HomeMy WebLinkAboutWILLOW SPRINGS NORTH PUD - Filed DA-DEVELOPMENT AGREEMENT - 2004-03-17 (2)DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into thisa7 day od 199�,
by and between the CITY OF FORT COLLINS, COLORADO, a Municipal oration,
hereinafter referred to as the "City"; and Andover Development Partners, LLC, a Texas
Limited Liability Company and Paragon Point Partners Limited Partnership, a Colorado
Limited Partnership hereinafter collectively 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:
Willow Springs North P.U.D., located in the Southeast 1/4 of Section 6, Township
6 North, Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer,
State of Colorado.
WHEREAS, Paragon Point Partners is currently under contract with Andover
Development Partners, LLC (Andover) for the sale to Andover of a 15.57 acre site for the
development of 280 apartment units to be located on the eastern portion of the Property,
which is refered to on the plat as Tract A. If said sale is consummated and Andover
becomes the owner of said Tract A, then Andover will be responsible for the development
of Tract A; and
WHEREAS, the balance of the Property (and Tract A, if not purchased by Andover)
will be developed by Paragon Point Partners, or its successors in interest; and
WHEREAS, the Developer desires to develop the Property and has submitted to the
City a subdivision plat and/or a site plan and landscape plan, a copy of which is on file in
the office of the City's Director of Engineering and made a part hereof by reference; and
WHEREAS, the Developer has further submitted to the City utility plans for the
Property, a copy of which is on file in the office of the Director of Engineering 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 subdivision plat and/or site plan and
B. The Developer shall, at all times, keep the public right-of-way free from
accumulation of waste material or rubbish caused by the Developer's operation; shall
remove such rubbish no less than weekly 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.
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 Director of Engineering. 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.
C. The Developer hereby agrees that it will require its 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 original plat and related documents, or any replat as
subsequently filed by the Developer, 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, 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 for that purpose being
appropriated, budgeted and otherwise made available by the Fort Collins City Council.
H. This Agreement shall run with the Property and shall be binding upon and inure
to the benefit of the parties hereto, their respective personal representatives, heirs,
successors, grantees and assigns. It is agreed that all improvements required pursuant
to this Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest within the meaning of
this paragraph shall specifically include, but not be limited to, a conveyance or assignment
of any portion of the Developer's legal or equitable interest in the Property, as well as any
assignment of the Developer's rights to develop the Property under the terms and
conditions of this Agreement.
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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 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. 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:
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
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P.O. Box 580
Fort Collins, Co 80522
If to the Developer: Andover Development Partners, LLC
Attn: James L. Goettee, President
910 Travis Suite 2205
Houston, Texas 77002
Paragon Point Partners Limited Partnership
Trustar, Inc., General Partner
Attn: Byron R. Collins, President
1 Old Town Square, Suite 301
Ft. Collins, Colorado 80524
Notwithstanding the foregoing, if any party to this Agreement, or their successors,
grantees or assigns, wishes to change the person, entity or address to which notices under
this Agreement are to be sent as provided above, such party shall do so by giving the other
parties to this Agreement written notice of such change.
O. When used in this Agreement, words of the masculine gender shall include the
feminine and neuter gender, and when the sentence so indicates, words of the neuter
gender shall refer to any gender; and words in the singular shall include the plural and vice
versa. This Agreement shall be construed according to its fair meaning, and as if prepared
by all parties hereto, and shall be deemed to be and contain the entire understanding and
agreement between the parties hereto pertaining to the matters addressed in this
Agreement. There shall be deemed to be no other terms, conditions, promises,
understandings, statements, representations, expressed or implied, concerning this
Agreement, unless set forth in writing signed by all of the parties hereto. Further,
paragraph headings used herein are fore convenience of reference and shall in no way
define, limit, or prescribe the scope or intent of any provision under this Agreement.
P. Notwithstanding anything to the contrary contained in this agreement, following
the closing of the sale of Tract A to Andover Development Partners, LLC ("Andover"),
Andover shall be responsible for completion of only those improvements described in
Exhibit A which are required or necessary to develop and service Tract A. Subsequent to
said closing, Paragon Point Partners Limited Partnership ("Paragon") shall be responsible
for the completion of only those improvements described in Exhibit A which are required
or necessary to develop and service Lots 1 - 33, inclusive. Notwithstanding anything to the
contrary contained in this agreement, Andover shall provide the indemnification required
in paragraphs I.H, I.K, and ILE of this agreement with regard to Tract A and Paragon shall
provide such indemnification with regard to Lots 1 -33, inclusive.
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THE CITY OF FORT COLLINS, COLORADO,
a Munici al Corporation
By: +
City anager
ATTEST:
)
City Clerk
APPROVED AS TO CONTENT:
Director of Engineeri
APPROVj b AS TO FORM:
Deputy City Attorney
DEVELOPER:
Andover Development Partners, a Texas Limited Liability
Company
By:
James L. Goe ee Jr., Pr sident
Paragon Point Partners, a Colorado Limited Partnership
By: Trustar Inc., a Colorado corporation, as General Partner
Y:
Byron R. Collins, President
ATTEST:— Zw+e"wy
Ruth G. Collins, Secretary (IS a L
13 N-1-op
EXHIBIT "A"
1. Schedule of water lines to be installed out of sequence.
The water lines which only serve Lots 1 - 33, inclusive, as shown on the
approved utility plans, may be installed subsequent to the issuance of
building permits and certificates of occupancy for structures on Tract A.
The water lines which only serve Tract A, as shown on the approved utility
plans, may be installed subsequent to the issuance of building permits and
certificates of occupancy for structures on Lots 1 - 33, inclusive. The 8" waterline
under Wilmington Drive from the North property line to Battle Creek Drive serves
both Tract A and Lots 1-33 and shall be built with either Tract A development or Lots
1-33 development, whichever occurs first. At the time of construction of the 8"
waterline under Wilmington Drive, the 8" lines under Rosemary Court and Thyme
Court shall be stubbed out at a sufficient distance from the Wilmington Drive
waterline. if Lots 1-33 develop first, the 8" waterline under Wilmington Drive shall
be built and the 8" waterline under the Western access drive to Tract A shall be
stubbed out at a sufficient distance from the Wilmington Drive waterline. This will
prevent the need to excavate Wilmington Drive at the time that the Rosemary Court
and Thyme Court waterlines are constructed in entirety or at the time that the
access drive to Tract A is constructed in entirety.
2. Schedule of sanitary sewer lines to be installed out of sequence.
The sanitary sewer lines which only serve Lots 1 - 33, inclusive, as shown
on the approved utility plans, may be installed subsequent to the issuance
of building permits and certificates of occupancy for structures on Tract A.
The sanitary sewer lines which only serve Tract A, as shown on the approved
utility plans, may be installed subsequent to the issuance of building
permits and certificates of occupancy for structures on Lots 1 - 33,
inclusive. At the time of construction of the 8" sanitary sewer under Wilmington
Drive, the 8" sanitary sewers under Rosemary Court and Thyme Court shall be
constructed to manholes 6A and 7A, respectively, and the service lines to Tract A
buildings 15 and 16 shall be installed, as shown on the approved utility plans.
3. Schedule of street improvements to be installed out of sequence.
The street improvements for Thyme Court and Rosemary Court, as shown on the
approved utility plans, may be installed subsequent to the issuance of
building permits and certificates of occupancy for structures on Tract A.
The street improvements located on Tract A, as shown on the approved utility
plans, may be installed subsequent to the issuance of building permits and
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certificates of occupancy for structures on Lots 1 - 33, inclusive.
4. Schedule of storm drainage improvements to be installed out of sequence.
The storm drainage improvements which only serve Lots 1 - 33, inclusive, as
determined by the Stormwater Utility, may be installed subsequent to the
issuance of building permits and certificates of occupancy for structures on
Tract A. The storm drainage improvements which only serve Tract A, as determined
by the Stormwater Utility, may be installed subsequent to the issuance
of building permits and certificates of occupancy for structures on Lots 1 -
33, inclusive.
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Exhibit "B" .
Timberline Road at Willow Springs North
Developer Portion
Number
Description
Unit
Unit Cost
Estimated
Item Cost
Quantity
202
Rotomill Asphalt ( 2" depth)
SY
$
2.25
524
$
1,179.00
203
Unclassified Excavation
CY
$
3.00
100
$
300.00
203
Embankment
CY
$ 4.25
25
$
106.25
203
Haul and Disposal
CY
$
3.00
75
$
225.00
210
Adjust Manhole
EA
$
500.00
0
$
-
210
Adjust Valve Box
EA
$
125.00
0
$
-
301
6'/2" Plant Mix Bituminous Pvt.
SY
$
7.88
634
$
4,990.62
306
Reconditioning
SY
$
0.50
761
$
380.40
403
4" Hot Bituminous Pavement
SY
$
4.85
634
$
3,071.15
403
2" Hot Bituminous Pvt. Overlay
SY
$
2.42
524
$
1,269.95
609
Vertical Curb and Gutter ( 2.5 )
LF
$
9To
475
$
4,275.00
Developer Portion: Construction Cost = $ 15,797.37
Contingency
LS
10%
$
1,579.74
Surveying
LS
1%
$
157.97
Testing
LS
1%
$
157.97
Street Oversizing Total Cost = $-17,693.05
This is an estimate of the Developer's portion of the street oversizing total cost. The
City is not responsible for fluctuation in costs of material, labor or unforeseen
contingencies.
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landscape plan 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
improvements, (2) obtaining a building 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 Council -approved standards and
specifications of the City on file in the office of the Director of Engineering 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 three (3) years from the
date of execution of this agreement, the Developer shall resubmit the project utility plans
to the Director of Engineering for reexamination. The City may require the Developer to
comply with approved standards and specifications of the City on file in the office of the
Director of Engineering at the time of 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, fire hydrants, sanitary sewer lines,
and public streets (including curb, gutter, sidewalk and pavement with at least the base
course completed) serving such structure have been completed and accepted by the City.
Notwithstanding the foregoing, the Developer shall be entitled to receive a footing and
foundation permit for the construction of improvements within the development upon the
installation of adequate water lines, fire hydrants, and emergency access to provide fire
protection and other emergency services to the site. 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.
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
2
sequence required on Exhibit "A." If the Director of Engineering 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 plat, site, landscape and utility plans, and
other approved documents pertaining to this development on file with the City.
F. Street improvements (except curbs, gutters and walks) 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 utility plans 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 utility plans 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 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
3
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 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 Director of Engineering with certified Record
Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase
of the construction.
K. The Developer specifically represents that to the best of its knowledge all
portions of the Property dedicated 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
M
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
Not Applicable
1. Prior to the issuance of any building permit(s) for this development, the
Developer shall, in accordance with Section 26-372 of the City Code, reimburse the City
the sum of $7,342.02 plus inflation for the cost of installation of the Developer's portion of
the 16-inch water main in Timberline Road which is adjacent to the property. The inflation
amount shall be calculated based upon the Construction Cost Index for Denver as
published in the Engineering News Record of March 13, 1995.
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 required for the improvement of Tract A, as shown on the
approved utility plans for the development, shall be completed by the Developer in
accordance with said approved plans prior to the issuance of any certificate of occupancy
for the multifamily portion of this development. All storm drainage improvements required
for the improvement of the single family portion of this development, including the pond to
the South of Rosemary Court and the pipe crossing under Wilmington Drive, shall be
completed and certified prior to the issuance of more than 8 single family building permits.
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 approved plans. Said certification shall be submitted
to the City at least two weeks prior to the date of issuance of any certificate of occupancy
for the development.
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2. The Developer agrees to provide and maintain erosion control
improvements as shown on the approved utility plans 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 $21,187.50 prior to beginning construction to guarantee the
proper installation and maintenance of the erosion control measures shown on the
approved utility plans for this development. 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 utility plans 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.
3. The Developer and the City agree that it is important that certain lots be
graded to drain in the configuration shown on the approved plans for this development.
For this reason the following additional requirements shall be followed for building on all
single family Lots:.
Prior to the issuance of a certificate of occupancy for any Lot in this development,
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 plans are correct and in accordance with the
approved plans; and the minimum floor elevation for all buildings constructed on
said lot has been completed in accordance with the approved plans. 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.
4. Some buildings to be constructed 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 are constructed at an elevation that said storm water cannot enter, the approved
utility plans for this development contain specifications for the minimum elevation for any
opening to each of buildings 1 through 4 and buildings 6 through 11. Prior to the issuance
of a certificate of occupancy for each of said buildings, 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 utility plans
for the development. Said certification is in addition to, and may be done in conjunction
with, the site certification described in paragraph II.C.1. above.
5. The Developer shall obtain the City's prior approval of any changes from
the approved utility plans 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 occupancies for this development until the City has
approved such changes as being acceptable for the safe and efficient delivery of storm
drainage water.
6. In addition the Developer shall be required to file a notice with the Larimer
County Clerk and Recorder describing the landscaping and fencing restrictions that exist
for the drainage easements on each of Lots 1 through 7. Said notice shall reference the
location of the specific restrictions shown on plans and notes in the approved utility plans
for this development. Said notice shall be filed in a City approved form prior to the sale of
any lots affected by such restrictions.
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.
D. Streets.
1. It is the obligation of the Developer to improve Timberline Road along the
frontage of the Property in accordance with the Code of the City. However, because the
City is contemplating making improvements along Timberline Road in 1998 and in order
to expedite the roadway construction for the mutual benefit of both parties, the Developer
agrees to pay the City the estimated construction costs for the local access portion along
the frontage of the Property in accordance with Section 24-121 (d) of the Code of the City.
The attached estimated cost for the construction of the local access portion of Timberline
Road along the frontage of the Property has been prepared by the City (see attached
Exhibit "B"). Payment by the Developer to the City of the aforementioned estimated cost
of $17,693.05 shall relieve the Developer of the responsibility to construct Timberline Road
along the frontage of the Property and shall be received by the City prior to the issuance
of the first building permit for this development. If, at the end of construction of Timberline
Road, the estimated cost proves to be higher than actual construction cost, the Developer
shall be refunded any unused portion of the payment. Likewise, if the estimate proves to
be lower than actual construction cost, the Developer shall be obligated to pay the City the
difference between the estimated and actual cost of the construction of the local street
portion and agrees that building permits for the development may be withheld by the City
until the payment is received. The Developer and the City agree that no street oversizing
reimbursement from the City is due the Developer for the construction of Timberline Road.
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2. Subject to the conditions of this Agreement, the City agrees to reimburse
the Developer for oversizing public street improvements along Battlecreek Drive for those
portions of said sidewalk abutting the Property as shown on the approved utility plans.
Reimbursement for the sidewalk shall be for oversizing the sidewalk from 4 feet to 5 feet.
The City shall make reimbursement to the Developer for the aforesaid sidewalk
improvements in accordance with Section 24-121 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 sidewalk 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 24-121 (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 24-121 (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 24-121 (d).
3. 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.
4. 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).
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E. Ground Water
1. The City shall not be responsible for, and the Developer hereby agrees
to indemnify and hold harmless the City against, any damages or injuries sustained in the
development as a result of ground water seepage or flooding, structural damage, or other
damage unless such damages or injuries are sustained as a result of the City's failure to
properly maintain its storm drainage facilities in the development. The City agrees to give
notice to the Developer of any claim made against it to which this indemnity and hold
harmless agreement by the Developer could apply, and the Developer shall have the right
to defend any lawsuit based on such claim and to settle any such claim provided Developer
must obtain a complete discharge of all City liability through such settlement. Failure of the
City to give notice of any such claim to the Developer within ninety (90) days after the City
first receives notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim.
F. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a permanent
water system is installed by the Developer and approved by the City.
2. Prior to beginning any building construction, and throughout the buildout
of this development, the Developer shall provide and maintain at all times an accessway
to said building or buildings. Such accessway shall be adequate to handle any emergency
vehicles or equipment, and the accessway shall be kept open during all phases of
construction. Prior to the City allowing combustible material on the site (other than forming
material for concrete footings, foundations and/or concrete walls) such accessway shall be
improved to a 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.
111. 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 Director of Engineering
in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove
said safety devices until the construction has been completed and approved by the
Director of Engineering.
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