HomeMy WebLinkAboutLIND PROPERTY SECOND - Filed DA-DEVELOPMENT AGREEMENT - 2011-11-03DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this day of 4��Y
2007, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; and Centex Homes, a Nevada general
partnership, 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:
Lind Property, Filing 2, a tract of land located in the southwest quarter of Section
29, Township 8 North, Range 68 West of the 6th P.M., City of Fort Collins,
County of Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, plans (including utility plans), reports and other documents required for
the approval of a final plan according to the City's development application submittal
requirements master list (the "Final Development Plan Documents") copies of which are
on file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and
will further require the installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the Final Development Plan Documents
submitted by the Developer subject to certain requirements and conditions, which
involve the installation of and construction of utilities and other municipal improvements
in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
I. General Conditions
A. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement,
any security then held by the City shall be released to the Developer, and the
Developer's obligation for this security shall be considered satisfied.
The interim road improvement to Mountain Vista Drive/County Road 9 and County Road
11 is not a structural overlay and is not capable of supporting the construction traffic for
the build out of this Development. Therefore, the Developer shall establish a "haul
route" that utilizes only the portion of Mountain Vista Drive between Giddings Road and
Interstate Highway 25 and shall utilize Giddings Road only between Mountain Vista
Drive and Richards Lake Road (County Road 52) and shall utilize Richards Lake Road
(County Road 52) only between Turnberry Street (County Road 9) and Giddings Road.
5. The City understands and acknowledges that, subject to then
applicable permits from the City, the Anadarko entities and their successors and
assigns have the right to connect their oil and gas pipelines from the Oil and Gas
Operations Area designated as Tract M on the plat for the Lind Property, Second
Filing, under Brightwater Drive and Beachcomber Lane at the appropriate locations
under the roads as show on the plat.
6. 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.
7. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
E. Trail
1. The Developer shall construct the regional trail as shown on the
Final Development Plan Documents to a width of ten (10) feet in accordance with City
regional trail standards. The City shall reimburse the Developer for the additional cost
incurred by the Developer to upgrade the facility from "sidewalk" standards to "regional
trail" standards (one inch additional thickness, two feet additional width, fiber mesh and
color).
The Developer (or upon assignment to and assumption by the Home Owner's
Association) shall be responsible for the maintenance of said trail until such time that
the trail is connected into the regional trail system in the surrounding areas provided,
however, that said responsibility shall not exceed a period of 10 years from the date of
acceptance by the City. Upon assignment, the Developer shall have no further
obligation under this paragraph E.(1).
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F. Natural Resources
1. The Developer shall ensure that all open space and/or drainage
tracts properly maintained for a three (3) year period following construction thereof to
ensure that the vegetation and hydrologic regime are fully established. Monitoring of
the vegetation shall occur at least 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
Current Planning Department semi-annually for review.
2. The areas of the Development that are planned to be seeded, shall
be inspected jointly by the Developer and the City at specified intervals for three (3)
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
not 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 one square foot), or fifty percent (50%)
coverage of the specified foliage as measured from five feet (5) directly overhead, with
no bare spots larger than 1000 square centimeters. At the time of the second growing
season inspection, there shall be seventy-five percent (75%) foliage cover of the
specified species planted as measured from five feet (5') directly overhead. No more
than ten percent (10%) of the species noted on the site may be weedy species as
defined by Article III, Section 20-41 of the Code of the City. The Developer shall be
responsible for weed control at all times. Determination of required coverage will be
based on fixed transects each ten meters in length, randomly placed in representative
portions of the seeded areas, with plant species or bare ground/rock/litter being noted
every ten (10) centimeters along each transect. The Developer shall warrant all seeded
areas for 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
fuel spill to directly flow, seep, run off, or be washed into a body of water, wetland or
drainage way. This paragraph does not apply to any oil or gas wells or appurtenances
related to any mineral exploration surface use rights.
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 that are to be
undisturbed, with orange construction fence prior to any type of construction, including
overlot grading.
5. Prior to the commencement of any development activities within the
Limits of Development, the Developer shall relocate or eradicate any prairie dogs
inhabiting any portions of the site using City -approved methods as set forth in Chapter 4
of the City Code. If prairie dogs are present fumigation is best done between late April
and early June and relocation shall occur prior to March 1 or after May 31 of any given
year. The Developer shall consult with the City Department of Natural Resources at
least 48 hours prior to the removal any prairie dogs to determine the boundaries of the
area in which prairie dogs will be required to be removed. The Developer shall
immediately remove and appropriately dispose of all visible deceased animals of any
species found on either the construction site or within the prairie dog removal
boundaries.
G. Ground Water, Subdrains and Water Rights
1. The City shall not be responsible for, and the Developer (for itself
and its successor(s) in interest) hereby agrees to indemnify and hold harmless the City
against, any damages or injuries sustained in the Development as a result of ground
water seepage or flooding, structural damage, or other damage unless such damages
or injuries are proximately caused by the City's negligent operation or maintenance of its
storm drainage facilities. However, nothing herein shall be deemed a waiver by the City
of its immunities, defenses, and limitations to liability under the Colorado Governmental
Immunity Act (Section 24-20-101 CRS, et. seq.) or under any other law.
2. If the Development includes a subdrain system, any such subdrain
system, whether located within private property or within public property such as street
rights -of -way or utility or other easements, shall not be owned, operated, maintained,
repaired or reconstructed by the City and it is agreed that all ownership, operation,
maintenance, repair and reconstruction obligations shall be those of the Developer or
the Developer's successor(s) in interest. Such subdrain system is likely to be located
both upon private and public property and, to the extent that it is located on public
property, all maintenance, operation, repair or reconstruction shall be conducted in such
a manner that such public property shall not be damaged, or if damaged, shall, upon
completion of any such project, be repaired in accordance with then existing City
standards. The City shall not be responsible for, and the Developer, for itself and its
successor(s) in interest, hereby agrees to indemnify and hold harmless the City against
any damages or injuries sustained in the Development as the result of groundwater
seepage or flooding, structural damage or other damage resulting from failure of any
such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and
hold harmless the City against any damages or injuries to water rights caused, directly
or indirectly by the construction, establishment, maintenance or operation of the
Development.
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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.
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. This
paragraph does not apply to any oil or gas wells or appurtenances related to any
mineral exploration surface use rights.
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.
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." Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section
3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use
Regulations, as applicable. Notwithstanding the provisions of paragraphs III (H) and (1)
of this Agreement to the contrary, the obligations of the Developer pursuant to this
paragraph and Exhibit "C" may not be assigned or transferred to any other person or
entity 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.
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K. Soil Amendment.
1. In all areas associated with Phase 1 of 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 more than 20 building permits in Phase 1 of this Development.
2. In all areas associated with Phase 2 of 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 more than 16 building permits in Phase 2 of this Development.
3. 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 additional building permits
in this Development.
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.
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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
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
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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
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: Centex Homes
Attn: William V. Anner
9250 East Costilla Avenue, #200
Greenwood Village, CO 80112
With a copy to: Centex Homes
Attn: F. Timothy Hoyt, Jr. Esq.
Midwest Region Legal Department
14850 Scenic Heights Road, Suite 125
Eden Prairie, Minnesota 55344
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 Development shall be entitled to statutory vested rights as set out in
Section 2.2.11(D) of the Land Use Code.
Q. Notwithstanding anything in this Agreement to the contrary, it is
specifically agreed by the Developer and the City that in the event of any claim for
indemnification by the City hereunder against the Developer (or any successor to the
Developer), it is specifically understood that the City shall be obligated to give to the
Developer or the appropriate successor, notice of any such claim promptly upon the
City becoming aware of it, that the City cooperate in a reasonable manner with the
Developer or the appropriate successor in connection with any defense of such a claim,
that the Developer or the appropriate successor shall have the right to defend any such
claim with counsel of its own choosing, and that the City shall not be entitled to bind the
Developer or its successor by any settlement of any such claim without the prior written
consent of the Developer or its successor, which consent shall not be unreasonably
withheld.
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THE CITY OF FORT COLLINS, COL RADO,
a Municipal Corporation
By: _
City Manager
ATTEST: 0... C)f�TG,p
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• . to
City Clerk1�L
APP- VED AS TO CONTENT:
RA
City Engineer v
7AP,RO AS O FORM:
Deputy City Attorney
ATTCQT-
DEVELOPER:
Centex Homes, a Nevada general partnership
By: Centex Real Estate Corporation, a Nevada
corporation and Managing General Partner
By:
William V. Anner, Denver Di ion
President
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EXHIBIT "A"
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.
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
Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
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"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 bike paths 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 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 Final Development Plan
Documents and other approved documents pertaining to this Development on file with
the City. Nothing herein shall preclude the Developer petitioning for the utilization of the
mechanism of a special improvement district for the construction of improvements, as
provided in Chapter 22 of the Code of the City.
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EXHIBIT "B"
Not Applicable
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EXHIBIT "C"
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of two (2) years
from the date of completion and first acceptance by the City of the public improvements
warranted hereunder, the full and complete maintenance and repair of the public
improvements constructed for this Development. This warranty and guarantee is made
in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land
Use Regulations, as applicable. This guarantee applies to the streets and all other
appurtenant structures and amenities lying within the rights -of -way, easements and
other public properties, including, without limitation, all curbing, sidewalks, bike paths,
drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any
maintenance and/or repair required on utilities shall be coordinated with the owning
utility company or city department.
The Developer shall maintain said public improvements in a manner that will assure
compliance on a consistent basis with all construction standards, safety requirements
and environmental protection requirements of the City. The Developer shall also correct
and repair, or cause to be corrected and repaired, all damages to said public
improvements resulting from development -related or building -related activities. In the
event the Developer fails to correct any damages within thirty (30) days after written
notice thereof, then said damages may be corrected by the City and all costs and
charges billed to and paid by the Developer. The City shall also have any other
remedies available to it as authorized by this Agreement. Any damages which occurred
prior to the end of said two (2) year period and which are unrepaired at the termination
of said period shall remain the responsibility of the Developer.
REPAIR GUARANTEE:
The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5)
year period, commencing upon the date of completion and acceptance by the City of the
public improvements constructed for this Development, from any and all claims,
damages, or demands arising on account of the design and construction of public
improvements of the Property shown on the approved plans and documents for this
Development; and the Owner furthermore commits to make necessary repairs to said
public improvements, to include, without limitation, the roads, streets, fills,
embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the
right-of-way easements and other 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.
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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.
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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.
H. Developments constructed with privately maintained streets shall be
constructed to the same design standards as those constructed on similar public rights -
of -way (ROW). Public easements shall be provided for access, utilities and drainage as
required by the design and location of such infrastructure and as reflected on the plans.
Alignment and grades on privately maintained streets and drives shall allow for safe
access, ingress and egress by owners, visitors, the general public and public safety
officials and equipment, as approved by the City Engineer.
I. 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.
J. 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.
K. 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.
L. 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.
M. 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 Development 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 Elco 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 this 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 in two phases in accordance with said Final
Development Plan Documents. The phased 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 20 building permits in
Phase 1. Phase 1 construction shall include the overlot grading of the entire
development site and the grading along the entire length of the Outlet 8 Canal Ditch.
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. Phase 1
construction shall include the construction of the detention pond facility and all
temporary drainage swales.
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 16 single family
building permits in Phase 2 of the 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.
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 $ 82,996.00 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
additional 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
have 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 improvement lines to the limits of construction as shown on the Final
Development Plan Documents. The contractor shall re -seed and 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 property during the construction of the detention pond facilities. No grading
shall be done outside of the approved areas as shown on the Final Development Plan
Documents.
7. The drainage design for this Development provides for the
evacuation of storm drainage runoff in a reasonable amount of time out of the detention
facilities and into the drainage outfall system. If, during or within 2 years after
construction and acceptance of the detention facilities associated with this
Development, surfacing or standing water conditions persist in these facilities; and if
such conditions are beyond what can be expected in accordance with the approved
stormwater design, the Developer shall promptly, upon such discovery, install an
adequate de -watering system in the detention facilities. Such a system shall be
reviewed and approved by the City prior to installation.
8. 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 maintain the temporary drainage facilities associated with Phase 1 in operational
condition at all times. If at any times these facilities are deemed to be not functioning in
accordance with the Final Development Plans for this development, the Developer shall
promptly bring these facilities into compliance with these plans.
9. The Developer agrees to indemnify and hold harmless Windsor
Reservoir Company ("Irrigation Company") and the City from any claim, damage, 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, and the Developer shall further indemnify and hold harmless the
City and the Irrigation Company from any such claim, damage, injury or cause of action
by third parties which results from stormwater volumes added to the ditch by the
Developer in excess of historic flows except as such claim, damage, injury or cause of
action is a result of a negligent act or acts of the Irrigation Company.
D. Streets.
1. Subject to the conditions of this Agreement, the City shall
reimburse the Developer for oversizing public street improvements along Brightwater
Drive for those portions of said street abutting the Property as shown on the Final
Development Plan Documents. Reimbursement for Brightwater Drive shall be for
oversizing the street from local (access) standards to 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. The Developer is obligated to construct the local street portion of
the County Road 52 improvements adjoining this Development as specified on the Final
Development Plan Documents. The Maple Hill Development on the south side of
County Road 52 may or may not have a portion of said improvements constructed at
the time this Development obtains its Development Construction Permit. Consequently,
there may be a repay due by the Developer for any constructed improvements to
County Road 52 for which this Development is responsible.
4. This Development is required to participate in the City's future road
improvements to bring County Road 11 up to current standards from the northern most
boundary of Lind, Filing 1 to the north property boundary and is responsible for its
proportional share based on the ratio of acres in this Development to the total number of
acres in the Lind ODP. However, the construction of improvements to County Road 11
at the time of the initial phases of this development is not desirable or necessary.
Therefore, the Developer agrees to provide to the City for its approval, an estimate of
costs for its local street portion of such roadway improvements, which estimate shall be
prepared by an engineer licensed in Colorado. Upon approval by the City of said
estimate, the Developer shall deposit with the City to be held in escrow for said
construction purpose said estimated amount plus fifty (50%) additional, to cover the cost
of inflation and administration. Said deposit may be in the form of cash, bond,
certificate of deposit or bank letter of credit and shall be delivered to the City prior to the
issuance of no more than fifty (50) building permits, provided further that such security
may be substituted with different security acceptable to the City, whereupon the original
security shall be released to the Developer. At any time the Developer may provide a
nonrefundable, nonsubstitutable cash payment to the City in satisfaction of the
Developer's obligation for such work. Such cash payment shall be in the amount of said
estimate, plus such additional amount as is necessary to bring the estimate current,
accounting for actual inflation in costs. Upon receipt by the City of such cash payment,