] replacement trees.
I. Historic Preservation
1. Rehabilitation: The Developer shall be responsible for completing all
approved and to be approved rehabilitation plans for the historic resources on the
Property, specifically the [name of historic resource] addressed as [address] according to
the exact details as approved by the Historic Preservation Commission, Historic
Preservation Staff and the Planning and Zoning Commission. The rehabilitation work
must proceed in a timely manner and within three years of the date of this Agre ement.
2. Plan of Protection: In the interim, the Developer shall be responsible
for following all prudent measures as outlined in the plan of protection for the project
during on-site construction and in the period of use of the Property, before and following
the rehabilitation of the historic building(s), in order to prevent offenses against the historic
resource(s), to comply with minimum maintenance requirements, and to prevent the
26
development of dangerous conditions. The Developer shall also be bound by the
applicable requirements of Chapter 14 of City Code.
3. Interpretive Signs: The Developer shall be responsible for working
with Historic Preservation Staff to design, manufacture, and install interpretive signage as
approved by the Historic Preservation Commission, Historic Preservation Staff and the
Planning and Zoning Commission. The design and installation work must proceed in a
timely manner and within three years of the date of this Agreement.
J. Soil Amendment
{insert Stormwater language for Soil Amendment}
K. Ground Water, Subdrains and Water Rights
1. 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. No language in this Paragraph shall be construed or interpreted as
establishing in any way the City’s liability for any act or omission and the terms of this
Paragraph solely relate to the Developer’s obligation to indemnify and hold h armless the
City.
2. If the Development includes a subdrain system, any such subdrain
system, whether located within private property or within public property such as street
rights-of-way or utility or other easements, shall not be owned, operated, maintained,
repaired, or reconstructed by the City, and it is agreed that all ownership, operation,
maintenance, repair, and reconstruction obligations shall be those of the Developer or the
Developer’s successor(s) in interest. Such subdrain system is likely to be located both
upon private and public property and, to the extent that it is located on public property, all
maintenance, operation, repair, or reconstruction shall be conducted in such a manner
that such public property shall not be damaged, or if damaged, shall, upon completion of
any such project, be repaired in accordance with then existing City standards. The City
shall not be responsible for, and the Developer, for itself and its successor(s) in interest,
hereby agrees to indemnify and hold harmless the City against, any damages or injuries
sustained in the Development as the result of groundwater seepage or flooding, structural
damage, or other damage resulting from failure of any such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold
harmless the City against any damages or injuries to water rights caused, directly or
27
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 contained in Paragraph II.K 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 90 days after
the City first receives notice of such claim under the Colorado Governmental Immunity
Act for the same, shall cause the foregoing 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.
L. Hazards and Emergency Access
1. No stockpiled combustible material will be allowed on the Property
until a permanent water system is installed by the Developer and approved by the City.
{For use with retail, commercial or multifamily (4 or more units per building)}
2. Before 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 twenty-feet with four inches of aggregate base course material compacted
according to City standards and with a 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. Before the construction of said accessway, a plan for the accessway
shall be submitted to and approved by the Poudre Fire Authority and City Engineer. Digital
plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for
review and processing. If such accessway is at any time deemed inadequate by the
Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into
compliance and until such time that the accessway is brought into compliance, the City
and/or the Poudre Fire Authority may issue a stop work order for all or part of the
Development.
{For use with retail, commercial or multifamily (4 or more units per building)}
M. Footing and Foundation Permits
{CHOOSE ONE:}
Commented [A3]: This reference may need to be updated
if other sections are inserted or deleted. It should reference
the correct section ID for Ground Water, Subdrains and
Water Rights.
28
{Use this paragraph for greenfield conditions:}
Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain Footing and Foundation permits upon the
installation of all underground water, sanitary sewer, and storm sewer facilities, and an
emergency accessway for the phase in which the permit is being requested. Facilities
shall include but not be limited to all mains, lines, services, fire hydrants and
appurtenances for the Development/phase {choose one delete the other} as shown on
the Final Development Plan Documents.
{Use this paragraph for infill/redevelopment upon concurrence with Engineering
Inspection Manager:}
Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain Footing and Foundation permits under either of
the following circumstances:
1. Upon the installation of all underground water, sanitary sewer, and
storm sewer facilities, and an emergency accessway for the Development/phase {choose
one delete the other} in which the permit is being requested (the “Required
Improvements”). The Required Improvements shall include but not be limited to all mains,
lines, services, fire hydrants and appurtenances for the site as shown on the Final
Development Plan Documents; or
2. Upon the installation of only those Required Improvements deemed
necessary or desirable in order to issue the Footing and Foundation permit as determined
in the sole discretion of the City after discussion with the Developer before issuance of
the Development Construction Permit. Should the City allow the Developer to install
certain Required Improvements after issuance of the Footing and Foundation permit, the
remaining Required Improvements that must be installed by the Developer and the timing
for such installation shall be memorialized in the Development Construction Permit. The
Developer agrees to comply with the Development Construction Permit with regards to
the installation and timing of the remaining Required Improvements.
N. Development Construction Permit
1. The Developer shall apply for and obtain a Development
Construction Permit for this Development, in accordance with Division 5.4.2 of the Land
Use Code, before the Developer commences 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, before issuance of
the Development Construction Permit.
{Add this additional paragraph for infill/redevelopment upon concurrence with
Engineering Inspection Manager – if not added, delete “1.” above}
Commented [A4]: FYI - I think this code reference is
incorrect. Before the LUC update, this code reference was
Division 2.6 of what is now the Transitional LUC, which
corresponds to Division 6.21 of the new LUC as far as I can
tell.
29
2. Before the issuance of a Development Construction Permit the
Developer shall obtain the approval of a Construction Management Plan from the City.
The Construction Management Plan shall define the management of the construction of
the Development, establishing the timing, duration, location, delivery and storage of
materials and idle equipment; the timing, duration, and location of parking; and the timing,
duration and location for the operation of equipment. The Construction Management Plan
shall define the impacts (if any) to public rights-of-way, which would then be subject to
the Encroachment Regulations as indicated in Paragraph II.F.9 of this Agreement.
O. Maintenance and Repair Guarantees
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 o f the public
improvements and acceptance thereof by the City. More specific elements of these
guarantees are noted in Exhibit B, attached hereto and incorporated herein by reference.
Security for the maintenance guarantee and the repair guarantee shall be as provided in
Section 5.4.2 of the Land Use Code. Notwithstanding the provisions of Paragraphs III (H)
and (I) of this Agreement to the contrary, the obligations of the Developer pursuant to this
Paragraph and Exhibit 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.
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 and
Traffic Engineer in accordance with the City's “Work Area Traffic Control Handbook” and
shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of 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 mat erials
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
30
Developer fails to adequately clean such streets within two 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 that, in the inspector ’s opinion,
is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements
or obligations may be shown on the Final Development Plan Documents, or any
documents executed in the future that are required by the City for the approval of an
amendment to a development plan, and the City may withhold (or to the extent permitted
by law, revoke) such building permits and certificates of occupancy as it deems necessary
to ensure performance in accordance with the terms of this Agreement. The processing
and “routing for approval” of the various development plan documents may result in
certain of said documents carrying dates of approval and/or execution that are later than
the date of execution of this Agreement. The Developer hereby waives any right to object
to any such discrepancy in dates.
E. Nothing herein contained shall be construed as a waiver of any
requirements of 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
31
assignment of the Developer's rights to develop the Property under the terms and
conditions of this Agreement.
I. In the event the Developer transfers title to the Property and is thereby
divested of all equitable and legal interest in the Property, the Developer shall be released
from liability under this Agreement with respect to any breach of the terms and conditions
of this Agreement occurring after the date of any such transfer of interest. In such event,
the succeeding property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material
element hereof. In the event that either party shall fail to perform according to the terms
of this Agreement, such party may be declared in default. In the event that a party has
been declared in default hereof, such defaulting party shall be given written notice
specifying such default and shall be allowed a period of ten days within which to cure said
default. In the event the default remains uncorrected, the party declaring defaul t 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 the Developer
which shall require the City to commence legal or equitable action against the Developer,
the Developer shall be liable to the City for its 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 days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
32
Fort Collins, CO 80522
With a copy to: City Attorney’s Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
{have the Developer and Owner provide info to fill in the blanks - delete those not used}
If to the Developer:
With a copy to:
With a copy to: need lender information if section P. added
If to the Owner:
With a copy to:
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.
33
O. When used in this Agreement, 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 and signed by all parties hereto.
P. Paragraph or Section headings used herein are for convenience of
reference and shall in no way define, limit, or prescribe the scope or intent of any provision
under this Agreement.
{Delete this paragraph if the Owner and the Developer are the same entity}
Q. The Owner is made a party to this Agreement solely for the purpose of
subjecting the Property to the covenants contained in this Agreement. The City and the
Developer expressly acknowledge and agree that the Owner shall not be liable for any
obligations of the Developer under this Agreement, unless the Owner exercises the rights
of the Developer to develop the Property, in which event the obligations of the Developer
shall become those of the Owner.
{Delete this section if not applicable – if applicable adjust as appropriate that a lender
either has given them a loan or intends to extend a loan and ADD a contact for the bank
in the notice lines above}
R. Lender Acknowledgment
1. The City acknowledges that it has been informed by {place bank
name here} Wells Fargo Bank, National Association, a national banking association (the
“Lender”), that the Lender {choose one - has extended/ 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 Paragraph III.N of this
Agreement, the Developer has requested that copies of all notices given by the City to
the Developer shall also be given to the Lender at the address set forth therein. The City
further acknowledges that the Lender has a right (but not the obliga tion) 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.
34
3. Nothing contained herein shall be construed to impose any liability
or obligation of the City to the Lender, except as expressly provided in this Paragraph
III.R.
S. No term or condition of this Agreement shall be construed or interpreted as
a waiver, express or implied, of any of the immunities, rights, benefits, protections, or
other provisions, of the Colorado Governmental Immunity Act, CRS §24 -10-101 et seq.,
or under any other law.
Commented [A5]: This reference may need to be updated
if other sections are inserted or deleted. It should reference
the correct section ID for Lender Acknowledgment.
35
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: __________________________________
City Manager
Name: __________________________
Title: __________________________
Date: __________________________
ATTEST:
________________________________
City Clerk or Designee
Name: ___________________________
Title: ___________________________
APPROVED AS TO CONTENT:
________________________________
City Engineer’s Office
Name: ___________________________
Title: ___________________________
APPROVED AS TO FORM:
________________________________
City Attorney’s Office
Name: ___________________________
Title: ___________________________
36
DEVELOPER:
Colorado Import Motors Limited, A Colorado
Corporation
{put in the Developers name and company
type as shown on page 1}
By:
Mark K. Pedesen, President{Name of
person signing, title}
Date: _______________________________
ATTEST:
By:
Janet Tompkins, Secretary{Name of person signing, title}
1. Business Entity with one signer and no layers.
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this _____ day of
___________, 202__, by _________________ [name of person] as
__________________ [title of person] of __________________ [name of business
entity].
__________________________________
Notary Public
My Commission Expires: _______________
2. Individual
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
Formatted: Not Highlight
37
The foregoing instrument was acknowledged before me this _____ day of
__________, 202__, by _________________ [name of person].
__________________________________
Notary Public
My Commission Expires: _______________
3. Corporation officer and other official.
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this _____ day of
____________, 202__, by _______________ [name of person] as _____________ [title
of person] and by _____________ [name of other person] as __________ [title of other
person] of _____________ [name of business entity].
__________________________________
Notary Public
My Commission Expires: _______________
4. Layered Entity
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this _____ day of
____________, 202__, by ____________ [name of business entity] by
_________________ [name of secondary business entity] [manager, general partner,
member, etc, select one] by _______________ [name of person signing] as
___________ [title of person signing].
__________________________________
Notary Public
38
My Commission Expires: _______________
OWNER:
Pederson Properties, LLLP A Colorado Limited
Liability Limited Partnership
{put in the Owners name and company type as
shown on page 1}
By: __________________________________
Mark K. Pedersen{Name of person signing,
title}
Date: _______________________________
ATTEST:
By:
{Name of person signing, title}
1. Business Entity with one signer and no layers.
STATE OF COLORADO )
) ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this _____ day of
__________, 202__, by _________________ [name of person] as
__________________ [title of person] of __________________ [name of business
entity].
__________________________________
Notary Public
My Commission Expires: _______________
2. Individual
STATE OF COLORADO )
) ss.
COUNTY OF ___________ )
39
The foregoing instrument was acknowledged before me this _____ day of
__________, 202__, by _________________ [name of person].
__________________________________
Notary Public
My Commission Expires: _______________
3. Corporation officer and other official.
STATE OF COLORADO )
) ss.
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this _____ day of
____________, 202__, by _______________ [name of person] as _____________ [title
of person] and by _____________ [name of other person] as __________ [title of other
person] of _____________ [name of business entity].
__________________________________
Notary Public
My Commission Expires: _______________
4. Layered Entity
STATE OF COLORADO )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this _____ day of
____________, 202__, by ____________ [name of business entity] by
_________________ [name of secondary business entity] [manager, general partner,
member, etc, select one] by _______________ [name of person signing] as
___________ [title of person signing].
__________________________________
40
Notary Public
My Commission Expires: _______________
41
EXHIBIT A
1. Schedule of electrical service installation.
Electrical lines need to be installed before the installation of the sidewalk,
curb returns, handicap ramps, paving and landscaping. If the Developer installs
any curb return, sidewalk or handicap ramp before the installation of electrical lines
in an area that interferes with the installation of the electrical line, 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
42
EXHIBIT B
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of two 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 Land Use Code. 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 ownin g 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 correc t 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 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 to the fullest
extent of the law or as authorized by this Agreement. Any damages which occurred
before the end of said two 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 harmless for a five 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 ac count
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 agreeme nt 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.
43
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.
44
EXHIBIT C
4900-6823-4596, v. 2 Formatted: Left, Line spacing: Exactly 9 pt