HomeMy WebLinkAboutLINDEN PARK - Filed DA-DEVELOPMENT AGREEMENT - 2001-01-08DEVELOPMENT AGREEMENT
-2_00I THIS AGREEMENT, is made and entered into this day of TAVIVOM
K00, by and between the CITY OF FORT COLLINS, COLORADO, a Munic I
Corporation, hereinafter referred to as the "City"; and TM One, LLC, a Colorado limited
liability company hereinafter referred to as the "Developer"; and LSPI Exchange
Corporation, a Nevada corporation, Roger Nosker, Shirley Nosker, and J.J. Hendricks, as
individuals hereinafter collectively referred to as the "Owner."
WITNESSETH:
WHEREAS, the Developer has entered into an agreement with the owner to acquire
ownership of certain real property situated in the County of Larimer, State of Colorado,
(hereafter sometimes referred to as the "Property" or "Development") and legally described
as follows, to wit:
Linden Park P.D.P., situated in the Southeast Quarter of Section 7, 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:
1
future development occurs
9. Prior to the issuance of more than 25% of the building permits in each
Phase, the bicycle/ pedestrian paths in Tracts A, B, C, D, E, and F shall be constructed.
Prior to issuance of building permits for Lots 38, 39, 54 and 55 in Phase 1, the bicycle/
pedestrian path in Tract B shall be constructed. Prior to issuance of building permits for
Lots 24 and 25 in Phase 1 and Lots 8 and 9 of Phase 2, the bicycle/ pedestrian paths in
Tract A shall be constructed. Prior to issuance of building permits for Lots 125, 126, 144,
and 144 in Phase 3, the bicycle/ pedestrian paths in Tract D shall be constructed. Prior
to issuance of building permits for Lots 107 and 108 in Phase 3 and Lots 89 and 90 in
Phase 4, the bicycle/ pedestrian paths in Tract C shall be constructed. Prior to issuance
of building permits for Lots 173 through 181 in Phase 3 and 182 through 184 in Phase 4,
the bicycle/ pedestrian paths in Tracts E and F shall be constructed.
10. Prior to the issuance of the first certificate of occupancy for the
Phase(s) in which White Willow Drive and Red Willow Drive should have been constructed,
the Developer shall provide cash in the amount of 100% of the estimated cost of the local
street improvements (including curb, gutter and sidewalk) for the portions of each said
street that is not constructed as shown on the final development plan documents. Such
payment shall be in lieu of the Developer's obligation to construct such streets and shall
fully satisfy all of the Developer's obligation in connection therewith.
11. The Developer shall be required to construct Prairie Hill Drive adjacent
to the Property. The property adjacent to the northern boundary of Prairie Hill Drive is
described on Exhibit'D', attached hereto and incorporated herein by reference ("Adjacent
Property'). The Developer shall be entitled to enter into a reimbursement agreement with
the City affecting the Adjacent Property, in accordance with the provisions of Section
3.3.2(F) of the Land Use Code.
E. 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
10
maintenance, operation, repair or reconstruction shall be conducted in such a manner that
such public property shall not be damaged, or if damaged, shall, upon completion of any
such project, be repaired in accordance with then existing City standards. The City shall
not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby
agrees to indemnify and hold harmless the City against any damages or injuries sustained
in the development as the result of groundwater seepage or flooding, structural damage
or other damage resulting from failure of any such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold
harmless the City against any damages or injuries to water rights caused, directly or
indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
Developer could apply, and the Developer shall have the right to defend any lawsuit based
on such claim and to settle any such claim provided the Developer must obtain a complete
discharge of all City liability through such settlement. Failure of the City to give notice of
any such claim to the Developer within ninety (90) days after the City first receives notice
of such claim under the Colorado Governmental Immunity Act for the same, shall cause
the forgoing indemnities and hold harmless agreements by the Developer to not apply to
such claim and such failure shall constitute a release of the foregoing indemnities and hold
harmless agreements as to such claim.
F. Hazards and Emergency Access
No combustible material will be allowed on the site until a permanent
water system is installed by the Developer and approved by the City.
G. Development Construction Permit
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.
H. Maintenance and Repair Guarantees
The Developer agrees to provide a two-year maintenance guarantee and
a five-year repair guarantee covering all errors or omissions in the design and/or
construction of the public improvements required for this Development, which guarantees
11
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 without the City's written consent, 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.
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
12
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.
I. In the event the Developer transfers title to the Property or assigns its
interests in the purchase agreement to a third parry and is thereby divested of all equitable
and legal interest in the Property, the Developer shall be released from liability under this
Agreement with respect to any breach of the terms and conditions of this Agreement
occurring after the date of any such transfer of interest. In such event, the succeeding
property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material
element hereof. In the event that either party shall fail to perform according to the terms
of this Agreement, such party may be declared in default. In the event that a party has
been declared in default hereof, such defaulting party shall be given written notice
specifying such default and shall be allowed a period of ten (10) days within which to cure
said default. In the event the default remains uncorrected, the party declaring default may
13
elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as
continuing and require specific performance or; (c) avail itself of any other remedy at law
or equity.
K. In the event of the default of any of the provisions hereof by either party
which shall require the party not in default to commence legal or equitable action against
said defaulting party, the defaulting party shall be liable to the non -defaulting party for the
non -defaulting party's reasonable attorney's fees and costs incurred by reason of the
default. Nothing herein shall be construed to prevent or interfere with the City's rights and
remedies specified in Paragraph III.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement shall
not be construed as or deemed to be an agreement for the benefit of any third party or
parties, and no third party or parties shall have any right of action hereunder for any cause
whatsoever.
M. It is expressly understood and agreed by and between the parties hereto that
this Agreement shall be governed by and its terms construed under the laws of the State
of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set forth
below; and such notice or other communication shall be deemed given when so hand -
delivered or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
If to the Developer: TM One, LLC
Attn: Michael F. Sollenberger
Tom Dougherty
P.O. Box 272469
Fort Collins, CO 80527
With a copy to: Lucia Liley
March & Liley, P.C.
110 East Oak Street
14
Fort Collins, CO 80524
If to the Owner: David Kunz, Assistant Vice President
LSPI Exchange Corporation
20 S. Santa Cruz Avenue, Suite 300
Los Gatos, CA 95030
Terry J. Keating
3219 Nelson Lane
Fort Collins, CO 80525
With a copy to: Arthur E. March, JR
March & Liley, P.C.
110 East Oak Street
Fort Collins, CO 80524
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.
P. The Owner is made a party to this Agreement solely for the purpose of
subjecting the Property to the covenants contained in this Agreement. The City and the
Developer expressly acknowledge and agree that the Owner shall not be liable for any
obligations of the Developer under this Agreement, unless the Owner were to exercise any
of the rights of the Developer in which event the obligations of the Developer shall become
those of the Owner.
THE CITY OF FORT COLLINS, COLORADO,
a Municipal) Corporation J
15
I;City Clerk
u �-
APPROVED AS TO CONTENT:
r; n
City Enginee
APPROVED AS TO FORM:
E1e13uty City Attorney
City Manager
DEVELOPER:
TM One, LLC, a Colorado Limited Liability Company
By: Sollenberger Development Corporation, a Color do
Cowration, as Member
in
F. Sollenberqgr-,'P"r&silent
And By: Tom Dougherty Construction; Inc., a Colorado
Corporation, as Member A_,
BY: - -- -
Thomas NI oughbqy, Pre'
ATTEST:
By:
Carole L. Dougherty, Secretgry
OWNER:
LSP tE�ange r ration, a Nevada Corporation
16
David fftanz, Assists Vice President
ATTEST: Kai �ferA-
sy:
Seca ry
Roger Nosk r, 0 in
Terry J. Kebting, his
Shirley NoskeK ar0ni
Terry J. Keeting, her
J.J. Her
Terry J.
17
Terry J. Keating, a.k.a.
J. Keating, a.k.a.
J. Keating, a.k.a.
EXHIBIT "B"
Not Applicable
IBl
EXHIBIT "C"
Refer to the Final Plat for this Development
20
General Conditions
A. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement, "development
activities" shall include, but not be limited to, the following: (1) the actual construction of
improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or
appearance of the Property caused by, or on behalf of, the Developer with the intent to
construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and
facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on
the approved utility plans and in full compliance with the standards and specifications of
the City on file in the office of the City Engineer at the time of approval of the utility plans
relating to the specific utility, 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 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.
2
.P;:
G
s
x
W
g
p�sAa.ya.a.Ss�.Q$Bsa$a. gs.sas aqo=�aaas.��RRn-a. ff$2$a.-ry7 se s,a SsEn As. $s
�S�ufaIIk325��`�rY
�$n�e.asa.a$ass$^ssea.aNsp�as.ssaaaaez�aasas
F
gp 4
kwKK gw dh
Iq
{Ci¢KKKM{OHRKRNw � .t Si xx $Y Uw Nw..
R (���u�K1�rl�NIVT'1r`!l`INNNNx �� Tr33NWV�tlWI'Oi4�'�4s�
sosxa.aaeRs.s-$a„ R,gB.s�a�aos.a.ss�s ssss.s.
Ra
aa:�asssasaaas�sssss-xaag$as.x.a.sa8 as�as.
„Fx
Z ZZ2 �N wLL
U Gu
yy ww _z _yayy tt�� KK FF C
py���00Gi��j�C�p��N��g tl'zFo�Uu>' �w
N
z
U
F. Street improvements shall not be installed until all utility lines to be placed
therein have been completely installed, including all individual lot service lines leading in
and from the main to the property line.
G. The installation of all utilities shown on the final development plan documents
shall be inspected by the Engineering Department of the City and shall be subject to such
department's approval. The Developer agrees to correct any deficiencies in such
installations in order to meet the requirements of the plans and/or specifications applicable
to such installation. In case of conflict, the final development plan documents shall
supersede the standard specifications.
H. All storm drainage facilities shall be so designed and constructed by the
Developer as to protect downstream and adjacent properties against injury and to
adequately serve the Property (and other lands as may be required, if any). The Developer
shall meet or exceed the minimum requirements for storm drainage facilities as have been
established by the City in its Drainage Master Plans and Design Criteria. The Developer,
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, 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
K,
estimated cost of the improvements on the attached Exhibit "B," which improvements, if
applicable, shall include right-of-way, design and construction costs. See Section II.C,
Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions.
J. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City of Fort Collins.
K. The Developer specifically represents that to the best of its knowledge all
portions of the Property dedicated (both in fee simple and as easements) to the City
associated with this Development are in compliance with all environmental protection and
anti -pollution laws, rules, regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40
C.F.R., Part 261, and that such portions of the Property as are dedicated to the City
pursuant to this Development, are in compliance with all such requirements pertaining to
the disposal or existence in or on such dedicated property of any hazardous substances,
pollutants or contaminants, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer, 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 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 clairn and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
C!
II. Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements associated with
Phase 1 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 16 building permits in
Phase 1 of this Development. Phase 1 improvements shall include the construction of the
two detention ponds serving this Development as well as the off -site storm sewer from
Fossil Creek Circle to Trilby Road. Phase 1 shall be the first phase of construction to be
constructed and certified in this Development. All on -site drainage improvements
associated with Phase 2 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 4 building permits in
Phase 2 of this Development. All on -site 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 20 building permits in Phase 3 of this Development. All
on -site 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
5 building permits in Phase 4 of this Development. Completion of improvements shall
include the certification by a professional engineer licensed in Colorado that the drainage
facilities which serve this Development have been constructed in conformance with said
final development plan documents. Said certification shall be submitted to the City at least
two weeks prior to the date of issuance of additional building permits in each phase of the
Development.
2. Unless accepted by the City for maintenance, the Developer shall be
responsible for maintaining the structural integrity and operational functions of all drainage
facilities throughout the build -out of this Development. If at any time following certification
(as required pursuant to paragraph one (1) above) of said drainage facilities and during the
construction of structures and /or lots within this Development the City deems that said
drainage facilities no longer comply with the approved plans, the Developer shall bring
such facilities back up to the standards and specifications as shown on the approved
plans. Failure to maintain the structural integrity and operational function of said drainage
61
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 shall 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 $52,493.00 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
I II.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. It is important that all lots 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 building on all lots:
Prior to the issuance of a certificate of occupancy for any lot the Developer shall
provide the City with certification that the 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. Said certification shall be completed by a Colorado
licensed professional engineer and shall be submitted to the City at least two weeks
prior to the date of issuance of the desired certificate of occupancy.
5. The Developer shall obtain the City's prior approval of any changes
from the approved final development plan documents in grade elevations and/or storm
drainage facility configuration that occur as a result of the construction of houses and/or
development of lots, whether by the Developer or other parties. The City reserves the right
to withhold the issuance of building permits and certificates of occupancy for this
Development until the City has approved such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
A
6. 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. The Developer agrees to provide a two year maintenance guarantee
and a five year repair guarantee covering all errors and omissions in the design and
construction of the installed storm drainage facilities. The two and five year periods shall
commence after acceptance of these facilities by the City. Notwithstanding the foregoing
statement, upon certification and acceptance of the off -site storm sewer serving this
development the City shall be responsible for the maintenance of that storm sewer from
the detention pond adjacent to Fossil Creek Circle to the outfall point downstream of Trilby
Road and the Developer shall thereafter have no maintenance or repair liability for the
same.
7. The Developer shall limit the construction of the off -site storm and
sanitary sewer lines to the limits of construction as shown on the approved final
development plan documents. The contractor shall re -seed and restore all areas disturbed
during construction operations of the off -site storm and sanitary lines per the approved final
development plan documents as soon as possible following construction of these lines.
8. The Developer shall be responsible for the maintenance of the two
irrigation laterals and any associated siphons crossing this property. The Developer shall
obtain the signatures of the irrigation lateral owners on the approved final development
plan documents.
D. Streets
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Timberline Road
for those portions of said street abutting the Property as shown on the approved final
development plan documents. Reimbursement for Timberline Road shall be for oversizing
the street sidewalk from local (access) standards to arterial street 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
VA
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) 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 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. Prior to the issuance of more than 37 building permits for the
development, the Developer agrees to construct the right turn lane adjacent to Timberline
Road as shown on the final development plan documents. Improvements of the
aforementioned street shall include all necessary tapers and transitions necessary to
connect the proposed roadway improvements to the existing roadway in a manner which
is safe for public use. Said improvements shall include any related utility and storm
drainage improvements and shall be in accordance with the approved final development
plan documents and the Code of the City.
5. It is the obligation of the Developer to improve Timberline Road from
the development's southern property line to its northern property line. It is agreed that said
improvements are not considered off -site improvements and accordingly, construction of
said improvements shall be completed and accepted by the City prior to the issuance of
the first certificate of occupancy. Said improvements shall be for one half the arterial street
width including curb, gutter, and sidewalk. In lieu of installing the aforesaid street
improvements, the Developer shall have the option of providing a guarantee in the form
of a development bond, performance bond, cash, an irrevocable non -expiring letter of
credit, or other form of financial security acceptable to the City. Said guarantee, which
shall be deposited with the City prior to the issuance of the Development Construction
Permit shall be in the amount of 100% of the estimated cost of such improvements, and
such guarantee shall be released upon completion of the above described improvements
and their acceptance by the City in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the
Land Use Code of the City. In addition, prior to the issuance of the first certificate of
occupancy, the Developer shall deposit with the City cash in the amount of 100% of the
estimated cost of the local street improvements including curb, gutter and sidewalk. At the
time of said escrow, the City shall release the aforementioned guarantee and responsibility
for maintenance and repair of said improvements that were not constructed in accordance
with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code of the City.
6. In accordance with Land Use Code, Section 3.3.2(F)(1), the
Developer is responsible for providing adequate access to the city's Improved Arterial
Street Network. Said offsite responsibility shall include at a minimum a thirty -six -foot -wide
paved cross section on a base that is adequate to accommodate the ultimate design of the
street. Accordingly, the Developer is responsible to design and construct Timberline Road
from the development's north property line to the improved section of Timberline Road (at
the Mail Creek Ditch). However, since the Timberline Road Bike Lanes project approved
September 29, 2000 is providing a design for the interim improvement to Timberline Road,
the Developer, in Ilieu of constructing and designing of the same, shall have the option of
escrowing cash, an irrevocable non -expiring letter of credit, development bond,
performance bond or other form of financial security acceptable to the City. Said escrow,
which shall be deposited with the City prior to the issuance of the Development
Construction Permit shall be in the amount of 125% of the estimated cost of such
improvements. Notwithstanding the foregoing, it is agreed that a portion of said escrow
shall be in the form of a cash payment from the Developer to the City for the Developer's
share of the Timberline Road Bike Lanes project prior to the issuance of the Development
Construction Permit or June 1, 2001, which ever shall first occur. Said cash payment for
the Timberline Road Bike Lanes project shall be $50,000.00 (see exhibit 'D'). The
remaining portion of said escrow shall be retained by the City for a period of three (3) years
from the date of this agreement or until such time that an adequate base section for the
vehicle path is provided, whichever shall first occur. If the improvements are not completed
by the Developer or another party within said three (3) year period, the City will utilize said
escrow to complete the Timberline Road improvements. In either event, the interim/ offsite
design for Timberline Road for the development is established with Timberline Road Bike
Lanes project design. In addition, if said improvements are provided by an another party
prior to the end of said three (3) year period, then the City will release said escrow and
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.
7. 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.
8. The Developer agrees to maintain the expanded right-of-way for
Prairie Hill Drive from the flowline to the northern property line of the development until
101