HomeMy WebLinkAboutHARMONY SCHOOL SHOPS THIRD - Filed DA-DEVELOPMENT AGREEMENT - 2003-11-24DEVELOPMENT AGREEMENT
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THIS AGREEMENT, is made and entered into this day of kf7 )? J'
2001, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; Aramark Educational Resources, Inc., a
Delaware Corporation and Western VII Investments, LLC., a Delaware limited liability
company, hereinafter referred to as the "Developer"; and Western VII Investments, LLC.,
a Delaware limited liability company, hereinafter referred to as the "Owner."
WITNESSETH:
WHEREAS, the Developer has entered into an agreement with the owner to acqure
ownership of certain real property situated in the County of Larimer, State of Colorado,
(hereafter sometimes referred to as the 'Property" or "Development') and legally described
as follows, to wit:
Harmony School Shops 3rd Filing Subdivision, located in the west half of the
Southwest Quarter of Section 32, Township 7 North, Range 68 West of the 6th
P.M., City of Fort Collins, County of Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to the
City all plats, plans (including utility plans), reports and other documents required for the
approval of a final plan according to the City's development application submittal
requirements master list (the Final Development Plan Documents) copies of which are on
file in the office of the City Engineer and made a part hereof by reference, and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and will
further require the installation of certain improvements primarily of benefit to the lands to
be developed and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the Final Development Plan Documents
submitted by the Developer subject to certain requirements and conditions, which involve
the installation of and construction of utilities and other municipal improvements in
connection with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
I. General Conditions
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improvements and acceptance thereof by the City. More specific elements of these
guarantees are noted in Exhibit "C." Security for the maintenance guarantee and the repair
guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code, or Section 29-14
of the Transitional Land Use Regulations, as applicable. Notwithstanding the provisions
of paragraphs III (H) and (1) of this Agreement to the contrary, the obligations of the
Developer pursuant to this paragraph and Exhibit "C" may not be assigned or transferred
to any other person or entity unless the warranted improvements are completed by, and
a letter of acceptance of the warranted improvements is received from the City by, such
other person or entity.
J. Natural Resources.
1. The Developer and the City agree that all seeded areas shall be
inspected jointly by the Developer and the City at specified intervals. Areas seeded in
the spring shall be inspected for required coverage the following fall not later than
October 1. Areas seeded at any other time shall be inspected the following two
summers not later than August 1. The required coverage for the first inspection shall
be ten (10) viable live seedlings of the specified species per 1000 square centimeters
(approximately one square foot), or fifty percent (50%) coverage of the specified foliage
as measured frorn five feet (5') directly overhead, with no bare spots larger than 1000
square centimeters. At the time of the second growing season inspection, there shall
be seventy-five percent (75%) foliage cover of the specified species planted as
measured from five (5') directly overhead. No more than ten percent (10%) of the
species noted on the site may be weedy species as defined in Section 20-41 of the
Code of the City.
Determination of required coverage will be based on fixed transects each ten meters in
length, randomly placed in representative portions of the seeded areas, with plant
species or bare ground/rock/litter being noted every ten (10) centimeters along each
transect.
The Developer shall warrant all seeded areas for two growing seasons from the date of
completion. The Developer shall rework and reseed per original specifications any
areas that are dead, diseased, contain too many weedy species, or fail to meet the
coverage requirement at no additional cost to the City.
2. The Developer and the City agree that prior to any grading or other
construction, any prairie dogs inhabiting portions of the site within the Limits of
Development (LOD) shall be relocated or eradicated by the developer. City -approved
methods as set forth in Chapter 4 of the City Code shall be used, and, when applicable,
the use of methods reviewed and approved by the Colorado Division of Wildlife shall be
used. If prairie dogs are present fumigation is best done between late April and early
June and relocation shall occur prior to March 1 or after May 31 of any given year.
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III. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and
shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of waste
material, rubbish, or building materials caused by the Developer's operation, or the
activities of individual builders and/or subcontractors; shall remove such rubbish as often
as necessary, but no less than daily and; at the completion of the work, shall remove all
such waste materials, rubbish, tools, construction equipment, machinery, and surplus
materials from the public right-of-way. The Developer further agrees to maintain the
finished street surfaces so that they are free from dirt caused by the Developer's operation
or as a result of building activity. Any excessive accumulation of dirt and/or construction
materials shall be considered sufficient cause for the City to withhold building permits
and/or certificates of occupancy until the problem is corrected to the satisfaction of the City
Engineer. If the Developer fails to adequately clean such streets within two (2) days after
receipt of written notice, the City may have the streets cleaned at the Developer's expense
and the Developer shall be responsible for prompt payment of all such costs. The
Developer also agrees to require all contractors within the Development to keep the public
right-of-way clean and free from accumulation of dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing operations
when winds are of sufficient velocity to create blowing dust which, in the inspector's
opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements or
obligations may be shown on the Final Development Plan Documents, or any documents
executed in the future that are required by the City for the approval of an amendment to
a development plan, and the City may withhold (or to the extent permitted by law, revoke)
such building permits and certificates of occupancy as it deems necessary to ensure
performance in accordance with the terms of this Development Agreement. The
processing and "routing for approval" of the various development plan documents may
result in certain of said documents carrying dates of approval and/or execution that are
later than the date of execution of this Development Agreement or the Memorandum Of
Agreement (if any) recorded to give record notice of this Agreement. The developer
hereby waives any right to object to any such discrepancy in dates.
E. Nothing herein contained shall be construed as a waiver of any requirements
of the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable)
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and the Developer agrees to comply with all requirements of the same.
F. In the event the City waives any breach of this Agreement, no such waiver
shall be held or construed to be a waiver of any subsequent breach hereof.
G. All financial obligations of the City arising under this Agreement that are
payable after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins City
Council, in its discretion.
H. This Agreement shall run with the Property and shall be binding upon and
inure to the benefit of the parties hereto, their respective personal representatives, heirs,
successors, grantees and assigns. It is agreed that all improvements required pursuant
to this Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest within the meaning of
this paragraph shall specifically include, but not be limited to, a conveyance or assignment
of any portion of the Developer's legal or equitable interest in the Property, as well as any
assignment of the Developer's rights to develop the Property under the terms and
conditions of this Agreement.
I. In the event the Developer transfers title to the Property and is thereby
divested of all equitable and legal interest in the Property, the Developer shall be released
from liability under this Agreement with respect to any breach of the terms and conditions
of this Agreement occurring after the date of any such transfer of interest. In 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
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parties, and no third party or parties shall have any right of action hereunder for any cause
whatsoever.
M. It is expressly understood and agreed by and between the parties hereto that
this Agreement shall be governed by and its terms construed under the laws of the State
of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set forth
below, and such notice or other communication shall be deemed given when so hand -
delivered or three: (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins. Co 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
If to the Developer: Real Estate Services
ARAMARK Educational Resources, Inc.
573 Park point Drive
golden, Co 80401
and
Western Property Advisor, Inc.
Attn. Stanley E. Whitaker
3555 Stanford Road, Suite 100
Fort Collins, Co 80525
If to the Owner: Western Property Advisor, Inc.
Attn. Stanley E. Whitaker
3555 Stanford Road, Suite 100
Fort Collins, Co 80525
Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees
or assigns, wishes to change the person, entity or address to which notices under this
Agreement are to be sent as provided above, such party shall do so by giving the other
parties to this Agreement written notice of such change.
O. When used in this Agreement, words of the masculine gender shall include
the feminine and neuter gender, and when the sentence so indicates, words of the neuter
13
gender shall refer to any gender; and words in the singular shall include the plural and vice
versa. This Agreement shall be construed according to its fair meaning, and as if prepared
by all parties hereto, and shall be deemed to be and contain the entire understanding and
agreement between the parties hereto pertaining to the matters addressed in this
Agreement. There shall be deemed to be no other terms, conditions, promises,
understandings, statements, representations, expressed or implied, concerning this
Agreement, unless set forth in writing signed by all of the parties hereto. Further,
paragraph headings used herein are for convenience of reference and shall in no way
define, limit, or prescribe the scope or intent of any provision under this Agreement.
P. The 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.
ATES
City Clerk
APPROVED AS TO CONTENT:
City Engine r
APPR ED AS TO FORM:
D u y City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: Q- 2
City M ager
14
DEVELOPER:
0
nal Resources, Inc., a Delaware
John (IZ`oi;en, Executive Vice President
ATTES
By. —
Leslie A. Armst Ong, ssistant Secretary
Western VII Investments, LLC
By: Western Property Advisors, Inc., a Colorado
corporation
As Duly Authorized Agent for Western VII
Investment, LLC
�
By: qjl
Stanley E. Wh t ker, Jr. Vice esident
OWNER:
Western VII Investments, LLC.
By: Western Property Advisors, Inc., a Colorado
corporation
As Duly Authorized Agent for Western VII
investment, LLC
/
By: �1a�NU�QYy
Stanley E. Whi ker, Jr. Vice sident
15
EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
Phase 1 - Phase 1 work includes (but is not limited to) the installation of a water tap
and line from the water main in Milestone Drive to the building on lot 1, and a water tap,
line and fire hydrant from the water main in Milestone Drive to the parkway on the north
side of the street as shown on the Final Development Plan Documents.
Phase 2 - All Phase 1 work if not already completed and accepted shall be
completed with Phase 2. Phase 2 work includes but is not limited to the installation of
two water taps and lines from the water main in Milestone Drive to the buildings on lot
2 (one line to each building on lot 2) as shown on the Final Development Plan
Documents.
2. Schedule of sanitary sewer lines to be installed out of sequence.
Phase 1 -- Phase 1 work includes but is not limited to the installation of a sewer
service from the manhole in the driveway to the building on lot 1 as shown on the Final
Development. Plan Documents.
Phase 2 - All Phase 1 work if not all ready completed and accepted shall be
completed with Phase 2. Phase 2 work shall include (but is not limited to) the
installation of a sewer service from the manhole in the driveway to the west building on
lot 2 and a sewer service from the sewer main in Milestone Drive to the east building
on lot 2 as shown on the Final Development Plan Documents.
3. Schedule of street improvements to be installed out of sequence.
Phase 1 - Phase 1 work includes (but is not limited to) the installation of a driveway
cut on the north side of Milestone Drive, street repair/ patches in accordance with City
standards for all street cuts, and the repair/ replacement of any damaged curb, gutter
and sidewalk adjacent to the site.
Phase 2 -- All Phase 1 work if not already completed and accepted shall be done
with Phase 2. Phase 2 work includes (but is not limited to) street repair/ patches in
accordance with City standards for all street cuts, and the repair/ replacement of any
damaged curb, gutter and sidewalk adjacent to the site.
4. Schedule of storm drainage improvements to be installed out of sequence.
Phase 1 - Phase 1 improvements includes (but is not limited to) the installation of
all drainage facilities for the site, including (but not limited to) concrete trickle pans,
swales, drainage structures, and storm drain pipes as shown on the Final Development
Plan Documents.
Phase 2 -- All Phase 1 work if not already completed and accepted shall be done
with Phase 2.
16
EXHIBIT "B"
Not Applicable
17
EXHIBIT "C"
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of
two (2) years from the date of completion and first acceptance by the City
of the public improvements warranted hereunder, the full and complete
maintenance and repair of the public improvements constructed for this
Development. This warranty and guarantee is made in accordance with
the City of Fort Collins Land Use Code and/or the Transitional Land Use
Regulations, as applicable. This guarantee applies to the streets and all
other appurtenant structures and amenities lying within the rights -of -way,
easements and other public properties, including, without limitation, all
curbing, sidewalks, bike paths, drainage pipes, culverts, catch basins,
drainage ditches and landscaping. Any maintenance and/or repair
required on utilities shall be coordinated with the owning utility company or
city department.
The Developer shall maintain said public improvements in a manner that
will assure compliance on a consistent basis with all construction
standards, safety requirements and environmental protection
requirements of the City. The Developer shall also correct and repair, or
cause to be corrected and repaired, all damages to said public
improvements resulting from development -related or building -related
activities. In the event the Developer fails to correct any damages within
thirty (30) days after written notice thereof, then said damages may be
corrected by the City and all costs and charges billed to and paid by the
Developer. The City shall also have any other remedies available to it as
authorized by this Agreement. Any damages which occurred prior to the
end of said two (2) year period and which are unrepaired at the
termination of said period shall remain the responsibility of the Developer.
REPAIR GUARANTEE:
The Developer agrees to hold the City of Fort Collins, Colorado, harmless
for a five (5) year period, commencing upon the date of completion and
acceptance by the City of the public improvements constructed for this
Development, from any and all claims, damages, or demands arising on
amount 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
M
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.
The obligations of the Developer pursuant to the "maintenance guarantee" and "repair
guarantee" provisions set forth above may not be assigned or transferred to any other
person or entity unless the warranted improvements are completed by, and a letter of
acceptance of the warranted improvements is received from the City by, such other person
or entity.
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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
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 Property
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 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
P]
AUrj-28-01 TUE 09:15 AM 'NESTERN PROPER Y FAX:9702234671 PACE
POWER OF ATTORNEY
ENTf
KNOW ALL MEN BY THESE PRESENTS, that company(,,principal")
,WESTERN ncl parll"") , does
I,LC ,
a Delaware Limited Liability WESTERN PROPERTY"
hereby make, constitute and appointin-Fact ) of .het,„.yard
„ City Of
INC., a Colorado Corporation ( State ey- Colorado, and sceuu,
Westminster, County of. Adams,
lawful attorney -in -fact for it and in its name, place
e plans and
to execute and deliver P.U.D. plans and documents, easements and
related documents, plats, development ag
ro riate party), use
dedications, letters of credit, y other
pp e p sureties (with the
appropriate municipality Y and any
restrictions, and other covenants and lementsimilar 1totormamendmentF of
other documents or instruments or supp Yn'1
same, necessary or advisable, in the opinion of such Attort.er-
Fact in connection with the development of the
esc scribed as Horm�_^_"Y
property (or any part thereof) as more fully County of Larimer,
School Shops, 3`a Filing, City of Fort Collins,
state of Colorado (the "Property`).
1. Principal grants to said Attorney-
erform all acts to be done '.
and authority to p
premises as herein described
as it could do i1. r-,.
2. Attorney -in -Fact is
such documents upon such terms
Fact may deem proper, and in
acknowledge, and deliver the
with all other instruments oz
development of the Property or
authorized to execute and delivery
and conditions, as the Attorney -in -
principal's name, to make, execute,
aforementioned documents, together
documents necessa::,' `
any portion of th.- =1
3. All rights, powers and authority of said
Attorney -in -Fact to exercise any and all of the rights and powers
herein created shall commence and be in full force and effect at
hero a.m., Westminster, Colorado time, on the date hereof; and
such rights, powers and authority shall remain in^ft'(a , mF one
effect hereafter until 5:00 p.m., Westminster, Cc_, -- -
(1) year from the date hereof.
IN WITNESS WHEREOF, 111ave signed this Power of Attorney on
this __�L3_ day of A 2001.
WESTERN VII INVET7"
a De re Limite�dLi(abbiiii:-j' N�•.-;
Y President
Richard W. Maine,
STATE OF CONNECTICUT )
) ss.
COUNTY OF H:RTFORD )
The foregoing Power of A torney was acknowledgr-'
this A;3_,___ day of c7 S , 200, by Richard W Maine as
President of WESTERN VT INVESTMENT, LLC, a Delaware Limited
Liability Company.
WITNESS my hand and official seal.
My commission expires: la-IJi'0 3
Notary Public
AUG- 28-01 TUE 09:15 AM WESTERN PROPERTY FAX:9702214671 rAUE 4
SPECIMEN SIGNATURE OF AGENT:
WESTERN PROPERTY ADVISORS,
INC.
EY 5ta eY
E. Maker, Jr., —
'ce Presi ent
(Hi6M O8/15/01)
HARMONY SCHOOL SHOPS 3RD FILING SUBDIVISION
AMENDMENT AGREEMENT NO. 1
i;
THIS AMENDMENT AGREEMENT, made and entered into this / ' day of
2004, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation,
hereinafter referred to as the "City'; and Knowledge Learning Enterprises, Inc., a Delaware
corporation. and Milestone Canyon, LLC., a Colorado limited liability company, hereinafter jointly
referred to as the "Developer".
WITNESSETH:
WHEREAS, the City entered into a Development Agreement with Aramark Education
Resources, Inc., a Delaware Corporation and Western VII Investments, LLC., a Delaware limited
liability company (as "Developer") and Western VII Investments, LLC., a Delaware limited liability
company, (as "Owner') on November 15, 2001, the terns of which govern the development
activities of the Developer pertaining to that certain real property situated in the County of Latimer,
State of Colorado, (hereafter referred to as the "Property") and legally described as follows, to wit:
Harmony School Shops 3rd Filing Subdivision, located in the west half of the
Southwest Quarter of Section 32, Township 7 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
Western VII Investments, LLC., a Delaware limited liability company; and
WHEREAS, the parties presently desire to modify the Development Agreement; and
WHEREAS, Aramark Educational Resources, Inc., a Delaware Corporation changed its name
to Knowledge Learning Enterprises, Inc., a Delaware corporation.
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. 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: Knowledge Learning Enterprises, Inc.
Attn: John Finnemore
573 Park Point Drive
Golden, Co 80401
And
Milestone Canyon, LLC.
3800 Automation Way, Suite 300
Fort Collins, Co 80525
B. Section III (Miscellaneous) Subsection N shall be amended by deleting the addresses for "If to
the Owner".
C. Section III (Miscellaneous) Subsection P shall be deleted.
D. Exhibit "A" shall be replaced with the following:
EXHIBIT "A"
Schedule of water lines to be installed out of sequence.
Phase 1 — Phase 1 work includes but is not limited to the installation of two water taps and
lines from the water main in Milestone Drive to the buildings on lot 2 (one line to each
building on lot 2) as shown on the Final Development Plan Documents.
Phase 2 — All Phase 1 work if not already completed and accepted shall be completed with
Phase 2. Phase 2 work includes (but is not limited to) the installation of a water tap and line
from the water main in Milestone Drive to the building on lot 1, and a water tap, line and fire
hydrant from the water main in Milestone Drive to the parkway on the north side of the street
as shown on the Final Development Plan Documents.
2. Schedule of sanitary sewer lines to be installed out of sequence.
Phase 1 -- Phase 1 work shall include (but is not limited to) the installation of a sewer
service from the manhole in the driveway to the west building on lot 2, and a sewer service
from the sevver main in Milestone Drive to the east building on lot 2 as shown on the Final
Development Plan Documents, and the installation of a sewer service stub from the manhole
in the driveway to a point just west of the shared driveway.
Phase 2 — All Phase 1 work if not all ready completed and accepted shall be completed
with Phase 2. Phase 2 work includes but is not limited to the installation of a sewer service
from the manhole in the driveway to the building on lot I as shown on the Final
Development Plan Documents.
Schedule of street improvements to be installed out of sequence.
Phase I — Phase 1 work includes (but is not limited to) the installation of a driveway cut
on the north side of Milestone Drive, street repair/ patches in accordance with City standards
for all street cuts, and the repair/ replacement of any damaged curb, gutter and sidewalk
adjacent to the site.
Phase 2 — All Phase I work if not already completed and accepted shall be done with
Phase 2. Phase 2 work includes (but is not limited to) street repair/ patches in accordance
with City standards for all street cuts, and the repair/ replacement of any damaged curb,
gutter and sidewalk adjacent to the site.
4. Schedule of storm drainage improvements to be installed out of sequence.
Phase 1 - Phase 1 improvements includes (but is not limited to) the installation of all
drainage facilities for the site, excluding approximate western 30 feet of the on -site pan and
pond. The improvements include (but are not limited to) concrete trickle pans, swales,
drainage structures, and storm drain pipes as shown on the Final Development Plan
Documents.
Phase 2 -- All Phase 1 work if not already completed and accepted shall be done with
Phase 2.
E. 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. l .
IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and
year first above written.
THE CITY OF FORTAOLLINS, COLORADO,
a Municipal Corporati
By:_�
City Manager
APPROVED AS TO CONTENT:
�Q �-
Director of En ineering
A PROXED AS TO FORM:
Deputy City Attorney
Corporate Seal
DEVELOPER:
Knowledge Learning Enterprises, Inc., a Delaware
corporation
By:
Leslie . Armstrong, Vice President
Milestone Canyon, LLC., a Colorado limited liability
company n
By:
Paul Hoffman, Member
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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 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,
for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City
from any and all claims that might arise, directly or indirectly, as a result of the discharge
of injurious storm drainage or seepage waters from the Property in a manner or quantity
different from that which was historically discharged and caused by the design or
construction of the storm drainage facilities, except for (1) such claims and damages as
are caused by the acts or omissions of the City in maintenance of such facilities as have
been accepted by the City for maintenance, (2) errors, if any, in the general concept of the
City's master plans (but not to include any details of such plans, which details shall be the
responsibility of the Developer); and (3) specific written or otherwise documented directives
that may be given to the Developer by the City. The City agrees to give notice to the
Developer of arty 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,
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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.
K. Each Developer as to the lot that it is developing, specifically represents that
to the best of its knowledge all portions of such lot or related 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 lot or Property as are dedicated to the City pursuant to this Development,
are in compliance with all such requirements pertaining to the disposal or existence in or
on such dedicated property of any hazardous substances, pollutants or contaminants, as
defined by the Comprehensive Environmental Response Compensation and Liability Act
of 1980, as amended, and regulations promulgated thereunder. The Developer, for itself
and its successor(s) in interest, does hereby indemnify and hold harmless the City from
any liability whatsoever that may be imposed upon the City by any governmental authority
or any third party, pertaining to the disposal of hazardous substances, pollutants or
contaminants, and cleanup necessitated by leaking underground storage tanks, excavation
and/or backfill of hazardous substances, pollutants or contaminants, or environmental
cleanup responsibilities of any nature whatsoever on, of, or related to any property
dedicated to the City in connection with this Development, provided that such damages or
liability are not caused by circumstances arising entirely after the date of acceptance by
the City of the public improvements constructed on the dedicated property, except to the
extent that such circumstances are the result of acts or omissions of the Developer. Said
indemnification shall not extend to claims, actions or other liability arising as a result of any
hazardous substance, pollutant or contaminant generated or deposited by the City, its
agents or representatives, upon portions of the Property dedicated to the City in connection
with this Development. The City agrees to give notice to the Developer of any claim made
against it to which this indemnity and hold harmless agreement by the Developer could
apply, and the Developer shall have the right to defend any lawsuit based on such claim
and to settle any such claim provided Developer must obtain a complete discharge of all
City liability through such settlement. Failure of the City to give notice of any such claim
to the Developer within ninety (90) days after the City first receives a notice of such claim
under the Colorado Governmental Immunity Act for the same, shall cause this indemnity
and hold harmless agreement by the Developer to not apply to such claim and such failure
shall constitute a release of this indemnity and hold harmless agreement as to such claim.
II. Special Conditions
A. Water Lines
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Not Applicable
B. Sewer Lines
1. Prior to the issuance of any building permit(s) for this development,
the Developer shall, in accordance with Section 26-121 of the City Code, reimburse the
City the sum of $1,813.23 for the cost of installation of the of the Warren Lake Trunk Sewer
to serve this development.
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements associated with
this Development, as shown on the Final Development Plan Documents, shall be
completed by the Developer in accordance with said Final Development Plan Documents
prior to the issuance any certificate of occupancy. Completion of improvements shall
include the certification by a professional engineer licensed in Colorado that the drainage
facilities which serve this development have been constructed in conformance with said
Final Development Plan Documents. Said certification shall be submitted to the City at
least two weeks prior to the issuance of any certificate of occupancy in this development.
2. The Developer shall be responsible for maintaining the structural
integrity and operational functions of all drainage facilities throughout the build -out of this
Development. If at any time following certification (as required pursuant to paragraph one
(1) above) of said drainage facilities and during the construction of structures and /or lots
within this Development the City reasonably decides that said drainage facilities no longer
comply with the approved plans, the City shall give written notice to the Developer of all
items which do not comply with the approved plans. Unless the Developer successfully
appeals the decision of non-compliance, it shall bring such facilities back up to the
standards and specifications as shown on the 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 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 $ 4,494.00 prior to beginning construction to guarantee
the proper installation and maintenance of the erosion control measures shown on the
Final Development Plan Documents. Said security deposit(s) shall be made in accordance
with the criteria set forth in the City's Storm Drainage Design Criteria and Construction
Standards (Criteria). If, at any time, the Developer fails to abide by the erosion control
provisions of the Final Development Plan Documents or the erosion control provisions of
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the Criteria after receiving notice of the same or an emergency situation exists which would
reasonably require immediate mitigation measures, then, in either event, and
notwithstanding any provisions contained in paragraph III(J) to the contrary, the City may
enter upon the Property for the purpose of making such improvements and undertaking
such activities as may be necessary to ensure that the provisions of said plans and the
Criteria are properly enforced. The City may apply such portion of the security deposit(s)
as may be necessary to pay all costs incurred by the City in undertaking the administration,
construction, and/or installation of the erosion control measures required by said plans and
the Criteria. In addition, the City shall have the option to withhold building permits and
certificates of occupancy, as stated in Paragraph III.D of this Agreement, as it deems
necessary in order to ensure that the Developer installs and maintains the erosion control
measures throughout the build -out of this Development.
4. It is important that all structures be graded to drain in the configuration
shown on the Final Development Plan Documents. For this reason the following additional
requirements shall be followed for all buildings and/or lots in this Development:
Prior to the issuance of a certificate of occupancy for any building the Developer shall
provide the City with certification that the lot and/or building has been graded correctly.
This grading certification shall demonstrate that the lot or building Finish Floor Elevation
has been built in accordance with the elevation specified on the Final Development Plan
Documents. The certification shall also show that the minimum floor elevation or minimum
opening elevation for any building constructed is in compliance with the minimum elevation
as required on the Final Development Plan Documents. The certification shall
demonstrate as well that any minor swales adjacent to the building or on the lot have been
graded correctly and in accordance with the grades shown on the Final Development Plan
Documents. The certification shall also show that the elevations of all corners of the lot are
in accordance with the elevations shown on the Final Development Plan Documents. Said
certification shall be completed by a Colorado licensed professional engineer and shall be
submitted to the City at least two weeks prior to the date of issuance of the desired
certificate of occupancy.
5. The Developer shall obtain the City's prior approval of any changes
from the Final Development Plan Documents in grade elevations and/or storm drainage
facility configuration that occur as a result of the construction of buildings 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.
6. The Developer shall limit the construction of the off -site storm
drainage improvements to the limits of construction as shown on the Final Development
Plan Documents. The contractor shall re -seed and restore all areas that are disturbed
during construction of the off -site storm drainage improvements in accordance with the
Final Development Plan Documents promptly following such construction.
on
7. The drainage design for this Development provides for the evacuation
of storm drainage runoff in a reasonable amount of time out of the detention facilities and
into the drainage outfall system. If, during or within 2 years after construction and
acceptance of the detention facilities associated with this Development, surfacing or
standing water conditions persist in these facilities, and if such conditions are beyond what
can be expected in accordance with the approved stormwater design, the Developer shall
promptly upon such discovery install an adequate dewatering system in the detention
facilities. Such a system shall be reviewed and approved by the City prior to installation.
8. The Developer shall be responsible for the maintenance of all on -site
as well as all off -site drainage facilities serving this Development that are outside of the
public right-of-way.
D. Streets.
1. No street oversizing reimbursement from the City is due the Developer
for this Development.
2. The Developer agrees to reimburse the City the sum of $270,213.40,
as provided below for the cost to construct Timberline Road and Milestone Drive adjacent
to the Harmony School Shops PUD plus a percentage added to recognize the effects of
inflation. The Developer shall make reimbursement to the City as each lot is developed
based upon the proportion that such lot is to the total size of the Harmony School Shops
PUD (totaling 720,134 square feet). The inflation factor shall be calculated using the
construction cost index for Denver as published in the Engineering News Record (ENR)
of August 1997, and the same index published in the ENR in the month preceding payment
of the reimbursement. Payment shall be made to the City for each lot prior to the issuance
of any building permit on such lot.
3. 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).
4. Construction of Phases 1 and 2 of this development must be done in
sequential order. No building permits will be issued within Phase 2 until the streets and
utilities within Phase 1 and 2 have been completed in accordance with Section I.C. of this
agreement.
5. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
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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
proximately caused by the City's negligent operation or maintenance of its storm drainage
facilities in the Development. However, nothing herein shall be deemed a waiver by the
City of its immunities, defenses, and limitations to liability under the Colorado
Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any other law.
2. If the development includes a subdrain system, any such subdrain
system, whether located within private property or within public property such as street
rights -of -way or utility or other easements, shall not be owned, operated, maintained,
repaired or reconstructed by the City and it is agreed that all ownership, operation,
maintenance, repair and reconstruction obligations shall be those of the Developer or the
Developer's successor(s) in interest. Such subdrain system is likely to be located both
upon private and public property and, to the extent that it is located on public property, all
maintenance, operation, repair or reconstruction shall be conducted in such a manner that
such public property shall not be damaged, or if damaged, shall, upon completion of any
such project, be repaired in accordance with then existing City standards. The City shall
not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby
agrees to indemnify and hold harmless the City against any damages or injuries sustained
in the Development as the result of groundwater seepage or flooding, structural damage
or other damage resulting from failure of any such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold
harmless the City against any damages or injuries to water rights caused, directly or
indirectly by the construction, establishment, maintenance or operation of the
Development.
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.
F. Hazards and Emergency Access
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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
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 Phase 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, which guarantees
shall run concurrently and shall commence upon the date of completion of the public
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