HomeMy WebLinkAboutRIGDEN FARM - Filed DA-DEVELOPMENT AGREEMENT - 2004-02-04DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this ;�i day of �y\c <Yi1'1%>.t`
1999, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; and Rigden Development, LLC, a
Colorado limited liability company, hereinafter referred to as the "Developer"; and Rigden
Farm, LLC, a Colorado limited liability company and Spring Creek Farms Limited Liability
Company, a Colorado limited liability company, hereinafter referred to as the "Owner".
WITNESSETH:
WHEREAS, the Developer has entered into an agreementwith the ownerto acquire
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:
Rigden Farm Filing One a tract of land located in Section 29, 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 masher list (the final development plan documents) copies of which are on
file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and will
further require the installation of certain improvements primarily of benefit to the lands to
be developed and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the final development plan documents submitted
by the Developer subject to certain requirements and conditions which involve the
installation of and construction of utilities and other municipal improvements in connection
with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
I. General Conditions
A. The terms of this Agreement shall govern all development activities of the
5. In accordance with Section 24-95 of the City Code the Developer is
responsible for constructing the portion of Drake Road adjacent to the site prior to the
issuance of the first building permit. Notwithstanding the foregoing, the Developer shall
have the option to postpone the Drake Road construction at the Rigden Parkway
intersection and east of the said intersection adjacent to the property following the escrow
of funds to be deposited with the City in the form of cash, bond, nonexpiring letter of credit
or otherform of City approved security sufficient to guarantee completion of the design and
construction of the improvement necessary for Drake Road to meet City street design
standards. The amount of said funds shall be the estimated cost to design and construct
said improvements, which estimate shall be prepared by the Developer and approved by
the City, plus an additional25% of the estimate to cover any contingencies and unexpected
costs. Said amount shall be deposited with the City prior to the issuance of any building
permit for this Development.
The improvements to Drake Road shall be constructed at such time that the City deems
the improvements to be necessary or at such time as improvements are made to adjacent
portions of Drake Road, whichever shall first occur.
Except as provided in the following paragraph, any interest earned by the City as a result
of said deposit shall be the property of the City to cover administration and inflation in order
to better assist the City in making reimbursement to the party who constructs said
improvements.
If the Developer 'is the party that constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the Developer
the amount deposited plus any interest earned by the City as a result of said deposit, less
3% of the total amount remaining, (which includes said amount deposited plus the interest
earned by the City) to be kept by the City to cover its costs for administration of said
deposits.
6. The Developer is responsible for constructing Iowa Drive and Illinois Drive
within the right-of-way dedicated as a part of this project. In accordance with the approved
development plan documents the construction of these roads will not be to the property
lines in order to have the ability to match the existing grade within the property boundaries.
As it is the Developers responsibility for the construction of the unbuilt portion to the
property line, the developer agrees to provide an escrow of funds to cover the cost of the
construction of the pavement, curb, gutter and sidewalk that is not constructed at the time
of development of the Property. The escrow of funds shall be deposited with the City in
the form of cash, bond, nonexpiring letter of credit or other form of City approved security
sufficient to guarantee completion of the construction. The amount of said funds shall be
the estimated cost to construct said improvements, which estimate shall be prepared by
the Developer and approved by the City, plus an additional 25% of the estimate to cover
any contingencies and unexpected costs. Said amount shall be deposited with the City
prior to the issuance of any building permit for this Development.
iU,
The remaining improvements to Iowa Drive and Illinois Drive shall be made at such time
that the property to the south is developed and the roads are continued onto such property.
Except as provided in the following paragraph, any interest earned by the City as a result
of said deposit shall be the property of the City to cover administration and inflation in order
to better assist the City in making reimbursement to the party who constructs said
improvements.
If the Developer is the party that constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the Developer
the amount deposited plus any interest earned by the City as a result of said deposit, less
3% of the total amount remaining, (which includes said amount deposited plus the interest
earned by the City) to be kept by the City to cover its costs for administration of said
deposits.
7. The interim improvements to Drake Road, being the widening of the road
to provide a bike lane on each side of the road, as shown on the approved final
development plan documents shall be completed prior to the issuance of more than 31
building permits within this Development.
8. The intersection of Drake Road and Timberline Road, per City request has
been shifted to the East. This shift in alignment requires additional right-of-way from this
Development. In accordance with Section 24-112 of the City Code, the City shall
reimburse the Developer for the additional right-of-way required for the alignment shift. In
addition the City has agreed to an alignment shift of Drake Road and County Road 9 so
that a large sweeping curve connects the two roads on the west side of the Fossil Creek
Reservoir Inlet Ditch rather than the existing 90 degree intersection that occurs east of the
Fossil Creek Reservoir Inlet Ditch. Upon dedication of the additional right-of-way for Drake
Road and Timberline Intersection and the right-of-way for the Drake Road County Road
9 curve by plat or separate document the City shall pay the developer $ 1,134,000.00 for
the 501,105 square feet of right-of-way. 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. In accordance with Section 7.5-20 of the City Code
the Developer can elect to take this amount as a credit against the capital expansion fees
for this Development.
9. The Developer is responsible for the relocation of the "Johnson Farm"
buildings, located at the southeast corner of Timberline Road and Drake Road, to the
designated community center site within this Development. The removal of these buildings
from the southeast corner of Timberline Road and Drake Road shall occur prior to the
issuance of any building permit for this Development. As a part of the removal of the
structures the developer shall be responsible for termination of all utility services in
accordance with the applicable utility and state/county health department regulations.
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10. In accordance with Section 24-95 of the City Code the Developer is
responsible for constructing the portion of Timberline Road adjacent to the site and shall
be responsible for constructing Timberline Road and Drake Road adjacent to future
developments. The Dedication of the additional right-of-way on Timberline Road, from the
southern boundary of the property north to the Drake Road right-of-way, shall take the
place of the local street contribution required of the adjacent property owner. Upon
dedication of the right-of-way by plat and/or separate document it shall then become the
responsibility of the City to construct the improvements to Timberline Road and Drake
Road in accordance with the approved final development plan documents.
11. The Developer has the option to provide street signs in a design of its
choosing rather than having the City install street signs meeting the requirements of the
Manual on Uniform Traffic Control Devices (MUTCD), provided that the lettering on the
street names signs are at least 4 inches high with supplementary lettering to indicate the
type of street (e.g., Street, Avenue, Road, etc.) being at least 2 inches high and that the
lettering and background are contrasting colors. The Developer agrees that if it chooses
to install street signs not meeting the MUTCD, it shall be responsible for all costs for the
purchasing, installation and ongoing maintenance of such signs. If at any time the
Developer fails to maintain the street signs the City shall have the right to replace such
signs with those meeting the MUTCD.
12. No access to lot M3 of the Property shall be allowed off of Custer Drive
until the street has been completed with either City approved temporary turnarounds or
permanent cul de sacs, or until the street has been extended to become a through street
in accordance with City standards.
13. No access to lot 117 of the Property shall be allowed off of Des Moines
Drive until the street has been completed with either City approved temporary turnarounds
or permanent cul de sacs, or until the street has been extended to become a through street
in accordance with City standards.
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 maintair, 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
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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.
G. Trails
1. In order to guarantee the completion of the Developer's share of the
regional trail system from Rigden Parkway west and then south across the regional
drainage channel connecting to the existing sidewalk in the Pinecone Apartments, PUD,
the Developer shall escrow funds to be deposited with the City in the form of cash, bond,
nonexpiring letter of credit or other form of City approved security sufficient to guarantee
completion of said construction. The amount of said funds shall be the estimated cost to
construct said improvements, which estimate shall be prepared by the Developer and
approved by the City, plus an additional 25% of the estimate to cover any contingencies
and unexpected costs. Said amount shall be deposited with the City prior to the issuance
of any building permit for this Development. If the Developer is the party that constructs
said improvements, then upon completion of said improvements and acceptance of them
by the City, the City shall return to the Developer the amount deposited plus any interest
earned by the City as a result of said deposit, less 3% of the total amount remaining,
(which includes said amount deposited plus the interest earned by the City) to be kept by
the City to cover its costs for administration of said deposit.
The City shall be responsible for obtaining the necessary easements for the construction
of the trail on the Pinecone Apartments PUD and the property to the west of Rigden Farm
(currently submitted to the City for review as the "Timberline Church PUD") where the trail
goes through and crosses the regional channel. At such time that the necessary
easements are obtained the Developer agrees to build it's required portion of the trail,
being a 5 foot wide section with the area adjacent to it graded for the future widening of the
trail by the City to 10 feet in width, from Rigden Parkway west, across the Timberline
Church PUD property and a 10 foot wide bridge across the regional drainage channel, and
a 10 foot wide trail connecting to the existing sidewalk in the Pinecone Apartments PUD.
Construction of the trail shall be done in a timely manner; and continuous work, excluding
weather related delays, shall be performed. If the City determines that ongoing, continuous
construction of the trail is not occurring, the City may withhold building permits and/or
certificates of occupancy to ensure performance.
Upon completion of the 10 foot wide bridge across the regional drainage channel and the
10 foot wide portion of trail on the Pinecone Apartments PUD, acceptance of such
improvements by the City, and submittal of: (1) an invoice from the installing developer's
engineer or construction manager for any engineering design services for the project, (2)
the contractor's application for final payment approved by the installing developer's
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engineer or construction manager, (3) a letter from the installing developer and/or
contractor certifying that final payment has been received by the contractor, and (4) a letter
from the installing developer and/or engineer certifying that final payment of engineering
fees has been made, then the City Parks and Recreation Department shall reimburse the
developer for 100 percent of the cost of the installation of the bridge and the 10 foot trail
on the Pinecone Apartments PUD.
The developer may apply to the City for a reimbursement agreement for the portion of trail
constructed on the property to the west of Rigden Farm Filing One (Timberline Church
PUD) in accordance with the provisions of Section 3.3.2(F) of the Land Use Code.
2. The developer agrees to provide a design for the trail on the property to
the west of Rigden Farm (currently submitted to the City for review as the 'Timberline
Church PUD") and a bridge design for the bridge crossing the channel in accordance with
the agreed upon alignment of the trail system. Said design shall be submitted to the City
for review and approval prior to the issuance of any building permits in this Development.
Said plans shall be made a part of the final approved plans for this Development.
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 securityto guarantee completion of the public
improvements required for this Development, prior to issuance of the Development
Construction Permit.
I. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance guarantee and
a five-year repair guarantee covering all errors or omissions in the design and/or
construction of the public improvements required for this Development, which guarantees
shall run concurrently and shall commence upon the date of completion of the public
improvements and acceptance thereof by the City. More specific elements of these
guarantees are noted in Exhibit"C." Securityforthe maintenance guarantee and the repair
guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code, or Section 29-14
of the Transitional Land Use Regulations, as applicable. 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 to 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. The City agrees that the security for the 2 year maintenance
guarantee shall be 5% of the value of the Public Improvements.
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2. The Developer has the option of filing progress and acceptance
certifications for completed work requiring bonds, letters of credit, or other approved forms
of escrow. The City agrees to incrementally release the escrow held upon acceptance of
components of the work by the Developer.
J. Natural Resources
The Developer shall be responsible for all seeded areas fora minimum of two
(2) growing seasons from the date of completion or until the plant establishment criteria set
forth below is meat.
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 from five feet (5') directly overhead, with no bare spots
larger than 1000 square centimeters. At the time of the second growing season inspection,
there shall be seventy-five percent (75%) foliage cover of the specified species planted as
measured from five feet (5') directly overhead. No more than ten percent (10%) of the
species noted on the site may be weedy species as defined by Article III, Section 20-41
of the Code of the City of Fort Collins.
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.
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
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individual builders and/or subcontractors; shall remove such rubbish as often as necessary,
but no less than daily and; at the completion of the work, shall remove all such waste
materials, rubbish, tools, construction equipment, machinery, and surplus materials from
the public right-of-way. The Developer further agrees to maintain the finished street
surfaces so that they are free from dirt caused by the Developer's operation or as a result
of building activity. Any excessive accumulation of dirt and/or construction materials shall
be considered sufficient cause for the City to withhold building permits and/or certificates
of occupancy until the problem is corrected to the satisfaction of the City Engineer. If the
Developer fails to adequately clean such streets within two (2) days after receipt of written
notice, the City may have the streets cleaned at the Developer's expense and the
Developer shall be responsible for prompt payment of all such costs. The Developer also
agrees to require: all contractors within the Development to keep the public right-of-way
clean and free from accumulation of dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing operations
when winds are of sufficient velocity to create blowing dust which, in the inspector's
opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements or
obligations may be shown on the final development plan documents, or any documents
executed in the future that are required by the City for the approval of an amendment to
a development plan, and the City may withhold such building permits and certificates of
occupancy as it deems necessary to ensure performance in accordance with the terms of
this Development Agreement. The processing and "routing for approval" of the various
development plan documents may result in certain of said documents carrying dates of
approval and/or execution that are later than the date of execution of this Development
Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of
this Agreement. The developer hereby waives any right to object to any such discrepancy
in dates.
E. Nothing herein contained shall be construed as a waiver of any requirements of
the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable) and
the Developer agrees to comply with all requirements of the same.
F. In the event the City waives any breach of this Agreement, no such waiver shall
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 forthat 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,
16
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 is thereby divested of all
equitable and legal interest in the Property, the Developer shall be released from liability
under this Agreement with respect to any breach of the terms and conditions of this
Agreement occurring after the date of any such transfer of interest. In such event, the
succeeding property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material element
hereof. In the event that either party shall fail to perform according to the terms of this
Agreement, such party may be declared in default. In the event that a party has been
declared in default hereof, such defaulting party shall be given written notice specifying
such default and shall be allowed a period of ten (10) days within which to cure said
default. In the event the default remains uncorrected, the party declaring default may elect
to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing
and require specific performance or; (c) avail itself of any other remedy at law or equity.
K. In the event of the default of any of the provisions hereof by either party which
shall require the party not in default to commence legal or equitable action against said
defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -
defaulting party's reasonable attorney's fees and costs incurred by reason of the default.
Nothing herein shall be construed to prevent or interfere with the City's rights and remedies
specified in Paragraph III.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement shall not
be construed as or deemed to be an agreement for the benefit of any third party or parties,
and no third party or parties shall have any right of action hereunder for any cause
whatsoever.
M. It is expressly understood and agreed by and between the parties hereto that
this Agreement shall be governed by and its terms construed under the laws of the State
of Colorado and the City of Fort Collins, Colorado.
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:
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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: Rigden Development, LLC
c/o Dave Pietenpol
1027 W. Horsetooth Rd, Suite 200
Fort Collins, Co 80526
With a copy to: Wheeler Construction Services, LLC
c/o Scott Griffin
1027 W. Horsetooth Rd, Suite 200
Fort Collins, Co 80526
If to the Owner: Rigden Farm, LLC
c/o Dave Pietenpol
1027 W. Horsetooth Rd, Suite 200
Fort Collins, Co 80526
With a copy to: Spring Creek Farms Limited Liability Company
c/o Glen Johnson
3432 Carlton Ave
Fort Collins, Co 80525
Notwithstanding the foregoing, if any partyto 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,
IF
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.
ATTEST:
City Clerk
APPROVED AS TI O CONTENT:
I
City Enginder
APPROVED AS TO FORM:
ZGCGtI t�
Deputy City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
'CityMahag�f% (' �
DEVELOPER:
Rigden Development, LLC, a Colorado Limited Liability
Company
By: Sierra Resources Corporation, Manager of Rigden
Farm, LLC /
David J. etenpol, President
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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 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
2
By: Wolverine Management Group, Inc.,
Manager of Rigden Farm, LLC
red L. Croci, P sident
OWNER:
Rigden Farms, LLC, a Colorado Limited Liability
Company
By: Sierra Resources Corporation, Manager of Rigden
Farm, LLC
r
David JrPiefenpol, President
By: Wolverine Management Group, Inc.,
Manager of Rigden Farm, LLC
Fred L. Croci, reside
Spring Creek Farms Limited Liability Company, a
Colorado
yliar ited liability company
By: zc�'�1
Glen son, Co -Manager
Alvin C. Johnson, Co -Manager
EXHIBIT "A"
Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
3. Schedule of street improvements to be installed out of sequence.
Not Applicable
4. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
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EXHIBIT "B"
Not Applicable
22
EXHIBIT "C"
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of
two (2) years from the date of completion and acceptance by the City of the
public improvements warranted hereunder, the full and complete
maintenance and repair of the public improvements constructed for this
Development. This warranty and guarantee is made in accordance with the
City of Fort Collins Land Use Code and/or the Transitional Land Use
Regulations, as applicable. This guarantee applies to the streets and all
other appurtenant structures and amenities lying within the rights -of -way,
easements and other public properties, including, without limitation, all
curbing, sidewalks, bike paths, drainage pipes, culverts, catch basins,
drainage ditches and landscaping. Any maintenance and/or repair required
on utilities shall be coordinated with the owning utility company or city
department.
The Developer shall maintain said public improvements in a manner that will
assure compliance on a consistent basis with all construction standards,
safety requirements and environmental protection requirements of the City.
The Developer shall also correct and repair, or cause to be corrected and
repaired, all damages to said public improvements resulting from
development -related or building -related activities. In the event the Developer
fails; to correct any damages within thirty (30) days after written notice
thereof, then said damages may be corrected by the City and all costs and
charges billed to and paid by the Developer. The City shall also have any
other remedies available to it as authorized by this Agreement. Any
damages which occurred prior to the end of said two (2) year period and
which are unrepaired at the termination of said period shall remain the
responsibility of the Developer.
REPAIR GUARANTEE:
The Developer agrees to hold the City of Fort Collins, Colorado, harmless for
a five (5) year period, commencing upon the date of completion and
acceptance by the City of the public improvements constructed for this
Development, from any and all claims, damages, or demands arising on
account of the design and construction of public improvements of the
property shown on the approved plans and documents for this Development;
and the owner furthermore commits to make necessary repairs to said public
improvements, to include, without limitation, the roads, streets, fills,
embankments, ditches, cross pans, sub -drains, culverts, walls and bridges
within the right-of-way easements and other public properties, resulting from
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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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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
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 plains, 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
K,
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. The Developer specifically represents that to the best of its knowledge all
portions of the Property dedicated (both in fee simple and as easements) to the City
associated with this Development are in compliance with all environmental protection and
anti -pollution laws, rules, regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40
C.F.R., Part 261, and that such portions of the Property as are dedicated to the City
pursuant to this Development, are in compliance with all such requirements pertaining to
the disposal or existence in or on such dedicated property of any hazardous substances,
pollutants or contaminants, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer does hereby indemnify and hold harmless the City from any
liability whatsoever that may be imposed upon the City by any governmental authority or
any third party, pertaining to the disposal of hazardous substances, pollutants or
contaminants, and cleanup necessitated by leaking underground storage tanks, excavation
and/or backfill of hazardous substances, pollutants or contaminants, or environmental
cleanup responsibilities of any nature whatsoever on, of, or related to any property
dedicated to the City in connection with this Development, provided that such damages or
liability are not caused by circumstances arising entirely after the date of acceptance by
the City of the public improvements constructed on the dedicated property, except to the
extent that such circumstances are the result of acts or omissions of the Developer. Said
indemnification shall not extend to claims, actions or other liability arising as a result of any
hazardous substance, pollutant or contaminant generated or deposited by the City, its
agents or representatives, upon portions of the Property dedicated to the City in connection
with this Development. The City agrees to give notice to the Developer of any claim made
against it to which this indemnity and hold harmless agreement by the Developer could
apply, and the Developer shall have the right to defend any lawsuit based on such claim
and to settle any such claim provided Developer must obtain a complete discharge of all
City liability through such settlement. Failure of the City to give notice of any such claim
to the Developer within ninety (90) days after the City first receives a notice of such claim
under the Colorado Governmental Immunity Act for the same, shall cause this indemnity
and hold harmless agreement by the Developer to not apply to such claim and such failure
shall constitute a release of this indemnity and hold harmless agreement as to such claim.
II. Special Conditions
A. Water Lines
1. Prior to the issuance of any building permit(s) for this Development, the
Developer shall, it accordance with Section 26-121 of the City Code, reimburse the City
the sum of $42,68 2.90, plus inflation, for the cost of installation of the Developer's portion
of the Drake Road/CR 9 24-inch water main. This reimbursement is based upon the front
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footage of the water main (1,856.27 feet) which is adjacent to portions of Rigden Farm -
Filing One. Additional reimbursements will be due with future filings of the property
encompased by the Rigden Farm Overall Development Plan (hearafter, "the ODP
Property"). The inflation shall be calculated based upon the Construction Cost Index for
Denver as published in the Engineering News Record (ENR) of December 1, 1997
(4329.24), as described below.
(ENR index at time of payment) - 4329.24
%Added = 4329.24 * t 00
The total amount due shall be $42,682.90 plus (% Added). Said amount added to
compensate for inflation shall not reduce the total (principal) amount due.
B. Sewer Lines
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 more than 31 building permits in this 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 of any more
than 31 building permits for the Development. It is also agreed that in the event a design
is completed and approved by the City of Fort Collins for a future filing of the Rigden Farm
that modifies any portion of the interim drainage system associated with the Rigden Farm
1" Filing final development plans, then those modified drainage improvements would be
excluded from the certification requirement of the Rigden Farm 1" Filing and would be only
certified as part of the future Rigden Farm filing as modified.
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 deems that said drainage facilities no longer comply with
the approved plans, the developer shall bring such facilities back up to the standards and
specifications as shown on the approved plans. Failure to maintain the structural integrity
and operational function of said drainage facilities following certification shall result in the
withholding of the issuance of additional building permits and/ or certificates of occupancy
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until such drainage facilities are repaired to the operational function and structural integrity
which was approved by the City.
3. The Developer agrees to provide and maintain erosion control
improvements as :shown on the approved final development plan documents to stabilize
all over -lot grading in and adjacent to this Development. The Developer shall also be
required to post a security deposit in the amount of $ 170,785.00 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, 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 orderto ensure that the Developer installs
and maintains the erosion control measures throughout the buildout of this Development.
4. The Developer and the City agree that it is important that all lots be
graded to drain in the configuration shown on the approved final development plan
documents. For this reason the following additional requirements shall be followed for
building on all Lots:
Prior to the issuance of a certificate of occupancy for each lot the Developer shall
provide the City with certification that the lot has been graded correctly (including
the grading of any minor swales, if applicable); the lot corner elevations specified
on the approved final development plan documents are correct and in accordance
with the approved final development plan documents; and the minimum floor
elevation (wherever applicable) for all buildings constructed on said lot has been
completed in accordance with the approved final development plan documents.
The certification of all finished floor elevations and finished lot grades shall show
that the elevation of homes built on any lot in this subdivision and the lot grading is
in compliance with the approved grading plan, however; there can be some variation
of the finished floor and finished grade elevations to increase these elevations
above those specified on the grading plan as long as the intent of the grading plan
is maintained and as long as the new elevations do not negatively impact any
adjacent property. 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.
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5. 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.
6. The Developer and the City agree that the Developer is obligated to
maintain all on -site storm drainage facilities not accepted for maintenance by the City and
all off -site storm drainage facilities not accepted for maintenance by the City serving this
Development and outside of the public rights -of -way.
7. The Developer and the City agree to work cooperatively on integrating the
design and construction of the City's North Tributary Storm Sewer system with the design
and construction of the Rigden Farm storm drainage system. Both parties agree to a
multiple phase program which will eventually result in the transport of drainage waters from
regional upstream basins feeding the North Tributary pipeline and from part of the ODP
Property, through a future lake on the ODP Property, under the Fossil Creek Reservoir
Inlet Ditch and out to the Poudre River through the property that lies east of County Road
9.
8. Concurrently with the Rigden Farm First Filing construction, and prior to
the acceptance of the drainage infrastructure on the Rigden Farm First Filing property the
Developer and the City agree that the Developer shall construct on the Property interim
drainage improvements that shall be modified with the future filings of the ODP Property.
9. In conjunction with the Rigden Farm First Filing the City agrees to:
a. Engineer and pay for the design and construction of the North Tributary Storm Sewer
from any point upstream of the first point of connection from the ODP Property into this
storm sewer system.
b. Participate in the design and construction of the interim drainage system through the
ODP Property. The City shall pay for all the design and construction costs of the revised
alignment of the North Tributary Storm Sewer. If that cost does not exceed the sum of
$407,231.00 (which is the agreed upon estimated cost of the original sewer alignment
taking the sewer South along Rigden Parkway) then the City shall contribute the difference
between that sum and its actual design and construction costs for the revised alignment,
to future proposed drainage improvements on the ODP Property that would be associated
with future Rigden Farm filings (such as the siphon under the Fossil Creek Reservoir Inlet
Ditch and County Road 9). If that cost exceeds the sum of $407,231.00 then the City shall
have no future obligations for any contribution to the cost of that siphon or any other
drainage improvements associated with future Rigden Farm filings. Any and all of these
costs would be borne entirely by the Developer.
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c. Vacate the 30--foot wide drainage easement that runs north to south from Drake Road
to the Foothills [Regional Channel (recorded at Reception #94069705 of the Larimer
County Records). Said easement vacation shall be granted without charge to the
Developer.
d. Coordinate the placement and compaction of the soil cover provided by the Developer
for the portion of the North Tributary Storm Sewer that is downstream of the first
connection with the Rigden Farm. The City shall pay for such soil placement and
compaction as part of the North Tributary Storm Sewer construction contract.
e. Agree to the future modification and/or vacation of the floodplain easements on the
eastern part of the ODP Property to reflect the revised floodplain easements as needed.
These easements vacations and/or modifications will be provided without charge to the
Developer. Said floodplain easements are recorded at Reception # 97025609 of the
Larimer County Records.
10. In conjunction with the Rigden Farm First Filing, the Developer agrees
to:
a. Participate in the design and construction of the interim drainage system from the first
point of connection from the CDP Property into the North Tributary Storm Sewer, to the
Fossil Creek Reservoir Inlet Ditch. The Developer shall pay for its own engineer's design
costs while the City shall pay for its engineer's design costs.
b. Grant all necessary easements at mutually agreed locations on the C DP Property that
would be needed by the City to construct the North Tributary Storm Sewer and the joint
drainage system on the Rigden Farm property. Said easements shall be granted without
charge to the City.
c. Coordinate with the design and construction of the North Tributary Storm Sewer to
supply soil for cover and fill over this storm sewer. The location where the fill would be
provided shall be limited to the section of pipe downstream of the first Rigden Farm
connection. The specific location and amount of fill shall be determined as design
progresses. The Developer shall provide the soil material necessary for the fill without
charge to the City.
D. Streets
1. Subject to the conditions of this Agreement, the City agrees to reimburse
the Developer for oversizing public street improvements along Custer Drive, Rigden
Parkway, Timberline Road and Drake Road for those portions of said street abutting the
Property as shown on the approved final development plan documents. Reimbursement
for Custer Drive and Rigden Parkway shall be for oversizing the street from local (access)
standards to collector standards. Reimbursement for Timberline Road shall be for
oversizing the street overlot grading and/or placement of other onsite materials from local
[:
(access) standards to major arterial standards. Reimbursement for Drake Road shall be
for oversizing the street overlot grading and/or placement of other onsite materials from
local (access) standards to minor arterial standards. The City shall make reimbursement
to the Developer for the aforesaid oversized street improvements in accordance with
Section 24-112 of the Code of the City. The Developer agrees and understands that the
City shall have no obligation to make reimbursement payments for street oversizing unless
funds for such payments shall first have been budgeted and appropriated from the Street
Oversizing Fund by the City Council; and the Developer further understands that to the
extent that funds are not available for such reimbursement, the City may not, in the
absence of the Developer's agreement, require the construction, at the Developer's
expense, of any oversized portion of streets not reasonably necessary to offset the traffic
impacts of the Development. The Developer does hereby agree to construct the aforesaid
oversized street improvements with the understanding that the Developer may not be fully
reimbursed by the City for the cost of such construction. The Developer further agrees to
accept payment in accordance with Section 24-112 (d) of the Code of the City as full and
final settlement and complete accord and satisfaction of all obligations of the City to make
reimbursements to the Developer for street oversizing expenses. It is anticipated by the
City that the City's reimbursement, in accordance with Section 24-112 (d), would not be
less than fifty percent (50%) of the Developer's actual expenses incurred and will be
calculated in accordance with the formula as set forth in Section 24-112 (d).
2. It is understood that the improvements that are to be constructed in the
public right-of-way as described in this Section II(D) are "City improvements" (as defined
below) and, as such, any contract for the construction of the same must be executed in
writing. If the cost of such improvements exceeds the sum of Thirty Thousand Dollars
($30,000), the contract for the construction of the same must be submitted to a competitive
bidding process resulting in an award to the lowest responsible bidder; and evidence must
be submitted to the City prior to the commencement of the work showing that the award
was given to the lowest responsible bidder. If the cost of such improvements exceeds Fifty
Thousand Dollars ($50,000), the contract for the construction of the improvements must
be insured by a performance bond or other equivalent security. For purposes of this
paragraph, the term "City improvements" shall mean either (1) existing improvements
owned by the City that are to be modified or reconstructed, or (2) any improvements
funded in whole or in part by the City.
3. The Developer 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).
4. 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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