HomeMy WebLinkAboutEAST RIDGE - Filed DA-DEVELOPMENT AGREEMENT - 2009-08-07RECEPTION#: 20090052392, 07/29/2009 at
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Scott Doyle, Larimer County, CO
DEVELOPMENT AGREEMENT
THIS D VELOPMENT AGREEMENT (the "Agreement"), is made and entered
into this day of July, 2009, by and between the CITY OF FORT COLLINS,
COLORADO, a Municipal Corporation, hereinafter referred to as the "City'; and East
Ridge of Fort Collins, LLC, a Colorado registered limited liability company, hereinafter
referred to as the "Developer" and East Ridge of Fort Collins, LLC, a Colorado
registered limited liability company and Whitham Farms, LLC, a Colorado limited liability
company, a Colorado limited liability company, hereinafter 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:
East Ridge, located in the east half of Section 8 and the northwest quarter of
section 9, Township 7 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 development of the Property.
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City Clerk's Office, Fort Collins, Coioraao
sidewalk for the remaining portion of the street for which is not to be constructed at this
time, and street trees as required by the Land Use Code. The estimate shall be
prepared by the Developer and approved by the City, plus an additional 25% of the
estimate to cover any contingencies and unexpected costs. Said amount shall be
deposited with the City prior to the issuance of any building permit for this Development.
The improvements to Timberline Road and International Boulevard shall be constructed
at such time that the City deems the improvements to be necessary or at such time as
improvements are made to adjacent portions of Timberline Road and International
Boulevard, whichever shall first occur.
Except as provided in the following paragraph, any interest earned by the City as a
result of said deposit shall be the property of the City to cover administration and
inflation in order to better assist the City in making reimbursement to the party who
constructs said improvements.
If the Developer is the party that constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the
Developer the amount deposited plus any interest earned by the City as a result of said
deposit, less 3% of the total amount remaining, (which includes said amount deposited
plus any interest earned by the City) to be kept by the City to cover its costs for
administration of said deposits.
4. In accordance with Section 24-95 of the City Code, the Developer
is responsible for constructing Dassault Street, Quinby Street and Delozier Road within
the right-of-way dedicated as a part of this Development. In accordance with the Final
Development Plan Documents the construction of Dassault Street will terminate at
station 16+50, Quinby Street will terminate at station 16+38.90 and Delozier Road will
terminate at station 16+68.89. Since the Developer is responsible for the construction
of the unbuilt portions of Dassault Street, Quinby Street and Delozier Road to the
property line, the Developer agrees to provide an escrow of funds to cover the cost of
the construction of the pavement, curb, gutter, sidewalk and landscaping that is not
constructed at the time of development of the Property and all costs associated with, but
not limited to, the removal of the berms and temporary barricades as shown on the
Development Plans. The escrow of funds shall be deposited with the City in the form of
cash sufficient to guarantee completion of the construction. The amount of said funds
shall be the estimated cost to construct said improvements, which estimate shall be
prepared by the Developer and approved by the City, plus an additional 25% of the
estimate to cover any contingencies and unexpected costs. Said amount `shall be
deposited with the City prior to the issuance of any building permit in Phase 2 for this
Development.
Except as provided in the following paragraph, any interest earned by the City as a
result of said deposit shall be the property of the City to cover administration and
inflation in order to better assist the City in making reimbursement to the party that
constructs said improvements.
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If the Developer is the party that constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the
Developer the amount deposited plus any interest earned by the City as a result of said
deposit, less 3% of the total amount remaining, (which includes said amount deposited
plus the interest earned by the City) to be kept by the City to cover its costs for
administration of said deposits.
5. No vehicular access will be allowed off Comet Street for lot 1 of
Block 16 and/or lot 29 of Block 18 in Phase I unless a temporary turnaround and
temporary turnaround easement is provided on Comet Street or until Phase 2 street
improvements are constructed.
6. No vehicular access will be allowed off Reliant Street for lots 27 of
Block 18 or lot 29 of Block 19 in Phase I unless a temporary turnaround and temporary
turnaround easement is provided on Reliant Street or until Phase 2 street improvements
are constructed.
7. No vehicular access will be allowed off Crusader Street for lot 27 of
Block 19 unless a temporary turnaround and temporary turnaround easement is
provided on Crusader Street or until Phase 2 street improvements are constructed.
8. Construction of Phases 1 and 2 of this Development must be done
in sequential order. No building permits will be issued within Phase 2 until all streets and
utilities within Phase 1 have been completed in accordance with Section I.C. of this
agreement.
9. No dwelling with alley access at the rear of the lot may take
driveway access off the public street in front of such dwelling.
10. No building permit will be issued for this Development until all
offsite water and sewer improvements are constructed and accepted by East Larimer
County Water District and Boxelder Sanitation District and proof of acceptance is
submitted to the City of Engineering Department.
11. The Anheuser-Busch force -main and private easement shown
within the public right-of-way of Delozier Road must be vacated and the line relocated
with Phase 2. The line shall be removed or abandoned in accordance with City
standards and the easement vacated prior to the construction of Delozier Road. A copy
of the documents recorded at the County for the vacation of the existing easement and
the conveyance of the proposed easement shall be provided to the City Engineering
Department as proof that the vacation and conveyance of the easement has occurred.
No application for the issuance of any Development Construction Permit regarding
Phase 1 or Phase 2 shall be accepted nor shall any Development Construction Permit
be issued regarding Phase 1 or Phase 2 until the conveyance of the new easement has
occurred. No application for the issuance of any Development Construction Permit
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regarding Phase 2 shall be accepted nor shall any Development Construction Permit be
issued until the vacation of the existing easement has occurred and the Anheuser-
Busch force -main has been moved into the newly acquired easement, except that a
Development Construction Permit may be applied for by the Developer and issued by
the City for the singular purpose of relocating the Anheuser-Busch force -main. Any
right to "undertake and complete" the development as a vested right is expressly subject
to all of the provisions of this Development Agreement, and particularly, but without
limitation, this paragraph.
12. In accordance with Section 24-95 of the City Code, the Developer
is responsible for the construction of public sidewalks and installation of street trees
along all street frontages within or adjacent to the site prior to the issuance of any
building permit. Notwithstanding the foregoing, the Developer shall have the option to
postpone the construction of sidewalks and installation of the street trees along the
following Tracts until such time as they develop:
Tract A:
east side.
Tract C:
north, east and south sides
Tract F:
east and south sides.
Tract H:
north and east sides.
Tract I:
east and south sides.
Tract N and O: south side.
Tract Q: west, north and east sides
Tract V: north and east sides.
Tract W: east side.
13. Notwithstanding any provision herein to the contrary, the Developer
shall. be responsible for all costs for the initial installation of traffic signing and striping
for this Development, including both signing and striping related to the Developer's
internal street operations and the signing and striping of any adjacent or adjoining local,
collector or arterial streets that is made necessary because of the Development.
14. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
E. Natural Resources
1. The Developer shall ensure that all wetlands and uplands are
properly maintained for a three (3) year period following construction thereof to ensure
that the vegetation and hydrologic regime are fully established. The Developer shall
also be required to post a security deposit for the wetlands and associated uplands
equal to 65% of the construction costs prior to beginning construction to guarantee the
proper installation and maintenance of the wetlands and uplands landscape
improvements on the Final Development Plans and Documents and approved Wetland
Mitigation Plan for the Eastridge Project with the date of March 2005 (Exhibit "D"). The
escrow of funds shall be deposited with the City in the form of cash sufficient to
guarantee completion of the construction. The amount of said funds shall be the
estimated cost to construct said improvements, which estimate shall be prepared by the
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Developer and approved by the City. Said amount shall be deposited with the City prior
to the issuance of any Development Construction Permit for this Development.
Monitoring of the vegetation shall occur in June and September of the first growing
season and in late summer of the remaining growing seasons. The status and
effectiveness of the vegetation shall be evaluated and the results reported to the City of
Fort Collins Environmental Planner, Current Planning Department semi-annually for
review. If the wetlands and the uplands have been established in accordance with the
approved plans (Exhibits "D"), they shall be approved and accepted by the City. If the
wetlands and uplands have not been established in accordance with the approved plans
(Exhibits "D"), then the Developer shall provide the City with a written proposal of steps
and timing to bring the wetlands and uplands into conformance with the approved plans
(Exhibits "D"). If, after the agreed upon time as provided in the proposal, the Developer
fails to abide by the proposal, then 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 proposal are properly enforced. The city may apply
such portions of the security deposit as may necessary to pay all costs incurred by the
City in undertaking the administration, construction, and/or installation of the wetlands
and uplands landscape improvements required by the said plans (Exhibit "D").
2. The areas of the Development that are planned to be seeded,
including the wetland mitigation, shall be inspected jointly by the Developer and the City
at specified intervals for three (3) growing seasons or until determined by the City to be
well established in accordance with the coverage specifications of this paragraph,
whichever occurs first. Areas seeded in the Spring shall be inspected for required
coverage each immediately subsequent Autumn no later than October 1st. Areas
seeded at any other time shall be inspected each immediately subsequent Summer not
later than August 1st. The required coverage for the first inspection shall be ten (10)
viable live seedlings of the specified species per 1000 square centimeters
(approximately 1 square foot), of 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 inspection, there shall be
seventy-five percent (75%) foliage cover of the specified species planted measured
from five feet (5) directly overhead. No more than ten percent (10%) of the species
noted on the site may be weedy species as defined in Article III, Section 20-41 of the
Code of the City. The Developer shall be responsible for weed control at all times.
Determination of required coverage will be based on fixed transects each ten (10)
meters in length, randomly placed in representative portions of the seeded areas, with
plant species or bare ground/rock/litter being noted every ten (10) centimeters along
each transect. The Developer shall warrant all seeded areas for three (3) 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.
3. Fueling facilities shall be located at least one hundred (100) feet
from natural body of water, wetland, natural drainage way or manmade drainage way.
The fuel tanks and fueling area must be set in a containment area that will not allow a
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fuel spill to directly flow, seep, run off, or be washed into a body of water, wetland or
drainage way.
4. The Developer shall delineate the Development's property
boundary adjacent to all Limits of Development (L.O.D.) as defined by Article V, Section
5.1.2 of the Land Use Code, including boundaries around existing trees and wetlands
that are to be undisturbed, with orange construction fence prior to any type of
construction, including overlot grading. Said fence shall be inspected and final location
approved by the City of Fort Collins Environmental Planner, Current Planning
Department.
F. Soil Amendment
1. In all areas associated with this Development that are to be
landscaped or planted in accordance with the Final Development Plan Documents, and
do not require a building permit, the soils shall be loosened and amended by the
Developer in accordance with Section 3.8.21 of the Land Use Code prior to the
issuance of any certificate of occupancy in this Development. Completion of soil
amendments shall include certification by the Developer that the work has been
completed. This certification shall be submitted to the City at least two (2) weeks prior
to the date of issuance of any certificate of occupancy in this Development.
G. Parks
The City will "cost share", based on the proportionate need for irrigation
water, the expense of the raw water delivery system to the pond. The delivery system
shall be sized to accommodate the City's raw water needs. The Developer will supply
"reservoir water' for the detention/irrigation pond to maintain a working water surface
elevation of 4930.00. The City will supply its needed irrigation water into the pond for
irrigation of the park. The City will "cost share" the expense of the construction of the
detention/irrigation pond based upon the City's storage need of a 2 surface acre pond
with a depth of eight (8) feet. The City will coordinate the installation of its pump station
intake line and wet -well at the time of the construction of the detention/irrigation pond.
H. 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.
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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.
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 a
reasonable 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 100 foot diameter turnaround at the
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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.
3. A secondary point of access for emergency services has been
provided between Timberline Road and Vicot Way, west of Conquest Street. The
Developer agrees that while this second point of access meets Poudre Fire Authority's
distance requirements in the interim, it may conflict with the future realignment of the
Timberline and Vine intersection. Should this realignment occur prior to the
construction of Phase 2, the Developer shall provide another solution for the required
second point of access which meets the Poudre Fire Authority's requirements prior to
the issuance of either a Development Construction Permit or any building permit in
Phase 2, whichever occurs first.
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 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 phase 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, 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 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 "B." Security for the
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maintenance guarantee and the repair guarantee shall be as provided in Section
3.3.2(C) of the Land Use Code. 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 "B" 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.
III. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook"
and shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of
waste material, rubbish, or building materials caused by the Developer's operation, or
the activities of individual builders and/or subcontractors; shall remove such rubbish as
often as necessary, but no less than daily and; at the completion of the work, shall
remove all such waste materials, rubbish, tools, construction equipment, machinery,
and surplus materials from the public right-of-way. The Developer further agrees to
maintain the finished street surfaces so that they are free from dirt caused by the
Developer's operation or as a result of building activity. Any excessive accumulation of
dirt and/or construction materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until the problem is corrected
to the satisfaction of the City Engineer. If the Developer fails to adequately clean such
streets within two (2) days after receipt of written notice, the City may have the streets
cleaned at the Developer's expense and the Developer shall be responsible for prompt
payment of all such costs. The Developer also agrees to require all contractors within
the Development to keep the public right-of-way clean and free from accumulation of
dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing
operations when winds are of sufficient velocity to create blowing dust which, in the
inspector's opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements
or obligations may be shown on the Final Development Plan Documents, or any
documents executed in the future that are required by the City for the approval of an
amendment to a development plan, and the City may withhold (or to the extent
permitted by law, revoke) such building permits and certificates of occupancy as it
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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 or the Land Use Code 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, including any subsequent
replatting of all, or a portion of the Property. This Agreement shall also 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 elect to: (a) terminate the Agreement and seek damages; (b) treat the
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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:
East Ridge of Fort Collins
C/O Jeff Strauss
PO Box 40
Timnath, CO 80547
With a copy to:
Liley, Rogers & Martell, LLC
C/O James Martell
300 S. Howes
Fort Collins, CO 80524
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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:
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 Final Development Plan Documents 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 approval of the site specific development plan. In the event that the
Developer commences or performs any construction pursuant hereto after the passage
of three (3) years from the date of approval of the site specific development plan, 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, electrical lines, 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, electrical 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 Final Development Plan Documents and shall be installed by the
Developer within the time as established under "Special Conditions" in this Agreement.
E. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
If to the Owner: East Ridge of Fort Collins
C/O Jeff Strauss
PO Box 40
Timnath, CO 80547
If to the Owner: Whitham Farms, LLC
C/O Mary E. Whitham
0189 Arrowhead Bluff
Blue River Route
Silverthorne, CO 80498
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.
City Clerk
THE CITY OF FORT C�LLINS, COLORADO,
a Municipal Corp atior i
By:
City Manager
20
APPRO AS TO FORM:
Deputy City Attorney
APPROVED AS TO CONTENT:
�-city gi er
i
r`
DEVELOPER:
East Ridge of Fort Collins, LLC, a Colorado
registered limited lia lity company
By:
Je 7
. trauss, Managing Member
OWNER:
East Ridge of Fort Collins, LLC, a Colorado
registered limited I' bility company
By: A /t
rL. rauss, Managing Member
OWNER:
Whitham Farms, LLC, a Colorado limited
liability company
By:
Mary E. W am, Managing Member
Pal
EXHIBIT "A"
1. Schedule of electrical service installation.
Electrical lines need to be installed prior to the installation of the sidewalk, curb
returns, handicap ramps, paving and landscaping. If the Developer installs any curb
return, sidewalk or handicap ramp prior to the installation of electrical lines in an area
that interferes with the installation of the electrical line installation, the Developer shall
be responsible for the cost of removal and replacement of those items and any
associated street repairs.
2. Schedule of water lines to be installed out of sequence.
Not Applicable.
3. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
4. Schedule of street improvements to be installed out of sequence.
Not Applicable
5. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
22
EXHIBIT "B"
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 Developer 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 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.
23
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.
24
EXHIBIT "C"
The Development Agreement for East Ridge Subdivision — PDP, City of Fort Collins,
Larimer County, Colorado.
The following cost estimate for storm sewer St-9 upsizing constitute costs associated
with major drainage improvements that are eligible for reimbursement to the Developer.
These costs are based on an analysis presented to the City by TST, Inc. for storm
sewer improvements dated September 25, 2008.
The City shall make reimbursement to the Developer within 60 days of submittal thereof
on the basis of actual costs as submitted by the Developer, evidenced by actual
Contractor Invoices subject to the conditions contained in Section II.C.9 of this
Agreement.
The City reimbursed costs for storm sewer improvements shall not exceed the
maximum amount of $195,031.00 as detailed and listed below.
25
EASMDGE SUBDMSION
STORM SEWER ST-A
ENGINEERS OPINInm nc rtnar — _ _.
PROJECT UPSILNG TOTAL
St95,D�1,D5
This bid summary does not Include design, construction management,
survey staking, legal casts, etc. Soft costs assocalated with storm
sewer are subJect to neagatlon In the relmburaemenl agreement.
9125l2ppg
East Ridge
Wetland Mitigation Plan
Prepared for:
East Ridge of Fort Collins, LLC
4190 North Garfield
Loveland, CO 80538
Completed by:
Wildland Consultants, Inc.
1001 Jefferson Drive
Berthoud, CO 80513
March, 2005
Table of Contents
1.0 .introduction
2.0 Existing Wetland Description
3.0 Wetland Impacts
.......................
4.0 Wetland Mitigation
4.1.1. Protection of Wetlands luring Construction
11.1.2 Wetland Mitigation Site Revegetation 2
2
4.1.3 Wetland and Upland Revegetation
3
4.1.4 Wetland Mitigation Site Hydrology
5,0 Wetland 1vtonitoring and. Maintenance ........ .
6.0 References
.......................................................... 7
Attachment A -Wetland Mitigation Plan
6
1.0 lntrO(illeti0n and Project Description
The >_.ast Ridge site is located in the City of Fort Collins, southeast of the intersection of
Timberline Road and .East vine Drive. Tire legal description is T7bf, R68W, S8, NEIM;
Lat. 400 25' 091." N, Long. 1.04' 47' 139W).
A wetland delineation For the project area was completed during October of 2003 (Water
Quality Technology, Inc. 2003). One wetland of6.19 acres was located on the
development site. 'File delineation was sent to the Corps ofhngi.n.eers (COE) to determine
jurisdictional status of the wetlands on the site. The COB determined that the wetland on
the site is isolated (not connected to other wetlands or water) and is not under their
jurisdiction (McKee 2003).
2.0 Existing Wetland Description
vegetation:
One non -Jurisdictional palustrine emergent wetland of 6.19 acres is located on the site.
This wetland occurs in a natural depression along the southern site boundary. The
Nvetland is located in a .small enclosed drainage basin withno connectio.tl to other
drainages or wetlands. The dominant plant present in wetland is cattail (Typha last folio),
with a fringe of bulrush (ScirInav lialidus), American threesgtrare (,Sc ryruscrrneaiccrnus),
reed canarygrass (Phalar•is ai7n-rc7naceae), curly dock (Rumex crispus), creeping
spilcerlash (Lleucharispalustr•i.r), Canadian thistle (Cir:shinr arvense) and a few other
species. The wetland area has decreased greatly in size over the last 3 years. A previous
delineation showed a wetland of 12.57 acres in size in 2002. There are indications that
the wetland vegetation may continue to decline oil the site without tile additional of
agricultural or other manmade runoff.
Soils and Hydrology:
The soils oil the site are mapped as Auepts Loamy, this is a hydric soil type in Larinler
County (Soil Conservation Service 1980). The soils within the wetland area are Illainly
sandy clay loam in texture in the A horizon and clay to clay loam in texture in the .B
horizon. A strong clay layer is evident within the wetland on the site. Evidence of
reducing conditions includes mottling, and low cin•olna colors. During March (2005)
saturated soil conditions were present at a deptli of around 16-18 inches.
No flowing or standing water was observed within the wetland_ The wetland receives
flows From agricultural runoff and likely groundwater. The heavy clay .y
layer ma.
indicate a perched water table in the wetland area. The size of the wetland has decreased
dramatically in the last 6 years. previous agricultural operators drained excess in-igation
water into the wetland area. Recent agricultural operations have not drained agricultural
runoff into the site. Without additional manmade water input it is possible the wetlruul
may continue to decrease in size.
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this Development as shown on the 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 (water
and sewer) leading in and from the main to the property line and all electrical lines.
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, except that if the conflicts
are a result of Federal or State mandated requirements, then the Federal or State
mandated requirements shall prevail.
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
3
3.0 Wetland Impacts
bVetlanci fill is proposed along the north edge of the wetland area. The fill is associated
with construction ofa proposed park. A total of 1.9,,1 acres of wetland will be filled with
project construction. Attachment A, Wetland Mitigation Plan shows the area to be filled.
Tile wetland area will be used in the fixture as a stormwater detention site. As a result,
vegetated areas around the wetland will be graded and disturbed for construction of
sediment forebays and a non -potable irrigation pond. Attachment.A shows details o
proposed forebays aiid the non -potable pond.
4.0 Wetland Mitigation
Because the wetland on the site is non -jurisdictional wetland mitigation is .not .required by
the C OE. However, wetland mitigation is required o" the site by the City of.Fort Collins.
The following discussion details the design, and the general construction specifications
for the wetland mitigation area. `
Based on conversations with the City of Fort Collins wetland mitigation on the si.t_e_will
lie required oii a T to l 6a5is. Theire ru•e `I.CI4 acres' -`wetland beitlg removed by --
construction of the proposed park. Wetland mitign:tion will be planned to create at least
1.94 acres of new wetland to replace filled wetland. In addition, 1.5 acres ofwetland will
be created within the sediment forebays. The proposed wetland .m.itigation area is
detailed in attached Wetland Mitigation Plan Map (Attachment A).
4.1.1 Protection of Wetlands Diming Construction
The boundary of existing wetland vegetation will be fenced or staked prior to
construction to avoid additional wetland impacts. To protect existing wetland vegetation
no work will be allowed within the fenced/stacked area. Construction personnel will be
informed ofthe limits of wetland disturbance. A construction inspector will be present to
prevent inadvertent additional. wetland impacts.
4.1.2 Wetland Mitigation Site Excavation
'File first step in the mitigation will be to salvage surface soils and plant materials
(rhizomes, tubers, shoots, seeds) (nlinimurn depth — 1 foot) from the existing wetland to
be disturbed. by park construction. This salvaged soil will be stockpiled in all adjacent
upland area. The stockpile will be watered periodically daring the wetland construction
phase, if needed, to prevent the drying of plant materials and to .maintain plant viability.
These stockpiled soils will be spread over the proposed ."litigation site after construction..
The mitigation site excavation elevation will be designed to promote the establishment of
wetland vegetation. The mitigation site will be excavated at or slightly below the
existing elevation of the protected wetland area. The goal of mitigation site excavation
is to provide saturated soils at the ground surface after reapplication of wetland topsoil.
This will help ensure proper hydrology for establishment and maintenance of wetland
vegetation. The actual elevation of excavation will be determined at the time of
construction based on existing conditions. The excavation contractor will remove surface
soil in the mitigation site until saturated soil and standing water is present. Soils within
these mitigation sites should be saturatedat the soil surface for the majority of the
growing season.
I'll mediatety after mitigation site construction the stockpiled wetland topsoil and plant
materials from disturbed wetland area will be applied at a depth of at least G inches on the
bottom and side slopes of the mitigation site. If the subsoil located immediately below the
surface soil is determined to be highly permeable, an additional soil layer consisting
primarily of clay, may need to be added to decrease water infiltration. This layer may
require compaction with construction equipment prior to inundation or saturation. if
stockpiled wetland soils are not Sufficient to cover the entire mitigation areas, additional
topsoil from nearby upland sites will be added.
Immediately, after construction of the mitigation site, the area will be inundated for
several days to allow for the complete satitration. of surface soils.
4.1.3 Wetland and Upland Revegetatiom
As discussed above, stockpiles( wetland soils will be spread over the mitigation site after
finch contouring. The use of salvaged wetland surface soils and plant materials has
distinct advantages over use of upland or subsurface soils. Using native wetland soils
allows a representation of plants from all successional stages in constructed wetlands.
Higher species richness and increased. cover can be expected in wetlands created with
salvaged topsoil instead of subsoil or upland soil.
The recommended species to be used in wetland revegetation are listed in Table 1. These
species were chosen to tit a variety of hydrologic regimes that should be characteristic of
the wetland mitigation site. For example, Ba{tic rush (Juncus balficus) and Nebraska
sedge (Carex nebraskensis) are adapted to seasonally saturated soils. American
threesquare (S'cilplty (.7n►ericarjtrs) grows best in areas inundated with shallow water.
Switchgrass (Panicuin vi"galttm) establishes rapidly in wet and seasonally wet soils.
Herbaceous wetland plants (Table 1) will. be planted by seeding. Where possible plants
will be seeded by drill seeding. Seeding rates should be doubled for broadcast seeding.
Seeds should be troni local sources if possible. Seeding of wetland plants is not as
successful as using live plants. Seeds may need the freeze thaw cycles of a winter period
to break dormancy. Seeding should occur during the spring (mid April to June 15) or fall
(September I to mid October).
If wetland plants do not become established within the rnitigati.on site within the initial
growing season, supplemental planting or seeding may be warranted. Supplemental
planting within the uritigation site nay include the planting of plugs (1-inch diameter).
which include soil and a viable plant, or seeding with wetland species. Specifications
regarding supplemental plantings or seeding would be developed only if initial seeding is
not successful.
The proposed location and species :for shrub and tree plantings in and adjacent: to the
mitigation site are shown on the Attachment A, Wetland Mitigation Plan. Adjacent to the
wetland and within areas proposed for natural vegetation, native tree and shrub species
will be planted. Species that are proposed will provide good quality wildlife habitat on
the site. Shrubs will be planted as bare root or container stock. Willows, dogwood and
narrowleaf cottonwoods will be planted as dormant cuttings. Shrub and tree planti no
with bare root or cuttings will be completed during the early to mid spring period during
plant dormancy. Container plantings will be completed anytime during the spring to fall
period. Trees will be planted as container stock and cutting depending on species
(Attachlrlent A). Trees will be planted between early spring and fall periods.
Supplemental i.ni.gation may be needed for one or two growing seasons for planted trees
and shrubs.
The upland side slopes located immediately adjacent to the wetland mitigation site will
be reseeded with an upland seed mix. Native plant species will be. used in the seed mix
(see Attachment A, Native Prairie .Mix). Erosion control strictures, including silt fences,
will be installed to reduce soil erosion into the mitigation site during construction.
Seeding rates are based on recommendations from the Natural .Resources Conservation
Service (NRCS 1.981a,b). Certified weed free seed should be used for seeding. A Firm.,
relatively weed free seedbed is needed for seeding. Auer site preparation the
recommended seed mix will be drill seeded at reconinlended rates. (broadcast seeding will
be at twice the drilled rate). MLIlch (straw or native hay, or hych-omulch) should be
applied at a rate of around 2,000 pounds per acre aver seeding. Mulch can be applied by
hand, or by a mechanical blower, Straw mulch should be crimped into the seedbed to
prevent erosion and wind loss. Seeding should be completed generally between
November 1 and May I (Natural Resources Conservation Service 1991, 1995).
It is anticipated that species diversity and plant cover within the constructed wetlands will
be similarto pre -construction conditions approximately 3-years after wetland
construction has been completed.
4,.1.4 Wetland Mitigation Site Hydrology
Based on current laiowledge much of the water that supported wetlands in the area, during
the past was provided by agricultural water runoff. As a replacement to agricultural
runoff stornlwater flows from the adjacent subdivision will be channeled into the wetland
area. The wetland mitigation site will serve a duel purpose as a stormwater detention
area. To help prevent siltation .into .the wetland mitigation site stormwater flows ivill be
channeled into 2 sediment tbrebays prior to discharge into the wetland mitigation site.
The sediment forebays will be seeded with the wetland seed mix to help improve
filtration and water duality. The forebays will need to be dredged occasionally to remove
accumulated sediment. Outlets from the forebays will allow overflow into the wetland
area.
The entire wetland area is designed to also serve as a stormwater detention site. The area.
is designed to attenuate the flows of it 100-year storm event. An outlet in the soutliern
section of the site will allow stornrwater to drain into the Lake Canal. The outlet will be
set above the existing elevation of the wetland to allow for drainage of stormwater flows
without impacting wetland hydrology. After a major storm event the water will drain
back to existing; wetland etc vation.
In addition, a non -potable irrigation: pond will be constructed adjacent to the wetland
mitigation site (Attachment A). Water for this pond will come from existing water rights
via local irrigation ditches. This pond will be used to support wetland hydrology and
wetland vegetation as needed. The eastern edge of the pond is designed to transition
naturally and gently into the mitigated wetland area. When the pond is Filled water will
flow naturally into tire wetland area. If needed the pond can be used to supplement
wetland hydrology in the mitigation site.
5.0 Wetland Monitoring and .Maintenance
Monitoring -
Wetland mitigation success can vary according to many factors. These factors may
include: changes in hydrology associated with climate or offsite development, excavation
of the mitigation site to improper elevations, infestations of noxious weeds, inadequate
monitoring of the excavation contractor during construction, and many other factors.
Because of these uncertainties post -construction n.ronitoring of the mitigation site is
required. If wetland mitigation is riot successful additional corrective actions will be
completed.
The wetland mitigation sites will be monitored during and immediately after construction
has been completed to ensure that tits wetland mitigation sites have been constructed
correctly. Construction monitoring will be completed by the developer/contractor with
.input from the City of Fort Collins.
Post construction wetland and upland monitoring will be completed by the City of Fort
Collins ill cooperation with the developer. 'If wetland and upland vegetation does not
establish, weeds infestations occur or other issues arise, corrective measures will be
communicated to the land development firm responsible for .the management ofon-sitc
operations. The City of Tort Collins will require that the mitigation area develops
wetland vegetation equivalent to the existing surrounding wetland. The Developer shall
ensure that all wetlands and uplands are properly maintained for a three-year period
following construction thereof to ensure that the vegetation and hydrologic regime are
filly established. Monitoring of the vegetation shall occur at least in June and September
of the first growing season and in late summer ofthe remaining growing serious. The
status and effectiveness of the vegetation will be evaluated and tite results reported to the
City of Fort Collins Natural Resources Department se.nri-annually fbr review. '['h.is
reporting will be completed by City staff.
The performance criteria for revegetation is as follows (Moore2005);
Areas seeded in tft.e Spring shall be inspected for required coverage each
immediately subsequent Autumn not later than October lst. Areas seeded at any
other time shall be inspected each immediately subsequent Summer not later than
August 1 st. The required coverage for the first inspection shall be ten (10) viable
live seedlings of the specified species per 1000 square centimeters (aphro>ximately
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 steal I be seventy-five percent (75%) foliage covetof the specified species
planted as measured from five (5') directly overhead. No more than tern percent
(10%) of the species noted on the site may be weedy species as defined by Article
III, Section 20-41 of the Code ofthe City. The Developer shall be responsible for
weed control at all ti.rrres. Determination of required coverage wil I 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 (7 0) centimeters along each transect. The Developer shall
warrant al I seeded areas for three (3)-growing seasons front the date of
completion. The.Developer shall rework and reseed per original s.peci:l'lcations
any areas that are dead, diseased, contain too many weedy species, or fail to meet
the coverage requirement at no additional cost to tine City,
lylaintenance-
No mowing of the wetland mitigation site will occur or be permitted unless neecled for
control of noxious weeds.
Noxious weeds will be controlled in the mitigation site and adjacent upland areas as
needed. The only Lari.mer County regulated weed currently known to be present on the
site is the Canada thistle (Larimer County Weed Control District 2002). Other weeds
Present on the site include field bindweed (Convvlvulus arvensi.r), kochia (Kochict
scoparia), pigweed (Attraranthux ren•oflextm), cheatgrass (&Omis• tecton1m), sunflower
(Helial7fi,ns Illnutts) and other species. The current level of weed infestation on the site
is much lower than surrounding Iancls..Many of the weed species currently present along
ditch banks and field margins within surrounding agricultural lands provide quality food
and cover to a variety wildlife species.
Weed contra[ on the "litigation site and adjacent upland area will be completed on an annual basis. Monitoring for weeds should be completed twice each groNving season
(late May and early August) to inventory weed species on the property. The locations of
weed infestations will be noted and mapped if helpful. Control measures will be planned.
CUntrOImeasures on the site may include a mix of -chemical and mechanical control.
Chemical control includes application of approved herbicides at recorn.tne.nded levels.
Mechanical control includes niowing and localized shovel removal o:f'weeds. Prevention
of weed infestations is accomplished on the site by maintaining desirable vegetation on the site.
6.0 References
McKee, 1'. 2003. Army Corps of Engineers, Natural Resources Specialist, Letter
Regarding the liirisdictional Status of East Ridge Wetlands. Sent to T. Geisel.man, Water
Quality Technology, Inc., November 2003.
Moore, D. 2005. Natural Resources Specialist, City of Fort Collins, Standard
Development Agreement Requirments.
Natural Resources Conservation Service (formerly Soil Conservation Service) 198.a.
Seeding Rates. Colorado Agronomy Note No. G 1.
Natural. Resources Conservation Service (formerly Soil Conservation Service) 1981b.
Standards and Specifications, Critical Area Planting. Technical Guide, Sect. V.
Colorado.
Natural Resources Conservation Service (formerly Soil Conservation Service) :1991.
Standard and Specifications Range Seeding. Technical Guide, Section .IV, Colorado.
Natural Resources Conservation Service. 1995. Grass Seeding Inf'o,•mation for Colorado.
Water Quality Technology, Inc. 2003. Wetlands .Delineation for the East Ridge
.Development.
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 the applicable "stormwater plant investment fee"
in accordance with Chapter 26, Article VII of the City Code. This fee is included with
building permit fees and shall be paid prior to the issuance of each building permit.
J. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of each 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 its knowledge all property
dedicated (both in fee simple and as easements) to the City associated with this
Development (whether on or off -site) is 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 property as is dedicated to the City pursuant to this
Development, is 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 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 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 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.
L. The Developer acknowledges and agrees that the City, as the owner of
any adjacent property (the "City Property") on which off -site improvements may be
constructed, or that may be damaged by the Developer's activities hereunder, expressly
retains (and does not by this Agreement waive) its rights as property owner. The City's
rights as owner may include without limitation those rights associated with the
protection of the City Property from damage, and/or the enforcement of restrictions,
limitations and requirements associated with activities on the City Property by the
Developer as an easement recipient.
Special Conditions
A. Water Lines
1. Notwithstanding anything in this Agreement to the contrary, the
Development will be provided water service from the East Larimer County Water District
("Water District"), and all water line improvements shall be installed and inspected in
accordance with the Water District's regulations and the approved plans therefor.
B. Sewer Lines
1. Notwithstanding anything in the Development Agreement to the
contrary, the Property will be provided sanitary sewer service from the Boxelder
Sanitation District ("Sewer District"), and all sewer line improvements shall be installed
and inspected in accordance with the Sewer District's regulations and the approved
plans therefor.
C. Storm Drainage Lines and Appurtenances
1. The Final Development Plan Documents for this Development call
for the phasing of the construction of storm drainage improvements. The Developer
shall complete these improvements sequentially in accordance with said Final
Development Plan Documents starting with Phase 1 and ending with Phase 2. The
sequential completion of these improvements shall necessitate that the required overall
site drainage certification be done in phases in accordance with the following
requirements:
a) All on -site and off -site storm drainage improvements
associated with Phase 1 of this Development, as shown on the 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 39 building permits in
Phase 1. Phase 1 construction shall include the overlot grading of the entire
development site. Following the overlot grading of the entire site, all the disturbed areas
in Phase 2 that are slated for future development shall be temporarily seeded and
mulched.
b) All on -site and off -site storm drainage improvements
associated with Phase 2 of this Development, as shown on the 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 60 single family
building permits in Phase 2 of the Development.
c) In all cases, completion of improvements shall include the
certification by a professional engineer licensed in Colorado that the drainage facilities
which serve any particular phase of 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.
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 Final Development Plan Documents, the
City shall give written notice to the Developer of all items which do not comply with the
Final Development Plan Documents. 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 Final Development Plan Documents. 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 $62,985.00 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion control measures
shown on the 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 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 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 lots be graded to drain in the configuration
shown on the Final Development Plan Documents. For this reason the following
requirements shall be followed for all buildings/structures on all lots:
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 deemed such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
6. The Developer shall limit the construction of the off -site storm
drainage improvements to the limits of construction as shown on the Final Development
Plan Documents. The contractor shall re -seed and/or restore all areas that are
disturbed during construction of the off -site storm drainage improvements in accordance
with the Final Development Plan Documents promptly following construction. The
Developer shall ensure that no negative impact occurs to the adjoining properties during
the construction of these improvements. No grading shall be done outside of the
approved areas as shown on the Final Development Plan Documents.
7. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed outside of the public right-of-way. The Developer
shall also maintain the temporary drainage improvements in Phase 2 that are in the
dedicated public right-of-way. The ultimate lines located in the right-of-way within
Phase 2 will be maintained in their entirety by the City following certification of these
lines by the Developer and their acceptance by the City. The Developer shall also
maintain all drainage improvements within the future City Park until such time when the
park is constructed.
8. The Developer shall obtain a permit from the Lake Canal Company
for grading and construction of improvements within the Lake Canal right of
way/easement prior to the start of any work and issuance of a Development
Construction Permit for Phase 1. Such permit shall include language to indemnify and
hold harmless the Lake Canal Ditch Company ("Irrigation Company") and the City from
any claims, damages, injury or cause of action against the Irrigation Company or the
City by the Developer, or its successors and assigns, in relation to the normal operation
and use of the ditch by the Irrigation Company. The Developer shall further indemnify
and hold harmless the City and the Irrigation Company from any such claims, damages,
injury or cause of action by third parties which result from the increase in stormwater
flows added to the canal by the Developer in excess of historic flows except as such
claims, damages, injury or cause of action are as a result of a negligent act or acts of
the Irrigation Company.
9. The costs associated with the upsizing of storm sewer St-9 as
identified on the Final Development Plan Documents shall be the responsibility of the
City. After construction is completed in accordance with the Final Development Plan
Documents, the City shall reimburse the Developer for the costs associated with the
upsizing, which costs are estimated by the Developer's engineer to be $195,031.00 as
more particularly described in "Exhibit C" attached. The City shall reimburse the
Developer for this construction based on actual costs, but in no event shall the City's
reimbursement exceed the estimated $ 195,031.00.
The City shall reimburse the Developer within 60 days from submittal of actual
contractor invoices if the City has available funds appropriated for that purpose at the
time invoices are submitted. If funds are not appropriated, the City shall reimburse the
Developer when funds are appropriated for that purpose.
The provisions of this agreement pertaining to repayment of the storm sewer ST-9
upsizing shall become applicable only if the Developer actually completes the
improvements in accordance with paragraph II.C.10 above.
D. Streets.
1. Subject to the conditions of this Agreement, the City shall
reimburse the Developer for oversizing public street improvements along Timberline
Road, International Boulevard, Sykes Drive and Delozier Road for those portions of said
streets abutting the Property as shown on the Final Development Plan Documents.
Reimbursement for 1) Timberline Road shall be for oversizing the street from local
(access) standards to six (6) lane arterial standards, 2) International Boulevard shall be
for oversizing the street from local (access) standards to two (2) lane arterial standards,
3) Sykes Drive shall be for oversizing the street from local (access) standards to minor
8
collector standards and, 4) Delozier Road shall be for oversizing the street from local
(access) standards to minor collector 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. In accordance with Section 24-95 of the City Code the Developer is
responsible for constructing the portion of Timberline Road adjacent to the site and
International Boulevard from station 23+50 to the eastern most property line prior to the
issuance of the first building permit. Notwithstanding the foregoing, the Developer shall
have the option to postpone the Timberline Road and International Boulevard
construction by delivering to the City a cash deposit sufficient to guarantee completion
of the design and construction of the improvements. The amount of said funds shall be
the estimated cost of the design and local street portion of the pavement and subgrade
for the full length of the aforementioned streets, the fill, curb, gutter, 4.5 feet (in width) of