HomeMy WebLinkAboutPLANTATION MANOR PDP - Filed DA-DEVELOPMENT AGREEMENT - 2005-12-21DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this ? day of
2004, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; FCPM 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:
Plantation Manor, a tract of land located in The Southwest 114 of Section 27,
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 benefitto 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 :i,9 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:
General Conditions
A. The terms of this Agreement shall govern all development activities of the
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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, provided the reason for said
noncompliance is not a result of construction, disruption or blockage caused by a City
of Fort Collins Department.
H. Development Construction Permit
1. The Developer shall apply for and obtain a Development Construction
Permit for this Development, in accordance with Division 2.6 of the Land Use Code (or
Section 29-12 of the Transitional Land Use Regulations, if applicable), prior to the
Developer commencing construction. The Developer shall pay the required fees for
said Permit and construction inspection, and post security to guarantee completion of
the public improvements required for this Development, prior to issuance of the
Development Construction Permit.
I. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance guarantee and
a five-year repair guarantee covering all errors or omissions in the design and/or
construction of the public improvements required for this Development, which 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." Securityforthe 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.
2. Notwithstanding the provisions of paragraphs III (H) and (1) of this
Agreement to the contrary, the obligations of the Developer pursuant to this paragraph and
Exhibit "C" may not be assigned or transferred to any other person or entity unless the
warranted improvements are completed by, and a letter of acceptance of the warranted
improvements is received from the City by, such other person or entity.
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.
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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 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
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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 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
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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, Cc 80522
If to the Developer: FCPM LLC
Attn: Bret Larimer
1600 West Horsetooth Road
Fort Collins, Co. 80526
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,
p-iragraph 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.
THE CITY OF FORT COLLINS, CC�ORADO,
a Municipal Corporation 1
'i
By: 1
City Manager
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ATTEST:
6yi
City Clerk
APPROVED AS TO CONTENT:
City Engin r
APPRO\/E/�AS TO FORM:
Deputy City Attorney
�.`� *• �" * �'�; DEVELOPER:
j
FCPM LLC., A Colorado Limited Liability Company
SEAL Q
By.,
Bret Lanmer, Manager
licit
W
EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
3. Schedule of street improvements to be installed out of sequence.
Not Applicable
4. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
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EXHIBIT "B"
Not Applicable
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EXHIBIT "C"
Refer to the Final Plat for this Development
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Developer pertaining to the Property. For the purposes of this Agreement, "development
activities shall include, but not be limited to, the following: (1) the actual construction of
improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or
appearance of the Property caused by, or on behalf of, the Developer with the intent to
construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities,
streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the
approved utility plans and in full compliance with the standards and specifications of the
City on file in the office of the City Engineer at the time of approval of the utility plans
relating to the specific utility, subject to a three (3) year time limitation from the date of
execution of this Agreement. In the event that the Developer commences or performs any
construction pursuant hereto after the passage of three (3) years from the date of
execution of this agreement, the Developer shall resubmit the utility plans to the City
Engineer for reexamination. The City may then require the Developer to comply with the
approved standards and specifications of the City on file in the office of the City Engineer
at the time of the resubmittal.
C. No building permit for the construction of any structure within the Property
shall be issued by the City until the public water lines and stubs to each lot, fire hydrants,
sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and
pavement with at least the base course completed) serving such structure have been
completed and accepted by the City. No building permits shall be issued for any structure
located in excess of six hundred and sixty feet (660') from a single point of access, unless
the structures contain sprinkler systems that are approved by the Poudre Fire Authority.
D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets
described on Exhibit "A," attached hereto, shall be installed within the time and/or
sequence required on Exhibit "A." If the City Engineer has determined that any water lines,
sanitary sewer lines, storm drainage facilities and/or streets are required to provide service
or access to other areas of the City, those facilities shall be shown on the utility plans and
shall be installed by the Developer within the time as established under "Special
Conditions" in this document.
E. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this Development as shown on the approved Final Development
Plan Documents and other approved documents pertaining to this Development on file
with the City.
F. Street improvements shall not be installed until all utility lines to be placed
therein have been completely installed, including all individual lot service lines leading in
and from the main to the property line.
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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 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.
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J. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City of Fort Collins.
K. The Developer specifically represents that to the best of its knowledge all
portions of the Property dedicated (both in fee simple and as easements) to the City
associated with this Development are in compliance with all environmental protection and
anti -pollution laws, rules, regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40
C.F.R., Part 261, and that such portions of the Property as are dedicated to the City
pursuant to this Development, are in compliance with all such requirements pertaining to
the disposal or existence in or on such dedicated property of any hazardous substances,
pollutants or contaminants, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer, for itself and its successor(s) in interest, does hereby
indemnify and hold harmless the City from any liability whatsoever that may be imposed
upon the City by any governmental authority or any third party, pertaining to the disposal of
hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking
underground storage tanks, excavation and/or backfill of hazardous substances, pollutants
or contaminants, or environmental cleanup responsibilities of any nature whatsoever on, of,
or related to any property dedicated to the City in connection with this Development,
provided that such damages or liability are not caused by circumstances arising entirely
after the date of acceptance by the City of the public improvements constructed on the
dedicated property, except to the extent that such circumstances are the result of acts or
omissions of the Developer. Said indemnification shall not extend to claims, actions or
other liability arising as a result of any hazardous substance, pollutant or contaminant
generated or deposited by the City, its agents or representatives, upon portions of the
Property dedicated to the City in connection with this Development. The City agrees to give
notice to the Developer of any claim made against it to which this indemnity and hold
harmless agreement by the Developer could apply, and the Developer shall have the right
to defend any lawsuit based on such claim and to settle any such claim provided Developer
must obtain a complete discharge of all City liability through such settlement.
Failure of the City to give notice of any such claim to the Developer within ninety (90) days
after the City first receives a notice of such claim under the Colorado Governmental
Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the
Developer to not apply to such 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
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Not Applicable
B. Sewer Lines
1. Prior to the issuance of any building permit(s) for this development, the
Developer shall, in accordance with Section 26-121 of the City Code, reimburse the City
the sum of $849.95 (4.7750 acres @ $178.00 per gross acre) for the cost of installation of
the Warren Lake Trunk Sewer to serve this development.
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements, as shown on the
approved Final Development Plan Documents, shall be completed by the Developer in
accordance with said Final Development Plan Documents prior to the issuance of more
than 8 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 this Development have been constructed in conformance with said Final
Development Plan Documents. Said certification shall be submitted to the City at least two
weeks prior to the date of issuance of any additional building permits in this Development.
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 deems that said drainage facilities no longer comply with
the approved plans, the developer shall bring such facilities back up to the standards and
specifications as shown on the approved plans. Failure to maintain the structural integrity
and operational function of said drainage facilities following certification shall result in the
withholding of the issuance of additional building permits and/ or certificates of occupancy
until such drainage facilities are repaired to the operational function and structural integrity
which was approved by the City.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the approved Final Development Plan Documents to stabilize
all over -lot grading in and adjacent to this Development. The Developer shall also be
required to post a security deposit in the amount of $2,790.30 prior to beginning
construction to guarantee the proper installation and maintenance of the erosion control
measures shown on the approved Final Development Plan Documents. Said security
deposit(s) shall be made in accordance with the criteria set forth in the City's Storm
Drainage Design Criteria and Construction Standards (Criteria). If, at any time, the
Developer fails to abide by the provisions of the approved Final Development Plan
Documents or the Criteria, notwithstanding any provisions contained in paragraph III(J) to
the contrary, the City may enter upon the Property for the purpose of making such
improvements and undertaking such activities as may be necessary to ensure that the
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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 buildings and lots be graded to drain in the
configuration shown on the approved Final Development Plan Documents. For this reason
the following additional requirements shall be followed for all buildings and all Lots:
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 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 specified elevation on
the approved Final Development Plan Documents. This certification shall also show 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 approved Final Development Plan Documents in grade elevations and/or storm
drainage facility configuration that occur as a result of the construction of houses and/or
development of lots, whether by the Developer or other parties. The City reserves the right
to withhold the issuance of building permits and certificates of occupancy for this
Development until the City has approved such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
6. l ne drainage design for this Development provides forthe evacuation
of storm drainage runoff in a reasonable amount of time out of the detention facilities and
into the drainage out -fall 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 such conditions are beyond what
can be expected in accordance with the approved stormwater design, the Developer shall
promptly upon discovery install an adequate de -watering system in the detention facilities.
Such 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 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 construction activities
associated with this Development. No grading shall be done outside of the approved areas
as shown on the Finial Development Plan Documents for this Development.
8. The Developer, or it's successors in interest, is obligated to maintain
all storm drainage facilities that are constructed by this Development outside of the public
rights -of -way.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Horsetooth Road
for those portions of said street abutting the Property as shown on the approved Final
Development Plan Documents. Reimbursement for Horsetooth Road shall be for
oversizing the street sidewalk from local (access) standards to Arterial four lane 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
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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. The Developer is responsible for all costs associated with the
construction of Horsetooth Road from the existing curb and gutter at the west of the
property to the east end of the property. Since Horsetooth Road is not constructed to it's
ultimate width along the Development frontage, the City will not require the Developer to
complete all of the Horsetooth roadway improvements at this time. The Developer shall
be responsible for constructing the curbs, gutters and sidewalks along Horsetooth Road
adjacent to the Development as shown on the Final Development Plan Documents. Prior
to beginning work on this Development, the Developer shall submit to the City for it's
approval, an estimate of construction costs for the Horsetooth Roadway improvements.
Said estimate shall clearly identify and establish costs for all items, including signing and
stripping for construction of Horsetooth Road associated with this Development. The
agreed upon amount for the associated portions of roadway improvements not being
constructed at this time, shall be provided to the City in cash, prior to the issuance of the 15c
building permit in this Development.
5. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with, Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code of
the City.
E. Ground Water, 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.
F. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a permanent
water system is installed by the Developer and approved by the City.
2. Prior to beginning any construction, and throughout the build -out of
this Development:, the Developer shall provide and maintain at all times an accessway
to said construction activity, 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 according to city standards and with an 80 foot
diameter turnaround at the 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
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