HomeMy WebLinkAboutPRESIDIO APARTMENTS - Filed DA-DEVELOPMENT AGREEMENT - 2011-07-07RECEPTION#: 20110038082, 06127/2011 at
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Scott Doyle, Larimer County, CO
DEVELOPMENT AGREEMENT
PRESIDIO APARTMENTS
THIS DEVELOPMENT AGREEMENT
b and between Is made and entered
the CITY OF FORT
into this 22 o day of " \L y
and Mil S, COLORADO, a Municipal Corporation, hereinafter referred to as the "City";
and Milestone Presidio LLP, a Colorado �dliability
hereinafter
to as the "Developer"; and Imago Ep�ises,lncaColorado Corporation,
referred to as "Imago Enterprises."
WITNESSETH:
in
WHEREAS, Imago Enterprises llothe owner of hereafter eferedltoraslproperty the `Developmendt or
the County y" Land legally te of described as follows, to wit:
the Property) legally
Presidio Apartments, located in the Northeast City of FortCollins, arr of cCounty of Larhmer6,
North, Range 68 West of the 6th P.M.,
State of Colorado.
th Imago
WHEREAS, the Developer f that isred into an of the Property on whichtthelapartment
Enterprises to acquire ownership o portion
community improvements will be situated, legally described as follows, to wit:
Lot 1, Presidio Apartments, located in the PNortheast
Mrte st Fort Quarter
ofsSection of
Township 6 North, Range 68 West of the 6th Y
Larimer, State of Colorado.
WHEREAS, the Developer has submitted to the City all plats, plans (including
ion
all of the
utility plans), reports and other documents
required ffor evelopmentu otf an f apartment
improvements to the Property, necessary lrtme t
community on the Property, all in accordance th the it"Final
FinalVeDevelopment Plan
submittal requirements master (collectively,
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 eCity in order to serve rovements primarily ofsbenefuch t tothe
will further require the installation of certainimp
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.
lerWs Office, Fort Collins, Colorado
CRY C §a
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 be solely liable for any damages or injuries
sustained in the
or therr damage resulting from faileure of any suchuage r bdra nsystem.flooding,
structural damage
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to be solely liable for
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 sole liability 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 notice of such claim
under the Colorado Governmental Immunity Act for the same, shall cause the forgoing
sole liability agreement by the Developer to not apply to such claim and such failure
shall constitute a release of the foregoing sole liability agreement as to such claim.
H. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a permanent
water system is installed by the Developer and approved by the City.
2. Prior to beginning any building construction, and throughout the build -
out of this Development, the Developer shall provide and maintain at all times 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
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
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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.
Building Permits
1. Upon application, payment, and approval by all City departments the
Developer shall have the right to obtain Footing and Foundation permits following its
closing on the acquisition of the Property; provided, however, no certificate of
occupancy shall issue for a building until the installation of all applicable facilities has
been completed to that building, including but not limited to all underground water,
sanitary sewer, and storm sewer facilities, and an emergency accessway for the phase
in which the certificate of occupancy is being requested. Facilities
shall include for the s t as
be limited to all mains, lines, services, fire hydrants and appurtenances
shown on the Final Development Plan Documents.
J. Development Construction Permit
1. The Developer shall apply for and obtain a Development Construction
Permit for each portion (on -site and off -site) of 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 each 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 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
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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
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.
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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. In the event that the Secretary of the Department of Housing and Urban
Development ("HUD") succeeds to the interests of the Developer, any obligations of the
Developer "or its successors and assigns" to indemnify the City or to hold the City
harmless under this Agreement shall be held in abeyance, without prejudice to the City,
until such time as HUD has transferred the Property to a new third party
developer/owner, who shall be automatically deemed to have assumed all such
obligations hereunder effective immediately upon the recording of the deed from HUD to
the new developer/owner.
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 parry'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.
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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:
Milestone Presidio, LLP
1400 16th Street, 6th Floor
Denver, CO 80202
With a copy to:
Moye White, LLP
1400 16'h Street, 6th Floor
Denver, CO 80202
Attn: Erik K. Foster, esq.
if to Imago Enterprises: Imago Enterprises, Inc.
140 Palmer Dr.
Fort Collins, CO 80525
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
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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. Imago Enterprises is made a party to this Agreement for the purpose of
subjecting the entirety of the Property to the covenants contained in this Agreement.
The City and the Developer expressly acknowledge and agree that Imago Enterprises
shall not be liable for any obligations of the Developer under this Agreement, unless
Imago Enterprises were to exercise any of the rights of the Developer in which event the
obligations of the Developer shall become those of Imago Enterprises.
APPROVED AS TO CONTENT:
�-eity Engm
APPROV D S TO FORM:
Deputy City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Munic' al Cor
By;
0
ity Mana e
15
DEVELOPER:
Milestone Presidio LLP, a Colorado limited liability
partnership
By: Milestone Development Group —
Fort Collins, LLC, a Colorado limited liability
comp
Its ana ing General Partn r
By:
Kenneth M. Kiken, M nager
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this � day of
30,41 , 2011, by Milestone Presidio, LLP by Milestone Development Group — Fort
Collins, LLC managing general partner by Kenneth M. Kiken as Manager.
._�.U�.. Notary Public
My Com
my Wmiulw E6 Ion JIM A 2W
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
„v„,..J ENTERPRISES:
Imago Enter ises, Inc., a Colorad C pora ion
By:
Lester M. Kaplan, President
11,01
The foregoing instrument was acknowledged before me this 0110111
Ju,K,e. -2011, by Lester M. Kaplan as President of Imago Enterprises, Inc.,,,,,.11
aNP
My Commission Expires: �Z
iu.
day of
blic
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.
M2
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 for which they are responsible 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 on 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.
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
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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.
2
wpm
of the
arties hereto and
ses
NOW, THEREFORE, in considerah t and afdequacy o fwhich are he eby
other good and valuable consideration, the receip
acknowledged, it is agreed as follows:
General Conditions
tivities of the
A. The terms of this Agreement shall govern all development acdevelopment
Developer pertaining to the Property. For the purposes of this Agreementactual
constr lopm of
o
activities" shall include, but not be limited to, the followi g: change grade, contour or
improvements, (2) obtaining a permit therefor, r () Y
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
lines,
shall be�nstalled as srm sewer hown on
and
facilities, streets, curbs, gutters, sidewalks, and bikepaths
the Final Development Plan Documents and in ice of thel compliance CityEngineerth the standards and
the time of approval
specifications of the City on file in the off year time limitation
of the utility plans relatt of the s tethe f speic cific c devbelopment plan. ject to a three 3n the event that the
from the date of approvalnt hereto after the
Developer commences or performs o approval construction
he purite sua
specific development plans the
of three (3) years from the date
7 The
Developer shall resubmit the utility plans to the City Engineer forapproved ination. and
City may then require the Developer to comply with the
specifications of the City on file in the office of the City Engineer at the time of the
resubmittal.
C. The Developer may not proceed beyond foundation constrsation nt arynsewee
public water lines and stubs to each lot, fire hydrants, eleccurb,
elines,
r, and pavement with
lines and stubs to each lot, and public streets suh (including curb, gand
at least the base course completed) serving shallcbe ssuedeforaany structurve been e loca ed in
accepted by the City. No building perm
its 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,"t ,tA � If the C ty Eng nhed hereto, lee ehastdetermined that
alled within the
time and/or sequence required on Exhibi
any water lines, sanitary sewer lines, storm drainage facilities and/or streets are
required to provide service or access to other ocuments the
andCity,
shall be installledshall
the
shown on the Final Development Plan
Developer within the time as established under "Special Conditions" in this Agreement.
E. Except as otherwise herein specifically anag steam t e Develonage per agrees to
and
install and pay for all water, sanitary
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,
to the property including all tlnedual and a�l electrical lines
lines(water
and sewer) leading m and from
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
tmanda edstandard
aequireme,then thespecifications,
hat if Federathe
o� State
nflicts
are a result of 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 agree
a result t it llf
be solely liable for any and all claims that might arise, directly or indirectly, as
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
o romi ss omissions the City in, except omaintenance lof such
ms and
damages as are caused by the acts
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 detailsosuch tpllnns,
which details shall be the responsibility of the Developer); and (3) specific
or
otherwise documented directives that
of alven to the Developy ny claim made age nst it toewhich this
ty. The
City agrees to give notice to the Developer
sole liability agreement by the Developer could apply, and the Developer shall have the
right to defend any lawsuit based onsuch l of all City liability ity through such seaim and to settle any such claim tlementd.
Developer must obtain a completedischarge
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,
andshall
such failurethis
shall consliability
titutegaere ease ement bof
the Developer to not apply to such claim the City of
this sole liability agreement as to such rvshall in noal of nd cceptance manner beydeemed to
any storm drainage facility design or construction
constitute a waiver or relinquishment by the City of the aforesaid rights and protections.
The Developer shall engage a Colorado licensed professional engineer to design the
storm drainage facilities as aforesaid
the benefit of the City, and subsequent purchasers of
engagement shall be intended for
property in the Development.
3
le "stormwer plant investment
1. The developer shall pay the i of thebCity Code. This fee is included fee"
with
in accordance with Chapter 26, Article Vl
building permit fees and shall be paid prior to the issuance of each building permit.
J. The Developer shall provide City
My ar sEngineer
upon completion of each phase
Transparencies on Black Image DiazoReve se
of the construction. Utilities will not be initially
rt Collins. ted prior to as -built drawings being
submitted to and approved by the City
of K. The Developer specificallrepresents t t to Its knowledge l property
with this
dedicated (both in fee simple and as easements)tothe Cityassociated
s in
ironmental
Development (whether on or off -site) i orders or requirements, including sol'dtwaste
and anti -pollution laws, rules, regulations,ency
requirements, as defined by the U. SEnvironmental Protection ated to thegC'ty purse egulations
this
40 C.F.R., Part 261, and that such property as s ded
Development, is in compliance with all such
corequirements
a y hazardous sulning to bstancesh pollupants or
osal or
existence in or on such dedicated property
contaminants, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 19ait
gated
s
as
in
annteamended, ad eestlations , does herebyagree
thereunder. The Developer, for itself an
that it shall be solely liable for any liability whatsoever thatposedisposal e
City by any governmental authority or any third parry, pertaining to by the Of hazardous substances, pollutants or c minants, and and/or backfilla of phazardolus esubstance leaking
underground storage tanks, excavation
pollutants or contaminants, or environmental cleanup ethe Cityt'inscon a tion with
of any nature
whatsoever on, of, or related to any property dedicated to
this Development, provided that such damages or liability are not caused by
ublic
circumstances arising entirely after the dedicated d property, acceptanceby
to the extent tthat he psuch
improvements constructed on the de P
circumstances are the result of actsomissions of the
liabDty arising as a eseveloper. Said lultlof any
agreement shall not extend to claims, actions
hazardous substance, pollutant or contaminant
ind connection onby the ywith
agents or representatives, upon the property ded Gated to the City made
this Development. The City agrees to give notice to the Developer of any claimand the
against it to which this
right liability defend any law uit ba edeon such claimloper could pand to settle
Developer shall have the ght oete
any such claim provided the Developer
of the Cityst ln a to give of anyrsuchfclalim' toliability
through such settlement. Fa
the Developer within ninety (90) days after the City first receives a notice of such claim
under the Colorado Governmental immunity
apply Act tothe same, suchfailuhle shall
s sole
liability agreement by the Developer to osuch claim and
constitute a release of this sole liability 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, The expressly
retains (and does not by this Agreement waive) its rights as property owner.
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.
II. Special Conditions
A. Water Lines
1. Not Applicable
B. Sewer Lines
1. Nothwithstanding anything in this Agreement to the contrary, the
Development will be provided sewer service from the South Fort Collins 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. All onsite and offsite storm drainage improvements associated with this
Development, as shown on the Final Development Plan Documents, shall be completed
in accordance with said Final Development Plan Documents prior to the issuance of any
certificate of occupancy. Completion of improvements shall include the certification by a
professional engineer licensed in Colorado that the drainage facilities which serve this
Development have been
shall be subm ttedconformance
to thewith
City at leasttDevelopment
weeks prior to
Documents. Said certification
the issuance of any certificate of occupancy 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 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.
5
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the Final Development Plan Documents to stabilize all
overlot grading in and adjacent to this Development. The Developer shall also be
required to post a security deposit in the amount of $ 2,406.38 prior to beginning
construction to guarantee the proper installation and maintenance of the erosion control
measures shown on the offsite (Presidio Precision Drive) portion of 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, either
nd
notwithstanding any provisions contained in paragraph 111(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 theprovisions
of said
such
plans and the Criteria are properly enforced. The City may apply portion
the
security deposit(s) as may be necessary to pay all costs incurred by the City in
undertaking the administration, construction, and/or installation of the erosion control
measures required by said plans and the Criteria. In addition, the City shall have the
option to withhold building permits and certificates of occupancy, as stated in Paragraph
III.D of this Agreement, as it deems necessary in order to ensure that the Developer
installs and maintains the erosion control measures throughout the build -out of this
Development.
4. The Developer agrees to provide and maintain erosion control
improvements as shown on the Final Development Plan Documents to stabilize all
overlot grading in and adjacent to this Development. The Developer shall also be
required to post a security deposit in the amount of $ 13,752.38 prior to beginning
construction to guarantee the proper installation and maintenance of the erosion control
measures shown on the onsite (Presidio Apartments) portion of 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 111(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 it in order rmits and certificateof occupancy,
to ensure that dthe Developer
in Paragraph
III.D of this Agreement, as deems necessary
6
installs and maintains the erosion control measures throughout the build -out of this
Development.
5. 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 (CO) for any building the Developer
shall provide the City with certification that the lot and the building grades have been set
correctly. This grading certification shall demonstrate that the building's finished 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
opening elevation for any building constructed is in compliance with the minimum
elevation as required on the Final Development Plan Documents. The final lot
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. There are to be several buildings on a single lot,
therefore a CO can be issued for the individual buildings with a partial certification that
includes verification that there is at least one half foot of fall away from the building
within the first 10 feet or less. The issuance of the final CO for the final building on a lot
will require that all "Lot" and building elevations are correct, with all interior grades and
swales in final form. Said certifications shall be completed by a Colorado licensed
professional engineer and shall be submitted to the City at least two weeks prior to the
date of issuance of the desired certificate of occupancy.
6. 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.
7. The drainage design for this Development provides for the evacuation
of storm drainage runoff in a reasonable amount of time out of the water quality and
detention facilities and into the drainage outfall system. The water quality and detention
facilities have been designed to discharge stormwater runoff from frequent storms over
a 40 hour period through a small diameter outlet. Under the intended operation of the
water quality and detention pond, there will not be standing water in the pond more than
48 hours after the end of a rainfall event. if surfacing or standing water conditions
persist in these facilities; and if such conditions are beyond what can be expected in
accordance with the approved stormwater design, the Developer shall promptly, upon
such discovery, install an adequate de -watering system in the detention facilities. Such
a system shall be reviewed and approved by the City prior to installation. This does not
apply to the fore bays, which can have standing water longer than 48 hours.
NA
be
ntenane of
l storm
8. The Developer constructed loutside of the public crrightlof-wayC including Storm
drainage facilities that arere
Drain Line A.
9. The water quality measures located within the detention pond, including
the fore bays, bioswale, and PLD, require precise construction and proper maintenance
in order for them to function properly. If these features do not function according to the
design due to excessive standing water or sediment buildup, within 3 growing seasons,
the Developer will be required to design and construct the an alternative structure to convey
the drainage throughhe bottom of the detention pond.
10. The construction of the PI -Ds within the detention pond shall be after
site construction and after the stabilization
surfaces shalof l be determined
bycthe Erosion on Conequacy of trol
stabilization of the landscape
Inspector.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to
reimburse Developer for oversizing public street improvements along Rock Creek Drive
for those portions of said street abutting the Property as shown on the Final
Development Plan Documents. Reimbursement for Rock Creek Drive shall be for
oversizing the sidewalk from locat(ecDeveloperdfodrstheto caforesaidaoaerszedhstrelet
ty
shall make reimbursement to he
improvements in accordance with Section 24-112 of the Code of the City. 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
ailable for such
Developer further understands that to the extent that funds are not av
reimbursement, the City may not, in the absence of Developer's agreement, require the
construction, at Developer's expense, of any oversized portion of streets not reasonably
necessary to offset the traffic impacts of the Development. Developer does hereby
agree to construct the aforesaid oversized street improvements with the understanding
that Developer may not be fully reimbursed by the City for the cost of such construction.
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 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 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 11(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 timprovements
forr the construction of the same must Ibe
Thousand Dollars ($30,000),he contract
8
submitted to a competitive bidding process resulting iri 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. 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.
4. Following completion of all public infrastructure improvements,
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. Not applicable.
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. 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 be solely liable for 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 der r the Colher orado Governmental
Immunity Act (Section 24-20-101 CR5, et. seq.) Y
D]
0