HomeMy WebLinkAboutWATERFIELD PUD SECOND FILING - Filed DA-DEVELOPMENT AGREEMENT - 2004-06-16DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this 4-A day of W6AC-1i
2003, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; COUNTRY CLUB FARMS, L.L.C., a
Colorado limited liability company, hereinafter referred to as the "Developer'; and
POUDRE SCHOOL DISTRICT R-1, a political subdivision of the State of Colorado,
hereinafter referred to as the "School District'.
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Second
Filing ") and legally described as follows, to wit:
Waterfield P.U.D. Second Filing, located in West 1/2 of Section 5,
Township 7 North, Range 68 West of the 6th P.M., City of Fort Collins,
County of Larimer, State of Colorado
with the exception of (i) Tract I, which Developer dedicated to the School District for use as
a public school site, and (ii) Tract J, which Developer dedicated to the City for use as a
public park site; the owners of Tract I and Tract J are hereinafter referred to as the
"Owners";
WHEREAS, the Developer desires to develop the property it owns in the Second
Filing, excluding Tract I (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 City desires to acquire Tract K and Tract M of the Second Filing for
use as a City natural area for protection of an officially delineated wetland area located
thereon (the "Wetland") and for wildlife habitat (the "Natural Area Property") and has
entered into an agreement for purchase of the Natural Area Property from the Developer
(the "Purchase and Sale Agreement'); 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
1
Second Filing, to insure their structural integrity and functional operation. The warranty
deed conveying the Natural Area Property to the City shall reserve the temporary and
permanent easements as set forth in Paragraphs 8 and 9 of the Purchase and Sale
Agreement to allow the Developer to fulfill its obligation under this paragraph.
3. The Developer shall plant native trees in the Natural Area Property adjacent
to Rosybill Drive and adjacent to the rear lot lines of Lots 1 through 31, in accordance with
the Final Development Plan Documents. The trees adjacent to the rear lot lines of Lots 7
through 31, inclusive, shall be planted during the first planting season following completion
of the infrastructure improvements for Phase I of this Development, as depicted on the
Final Development Plan Documents. The trees adjacent to Rosybill Drive and Lots 1
through 6, shall be planted during the first planting season following completion of the
infrastructure improvements for Phase 11 of this Development, as depicted on the Final
Development Plan Documents. Following planting of the trees, the Developer shall
reseed any portion of the Natural Area Property which has been disturbed by development
activities with a native prairie grass seed mixture in accordance with the Final
Development Plan Documents.
4. Upon completion of the landscaping and reseeding required under
Paragraph II.E.3. above, and acceptance by the City, the Developer shall maintain and
repair the landscaping improvements for a period of two years, consistent with the
provisions of Paragraph II.E.2 above. The Developer shall be allowed to install a
temporary irrigation system for its use until termination of the maintenance and repair
guarantee period, at which time the Developer shall remove such system, unless the City
requests that it remain in place and agrees to accept all future maintenance and repair
obligations therefor. The warranty deed conveying the Natural Area Property to the City
shall reserve temporary and permanent easements as set forth in Paragraphs 8 and 9 of
the Purchase and Sale Agreement to allow the Developer to fulfill its obligation under this
paragraph.
F. ()round Water, Subdrains and Water Rights
1. The City shall not be responsible for, and the Developer, for itself and its
successor(s) in interest, hereby agrees to indemnify and hold harmless the City against
any damages or injuries sustained in the Development as a result of ground water
seepage or flooding, structural damage, or other damage unless such damages or injuries
are sustained as a result of the City's failure to properly maintain its storm drainage
facilities in the Development.
2. This Development includes a subdrain system. Any such subdrain
system, whether located within private property or within public property such as street
rights -of -way or utility or other easements, shall not be owned, operated, maintained,
repaired or reconstructed by the City and it is agreed that all ownership, operation,
maintenance, repair and reconstruction obligations shall be those of the Developer or the
10
Developer's successor(s) in interest, until such time as the City assumes in writing the duty
of such maintenance, at which time the Developer shall have no further obligation therefor.
Such subdrain system is likely to be located both upon private and public property and, to
the extent that it is located on public property, all maintenance, operation, repair,
replacement or reconstruction shall be conducted in such a manner that such public
property shall not be damaged, or if damaged, shall, upon completion of any such project,
be repaired in accordance with then existing City standards. The City shall not be
responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees
to indemnify and hold harmless the City against any damages or injuries sustained in the
Development as the result of groundwater seepage or flooding, structural damage or other
damage resulting from failure of any such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold
harmless the City against any damages or injuries to water rights caused, directly or
indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made against
it to which the foregoing indemnities and hold harmless agreements by the Developer
could apply, and the Developer shall have the right to defend any lawsuit based on such
claim and to settle any such claim provided the Developer must obtain a complete
discharge of all City liability through such settlement. Failure of the City to give notice of
any such claim to the Developer within ninety (90) days after the City first receives notice
of such claim under the Colorado Governmental Immunity Act for the same, shall cause the
forgoing indemnities and hold harmless agreements by the Developer to not apply to such
claim and such failure shall constitute a release of the foregoing indemnities and hold
harmless agreements as to such claim.
G. Development Construction Permit
1. The Developer shall apply for and obtain a Development Construction
Permit for this Development, in accordance with Division 2.6 of the Land Use Code (or
Section 29-12 of the Transitional Land Use Regulations, if applicable), prior to the
Developer commencing construction. The Developer shall pay the required fees for said
Permit and construction inspection, and post security to guarantee completion of the public
improvements required for this Development, prior to issuance of the Development
Construction Permit.
H. Maintenance and Repair Guarantees
1. Except as otherwise provided herein, 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
11
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." Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section 3.3.2(C)
of the Land Use Code, or Section 29-14 of the Transitional Land Use Regulations, as
applicable. Notwithstanding the provisions of Paragraphs III.H. and Ill.I. of this Agreement
to the contrary, the obligations of the Developer pursuant to this paragraph and Exhibit "C"
may not be assigned or transferred to any other person or entity unless the warranted
improvements are completed by, and a letter of acceptance of the warranted improvements
is received from the City by, such other person or entity.
I. The City and the Developer acknowledge that promptly after recording of the
final plat for the Second Filing, the City intends to process and pay all costs of a minor
amendment to the Final Development Plan Documents for the purpose of (i) requiring the
Developer to install a 4' western 3-rail fence with mesh on the rear lot lines of Lots 32
through 39, inclusive, and reserving to Developer, its successors and assigns, a
permanent easement for maintenance of such fence; (ii) removing all requirements of the
Developer to plant, maintain or guarantee seeding, shrubs, trees or other vegetation within
the Natural Area Property, other than the plants located within the water quality ponds that
are a part of the Storm Drainage System; and (iii) removing the requirement that Developer
install a temporary irrigation system for landscaping in exchange for the Developer's
payment to the City's Natural Resources Department at the closing of the sale of the
Natural Area Property to the City an amount equal to the cost of installing the temporary
irrigation system, seed, shrubbery, trees or other vegetation currently required on the
Landscape Plans for the purpose of making vegetative enhancements to the Natural Area
Property. The Developer shall provide the City with an estimate of such costs for the City's
approval, which approval shall not be unreasonably withheld, and shall cooperate with the
City in the processing of the minor amendment. Upon approval of such minor amendment,
if said minor amendment is finalized and approved, the provisions of the minor amendment
shall automatically supercede any provisions of this Agreement that are inconsistent or in
conflict therewith.
Ill. 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
12
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 Developers 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 Developers 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 Ibe shown on the Final Development Plan Documents, or any documents
executed in the future that are required by the City for the approval of an amendment to a
development plan, and the City may withhold (or to the extent permitted by law, revoke)
such building permits and certificates of occupancy as it deems necessary to ensure
performance in accordance with the terms of this Development Agreement. The
processing and "routing for approval" of the various development plan documents may
result in certain of said documents carrying dates of approval and/or execution that are
later than the date of execution of this Development Agreement or the Memorandum Of
Agreement (if any) recorded to give record notice of this Agreement. The Developer
hereby waives any right to object to any such discrepancy in dates.
E. Nothing herein contained shall be construed as a waiver of any requirements
of the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable)
and the Developer agrees to comply with all requirements of the same.
F. In the event the City waives any breach of this Agreement, no such waiver
shall be held or construed to be a waiver of any subsequent breach hereof.
G. All financial obligations of the City arising under this Agreement that are
payable after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins City
Council, in its discretion.
13
H. This Agreement shall run with the Property and shall be binding upon and
inure to the benefit of the parties hereto, their respective personal representatives, heirs,
successors, grantees and assigns. It is agreed that all improvements required pursuant to
this Agreement touch and concern the Property regardless of whether such improvements
are located on the Property. Assignment of interest within the meaning of this paragraph
shall specifically include, but not be limited to, a conveyance or assignment of any portion
of the Developer's legal or equitable interest in the Property, as well as any assignment of
the Developer's rights to develop the Property under the terms and conditions of this
Agreement.
I. In the event the Developer transfers title to the Property and is thereby
divested of all equitable and legal interest in the Property, the Developer shall be released
from liability under this Agreement with respect to any breach of the terms and conditions
of this Agreement occurring after the date of any such transfer of interest. In such event,
the succeeding property owner shall be bound by the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material
element hereof. In the event that either party shall fail to perform according to the terms of
this Agreement, such party may be declared in default. In the event that a party has been
declared in default hereof, such defaulting party shall be given written notice specifying
such default and shall be allowed a period of ten (10) days within which to cure said
default. In the event the default remains uncorrected, the party declaring default may elect
to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing
and require specific performance or; (c) avail itself of any other remedy at law or equity.
K. In the event of the default of any of the provisions hereof by either party
which shall require the party not in default to commence legal or equitable action against
said defaulting party, the defaulting party shall be liable to the non -defaulting party for the
non -defaulting party's reasonable attorney's fees and costs incurred by reason of the
default. Nothing herein shall be construed to prevent or interfere with the City's rights and
remedies specified in Paragraph III.D. of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement shall
not be construed as or deemed to be an agreement for the benefit of any third party or
parties, and no third party or parties shall have any right of action hereunderfor 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
14
below; and such notice or other communication shall be deemed given when so hand -
delivered or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Co 80522
If to the Developer: Country Club Farms, L.L.C.
James R. McCory
Go Colorado Land Source, Ltd.
10475 Park Meadows Drive, #555
Littleton, CO 80124
With a copy to: Lucia A. Liley
Liley, Rogers & Martell, LLC
300 South Howes Street
Fort Collins, CO 80521
If to the Owner Poudre School District R-1
of Tract I: Attn: William S. Franzen
2407 LaPorte Avenue
Fort Collins, CO 80521
If to the Owner Cultural, Library and Recreational Services Department
of Tract J: City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees
or assigns, wishes to change the person, entity or address to which notices under this
Agreement are to be sent as provided above, such party shall do so by giving the other
parties to this Agreement written notice of such change.
0. 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
15
agreement between the parties hereto pertaining to the matters addressed in this
Agreement. There shall be deemed to be no other terms, conditions, promises,
understandings, statements, representations, expressed or implied, concerning this
Agreement, unless set forth in writing signed by all of the parties hereto. Further,
paragraph headings used herein are for convenience of reference and shall in no way
define, limit, or prescribe the scope or intent of any provision under this Agreement.
P. The Owners are 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 Owners shall not be liable for any
obligations of the Developer under this Agreement. The School District shall not be
construed to be a Developer under this Agreement and shall possess no rights or
obligations of the! Developer, and nothing in this Agreement shall be construed to waive or
abridge any rights the School District possesses under Colorado law.
Q. This Agreement may be executed in multiple counterparts, each of which
shall constitute an original, but all of which, taken together, shall constitute one and the
same document.
City:
APPROVED AS TO C NTENT:
CI i_ i y—
City Engineer
APPROVERS AS TO FORM:
Deputy City Attorney
THE CITY OF FORT COLLINS,
COLORADO, a Municipal Corporation
John F%chbach, City Manager
16
Developer: COUNTRY CLUB FARMS, L.L.C.,
A Colorado limited liability company
By: :S�—
James R. McCory, Manager
Owner of Tract I: POUDRE SCHOOL DISTRICT R-1, a
policital subdivision of the State of
Colorado
By:
William S. Franzen
Executive Director of Operations
Owner of Tract J: THE CITY OF FORT COLLINS,
COLORADO, a Municipal Corporation
By: &- a- (Ljjz
John FUschbach,City Manager
�Vo�'Mi 4e �V')9
State of Gelerado )
ss.
County of�ra)
The foregoing Development Agreement was acknowledged before me this L Fti
day of m/{�; •E 2003 by James R. McCory, Manager of Country Club Farms,
L.L.C., a Colorado limited liability company.
My commission expires:
i Commission Expires
January31st 2012
Nottky Public
17
City: THE CITY OF FORT CQLLINS,
COLORADO, a Municipal Corporation
By:
John Fischbac , City Manager
ATTEST:
City Clerk
APPROVED AS TO CONTENT:
City Engineer
APPROVED AS TO FORM:
Deputy City Attorney
Developer:
COUNTRY CLUB FARMS, L.L.C.,
A Colorado limited liability company
AO -
James R. McCory, Manager
Owner of Tract I: POUDRE SCHOOL DISTRICT R-1, a
policital subdivision of the State of
Colorado
By: l l
William S. Franzen
Executive Director of OpE
Owner of Tract J: THE CITY OF FORT COLLINS,
COLORADO, a Municipal Corporation
By:
John Fischb % , City Manager
State of Colorado
ss.
County of )
The foregoing Development Agreement was acknowledged before me this
day of 2003 by James R. McCory, Manager of Country Club Farms,
L.L.C., a Colorado limited liability company.
My commission expires:
Notary Public
State of Colorado )
) ss.
County of Larimer )
The foregoing Development Agreement was acknowledged before me this l
day of 2003 by William S. Franzen as Executive Director of Operations,
Poudre School District R-1, a political subdivisionofthe State of -Colorado.
`� L
My commission expires: L V
L< Notary Public
State of Colorado )
) ss.
County of Larimer )
The foregoing Development Agreement was acknowledged before me this
day of 2003 by John Fischbach, City Manager of the City of Fort Collins,
17
WHEREAT), the City has approved the Final Development Plan Documents
submitted by the Developer subject to certain requirements and conditions, which involve
the installation of and construction of utilities and other municipal improvements in
connection with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
General Conditions
A. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement, "development
activities" shall include, but not be limited to, the following: (1) the actual construction of
improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or
appearance of the Property caused by, or on behalf of, the Developer with the intent to
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
2
State of Colorado )
ss.
County of Larimer )
The foregoing Development Agreement was acknowledged before me this
day of _, 2003 by William S. Franzen as Executive Director of Operations,
Poudre School District R-1, a political subdivision of the State of Colorado.
My commission expires:
State of Colorado )
ss.
County of Larimer )
Notary Public
The fo egoing Development Agreement was
day of ,—, 2003 by John Fischbach,
Colorado, a municipal corporation.
acknowledged before me this
City,A*aager of the City of Fort Collins,
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.
19
EXHIBIT "B"
Not Applicable
20
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,
21
culverts, walls and bridges within the right-of-way easements and other
public properties, resulting from failures caused by design and/or
construction defects. This agreement to hold the City harmless includes
defects in materials and workmanship, as well as defects caused by or
consisting of settling trenches, fills or excavations.
Further, the Developer agrees that the City shall not be liable to the Developer during the
warranty period, for any claim of damages resulting from negligence in exercising
engineering techniques and due caution in the construction of cross drains, drives,
structures or buildings, the changing of courses of streams and rivers, flooding from
natural creeks and rivers, and any other matter whatsoever on private property. Any and
all monetary liability occurring under this paragraph shall be the liability of the Developer.
The obligations of the Developer pursuant to the "maintenance guarantee" and "repair
guarantee" provisions set forth above may not be assigned or transferred to any other
person or entity, unless the warranted improvements are completed by, and a letter of
acceptance of the warranted improvements is received from the City by, such other person
or entity.
22
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 installations in order to meet the requirements of the plans and/or specifications
applicable to such installation. In case of conflict, the final development plan documents
shall supersede the standard specifications.
H. All storm drainage facilities shall be so designed and constructed by the
Developer as to protect downstream and adjacent properties against injury and to
adequately serve the Property (and other lands as may be required, if any). The
Developer shall meet or exceed the minimum requirements for storm drainage facilities as
have been established by the City in its Drainage Master Plans and Design Criteria. The
Developer, for itself and its successor(s) in interest, does hereby indemnify and hold
harmless the City from any and all claims that might arise, directly or indirectly, as a result
of the discharge of injurious storm drainage or seepage waters from the Property in a
manner or quantity different from that which was historically discharged and caused by the
design or construction of the storm drainage facilities, except for (1) such claims and
damages as are caused by the acts or omissions of the City in maintenance of such
facilities as have been accepted by the City for maintenance; (2) errors, if any, in the
general concept of the City's master plans (but not to include any details of such plans,
which details shall be the responsibility of the Developer), and (3) specific written or
otherwise documented directives that may be given to the Developer by the City. The City
agrees to give notice to the Developer of 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
3
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 creditor
City repayment under the provisions of Chapter 26 are described together with the
estimated cost of the improvements on the attached Exhibit "B," which improvements, if
applicable, shall include right-of-way, design and construction costs. See Section II.C.,
Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions.
J. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City of Fort Collins.
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 at40
C.F.R., Part 2611, 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, for itself and its successor(s) in interest, does hereby
indemnify and hold harmless the City from any liability whatsoever that may be imposed
upon the City by any governmental authority or any third party, pertaining to the disposal of
hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking
underground storage tanks, excavation and/or backfill of hazardous substances, pollutants
or contaminants, or environmental cleanup responsibilities of any nature whatsoever on,
of, or related to any property dedicated to the City in connection with this Development,
provided that such damages or liability are not caused by circumstances arising entirely
after the date of acceptance by the City of the public improvements constructed on the
dedicated property, except to the extent that such circumstances are the result of acts or
omissions of the Developer. Said indemnification shall not extend to claims, actions or
other liability arising as a result of any hazardous substance, pollutant or contaminant
generated or deposited by the City, its agents or representatives, upon portions of the
Property dedicated to the City in connection with this Development. The City agrees to
M
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.
L. The Developer acknowledges and agrees that the City, as the owner of Tract
J (the "City Property"), on which off -site improvements may be constructed, or that may be
damaged by the Developer's activities hereunder, has and expressly retains (and does not
by this Development Agreement waive) its rights as property owner. The City's rights as
owner may include, without limitation, the right to protect the City Property from trespass or
damage, and the right to enforce restrictions, limitations and requirements associated with
activities on the City Property by the Developer as an easement recipient.
M. The Developer and the City further acknowledge and agree that nothing in
this Agreement shall be construed or interpreted to modify or supercede the terms of the
Purchase and Sale Agreement, or any deed or easement executed by the parties thereto
in performance thereof, or the parties' rights or obligations pursuant thereto.
II. Special Conditions
A. Water Lines
1. Notwithstanding anything in this Development Agreement to the
contrary, the City acknowledges that the East Larimer County Water District will be
providing water service to the Property and, as a result, review and approval of the water
service improvements (including the phasing of such improvements) shall be by the district
and not the City.
B. Sewer Lines
1. Notwithstanding anything in this Development Agreement to the
contrary, the City acknowledges that the Boxelder Sanitation District will be providing
sanitary sewer service to the Property and, as a result, review and approval of the sanitary
sewer service improvements (including the phasing of such improvements) shall be by the
district and not the City.
R
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements, as shown on the
Final Development Plan Documents, shall be completed by the Developer in accordance
with said Final Development Plan Documents prior to the issuance of more than 25
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 25 building permits for the
Development.
2. The Developer shall be responsible for maintaining the structural integrity
and operational functions of all drainage facilities throughout the build -out of this
Development. If at any time following certification (as required pursuant to Paragraph
II.C.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 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 $78,510.00 prior to beginning
construction to guarantee the proper installation and maintenance of the erosion control
measures shown on the Final Development Plan Documents. Said security deposit(s)
shall be made in accordance with the criteria set forth in the City's Storm Drainage Design
Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to abide
by the provisions of the 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 order to ensure that the Developer installs and maintains the erosion
control measurers throughout the build -out of this Development.
R
4. It is important that all lots be graded to drain in the configuration
shown on the Final Development Plan Documents. For this reason the following additional
requirements shall be followed for building on all lots:
a. Prior to the issuance of a certificate of occupancy for any single family 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 Final Development Plan Documents are correct and in accordance with
the Final Development Plan Documents; and the minimum floor elevation for all buildings
constructed on said lot has been completed in accordance with the Final Development
Plan Documents. Said certification shall be completed by a Colorado licensed
professional engineer and shall be submitted to the City at least two weeks prior to the
date of issuance of the desired certificate of occupancy.
b. IPrior to the issuance of a certificate of occupancy for any commercial
facility located on Tract D of this Development the Developer shall provide the City with
certification that the building and drainage facilities located on such lot have been graded
correctly (including the grading of any minor swales, if applicable); the lot corner elevations
specified on the Final Development Plan Documents are correct and in accordance with
the Final Development Plan Documents; and the minimum floor elevation for all buildings
constructed on said lot has been completed in accordance with the Final Development
Plan Documents. Said certification shall be completed by a Colorado licensed
professional engineer and shall be submitted to the City at least two weeks prior to the
date of issuance of the desired certificate of occupancy.
5. The Developer shall obtain the City's prior approval of any changes
from the Final Development Plan Documents in grade elevations and/or storm drainage
facility configuration that occur as a result of the construction of houses and/or
development of hots, 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. In addition the Developer shall be required to record 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 58 through 64. Said notice shall
reference the location of the specific restrictions shown on plans and notes in the Final
Development Plan Documents. Said notice shall be in a form approved by the City and
recorded prior to the sale of any lots affected by such restrictions.
7. The Developer or, if assigned thereto, the homeowners' association for
the Development, shall be obligated to permanently 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 which serve this Development and are outside of
7
the public rights -of -way, including the two water quality ponds, their outfall structures to the
Wetland and the Pond Vegetation, all as specifically defined in Paragraph ILEA. of this
Agreement.
8. 'The Developer shall ensure that no disturbance shall occur during
construction operations associated with this Development outside of the limits of
disturbance shown on the Final Development Plan Documents. In the event of disturbance
outside of these limits the City shall have the right to withhold issuance of any permits
within this Development and stop all construction activities until the exceeded disturbance
is appropriately remediated.
D. Streets
1. 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.
2. The Developer is obligated to improve Vine Drive to arterial street
standards from the intersection of Vine Drive and Merganser Drive to the western most
property boundary of the Development. The City, however, desires to delay such
improvements, with the exception of the interim improvements shown on the Final
Development Plan Documents. Therefore, in lieu of installing the aforesaid permanent
street improvements, the Developer shall make a contribution in aid to the City for the
Developer's share of the local street improvements to Vine Drive.
3. The Developer's contribution for permanent improvements to Vine Drive
pursuant to Paragraph II.D.2. above shall be paid at the rate of $758.14 per dwelling unit
at the time of issuance of each building permit. Such amount is based upon an estimate
provided by the Developer's engineer and approved by the City.
4. The Developer is required to make a contribution toward the cost of
constructing the future alignments of Conifer Street and County Road 11 adjacent to the
Natural Area Property. The City and the Developer agree that concurrently with the
closing of the sale of the Natural Area Property to the City, and upon Developer's receipt
of the purchase price of the Natural Area Property from the City, the Developer shall
contribute the surn of One Hundred Seventy-nine Thousand Dollars ($179,000.00) to the
City as full payment of the Developer's obligation to participate in the cost of constructing
County Road 11 and Conifer Street. Receipt of $179,000.00 by the City upon closing of its
purchase of the Natural Area Property shall satisfy the Developer's obligation to participate
in the cost of such improvements and shall relieve the Developer of any further obligation
in connection with the future alignment and/or construction of County Road 11 and Conifer
Street. In no event shall any building permit be issued in the Second Filing until such
closing and the payment of $179,000.00 to the City under Paragraph II.D.4. have occurred.
5. 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).
6. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with the terms of this Agreement and Sections 29-13 and 29-
14 of the Transitional Land Use Regulations of the City.
E. Natural Area Property.
1. The Developer shall be responsible for the installation of storm drainage
improvements in the Natural Area Property, including drainage pipes, outflow facilities,
water quality ponds and their outfall structures (i.e. outlets and pipes) to the Wetland, and
the planting of seedlings and seed mixtures within the water quality ponds (the "Storm
Drainage Systern") in accordance with the Final Development Plan Documents. The
Developer shall also be responsible for the planting of deciduous shrubs near the storm
water outflow facilities to the water quality ponds ("Pond Vegetation") in accordance with
the Final Development Plan Documents. The Pond Vegetation shall be planted as soon as
reasonably practical after completion of the Storm Drainage System. Upon completion of
the Storm Drainage System and installation of the Pond Vegetation, the Developer shall
reseed any portion of the Natural Area Property, which has been disturbed by development
activities with a native prairie seed mixture in accordance with the Final Development Plan
Documents.
2. The Developer shall provide a two-year maintenance guarantee and a five-
year repair guarantee, consistent with the provisions of the Land Use Code and
subparagraph II.H. hereof, covering all components of the Storm Drainage System in the
Natural Area Property, with the exception of the water quality ponds, their outfall structures
to the Wetland and the Pond Vegetation, which improvements shall be maintained
permanently by the Developer or, if assigned thereto, the homeowner's association for the
9