HomeMy WebLinkAboutLANDINGS BAY - Filed DA-DEVELOPMENT AGREEMENT - 2003-12-10DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this 2 day of Wi -V
199a, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City'; and Lagunitas Courtyard Commons, Inc.,
a Colorado Corporation hereinafter referred to as the "Developer"; and Wayne K. Schrader,
The Higley Foundation, Inc., a Colorado Non-profit Corporation, and Dwight Ghent Family
Partnership, LP, a Limited Partnership hereinafter jointly referred to as the "Owner."
WITNESSETH:
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 referred to as the "Property") and legally described as follows, to wit:
Landings Bay, P.D.P, A tract of land located in the Northwest Quarter of Section
36, Township 7 North, Range 69 West of the 6`h Principal Meridian, City of Fort
Collins, County of Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to the
City all plats, plans (including utility plans), reports and other documents required for the
approval of a final plan according to the City's Development application submittal
requirements master list (the final development plan documents) copies of which are on
file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS., the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and will
further require the installation of certain improvements primarily of benefit to the lands to
be developed 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 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:
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Developer commencing construction. The Developer shall pay the required fees for
said Permit and construction inspection, and post security to guarantee completion of
the public improvements required for this development, prior to issuance of the
Development Construction Permit.
I. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance guarantee and
a five-year repair guarantee covering all errors or omissions in the design and/or
construction of the public improvements required for this development, which guarantees
shall run concurrently and shall commence upon the date of completion of the public
improvements and acceptance thereof by the City. More specific elements of these
guarantees are noted in Exhibit "C." Security for the maintenance guarantee and the repair
guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code, or Section 29-14
of the Transitional Land Use Regulations, as applicable.
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 the City Code, the
Developer shall, at. all times, keep the public right-of-way free from accumulation of waste
material, rubbish, or building materials caused by the Developer's operation, or the
activities of individual builders and/or subcontractors; shall remove such rubbish as often
as necessary, but no less than daily and; at the completion of the work, shall remove all
such waste materials, rubbish, tools, construction equipment, machinery, and surplus
materials from the public right-of-way. The Developer further agrees to maintain the
finished street surfaces so that they are free from dirt caused by the Developer's operation
or as a result of building activity. Any excessive accumulation of dirt and/or construction
materials shall be considered sufficient cause for the City to withhold building permits
and/or certificates of occupancy until the problem is corrected to the satisfaction of the City
Engineer. If the Developer fails to adequately clean such streets within two (2) days after
receipt of written notice, the City may have the streets cleaned at the Developer's expense
and the Developer shall be responsible for prompt payment of all such costs. The
Developer also agrees to require all contractors within the development to keep the public
right-of-way clean and free from accumulation of dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
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subcontractors to cooperate with the City's construction inspectors by ceasing operations
when winds are of sufficient velocity to create blowing dust which, in the inspector's
opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements or
obligations may be shown on the final development plan documents, or any documents
executed in the future that are required by the City for the approval of an amendment to
a development plan, and the City may withhold such building permits and certificates of
occupancy as it deems necessary to ensure performance in accordance with the terms of
this Development 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 Development
Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of
this Agreement. The developer hereby waives any right to object to any such discrepancy
in dates.
E. Nothing herein contained shall be construed as a waiver of any requirements
of the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable)
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. Financial obligations of the City of Fort Collins payable after the current fiscal
year and/or not appropriated or budgeted are contingent upon funds for that purpose being
appropriated, budgeted and otherwise made available by the Fort Collins City Council.
H. This Agreement shall run with the Property and shall 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 shaill specifically include, but not be limited to, a conveyance or assignment
of any portion of the Developer's legal or equitable interest in the Property, as well as any
assignment of the Developer's rights to develop the Property under the terms and
conditions of this Agreement.
I. In the event the Developer transfers title to the Property and is thereby
divested of all equitable and legal interest in the Property, the Developer shall be released
from liability under this Agreement with respect to any breach of the terms and conditions
of this Agreement occurring after the date of any such transfer of interest. In such event,
the succeeding property owner shall be bound by the terms of this Agreement.
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J. Each and every term of this Agreement shall be deemed to be a material
element hereof. In the event that either party shall fail to perform according to the terms
of this Agreement:, such party may be declared in default. In the event that a party has
been declared in default hereof, such defaulting party shall be given written notice
specifying such default and shall be allowed a period of ten (10) days within which to cure
said default. In the event the default remains uncorrected, the party declaring default may
elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as
continuing and require specific performance or; (c) avail itself of any other remedy at law
or equity.
K. In the event of the default of any of the provisions hereof by either party
which shall require the party not in default to commence legal or equitable action against
said defaulting party, the defaulting party shall be liable to the non -defaulting party for the
non -defaulting party's reasonable attorney's fees and costs incurred by reason of the
default. Nothing herein shall be construed to prevent or interfere with the City's rights and
remedies specified in Paragraph III.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement shall
not be construed as or deemed to be an agreement for the benefit of any third party or
parties, and no third party or parties shall have any right of action hereunder for any cause
whatsoever.
M. It is expressly understood and agreed by and between the parties hereto that
this Agreement shall be governed by and its terms construed under the laws of the State
of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set forth
below, and such notice or other communication shall be deemed given when so hand -
delivered or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Cc 80522
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If to the Developer: Jon Prouty
Lagunitas Courtyard Commons, Inc.
3307 S. College Avenue, Suite 200
Fort Collins, CO 80525
(970)226-5000
Facsimile # 970-226-5125
With copy to: Dave Williams, Esq.
425 West Mulberry Street, Suite 112
Fort Collins, CO 80521
Facsimile # 970-482-0339
If to the Owner: Wayne K. Schrader, Trustee
320 North College Avenue
Fort Collins, CO 80524
Facsimile # 970-484-6128
Higley Foundation
Thomas J. Gleason, President
205 West Oak Street
Fort Collins, CO 80521
Facsimile #970-482-4738
Dwight Ghent Family Partnership, LP
Dwight Ghent, Manager
3513 Shore Road
Fort Collins, CO 80524
970-493-2610
With a Copy to: A.E. March, Jr., Esq.
110 East Oak Street
Fort Collins, CO 80524
Facsimile # 970-482-4738
Notwithstanding the foregoing, if any party to this Agreement, or their successors, grantees
or assigns, wishes to change the person, entity or address to which notices under this
Agreement are to be sent as provided above, such party shall do so by giving the other
parties to this Agreement written notice of such change.
O. When used in this Agreement, words of the masculine gender shall include
the feminine and neuter gender, and when the sentence so indicates, words of the neuter
gender shall refer to any gender; and words in the singular shall include the plural and vice
versa. This Agreement shall be construed according to its fair meaning, and as if prepared
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by all parties hereto, and shall be deemed to be and contain the entire understanding and
agreement between the parties hereto pertaining to the matters addressed in this
Agreement. There shall be deemed to be no other terms, conditions, promises,
understandings, statements, representations, expressed or implied, concerning this
Agreement, unless set forth in writing signed by all of the parties hereto. Further,
paragraph headings used herein are fore convenience of reference and shall in no way
define, limit, or prescribe the scope or intent of any provision under this Agreement.
P. 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 were to exercise any
of the rights of the Developer in which event the obligations of the Developer shall become
those of the Owner.
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: Q . >>-
City Ma ager
ATTEST:
)LL�L �� ask
City Clerk
APPROVED AS TO CONTENT:
E
City Engineer
APPROVED AS TO FORM:
Deputy City Attorney
DEVELOPER:
Lagunitas Courtyard Commons, Inc., a Colorado
Corporation
By:�
Jon P roOty:'10 resident
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ATTEST:
By: /a
Secretary
ATTEST:
By:
Secretary
OWNER:
Wayne K. S 15rader
By:
Way . S6hWer
The Higley Foundation, a Colorado Non-profit
Corporation
By.
Thomas J. Gleason, President
Dwight Ghent Family Partnership, LP, a Limited
Partnership
By:
Dwight Ghent, General Partner
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EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
3. Schedule of stireet improvements to be installed out of sequence.
Not Applicable
4. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
iff
Not Applicable
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EXHIBIT "c"
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of
two (2) years from the date of completion and acceptance by the City of
the public improvements warranted hereunder, the full and complete
maintenance and repair of the public improvements constructed for this
development. This warranty and guarantee is made in accordance with
the City of Fort Collins Land Use Code and/or the Transitional Land Use
Regulations, as applicable. This guarantee applies to the streets and all
other appurtenant structures and amenities lying within the rights -of -way,
easements and other public properties, including, without limitation, all
curbing, sidewalks, bike paths, drainage pipes, culverts, catch basins,
drainage ditches and landscaping. Any maintenance and/or repair
required on utilities shall be coordinated with the owning utility company or
city department.
The Developer shall maintain said public improvements in a manner that
will assure compliance on a consistent basis with all construction
standards, safety requirements and environmental protection
requirements of the City. The Developer shall also correct and repair, or
cause to be corrected and repaired, all damages to said public
improvements resulting from development -related or building -related
activities. In the event the Developer fails to correct any damages within
thirty (30) days after written notice thereof, then said damages may be
corrected by the City and all costs and charges billed to and paid by the
Developer. The City shall also have any other remedies available to it as
authorized by this Agreement. Any damages which occurred prior to the
end of said two (2) year period and which are unrepaired at the
termination of said period shall remain the responsibility of the Developer.
The Developer agrees to hold the City of Fort Collins, Colorado, harmless
for a five (5) year period, commencing upon the date of completion and
acceptance by the City of the public improvements constructed for this
development, from any and all claims, damages, or demands arising on
account of the design and construction of public improvements of the
property shown on the approved plans and documents for this
development; and the owner furthermore commits to make necessary
repairs to said public improvements, to include, without limitation, the
iE:
roads, streets, fills, embankments, ditches, cross pans, sub -drains,
culverts, walls and bridges within the right-of-way easements and other
public properties, resulting from failures caused by design and/or
construction defects. This agreement to hold the City harmless includes
defects in materials and workmanship, as well as defects caused by or
consisting of settling trenches, fills or excavations.
Further, the Developer agrees that the City shall not be liable to the Developer during the
warranty period, -for any claim of damages resulting from negligence in exercising
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.
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I. General Conditions
A. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement, "development
activities" shall include, but not be limited to, the following: (1) the actual construction of
improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or
appearance of the Property caused by, or on behalf of, the Developer with the intent to
construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and
facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on
the approved utility plans 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 (in case of conflict, the final development plan documents shall
supercede the standard specifications), subject to a three (3) year time limitation from the
date of execution of this Agreement. In the event that the Developer commences or
performs any construction pursuant hereto after the passage of three (3) years from the
date of execution of this agreement, the Developer shall resubmit the utility plans to the
City Engineer for reexamination. The City may then require the Developer to comply with
the approved standards and specifications of the City on file in the office of the City
Engineer at the time of the resubmittal.
C. No building permit for the construction of any structure within the
development shall be issued by the City until the public water lines and stubs to each lot,
fire hydrants, sanitary sewer lines and stubs to each lot, and public streets (including curb,
gutter, and pavement with at least the base course completed) serving such structure have
been completed and accepted by the City, except for the sewer line segment connection
under the Larimer #2 canal which shall be constructed after irrigation season but not later
than December 31, 1999. No building permits shall be issued for any structure located in
excess of six hundred and sixty feet (660') from a single point of access, unless the
structures contain sprinkler systems that are approved by the Poudre Fire Authority.
D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets
described on Exhibit 'A," attached hereto, shall be installed within the time and/or
sequence required on Exhibit "A." If the City Engineer has determined that any water lines,
sanitary sewer lines, storm drainage facilities and/or streets are required to provide service
or access to other areas of the City, those facilities shall be shown on the utility plans and
shall be installed by the Developer within the time as established under "Special
Conditions" in this document.
E. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
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appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this development as shown on the approved final development
plan documents and other approved documents pertaining to this development on file with
the City.
F. Street improvements shall not be installed until all utility lines to be placed
therein have been completely installed, including all individual lot service lines leading in
and from the main to the property line.
G. The installation of all utilities shown on the final development plan documents
shall be inspected by the Engineering Department of the City and shall be subject to such
department's approval. The Developer agrees to correct any deficiencies in such
installations in order to meet the requirements of the plans and/or specifications applicable
to such installation. In case of conflict, the final development plan documents shall
supersede the standard specifications.
H. All storm drainage facilities shall be so designed and constructed by the
Developer as to protect downstream and adjacent properties against injury and to
adequately serve the Property (and other lands as may be required, if any). The Developer
shall meet or exceed the minimum requirements for storm drainage facilities as have been
established by the City in its Drainage Master Plans and Design Criteria. The Developer
does hereby indemnify and hold harmless the City from any and all claims that might arise,
directly or indirectly, as a result of the discharge of injurious storm drainage or seepage
waters from the Property in a manner or quantity different from that which was historically
discharged and caused by the design or construction of the storm drainage facilities,
except for (1) such claims and damages as are caused by the acts or omissions of the City
in maintenance of such facilities as have been accepted by the City for maintenance; (2)
errors, if any, in the general concept of the City's master plans (but not to include any
details of such plans, which details shall be the responsibility of the Developer); and (3)
specific written or otherwise documented directives that may be given to the Developer by
the City. The City agrees to give notice to the Developer of any claim made against it to
which this indemnity and hold harmless agreement by the Developer could apply, and the
Developer shall have the right to defend any lawsuit based on such claim and to settle any
such claim provided Developer must obtain a complete discharge of all City liability through
such settlement. Failure of the City to give notice of any such claim to the Developer within
ninety (90) days after the City first receives a notice of such claim under the Colorado
Governmental Immunity Act for the same, shall cause this indemnity and hold harmless
agreement by the Developer to not apply to such claim and such failure shall constitute a
release of this indemnity and hold harmless agreement as to such claim. Approval of and
acceptance by the City of any storm drainage facility design or construction shall in no
manner be deemed to constitute a waiver or relinquishment by the City of the aforesaid
indemnification. The Developer shall engage a Colorado licensed professional engineer
to design the storm drainage facilities as aforesaid and it is expressly affirmed hereby that
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such engagement shall be intended for the benefit of the City, and subsequent purchasers
of property in the development.
I. The Developer shall pay storm drainage basin fees in accordance with
Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for credit
or City repayment under the provisions of Chapter 26 are described together with the
estimated cost of the improvements on the attached Exhibit "B," which improvements, if
applicable, shall include right-of-way, design and construction costs. See Section II.C,
Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions.
J. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City of Fort Collins.
K. The Developer specifically represents that to the best of its knowledge all
portions of the Property dedicated (both in fee simple and as easements) to the City
associated with this development are 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 portions of the Property as are dedicated to the City
pursuant to this development, are 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 does hereby indemnify and hold harmless the City from any
liability whatsoever that may be imposed upon the City by any governmental authority,
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 disposal or cleanup is not
necessitated 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. The Developer
further agrees to indemnify and hold harmless the City from any claims or actions based
directly, indirectly or in any manner on any of the aforementioned environmental risks
brought against the City by third parties arising as a result of the dedication of portions of
the Property to the City in connection with this development. 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 portions of 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
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indemnity and hold harmless agreement by the Developer could apply, and the Developer
shall have the right to defend any lawsuit based on such claim and to settle any such claim
provided Developer must obtain a complete discharge of all City liability through such
settlement. Failure of the City to give notice of any such claim to the Developer within
ninety (90) days after the City first receives a notice of such claim under the Colorado
Governmental Immunity Act for the same, shall cause this indemnity and hold harmless
agreement by the Developer to not apply to such claim and such failure shall constitute a
release of this indemnity and hold harmless agreement as to such claim.
Il. Special Conditions
A. Water Lines
1. Not Applicable
B. Sewer Lines
1. Prior to the issuance of any building permit(s) for this development, the
Developer shall, in accordance with Section 26-121 of the City Code, reimburse the City
the sum of $790.50 (6.324 acres @ $125/gross acre) for the cost of installation of the of
the Warren Lake Trunk Sewer to serve this development.
C. Storm Drainage Lines and Appurtenances
1. The Developer and the City agree that all on -site and off -site storm
drainage improvements, as shown on the approved final development plan documents,
shall be completed by the Developer in accordance with said final development plan
documents prior to the issuance of more than 3 building permits in this development.
Completion of improvements shall include the certification by a professional engineer
licensed in Colorado that the drainage facilities which serve this development have been
constructed in conformance with said final development plan documents. Said certification
shall be submitted to the City at least two weeks prior to the date of issuance of any more
than 3 building permits for the development.
2. The developer shall be responsible for maintaining the structural
integrity and operational functions of all drainage facilities throughout the build -out of this
development. If at any time following certification (as required pursuant to paragraph one
(1) above) of said drainage facilities and during the construction of structures and /or lots
within this development the City deems that said drainage facilities no longer comply with
the approved plans, the developer shall bring such facilities back up to the standards and
specifications as shown on the approved plans. Failure to maintain the structural integrity
and operational function of said drainage facilities following certification shall result in the
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withholding of the issuance of additional building permits and/ or certificates of occupancy
until such drainage facilities are repaired to the operational function and structural integrity
which was approved by the City.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the approved final development plan documents to stabilize
all over -lot grading in and adjacent to this development. The Developer shall also be
required to post a security deposit in the amount of $10,755 prior to beginning construction
to guarantee the proper installation and maintenance of the erosion control measures
shown on the approved final development plan documents. Said security deposit(s) shall
be made in accordance with the criteria set forth in the City's Storm Drainage Design
Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to abide
by the provisions of the approved final development plan documents or the Criteria,
notwithstanding any provisions contained in paragraph III(J) to the contrary, the City may
enter upon the Property for the purpose of making such improvements and undertaking
such activities as may be necessary to ensure that the provisions of said plans and the
Criteria are properly enforced. The City may apply such portion of the security deposit(s)
as may be necessary to pay all costs incurred by the City in undertaking the administration,
construction, and/or installation of the erosion control measures required by said plans and
the Criteria. In addition, the City shall have the option to withhold building permits and
certificates of occupancy, as stated in Paragraph III.D of this Agreement, as it deems
necessary in order to ensure that the Developer installs and maintains the erosion control
measures throughout the build -out of this development.
4. The Developer and the City agree that it is important that all buildings
be graded to drain in the configuration shown on the approved final development plan
documents. Prior to the issuance of a certificate of occupancy for all Buildings the
Developer shall provide the City with certification that the building has been graded
correctly (including the grading of any minor swales, if applicable), the building corner
elevations specified on the approved final development plan documents are correct and
in accordance with the approved final development plan documents; and the minimum floor
elevation for said building has been completed in accordance with the approved final
development plan documents. Said certification shall be completed by a Colorado licensed
professional engineer and shall be submitted to the City at least two weeks prior to the
date of issuance of the desired certificate of occupancy.
5. The Developer shall obtain the City's prior approval of any changes
from the approved final development plan documents in grade elevations and/or storm
drainage facility configuration that occur as a result of the construction of houses and/or
development of lots, whether by the Developer or other parties. The City reserves the right
to withhold the issuance of building permits and certificates of occupancy for this
development until the City has approved such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
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6. The Developer and the City agree that the Developer is obligated to
maintain all on -site storm drainage facilities not accepted for maintenance by the City and
all off -site storm drainage facilities not accepted for maintenance by the City serving this
development and outside of the public rights -of -way.
7. The Developer and the City agree that it is important to maintain the
existing detention pond wetlands. For that purpose, it is agreed that the developer shall
ensure that these wetlands are not disturbed by construction activities on the site except
as shown on the approved project development plans documents. Failure to abide by this
agreement will result in the stoppage of all construction activities on the site and the
withholding of the issuance of any new building permits and/ or certificates of occupancy
until the adequate measures and/ or mitigation activities are implemented. The Developer
also agrees to remove and dispose of all existing debris currently present in the detention
pond wetland area and agrees to remove and dispose of any litter that is deposited in the
detention pond wetland area as a result of construction activity.
D. Streets
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Landings Drive
and JFK Parkway for those portions of said street abutting the Property as shown on the
approved final development plan documents. Reimbursement for Landings Drive and JFK
Parkway shall be for oversizing the sidewalk from local (access) standards to minor arterial
and arterial standards, respectively. The City shall make reimbursement to the Developer
for the aforesaid oversized street improvements in accordance with Section 24-112 of the
Code of the City. The Developer agrees and understands that the City shall have no
obligation to make reimbursement payments for street oversizing unless funds for such
payments shall first have been budgeted and appropriated from the Street Oversizing Fund
by the City Council; and the Developer further understands that to the extent that funds are
not available for such reimbursement, the City may not, in the absence of the Developer's
agreement, require the construction, at the Developer's expense, of any oversized portion
of streets not reasonably necessary to offset the traffic impacts of the development. The
Developer does hereby agree to construct the aforesaid oversized street improvements
with the understanding that the Developer may not be fully reimbursed by the City for the
cost of such construction. The Developer further agrees to accept payment in accordance
with Section 24-1112 (d) of the Code of the City as full and final settlement and complete
accord and satisfaction of all obligations of the City to make reimbursements to the
Developer for street oversizing expenses. It is anticipated by the City that the City's
reimbursement, in accordance with Section 24-112 (d), would not be less than fifty percent
(50%) of the Developer's actual expenses incurred and will be calculated in accordance
with the formula as set forth in Section 24-112 (d).
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2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II(D) are "City improvements" (as
defined below) and, as such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the sum of Thirty Thousand
Dollars ($30,000), the contract for the construction of the same must be submitted to a
competitive bidding process resulting in an award to the lowest responsible bidder; and
evidence must be submitted to the City prior to the commencement of the work showing
that the award was given to the lowest responsible bidder. If the cost of such
improvements exceeds Fifty Thousand Dollars ($50,000), the contract for the construction
of the improvements must be insured by a performance bond or other equivalent security.
For purposes of this paragraph, the term "City improvements" shall mean either (1) existing
improvements owned by the City that are to be modified or reconstructed, or (2) any
improvements funded in whole or in part by the City.
3. The Developer agrees to reimburse the City the sum of $18,879.37,
plus a percentage added to recognize the effects of inflation, for the cost to construct J.F.K.
Parkway street improvements 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 November, 1998, and the same index published in the ENR in the
month preceding payment of the reimbursement. Payment shall be made to the City prior
to the issuance of the first building permit.
4. The Developer and the City agree that the Developer is responsible
for all costs for the initial installation of traffic signing and striping for this development
related to the development's local street operations. In addition the Developer is
responsible for all costs for traffic signing and striping related to directing traffic access to
and from the development (e.g., all signing and striping for a right turn lane into the
development site).
5. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
6. The Developer and the City agree that the pedestrian refuge
constructed in JFK Parkway, and all access ramps and sidewalk connections
improvements needed as a result of the pedestrian refuge, as shown on the approved final
development plan documents, shall be completed by the Developer in accordance with
said final development plan documents prior to the issuance of more than 3 building
permits in this development.
E. Ground Water
1. The Developer and the City agree that the site is in close proximity to
potential sources of groundwater seepage from the Larimer #2 canal and from the existing
retention pond. The Developer 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 sustained as a result of the City's failure to properly maintain its storm drainage
facilities in the development. The City agrees to give notice to the Developer of any claim
made against it to which this indemnity and hold harmless agreement by the Developer
could apply, and the Developer shall have the right to defend any lawsuit based on such
claim and to settle any such claim provided Developer must obtain a complete discharge
of all City liability through such settlement. Failure of the City to give notice of any such
claim to the Developer within ninety (90) days after the City first receives notice of such
claim under the Colorado Governmental Immunity Act for the same, shall cause this
indemnity and hold harmless agreement by the Developer to not apply to such claim and
such failure shall constitute a release of this indemnity and hold harmless agreement as
to such claim.
F. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a permanent
water system is installed by the Developer and approved by the City.
2. Prior to beginning any building construction, and throughout the build -
out of this development, the Developer shall provide and maintain at all times an
accessway to said building or buildings. Such accessway shall be adequate to handle any
emergency vehicles or equipment, and the accessway shall be kept open during all phases
of construction. Such accessway shall be constructed to an unobstructed width of at least
20 feet with 4 inches of aggregate base course material compacted according to city
standards and with an 80 foot diameter turnaround at the building end of said accessway.
The turnaround is not required if an exit point is provided at the end of the accessway.
Prior to the construction of said accessway, a plan for the accessway shall be submitted
to and approved by the Poudre Fire Authority and City Engineer. (Three plan sets shall
be submitted to the Poudre Fire Authority at 102 Remington Street for review and
processing.) If such accessway is at any time deemed inadequate by the Poudre Fire
Authority or City Engineer, the accessway shall be promptly brought into compliance and
until such time that the accessway is brought into compliance, the City and/or the Poudre
Fire Authority may issue a stop work order for all or part of the Development.
H. Development Construction Permit
1. The Developer shall apply for and obtain a Development Construction
Permit for this development, in accordance with Division 2.6 of the Land Use Code (or
Section 29-12 of the Transitional Land Use Regulations, if applicable), prior to the
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