HomeMy WebLinkAboutPALMER DESIGN CENTER - Filed DA-DEVELOPMENT AGREEMENT - 2004-01-13DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this 24"% day of N4wq
199�, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the City"; 214 - 216 South College, L.L.C., a
Colorado limited liability company, hereinafter referred to as the "Developer".
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer, State of Colorado, (hereafter referred to as the "Property") and legally
described as follows, to wit:
Palmer Design Center, being a replat of a part of Lots 1 and 2, Observatory
Heights, situate in the Northwest 3 of Section 36, Township 7 North, Range 69 West
of the 61h P.M., City of Fort Collins, County of Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to the
City all plats, plans (including utility plans), reports and other documents required for the
approval of a final plan according to the City's Development application submittal
requirements master list (the final development plan documents) copies of which are on
file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and will
further require the installation of certain improvements primarily of benefit to the 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:
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
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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 shall specifically include, but not be limited to, a conveyance or assignment
I. 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.
J. 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.
K. 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.
L. 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
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remedies specified in Paragraph III.D of this Agreement.
M. 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.
N. 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.
O. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set forth
below; and such notice or other communication shall be deemed given when so hand -
delivered or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
If to the Developer: Spiro Palmer
P.O. Box 270094
Fort Collins, CO 80527
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.
P. When used in this Agreement, words of the masculine gender shall include
the feminine and neuter gender, and when the sentence so indicates, words of the neuter
gender shall refer to any gender; and words in the singular shall include the plural and vice
versa. This Agreement shall be construed according to its fair meaning, and as if prepared
by all parties hereto, and shall be deemed to be and contain the entire understanding and
agreement between the parties hereto pertaining to the matters addressed in this
Agreement. There shall be deemed to be no other terms, conditions, promises,
understandings, statements, representations, expressed or implied, concerning this
Agreement, unless set forth in writing signed by all of the parties hereto. Further,
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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.
ATTEST:
City Clerk
APPROVED AS T CONTENT:
City Engineei
APPRO D AS TO FORM:
eputy City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: 5.4�- -F .
City qanager
DEVELOPER:
214 - 216 South College, L.L.C., a Colorado limited
liabil' company
By. ' ) 0
Spird Palmer, Ma er
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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 street improvements to be installed out of sequence.
Not Applicable
4. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
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EXHIBIT "B"
Not Applicable
M
EXHIBIT "C"
Refer to the Final Plat for this development
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City of Fort Collins, Colorado
DEVELOPMENT CONSTRUCTION PERMIT
Permit Number: `i9-(_I_ Issuance Date:
Project Name: Palmer Design Center
Project A.K.A.: same as above
Project Location: Southeast quadrant of the intersection of Mitchell Drive and East
Horsetooth Road
Permittee: Spiro Palmer; Palmer Properties
City and developer contacts:
Fees:
See attached Exhibit "A" for names and phone numbers of all contact persons for
this project.
Permit Application Fee (paid at the time of application) $300.00 (paid)
Construction Inspection Fee (paid prior to issuance of this permit) $3,325.30 (paid)
Excavation permit 1 350.00 Kia ,Islam
Total $4,975.30
Development Bond or other approved security:
Amount of security deposited with the City to guarantee the completion of all public
improvements to be constructed as shown on the approved plans for the development.
$52,764.50 Expiration date: non -expiring
Form of security deposited with the City: Letter of Credit
PERFORMANCE REQUIREMENTS OF THIS PERMIT:
1. The Project Engineer shall be responsible to certify, or have certified, materials testing
and other tests as required; shall, as required by the City in the Development Agreement,
certify that the improvements are constructed in accordance with the approved Utility Plans
and the standards and specifications of the City; shall revise and secure City approval of all
revisions to the utility plans and related documents; and shall prepare and submit to the City
"as -constructed" plans prior to the City's acceptance of "the constructed" public improvements.
2. All contractors who perform work on this project must be bonded and licensed in
conformance with City requirements.
Construction time restrictions: n/a
4. The applicant understands that additional permits may be required for this development
project and the applicant shall secure those permits directly from the issuing departments.
5. This permit, along with a complete set of all approved plans and documents for this
project (utility plans, site plan, landscape plan, development agreement, soils report,
pavement design, traffic study, drainage report, plat easements and any other official
documents), shall be kept on the development site available for use by City staff doing
inspections.
6. Permit Expiration (in accordance with Section 29-12 of the Transitional Land Use
Regulations or Section 2.6.3(K) of the Land Use Code, whichever is applicable):
a. If construction has not begun within sixty (60) days from the date of issuance of
this permit, this permit shall expire and the applicant will forfeit the permit fee paid for
this permit, Whereupon the applicant must re -apply for a new permit.
b. In addition, this permit shall expire one year from the date of issuance. The
applicant may apply for an extension by reapplication at least two weeks prior to the
expiration date. Such application shall contain information sufficient to justify the
granting of the extension. An extension may be granted for up to six months.
7. Building permits and certificates of occupancies will only be issued when all conditions
contained in the Development Agreement and Sections 3.3.2(C) and (D)of the Land Use Code
or Sections 29-678 and 29-679 of the Transitional Land Use Regulations, whichever is
applicable, are met. If the Development Agreement does not specify times for completion of
public improvements, or if there is no Development Agreement, then the improvement
requirements specified in Section 24-95 of the City Code shall apply, which provides that
construction of all improvements shall be required prior to the time of issuance of the first
building permit .
8. Acceptance by the City of the public improvements shall be after (1) final inspection has
been conducted by the City ; (2) punch list items from the final inspection are completed and
accepted by the City; and (3) required certifications from the licensed professional engineer
that improvements are completed to City standards, specifications and approved Utility Plans
and the "as -constructed" plans have been received and accepted by the City.
9. The warranty on street improvements is for five (5) years from the date of acceptance
by the City of the completed improvements, in accordance with Sections 29-13 and 29-14 of
the Transitional Land Use Regulations and/or Sections 2.2.3(C)(3)(g), 3.3.1(C)(2), and
3.3.2(C) of the Land Use Code, as applicable
10. The City Erosion Control Inspector must be notified at least twenty four (24) hours prior
to any planned construction on this project. All required perimeter silt fencing and other
erosion/sediment control best management practices (BMP's) that can be installed prior to
construction must be in place and inspected by the City Erosion Control Inspector before any
land disturbing activity begins.
11. The Developer agrees to maintain a 4 inch thick by 20 feet wide emergency accessway
at all times during construction.
12. The Developer agrees that the design of the landscape median along East Horsetooth
Road shall be completed and approved by the City prior to the issuance of any certificate of
occupancy.
13. It is understood that the Developer is proceeding with the construction of said project at
his/her own risk until the right-of-way along Mitchell Drive is approved for vacation by the City
Council. If such right-of-way is not approved for vacation, the Developer agrees to replat
his/her property.
Permittee's acknowledgment signature:
By signing this permit I acknowledges that I am acting with the knowledge, consent, and authority
of the owners of the property (including all owners having legal or equitable interest in the real
property, as defined in Section 1-2 of the City Code; and including common areas legally
connected to or associated with the property which is the subject of this application) without
whose consent and authority the requested action could not lawfully be accomplished. Pursuant
to said authority, I hereby permit City officials to enter upon the property for purposes of inspection
and, if necessary, to enter upon such property to perform work required of the applicant if the
applicant were to fail to perform the required work. I also acknowledge that I have read this permit
document with all its requirements and conditions, and I agree to all of the terms and conditions
so stated in this permit.
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Applicant/Project Manager's Signature: � L Date:
Approval for issuance:
City Engineer Approval: I / Y V V'- F c v Date:
(Permit Issuance Date)
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EXHIBIT "A"
DEVELOPMENT PROJECT CONTACT PERSONS
Project Name: Palmer Design Center
City Staff Contact Persons:
Development Engineer: Tim Blandford, City of Fort Collins, 281 N. College
Avenue, Fort Collins, CO 80522
970/221.6605 ext.7128
Construction Inspector: Matt Hill, City of Fort Collins, 281 N. College Avenue,
Fort Collins, CO 80522
970/217.8901
Current Planner: Steve Olt, City of Fort Collins, 281 N. College
Avenue, Fort Collins, CO 80522
970/221.6750 ext.6341
Water Utilities Engineer: Roger Buffington, 700 Wood Street, Fort Collins, CO
80521
970/221.6854
Erosion Control Inspector: Bob Zakely, 700 Wood Street, City of Fort
Collins, CO 80521
970/221.6063
Natural Resources: n/a
Traffic Operations: Ward Stanford, 700 Wood Street, City of Fort Collins,
CO 80521
970/221.6820
Street closures: n/a
Transportation Planning: Kathleen Reavis, 210 East Olive Street, City of Fort
Collins, CO 80524
970/224.6140
Forestry: Tim Buchanan, City of Fort Collins, 281 N. College
Avenue, Fort Collins, CO 80522
970/221.6361
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, 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. 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
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
►J
Light and Power: Doug Martine, 700 Wood Street, City of Fort Collins,
CO 80521
970/224.6152
Developer's Contact Persons:
Project Manager: Spiro Palmer, Palmer Properties, P.O. Box 270044,
Fort Collins, CO 80527
970/204.4000
Developer: Maria Jolly, Palmer Properties, P.O. Box 270044, Fort
Collins, CO 80527
970/204.4000
Owner(s): Spiro Palmer, Palmer Properties, P.O. Box 270044,
Fort Collins, CO 80527
970/204.4000
ArchitectlPlanner: Linda Ripley, Vaught Frye Architects, 1113 Stoney
Hill Drive, Fort Collins, CO 80525
970/224.1191
Project Engineer: Roger A. Curtiss, P.E., Northern Engineering
Services, Inc., 420 S. Howes, Suite 202, Fort Collins,
CO 80521
970/221.4158
General Contractor: Dan Spykstra, Drahota Construction Company, P.O.
Box 272269, Fort Collins, CO 80527
970/204.0100
or All Other Contractors: n/a
Outside Utility Contact Persons:
U.S. West Susan Peterson, 124 W. Magnolia, Fort Collins, CO
80521
970/224.7473
TCI of Fort Collins Dennis Greenwalt, 1201 University Avenue, Fort
Collins, CO 80521
9701226.3104
Public Service Company Jim Slagle, 1901 East Horsetooth Road, Fort Collins,
CO 80525
970/225.7843
3600 South College Avenue
Ft. Collins, CO 80525
Phone: (970) 226-4545
IRREVOCABLE LETTER OF CREDIT
OUR LETTER OF CREDIT NUMBER: 230
DATE OF ISSUANCE: March 30, 1999
BENEFICIARY: CITY OF FORT COLLINS
ENGINEERING DEPARTMENT
300 LAPORTE AVE
FORT COLLINS, CO 80521
Dear Sirs:
We hereby establish, at the request and for the account of PALMER 214-216 SOUTH
COLLEGE LLC, in your favor as beneficiary, our Irrevocable Letter of Credit No. 230, in
the amount of U.S. Fifty Two Thousand Seven Hundred Sixty Four and 50/100 (S52,764.50)
(as more fully described below), effective immediately and expiring at 3:01 P.M., Mountain
Standard Time, March 19, 2000, unless automatically renewed as herein provided, at our office
at i" Choice Bank, 3600 S. College Ave., Fort Collins, Co. 80525.
This Letter of Credit is intended for the PALMER 214-216 SOUTH COLLEGE LLC
project for the assurance of the completion of INFRASTRUCTURE IMPROVEMENTS.
Funds under this Letter oPCredit are available to you for one or more drawings prior to the close
Of business on March 19, 2000 (unless automatically renewed as provided herein) against sight
drafts in an aaeregatc cumulative amount not to exceed U.S. Fifty Two Thousand Seven
Hundred Sixty Four and 50/100), dated the date of presentment, drawn on our office referred to
above, referring thereon to the number of this Letter of Credit and accompanied by your written
certificate signed by you and acknowledged as therein provided in the form of Exhibit I hereto.
Presentation of such draft and certificate shall be made at our office referred to above.
Upon the earlier of (i) our honoring your draft(s) totaling S52,764.50 in the aggregate
presented on or before this Letter of Credit expires pursuant to the terms herein or (ii) the
Do 9?-d7
surrender to its by you of this Letter of Credit for cancellation, this Letter of Credit shall
automatically terminate.
This Letter of Credit shall be automatically renewed annually, commencing immediately
before the end of the initial tern or any renewal term, unless the issuer is notified in writing by
the beneficiary sixty (60) days prior to such annual expiration date that this Letter of Credit is
cancelled. The issuer may terminate this Letter of Credit at the end of the initial term or any
renewal teen provided that the issuer give the beneficiary sixty (60) days' advance written notice
of the issuer's intent to so terminate. If at said expiration date, the developer has not fulfilled
his/her obligations as stated in the development agreement, the beneficiary shall execute its right
to recover the funds as outlined in the document.
This Letter of Credit shall be governed by the laws of the State of Colorado, including the
Uniform Commercial Code as in effect in the Sate of Colorado. Communications with respect to
this Letter of Credit shall be addressed to us at the office referred to above, specifically referring
to the number of this Letter of Credit.
This Letter of Credit is not transferable.
This Letter of Credit: sets forth in full our undertaking, and such undertaking shall not in any way
be modified, amended, amplified or limited by reference to any document, instrument or
agreement referred to herein, except only the certificate and drafts(s) referred to herein; and any
such reference shall not be deemed to incorporate herein by reference any document, instrument
or agreement except for such certificate and drafts(s).
1 sr Choice nk
By. /te
Micha K Sanders, President
STATE OF COLORADO)
) ss.
County of Larimer )
Subscribed and sworn to before me this 30' day of March, 1999, by Michael K Sanders,
as authorized officer 1" Choice Bank.
Witness my hand and official seal.
PRY
CHRISTOPHER
BURNS
Notary Public
My Commission Expires:
MY COMMISSION EXPIRES
MAY 23, 2001
EXHIBIT 1
CERTIFICATE
The undersigned hereby certifies as follows with respect to the certain Irrevocable
Letter of Credit No. 230 dated March 30, 1999, established in favor of The City of Fort
Collins, Colorado (the "Letter of Credit'):
(a) He (She) is authorized to execute this Certificate on behalf of The City of Fort
Collins;
(b) The sum of $52,764.50, which is the amount of the draft presented with this
Corti ficate, is the amount currently due to The City of Fort Collins from
Palmer 214-216 South College LLC;
(c) The amount of the accompanying draft together with all previous drafts under
the Letter of Credit do not exceed in the aggregate $52,764.50; and
(d) The Letter of Credit has not expired.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
behalf of the City of Fort Collins this day of
THE CITY OF FORT COLLINS, COLORADO
STATE OF COLORADO)
) ss.
County of Larimer )
Subscribed and sworn to before me this day of
_ by as authorized officer of The City
of Fort Collins, Colorado.
Witness my hand and official seal.
Notary Public
My Commission Expires:
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
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
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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
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.
II. Special Conditions
A. Water Lines
1. Prior to the issuance of any building permit for this development, the
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Developer shall, in accordance with Section 26-121 of the City Code, reimburse the City
the sum of $155.00 (1.24 acres @ $125/gross acre) for the cost of installation of the
Warren Lake Trunk Sewer which serves this development.
B. Sewer Lines
Not Applicable
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 any certificate of occupancy for the 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
certificate of occupancy for the development.
2. 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 $5,664.00 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, 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.
3. 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
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development until the City has approved such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
4. 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.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along East Horsetooth
Road for those portions of said street abutting the Property as shown on the approved final
development plan documents. Reimbursement for East Horsetooth Road shall be for
oversizing the sidewalk from local (access) standards to arterial standards. 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 24-112 (d) of the
Code of the City as full and final settlement and complete accord and satisfaction of all
obligations of the City to make reimbursements to the Developer for street oversizing
expenses. 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).
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)
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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 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).
4. The Developer agrees that median design along East Horsetooth
Road, which extends from Mitchell Drive to JFK Parkway, will be fully completed and
approved by the City prior to the issuance of any certificate of occupancy for the
development. It is understood that since the City is contemplating a Street Oversizing
Project for the construction of said median in East Horsetooth Road along the frontage of
the Property, the Developer is only required to provide the City with a design of said
median between Mitchell Drive and JFK Parkway.
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
E. Ground Water
1. The City shall not be responsible for, and 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.
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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.
G. Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain a Footing and Foundation permit 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 site as shown on the final development plan documents.
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
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 shall
constitute a total of five (5) years, and which guarantees 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)
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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
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
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