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HomeMy WebLinkAboutCOTTONWOOD RIDGE - Filed DA-DEVELOPMENT AGREEMENT - 2003-07-31DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into this day of�7� 199_j_, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and E.T. Designs, LLC, a limited liability company, hereinafter referred to as the "Developer"; and Eric Thayer, Jill Thayer, Ann Thayer Whittemore and Troy Thayer, individuals, hereinafter collectively referred to as the "Owner". WITNESSETH: WHEREAS, the Developerhas entered into an agreementwith the ownerto develop 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: Cottonwood Ridge, a subdivision of a portion of the Northeast 1/4, Section 3, Township 6 North, Range 69 West, Fort Collins, Larimer County, 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 consideratio other good and valuable consideration, the acknowledged, it is agreed as follows: I. General Conditions n of the promises of the parties hereto and receipt and adequacy of which are hereby 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 3. Prior to the issuance of more than four (4) building permits for Phase 1 development, the Developer shall complete construction of those required Phase 1 on -site and off -site improvements to Shields Street (including related utility and storm drainage improvements) from the north side of the outlot (shown on the Utility Plans and herein after referred to as the "Outlot") to the south boundary of the Property in accordance with the final development plan documents. 4. 'The Developer and the City agree that no building permit shall be issued for lot 18 (which lot is in close proximity to Shields Street and, accordingly, may be impacted by improvements required on Shields Street) until the street improvements on Shields Street from the Outlot south, have been completed with at least the construction of curb, gutter and sidewalk, and said improvements have been approved by the City. 5. No access to lot 18 shall be allowed off of Kininak Circle. 6. All access to lot 1 shall be taken off of the western portion of said lot. No access is allowed off of the eastern half of the frontage of said lot. 7. The Developershall not be responsible forconstructing ormaintaining that portion of Shields Street (except for the Shields Street sidewalk which the Developer shall construct and maintain) adjacent to the Property from Westbury Drive south to the Outlot, a distance of approximately 650 feet, but the Developer shall satisfy its share of such street improvements by making a cash deposit at the time of building permit issuance with each lot in this development. The terms for said deposit are described as follows: (a) The Developer will pay the amount of $ 663.47 with the issuance of each building permit for each dwelling unit commencing with the first building permit issued in this Development and all succeeding building permits in this development. If any portions of said sums are paid by the Developer after the year 1999, the Developer agrees to pay the amount specified above plus an additional amount, to be calculated as described below, to recognize the effects of inflation with said amount to be increased each year until payment is completed in full. (b) The inflation factor (Inf. Fac.) for each year's payments shall be calculated using the construction cost index for Denver as published in the Engineering New Record (ENR) for July 1999, as the base index (I -Base) and the same index published in the ENR for the January in each succeeding year immediately preceding payment (I - year of payment). The formula for calculating said inflation factor shall be as follows: Inf. Fac. _ (I - year of payment) - (I - base) (I - base) (c) The amount to be added to each $ 663.47 payment to compensate for inflation 10 shall be equal to $ 663.47 times the inflation factor. Said amounts added to compensate for inflation shall not reduce the total (principal) amount due. 8. No access to lots 17 and 18 shall be allowed off of Fairchild Lane until the street has been completed with either a City approved temporary turnaround or permanent cul de sac, or until the street has been extended to become a through street in accordance with City standards. 9. No building permits in Phase 1 of the Development shall be allowed until Kininak Circle has been completed with either a City approved temporary turnaround or permanent cul de sac, or until the street has been extended to become a through street in accordance with City standards. 10. Lots 4, 7, 68, 69 and 70 require an approved residential fire sprinkler system because the lots are out of fire access. No certificate of occupancy shall be provide on said lots until the residential fire sprinkler system is approved by Poudre Fire Authority. 11. The Developer and the City agree that no building permits shall be issued for lots 24, 26, 28, 29, 31 and 32 (which lots are in close proximity to Shields Street and, accordingly, may be impacted by improvements required on Shields Street) until the interim street improvements (sidewalk, grading and drainage improvements) on Shields Street, and Westbury Drive south to the Outlot, have been completed and said improvements have been approved by the City. 12. No access to lot 52 shall be allowed off of Aqua Fria Drive until the street has been completed with either a City approved temporary turnaround or permanent cul de sac, or until the street has been extended to become a through street in accordance with City standards. 13. No access to the western half of lot 51 shall be allowed until Aqua Fria Drive has been completed with either a City approved temporary turnaround or permanent cul de sac, or until the street has been extended to become a through street in accordance with City standards. 14. No building permit shall be issued for lot 50 until Aqua Fria Drive has been completed with either a City approved temporary turnaround or permanent cul de sac, or until the street has been extended to become a through street in accordance with City standards. 15. Construction of this development must be done in sequential order and cannot occur until improvements for the prior Phase(s) are completed. No building permits will be issued wifin Phases 2, 3 and 4 until the streets and utilities within the preceding Phases have been completed in accordance with Section I.C. of this agreement. Construction of two or more phases may occur simultaneously, however, no building 11 permits in Phase II, III, or IV shall be issued until improvements have been completed in the previous phase. 16. 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). 17. 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 29-13 and 29-14 of the Transitional Land Use Regulations of the City. E. Ground Water 1. The Developer and the City recognize that this development has several canals, ditches and/or laterals running through the development and seepage from said canals, ditches and laterals may impact the ground water levels in the development. Accordingly, it is agreed that the developer shall be allowed to install a subdrain system, designed to help prevent water from seeping into basements of homes constructed within the development, in accordance with the approved plans for this development. The Developer and the City agree that the City shall not be responsible for the maintenance or proper functioning of said subdrain system and that it shall be the responsibility of the Developer to maintain said subdrain system. 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 to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. F. Natural Resources 1. Prior to the issuance of any building permit or the commencement of any grading or clearing on Lots 7, 8, 9, 10, 68 and 69 the developer shall submit to the Natural 12 Resources Department and the Storm Drainage Utility for review and approval a detailed grading and erosion control plan and site plan for each of said lots. The plan shall be prepared by a professional engineer licensed in Colorado and show how the grading of the site interfaces with the conservation and drainage easement and the existing trees on said lots. Grading shall blend into the existing grade of the area and minimize the impact upon the conservation and drainage easement and existing trees. Said plans shall be submitted to the City at least two weeks prior to any grading or clearing of the lots. Prior to commencing said "development activities", the Developer shall stake on the property the limits of disturbance as delineated on the approved utility plans. Any modifications (1) to the boundaries of said limits of disturbance or (2) to either the erosion control plan or the revegetation plan approved by the City; and/or any "development activities" proposed outside of said limits of disturbance, within the conservation easement, and/or on lots 7, 8, 9, 10, 68 or 69 (except as approved by the City) shall require review and approval by the City Natural Resources Department and Storm Drainage Utility prior to commencement. G. 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. H. Development Construction Permit 1. The Developer shall apply for and obtain a Development Construction Permit for this development, in accordance with Division 2.6 of the Land Use Code (or Section 29-12 of the Transitional Land Use Regulations, if applicable), prior to the Developer commencing construction. The Developer shall pay the required fees for said Permit and construction inspection, and post security to guarantee completion of the public improvements required for this development, prior to issuance of the Development Construction Permit. I. Maintenance and Repair Guarantees 1. The Developer agrees to provide a two-year maintenance guarantee and a five-year repair guarantee covering all errors or omissions in the design and/or construction of the public improvements required for this development, which guarantees shall run concurrently and shall commence upon the date of completion of the public improvements and acceptance thereof by the City. More specific elements of these guarantees are noted in Exhibit "C." Securityforthe maintenance guarantee and the repair guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use Regulations, as applicable. III. Miscellaneous 13 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 iin accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been completed . B. As required pursuant to Chapter 20, Article IV of the City Code, the Developer shall, at all times, keep the public right-of-way free from accumulation of waste material, rubbish, or building materials caused by the Developer's operation, or the activities of individual builders and/or subcontractors; shall remove such rubbish as often as necessary, but no less than daily and; at the completion of the work, shall remove all such waste materials, rubbish, tools, construction equipment, machinery, and surplus materials from the public right-of-way. The Developer further agrees to maintain the finished street surfaces so that they are free from dirt caused by the Developer's operation or as a result of building activity. Any excessive accumulation of dirt and/or construction materials shall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until the problem is corrected to the satisfaction of the City Engineer. If the Developer fails to adequately clean such streets within two (2) days after receipt of written notice, the City may have the streets cleaned at the Developer's expense and the Developer shall be responsible for prompt payment of all such costs. The Developer also agrees to require all contractors within the development to keep the public right-of-way clean and free from accumulation of dirt, rubbish, and building materials. C. The Developer hereby agrees that it will require its contractors and subcontractors to cooperate with the City's construction inspectors by ceasing operations when winds are of sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the public health and welfare. D. The Developer shall, pursuant to the terms of this Agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the final development plan documents, or any documents executed in the future that are required by the City for the approval of an amendment to a development plan, and the City may withhold 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 14 be held or construed to be a waiver of 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. I. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the Developer shall be released from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. J. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. K. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall be liable to the non -defaulting party for the non - defaulting party's reasonable attorney's fees and costs incurred by reason of the default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph III.D of this Agreement. L. Except as may be otherwise expressly provided herein, this Agreement shall not be construed as or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever. M. It is expressly understood and agreed by and between the parties hereto that this Agreement shall be governed by and its terms construed under the laws of the State of Colorado and the City of Fort Collins, Colorado. 15 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: ET Designs, LLC Attn: Eric Thayer 31741 RCR #35 Steamboat Springs, Co 80487 With a copy to: March & Liley, P.C. Attn: Lucia Liley 110 E. Oak Street, Suite 200 Fort Collins, Co 80524 If to the Owner: Eric Thayer, Jill Thayer, Ann Thayer Whittemore and Troy Thayer c/o ET Designs, LLC Attn: Eric Thayer 31741 RCR #35 Steamboat Springs, Co 80487 With a copy, to: March and Liley, P.C. Attn: Lucia Liley 110 E. Oak Street, Suite 200 Fort Collins, Co 80524 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 16 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. Thiere 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 is made a party to this Agreement solely for the purpose of subjecting the Property to the covenants contained in this Agreement. The City and the Developer expressly acknowledge and agree that the Owner shall not be liable for any obligations of the Developer under this Agreement, unless the Owner were to exercise any of the rights of the! Developer in which event the obligations of the Developer shall become those of the Owner. ATTEST: City Clerk APPROVED AS TO ONTENT: �` o �v_ City Enginee APPRO AS TO FORM: G Deputy City Attorney THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: 1� 1414--Z91 L Citylanager 17 DEVELOPER: E.T. Designs, LLC, a limited liability company Eric Thayer, Manager OWNER: Eric Thayer, an individual Z/ Jill Thayer, an individual -44 Ann Thayer hitt�orxe,/an individual Troy Thayer, an individual EXHIBIT "A" Schedule of water lines to be installed out of sequence. Not Applicable. 2. Schedule of sanitary sewer lines to be installed out of sequence. Not Applicable. 3. Schedule of street improvements to be installed out of sequence. Not Applicable 4. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. LI improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or appearance of the Property caused by, or on behalf of, the Developer with the intent to construct improvements thereon. B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the approved utility plans and in full compliance with the standards and specifications of the City on file in the office of the City Engineer at the time of approval of the utility plans relating to the specific utility, subject to a three (3) year time limitation from the date of execution of this Agreement. In the event that the Developer commences or performs any construction pursuant hereto after the passage of three (3) years from the date of execution of this agreement, the Developer shall resubmit the utility plans to the City Engineer for reexamination. The City may then require the Developer to comply with the approved standards and specifications of the City on file in the office of the City Engineer at the time of the resubmittal. C. Except as otherwise expressly agreed upon in this agreement, no building permit for the construction of any structure within the development shall be issued by the City until the public water lines and stubs to each lot, fire hydrants, sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and pavement with at least the base course completed) serving such structure have been completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred and sixty feet (660') from a single point of access, unless the structures contain sprinkler systems that are approved by the Poudre Fire Authority. D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets described on Exhibit "A," attached hereto, shall be installed within the time and/or sequence required on Exhibit "A." If the City Engineer has determined that any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the utility plans and shall be installed by the Developer within the time as established under "Special Conditions" in this document. E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by this development as shown on the approved final development plan documents and other approved documents pertaining to this development on file with the City. F. Street improvements shall not be installed until all utility lines to be placed therein have been completely installed, including all individual lot service lines leading in and from the main to the property line. 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 2 EXHIBIT "B" Not Applicable O 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 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 21 failures caused by design and/or construction defects. This agreement to holld the City harmless includes defects in materials and workmanship, as well as defects caused by or consisting of settling trenches, fills or excavations. Further, the Developer agrees that the City shall not be liable to the Developer during the warranty period, for any claim of damages resulting frorn 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. 22 COTTONWOOD RIDGE AMENDMENT AGREEMENT NO. THIS AMENDMENT AGREEMENT, made and entered into this /()'day of , of 20,00, by and between the CITY OF FORT COLLINS, COLORADO, a m nicipal corporation, ("City"), E.T. Designs, LLC, a limited liability company, ("Developer"); and Eric Thayer, Jill Thayer, Ann Thayer Whittemore and Troy Thayer, individuals, ("Owner"), is an amendment to that certain Development Agreement dated August 9, 1999 by and between the City, the Developer and the Owner, hereinafter referred to as the "Development Agreement." WHEREAS, 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 E (including the hearding thereof) shall be replaced with the following: E. Ground Water, Subdrains and Water Rights. 1. The City, shall not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the Development as a result of ground water seepage or flooding, structural damage, or other damage unless such damages or injuries are sustained as a result of the City's failure to properly maintain its storm drainage facilities in the Development. 2. If the development includes a subdrain system, any such subdrain system, whether located within private property or within public property such as street rights -of -way or utility or other easements, shall not be owned, operated, maintained, repaired or reconstructed by the City and it is agreed that all ownership, operation, maintenance, repair and reconstruction obligations shall be those of the Developer or the Developer's successor(s) in interest. Such subdrain system is likely to be located both upon private and public property and, to the extent that it is located on public property, all maintenance, operation, repair or reconstruction shall be conducted in such a manner that such public property shall not be damaged, or if damaged, shall, upon completion of any such project, be repaired in accordance with then existing City standards. The City shall not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the development as the result of groundwater seepage or flooding, structural damage or other damage resulting from failure of any such subdrain system. 3. Without admitting or denying any duty to protect water rights, the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries to water rights caused, directly or indirectly by the construction, establishment, maintenance or operation of the Development. 4. The City agrees to give notice to the Developer of any claim made against it to which the foregoing indemnities and hold harmless agreements by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided the Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause the forgoing indemnities and hold harmless agreements by the Developer to not apply to such claim and such failure shall constitute a release of the foregoing indemnities and hold harmless agreements as to such claim. 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. 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 By: 0-2 � - City McMager ATTEST: CITY CLERK APPROVED AS TO CONTENT: O'K ")( J� Director of gineenng APPROV AS TO FORM: Deputy City Attorney DEVELOPER: E.T. Designs, LLC, a limited liability company By:Eric Thayer, Thayer, Manager OWNER: By: K'-T7 Eric Thayer, an K dividual By: 4c- lf';74;�P<_ Jill Thayer, an individual by Eric Thayer her attorney -in -fact By: 6-r - \ f Ann Thayer Whitt more, an individual by Eric Thayer her attorney -in -fact By: ✓L�cc� �� Troy Thayer, an indIvidual by Eric Thayer his attorney -in -fact P.,c COTTONWOOD RIDGE AMENDMENT AGREEMENT NO.2 THIS AMENDMENT AGREEMENT, made and entered into thisay of l �, : v kl .cam 2002, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and Progressive Living Structures Inc., a Colorado Corporation, hereinafter referred to as the "Developer." WITNESSETH; WHEREAS, the City entered into a Development Agreement with E.T. Designs, LLC (as "Developer") and Eric Thayer, Jill Thayer, Ann Thayer Whittemore and Troy Thayer (as "Owner") on August 9, 1999, the terms of which govern the development activities of the Developer pertaining to that 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: Cottonwood Ridge, a subdivision of a portion of the northeast %4 , Section 3, Township 6 North, Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the Developer has acquired all rights of ownership in the Property from E.T. Designs, LLC and from the Owner; 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.5. shall be replaced with the following: 5. No access to lot 18 shall be allowed off of Pyrenees Drive (previously known as Kininak Circle). B. Subheading II (Special Conditions) Paragraph D.8. shall be replaced with the following: 8. No access to lots 17 and 18 shall be allowed off of Corsica Drive (formerly known as Fairchild Lane) until the street has been completed with either a City approved temporary turnaround or permanent cul de sac, or until the street has been extended to become a through street in accordance with City standards. C. Subheading II (Special Conditions) Paragraph D.9. shall be replaced with the following: No building permits in Phase 1 of the Development shall be allowed until Pyrenees Drive (formerly known as Kininak Circle) has been completed with either a City approved temporary turnaround or permanent cul de sac, or until the street has been extended to become a through street in accordance with City standards. D. Subheading II (Special Conditions) Paragraph D.12. the following paragraph shall be replaced with the following: 12. No access to lot 52 shall be allowed off of Bordeaux Drive (formerly known as Aqua Fria Drive) until the street has been completed with either a City approved temporary turnaround or permanent cul de sac, or until the street has been extended to become a through. street in accordance with City standards. E. Subheading II (Special Conditions) Paragraph D.13. shall be replaced with the following: 13. No access to the western half of lot 51 shall be allowed until Bordeaux Drive (formerly known as Aqua Fria Drive) has been completed with either a City approved temporary turnaround or permanent cul de sac, or until the street has been extended to become a through street in accordance with City standards. F. Subheading II (Special Conditions) Paragraph D.14. shall be replaced with the following: 14. No building permit shall be issued for lot 50 until Bordeaux Drive (formerly know an Aqua Fria Drive) has been completed with either a City approved temporary turnaround or permanent cul de sac, or until the street has been extended to become a through street in accordance with City standards. G. Section III (Miscellaneous) Subsection N shall be amended by replacing the address for "If to the Developer" with the following addresses to read as follows: If to the Developer: Leo Schuster Progressive Living Structures Inc. 4190 N. Garfield Loveland, CO 80538 H. All other terms and conditions of the Development Agreement (as amended by Amendment Agreement No. 1) shall remain unchanged and in full force and effect, except as expressly amended in this Amendment Agreement No. 2. 2 IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above written. ATTES : - , /- /1A4�S CITY CLERK !�, r�- 4�, 4 V APPROVED AS TO CONTENT: Director of En ineering APP OV AS 'TO FORM: C�� Deputy City Attorney THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: - City Manager DEVELOPER: Progressive Living Stru tures Inc., a Colorado corporation By: eo J. Sc uster, esident ATTEST: Jocelyn Cafney, Secretary 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. 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 does hereby indemnify and hold harmless the City from any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainage or seepage waters from the Property in a manner or quantity different from that which was historically discharged and caused by the design or construction of the storm drainage facilities, except for (1) such claims and damages as are caused by the acts or omissions of the City in maintenance of such facilities as have been accepted by the City for maintenance; (2) errors, if any, in the general concept of the City's master plans (but not to include any details of such plans, which details shall be the responsibility of the Developer); and (3) specific written or otherwise documented directives that may be given to the Developer by the City. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. Approval of and acceptance by the City of any storm drainage facility design or construction shall in no manner be deemed to constitute a waiver or relinquishment by the City of the aforesaid indemnification. The Developer shall engage a Colorado licensed professional engineer to design the storm drainage facilities as aforesaid and it is expressly affirmed hereby that such engagement: shall be intended for the benefit of the City, and subsequent purchasers of property in the development. I. The Developer shall pay storm drainage basin fees in accordance with Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for credit or City repayment under the provisions of Chapter 26 are described together with the estimated cost of the improvements on the attached Exhibit "B," which improvements, if applicable, shall include right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. J. The Developer shall provide the City Engineer with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construction. Utilities will not be initially accepted prior to as -built drawings being 3 submitted to and approved by the City of Fort Collins. K. The Developer specifically represents that to the best of its knowledge all portions of the Property dedicated (both in fee simple and as easements) to the City associated with this development are in compliance with all environmental protection and anti -pollution laws, rules, regulations, orders or requirements, including solid waste requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such portions of the Property as are dedicated to the City pursuant to this development, are in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer does hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority or any third party, pertaining to the disposal of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfill of hazardous substances, pollutants or contaminants, or environmental cleanup responsibilities of any nature whatsoever on, of, or related to any property dedicated to the City in connection with this development, provided that such damages or liability are not caused by circumstances arising entirely after the date of acceptance by the City of the public improvements constructed on the dedicated property, except to the extent that such circumstances are the result of acts or omissions of the Developer. Said indemnification shall not extend to claims, actions or other liability arising as a result of any hazardous substance, pollutant or contaminant generated or deposited by the City, its agents or representatives, upon portions of the Property dedicated to the City in connection with this development. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. II. Special Conditions A. Water lines 1. Notwithstanding anything in this agreement to the contrary, the Property will be provided water service from the Fort Collins -Loveland Water District ("Water District") and all waterline improvements shall be installed and inspected in accordance with the Water District's regulations and the approved plans therefor. B. Sewer lines 4 1. Notwithstanding anything in this agreement to the contrary, the Property will be provided sanitary sewer service from the South Fort Collins Sanitation District ("Sanitary Sewer District") and all waste -waterline improvements shall be installed and inspected in accordance with the Sanitary Sewer District's regulations and the approved plans therefor. 2. A gravity sewer may not be possible or feasible on Lots 29 through 35, 42 and 44 depending on the basement (lowest floor) elevation. Each lot shall be evaluated individually by the South Fort Collins Sanitation District to determine the feasibility of a gravity sewer based on the proposed lowest floor elevation. If a gravity sewer system is not possible the pumping system shall be constructed in accordance with the specifications of the South Fort. Collins Sanitation Districts recommendation. The maintenance of any system, pumping or otherwise, shall be the responsibility of the lot owner. 3. The elevation of Lots 68, 69, and 70 are such that individual lift stations are required for each lot. The City and the Developer agree that the individual property owner is responslVe for the repair and maintenance of said sanitary sewer service system on the lot to the main. In addition the Developer shall be required to file a notice with the Larimer County Clerk and Recorder describing the repair and maintenance requirements that exist for the individual lift stations on each of Lots 68, 69 and 70. Said notice shall reference the location of the specific restrictions shown on plans and notes in the approved final development plan documents. Said notice shall be filed in a City approved form prior to the sale of any lots affected by such restrictions. C. Storm Drainage Lines and Appurtenances 1. The Developer and the City agree that all on -site and off -site storm drainage improvements, for Phase 1, as shown on the approved final development plan documents, including Shields Street construction from the Outlot south, shall be completed by the Developer in accordance with said final development plan documents prior to the issuance of more than 4 building permits in this phase. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve this development have been constructed in conformance with said final development plan documents. Said certification shall be submitted to the City at least two weeks prior to the date of issuance of any more than 4 building permits in Phase 1 of this development. The Developer and the City agree that all on -site and off -site storm drainage improvements, for Phase 2, as shown on the approved final development plan documents, shall be completE.�d by the Developer in accordance with said final development plan documents prior to the issuance of more than 9 building permits in this phase. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve this development have been constructed in conformance with said final development plan documents. Said certification shall be submitted to the City at least two weeks prior to the date of issuance of any more than 9 5 building permits in Phase 2 of this development The Developer and the City agree that all on -site and off -site storm drainage improvements, for Phase 3, as shown on the approved final development plan documents, shall be completed by the Developer in accordance with said final development plan documents prior to the issuance of more than 4 building permits in this phase. Completion of improvements; shall include the certification by a professional engineer licensed in Colorado that thE� drainage facilities which serve this development have been constructed in conformance with said final development plan documents. Said certification shall be submitted to the City at least two weeks prior to the date of issuance of any more than 4 building permits in Phase 3 of this development. The Developer and the City agree that all on -site and off -site storm drainage improvements, for Phase 4, as shown on the approved final development plan documents, shall be completed by the Developer in accordance with said final development plan documents prior to the issuance of more than 1 building permit in this phase. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve this development have been constructed in conformance with said final development plan documents. Said certification shall be submitted to the City at least two weeks prior to the date of issuance of more than 1 building permit in Phase 4 of this development. 2. The developer shall be responsible for maintaining the structural integrity and operational functions of all drainage facilities throughout the build -out of this development. If at any time following certification (as required pursuant to paragraph II .C.1 above) of said drainage facilities and during the construction of structures and or lots within this development the City deems that said drainage facilities no longer comply with the approved plans, the developer shall bring such facilities back up to the standards and specifications as shown on the approved plans. Failure to maintain the structural integrity and operational function of said drainage facilities following certification shall result in the withholding of the issuance of additional building permits and/ or certificates of occupancy until such drainage facilities are repaired to the operational function and structural integrity which was approved by the City. 3. The Developer agrees to provide and maintain erosion control improvements as shown on the approved final development plan documents to stabilize all over -lot grading in and adjacent to this development. The Developer shall also be required to post a security deposit in the amount of $ 25,267.50 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the approved final development plan documents. Said security deposit(s) shall be made in accordance with the criteria set forth in the City's Storm Drainage Design Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to abide by the provisions of the approved final development plan documents or the Criteria, 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 0 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 undertakiing 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 buildout of this development. 4. Prior to the issuance of any building permit in Phase 3 of the development the developer shall have the option to postpone the construction of the ravine improvements following the escrow of funds to be deposited with the City in the form of cash, bond, nonexpiring letter of credit or other form of City approved security sufficient to guarantee completion of said improvements. A certificate of deposit is also an acceptable form of security provided that the Developer also delivers to the City a Limited Power of Attorney authorizing the City to cash such Certificate of Deposit if the ravine work is not completed to the satisfaction of the City. The amount of said funds shall be the estimated cost to construct said improvements, which estimate shall be prepared by the Developer and approved by the City, plus an additional 50% of the estimate to cover any contingencies and unexpected costs. Said amount shall be deposited with the City prior to the issuance of any building permit for Phase 3 of this development. In addition to the escrow of funds the Developer agrees to provide a cross section survey of the ravine at three locations where erosion is most likely to occur. The locations shall be marked with #5 re -bar stakes with alloy caps such that the location of the cross sections can be reestablished for subsequent surveys. The first survey of the cross sections shall take place prior to the start of any grading or improvements within Phase 3 of the development and then at 6 month increments thereafter. Upon the occurrence of any erosion within the ravine, as shown by the cross sectional survey or by visual determination, the developer shall be responsible for providing mitigation and/or improvements as necessary to correct the damage caused by the erosion and provide measures to protect the ravine from further erosion or damage. The developer agrees to construct the ravine improvements no later than 2 years from the date of depositing with the City the escrowed funds or other security securing the construction of the ravine improvements. If said construction is not started at that date the City shall have the! option of constructing said improvements with the escrowed funds or other security provided by the developer. At such time that the improvements as shown on the plans are completed and if the Developer is the party that constructs said improvements, upon completion of said improvements and acceptance of them by the City, the City shall return 75% of the escrowed funds or other security to the Developer. Any interest earned by said escrowed funds or other security during the time of possession by the City shall be kept by the City to cover its costs for administration of said deposit. The City shall retain the remaining 7 25% of the escrow funds or other security for a period of 3 years starting from the date of the approval of the certification for the ravine drainage improvements. This 25% shall be held in order to cover any potential erosion that may occur after the ravine improvements are constructed. 5. 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 development plan documents. 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 final development plan documents are correct and in accordance with the approved final development plan documents; and the minimum floor elevation for all buildings constructed on said lot has been completed in accordance with the approved 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. 6. The Developer shall obtain the City's prior approval of any changes from the approved final development plan documents in grade elevations and/or storm drainage facility configuration that occur as a result of the construction of houses and/or development of lots, whether by the Developer or other parties. The City reserves the right to withhold the issuance of building permits and certificates of occupancy for this development until the City has approved such changes as being acceptable for the safe and efficient delivery of storm drainage water. 7. In addition the Developer shall be required to file a notice with the Larimer County Clerk and Recorder describing the landscaping and fencing restrictions that exist for the drainage easements on each of Lots 7, 8, 18 through 20, 24, 26 through 29, 37 through 39, 50, 51, 61, 62, 69 and 70. Said notice shall reference the location of the specific restrictions shown on plans and notes in the approved final development plan documents. Said inotice shall be filed in a City approved form prior to the sale of any lots affected by such restrictions. 8. In addition the Developer shall be required to file a notice with the Larimer County Clerk and Recorder describing the landscaping and fencing restrictions and maintenance requirements (the adjacent lot owners are responsible for maintenance of said easement area) that exist for the trail easement on each of Lots 59 and 60. Said notice shall reference the location of the specific restrictions shown on plans and notes in the approved final development plan documents. Said notice shall be filed in a City approved form prior to the sale of any lots affected by such restrictions. is 9. 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 not accepted for maintenance by the City serving this development and outside of the public rights -of -way. D. Streets. 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Shields Street for those portions of said street abutting the Property, being constructed, as shown on the approved final development plan documents. Reimbursement for Shields Street shall be for oversizing the street from local (access) standards to arterial standards (July 1986 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 forthe 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. 9