HomeMy WebLinkAboutSAGE CREEK - Filed DA-DEVELOPMENT AGREEMENT - 2000-08-10DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this C' day of
2000, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; the James Construction Company, Inc.,
a Colorado Corporation, hereinafter referred to as the "Developer."
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimeir, State of Colorado, (hereafter sometimes referred to as the "Property"
or "Development") and legally described as follows, to wit:
Sage Creek, A tract of land located in the East Half of Section 5, Township 6 North,
Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer, State of
Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to the
City all plats, plans (including utility plans), reports and other documents required for the
approval of a final plan according to the City's development application submittal
requirements master list (the final development plan documents) copies of which are on
file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and will
further require the installation of certain improvements primarily of benefit to the 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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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. Notwithstanding the provisions of Paragraph LC of this Agreement
and in accordance with Section 3.3.2(F) of the Land Use Code, all subdivisions must have
access to an improved arterial street. Therefore all on -site and off -site improvements
(including curb, gutter, sidewalk, and pavement with at least the first lift of asphalt) for
Ziegler Road shall be completed prior to the issuance of any building permit for the site.
Said improvements shall be completed in accordance with the final project development
plan documents and the Sage Creek/ Harvest Park County Road 9, Box Culvert, and
McClelland Channel Improvement plans. In the event that the Developer is unable to
complete construction of the first lift of asphalt pavement for Ziegler Road prior to January
1, 2001, the Developer shall construct a temporary pavement section. The depth and
length of said temporary pavement section shall be determined by the City Engineer prior
to construction of the temporary roadway. Under no circumstances shall the Developer be
allowed more than 12 building permits (or 25% of the single family attached lots) for Phase
1 prior to completing the entirety of the Ziegler Road improvements (including curb, gutter,
sidewalk, and the full asphalt pavement section).
4. Prior to the issuance of any building permit, the Developer shall
construct Phase 1 of Kechter Road (including curb, gutter, sidewalk, and pavement with
at the least the first lift of asphalt) as shown on the final project development plan
documents. Said improvements shall include, without limitation, the Ziegler Road/ Kechter
Road intersection, all necessary tapers and transitions east of Ziegler Road for the purpose
of aligning the street through the Ziegler Road/ Kechter Road intersection, and the
temporary transition west of Cornerstone Drive to safely direct vehicles back to existing
street conditions. In the event that the Developer is unable to complete construction of the
first lift of asphalt pavement for Ziegler Road prior to January 1, 2001, the Developer shall
construct a temporary pavement section. The depth and length of said temporary
pavement section shall be determined by the City Engineer prior to construction of the
temporary roadway. Under no circumstances shall the Developer be allowed more than
12 building permits (or 25% of the single family attached lots) for Phase 1 prior to
completing the entirety of the Kechter Road improvements (including curb, gutter,
sidewalk, and the full asphalt pavement section).
5. Prior to the issuance of more than 36 building permits (or 50% of the
building permits for the single family attached lots, which shall be buildings I, J, K, L, M,
and N) in Phase 2, the Developer shall construct the remaining portion of Kechter Road.
Said Phase 2 improvements shall be completed in accordance with the final development
plan documents. If weather conditions place an undue hardship upon the Developer's
ability to construct Kechter Road prior to the issuance of more than 36 building permits (or
50% of the building permits for the single family attached lots), then the Developer shall
be required to escrow 125% of the estimated cost of the total Kechter Road improvements
prior to the issuance of more than 36 building permits (or 50% of the building permits for
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the single family attached lotstwhich shall be buildings I, J, K, L, M, and N) in Phase 2.
If the aforementioned situation should occur, the Developer shall be allowed no more than
a total of 54 building permits (or a total of 75% of building permits for the single family
attached lots (which shall be buildings I, J, K, L, M, N, R, S, and T) in Phase 2 of the
development before said improvements are in place and accepted by the City.
6. No building permits shall be issued for Phase 2 until the
improvements as required under the provisions of Paragraphs 1.C, 2.D.3, and 2.D.4 of this
agreement for Phase 1 of the development have been completed. No building permits
shall be issued for Phases 3 and 4 until the improvements as required under the provisions
of Paragraphs 1.C, 2.D.3, 2.D.4, and 2.D.5 of this agreement for Phases 1 and 2 of the
development have been completed.
7. The Developer is responsible for the inspection and rating of the three
box culverts across the McClelland Channel on Corbett Drive, Old Mill Road, and Ziegler
Road in accordance with State of Colorado criteria. Said inspection and rating shall
include a Load Factor Rating Summary and Maintenance Activities Report conducted by
a State of Colorado approved party not affiliated with the design or construction of said box
culverts. This report must be submitted to the City and must be accepted by the City as
demonstrating that the design and construction meets acceptable standards and are
efficient for HS-20 design loading prior to any City acceptance of the box culvert structures.
8. The Developer is responsible for the maintenance and construction
of any pedestrian facilities located within Tracts A, C, D, and K. Said maintenance
responsibilities for the pedestrian facilities apply to all pedestrian amenities within the
dedicated tracts, including, without limitation, all sidewalks and pedestrian bridges. Said
construction responsibilities for the pedestrian amenities within Tracts C, D, and K shall be
completed prior to issuance of 18 building permits (or 25% of the building permits for the
single family attached lots) for Phase 2. Said construction responsibilities for the
pedestrian amenities within Tract A shall be completed prior to more than 14 building
permits for Phase 4 of the development. Type III barricades shall be installed at the
termination of the! pedestrian bridges (if the pedestrian trail system to the north of the
bridge has not been completed at the time of construction of each bridge). The
construction obligations outlined herein shall be completed as shown on the approved final
development plan documents and the Sage Creek/ Harvest Park County Road 9, Box
Culvert, and McClelland Channel Improvement plans.
9. Prior to any building permits in Phase 2, the Developer shall have
completed construction of Corbett Drive across the McClelland Channel. Type III
barricades shall be installed at the termination of Corbett Drive across the channel (if
Corbett Drive north of the culvert and McClelland Channel has not be completed at this
time). The construction obligations outlined herein shall be completed as shown on the
approved final development plan documents and the Sage Creek/ Harvest Park County
Road 9, Box Culvert, and McClelland Channel Improvement plans.
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10. Prior to the issuance of more than 13 building permits in Phase 3, the
Developer shall have completed construction of Old Mill Road across the McClelland
Channel. Type III barricades shall be installed at the termination of Old Mill Road across
the channel (if Old Mill Road north of the culvert has not been completed at this time). The
construction obligations outlined herein shall be completed as shown on the approved final
development plan documents and the Sage Creek/ Harvest Park County Road 9, Box
Culvert, and McClelland Channel Improvement plans.
11. No vehicular (driveway) access off of Corbett Drive shall be allowed
for Lot 10, Block 6, Lots 10 and 11, Block 7, and Lots 10 and 11, Block 8.
12. 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).
13. The landscaping located in the traffic circle median for Corbett Drive
shall not be maintained by the City and it is agreed that all installation, maintenance,
operation, repair and reconstruction obligations relating to the landscaping and the
irrigation of said landscaping shall be that of the Developer or the Developer's successor(s)
in interest. To the extent that said landscaping and irrigation is located on public property,
all installation, maintenance, operation, repair and reconstruction shall be conducted in
such a manner that such public property shall not be damaged, or if damaged, shall be
repaired in accordance with then existing City standards.
14. The landscaping located in the traffic circle median for Corbett Drive
shall be "drip" irrigated.
15. The Developer hereby indemnifies and holds the City harmless from
any damage caused to the roadway (concrete, asphalt, curb and gutter) when such
damage is caused, directly or indirectly, by the acts or omissions of the Developer in
irrigating the landscaping within the traffic circle median for Corbett Drive. Notwithstanding
any provision in this Agreement to the contrary, this indemnity may be assigned only to a
bonafide homeowner's association which has lawfully assumed the irrigation obligation
from the Developer and only if such assignment is in writing and duly and lawfully executed
by such homeowner's association and approved in writing by the City.
16. The Developer agrees that the traffic circle for Corbett Drive is subject
to the sight distance easement restriction language as specified in the final development
plan documents.
17. 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
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of the City.
E. Natural Resources
1. The Developer agrees that following the installation of the McClelland
Channel improvements the site will be assessed for the effectiveness of the project. The
Developer shall also ensure that all vegetation within the channel is properly maintained
for a three- (3) year period following construction thereof to ensure that the vegetation and
hydrologic regime are fully established. Monitoring of the vegetation shall occur in June
and September of the first growing season and in late summer of the remaining growing
seasons. The status and effectiveness of the vegetation shall be evaluated and the results
shall be reported to the City of Fort Collins for review. If the wetlands have been
established in accordance with the approved Wetland Mitigation Plan, they shall be
approved and accepted by the City Natural Resources Director. If the wetlands have not
been established in accordance with the approved Wetland Mitigation Plan, then the
Developer shall promptly take such steps as are necessary to bring the wetlands into
conformance with the approved Wetland Mitigation Plan.
The Developer and the City agree that the Developer shall be responsible for all seeded
areas for a minimum of three (3) growing seasons from the date of completion or until the
plant establishment criteria set forth in Paragraph 4 below are met.
2. The Developer is responsible for implementing mitigation measures
to compensate for the disturbance of approximately 0.17 acres of wetlands on this
development site. (If said wetland boundaries are found to be different from those shown
on the approved project development plan documents, the Developer shall modify the
approved project development plan documents through the administrative change process
for a P.D.P.)
3. The Developer agrees to accomplish said mitigation by the creation
of wetlands through the establishment of hydrologic regime and wetland vegetation.
Construction of said wetland mitigation area shall be completed prior to the issuance of
more than 18 building permits (for the single family attached lots) in Phase 2.
4. The Developer agrees that all seeded areas shall be inspected jointly
by the Developer and the City at specified intervals. Areas seeded in the spring shall be
inspected for required coverage the following fall not later than October 1. Areas seeded
at any other time shall be inspected the following two summers not later than August 1.
The required coverage for the first inspection shall be ten (10) viable live seedlings of the
specified species per 1000 square centimeters (approximately one square foot), or fifty
percent (50%) coverage of the specified foliage as measured from five feet (5') directly
overhead, with no bare spots larger than 1000 square centimeters. At the time of the
second growing season inspection, there shall be seventy-five percent (75%) foliage cover
of the specified species planted as measured from five (5') directly overhead. No more
than ten percent (10%) of the species noted on the site may be weedy species as defined
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by Article III, Section 20-41 of the Code of the City of Fort Collins.
Determination of required coverage will be based on fixed transects each ten meters in
length, randomly placed in representative portions of the seeded areas, with plant species
or bare ground/rock/litter being noted every ten (10) centimeters along each transect.
The Developer shall warrant all seeded areas for three growing seasons 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.
5. Fueling facilities shall be located at least one hundred (100) feet from
any 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, runoff, or be washed into a body of water, wetland or drainage way.
F. Ground Water, Subdrains and Water Rights
1. The City shall not be responsible for, and the Developer, for itself and
its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against
any damages or injuries sustained in the Development as a result of ground water seepage
or flooding, structural damage, or other damage unless such damages or injuries are
sustained as a result of the City's failure to properly maintain its storm drainage facilities
in the Development.
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
indirectly by the construction, establishment, maintenance or operation of the
Development.
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4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
Developer could apply, and the Developer shall have the right to defend any lawsuit based
on such claim and to settle any such claim provided the Developer must obtain a complete
discharge of all City liability through such settlement. Failure of the City to give notice of
any such claim to the Developer within ninety (90) days after the City first receives notice
of such claim under the Colorado Governmental Immunity Act for the same, shall cause
the forgoing indemnities and hold harmless agreements by the Developer to not apply to
such claim and such failure shall constitute a release of the foregoing indemnities and hold
harmless agreements as to such claim.
G. 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. Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall Ihave 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 Phases 1 and 2 in which the permit is being requested.
Facilities shall include but not be limited to all mains, lines, services, fire hydrants and
appurtenances for Phases 1 and 2 as shown on the final development plan documents.
No Footing and f=oundation permits shall be allowed for Phases 3 and 4.
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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.
J. 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. Notwithstanding the provisions
of paragraphs III (H) and (1) of this Agreement to the contrary, the obligations of the
Developer pursuant to this paragraph and Exhibit "C" 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.
Ill. 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
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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 (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 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. 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 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
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.
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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
beer. 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
IN
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
If to the Developer: Jim Postle
James Construction Company, Inc.
2919 Valmont Road, Suite 204
Boulder, CO 80301
(303)443.6666
Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees
or assigns, wishes to change the person, entity or address to which notices under this
Agreement are to be sent as provided above, such party shall do so by giving the other
parties to this Agreement written notice of such change.
O. When used in this Agreement, words of the masculine gender shall include
the feminine and neuter gender, and when the sentence so indicates, words of the neuter
gender shall refer to any gender; and words in the singular shall include the plural and vice
versa. This Agreement shall be construed according to its fair meaning, and as if prepared
by all parties hereto, and shall be deemed to be and contain the entire understanding and
agreement between the parties hereto pertaining to the matters addressed in this
Agreement. There shall be deemed to be no other terms, conditions, promises,
understandings, statements, representations, expressed or implied, concerning this
Agreement, unless set forth in writing signed by all of the parties hereto. Further,
paragraph headings used herein are for convenience of reference and shall in no way
define, limit, or prescribe the scope or intent of any provision under this Agreement.
TT
City Clerk
APPROVED AS TO CONTENT:
City Enginee
THE CITY OF FORT COLLINS, COLORADO,
a Municipal) o�rporation
By: �. LjkL
City Ma'ft&ger
19
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, excluding the garage
structures for Phases 1 &2 within the Property 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, 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 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
Ir
APPROVE�AS TO FORM:
Deputy City Attorney
DEVELOPER:
James Construe Corporation, Inc., a Colorado
Corporation 7
0
ATTEST: —
By: G
enee McCanley, Marketing sistant
v
ME
President
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"
The Development Agreement for Sage Creek PDP- City of Fort Collins,
Larimer County, Colorado.
The following cost estimates for "McClelland Channel' improvements
constitute costs associated with major drainage improvements that are eligible for repay
to the developer. These costs are based on analysis presented to the City by Sear Brown
for Structural Improvements on March 22, 2000; and by Vignette Studios on April 18, 2000
for the "Enhanced Landscaping" Improvements.
The City shall make payments to the Developer on the basis of actual costs
as submitted by the Developer, based on actual Contractor Invoices within 60 days from
submittal of invoices.
The City reimbursed costs for Structural Improvements (Riffle Pools and
Drop Structures) shall not exceed the maximum amount of $83,403.00 as detailed and
listed below.
The City reimbursed costs for "Enhanced Landscaping" Improvements
(Trees and Shrubs) shall not exceed the maximum amount of $24,006.25 as detailed and
listed below.
McCllellands Channel Improvements
for Sage Creek
Cost estimate for Riffle Pools, Drop Structures and Enhanced
Landscaping
Riffle Pools and Drop Structures costs calculated by: Jim Allen -Morley, PE of Sear Brown, March
22, 2000
Enhanced Landscaping Costs calcualted by Terence Hoaglund, ASLA of Vignette Studios, April 18
2000
Structural Channel Improvements (Riffle Pools and Drop
Structures):
Item
Unit
Unit Cost
$
CITY
Total
Cost $
Two Riffle Pools
Dewatering
Grout Ground Waiter barrier
L.S.
L.S.
$2,000.0
$1,000.0
1
1
$2,000
$1,000
22
ype II Bedding
ype L River
tock(Installatiori)
V to 4' River
tock(installation)
ype L River Rock(material)
�' to 4' River Rock(Material)
Ton
C.Y.
C.Y.
Ton
Ton
$20.40
$35.00
$35.00
$46.00
$21.00
5
203
116
15
254
Subtotal
$103
$7,097
$4,044
$700
$5,339
$20,283
1 Control Structures
lewatering
L.S.
$2,000.0
1
$2,000
ype L River
C.Y.
$35.00
517
$18,083
;ock(Installation)
'to 4' River
C.Y.
$35.00
276
$9,644
;ock(installation)
ype L River Rock(material)
Ton
$46.00
39
$1,783
'to 4' River Rock(Material)
Ton
$21.00
606
$12,731
ngineering
L.S.
$6,000.0
1
$6,000
urveying
L.S.
$2,000.0
1
$2,000
Subtotal
$52,241
Subtotal
$72524
15% cont
$10:879
Total
$83,403
23
Enhanced Landscaping Improvements:
Item Size
Units QTY 1/2 of QTY Unit TOTAL
Cost
(Total) (City's ($) ($)
Share)
us Shade Trees
2" CAL ea
82
41
200
8200
us Trees
6-8' B&B ea
34
17
250
4250
us Shrubs
5 Gal ea
674
337
25
8425
Subtotal $20,875
15% Contigency $3,131.25
Total $24,006.25
Landscaoina
Maximum Reimbursable Amount by the City for all McCllelland Channel
Improvements
(Including contingency)
Total Structural
$83,403.
Total Landscaping
$24,006.25
Total Channel
$107,409.25
Improvements
24
EXHIBIT "C"
Refer to the Final Plat for this Development
25
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,
for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City
from any and all claims that might arise, directly or indirectly, as a result of the discharge
of injurious storm drainage or seepage waters from the Property in a manner or quantity
different from that which was historically discharged and caused by the design or
construction of the storm drainage facilities, except for (1) such claims and damages as
are caused by the acts or omissions of the City in maintenance of such facilities as have
been accepted by the City for maintenance; (2) errors, if any, in the general concept of the
City's master plans (but not to include any details of such plans, which details shall be the
responsibility of the Developer); and (3) specific written or otherwise documented directives
that may be given to the Developer by the City. The City agrees to give notice to the
Developer of any claim made against it to which this indemnity and hold harmless
agreement by the Developer could apply, 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, the Developer, 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
3
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, 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 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 notiice 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
0
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. The storm drainage improvements associated with Phase 1 of this
development, as shown on the approved final development plan documents and the Sage
Creek/ Harvest Park County Road 9, Box Culvert, and McClelland Channel Improvement
plans, shall be completed by the Developer in accordance with said final development plan
documents and the Sage Creek/ Harvest Park County Road 9, Box Culvert, and
McClelland Channel Improvement plans prior to the issuance of more than 12 building
permits (for the single family attached lots) in Phase 1 of this Development. The storm
drainage improvements associated with Phase 2 of this development, as shown on the
approved final development plan documents and the Sage Creek/ Harvest Park County
Road 9, Box Culvert, and McClelland Channel Improvement plans, shall be completed by
the Developer in accordance with said final development plan documents and the Sage
Creek/ Harvest Park County Road 9, Box Culvert, and McClelland Channel Improvement
plans prior to the issuance of more than 18 building permits (for the single family attached
lots) in Phase 2 of this Development. Phase 2 certification shall include the certification
of the "McClelland Channel' improvements including all the box culvert crossings of the
channel (both for pedestrian paths and street crossings) as shown on the approved
Development Plan and the Sage Creek/ Harvest Park County Road 9, Box Culvert, and
McClelland Channel Improvement plans documents for this Development. In the event
that the "McClelland Channel' improvements are completed by a third party, the Developer
of Sage Creek will still be obligated to ensure that these improvements are completed and
certified prior the issuance of more than 12 building permits (for the single family attached
lots) in Phase 2 of this Development. If landscaping in the McClelland Channel cannot be
installed due to seasonal restrictions then the Developer shall be allowed to escrow 125%
of said channel landscaping improvements and obtain additional building permits as
necessary. The storm drainage improvements associated with Phase 3 of this
development, 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 12 building permits in Phase 3 of this Development. The
storm drainage improvements associated with Phase 4 of this development, 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
14 building permits in Phase 4 of this Development. Completion of drainage improvements
shall mean the certification by a professional engineer licensed in Colorado that said
drainage facilities have been constructed in conformance with said final development plan
documents. All required certifications shall be submitted to the City at least two weeks
prior to the date of issuance of additional building permits upon approval of such
certification as specified in this paragraph.
2. The Developer shall be responsible for maintaining the structural
integrity and operational functions of all drainage facilities throughout the build -out of this
!.i
Development for a warranty period not to exceed five years. If within the warranty period
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 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 $66,300.00 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, 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 agrees that it is important that all lots and buildings are
to be graded to drain in the configuration shown on the approved final development plan
documents. For this reason the following additional requirements shall be followed for all
buildings and all lots in this subdivision:
Prior to the issuance of a certificate of occupancy for any dwelling unit in Phases
1 and 2 of this development the Developer shall provide the City with
certification that the building which this unit is part has been graded correctly
(including the grading of any minor swales, if applicable); the finish floor and the
minimum floor elevation for said building has been completed in accordance with
the approved final development plan documents.
Prior to the issuance of a certificate of occupancy for any lot in Phases 3 and 4
of this development the Developer shall provide the City with certification that
[.
said lot has been graded correctly (including the grading of any minor swales,
if applicable); the lot 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 all
buildings constructed on said lot has been completed in accordance with the
approved final development plan documents (where applicable).
Said certifications 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. Some lots in this Development abut certain storm drainage facilities.
In order to provide the assurance that houses built on such lots are constructed at an
elevation that storm water cannot enter, the approved final development plan documents
contain specifications for the minimum elevation for any opening to each such house. Prior
to the issuance of a certificate of occupancy for each of Lots 7 through 14, Block 2; the
Developer shall provide certification from a professional engineer licensed in Colorado that
the lowest opening to any house built on said lots is at or above the minimum elevation
required on the approved final development plan documents. Said certification is in
addition to, and may be done in conjunction with, the site certification described in
paragraph II.C.4 ;above.
6. In addition the Developer shall be required to file a notice with the
Larimer County Clerk and Recorder describing the landscaping and fencing restrictions
that exist for the drainage easements on each of Lots 1 through 5, Block 1, and Lots1
through 7, Block 2. Said notice shall reference the location of the specific restrictions
shown on plans and notes in the approved final development plan documents. Said notice
shall be filed in a City approved form prior to the sale of any lots affected by such
restrictions.
7. 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.
8. The installation of the channel improvements commonly known as
the "McClelland Channel" being constructed by this project shall be the responsibility of the
Developer. The City shall reimburse the Developer for the costs associated with building
the drop structures and riffle pools in the McClelland Channel, and for half of the
landscaping costs associated with the construction of that channel referred to as
"Enhanced Landscaping" costs. The "Enhanced Landscaping" costs shall be defined as
the costs of the trees and shrubs being placed in the "McClelland Channel" area. The City
7
shall reimburse the Developer the costs of the installation of two riffle pools and 11 grade
control structures in the channel area, which costs are estimated by the developer's
engineer to be $72,524.00 as detailed in "Exhibit B" attached. The City shall reimburse the
Developer for this construction based on actual costs, as long as these costs do not
exceed the estimated $72,524.00 plus a 15% contingency. Thus the reimbursement by
the City for these structures shall not exceed the sum of $83,472.00. The City shall also
reimburse the Developer for up to half of the costs of installing the "Enhanced
Landscaping" in the channel. The City shall reimburse the Developer for its share of the
"Enhanced Landscaping" based on actual costs, as long as these costs do not exceed the
sum of $24,006.25. This sum represents the City's share of the "Enhanced Landscaping"
costa plus a 15% contingency based on the submitted estimate by the landscape architect
for this Development as detailed and listed in "Exhibit B" attached.
9. The City shall reimburse the Developer within 60 days from submittal
of invoices as long as the City has available funds appropriated for that purpose at the time
these invoices are submitted. If not the City shall reimburse the Developer as soon as
funds are appropriated for that purpose. These invoices shall be the actual Contractor
submitted invoices.
10. The portion of this agreement dealing with the repay of the
"McClelland Channel" improvements shall become effective only if the Developer of this
subdivision completes the actual improvements in accordance with paragraph II.C.8 above.
If the improvements are built by a third party then, no reimbursement shall be due to the
Developer of Sage Creek and any portion of this Development Agreement that deals with
the repay for "McClelland Channel" Improvements, including "Exhibit B" attached, shall be
null and void.
11. The Developer shall warranty the installation of all vegetation within
the McClelland Channel for a period of 3 years from date of installation.
12. The City shall assume maintenance of the channel upon completion
of the channel improvements and acceptance by the City of these improvements. The City
shall accept these improvements upon certification by a licensed professional engineer in
the state of Colorado that these improvements were built in accordance with the approved
development plan documents and the Sage Creek/ Harvest Park County Road 9, Box
Culvert, and McClelland Channel Improvement plans, and upon verification that the
installed vegetation in the channel area has been stabilized. The City shall maintain all City
owned property within the McClelland Channel area except for the bike/pedestrian path.
The Developer agrees that the bike/pedestrian path and all associated channel crossing
improvements which cross the City owned property shall be maintained by the Developer.
13. Notwithstanding the foregoing, 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 Ziegler Road
(formerly County Road 9), Kechter Road (formerly County Road 36), and Corbett Drive for
those portions of said street abutting the Property as shown on the approved final
development plan documents. Reimbursement for Ziegler Road and Kechter Road shall
be for oversizing the street from local (access) standards to minor arterial standards. No
reimbursement will be due for Kechter Road east of Ziegler Road. In addition,
reimbursement for Ziegler Road shall be for oversizing the bridge spanning the McClelland
Channel from local (access) standards to minor arterial standards. Reimbursement for
Corbett Drive shall be for oversizing the street and the bridge spanning the McClelland
Channel from local (access) standards to collector standards. The City shall make
reimbursement by the Developer for the aforesaid oversized street improvements in
accordance with Section 24-112 of the Code of the City. In accordance with Section 24-
112(a) of the Code of the City, all additional expense to Corbett Drive as the result of the
addition of the Developer requested traffic circle intersection, shall not be reimbursable.
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 ,vas 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.
0