HomeMy WebLinkAboutPEAK VIEW - Filed DA-DEVELOPMENT AGREEMENT - 2004-06-21DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this I,'-)"" day of1,
2002, by and between the CITY OF FORT COLLINS, COLORADO, a Ma
Corporation, hereinafter referred to as the "City" and BLS Development LLC, a Colorado
limited liability company, hereinafter referred to as the "Developer."
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property"
or "Development") and legally described as follows, to wit:
Peak View Subdivision, located in the Southwest ''Y4 of Section 16, Township 7
North, Range 69 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
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seep, runoff, or be washed into a body of water, wetland or drainage way.
G. 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
proximately caused by the City's negligent operation or maintenance of its storm drainage
facilities in the Development. However, nothing herein shall be deemed a waiver by the
City of its immunities, defenses, and limitations to liability under the Colorado
Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any other law.
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.
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.
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H. 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.
I. Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain a Footing and Foundation permit for all buildings
in Block 1 (multifamily portion) upon the installation of all underground water, sanitary
sewer, and storm sewer facilities, and an emergency accessway for the Phase in which the
permit is being requested. Facilities shall include but not be limited to all mains, lines,
services, fire hydrants and appurtenances for the site as shown on the Final Development
Plan Documents.
J. 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.
K. 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
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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 (J) and (K) 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.
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
IM
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.
I. In the event the Developer transfers title to the Property and is thereby
divested of all equitable and legal interest in the Property, the Developer shall be released
from liability under this Agreement with respect to any breach of the terms and conditions
of this Agreement occurring after the date of any such transfer of interest. In such event,
the succeeding property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material
element hereof. In the event that either party shall fail to perform according to the terms
of this Agreement, such party may be declared in default. In the event that a party has
been declared in default hereof, such defaulting party shall be given written notice
specifying such default and shall be allowed a period of ten (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: Sn
With a • • • if
• •
R.
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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.
0. 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.
AT
City Clerk
APPROVED AS TO CONTENT:
O, NIC00-A--4F-
City Enginee
APPROVES TO FORM:
4Y/�ti� --
eputy City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By:
City Mafiager
DEVELOPER:
BLS Development LLC, a Colorado limited liability
company
By�
Vicki L. Wagner, General Partr/ Manager
15
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.
16
EXHIBIT "B"
Not Applicable
17
EXHIBIT "C"
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of
two (2) years from the date of completion and first acceptance by the City
of the public improvements warranted hereunder, the full and complete
maintenance and repair of the public improvements constructed for this
Development. This warranty and guarantee is made in accordance with
the City of Fort Collins Land Use Code and/or the Transitional Land Use
Regulations, as applicable. This guarantee applies to the streets and all
other appurtenant structures and amenities lying within the rights -of -way,
easements and other public properties, including, without limitation, all
curbing, sidewalks, bike paths, drainage pipes, culverts, catch basins,
drainage ditches and landscaping. Any maintenance and/or repair
required on utilities shall be coordinated with the owning utility company or
city department.
The Developer shall maintain said public improvements in a manner that
will assure compliance on a consistent basis with all construction
standards, safety requirements and environmental protection
requirements of the City. The Developer shall also correct and repair, or
cause to be corrected and repaired, all damages to said public
improvements resulting from development -related or building -related
activities. In the event the Developer fails to correct any damages within
thirty (30) days after written notice thereof, then said damages may be
corrected by the City and all costs and charges billed to and paid by the
Developer. The City shall also have any other remedies available to it as
authorized by this Agreement. Any damages which occurred prior to the
end of said two (2) year period and which are unrepaired at the
termination of said period shall remain the responsibility of the Developer.
REPAIR GUARANTEE:
The Developer agrees to hold the City of Fort Collins, Colorado, harmless
for a five (5) year period, commencing upon the date of completion and
acceptance by the City of the public improvements constructed for this
Development, from any and all claims, damages, or demands arising on
account of the design and construction of public improvements of the
property shown on the approved plans and documents for this
Development; and the owner furthermore commits to make necessary
repairs to said public improvements, to include, without limitation, the
roads, streets, fills, embankments, ditches, cross pans, sub -drains,
culverts, walls and bridges within the right-of-way easements and other
m
public properties, resulting from failures caused by design and/or
construction defects. This agreement to hold the City harmless includes
defects in materials and workmanship, as well as defects caused by or
consisting of settling trenches, fills or excavations.
Further, the Developer agrees that the City shall not be liable to the Developer during the
warranty period, for any claim of damages resulting from negligence in exercising
engineering techniques and due caution in the construction of cross drains, drives,
structures or buildings, the changing of courses of streams and rivers, flooding from natural
creeks and rivers, and any other matter whatsoever on private property. Any and all
monetary liability occurring under this paragraph shall be the liability of the Developer.
The obligations of the Developer pursuant to the "maintenance guarantee" and 'repair
guarantee" provisions set forth above may not be assigned or transferred to any other
person or entity unless the warranted improvements are completed by, and a letter of
acceptance of the warranted improvements is received from the City by, such other person
or entity.
iF]
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
r performs
m the date of
construction pursuant hereto after the passage of three (3) years o
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, 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 oExhibit "A." If the City Engineer has determined that any water lines,
sanitary sewer lines, storm drainage facilities and/or streets are required to provide sery
n ice
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
2
PEAK VIEW SUBDIVISION
AMENDMENT AGREEMENT NO. 1
k�n
THIS AMENDMENT AGREEMENT, made and entered into this )day of
2004, by and between the CITY OF FORT COLLINS, COLORADO, a
Munic' Cporation, hereinafter referred to as the °City"; and BLS Development LLC, a
Colorado limited liability company, hereinafter referred to as the "Developer."
WITNESSETH;
WHEREAS, the City entered into a Development Agreement with BLS Development
LLC, a Colorado limited liability company (as "Developer") on April 15, 2002, the terms of
which govern the development activities of the Developer pertaining to that certain real
property situated in the County of Larimer, State of Colorado, (hereafter referred to as the
"Property") and legally described as follows, to wit:
Peak View Subdivision, located in the Southwest 1/4 of Section 16, Township
7 North, Range 69 West of the 6th P.M., City of Fort Collins, County of
Larimer, State of Colorado.
WHEREAS, the parties presently desire to modify the Development Agreement
because the on -site and off -site storm drainage improvements cannot be completed at this
time due to the fact that the portion of the detention pond retaining walls adjacent to the
Pleasant Valley and Lake Canal (PV&L) cannot safely be constructed while there is
irrigation water in the canal without creating a safety hazard.
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, the parties hereto agree to amend the terms and conditions of the
Development Agreement as follows:
A. Section II (Special Conditions) Subsection C Paragraph 1 shall be replaced with the
following paragraph to read as follows:
1. All on -site and off -site storm drainage improvements (except the
detention pond retaining walls adjacent to the PV&L Canal) associated with this
Development, as shown on the Final Development Plan Documents, shall be completed by
the Developer in accordance with said documents prior to the issuance of more than 39 full
building permits for dwelling units in this Development and an additional six footing and
foundation (F&F) permits for dwelling units. (This will allow the construction of an
additional three dwelling unit building and will allow two more three dwelling unit buildings
to begin construction with F&F permits. This also corrects for one dwelling unit already
having been mistakenly allowed over the original 35.) All remaining building permits for
dwelling units will be released when the retaining wall adjacent to the PV& L Canal is
constructed and certified. Completion of improvements shall include the certification by a
professional engineer licensed in Colorado that the drainage facilities which serve the
Development have been constructed in conformance with said Final Development Plan
Documents. This certification shall be submitted to the City at least two weeks prior to the
date of issuance of additional building permits.
B. All other terms and conditions of the Development Agreement shall remain unchanged
and in full force and effect, except as expressly amended in this Amendment
Agreement No. 1.
IN WITNESS WHEREOF, the parties hereto have executed this agreement the
day and year first above written.
UA
CITY CLERK
-\-
APPROVED AS''Tpp CONTENT:
Director of E gineering
APPRO D,AS -�Q FORM:
Deputy City Attorney
THE CITY OF FORT COLLINS,�COLORADO,
a Municipal Corporation
By:
ta,mCity (Manager
DEVELOPER:
BLS Development LLC, a Colorado limited liability
company \\ \
By (���c
Vicki L. Wagner, Manager
2
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
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 notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
II. Special Conditions
A. Water Lines
Not Applicable
0
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements associated with
this Development, as shown on the Final Development Plan Documents, shall be
completed by the Developer in accordance with said documents prior to the issuance of
more than 35 building permits in this Development. Completion of improvements shall
include the certification by a professional engineer licensed in Colorado that the drainage
facilities which serve the Development have been constructed in conformance with said
Final Development Plan Documents. This certification shall be submitted to the City at
least two weeks prior to the date of issuance of additional building permits.
2. The Developer shall be responsible for maintaining the structural
integrity and operational functions of all drainage facilities throughout the build -out of this
Development. If at any time following certification (as required pursuant to paragraph one
(1) above) of said drainage facilities and during the construction of structures and /or lots
within this Development the City reasonably decides that said drainage facilities no longer
comply with the approved plans, the City shall give written notice to the Developer of all
items which do not comply with the approved plans. Unless the Developer successfully
appeals the decision of non-compliance, it 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 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 $ 11,250.00 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
erosion control provisions of the approved Final Development Plan Documents or the
erosion control provisions of the Criteria after receiving notice of the same or an
emergency situation exists which would reasonably require immediate mitigation
measures, then, in either event, and notwithstanding any provisions contained in paragraph
III(J) to the contrary, the City may enter upon the Property for the purpose of making such
improvements and undertaking such activities as may be necessary to ensure that the
provisions of said plans and the Criteria are properly enforced. The City may apply such
portion of the security deposit(s) as may be necessary to pay all costs incurred by the City
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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. It is important that all buildings and lots be graded to drain in the
configuration shown on the Final Development Plan Documents. For this reason the
following additional requirements shall be followed for all building and all tots:
a. Prior to the issuance of a certificate of occupancy for any lot or
building the Developer shall provide the City with certification that the lot and or the building
has been graded correctly. This grading certification shall demonstrate that the lot or
building Finish Floor elevation has been built in accordance with the elevation specified on
the Final Development Plan Documents. The certification shall also show that the minimum
floor elevation or minimum opening elevation for any building constructed is in compliance
with the minimum elevation as required on the Final Development Plan Documents. The
certification shall demonstrate as well that any minor swales adjacent to the building or on
the lot have been graded correctly and in accordance with the grades shown on the Final
Development Plan Documents. The certification shall also show that the elevations of all
corners of the lot are in accordance with the elevations shown on the 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 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.
6. The drainage design for this Development provides for the evacuation
of storm drainage runoff in a reasonable amount of time out of the detention facilities and
into the drainage outfall system. If, during or within 2 years after construction and
acceptance of the detention facilities associated with this Development, surfacing or
standing water conditions persist in these facilities; and if such conditions are beyond what
can be expected in accordance with the approved stormwater design, the Developer shall
promptly upon such discovery, install an adequate dewatering system in the detention
facilities. Such a system shall be reviewed and approved by the City prior to installation.
7. The Developer shall limit the construction of the off -site storm
drainage improvement lines to the "limits of development" as delineated on the Final
Development Plan Documents. The Developer shall restore all areas that are disturbed
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during construction of the off -site storm drainage improvements in accordance with the
Final Development Plan Documents promptly following the conclusion of the construction
of the off -site drainage improvements. The Developer shall ensure that no negative impact
occurs to the adjoining properties to the Development during the completion of construction
activities associated with this Development. No grading shall be done outside of the
approved areas as shown on the approved Final Development Plan Documents for this
Development.
8. The Developer shall obtain a crossing permit to allow construction of
drainage facilities across the Pleasant Valley and Lake Canal (the "Canal") prior to the
recordation of the subdivision plat for the Property. Such permit shall include the
Developer's agreement to indemnify and hold harmless the City from any claims, damages,
injury or cause of action, in relation to the normal operation and use of the drainage
facilities adjacent to the Canal. The Developer shall also guarantee that any disruption
to the Canal operations due to erosion and sedimentation problems within the Canal right-
of-way or easement caused by this Development shall be rectified within 48 hours following
written or verbal notice given by the City or the Pleasant Valley and Lake Canal Company
to the Developer of the existence of such problems.
9. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed in conjunction with this Development outside of the
public rights -of -way.
10. The City staff has agreed to grant to the Developer, subject to City
Council approval and subject to the execution of this Agreement and recordation of a
notice of the same, a non-exclusive easement (the `City Easement') for the construction
and ongoing maintenance and repair of certain storm drainage improvements shown on
the Final Development Plan Documents for the Development in order to provide storm
drainage outfall and detention for the Development.
Until such time as the City Easement is obtained by the Developer or an alternative outfall
system is designed, approved and any easements needed for such a system are obtained,
no construction work other than the box culvert and canal reconstruction work on the
Pleasant Valley and Lake Canal shall be done.
No work shall occur within the boundaries of the City owned property until such time as the
City Easement has been obtained by the Developer. Any work, including work on the
development site. that is done prior to obtaining the City Easement is at the Developer's
risk. The Developer agrees to defend, indemnify and hold harmless the City against any
claims that may be brought against the City, and further agrees to pay all the City's
attorney fees and litigation costs, arising as a result of the premature commencement of
such work.
D. Streets.
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1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Elizabeth Street
for those portions of said street abutting the Property as shown on the approved Final
Development Plan Documents. Reimbursement for Elizabeth Street shall be for oversizing
the street from local (access) standards to minor arterial standards. The City shall make
reimbursement to the Developer for the aforesaid oversized street improvements in
accordance with Section 24-112 of the Code of the City. The Developer agrees and
understands that the City shall have no obligation to make reimbursement payments for
street oversizing unless funds for such payments shall first have been budgeted and
appropriated from the Street Oversizing Fund by the City Council; and the Developer
further understands that to the extent that funds are not available for such reimbursement,
the City may not, in the absence of the Developer's agreement, require the construction,
at the Developer's expense, of any oversized portion of streets not reasonably necessary
to offset the traffic impacts of the Development. The Developer does hereby agree to
construct the aforesaid oversized street improvements with the understanding that the
Developer may not be fully reimbursed by the City for the cost of such construction. The
Developer further agrees to accept payment in accordance with Section 24-112 (d) of the
Code of the City as full and final settlement and complete accord and satisfaction of all
obligations of the City to make reimbursements to the Developer for street oversizing
expenses. It is anticipated by the City that the City's reimbursement, in accordance with
Section 24-112 (d), would not be less than fifty percent (50%) of the Developer's actual
expenses incurred and will be calculated in accordance with the formula as set forth in
Section 24-112 (d).
2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II(D) are "City improvements" (as
defined below) and, as such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the sum of Thirty Thousand
Dollars ($30,000), the contract for the construction of the same must be submitted to a
competitive bidding process resulting in an award to the lowest responsible bidder; and
evidence must be submitted to the City prior to the commencement of the work showing
that the award was given to the lowest responsible bidder. If the cost of such
improvements exceeds Fifty Thousand Dollars ($50,000), the contract for the construction
of the improvements must be insured by a performance bond or other equivalent security.
For purposes of this paragraph, the term "City improvements" shall mean either (1) 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. Following completion of all public infrastructure improvements, the
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Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
5. The Developer shall be responsible for the inspection and rating of the
box culvert crossing Andrews Peak Drive for the Pleasant Valley and Lake Canal 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 culvert.
This report must be submitted to and accepted by the City as demonstration 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 structure.
E. Parks
1. Tract E of this development shall only be accepted by the City (for park
purposes) for ownership and maintenance once all work is completed and accepted by the
City, including but not limited to retaining walls, irrigation system and turf.
F. Natural Resources
1. The Developer and the City agree 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 by Article III, Section 20-41 of the Code of the City of Fort Collins. The Developer
shall be responsible for weed control related to this development at all times.
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 two 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.
2. Fueling facilities shall be located at least one hundred (100) feet from
any significant tree, body of water, wetland, or 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,
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