HomeMy WebLinkAboutSTANTON CREEK SECOND - Filed DA-DEVELOPMENT AGREEMENT - 2004-02-26DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this / N` dayof r+A%e r 199�,,
by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation,
hereinafter referred to as the "City and James Construction Co., a Colorado Corporation,
hereinafter referred to as the "Developer".
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer, State of Colorado, (hereafter referred to as the "Property") and legally
described as follows, to wit:
Stanton Creek Subdivision Second Filing, a portion of Section 18, Township 6
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
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
development (e.g., all signing and striping for a right turn lane into the development site).
E. Ground Water
1. The City shall not be responsible for, and the Developer hereby agrees
to indemnify and hold harmless the City against, any damages or injuries sustained in the
development as a result of ground water seepage or flooding, structural damage, or other
damage unless such damages or injuries are sustained as a result of the City's failure to
properly maintain fits 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 ofthe
City to give notice of any such claim to the Developer within ninety (90) days after the City
first receives notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
F. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a permanent
water system is installed by the Developer and approved by the City.
2. Prior to beginning any building construction in Phase 1, and throughout
the buildout of Phase 1 of this development, the Developer shall provide and maintain at
all times an accessway to said huilding 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 thatthe accessway is brought into compliance,
the City 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, for Phase 1
development only.. upon the installation of all underground water, sanitary sewer, and storm
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sewer facilities, and an emergency accessway for Phase 1. Facilities shall include but not
be limited to all mains, lines, services and appurtenances for Phase 1 as shown on the
final development plan documents.
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
required by the City Engineer 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 hereof.
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
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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
yearand/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,
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 City hereby agrees to release said
Developer from liability under this Agreement with respect to any breach of the terms and
conditions of this Agreement occurring after the date of any such transfer of interest. In
such event, the succeeding property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material element
hereof. In the event that either party shall fail to perform according to the terms of this
Agreement, such party may be declared in default. In the event that a party has been
declared in default hereof such defaulting party shall be given written notice specifying
such default and shall be allowed a period of ten (10) days within which to cure said
default. In the event the default remains uncorrected, the party declaring default may elect
to, (a) terminate the Agreement and seek damages, (b) treat the Agreement as continuing
and require specific performance or (c) avail itself of any other remedy at law or equity.
K. In the event of the default of any of the provisions hereof by either party which
shall require the party not in default to commence legal or equitable action against said
defaulting party. the defaulting party shall be liable to the non -defaulting party for the non -
defaulting party's easonable attorney's fees and costs incurred by reason of the default.
Nothing herein shall be construed to prevent or interfere with the City's rights and remedies
specified in Paragraph III.D of this Agreement
L. Except as may be otherwise expressly provided herein, this Agreement shall not
be construed as or deemed to be an agreement for the benefit of any third party or parties,
and no third party or parties shall have any right of action hereunder for any cause
whatsoever.
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M. It is expressly understood and agreed by and between the parties hereto that
this Agreement shall be governed by and its terms construed under the laws of the State
of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other party
relating to this Agreement shall be hand -delivered or sent by certified mail, return receipt
requested, addressed to such other party at their respective addresses as set forth below;
and such notice or other communication shall be deemed given when so hand -delivered
or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, Cc 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: James Construction Co., Inc.
Attn: James Postle, President
2919 Valmont Rd., Suite 204
Boulder. Colorado 80301
With a copy to:
Notwithstanding the foregoing, if any party to this Agreement, or their successors,
grantees or assigns, wishes to change the person, entity or address to which notices under
this Agreement are to be sent as provided above, such party shall do so by giving the other
parties to this Agreement written notice of such change.
O. When used in this Agreement, words of the masculine gender shall include the
feminine and neuter gender, and when the sentence so indicates, words of the neuter
gender shall refer to any gender, and words in the singular shall include the plural and vice
versa. This Agreement shall be construed according to its fair meaning, and as if prepared
by all parties hereto, and shall be deemed to be and contain the entire understanding and
agreement between the parties hereto pertaining to the matters addressed in this
Agreement. There shall be deemed to be no other terms, conditions, promises,
understandings, statements, representations, expressed or implied, concerning this
Agreement, unless set forth in writing signed by all of the parties hereto. Further,
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paragraph headings used herein are fore convenience of reference and shall in no way
define, limit, or prescribe the scope or intent of any provision under this Agreement.
ATTEST:
City Clerk
APPROVED AS TO CONTENT:
City Engineer
APP ED AS TO FORM:
Deputy City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: Qz + ha
City Manager
DEVELOPER:
James Constrbct)on Co., Inc., a Colorado Corporation
By: 1%)—
Ja es P stle. President
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EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
Not Applicable.
2. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
3. Schedule of street improvements to be installed out of sequence.
Not Applicable
4. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
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EXHIBIT "B"
Not Applicable
IM
First
National
Bank
January 15_ 2001
Citv of Port Collins
3(0 LaPorte Av cntic
Port Collins, Co 80521
1)ear Sirs:
R/P. I) qrn�nr
P.U- 6 on
\V'C hcrch\ estahlish, at the request and Ibr the account of JamCS Construction Company
in your Timor as heneIICi,tl our Irrevocable Letter of Credit Vo, J I �F. in fhc amount of
I wo hundred th%o thousand three hundred bitten and 00/100 DoIlars (b20'),315.00) (os
nunc fully described below) cffecti%c immediately and e.xpirin+, at the close of banl.ing
buYInCSS on January I5, 2002. at our office at 155 F. Boardwalk. Fort Collins, CO
h0525.
flik Lestero( Credit is intendect for the Stanton Cleek Filing? Phase 5 Dcvclopment
Piujcct UC%Clopnrnt ProjCCt") for the assurance of the completion of the consUuction
and the ntaintenaoce and repair of the public infrasuuctuic in connection with the
afores.iid dcvclopment project and its associated development agreement and
dcyClopmcnt COnSCfUCCIon permit. I'unds under this Letter of Credit arc available to you
for one or morc drawings prior to the closC of business on January 15, 2002. against sight
drafts in all aciCre'ate cumulative amount not to exceed $201315.00_ dated the date of
prescnlment. drawn on our office rcfcned to above. referring thereon to the number of
this Leto of Credit and accompanied by your v-written certificate signed by you and
acl;nnwled_ ed as therein provided in the form of Fshibit I hereto.
PreSCnt2l i0ll of such draft and Celli ricate shall be made at our oflicc rclerred to above.
Upon the earlier of(i) our honorinc %our draft(s) totaling $202,315.00 in the aggregate
presented on or hctbrc this Lettcr of Cr. dit expires pursuant to the terms herein or (ii) tine
surrender to us Ivry you ol' this Letter of Credit for cancellation, this Letter of Crcdit shall
uutomaticalk tc_ntinatc.
It i� understood that the amount of this Lctter of Credit may be reduced as public
nipru) umen,s arc consu uUcd and accepted b- the CitN. As components ol,the
nfrtstructurC arC sa;isfactorill' complCted in accordance with approval utility plans, the
value of the eon.pleted components nrav he established from the DCyClopment
onsu LIctiOil Pe nit worlcshCCt Ibr dete-minina costs of intiastructurc cons(ruction and
inspection Ices. Mhereupon the amount of this ICtter of credit ma% he reduced by the
\.,luc of the cowplcicd componea(sl. upon execution of a `Request for Amendment to
I ' llel o,-('rc(lif in the 1,01111 uttach-'d hereto as I(shil)it 2.
leis ICCCr,,(crr(:iI shall he suhjcc! to the 1.niforill Commercial Cole as in efleCt it; the
�t.uc "i ('„lorado. anti - to the c.ytcnt lot atconsi,tcnt with the terms of this Lctter oI
Credit and the Uniftum Commercial code, the Uniform Customs and Practice for
Documentary Credits, 1993 revision, IC(' publication number 500.
'I his LClter ol'Credit vv ill be auumuttically extended without amendments for one %car
Isom the present- Lind each future, expiration date thereof; unless Issuer delivers written
nolic,� ;it ca;t sixty t 60) da's prior to any such expiration date to the City of Dort Collins
of its intent not to renew this Letter otCredit. Any such notice., shall be in writing and
shall he dclicercd kith an ackrioML!dged receipt. either in hand or by certified mail Any
❑mcndmcnts to this Leper of Credit shall be made in the form of Exhibit 3 hCiCLO.
The Cite may a❑ne r t c time m est that the BdIll< amend this Lof etter Credit by suhmitting
to the Bunk a fully e:xeCUtC(1 catilieate in the torn of Exhibit 2. The Rant: shall
thercalicr proutptly issue an amenclnunt to the Letter of Credit corresponding to tic
ch,1112C or Chan 'es requested in such certificate.
This Letter of Credit is not u-ansterable.
This Lcttu ol'Credit sets lorth in full our undertaking, and such undertaking shall not in
Lill y \yay be modified, amended, amplified or limited by reference to any document,
instrument or agreement relerred to herein, except only the certificate and draft(s)
let ,elred to hcrcin: and any such retCrcnce shall not be deemed to incorporate herein by
rCcra1ce any dorumenL instrument or agreement except for such certificate or dral't(s).
STA IT OICOLORADO)
CM'N"1 Y OF LARIMER)
Subscribed ❑nd sworn to before me this _1�l �� day ofd�Y!tjx
h-\ ,k�_; 1I Tk as Construction Loan Otticer, First
�\ itness my hind and ol'licinl seal.
Nlv Commission Expires: i+ _ t
.lames Construction Company
131':
Notary Public
'I
Sincerel},
A0
James I . rupp
Vice President
First National Ranh CO
���
:n
G
Nye AC/B l O
ional ]114�T .
4 Commission Expires 10/05/2002
City of Fort Collins, Colorado
DEVELOPMENT CONSTRUCTION PERMIT
Permit Number: 99-32 Issuance Date:
Project Name: Stanton Creek 2" Filing (Phase 3)
Project A.K.A.:
Project Location: Southeast corner of Lemay Avenue and County Road 34.
Phase 3 located east of Tortola Way and North of Barbuda Place
Permittee: Richard J. Ray, James Company
City and developer contacts: See attached Exhibit "A"for names and phone numbers of all
contact persons for this project.
Fees: Permit Application Fee $ 300.00
Construction Inspection Fee (paid prior to issuance of this permit) $ 8,980.00
Total $ 9,280.00
Development Bond or other approved security:
Amount of security deposited with the City to guarantee the completion of all public
improvements to be constructed as shown on the approved plans for the development.
$ 226,988.76
Form of security deposited with the City: Letter of Credit
PERFORMANCE REQUIREMENTS OF THIS PERMIT:
1. The Permittee shall be responsible to require their Project Engineer to incorporate into all
design drawings and specifications the certification of all materials testing by an Engineer. The
Permittee shall have an Engineer prepare revised design drawings and secure City approval for
all revisions to the Utility Plans and related documents. The Permittee shall have an Engineer
represent, as required by the City in the Development Agreement, that the improvements are
constructed in conformance with the approved Utility Plans and the standards and specifications
of the City. The Permittee shall provide "as -constructed" plans prepared by an Engineer prior to
the City's acceptance of the constructed public improvements. (All references above to the terms
"Project Engineer" and "Engineer" shall mean a Professional Engineer licensed in Colorado.)
2. All contractors who perform work on this project must be bonded and licensed in
conformance with City requirements.
3. Construction time restrictions: N
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 development
shall be issued by the City until the public water lines and stubs to each lot, fire hydrants,
sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and
pavement with at least the base course completed) serving such structure have been
completed and accepted by the City. No building permits shall be issued for any structure
located in excess of six hundred and sixty feet (660') from a single point of access, unless
the structures contain sprinkler systems that are approved by the Poudre Fire Authority.
D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets
described on Exhibit 'A," attached hereto, shall be installed within the time and/or
sequence required on Exhibit"A." If the City Engineer has determined that any water lines,
sanitary sewer lines, storm drainage facilities and/or streets are required to provide service
or access to other areas of the City, those facilities shall be shown on the utility plans and
shall be installed by the Developer within the time as established under "Special
Conditions" in this document.
E. Except as otherwise herein specifically agreed, the Developer agrees to install
and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and
all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by
this development as shown on the approved final development plan documents and other
approved documents pertaining to this development on file with the City.
F. Street improvements shall not be installed until all utility lines to be placed therein
have been completely installed.. including all individual lot service lines leading in and from
the main to the property line.
G. The installation of all utilities shown on the final development plan documents
shall be inspected by the Engineering Department of the City and shall be subject to such
department's approval. The Developer agrees to correct any deficiencies in such
KA
installations in order to meet the requirements of the plans and/or specifications applicable
to such installation. In case of conflict, the final development plan documents shall
supersede the standard specifications.
H. All storm drainage facilities shall be so designed and constructed by the
Developer as to protect downstream and adjacent properties against injury and to
adequately serve the Property (and other lands as may be required, if any). The Developer
shall meet or exceed the minimum requirements for storm drainage facilities as have been
established by the City in its Drainage Master Plans and Design Criteria. The Developer
does hereby indemnify and hold harmless the City from any and all claims that might arise,
directly or indirectly, as a result of the discharge of injurious storm drainage or seepage
waters from the Property in a manner or quantity different from that which was historically
discharged and caused by the design or construction of the storm drainage facilities,
except for (1) such claims and damages as are caused by the acts or omissions of the City
in maintenance of such facilities as have been accepted by the City for maintenance; (2)
errors, if any, in the general concept of the City's master plans (but not to include any
details of such plans, which details shall be the responsibility of the Developer); and (3)
specific written or otherwise documented directives that may be given to the Developer by
the City. The City agrees to give notice to the Developer of any claim made against it to
which this indemnity and hold harmless agreement by the Developer could apply, and the
Developer shall have the right to defend any lawsuit based on such claim and to settle any
such claim provided Developer must obtain a complete discharge of all City liability through
such settlement. Failure of the City togive 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,
8shall include right-of-way, design and construction costs. See Section ILC, 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.
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K. The Developer specifically represents that to the best of its knowledge all
portions of the Property dedicated (both in fee simple and as easements) to the City
associated with this development are in compliance with all environmental protection and
anti -pollution laws, rules, regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40
C.F.R., Part 261, and that such portions of the Property as are dedicated to the City
pursuant to this development, are in compliance with all such requirements pertaining to
the disposal or existence in or on such dedicated property of any hazardous substances,
pollutants or contaminants, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer does hereby indemnify and hold harmless the City from any
liability whatsoever that may be imposed upon the City by any governmental authority,
pertaining to the disposal of hazardous substances, pollutants or contaminants, and
cleanup necessitated by leaking underground storage tanks, excavation and/or backfill of
hazardous substances, pollutants or contaminants, or environmental cleanup
responsibilities of any nature whatsoever on, of, or related to any property dedicated to the
City in connection with this development. The Developer further agrees to indemnify and
hold harmless the City from any claims or actions based directly, indirectly or in any
manner on any of the aforementioned environmental risks brought against the City by third
parties arising as a result of the dedication of portions of the Property to the City in
connection with this development. Said indemnification shall not extend to claims, actions
or other liability arising as a result of any hazardous substance, pollutant or contaminant
generated or deposited by the City. its agents or representatives, upon portions of the
Property dedicated to the City in connection with this development. The City agrees to give
notice to the Developer of any claim made against it to which this indemnity and hold
harmless agreement by the Developer could apply, and the Developer shall have the right
to defend any lawsuit based on such claim and to settle any such claim provided Developer
must obtain a complete discharge of all City liability through such settlement. Failure of the
City to give notice of any such claim to the Developer within ninety (90) days after the City
first receives a notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause! this indemnity and hold harmless agreement by the Developer to not
apply to such clairn and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
II. Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
Not Applicable
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C. Storm Drainage Lines and Appurtenances
1. The Developer and the City agree that all on -site and off -site storm
drainage improvements for Phase 1, as shown on the approved final development plan
documents, shall be completed by the Developer in accordance with said final
development plan documents prior to the issuance of more than 3 building permits in
Phase 1. Completion of improvements shall include the certification by a professional
engineer licensed in Colorado that the drainage facilities which servethis Phase havebeen
constructed in conformance with said final development plan documents. Said certification
shall be submitted to the City at least two weeks prior to the date of issuance of more than
3 building permits in Phase 1.
The Developer and the City agree that all on -site and off -site storm drainage improvements
for Phase 2, as shown on the approved final development plan documents, shall be
completed by the Developer in accordance with said final development plan documents
prior to the issuance of more than 10 building permits in Phase 2. Improvements shall
include, but shall not be limited to an off -site storm drain line, a water quality pond and a
water quality outlet system. Completion of improvements shall include the certification by
a professional engineer licensed in Colorado that the drainage facilities which serve this
Phase 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 10 building permits in Phase 2.
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 for Phase
3, shall be completed by the Developer in accordance with said final development plan
documents prior to the issuance of more than 10 building permits in Phase 3.
Improvements shall include, but shall not be limited to an off -site storm drain line, a water
quality pond and a water quality outlet system. Completion of improvements shall include
the certification by a professional engineer licensed in Colorado that the drainage facilities
which serve this Phase 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 10 building permits in Phase 3.
The Developer and the City agree that all on -site and off -site storm drainage improvements
for Phase 4, as shown on the approved final development plan documents, shall be
completed by the Developer in accordance with said final development plan documents
prior to the issuance of more than 12 building permits in Phase 4. Completion of
improvements shall include the certification by a professional engineer licensed in
Colorado that the drainage facilities which serve this Phase 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 12
building permits in Phase 4.
The Developer and the City agree that all on -site and off -site storm drainage improvements
b1
for Phase 5, 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 8 building permits in Phase 5. Completion of
improvements shall include the certification by a professional engineer licensed in
Colorado that the drainage facilities which serve this Phase 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 8
building permits in Phase 5.
2. Phases 1, 2, and 3 of this development may be constructed at any time
because Phases 1, 2, and 3 are not dependent on any other Phase for infrastructure
improvements. Construction of Phases 4 and 5 of this development must be done in
sequential order and cannot occur until improvements for both Phases 2 and 3 are
completed. No building permits will be issued within Phases 4 and 5 until the drainage
facilities within the preceding Phases have been completed and the site Certification is
approved by the City (i.e. no building permits in Phase 4 will be issued until improvements
for Phases 2 and 3 are certified).
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 $ 56,287.00 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, 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 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 Lots 1 thru 163 in Block 2.
Prior to the issuance of a certificate of occupancy for each of said lots the
Developer shall provide the City with certification that the lot has been graded
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correctly (including the grading of any minor swales, if applicable); the lot corner
elevations specified on the approved final development plan documents are correct
and in accordance with the approved final development plan documents; and the
minimum floor elevation for all buildings constructed on said lot has been completed
in accordance with the approved final development plan documents. Said
certification shall be completed by a Colorado licensed professional engineer and
shall be submitted to the City at least two weeks prior to the date of issuance of the
desired certificate of occupancy.
5. The buildings to be constructed on Lots 1 through 12, Block 1 in this
development abut certain storm drainage facilities and it is agreed that it is of the utmost
importance that no storm water from said facilities enters said buildings. In order to provide
the assurance that said buildings on lots 1 through 12, Block 1 are constructed at an
elevation that said storm water cannot enter, the approved final development plan
documents contain specifications for the minimum elevation for any opening to each such
building. Prior to the issuance of a certificate of occupancy for each building on Lots 1
through 12, Block 1, the Developer shall provide certification from a professional engineer
licensed in Colorado that the lowest opening to said building is at or above the minimum
elevation required on the approved final development plan documents. Said certification
is in addition to, and may be done in conjunction with, the site certification described in
paragraph II.C.1. above.
6. The Developer shall obtain the City's prior approval of any changes from
the approved final development plan documents in grade elevations and/orstorm drainage
facility configuration that occur as a result of the construction of houses and/or
development of lots, whether by the Developer or other parties. The City reserves the right
to withhold the issuance of building permits and certificates of occupancies for this
development until the City has approved such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
7. The Developer and the City agree that the Developer is obligated to
maintain all on -site storm drainage facilities not accepted for maintenance by the City and
all off -site storm drainage facilities not accepted for maintenance by the City serving this
development and outside of the public rights -of -way.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to reimburse
the Developer for oversizing public street improvements along Lemay Avenue for those
portions of said street abutting the Property as shown on the approved final development
plan documents. Reimbursement for Lemay Avenue shall be for oversizing the sidewalk
from local (access) standards (4.5 feet) to arterial street standards (6 feet). 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
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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. Phases 1, 2, and 3 of this development may be constructed at any time
because Phases 1, 2, and 3 are not dependent on any other Phase for imfrastructure
improvements. Construction of Phases 4 and 5 of this development must be done in
sequential order and cannot occur until improvements for both Phases 2 and 3 are
completed. No buiilding permits will be issued within Phases 4 and 5 until the streets and
utilities within the preceding Phases have been completed in accordance with Section I.C.
of this agreement.
4. If construction of Phase 3 occurs before construction of Phase 2 no
building permits for lots 121 through 124, in Phase 3, shall be issued until the street and
utility improvements for Phase 2 are completed in accordance with Section LC of this
agreement.
5. In order to guarantee the completion of the Developer's share of the
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required street improvements to Stanton Creek Drive adjacent to lots 88 and 89 of the
Property, the Developer and the City agree that the Developer, instead of constructing said
improvements, shall pay for the future construction of said improvements. The amount of
said cash shall be equal to the estimated cost to construct said improvements, which
estimate shall be prepared by the Developer and approved by the City, plus 15% to cover
the cost of construction engineering.. surveying and project management. Said amount
shall be paid to the City prior to the issuance of any building permit in Phase 2 of the
development.
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 that 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. No access to lots 30 and 31 of the Property shall be allowed off of Aruba
Lane 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.
7. No access to lots 88 and 89 of the Property shall be allowed off of Stanton
Creek 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.
8. The Developer shall not be issued a building permit for Lot 121 of the
Property and no access shall be allowed off of Stanton Creek Drive from lot 121 of the
Property with Phase 2 construction as shown in the approved utility plans for this
development until Stanton Creek Drive has been completed with either improvements
along the full frontage of the lot with a City approved temporary turnaround, or a permanent
cul de sac, or alternatively, until Stanton Creek Drive has been extended to become a
through street in accordance with City standards. If a temporary turn around is provided,
all necessary easements shall be provided prior to acceptance of such turnaround and the
issuance of any building permit on lot 121 and allowance of access off of Stanton Creek
Drive to lot 121.
9. 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
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