HomeMy WebLinkAboutCENTRE FOR ADVANCED TECHNOLOGY PUD NINETEENTH - Filed DA-DEVELOPMENT AGREEMENT - 2003-07-31DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this//'-�ay of F 199 by and
between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter
referred to as the "City"; Everitt Enterprises Limited Partnership No 1, a Colorado Limited
Partnership, hereinafter referred to as the "Developer"; and Everitt Investments, Inc., a Kansas
Corporation, I.T.C. Building, LLC, a Colorado Limited Liability Company, James F. Manion, an
individual, Dale L. Boehner, an individual, and Dianna L. Boehner, an individual, hereinafter
collectively referred to as the "Owner".
WITNESSETH:
WHEREAS, the Developer either owns or has entered into an agreement with the other
owners to acquire ownership of certain real property situated in the County of Larimer, State of
Colorado, (hereafter referred to as the "Property") and legally described as follows, to wit:
Centre for Advanced Technology P.U.D. Nineteenth Filing, located in the Southwest 1/4
of Section 23, Township 7 North, Range 69 West of the 6th P.M., and a Replat of a portion
of the Centre For Advanced Technology P.U.D. Seventeenth Filing, all in the City of Fort
Collins, County of Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to the City a
subdivision plat and/or a site plan and landscape plan, a copy of which is on file in the office of the
City's Director of Engineering and made a part hereof by reference; and
WHEREAS, the Developer has further submitted to the City utility plans for the Property,
a copy of which is on file in the office of the Director of Engineering 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 subdivision plat and/or site plan and landscape plan
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:
system is installed by the Developer and approved by the City.
2. Prior to beginning any building construction, and throughout the build out of this
development, the Developer shall provide and maintain at all times an accessway to said building
orbuildings. Such accessway shall be adequate to handle any emergency vehicles or equipment, and
the accessway shall be kept open during all phases of construction. Prior to the City allowing
combustible maternal on the site (other than forming material for concrete footings, foundations
and/or concrete walls) such accessway shall be improved to a width of at least 20 feet with 4 inches
of aggregate base course material compacted according to City Standards and with an 80 foot
diameter turnaround at the building end of said accessway. The turnaround is not required if an exit
point is provided at the end of the accessway.
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 Director of Engineering in accordance with the City's "Work Area
Traffic Control Handbook" and shall not remove said safety devices until the construction has been
completed and approved by the Director of Engineering.
B. The Developer shall, at all times, keep the public right-of-way free from accumulation
of waste material or rubbish caused by the Developer's construction activities; shall remove such
rubbish no less than weekly and; at the completion of the work, shall remove all such waste
materials, rubbish, tools, construction equipment, machinery, and surplus materials from the public
Fight -of -way. The Developer further agrees to maintain the finished street surfaces so that they are
free from dirt caused by the Developer's construction activities. 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
Director of Engineering. 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.
C. The Developer hereby agrees that it will require its 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 original plat and related documents, or any replat as subsequently filed by the
Developer, and the City may withhold such building permits and certificates of occupancy as it
deems necessary to ensure performance hereof.
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E. Nothing herein contained shall be construed as a waiver of any requirements of the City
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
OF construed to be a waiver bf any subsequent breach hereof.
G. Financial obligations of the City of Fort Collins payable after the current fiscal year
and/or not appropriated or budgeted are contingent upon funds for that purpose being appropriated,
budgeted and otherwise made available by the Fort Collins City Council.
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.
L In the event the Developer transfers title to the Property and is thereby divested of all
equitable and legal interest in the Property, the City hereby agrees to release said Developer from
liability under this Agreement with respect to any breach of the terms and conditions of this
Agreement occurring after the date of any such transfer of interest. In such event, the succeeding
property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material element hereof.
In the event that either party shall fail to perform according to the terms of this Agreement, such
party may be declared in default. In the event that a party has been declared in default hereof, such
defaulting party shall be given written notice specifying such default and shall be allowed a period
of ten (10) days within which to cure said default. In the event the default remains uncorrected, the
party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the
Agreement as continuing and require specific performance or; (c) avail itself of any other remedy
at law or equity.
K. In the event of the default of any of the provisions hereof by either party which shall
require the party not in default to commence legal or equitable action against said defaulting party,
the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's
reasonable attorney's fees and costs incurred by reason of the default. Nothing herein shall be
construed to prevent or interfere with the City's rights and remedies specified in Paragraph IILD of
this Agreement.
L. 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
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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 asset 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: Everitt Enterprises Limited Partnership No. 1
3000 S. College Avenue
Fort Collins, CO 80525
Notwithstanding the foregoing, if any party to this Agreement, or their 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 fore convenience of reference and shall in no way define, limit, or prescribe
the scope or intent of any provision under this Agreement.
P. The Owner(s) is made a party to this Agreement solely for the purpose of subjecting the
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Property to the covenants contained in this Agreement. The City and the Developer expressly
acknowledge and agree that the Owner(s) shall not be liable for any obligations of the Developer
under this Agreement, unless the Owner(s) were to exercise any of the rights of the Developer in
which event the obligations of the Developer shall become those of the Owner(s).
THE CITY OF FORT COLLINS, COLORADO,
a Municipal _+ Corporation
By: ,Q- . /L. J"'Z1
City Aanager
A TEST:
City Clerk
APPROVED AS TO CONTENT:
Director of Engineering
APPROVED AS TO FORM-
it Attorney
DEVELOPER:
Everitt Enterprises Limited Partnership No 1
Colorado Limited Partnership
David Everitt, President
ATTEST:
By:
Gary uder, Secretary/Treasurer
ATTEST -
By. 4e.,
Gary Sa r, Secretary/Treasurer
OWNER:
Dale L. Boehner, an individual
Dianna L. Boehner, an individual
Jaags F. Manion, an individual
Everitt Investments, Inc.
A Kansas Corporation
By �_.
David Everitt, President
I.T.C. ilding LLC
By: +
Randolph P. M#yers, Manager
14
FOR-3 L:
Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
Schedule of street improvements to be installed out of sequence.
Not Applicable
4. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
15
Not Applicable
16
CENTRE FOR ADVANCED TECHNOLOGY PUD NINETEENTH FILING
AMENDMENT AGREEMENT NO. 1
THIS AMENDMENT AGREEMENT, made and entered into this L Day of, of
190 , by and between the CITY OF FORT COLLINS, COLORADO, a municipal corporation,
("City"), Fveritt Enterprises Limited Partnership No 1, a Colorado Limited Partnership
("Developer"). and Everitt Investments, Inc., a Kansas Corporation, I.T.C. Building, LLC, a
Colorado Limited liability Company, James F. Manion, and individual, Dale L. Boehner, an
individual. and Dianna L. Boehner, an individual ("Owner"), is an amendment to that certain
Development Agreement dated June loth, 1998 by and between the City, the Developer and the
Owner, hereinafter referred to as the "Development Agreement."
WIIEREAS, the City. the Developer and the Owner previously executed the
Development Agreement, and
WHEREAS, the parties presently desire to modify the Development Agreement;
NOW. THEREFORE, in consideration of the promises of the parties hereto and other
good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the parties hereto agree to amend the terms and conditions of the Development Agreement as
follows:
A. Subheading II (Special Conditions) Paragraph D the following paragraph shall be added:
7. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain building permits and construct the required
public infrastructure improvements simultaneously with the construction of buildings A,
B, J. K and N as identified on the Plat. All public infrastructure improvements, including
all on -site and off -site storm drainage improvements, shall be completed by the
Dev eloper in accordance with the :._�iproved utility plans therefor and accepted by the City
prior to the issuance of any certific ate of occupancy for any structure on the Property.
B. All other terms and conditions of the Development Agreement shall remain unchanged and in
full force and effect, except as expressly amended in this Amendment Agreement No. 1.
C. This agreement may be executed by any number of counterparts and by any number of
counterpart signature pages. each of which shall be an original with the same effect as if each of
the signatures were affixed to the same instrument. A facsimile signature on a copy of this
agreement. transmitted electronically by telephone lines, shall be accepted as an original
signature Cor all purposes.
IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first
above written.
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
Bv: Q2 I.
City Man er
ATTEST:
c
CITY CLERK
APPROVED AS TO CONTENT:
i
Director of Engineering
APPROVE AS TO FORA: ,4 All C�
Deputy Cite Attorney
DEVELOPER:
Everitt Enterprises, Inc., Managing Partner of
Everitt Enterprises Limited Partnership o 1
Colorado Limit Part
By:
David'Everitt, President
ATTEST:
By:
Gary wider, Secretary,/Treasurer
ATTEST:
By:
Gary SU1 r, Secretary/Treasurer
OWNER:
Dale L. Boehner. an individual
c _ n
Dianna L. Boehner, an individual
Jadg F. Manion, an individual
Everitt Investments, Inc.
A Kansas Corporate
By:
David Ever it. President
I.T.C. Building, LLC
f0
Randolph P. Meyers, Manager
L General Conditions
A. The terms of this Agreement shall govern all development activities of the Developer
pertaining to the Property. For the purposes of this Agreement, "development activities" shall
include, but not be limited to, the following: (1) the actual construction of
improvements, (2) obtaining a building 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, sidevalks, and bikepaths shall be installed as shown on the approved utility plans and
in full compliance with the Council -approved standards and specifications of the City on file in the
office of the Direclor of Engineering at the time of approval of the utility plans relating to the
specific utility, subject to a three (3) year time limitation from the date of execution of this
Agreement. In the event that the Developer commences or performs any construction pursuant
hereto after three (3) years from the date of execution of this agreement, the Developer shall
resubmit the project utility plans to the Director of Engineering for reexamination. The City may
require the Developer to comply with approved standards and specifications of the City on file in
the office of the Director of Engineering at the time of resubmittal.
C. Except as otherwise specifically provided herein, no building permit for the construction
of any structure within the development shall be issued by the City until the public water lines, fire
hydrants, sanitary sewer lines, and public streets (including curb, gutter, sidewalk andpavementwith
at least the base course completed) serving such structure have been completed and accepted by the
City. Notwithstanding the foregoing, the Developer shall be entitled to receive a footing and
foundation permit for the construction of improvements within the development upon the installation
of adequate water lines, fire hydrants, and emergency access to provide fire protection and other
emergency services to the site. 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.
D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets described on
Exhibit' A," attached hereto, shall be installed within the time and/or sequence required on Exhibit
"A." If the Director of Engineering has determined that any water lines, sanitary sewer lines, storm
drainage facilities and/or streets are required to provide service or access to other areas of the City,
those facilities shall be shown on the utility plans and shall be installed by the Developer within the
time as established under "Special Conditions" in this document.
E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay
for al I water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs,
gutters, sidewalks, bikeways and other public improvements required by this development as shown
on the approved plat, site, landscape and utility plans, and other approved documents pertaining to
this development on file with the City.
2
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F. Street improvements (except curbs, gutters and walks) shall not be installed until all utility
lines to be placed therein have been completely installed, including all individual lot service lines
leading in and from the main to the property line.
G. The installation of all utilities shown on the utility plans 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 utility plans
shall supersede the standard specifications.
H. All storm drainage facilities shall be so designed and constructed by the Developer as to
protect downstream and adjacent properties against any injury resulting from any increase in the
quantity or rate of flow, or any change in the manner of delivery, of storm drainage runoff from the
Property, and shall be so designed and constructed as 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. Except with regard to injuries to downstream owners caused by the design,
construction or operation of the Drake Road Improvements storm sewer line, the Developer 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(l) 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 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 awaiver or relinquishment by the City of the aforesaid indemnification. The
Developer shall engage a Colorado licensed professional engineer to design the storm drainage
facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be intended for
the benefit of the City, and subsequent purchasers of property in the development.
I. The Developer shall pay storm drainage basin fees in accordance with Chapter 26, Article
VII of the City Code. Storm drainage improvements eligible for creditor City repayment under the
provisions of Chapter 26 are described together with estimated cost of the improvements on the
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attached Exhibit "B," which improvements, if applicable, shall include right-of-way, design and
construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances,
for specific instructions.
J. The Developer shall provide the Director of Engineering with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the
construction.
K. The Developer specifically represents that to the best of its knowledge all portions of the
Property dedicated 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 at40 C.F.R., Part261, 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 does
hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed
upon the City by any governmental authority, 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. The Developer further agrees to indemnify and hold
harmless the City fiom any claims or actions based directly, indirectly or in any manner on any of
the aforementioned environmental risks brought against the City by third parties arising as a result
of the dedication of portions of the Property to the City in connection with this development. 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.
I1. Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. Forthe purposes of this agreement "Initial Construction" of the C.A.T. 19thFiling
shall be defined as the area that is shown on sheet I3 of 20, with no shading, of the City approved
Utility Plans which encompasses buildings A,B,J,K,& N. "Final Construction" shall be defined as
the shaded area as shown on sheet I3 of 20 of the C.A.T. 19th filing Utility Plans which encompasses
building C,D,E,F,G,H,I,L,M,0,P,Q, R,&S.
For the purposes of this agreement the "Interim Plan" shall be defined as the planned improvements
as shown on sheets I1, I2, I3 of 20 of the C.A.T. 19th Filing Utility Plans, which describe planned
interim improvements on the site to take place period prior to the completion of the Drake Road
Improvements and all utility improvements associated with Drake Road construction.
For the purposes of this agreement "Final Plans" shall be defined as the complete on -site and off -site
improvements as shown on the C.A.T. 19th Filing Utility Plans and the C.A.T. 19th Drake Road
Improvements and all improvements to Centre Avenue as required by the Centre Avenue Agreement
attached hereto as "Exhibit C".
2. The Developer and the City agree that all on -site and off -site storm drainage
improvements associated with the Interim Plan for the development, shall be completed by the
Developer in accordance with said approved plans prior to the issuance of any certificate of
occupancy for the Initial Construction of the development. Completion of improvements shall
include the certification by a professional engineer licensed in Colorado that the drainage facilities
which serve this development have been constructed in conformance with said approved plans. Said
certification shall be submitted to the City at least two weeks prior to the date of issuance of any
certificate of occupancy for the Initial Construction of the development.
Prior to the issuance; of any building permit for the Final Construction, the Developer shall meet all
conditions contained in the Centre Avenue Agreement which apply to such issuance, including with
out limitation, construction of storm drainage and other utility improvements associated with Centre
Avenue. Prior to such issuance, the Developer shall also complete all other on -site and off -site storm
drainage improvements shown on the C.A.T. I9thFiling Utility plans and the C.A.T. 19thDrake Road
Improvements Utility Plans.
3. The pump in Pond D shall not be installed until after the area draining to Pond D
has been soil stabilized. The bottom of Pond D shall be sodded within a radius of 15 feet around the
pump inlet grate to minimize potential soil erosion.
4. Maintenance of the drainage facilities as shown on sheets I1& I3 of the C.A.T.
19th filing plans in Ponds D and C (including maintenance of the temporary pump facilities and the
12 inch PVC pipe crossing under Worthington Avenue) shall be the responsibility of the developer.
The developer also agrees to conduct monthly maintenance and ensure the proper functioning of the
temporary pump and the outfall drainage facilities until such time as the Drake Road Improvements
are completed..
5. At the request of the City and in connection with the Drake Road Improvements,
the Developer shall pay to the City the estimated cost in cash to fully cover the cost of removal of
the 12 inch PVC pipe under Worthington Avenue and a quality asphalt repair to Worthington
Avenue. The Developer shall provide a cost estimate to the City for approval including a 25%
contingency for removal of said pipe.
6. Any standing water conditions that may arise as a result of the lack of completion
of the ultimate drainage facilities shall be fixed to the satisfaction of the City by the developer
immediately upon request from the City. Any damages caused to the public rights of way as a result
of the standing water condition shall be the responsibility of the developer, and the Developer shall
promptly reimburse the City for any such damages.
7. The Developer and the City agree that there maybe downstream drainage impacts
associated with the construction of the Drake Road improvements storm sewer line. It is agreed that
within 6 months from the date of execution of this agreement a drainage study shall be completed
by the City to assess the effects of the approved Drake Road improvements design on the existing
downstream drainage facilities. In the event negative impacts are discovered resulting from the
approved drainage design, the Drake Road improvements drainage system shall be revised by the
City at its expense, in a manner that is determined by the Stormwater Utility to cause no adverse
downstream impacts.
8. The Developer agrees to provide and maintain erosion control improvements as
shown on the approved interim and final plans 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
$25,425.00 prior to beginning construction to guarantee the proper installation and maintenance of
the erosion control measures shown on all approved utility plans for this development. Said security
deposit(s) shall be made in accordance with the criteria set forth in the City's Storm Drainage Design
Criteria and Constnaction Standards (Criteria). If, at any time, the Developer fails to abide by the
provisions of all approved utility plans or the Criteria, 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 IILD of this Agreement, as it
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deems necessary in order to ensure that the Developer installs and maintains the erosion control
measures throughout the buildout of this development.
9. The Developer and the City agree that it is important that all lots be graded to
drain in the configuration shown on the approved final plan for this development. For this reason
the following additional requirements shall be followed for building on all lots.
Prior to the issuance of a certificate of occupancy for each lot the Developer shall provide
the City with certification that the lot has been graded correctly (including the grading of any
minor swales, if applicable); the lot corner elevations specified on the approved plans are
correct and in accordance with the approved plans; and the minimum floor elevation for all
buildings constructed on said lot has been completed in accordancewith the approved plans.
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.
10. 'The buildings to be constructed in this development abut certain storm drainage
facilities and it is agreed that it is of the utmost importance that no storm water from said facilities
enters buildings A,B,D,E,J,K,O,Q& R. In order to provide assurance that said buildings are
constructed at an elevation that said storm water cannot enter, the approved final plans for this
development contain specifications for the minimum elevation for any opening to each such
building. Prior to the issuance of a certificate of occupancy for each of said buildings, the Developer
shall provide certification from a professional engineer licensed in Colorado that the lowest opening
to said building is at or above the minimum elevation required on the approved final plans for the
development. Said certification is in addition to, and may be done in conjunction with, the site
certification described in paragraph ILC.1. above.
11. The Developer shall obtain the City's prior approval of any changes from all
approved utility plans 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
occupancies for this, development until the City has approved such changes as being acceptable for
the safe and efficient delivery of storm drainage water.
12. 'The Developer and the City agree that the Developer is obligated to maintain all
on -site storm drainage facilities not accepted for maintenance by the City and all off -site storm
drainage facilities shown on the approved Utility Plans and not accepted for maintenance by the City
serving this development and outside of the public rights -of -way.
D. Streets.
1. Pursuant to Section 24-95 of the City Code, the Developer is obligated to construct
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the arterial street improvements for Drake Road along the frontage of the Property. However, the
City agrees that since Drake Road along the frontage of the Property is currently scheduled as a City
Street Oversizing Improvement Project, the developer is only required to construct sidewalk and
temporary paving as shown on the Interim Plan improvements to Drake Road associated with
buildings A,B,J,K,&N at the time of construction of this Development. However, because the
Developer remains obligated for the local street portion (which includes curb, gutter, 4.5 feet of
sidewalk width, and one 13 foot travel lane of full depth asphalt) of the improvements along the
frontage of the Property, the Developer shall be required to deposit funds in the form of cash with
the city to fully cover the cost of design and construction of this portion of the improvements. The
Developer is also responsible for the deposit of funds in the form of cash to fully cover the cost of
the removal of the 12 inch PVC pipe under Worthington Avenue as per Section II.C.S of this
agreement.
Prior to the issuance of each building permit for this development the Developer shall pay the City
that portion of its local street portion of the Drake Road Improvements required in accordance with
Exhibit "D". The amount shall be paid to the City in the form of cash.
2. Subject to the conditions of this Agreement, the City agrees to reimburse the
Developer for oversizing public street improvements along Centre Avenue from Research Blvd. to
Prospect Road, or if the construction is done by a third party pursuant to the Centre Avenue
Agreement, to such third party. Reimbursement for Centre Avenue shall be for oversizing the street
from residential (access) standards to Arterial standards. The City shall make reimbursement to the
Developer or appropriate third party for the aforesaid oversized street improvements in accordance
with Section 24-121 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 24-121 (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 24-121 (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
24-121 (d).
3. All conditions and requirements contained in the "CENTRE AVENUE
AGREEMENT" executed April 20, 1998 attached hereto as Exhibit C as they pertain to the
Developer and the Initial and Final Construction, shall be met.
I.
4. 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.
5. The traffic signal at the intersection of Drake Rd. and Worthington Avenue will
be designed and constructed by the City when warranted, however cost of said signal is the
responsibility of the Developer which costs are included in Exhibit "D".
6. The Developer and the City agree that the Developer is responsible for all costs
for the initial installation of traffic signing and striping for this development related to the
development's local street operations. In addition the Developer is responsible for all costs for
traffic signing and striping related to directing traffic access to and from the development (e.g., all
signing and striping for a right turn lane into the development site).
E. Ground Water
1, The City shall not be responsible for, and the Developer 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 sustained as a result of the City's failure to properly maintain its storm
drainage facilities in the 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 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 such claim and such failure shall constitute a release of this indemnity and hold harmless
agreement as to such claim.
F. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a permanent water
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