HomeMy WebLinkAboutHARMONY VILLAGE PUD - Filed DA-DEVELOPMENT AGREEMENT - 2003-11-21DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this ZS4 day of Api21L
199_1_, by and between the City of Fort Collins, Colorado, a Municipal Corporation,
hereinafter referred to as the "City"; and Dial — Fort Collins, L.L.C., a Nebraska Limited
Liability Company, hereinafter referred to as the "Developer."
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer, State of Colorado, (hereafter referred to as the "Property") and legally
described as follows, to wit:
Harmony Village, PUD, a tract of land located in the Northeast '/< of Section 6,
Township 6 North, Range 68 West of the 6ch Principle Meridian, City of Fort Collins,
County of Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to the
City all plats, plans (including utility plans), reports and other documents required for the
approval of a final plan according to the City's Development application submittal
requirements master list (the final development plan documents) copies of which are on
file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and will
further require the installation of certain improvements primarily of benefit to the lands to
be developed and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the final development plan documents submitted
by the Developer subject to certain requirements and conditions which involve the
installation of and construction of utilities and other municipal improvements in connection
with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
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 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
of construction. Such accessway shall be constructed to an unobstructed width of at least
20 feet with 4 inches of aggregate base course material compacted according to city
standards and with an 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.
Prior to the construction of said accessway, a plan for the accessway shall be submitted
to and approved by the Poudre Fire Authority and City Engineer. (Three plan sets shall be
submitted to the Poudre Fire Authority at 102 Remington Street for review and processing.)
If such accessway is at any time deemed inadequate by the Poudre Fire Authority or City
Engineer, the accessway shall be promptly brought into compliance and until such time
that the accessway is brought into compliance, the City and/or the Poudre Fire Authority
may issue a stop work order for all or part of the Development.
G. Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain a Footing and Foundation permit upon the
installation of all underground water, sanitary sewer, and storm sewer facilities, and an
emergency accessway for the Phase in which the permit is being requested. Facilities
shall include but not be limited to all mains, lines, services, fire hydrants and
appurtenances for the site as shown on the final development plan documents.
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, and which
guarantees shall run concurrently and shall commence upon the date of completion of the
public improvements and acceptance thereof by the City. More specific elements of these
guarantees are noted in Exhibit "C." Security for the maintenance guarantee and the repair
guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code, or Section 29-14
of the Transitional Land Use Regulations, as applicable.
III. Miscellaneous
iUl
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and
shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of waste
material, rubbish, or building materials caused by the Developer's operation, or the
activities of individual builders and/or subcontractors; shall remove such rubbish as often
as necessary, but no less than daily and; at the completion of the work, shall remove all
such waste materials, rubbish, tools, construction equipment, machinery, and surplus
materials from the public right-of-way. The Developer further agrees to maintain the
finished street surfaces so that they are free from dirt caused by the Developer's operation
or as a result of building activity. Any excessive accumulation of dirt and/or construction
materials shall be considered sufficient cause for the City to withhold building permits
and/or certificates of occupancy until the problem is corrected to the satisfaction of the City
Engineer. If the Developer fails to adequately clean such streets within two (2) days after
receipt of written notice, the City may have the streets cleaned at the Developer's expense
and the Developer shall be responsible for prompt payment of all such costs. The
Developer also agrees to require all contractors within the development to keep the public
right-of-way clean and free from accumulation of dirt, rubbish, and building materials.
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.
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F. In the event the City waives any breach of this Agreement, no such waiver
shall be held or construed to be a waiver of any subsequent breach hereof.
G. 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.
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M. It is expressly understood and agreed by and between the parties hereto that
this Agreement shall be governed by and its terms construed under the laws of the State
of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set forth
below; and such notice or other communication shall be deemed given when so hand -
delivered or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
If to the Developer: Dial Properties
c/o J. F. Carter
11506 Nicholas Street, #200
Omaha, NE 68154
With a copy to: Lucia A. Liley
March & Liley, P.C.
110 East Oak Street, #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 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
191
THE CITY OF FORT COLLINS, COLORADO,
a Municip Corporation
By:
City Minager
'2171 ��l ✓Vi S
City Clerk
APPR D AS TO FORM:
Deputy City Attorn
DEVELOPER:
'V N Dial — Fort Collins, L.L.C., a Nebraska limited liability
company
By:
Terrance L. Fangman, Jr., ber ( ith the authority to
execute this agreement under certificate of authority
dated March 24, 1999)
STATE OF COLORADO )
)ss.
COUNTY OF LARIMER )
This Memo a dum and Agree t and
�o-Xrday of 11_- , by,
My c7mission expires:
rn to before me this
the Developer.
EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
3. Schedule of street improvements to be installed out of sequence.
Not Applicable
4. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
15
EXHIBIT "B"
Not Applicable
16
EXHIBIT "Cl,
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
17
public properties, resulting from failures caused by design and/or
construction defects. This agreement to hold the City harmless includes
defects in materials and workmanship, as well as defects caused by or
consisting of settling trenches, fills or excavations.
Further, the Developer agrees that the City shall not be liable to the Developer during the
warranty period, for any claim of damages resulting from negligence in exercising
engineering techniques and due caution in the construction of cross drains, drives,
structures or buildings, the changing of courses of streams and rivers, flooding from 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.
in
Exhibit b
PVHS Timberline Road Improvements
Timberline Road Improvements (with the PVHS Site):
The improvements to Timberline Road proposed in conjunction with the PVHS project, as shown
on the Final Utility Plans prepared by the Sear -Brown Group generally consist of: The construction
of a sidewalk from I larmony Road south approximately 1450 feet to match into existing sidewalk;
the construction of new curb and gutter on the west side of Timberline Road from Timberwood
Drive to approximately 1000 feet north of Harmony Road; the construction of new curb and gutter
on the east side of Timberline Road from south of the PVHS site to 200 feet north of Harmony Road;
the construction of a raised median in Timberline Road from approximately 1900 feet south of
Harmony Road to 1000 feet north of Harmony Road; the construction of a single left turn lane for
northbound Timberl ine onto westbound Timberwood; the construction of double left turn lanes from
southbound Timberline onto eastbound Timberwood; the construction of double left turn lanes from
northbound Timberline onto westbound Harmony; the construction of double left turn lanes from
southbound Timberline onto eastbound Harmony; the construction of six foot (6) bike lanes along
both sides of timberline; the construction of a right turn lane from southbound Timberline into
westbound Timberwood and the Harmony Village PUD entrance north of Timberwood; the
construction of a right turn lane from northbound Timberline onto eastbound Harmony; the
construction of a right turn lane from southbound Timberline onto westbound Harmony; drainage
improvements (inlets and storm sewer pipe) to drain the proposed raised median; and various utility
relocations and adjustments.
construct improvements thereon.
B. All water lines, sanitary sewer collection lines, storm sewer lines and
facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on
the approved utility plans and in full compliance with the standards and specifications of
the City on file in the office of the City Engineer at the time of approval of the utility plans
relating to the specific utility, subject to a three (3) year time limitation from the date of
execution of this Agreement. In the event that the Developer commences or performs any
construction pursuant hereto after the passage of three (3) years from the date of
execution of this agreement, the Developer shall resubmit the utility plans to the City
Engineer for reexamination. The City may then require the Developer to comply with the
approved standards and specifications of the City on file in the office of the City Engineer
at the time of the resubmittal.
C. No building permit for the construction of any structure within the
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
department's approval. The Developer agrees to correct any deficiencies in such
2
Exhibit E.
Harmony Road Improvements
Harmony Road:
The interim improvements to Harmony Road proposed with the Harmony Village PUD project
generally consist of: The construction of an eight foot (8') sidewalk from the ABB property to
Timberline Road; the construction of a deceleration lane for the site access at the northwest corner
of harmony Village, including the widening of the existing UP Railroad Crossing; the construction
of a continuous acceleration/deceleration lane from the proposed site access from Harmony Road
to Timberline Road; the construction of a four foot (4') shoulder along the south side of Harmony
Road from the beginning of the deceleration lane for the new access to Timberline Road; the
construction of a six foot (6) bike lane from the beginning of the deceleration lane for the new
access to Timberline Road; the construction of double left turn lanes for eastbound Harmony Road
onto northbound Timberline Road; the construction of a raised median from the existing UP Railroad
Crossing to Timberline Road; the construction of a single left turn lane from westbound Harmony
Road into the new site access; and drainage improvements (inlets and/or storm sewer pipe) to drain
the proposed raised median.
Note: the "interim improvements" to Harmony Road are the improvements required by the City to
be constructed with the Harmony Village PUD project.
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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
submitted to and approved by the City of Fort Collins.
191
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,
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 disposal or cleanup is not
necessitated 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. The Developer
further agrees to indemnify and hold harmless the City from 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.
Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
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Not Applicable
C. Storm Drainage Lines and Appurtenances
1. The Developer and the City agree that all on -site and off -site storm
drainage improvements, as shown on the approved final development plan documents,
shall be completed by the Developer in accordance with said final development plan
documents prior to the issuance of any certificate of occupancy for 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 final development plan documents. Said certification
shall be submitted to the City at least two weeks prior to the date of issuance any certificate
of occupancy for the development.
2. 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 $26,752.65 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
the provisions of said plans and the Criteria are properly enforced. The City may apply
such portion of the security deposit(s) as may be necessary to pay all costs incurred by the
City in undertaking the administration, construction, and/or installation of the erosion
control measures required by said plans and the Criteria. In addition, the City shall have
the option to withhold building permits and certificates of occupancy, as stated in
Paragraph III.D of this Agreement, as it deems necessary in order to ensure that the
Developer installs and maintains the erosion control measures throughout the build -out of
this development.
3. 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.
4. 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
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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. Timberline Road Improvements
The Developer shall be responsible for constructing a seven foot (T) sidewalk along
Timberline Road from Harmony Road south to connect to the existing sidewalk
("Timberline Improvements'). Such construction shall be in accordance with the approved
final development plan documents for the development. The development immediately
east of the Property presently owned by Poudre Valley Health Services ("PVHS") is
required to make certain public improvements to Timberline Road as generally described
on Exhibit D, attached hereto and incorporated herein by reference ("PVHS Timberline
Road Improvements'). The Developer and the City contemplate that PVHS will construct
and install such improvements prior to the same being needed for the development of the
Property, but in the event that PVHS does not do so, the Developer shall be required to
construct and install the same.
2. Harmony Road Improvements
a. Design. The Developer agrees that both the complete interim
and ultimate designs of Harmony Road will be fully completed and approved by the City
and State prior to the issuance of any certificate of occupancy for the development. The
City agrees to review such designs in a timely fashion so as not to unduly delay occupancy
of the development and to work with the Developer in securing State approval for the
same. The interim and ultimate designs shall be in compliance with both the State
Highway Access Control manual and City standards. The designs will encompass 1,000
feet west of the Property boundaries and match any previous design(s) from other
development(s), including the PVHS development referenced in subparagraph DA above.
b. Construction. The Developer shall be responsible for the
construction of the interim improvements to Harmony Road, which are generally described
on Exhibit E attached hereto and incorporated herein by reference ("Harmony Road
Improvements"). The Harmony Road Improvements shall be completed in accordance with
the approved design therefor and the approved final development plan documents prior
to the issuance of a certificate of occupancy for the theater use approved for this
development, but such completion shall not be a requirement for the issuance of
certificates of occupancy for all other uses within the development.
C. Access Permit. The Developer and the City agree that a
Colorado State Highway Access Permit must be obtained by the Developer prior to the
Developer commencing construction of any improvements to State Highway 68 (Harmony
Road). If a State Highway Access Permit cannot be secured, then the Developer is fully
responsible for all corrective procedures necessary to revise the approved final
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development plan documents (including, but not limited to, additional public processes) in
order to obtain such permit. All improvements to the State Highway 68 right-of-way must
conform to the approved State Highway Access Permit.
3. Oversizing Reimbursement
a. Timberline Road/Timberwood Drive. The City agrees to
reimburse the Developer for construction of oversizing improvements to those portions of
Timberline Road and the new public street presently referred to as "Timberwood Drive"
abutting the Property. Such reimbursement is more specifically described on Exhibit F
attached hereto and incorporated herein by reference ("Street Oversizing
Reimbursement").
In the event that the Developer is required to construct the PVHS Timberline
Improvements, the City shall reimburse the Developer for the oversized portions of such
improvements in accordance with applicable City regulations and policies therefor.
b. Harmony Road. The design of the Harmony Road
Improvements has not been completed or approved by the City. Exhibit F describes those
oversized improvements which shall be reimbursed by the City based on preliminary
design discussions which have taken place between the. In the event that changes in the
approved design for the Harmony Road Improvements affect the oversizing reimbursement
owed to the Developer under applicable City Code provisions, the parties shall execute an
amendment to this Agreement reflecting such changes.
C. Design Approval. The Developer acknowledges and agrees
that it shall receive no street oversizing reimbursement from the City until the interim and
ultimate designs for the Harmony Road Improvements have been completed and approved
by the City.
d. General. 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
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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).
4. Traffic Signals
The Developer and the City agree that two (2) traffic signals are planned to be
installed with this development: one at the intersection of Timberline Road/Timberwood
Drive and one at the intersection of Timberline Road/Harmony Road. During the
development construction period, the City shall install all elements of said signals except
for the mast arms and signal heads. The City shall install the mast arms and signal heads
and activate the signals after appropriate signals warrants are met and after receiving
approval to do so from the State of Colorado District Engineer. The costs to the City of
installing the Timberline Road/Timberwood Drive signal improvements shall be paid by the
Developer, but the costs for the Timberline Road/Harmony Road signal shall be borne by
the City.
5. City Acquisition of Right -of -Way
The City is presently negotiating for the acquisition of additional right-of-way for
Timberline Road as shown on Exhibit G attached hereto and incorporated herein by
reference ("Additional Timberline Road Right -of -Way"). In the event that the City has not
acquired that portion of such right-of-way which is needed to complete construction of any
of the Developer's off -site street obligations in accordance with the approved final
development plan documents for the development and the terms and conditions of this
Agreement, the City will not withhold any certificates of occupancy for the development on
such account, provided that the Developer posts with the City a cash escrow or other
acceptable financial security in an amount equivalent to the cost to complete such required
improvements.
6. General
a. Unless otherwise specifically provided herein, all public
infrastructure improvements, including all on -site and off -site storm drainage
improvements, shall be completed by the Developer in accordance with the approved final
development plan documents therefor and accepted by the City prior to the issuance of
any certificate of occupancy for any structure on the Property.
b. 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
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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.
C. 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).
d. 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 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. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a permanent
water system is installed by the Developer and approved by the City.
2. Prior to beginning any building construction, and throughout the build -
out of this development, the Developer shall provide and maintain at all times an
accessway to said building or buildings. Such accessway shall be adequate to handle any
emergency vehicles or equipment, and the accessway shall be kept open during all phases
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