HomeMy WebLinkAboutSIDEHILL FILING TWO - Filed DA-DEVELOPMENT AGREEMENT - 2005-12-21Citv of Fort Collins
DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this ile day of Aobos-r
2005, by and between the CITY OF FORT COLLINS, COLORADO. a Municipal
Corporation, hereinafter referred to as the "City and POSTLE DEVELOPMENT
COMPANY, a Colorado Corporation, hereinafter referred to as the "Developer",and
SIDEHILL INC., a Colorado Corporation, hereinafter referred to as the "Owner"
WITNESSETH:
WHEREAS, the Developer has acquired or will acquire from the Owner the rights
to develop certain real property situated in the County of Larimer. State of Colorado.
(hereafter sometimes referred to as the "Property" or "Development") and legally
described as follows. to wit:
Sidehill — Filing Two, a replat of Outlet A and Outlet B, Sidehill — Filing One,
located in Section 20, Township 7 North, Range 68 West of the 6th P.M., City of
Fort Collins. County of Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats. plans (including utility plans), reports and other documents required for
the approval of a final plan according to the Citys development application submittal
requirements master list (the "Final Development Plan Documents') copies of which are
on file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
voll 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
I
ands to be developed and not to the City of Fort Collins as a p✓hcle: and
WHEREAS. the City has approved the Final Development Plan Documents
submitted by the Developer subject to certain requirements and conditions. which
involve the installation of and construction of utilities and other municipal improvements
in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration. the receipt and adequacv of wnich are herebv
acknowledged, it is agreed as follows:
by the City that the City's reimbursement, in accordance with Section 24-112 (d), would
not be less than fifty percent (50%) of the Developer's actual expenses incurred and will
be calculated in accordance with the formula as set forth in Section 24-112 (d).
Notwithstanding the foregoing, the parties anticipate that the City will undertake the
design and construction of the Timberline improvements using, in part, funds of the
Developer, in accordance with Paragraphs II(D)(3) through II(D)(7) below, in which
event the reimbursement provisions of this paragraph would not be applicable.
2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II(D) are "City improvements" (as
defined below) arid, as such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the sum of Thirty
Thousand Dollars ($30,000), the contract for the construction of the same must be
submitted to a competitive bidding process resulting in an award to the lowest
responsible bidder, and evidence must be submitted to the City prior to the
commencement of the work showing that the award was given to the lowest responsible
bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the
contract for the construction of the improvements must be insured by a performance
bond or other equivalent security. For purposes of this paragraph, the term "City
improvements" shall mean either (1) existing improvements owned by the City that are
to be modified or reconstructed, or (2) any improvements funded in whole or in part by
the City.
3. The Developer understands that the City's Adequate Public
Facilities ("APF") provision applies to this Development as set forth in Section 3.7.3 of
the City's Land Use Code (' LUC"). Accordingly, while this Development may proceed
with construction of the on -site and off -site infrastructure improvements as shown on the
Final Development Plan Documents. no building permits shall be issued for the
Development until the provisions of said Section 3.7.3 of the LUC have been satisfied.
Accordingly, certain improvements must be made to the Prospect/Timberline
intersection to increase the capacity of that intersection to service levels that will
accommodate the traffic impacts of the Development. While the City has these
improvements programmed into the City's Capital Improvement Program, that project is
unfunded and urscheduled at this time. Therefore, in order to satisfy the above -
referenced APF-equirement, if the Developer proceeds with the Development, the
Developer has elected to fund the City's share of the capacity improvements that must
be made to the ProspectMmberline intersection (the "APF Improvements"). excluding
street oversizing improvements. The arrangement under which the Developer intends to
provide said funding is set forth in Paragraphs II(D)(3) through II(D)(7) of this
Agreement. If the Developer provides the funding as specified therein, the City will
construct the APF Improvements at such time as it determines, in its sole discretion,
that the funding provided by the Deve!oper, in combination with such other funds as the
City may consider necessary, is adequate to fully fund the scope of improvements that
the City wishes to make. The cost of the APF Improvements that will need to be paid by
the Developer will not exceed 32,500,000. in order to proceed with the Development.
the Developer has posted a bond with the City for the original estimated amount of
out of this Development, the Developer shall provide and maintain at all times an
accessway to said building or buildings. Such accessway shall be adequate to handle
any emergency vehicles or equipment, and the accessway shall be kept open during all
phases of construction. Such accessway shall be constructed to an unobstructed width
of at least 20 feet with 4 inches of aggregate base course material compacted according
to city standards and with an 80 foot diameter turnaround at the building end of said
accessway. The turnaround is not required if an exit point is provided at the end of the
accessway. Prior to the construction of said accessway; a plan for the accessway shall
be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three
plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for
review and processing.) If such accessway is at any time deemed inadequate by the
Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into
compliance and until such time that the accessway is brought into compliance, the City
and/or the Poudre Fire Authority may issue a stop work order for all or part of the
Development.
I. 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.
J. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance
guarantee and a five-year repair guarantee covering all errors or omissions in the
design and/or construction of the public improvements required for this Development,
which guarantees shall run concurrently and shall commence upon the date of
completion of the public improvements and acceptance thereof by the City. More
specific elements of these guarantees are noted in Exhibit "D." Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section
3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use
Regulations, as applicable. Notwithstanding the provisions of Paragraphs III (H) and (1)
of this Agreement to the contrary, the obligations of the Developer pursuant to this
paragraph and Exhibit "D" 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.
15
III. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook"
and shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of
waste material, rubbish, or building materials caused by the Developer's operation, or
the activities of individual builders and/or subcontractors; shall remove such rubbish as
often as necessary, but no less than daily and; at the completion of the work, shall
remove all such waste materials, rubbish, tools, construction equipment, machinery,
and surplus materials from the public right-of-way. The Developer further agrees to
maintain the finished street surfaces so that they are free from dirt caused by the
Developer's operation or as a result of building activity. Any excessive accumulation of
dirt and/or construction materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until the problem is corrected
to the satisfaction of the City Engineer. If the Developer fails to adequately clean such
streets within two (2) days after receipt of written notice, the City may have the streets
cleaned at the Developer's expense and the Developer shall be responsible for prompt
payment of all such costs. The Developer also agrees to require all contractors within
the Development to keep the public right-of-way clean and free from accumulation of
dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing
operations when winds are of sufficient velocity to create blowing dust which, in the
inspector's opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements
or obligations may be shown on the Final Development Plan Documents, or any
documents executed in the future that are required by the City for the approval of an
amendment to a development plan, and the City may withhold (or to the extent
permitted by law, revoke) such building permits and certificates of occupancy as it
deems necessary to ensure performance in accordance with the terms of this
Development Agreement. The processing and "routing for approval" of the various
development plan documents may result in certain of said documents carrying dates of
approval and/or execution that are later than the date of execution of this Development
Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of
this Agreement. The Developer hereby waives any right to object to any such
discrepancy in dates.
16
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.
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.
1. 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. Notwithstanding any provision hereof to the contrary,
City's sole remedy in the event Developer fails to make the payments described in
Paragraph II(D) of this Agreement shall be to withhold permits or approvals to
Developer for the Development until such time as such payments are made or
alternative sources for the funds described in Paragraph II(D)(3), in the form acceptable
to the City, are provided.
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
17
f
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.J of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement
shall not be construed as or deemed to be an agreement for the benefit of any third
party or parties, and no third party or parties shall have any right of action hereunder for
any cause whatsoever.
M. It is expressly understood and agreed by and between the parties hereto
that this Agreement shall be governed by and its terms construed under the laws of the
State of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set
forth below; and such notice or other communication shall be deemed given when so
hand -delivered or three (3) days after so mailed:
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: JamesCompany, a division of TOUSA Homes, Inc.
2919 Valmont Road, Suite 204
Boulder, CO 80301
Attn: Dan Wenzinger
With a copy to: Ms. Catherine A. Hance, Esquire
DAVIS, GRAHAM & STUBBS, LLP
1550 Seventeenth Street, Suite 500
Denver, CO 80202
If to the Owner: SIDEHILL ONE LLC
Coronado West
301 West Warner, Suite 134
Tempe, AZ 85284
Attn: John Cork
18
AND POSTLE DEVELOPMENT COMPANY
6800 79t' Street, Suite 201
Niwot, CO 80503
Attn: Jim Postle, President
With a copy to: Mr. Peter Gold
301 West Warner, Suite 134
Tempe, AZ 85284
Notwithstanding the foregoing, if any party to this Agreement, or its successors,
grantees or assigns, wishes to change the person, entity or address to which notices
under this Agreement are to be sent as provided above, such party shall do so by giving
the other parties to this Agreement written notice of such change.
O. When used in this Agreement, words of the masculine gender shall
include the feminine and neuter gender, and when the sentence so indicates, words of
the neuter gender shall refer to any gender; and words in the singular shall include the
plural and vice versa. This Agreement shall be construed according to its fair meaning,
and as if prepared by all parties hereto, and shall be deemed to be and contain the
entire understanding and agreement between the parties hereto pertaining to the
matters addressed in this Agreement. There shall be deemed to be no other terms,
conditions, promises, understandings, statements, representations, expressed or
implied, concerning this Agreement, unless set forth in writing signed by all of the
parties hereto. Further, paragraph headings used herein are for convenience of
reference and shall in no way define, limit, or prescribe the scope or intent of any
provision under this Agreement.
P. The Owner is made a party to this Agreement solely for the purpose of
subjecting the Property to the covenants contained in this Agreement. The City and the
Developer expressly acknowledge and agree that the Owner shall not be liable for any
obligations of the Developer under this Agreement, unless Owner were to exercise any
of the rights of the Developer in which event the obligations of the Developer shall
become those of the Owner.
�1-
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: 1. & �-
City M ager
19
APPROVED AS TO CO TENT:
ftft]c t ,�
City Engineer Ir
APP�R�OVV S TO FORM:
Deputy City Attorney
DEVELOPER:
JamesCompany, a division of TOUSA Homes,
Inc., a Rna ida Corporation
In
Dan Wenzinger, xecutve Vice President,
Operations
OWNER:
SIDEHILL ONE LLC, a Colorado limited liability
company _
SIDEHILL/RIVO LLC, a Colorado limited
liability company
20
07
Managing Member
DEVELOPMENT COMPANY,a
, President
EXHIBIT "A"
Schedule of electrical service installation.
Electrical lines need to be installed prior to the installation of the sidewalk, curb
returns, handicap ramps, paving and landscaping. If the Developer installs any curb
return, sidewalk or handicap ramp prior to the installation of electrical lines in an area
that interferes with the installation of the electrical line installation, the Developer shall
be responsible for the cost of removal and replacement of those items and any
associated street repairs.
2. Schedule of water lines to be installed out of sequence.
Not Applicable.
3. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
4. Schedule of street improvements to be installed out of sequence.
Not Applicable
5. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
21
EXHIBIT "B"
Not Applicable
22
EXHIBIT "C"
A tract of land situate in the Southeast Y< of Section 19, Township 7 North,
Range 68 West of the 6`h P.M., which considering the East line of the
Northeast '/4 of said Section 19 as bearing S 00019'30" W and with all
bearings contained herein relative thereto is contained within the boundary
lines which begin at a point on the East line of the said Southeast Y< which
bears S 00°29'55" W 367.93 feet from the East'/. corner of said Section
19 and run thence S 00°29'55" W 2284.06 feet to the Southeast corner of
said Section 19; thence S 89°53'54" W 1056.80 feet along the South line
of the said Southeast '/4 to a point on the East right of way line of the
Union Pacific Railroad; thence N 00028'22" E 2276.85 feet along said East
right of way line, thence N 89"30'30" E 1057.94 feet to the point of
beginning, County of Larimer, State of Colorado.
23
EXHIBIT "D"
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of two (2) years
from the date of completion and first acceptance by the City of the public improvements
warranted hereunder, the full and complete maintenance and repair of the public
improvements constructed for this Development. This warranty and guarantee is made
in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land
Use Regulations, as applicable. This guarantee applies to the streets and all other
appurtenant structures and amenities lying within the rights -of -way, easements and
other public properties, including, without limitation, all curbing, sidewalks, bike paths,
drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any
maintenance and/or repair required on utilities shall be coordinated with the owning
utility company or city department.
The Developer shall maintain said public improvements in a manner that will assure
compliance on a consistent basis with all construction standards, safety requirements
and environmental protection requirements of the City. The Developer shall also correct
and repair, or cause to be corrected and repaired, all damages to said public
improvements resulting from development -related or building -related activities. In the
event the Developer fails to correct any damages within thirty (30) days after written
notice thereof, then said damages may be corrected by the City and all costs and
charges billed to and paid by the Developer. The City shall also have any other
remedies available to it as authorized by this Agreement. Any damages which occurred
prior to the end of said two (2) year period and which are unrepaired at the termination
of said period shall remain the responsibility of the Developer.
REPAIR GUARANTEE:
The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5)
year period, commencing upon the date of completion and acceptance by the City of the
public improvements constructed for this Development, from any and all claims,
damages, or demands arising on account of the design and construction of public
improvements of the Property shown on the approved plans and documents for this
Development; and the Owner furthermore commits to make necessary repairs to said
public improvements, to include, without limitation, the roads, streets, fills,
embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the
right-of-way easements and other public properties, resulting from 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
24
$2,300,000. In order to actually fund the construction of the APE Improvements, the
Developer will substitute cash for the bond security as provided in Paragraph II(D)(6)
below. Upon compliance with Paragraph II (D)(3) through II (D)(6) the Developer will
have satisfied all of the APF requirements for the entire Sidehill Development.
4. Under Section 24-95 of the City Code, the Developer is also
responsible for the construction of the local portion of Timberline Road adjacent to the
Development. In lieu of actually constructing such local portion, the Developer may
satisfy this obligation by making the following payment on or before August 15, 2005.to
the City Engineering Department, in cash or certified check, the local street portion of
Timberline Road for Filing Two and any balance remaining for Filing One. The amount
to be paid under this provision shall be determined on the basis of the final design and
estimate to be completed by the City. No building permit shall be issued for this
Development until the Developer has paid in full the amount provided for in Paragraph
II(D)(3).
5. The Developer has made an initial payment of its local street
portion under Paragraph II(D)(4) above in the amount of $100,000. Said payment was
paid in cash to the City Engineering Department to fund engineering and design work
on the APF Improvements. Said payment ($100,000) shall be nonrefundable, whether
or not the Develooer elects to proceed with the Development, but shall in any event be
credited to the Developer's local street portion referenced in Paragraph II(D)(4) above.
6. The City contemplates bidding the construction contract for the
Timberline Road improvements in the Summer of 2005. Accordingly, on or before
August 1, 2005, the Developer hereby agrees to pay the total amount of cash required
to be paid by the Developer to fund the APE Improvements as required under
Paragraph II(D)(3) above.
7. The Developer has caused a petition to be filed with the City
Council requesting the formation of a SID in order to provide a mechanism whereby the
Developer can be reimbursed for financing the required APE improvements. The
formation of the SID shall be solely at the discretion of the City Council, and the City in
no way guarantees that the SID will, in fact, be established by the Council. If the
Council does choose to establish the SID, the City will utilize the SID assessment
payments of the property owners in the SID, including any SID payments made by the
Developer as a benefited property owner in the District, to repay the Developer for the
total amount actually paid by the Developer for the APE Improvements under this
Agreement. If the SID is not established by the Council, the Developer shall continue to
be obligated to satisfy the APF requirements in the manner described in Paragraphs
II(D)(3) through II(D)(7) hereof in order for the Development to proceed, but only to the
extent such APF requirements specifically apply to the Development. Those portions of
the APF requirements applicable to the SC Group Investments, LLC Property (as
hereinafter defined), if different from those applicable to the Development, shall be the
responsibility of the developer of the SC Group Investments, LLC Property. If the
Developer rails to satisfy such requirements with respect to the Development, the
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.
25
Development shall not proceed. Whether or not the SID is created, the parties agree
that the Developer's posting of the security required under Paragraph II(D)(3) above, its
replacement of the security with cash funds on or before August 1, 2005 under
Paragraph II(D)(6) above, and its payment of its local street portion as provided in
Paragraph II(D)(4) above, shall satisfy the APF requirements for the Development. Said
payments shall also satisfy the APF requirements for the development of that certain
neighboring parcel of real property shown on Exhibit °E," attached hereto and
incorporated herein by this reference (the "SC Group Investments, LLC, Property").,
provided, however, that said payments shall satisfy the APF requirements for the SC
Group Investments, LLC Property only with regard to any development proposal
submitted to the City for said property within five (5) years of the date of execution of
this Agreement.
8. The Developer agrees that the Sharp Pointe Drive connection to
Midpoint Drive is required for connectivity and circulation for this Development. The
Developer is obligated to construct its local street portion of the Sharp Pointe Drive
connection. In lieu of this construction and prior to the issuance of any building permit
in Phase 3, the Developer shall provide an estimate prepared by a licensed engineer for
the Clty's review and approval. In connection with Sidehill Filing One the Developer
has made, or is in the process of making, an initial payment of its local street portion for
Sharp Pointe Drive in the amount of $40,147.67. Upon the City's approval of said
estimate, the Developer will be responsible for two-thirds of that total amount after
receiving credit of the initial $40,147.67 paid under the Sidehill Filing One Agreement.
Any payment made under this Paragraph shall be in the amount of said estimate plus
such additional a-nount as is necessary to bring the estimate current, accounting for
actual inflation costs. The inflation factor shall be calculated using the construction cost
index for Denier as published in the Engineering News Record (ENR) of August 2005,
and the same index published in the ENR in the month preceding payment of the
reimbursement.
The inflation factor (Inf. Fac.) for each year's increase in the amount of the fee shall be
calculated using t-ie construction cost index for Denver as published in the Engineering
News Record (ENR) for August 2005 , as the base index (1-base) and the same index
published :n the ENR for the January in each succeeding year immediately preceding
payment (1-year cf payment). The formula for calculating said inflation factors shall be
as follows:
Inf. Fac. _ (1-year of payment) - (1-base)
(1-base)
The amount to be added to the fee to compensate for inflation shall be equal to the
amount of the fee times the inflation factor. Said amounts added to compensate for
inflation shall not reduce the total (principal) amount due. Any interest earned by the
Gty as a result o` said deposit shall be the property of the City to cover administration
and inflation in order to better assist the City in making reimbursement to the party who
constructs said improvements.
12
9. No building permit for lot 5 of Block 8 shall be issued until Sharp
Point Drive improvements along its frontage have been completed.
10. The Developer is responsible for constructing Song Bird Lane
within the right-of-way dedicated as a part of this Development. In accordance with the
Final Development Plan Documents the construction of Song Bird Lane will terminate at
the curb returns south of Cutting Horse Drive. Since the Developer is responsible for
the construction of the unhuilt portion of Song Bird Lane to the property line, the
Developer agrees to provide an escrow of funds to cover the cost of the construction of
the pavement, curb, gutter and sidewalk that is not constructed at the time of
development of the Property. The escrow of funds shall be deposited with the City In
the form of cash, bond, nonexpiring letter of credit or other form of City approved
security sufficient to guarantee completion of the construction. The amount of said
funds shall be the estimated cost to construct said improvements, which estimate shall
be prepared by the Developer and approved by the City, plus an additional 25% of the
estimate to cover any contingencies and unexpected costs. Said amount shall be
deposited with the City prior to the issuance of any building permit for Phase 3.
Except as provided in the following paragraph, any interest earned by the City as a
result of said deposit shall be the property of the City to cover administration and
inflation in order to better assist the City in making reimbursement to the party that
constructs said improvements.
If the Developer is the party that constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the
Developer the amount deposited plus any interest earned by the City as a result of said
deposit, less 34% of the total amount remaining, (which includes said amount deposited
plus the interest earned by the City) to be kept by the City to cover its costs for
administration of said deposits.
11. No building permits for lots 10 or 11 of Block 16 or lot 1 of Block 17
shall be issued until Song Bird Lane improvements have been completed along their
frontage.
12. The landscaping located in the medians within Nancy Gray Avenue
internal to this development shall not be maintained by the City and it is agreed that all
installation, maintenance, operation, repair and reconstruction obligations relating to the
landscaping and the irrigation of said landscaping shall be those of the Developer or the
Developer's successor(s) in interest. To the extent that said landscaping and irrigation is
ocated on public property, all installation, maintenance, operation, repair and
reconstruction shall be conducted in such a manner that such public property shall not
be damaged, or if damaged, shall be repaired in accordance with then existing City
standards.
13. The landscaping located in the medians with outfall curb and gutter
within Nancy Gray Avenue internal to this development shall be "drip" irrigated. "Spray"
type irrigation is permissible only on medians with drainage inlet and Inflow curb and
gutter as specified on the Final Development Plan Documents,
14. The Developer hereby indemnifies and holds the City harmless
from any damage caused to the roadway (concrete, asphalt, curb and gutter) when
such damage is caused, directly or indirectly, by the acts or omissions of the Developer
in irrigating the landscaping within the medians on Nancy Gray Avenue internal to this
development site. Notwithstanding any provision in this Agreement to the contrary, this
indemnity may be assigned only to a bonafide homeowner's association which has
lawfully assumed the irrigation obligation from the Developer and only if such
assignment is in writing and duly and lawfully executed by such homeowner's
association.
15. The City reserves the right to require at the Developer's expense
additional Improvement Location Certificates or foundation surveys prior to framing for
lots 1-45 of Block 1, lots 1-26 of Block 2, 1-28 of Block 3, lots 1-30 of Block 14, lots 1-30
of Block 15, lots 1-11 of Block 16, and lots 1-2 of Block 17.
16. No home with private drive access at the rear of the lot may take
driveway access cff the public street upon which they front.
17. Construction of Phases 1A, 1B, 2 and 3 of this Development must
be done in sequential order. No building permits will be issued within Phase 1 B, 2 or 3
until all streets and utilities within all preceding Phases have been completed in
accordance with Section I.C. of this agreement.
18. Notwithstanding any provision herein to the contrary, the Developer
shall be responsible for all costs for the initial installation of traffic signing and striping
for this Development, including both signing and striping related to the Developer's
internal street operations and the signing and striping of any adjacent or adjoining local,
collector or arterial streets that is made necessary because of the Development.
19. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
E. Natural Resources
1, The Developer shall ensure that all uplands, as defined in Exhibit
D" and the approved Landscaping Plan for Filing 2, are properly maintained for a three
13) .year period following construction thereof to ensure that the vegetation and
;ivdrologic regime are fully established. Monitoring of the vegetation shall occur at least
in June and Sentember of the first growing season and in late summer of the remaining
4
growing seasons. The status and effectiveness of the vegetation shall be evaluated
and the results reported to the City of Fort Collins Natural Resources Department semi-
annually for review. If the uplands have not been established in accordance with the
approved Revegetation Plan for the Side Hill Project as amended to Include the 2nd
filing (Exhibit "D" ), then the Developer shall promptly take such steps as are necessary
to bring the uplands into conformance with the approved Revegetation Plan for the Side
Hill Project as amended to include the 2nd filing (Exhibit "D").
2. The areas of the Development that are planned to be seeded,
including the uplands revegetation, shall be inspected jointly by the Developer and the
City at specified intervals for three (3) seasons or until determined by the City to be well
established in accordance with the coverage specifications of this paragraph, whichever
occurs first. Areas seeded in the Spring shall be inspected for required coverage each
immediately subsequent Autumn not later than October 1st. Areas seeded at any other
time shall be inspected each immediately subsequent Summer not later than August
1st. The required coverage for the first inspection shall be ten (10) viable live seedlings
of the specified species per 1000 square centimeters (approximately one square foot),
or fifty percent (5C%) coverage of the specified foliage as measured from five feet (5')
directly overhead, with no bare spots larger than 1000 square centimeters. At the time
of the second growing season inspection, there shall be seventy-five percent (7596)
foliage cover of the specified species planted as measured from five feet (5') directly
overhead. No more than ten percent (10%) of the species noted on the site may be
weedy species as defined by Article III, Section 20-41 of the Code of the City. The
Developer shall be responsible for weed control at ail times. Determination of required
coverage will be based on fixed transects each ten meters in length, randomly placed in
representative por-Jons of the seeded areas, with plant species or bare ground/rcck/litter
being noted ever/ ten (10) centimeters along each transect. The Developer shall
warrant all seeder: areas for three (3) growing seasons from the date of completion.
The Developer shall rework and reseed per original specifications any areas that are
dead, diseased, ontain too many weedy species, or fail to meet the coverage
requirement at no additional cost to the City.
3. Fueling facilities shall be located at least one hundred (100) feet
trom natural body of water, wetland, natural drainage way or manmade drainage way.
The fuel tanks and fueling area must be set In a containment area that will not allow a
fuel spill to directly flow, seep, run off, or be washed into a body of water, wetland or
drainage way.
4. The Developer shall delineate the Development's property
boundary adjacent to all Limits of Development (L.O.D.) as defined by Article V, Section
5.12 of the Land Use Code, including boundaries around existing trees that are to be
undisturbed, with orange construction fence prior to any type of construction, including
overlot grading.
5. Prior to the commencement of any development activities within the
Limits of Development. the Developer shall relocate or eradicate any prairie dogs
inhabiting any portions of the site using City -approved methods as set forth in Chapter 4
of the City Code. If prairie dogs are present fumigation is best done between late April
and early June and relocation shall occur prior to March 1 or after May 31 of any given
year.
F. Soil Amendment
1. In all areas associated with this Development that are to be
landscaped or planted in accordance with the Final Development Plan Documents, and
do not require a building permit, the soils shall be loosened and amended by the
Developer in acco-dance with LUC § 3.8.21 In areas that do require a building permit
to be issued, such soil amendment shall be done concurrently to the phases that are
being developed, as these phases are constructed. Develop may seek a waiver or
temporary suspension for seasonal conditions in accordance with Section 12-132 (c) of
the Municipal Code.
2. The soil amendment of the area that will be developed with Phase
1 of the development shall be completed by the Developer prior to the issuance of more
than 45 building permits in Phase 1 of this Development. Phase 1 soil amendment
shall include the amendment of the soils within the detention pond area associated with
this Development as shown on the approved Final Development Plans for this
Development.
3. The soil amendment of the area that will be developed with Phase
2 of the development shall be completed by the Developer prior to the issuance of more
than 29 building permits in Phase 2 of this Development.
4. The soil amendment of the area that will be developed with Phase
3 of the development shall be completed by the Developer prior to the issuance of more
than 34 building permits in Phase 3 of this Development.
5. In all cases, completion of soil amendments shall include
certification by the Developer that the work has been completed. This certification shall
be submitted to the City at least two (2) weeks prior to the date of issuance of additional
building permits or any certificates of occupancy as required above in any phase of this
Development.
G. Ground Water, Subdrains and Water Rights
1. The City shall not be responsible for, and the Developer (for itself
and its successor's) in interest) hereby agrees to indemnify and hold harmless the City
against any damages or injuries sustained in the Development as a result of ground
water seepage or flooding, structural damage, or other damage unless such damages
or iniuries are proximately caused by the City's negligent operation or maintenance of its
storm drainage facilities in the Development. However, nothing herein shall be deemed
a waiver by the City of its immunities, defenses, and limitations to liability under the
IN
Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any
other law.
2. If the Development includes a subdrain system, any such subdrain
system, whether located within private property or within public property such as street
rights -of -way or utility or other easements, shall not be owned, operated, maintained,
repaired or reconstructed by the City and it is agreed that all ownership, operation,
maintenance, repair and reconstruction obligations shall be those of the Developer or
the Developer's successor(s) in interest. Such subdrain system is likely to be located
both upon private and public property and, to the extent that it Is located on public
property, all maintenance, operation, repair or reconstruction shall be conducted in such
a manner that such public property shall not be damaged, or if damaged, shall, upon
completion of anv 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 syslem.
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.
H. 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
build -out of this Development, the Developer shall provide and maintain at all times an
accessway to said building or buildings. Such accessway shall be adequate to handle
any emergency vehicles or equipment, and the accessway shall be kept open during all
phases of construction. Such accessway shall be constructed to an unobstructed width
of at least 20 feet with 4 inches of aggregate base course material compacted according
to city standards and with an 100 foot diameter turnaround at the building end of said
accessway The turnaround is not required if an exit point is provided at the end of the
accessway Prior to the construction of said accessway, a plan for the accessway shall
be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three
plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for
review and processing.) If such accessway is at any time deemed inadequate by the
Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into
compliance and until such time that the accessway is brought into compliance, the City
and/or the Poudre Fire Authority may issue a stop work order for all or part of the
Development.
Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain a Footing and Foundation permit upon the
installation of all underground water, sanitary sewer, and storm sewer facilities, and an
emergency accessway for the Phase in which the permit is being requested. Facilities
shall include but not be limited to all mains, lines, services, fire hydrants and
appurtenances for the Phase as shown on the Final Development Plan Documents.
J. 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.
K. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance
guarantee and a five-year repair guarantee covering all errors or omissions in the
design and/or construction of the public Improvements required for this Development,
which guarantees shall run concurrently and shall commence upon the date of
completion of the public improvements and acceptance thereof by the City. More
specific elements of these guarantees are noted in Exhibit 'C.' Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section
3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use
Regulations, as applicable. Notwithstanding the provisions of paragraphs III (H) and (1)
of this Agreement to the contrary, the obligations of the Developer pursuant to this
Paragraph and Exhibit 'C" may not be assigned or transferred to any other oerson or
entity unless the warranted improvements are completed by, and a letter of acceptance
of the varranted improvements is received from the City by, such other person or entity.
III. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer it accordance with the City's "Work Area Traffic Control Handbook"
and shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of
waste material, rubbish, or building materials caused by the Developer's operation, or
the activities of individual builders and/or subcontractors; shall remove such rubbish as
often as necessary, but no less than daily and; at the completion of the work, shall
remove all such waste materials, rubbish, tools, construction equipment, machinery,
and surplus materials from the public right-of-way. The Developer further agrees to
maintain the finished street surfaces so that they are free from dirt caused by the
Developer's operalion or as a result of building activity. Any excessive accumulation of
dirt and/or constriction 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 12) days after receipt of written notice, the City may have the streets
cleaned at the Developer's expense and the Developer shall be responsible for prompt
payment of all such costs. The Developer also agrees to require all contractors within
the Development to keep the public right-of-way clean and free from accumulation of
dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing
operations when winds are of sufficient velocity to create blowing dust which, in the
inspector's opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements
or obligations may be shown on the Final Development Plan Documents, or anv
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 cates.
()
General Conditions
A. The `.erms 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 Final Development Plan Documents 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 approval of the site specific development plan. In the event that the
Developer commences or performs any construction pursuant hereto after the passage
of three (3) years from the date of approval of the site specific development plan, 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, electrical lines. 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 cermits
shall be issued for anv 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. Anv water lines, sanitary sewer lines, storm drainage lines, electrical 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 Final Development Plan Documents and shall be installed by the
Developer within the time as established under "Special Conditions" in this document.
F_ Except as otherwise herein specifically agreed. the Developer agrees to
Install and pay 'or all water, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this Development as shown on the Final Development Plan
Documents rand other approved documents pertaining to this Development on file with
the' it"
r
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.
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 toy (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 defFult. Nothing herein shall be construed to prevent or interfere with the
City's rights and remedies specified in Paragraph III.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement
shall not be construed as or deemed to be an agreement for the benefit of any third
party or parties, and no third party or parties shall have any right of action hereunder for
any cause whatsoever.
M. It is expressly understood and agreed by and between the parties hereto
that this Agreement shall be governed by and its terms construed under the laws of the
State of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to th,s 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. Box580
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: Pestle Development Company
Attn: James Pestle
6800 North 79t" Street, Suite 201
Niwot, Colorado 80503
If to the Owner: Sidehill Inc
Attn: James Pestle
6800 North 791" Street, Suite 201
Niwot, Colorado 80503
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 Agreerrent 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 prepare) 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, f=urther, paragraph headings used herein are for convenience of
reference and shall in no way define, limit, or prescribe the scope or intent of any
provision under this Agreement.
P. The Owner is made a party to this Agreement solely for the purpose of
subjecting the Property to the covenants contained in this Agreement. The City and the
Developer expressly acknowledge and agree that the Owner shall not be liable for any
obligations of the 'Developer under this Agreement, unless the Owner were to exercise
any of the rights of the Developer in which event the obligations of the Developer shall
become those of the Owner.
ATiL
0
City Clerk
APPROVED AS TO CONTENT:
%=.
City Engineer /
AP!PR AS TO FORM:
Deputy City Attorney
THE CITY OF FORT COLLINS, dOLORADO,
a Municipal Corporation j 1
— II
By
City Manager
DEVELOPER:
POSTLE DEVELOPMENT COMPANY,
a Colorado C oration
By: Will
J es ostle, President
ATTEST:
Jameypostle, Secretary
OWNER:
SOEHILL INC.
a Colorado Cor o ation
By:
J es ostle, Manager
ATTEST:
By: 11
Ja es P stle, Secretary
EXHIBIT "A"
Schedule of electrical service installation.
Electrical lines need to be installed prior to the installation of the sidewalk, curb
returns, handicap ramps, paving and landscaping. If the Developer installs any curb
return, sidewalk or handicap ramp prior to the installation of electrical lines in an area
that interferes with the installation of the electrical line installation, the Developer shall
be responsible for the cost of removal and replacement of those items and any
associated street repairs.
2. Schedule o-' water lines to be installed out of sequence.
Not Applicable.
3. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
4. Schedule of street improvements to be installed out of sequence.
Not Applicable
5. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
,4
Not Applicable
EXHIBIT'C"
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of two (2) years
from the date of completion and first acceptance by the City of the public improvements
warranted hereunder, the full and complete maintenance and repair of the public
improvements constructed for this Development. This warranty and guarantee is made
in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land
Use Regulations, as applicable. This guarantee applies to the streets and all other
appurtenant structures and amenities lying within the rights -of -way, easements and
other public properties, including, without limitation, all curbing, sidewalks, bike paths,
drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any
maintenance and/or repair required on utilities shall be coordinated with the owning
utility company or city department.
The Developer shall maintain said public improvements in a manner that will assure
compliance on a consistent basis with all construction standards, safety requirements
and environmental protection requirements of the City. The Developer shall also correct
and repair, or cause to be corrected and repaired, all damages to said public
improvements resulting from development -related or building -related activities. In the
event the Developer fails to correct any damages within thirty (30) days after written
notice thereof, then said damages may be corrected by the City and all costs and
charges billed to and paid by the Developer. The City shall also have any other
remedies available to it as authorized by this Agreement. Any damages which occurred
prior to the end of said two (2) year period and which are unrepaired at the termination
of said period shall remain the responsibility of the Developer.
IN 1=91111WHEAMOM
The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5)
year period, commencing upon the date of completion and acceptance by the City of the
public improvements constructed for this Development, from any and all claims.
damages, or demands arising on account of the design and construction of public
improvements of the Property shown on the approved plans and documents for this
Development, and the Owner furthermore commits to make necessary repairs to said
public improvements, to include, without limitation, the roads, streets, fills,
embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the
right-of-way easements and other public properties, resulting from 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.
0
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 builcings, 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.
r,
��i0 ( C' I- AZ INC.
916 Willshire Ave. • Fort Collins, Colorado 80521 • (970) 493-4394
EXHIBIT D
Mr. Joe Carter
Cityscape Urban Design, Inc.
3555 Stanford Road
Suite 105
Fort Collins, Colorado 80525
Dear Mr. Carter:
As per your request, I have reviewed the plan view map you sent for the SideHill, Second Filing
with a view to determining whether the revegetation plan (July 2003) I completed for the SideHill,
First Filing is appropriate. I did not complete a field evaluation of the project area.
I believe the plan is appropriate with the following qualifier. The Second Filing, as I recall,
includes a higher proportion of previously disturbed area. This would result in the requirement
that more subsoil materials, now existing on the surface, be used as "topsoil It can be assumed
that this material is acceptable for use, but is of a lower quality than the surficial material overlying
the undisturbed portions of the project area. It should also be noted that where a dense smooth
brome sod has not become established in the area subject to soil salvage, the requirement for
sod stripping and disposal noted in Subsection 2.1.1 of the revegetation plan would not apply.
This review is based on the assumption that the SideHill, Second Filing project area does not
include wetlands that must be mitigated for under Corps of Engineer or City of Fort Collins
requirements.
Sincerely:
CEDAR CREEK ASSOCIATES, Inc.
Stephen G. Long
Principal 7
EXHIBIT D
REVEGETATION PLAN
for the
SIDEHILL PROJECT
FORT COLLINS, COLORADO
Prepared for the:
James Company
Boulder, Colorado
Prepared by:
CMAIB Q."'B M A=CLQ9=, INC
Fort Collins, Colorado
July 2003
F. Street improvements shall not be installed until all utility lines to be placed
therein have beer completely installed, including all individual lot service lines (water
and sewer) leading in and from the main to the property line and all electrical lines.
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, except that if the conflicts
are a result of Federal or State mandated requirements, then the Federal or State
mandated requirements shall prevail.
K 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 accented 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. vvhich 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 ndemnity and 'hold harmless agreement by the Developer could apply.
and the Developer shall have the might 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 s ch 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 Gcvernmentai 'Immunity Act for the same, shall cause this indemnity
and hcid 'harmless agreement by the Developer to not apply to such claim and such
failure shall constitute a release of this indemnity and hold harmless agreement as to
such claim. Approval of and acceptance by the City of any storm drainage facility
design or construction shall in no manner be deemed to constitute a waiver or
relinquishment by the City of the aforesaid indemnification. The Developer shall engage
a Colorado licen<,ed professional engineer to design the storm drainage facilities as
aforesaid and t :s exoressly affirmed hereby that such engagement shall be intended
or he c,enefit of the Clty, and subsequent purchasers of property in 'he Development.
The Developer shall pay storm drainaae basin fees in accordance with
Chapter 26, Article Wil of the City Code. Storm drainage improvements eliatble for
TABLE OF CONTENTS
ROM
Table of Contents ....................................................
1.0 Introduction .......................................................
2.0 Revegetaticn Specifications ............................
3.0 Adjunct Area Stabilization ................................
4.0 Weed Control Plan Summary ..........................
5.0 Revegetation Schedule ...................................
6.0 Management and Maintenance .......................
Appendix : Revegetabon Technical Specifications
Map Pocket
1.0 INTRODUCTION
The James Company has entered into a development known as the "Sidehill Project"
located at the northeast comer of Drake and Timberline roads in Fort Collins, Colorado. The
project will encompass approximately 200 acres. As a part of this development, the Company
proposes to construct a sewer line and access road facility. A portion of this proposed facility will
be constructed ,along a sideslope/terrace formation for which this revegetation plan has been
prepared. Part of an agricultural operation in the past, active land uses currently consist of open
space and wildlife habitat. Overall slopes are nearly level to moderately steep with steeper
slopes occurring in conjunction with a comparatively recent excavation and along the toe of the
slope. The primary vegetation community consists of a mixed plant assemblage of both native
and introduced species reflecting the agricultural history of the area.
The soils overlying this slope are a mixture of undisturbed pedons and subsoils exposed as
a result of previous excavations. The dominant soil map unit of the project area, as mapped by
the Natural Resources Conservation Service (Soil Survey of Larimer County, Colorado 1980), is
the Larimer-Stoneham, 3 to 10 percent slopes complex. These soils are typically deep and well
drained with a medium to high available water capacity. In the typical profile, sandy loams,
loams, and clay loams dominate with coarse fragment content increasing with depth. Soil
reaction is neutral to moderately alkaline throughout the profile. This soil is non -saline and non-
sodic. The hazard of erosion is moderate to severe. This unit belongs in the Loamy Plains range
site and is well suited to the establishment of range grasses.
A number of factors were taken into consideration during the revegetation design phase of
this project. These factors included topography, climate, soils, and existing vegetation. Each
was considered in terms of how the environmental factor could enhance or constrain the potential
for revegetation success. The area to be revegetated will be characterized by comparatively
gentle slopes with north and east aspects. These gentle slopes will reduce the hazard of water
erosion on site during and after planting and on through the time required for vegetation to
become established. Such slope angles will also permit the use of efficient plant establishment
and erosion control techniques thereby increasing the potential for revegetation success. The
northern and eastern aspects will benefit revegetation success potential given their lower evapo-
transoortation potentials as compared to either western or southern aspects.
The climate of the project site is semi -arid resulting in limited precipitation for plant growth
and establishment. As a consequence, proper species selection is an important aspect of
planning, centering on the selection of species adapted to worst -case droughty soil conditions.
Species with rapid establishment rates are also preferred to aid in achieving soil stabilization
objectives. The undisturbed soil profiles overlying the area to be disturbed appear to be fertile
given their agricultural history and the vegetation productivity noted during the field
reconnaissance. Soil salinity and sodicity levels do not appear to be of concern and no species
indicative of high salt or sodium concentrations were observed. The soils overlying the excavated
sites consist of subsoils that support a limited plant community and, as such, can serve as plant
growth material. The vegetation is typical for this type of agricultural site with a notable
percentage of weedy species. The presence of weeds indicates a potential for weed problems
that will be addressed through selective soil handling, a split fertilization application approach,
and a weed control/maintenance program.
The following sections present the revegetation plan prepared for the slope to be impacted.
Section 2.0 presents the revegetation technique sequences that will be used to revegetate the
site. Seedbed preparation, planting, and mulching techniques are addressed. Seed mixtures are
also included. Adjunct area stabilization techniques are presented in Section 3.0. Sections 4.0,
5.0, and 6.0 discuss weed control, revegetation schedules, and management/maintenance
activities, respectively. Appendix A presents technical specifications to aid in the implementation
of this revegetation plan. A map is included at the end of this report depicting the project area to
be revegetated.
2
2.0 REVEGETATION SPECIFICATIONS
The technique sequence to be employed to establish the native herbaceous community is
presented below along with the appropriate seed mixtures and revegetation schedule.
Revegetation technical specifications, including material standards as well as the procedures for
employing the selected techniques, are included as an appendix to this document.
The primary objective of revegetation is to establish a self-sustaining native vegetation
community for soil stabilization and plant diversity purposes. The secondary objectives are to
support existing wildlife populations and create an esthetically pleasing vegetation continuum. To
this end, a variety of native plant species have been selected for use based, variably, on their
rapid establishment potentials, soil type adaptations, and wildlife habitat values. In addition, the
forb species selected for planting are all typical components of surrounding native prairie systems
and exhibit flowering characteristics valuable with respect to esthetic concerns.
2.1 Soil Handling and Grading
2.1.1 Soil Salvage and Stockpiling
That portion of the project area to be disturbed will be stripped of the surface sod to a depth
of <6.0 inches to reduce the potential for weed/introduced grass establishment. The salvaged sod
will be buried on site or disposed of within the boundaries of the project area. Following sod
removal and disposal, soil will be stripped from the site, including the existing disturbed areas, to
an average depth of 12.0 inches. A variable stripping depth of from 9.0 to 15.0 inches is
assumed due to equipment limitations. The salvaged soil will then be taken to a defined soil
stockpile site.
The stockpile will be protected from operational disturbances to maintain facility integrity.
The stockpile will assume as low a profile as possible to decrease wind erosion potential and be
oriented, along the longitudinal axis, perpendicular to the prevailing wind direction, if possible, to
reduce wind erosion. When portions of the stockpile are removed for soil redistribution, removal
will begin on the leeward side of the stockpile to avoid disturbance on the windward side.
Stockpiles will be clearly identified with signs to distinguish them from subgrade or other
construction materials. Stockpiles will be located outside the limits of delineated wetlands and
other Waters of the U.S. regardless of U. S. Army Corps of Engineers jurisdiction ahly.
3
2.1.2 Soil Stockpile Stabilization
The stockpile will be vegetatively stabilized during the first appropriate planting season
following grading if the stockpile will exist through one or more growing seasons. During
construction, the surface of the stockpile will be left in a roughened condition. Fertilizer will be
evenly broadcast over the stockpile surface at recommended rates and the seedbed roughened
to incorporate the fertilizer into the seedbed. Seed, at the specified rates, will then be broadcast
over the seedbed. The seedbed will be lightly roughened to cover the seed. The slopes will then
be mulched using straw or hydromulch and the mulch anchored to complete the stabilization
process. The seed mixture to be used is depicted in Table 1: Stockpile and Adjunct Disturbance
Seed Mixture.
2.1.3 Soil Redistribution
Prior to soil redistribution, the subsoil graded to design specifications and upon which the
soil will be respread will left in a roughened condition to reduce the potential for mass movement
of the reapplied soil. The seedbed will then be ripped on the contour to relieve compaction and
aid plant establishment. Ripping may be eliminated from the sequence if subsoil compaction is
considered to be of no consequence to plant establishment and growth.
The salvaged soil will then be respread. During resoiling operations, soil will be redistributed
in a manner which: (1) achieves an approximate uniform thickness consistent with safety
requirements, post -disturbance land use objectives, and surface water drainage systems; (2)
minimizes compaction and erosion of the soil resource; and (3) minimizes deterioration of the
biological, physical, and chemical properties of the soil to the degree possible. Soil will be
applied in as thick of lifts as possible to minimize equipment passes over the resoiled area. All
final grading will be completed along the contour, where safety conditions permit, to minimize
erosion and maximize site stability.
Soil will be redistributed to an average depth of approximately 10.0 to12.0 inches. As with
salvage activities, a replacement depth range of from 9.0 to 15.0 inches will be acceptable so
long as an average 10.0 tol2.0-inch depth is achieved across the buffer area.
4
=�i
2.2 Revggetation
Following soil redistribution, the disturbed area will be left in a roughened condition. Soil
samples will be taken for laboratory analysis. Fertilizer (excepting nitrogen) will be broadcast
over the seedbed at rates specified as a result of soil tests. The seedbed will be harrowed or
otherwise roughened to incorporate the fertilizer into the applied soil and prepare the area for
seeding. (Fertilizer will be applied in a split application to decrease weed invasion during
seedling establishment.)
Following surface roughening, the seed mixture shown in Table 2: Native Prairie Seed
Mixture will be drilled into the seedbed.. The planted area will then be mulched with the
equivalent of 2.0 tons of straw per acre and the mulch crimped into the seedbed. In the spring of
the second growing season, the recommended amount of nitrogen will be broadcast over the
planted seedbed.
All surface equipment operations will be completed perpendicular to the slope where aerial
and safety conditions permit.
TABLE 1: STOCKPILE AND ADJUNCT DISTURBANCE SEED MIXTURE
S ecics
Preferred
Varieties
Rate LbsJAcre
Planted Drilled)
PLS
Seeded/Acre
Green needlegrass
Lodorm
2.00
362,000
Stipa viriduia
Slender wheatgrass
Primar, Revenue
4.00
640,000
Efymus trachycaulus
Thickspike wheatgrass
Critana
4.00
744,000
Elymus lanceolatus
Western wheatgrass
Arriba, Barton
Sy2Q
756.000
Pascopyrum smithii
Totals = 16.00
2,502,000
(-57 seeds/ sq. ft)
5
Species
Green needlegrass
Shpa vindula
Slender wheatgrass
Elymus trachycaulus
Streambank wheatgrass
Oymus lanceolatus
Western wheatgrass
Pascopyrum smithii
Lewis flax
Adenolinum lewisti
Purple prairie clover
Dalea purpurea
Upright prairie coneflower
Ratibida columnitera
TABLE 2: NATIVE PRAIRIE SEED MIXTURE
Preferred
Varieties
Lodorm
Primar, Revenue
Sodar
Arriba, Barton
Appar
Kaneb
None
Rate LbsJAcre
Planted (Drilled
3.00
1.00
3.00
3.50
0.50
0.50
Q-25
Totals = 11.75
PLS
4cre
160,000
480,000
441,000
142,500
137,500
225,000
2,129,000
(-49 seeds/ sq. it)
Note: This seed mixture will be planted at twice the rate shown if broadcast planting methods are
used.
66
4_
3.0 ADJUNCT AREA STABILIZATION
During construction, the soil surface may be disturbed at equipment staging areas and
similar sites resulting in a loss of vegetative cover. In such cases, extensive application of
revegetation techniques is not desirable where a more simplistic range of restoration techniques
will suffice. The following alternatives to intensive reclamation will be applied where conditions
warrant.
Suoolemental fertilization: The disturbed area will be broadcast fertilized at
recommended rates where it is determined that the remaining vegetation can
successfully stabilize the area with a supplemental fertilizer treatment. Access to treated
sites will be prohibited until vegetation has become adequately established.
Supplemental seeding: The disturbed area will be seeded where it is determined that the
emsting plant cover is not sufficient to hold soil in place. Minimal seedbed preparation
and soil covering will be acceptable. Following seeding, the treated site will be mulched
and the mulch anchored by applicable means. Access to treated sites will be prohibited
until vegetation has become adequately established. This alternative may be combined
with supplemental fertilization as necessary. The native seed mixture to be used is
depicted in Table 2 below. When broadcast seeding techniques are used, the seeding
rate shown the table will be doubled.
4.0 WEED CONTROL PLAN SUMMARY
This section summarizes the elements of the weed control plan which will be prepared in
detail following approval of this project. The completed plan will be submitted to local, State, and
Federal agencies, as required, for review and approval.
The weed control plan will be prepared by a Licensed Commercial Pesticide Applicator
(LCPA). All subsequent weed control activities will also be conducted by an LCPA. The plan to
be prepared will take the form of an Integrated Pest Management Plan (IPM) that will consider all
methods of control that would potentially be applicable to the project area. These methods
include mechanical, chemical, cultural, and biological techniques. Prior to plan preparation, a
visit to the project area will be conducted by the LCPA to assess site conditions, routes of access,
weedy species present, the relationship of any water bodies or wetlands to the proposed areas to
be treated, potential sources of run-on and run-off, wind conditions, and any other factors relevant
to the weed control planning process. Initial emphasis will be given to weed control methods other
than those of a chemical nature.
Where necessary, safe and efficient chemical control methods will be employed. Herbicide
transportation, storage, mipng, loading, application, and disposal methods will comply with all
applicable requirements of State and Federal regulations.
The weed control schedule to be employed will be based on the analysis of the planting site,
conform to all local requirements, and be modeled after similar successful programs developed
by Company representatives.
5.0 REVEGETATION SCHEDULE'
Excavation and grading may ordinarily occur during any month of the year. However,
revegetation activities are more limited with respect to the time of year in which they should be
completed and must be timed to coincide with a recognized planting season. The following tables
depict two revegetation schedules that can be followed to achieve the mitigation objectives set for
this project. The Fall seeding is preferred, in terms of seed germination and plant survival
concerns, to seeding in the Spring though both are acceptable.
Site conditions and/or climatic variations may require that these schedules be modified
somewhat to achieve revegetation success. The schedules do not reflect any weed control
activities that may be employed on site and would be amended to incorporate such a program if it
is required.
credit or City repayment under the provisions of Chapter 26 are described together with
the estimated cost of the improvements on the attached Exhibit 'B," which
improvements, if applicable, shall include right-of-way, design and construction costs.
See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for
specific instructions.
J. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of each 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
property dedicated (both in fee simple and as easements) to the City associated with
this Development (whether on or off -site) is 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 property as is dedicated to the City
pursuant to this Development, is 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 connec-ion 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 the property dedicated to the City in connection with
this Development. The City agrees to give notice to the Developer of any claim made
against it to which this indemnity and hold harmless agreement by the Developer could
apply, and the Developer shall have the richt 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 a notice of
such claim under the Colorado Governmental Immunity Act for the same, shall cause
'.his 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.
4
TABLE 3: FALL (DORMANT SEEDING) MITIGATION SCHEDULE
Month
Reclamation Technique J F M A M J J A S 0 N D
Excavation/Grading Any month
Resoiling and/or Ripping (if necessary) XXX
Seedbed Material Sampling XXX
Fertilization (1'year) XXX
Seedbed Preparation XXX
Seeding XX
Mulching XX
Nitrogen fertilizer application (2''° growing season) XX
TABLE 4: SPRING MITIGATION SCHEDULE
Month
FiPnIsmatlnn Tarhninua J F M A M J J A S O N D
Excavaticn/Grading
Resoiling and/or Ripping (if necessary) XXX
Seedbed Material Sampling XXX
Fertilization (1' year) XX
Seedbed Preparation XX
Seeding XX
Mulching XX
Nitrogen fertilizer application (2ntl growing season) XX
Any month
Note: Weather and surface conditions permitting, the earlier in the season spring planting is
completed the higher the potential for revegetation success.
10
6.0 MANAGEMENT AND MAINTENANCE
No earth -moving activities will be permitted outside the boundaries of the area to be
revegetated except as provided for in the site development/revegetation plans. Adjunct
disturbances related to the installation of erosion control or site stabilization measures are also
excepted.
All erosion control measures will be kept in good condition until revegetation is deemed
acceptable by the City or it is obvious that the site is stable and the installed measures are no
longer required. Within this time -frame, any erosion control measure removed prematurely or
damaged will be immediately replaced or repaired.
Permanent revegetation plantings will be inspected at least monthly during the first three
growing seasons following planting and/or immediately following periods of intense rainfall. Areas
of poor "seed take" will be noted. Any area remaining unvegetated by desirable species
throughout the first three growing seasons will be reseeded following the application of site
preparation techniques during the next Fall planting season. Seeded areas will then be straw -
mulched and the mulch crimped into the seedbed using manual methods or anchored by netting.
Any areas found to be devoid of a mulch cover following the initial seeding will be re -mulched as
soon as the condition is discovered.
If nutrient deficiency symptoms develop on revegetated areas, this condition will be
remedied by adding the appropriate nutrients in the proper amounts. Where slips, slides, or
slumps occur on constructed slopes, such will be remedied as soon as soil conditions permit.
No mowing, trimming, or other vegetation modifying activities will be permitted in the
revegetated area unless directly associated with a planned weed control or site maintenance
program. Trimming or removal of diseased vegetation will also be permitted.
11
z
APPENDIX: REVEGETATION TECHNICAL SPECIFICATIONS
REV'EGETATION TECHNICAL SPECIFICATIONS
MATERIALS, METHODS, AND TECHNIQUES
Prepared for the:
James Company
Boulder, Colorado
Prepared by:
CZID.kM CM= k230=&T332, INC.
Fort Collins, Colorado
July 2003
TABLE OF CONTENTS
Page
1.0 Material Specifications .......................................
1.1 Fertilizer.........................................................
12 Commercially Purchased Seed ........................
1.3 Seedlings and Tree Stock ...............................
1.4 Native Hay or Straw Mulch ...............................
1.5 Erosion Control Matting ..................................
1.6 Plastic Netting and Staples ..............................
................3
3.0 Technique Specifications ...........................
3.1 General ...................................................
3.2 Ripping ...................................................
3.3 Seedbed Material Application ...................
3.4 Seedbed Material Sampling .....................
3.5 Disking ...................................................
3.6 Harrowing ...............................................
3.7 Broadcast Fertilization ..............................
3.8 Drill Seeding ...........................................
3.9 Broadcast Seeding ..................................
3.10 Hand Raking .........................................
3.11 Seedling Planting ..................................
3.12 Tree Planting ........................................
3.13 Native Hay or Straw Mulching ..................
3.14 Native Hay or Straw Mulch Netting...........
3.15 Native Hay or Straw Mulch Crimping ........
3.16 Erosion Control Matting .........................
4.0 Partial List of Planting Material Suppliers.......
i
S. G. Long — SIDEHILL PROJECT- 2003
REVEGETATION TECHNICAL SPECIFICATIONS
MATERIALS, METHODS, AND TECHNIQUES
The following specifications have been prepared to aid in implementing the revegetation plans
prepared for this project. These specifications may be used as a reference to develop formal bid
packages should the James Company prefer to contract out any or all of the field reclamation portion of
this project. These specifications can also be used for guidance when erosion control measures must be
employed on an emergency basis or to serve as a technical base when making future site stabilization
plantings. Specificalions for avariety of materials and revegetation techniques, other than those specified
in the plan, are InCILded herein should the purchase of such materials or use of such techniques be
necessary for any reason.
1.o MATERIAL SPECIFICATIONS
The following specifications are presented to identify the quality of materials that should be
purchased to complete revegetation activities. Efforts should be made to follow these specifications,
although minor deviations may be required due to the commercial availability of various materials within the
region al the time of purchase.
1.1 Fertilizer
All fertilizer material will be furnished in waterproof or water-resistant bags. Each bag must be marked
with the weight and manufacturer's guaranteed analysis of the contents showing the percentage of each
ingredient contained.
1.2 Commercially Purchased Seed
Seed will be furnished in standard containers with seed name; lot number; net weight; and
percentages of purity, germination, hard seed, and maximum weed seed content dearly marked for each
type of seed. Seed supplies will not contain the seeds of any State -recognized noxious weed species. A
certificate stating that each seed lot has been tested by a laboratory with respect to the above
requirements will be delivered with the seed.
Only certified seed of named varieties shall be used where varieties are specified and can be
obtained. Sources for "common" seed should be those with climatic and elevational characteristics as
dose to project site characteristics as possible. Legume seed will be inoculated with the correct rhizobium
prior to shipping. All legume seed MR be planted Prior to the expiration date on the inoculum tag or
reinoculated within 24 hours prior to planting.
1
S. G. Long — SIDEHILL PROJECT - 2003
1.3 Seedlings and Tree Stock
All seedlings accepted will be true to type and name. All seedlings and stock will have well -formed
tops and root systems and be free from injurious insects and plant diseases. Plants will be free from: 1)
serious abrasions to roots, stems, and branches; 2) dried root systems; 3) thin root systems; 4) mold; 5) a
dry, loose. or damaged soil mass; 6) root -bound conditions; 7) broken or malformed containers; and 8)
sun -scald, wind, or freezing damage. Seedlings cut back from larger sizes to meet specified sizes will not
be accepted. All stock will be "hardened off" prior to shipment so that stock is physiologically prepared for
out -planting.
1.4 Native Hay or Straw Mulch
Mulch will not be musty, moldy, caked, or decayed and shall be free of noxious weeds or noxious
weed seeds. it will be delivered in an air-dry condition. The majority of stems should be 10 to 12 inches
long or longer prior to application f the mulch is to be anchored by crimping. When the mulch is to be
anchored by netting or achemical tacMier, amajority of stems should be at least 6 inches long.
1.5 Erosion Control Matting
Matting will be composed of a blanket of interlocking curled wool fibers overlain with polypropylene
plastic netting as an integral component of the mat. The matting Wl be of uniform thickness with curled
wood fibers spread evenly over the mat Matting components will be non -toxic to vegetation and the
blanket will be smolder resistant. The matting will not be moldy or decayed. Matting WH be delivered in
standard manufacturer's packaging.
1.6 Plastic Netting and Staples
Plastic netting will be composed of black or green polypropylene or other approved plastic that is
extruded to form a net. The netting will be furnished in rolls and show little or no shrinkage after
application. Staples will be U-shaped and be made of 11 or 12 gage steel wire. Staple lengths should be
6 to 8 inches for firth soils and not less than 12 inches for loose soils.
2
S. G. Long.— SIDEHILL PROJECT - 2003
2.0 CARE OF DELIVERED MATERIALS
Commercially purchased seedlings and tree stock will be delivered to the construction site as close to
the time of planting as possible. Upon receipt of the shipment, plants will be inspected for moisture status
and condition. All seedlings will be watered upon arrival, as necessary, to keep the root system in a moist
condition. Watering will be repeated every four days, as needed, following this date until planting. No
fertilizer materials will be applied to stored plants. Plants will be stored in such a manner as to:
avoid or reduce moisture stress,
• avoid excessive heat or cold,
• protect plants from wind and mechanical damage, and
• provide astaging area for subsequent planting activities.
All fertilizer, seed, and mulch materials will be retained in shipping bags until they are to be used.
These materials will be stored in a protected area in a manner to prevent them from coming in contact with
incident precipitation or surface water.
3
S. G. Long — SIDEHILL PROJECT - 2003
L�
3.0 TECHNIQUE SPECIFICATIONS
3.1 General
Areas outside the limits of the site(s) to be revegetated will not be disturbed, excepting those areas
specifically set aside for staging, or as directed by the revegetation supervisor. All perimeter erosion
control measured need be in place prior to site disturbance activities. Site -specific erosion control
measures will be installed as soon as practical following the completion of site disturbance activities
including grading, resoiling, planting, etc. Any erosion control measure damaged, removed prematurely,
or rendered inoperative win be repaired/replaced as soon as the condition has been discovered.
On slopes accessible to common agricultural machinery, all operations An be conducted along the
contour as governed by safety considerations. On slopes accessible to construction equipment, but
inaccessible to agricultural machinery, all operations will be conducted so as to avoid creating conditions
that increase or enhance downslope surface or subsurface flow patterns. On level or nearly level sites, as
aerial conditions permit, all equipment operations An be conducted perpendicular to the prevailing wind
direction.
3.2 Flipping
Ripping An be accomplished by adozer equipped with asingle or twin set of ripper shanks. Ripping
All be completed to a depth of at least 1 or 2 feet, as specified, on approximately 2- to 4-toot centers.
Ripping will be completed at aspeed that maximizes the action of the ripper shanks and promotes material
disruption to the required depth. Material type and compaction levels win be major factors in determining
tractor speed.
3.3 Seedbed Material Application
Seedbed material An be applied as soon as possible after grading and/or ripping. Equipment utilized
will be capable of applying this material in the prescribed manner given slope, application depth, and aerial
extent as well as material characteristic considerations.
Seedbed material will be spread to an even depth as per resoiling specifications. The number of
equipment passes over the site will be kept to the minimum necessary to properly complete material
application and avoid unnecessary compaction. Seedbed materials should not be handled when such
materials contain a moisture content that would inhibit proper application or contribute to excessive
compaction or crusting. The surface of reapplied materials will be left in a roughened condition to inhibit
erosion while providing aproper surface for the application of subsequent revegetation techniques.
4
S. G. Long—SIOEHILL PROJECT - 2003
0,
3.4 Seedbed Material Sampling
General Procedures
The laboratory selected to analyze the samples should be contacted at least 15 days in advance of
the sampling period to aid in coordinating sample analysis with the beginning of revegetation activities on
site. All samples should be taken with either a the spade or soil auger. This equipment will be tree of all
foreign substances and rust. No galvanized tools should be used. Approximately 1 quart of material need
be collected for each sample.
All samples will be placed in dean polyethylene bags at the time of collection and securely sealed for
delivery to the laboratory. All efforts should be made to deliver the samples to the laboratory as soon as
possible. When samples cannot be delivered within 24 hours of collection, samples should be air-dried.
Approximately 48 hours can be considered a sufficient time for air -dying. Samples should be dried in as
dust -free of an environment as is possible.
Specific Procedures
Two samples need be collected representing the surface 24 inches of seedbed material at each
sampling point. Where soil has been respread over the surface to be reclaimed, the upper sample will
represent the depth of soil applied and the lower sample the sub -base material to a depth of 24 inches.
Where soil has not been applied, two samples should be collected representing the 0 to 12 inch and 12 to
24 inch depths of seedbed material. For each set of samples, the average slope and estimated percent
coarse fragment content by volume need be noted.
At least one set of samples should be taken for each specific treatment area to be reclaimed. The
number of samples to be collected will be at the discretion of the revegetation supervisor. Sample
compositing for larger acreages 's recommended. All sample site locations will be noted on a project map.
Each sample should be analyzed at aminimum for:
• pH,
• texture (field method),
• percent organic matter,
• NH4-N and NO3-N (ppm),
• phosphorus (ppm),
• potassium (ppm),
• electrical conductivity (mmhos/cm),
• lime estimate, and
• sodium adsorption ratio ,if advisable.
Other parameters may be added where prior sampling results indicate the potential for plant
establishment and growth constraints related to growth medium chemical or physical characteristics.
5
S.,3. Long—SIDEHILL PROJECT - 2003
L. The Developer acknowledges and agrees that the City, as the owner of
any adjacent property (the 'City Property") on which off -site improvements may be
constructed, or that may be damaged by the Developer's activities hereunder 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 those rights
associated with the protection of the City Property from damage, and/or the
enforcement of restrictions, limitations and requirements associated with activities on
the City Property by the Developer as an easement recipient.
if. Special Conditions
A. Water Lines
1. In accordance with Section 26-369 of the City Code, the Developer
is responsible for constructing the12-inch water main from the east end of Cutting Horse
Drive to the railroad right-of-way plus one half the distance across the railroad right-of-
way. The Midpoint Self Storage development is responsible for the remainder of the 12-
inch water main connection to Midpoint Drive; however, if that portion of the of the 12-
inch water main north of the railroad right-of-way is not completed, the Developer will be
required to install the water main connection (which shall include obtaining the railroad
crossing permit) to the existing water main in Midpoint Drive. If the Developer installs
any portion of the water main which is the responsibility of the Midpoint Self Storage
developer, the Developer may apply for a reimbursement agreement in accordance with
Section 26-372 of City Code. Prior to the issuance of a building permit in Phase 3, the
water main from Cutting Horse Drive to Midpoint Drive must be installed and accepted
by the City.
B. Sewer Lines
1. Prior to the start of the Sidehill Filing 1, the existing sanitary sewer
in Drake Road d d not have sufficient capacity for the for the additional wastewater
flows. The City was designing and constructing a relief sewer project which included a
sewer from the Drake Water Reclamation Facility to a point approximately 1600 feet
west of the northeast corner of Section 29-7-68. A portion of the costs of that relief
sewer (i.e. one sixth of the cost of the 665 feet of 42-inch sewer) was addressed in the
Sidehill Filing 1 development agreement. Since that time, the remaining portion of that
relief sewer has been designed and constructed. This work includes approximately 723
feet of 27 and 30-inch sewer extending generally westerly near the south side of the
new Drake Road alignment and the 42-inch sewer within the Drake Water Reclamation
Facility site. The Developer agrees 'o reimburse the City for one -sixth of the cost of
those relief sewer improvements. The final amount of this reimbursement is
365.365.20. Payment must be made by the Developer to the City prior to the issuance
of any building permit in Sidehill Filing 2.
Accompanying each composite sample should be a brief discussion of the area from which the
sample was collected. The discussion should include comments concerning:
• plant species to be established,
• type of seedbed preparation techniques to be employed,
• type of mulching practices to be employed, if applicable,
• approximate slope,
• any special problems or conditions such as cheatgrass infestation, and
• past and future land use considerations.
3.5 Disking
Disking will be applied as a seedbed preparation and fertilizer incorporation treatment on areas that
will be seeded, as specified. Offset -disk implements are preferred for use due to the characteristics of
seedbed materials. To complete the disking operation, the disk will be towed behind an agricultural tractor
at aspeed that minimizes surficial disturbance and optimizes fertilizer incorporation.
3.6 Harrowing
Harrowing is the preferred method of seedbed preparation for areas which are accessible to
revegetation equipment, particularty where cover crops have been used as a mulching method. A
flexible -tine harrow is preferred where excessive amounts of rock fragments occur in the seedbed
material. With respect to more conventional equipment, a spring -tooth harrow is preferred over a spike -
tooth implement though both types are acceptable for use. Harrowing is applicable for seedbed
preparation, incorporating fertilizer into the seedbed, and for covering broadcast seed. As with disking,
passes over the seedbed should be kept to the minimum necessary to meet operational objectives.
3.7 Broadcast Fertilization
Fertilizer will be broadcast over the seedbed using hand -operated "cyclone -type" seeders or rotary
broadcast equipment attached to construction or revegetation machinery. When an area is disked or
harrowed to complete seedbed preparation, broadcast fertilization can occur simultaneously with disking
or harrowing to simplify the revegetation process. All equipment used will be equipped with metering
devices. Fertilizer application will take place prior to the final seedbed preparation treatment to ensure the
incorporation of fertilizer into the seedbed. Fertilizer broadcasting operations should not be conducted
when wind velocities would interfere with even fertilizer distribution.
Fertilizer will be applied at rates commensurate with recommendations resultant from seedbed material
sample analysis. All nutrients, with the possible exception of nitrogen, will be applied in a single
application. Nitrogen application may be delayed one growing season to reduce the chances for weed
;nfestation. The most soluble phosphorus fertilizer material should be selected for use. A slow -release
6
S. G. Long — SIDEHILL PROJECT - 2003
type fertilizer is preferred as asource of nitrogen. Additionally, fertilizer materials with the lowest salt index
available should be used.
3.8 Drill Seeding
Drill seeding is preferred for planting operations where aerial conditions permit. Drill seeding will be
completed using adrill implement preferably equipped with the following features:
• depth bands- to allow seeding al the proper depth,
• seedbox agitator- to promote seed mixing,
• seedbox baffles- to aid in even seed distribution among rows,
• seed -metering device- to promote even seed distribution within rows,
• furrow openers- to permit proper seed placement from seed spouts, and
drag chains- to aid in seed coverage
To complete the drilling operation, seedboxes will be loaded with the seed mixture and the drill
calibrated. Rice hulls; or other inert materials, ff necessary, can be used to promote seeding at the proper
rate. The drill win 'oa adjusted to plant seed to the proper depth. The depth of seeding will be
approximately 0.25 to 0.50 inch under normal circumstances. Drill row spacing will be set at approximately
6 to 8 inches. The drill An be towed across the seedbed to complete the planting operation. Drill seeding
All take place immediately following the completion of final seedbed preparation techniques.
3.9 Broadcast Seeding
Broadcast seeding will be accomplished using hand -operated "cyclone -type" seeders or rotary
broadcast equipment attached to construction or revegetation machinery. All machinery will be equipped
with metering devices. Broadcasting by hand An be acceptable on small, isolated sites. When broadcast
seeding, passes will be made over each site to be seeded in a manner to ensure an even distribution of
seed. When using hopper type equipment, seed should be frequently mixed within the hopper to
discourage seed settling and an uneven planting distribution of species.
Broadcast seeding will take place immediately following the completion of final seedbed preparation
techniques. Broadcast seeding should not be conducted when wind velocities would prohibit even seed
distribution. The broadcast seeding rate for herbaceous species will be twice the rate of drill seeding.
Woody species will be established by broadcast seeding methods only.
3. G. Long — 31DEHILL PROJECT - 2003
3.10 Hand Raking
This treatment can be used on sites too small or steep for the use of conventional machinery. The
objectives of this technique are to prepare the seedbed for seeding, incorporate applied fertilizer into the
seedbed and cover oroadcast seed. To accomplish these objectives, raking will occur over the entire
disturbed area to the maximum depth feasible for seedbed preparation and fertilizer incorporation. Raking
to cover seed will consist of a lighter treatment sufficient to provide asoil cover over the broadcast seed.
3.11 Seedling Planting
Individual seedling planting sites will be staked or otherwise identified prior to seedling planting by
the reclamation supervisor. At each selected planting site, acircular area (planting circle) will be cleared of
debris. The diameter of the circle will be approximately 12 to 24 inches depending upon the size of the
seedling. The receiving hole will then be dug to a depth 2 to 4 inches deeper than that necessary for
planting of bare -root or tubling stock and twice the size of the rootballs or containers for larger stock.
Planting holes can be dug by hand or with apower auger.
The hole will be of sufficient size to allow for positioning the seedling and tamping the backfill. After
the hole has been formed, it will be partially backfilled with loose seedbed material to allow planting to the
proper depth. The seedling will then be placed in the hole so that the root collar is slightly below the
ground surface and the roots are positioned as straight as possible. Following seedling placement, the
hole will be one-half backfilled with soil and then filled with water. The remainder of the seedbed material
will be backfilled into the hole as rapidly as possible without displacing water from the hole. The backfill will
be lightly tamped around the seedling. A second watering may be required to settle the backfill and
remove air spaces. olanting will be accomplished to the same depth as the seedling was grown in the
container. The watering step may be eliminated when planting into saturated or flooded wetland sites.
A basin, which slopes gently from the outside of the planting circle to the seedling stem, will be
formed from excess backfill material to aid in water catchment. The basin may be mulched with straw and
the straw anchored by the appropriate means, if specified.
3.12 Tree Planting
Techniques to be used to plant trees will be those specified by the nursery supplying the stock or
the contractor employed to plant the trees. In any event, the techniques noted under Seedling Planting
regarding hole formation, backfilling, and watering will be observed when planting trees. In addition, the
planting circle will extend from the drip line to the trunk of the tree at a minimum. All stock over five feet in
height will be staked according to accepted procedures to promote tree stabilization. Stock will be
9
3, G. Long — SICEHILL PROJECT - 2003
watered during the !irst growing season following planting on a schedule to be determined by the
reclamation supervisor.
3.13 Native Hay or Straw Mulching
Mulching will be conducted immediately following seeding operations. The mulch will be spread
evenly by hand or mechanical blower. When mulching slopes, application will be initiated at the top of the
slope, working down -slope, where possible. Mulch will not be spread when wind velocities would prohibit
even distribution.
Approximately 2 tons of mulch per acre will be applied to all areas to be mulched. Native hay or straw
materials will not be chopped so fine as to inhibit mulch effectiveness or proper anchoring.
3.14 Native Hay or Straw Mulch Netting
Netting will be used to anchor applied native hay or straw mulch on all areas too steep for, or
inaccessible to, agricultural machinery. Netting will be applied in the following manner immediately
following mulch application.
All rocks and debris which would inhibit the proper installation of netting will be removed from the
slope prior to mulching. The netting will be applied over the straw smoothly but loosely without stretching
from the top to the bottom of the slope. The top edge of the netting will be buried in a narrow trench 6
inches deep with staples anchoring the netting within the trench. Where netting ends meet, the upslope
end will overlap the downslope end by 4 inches. Where lateral edges of rolls meet, an overlap from either
side of 4 inches will be made. Staples will be inserted on a 1-foot spacing along the top and bottom edge
of the netting. Staples will be inserted every 4 feet down each edge and the center to form an x-shaped
pattern. All staples win be inserted so that they are flush with the seedbed.
3.15 Native Hay or Straw Mulch Crimping
Disking can be used to anchor applied native hay or straw mulch to slopes accessible to equipment.
Disks used for this purpose All have dull and preferably notched, round -edged blades set perpendicular
to the soil surface. Crimping should be completed by traversing the entire mulched area and anchoring
the mulch, by rows, approximately 4 inches into the seedbed on 8- to 12-inch centers. A mulch crimper is
preferable and should be used in lieu of adisk implement, available.
9
S. G. Long—SIDEHILL PROJECT - 2003
3.16 Erosion Control Matting
Erosion control matting can be used to mulch steep slopes or as an erosion control backup for use in
emergency situatiors. Matting will be applied in a down -slope fashion except for small, linear -oriented
areas of cut- or fill -slopes. In such cases, the matting can be applied across the disturbed slopes. The
application procedure described below will be followed.
The surface will be treated to eliminate surface irregularities. Stones and rock fragments which would
inhibit mulch placement will be removed. The matting will be applied smoothly but loosely over the surface
without stretching. The upgrade end of the mat should be buried in a trench at least 6 inches deep,
anchored with staplE?s, and the trench backfilled and compacted. Where mat strips overlap, the mat will be
placed so that the upgrade mat overlaps the downgrade mat by 6 to 12 inches. Adjacent mat strips will be
overlapped approximately 3 to 4 inches. Matting will be anchored with staples driven flush with the
seedbed, along each edge, and down the center of the mat Staples driven at the edges 40 alternate
linearly with those located down the center of the mat.
10
S. G. Long—SIDEHILL PROJECT - 2003
.:i
4.0 PARTIAL LIST OF PLANTING MATERIAL SUPPLIERS
The following sub -section lists sources which typically stock planting materials for the species
referred to in this document. Other sources also exist which stock quality planting materials and can be
contacted for price quotes.
Arkansas Valley Seed Co.
4625 Colorado Blvd.
P. O. Box 16025
Denver, Colorado 80216
303-320-7500
Anderson Seed Company
110 Anderson St.
P. O. Box 1017
Lamar, Colorado 81052
719-336-2226
Beauty Beyond Belief
1730 South College Avenue #104
Fort Collins, Colorado 80525
970-221-3039
Bitterroot Restoration, Inc.
445 Quast Lane
Corvallis, Montana 59828
406-961-4991
Granite Seed
1697 West 2100 North
Lehi, Utah 84043
801-768-4422
Miller Grass Seed Co., Inc.
P. O. Box 81823
1600 Comhusker Highway
Lincoln, Nebraska 68501
402-438-1232
Southwest Seed
P. O. Box 1604
605 25th Street
Greeley, Colorado 80632
970-356-7002
Western Native Seed
P. O. Box 188
25 Pine Edge Dr.
Coaldale, Colorado 81222
719-942-3935
11
S. G. Long - SIDEHILL PROJECT - 2003
xnt�%IKiiTv nnno
4-
EXHIBIT E
A tract of land situate in the Southeast IX of Section 19. Township 7 North,
Range 68 West of the a P.M., which considering the East line of the
Northeast '/4 of said Section 19 as bearing S 00019'30' W and with all
bearings contained herein relative thereto is contained within the boundary
lines which begin at a point on the East line of the said Southeast'/. which
bears S 00°29'55" W 367.03 feet from tf+e East 7/. comer of said Section
19 and run thence S OW29'55" W 2284.06 feet to the Southeast comer of
said Section 19; thence S 89'53'54" W 1056.80 feet along the South line
of the said Southeast y, to a point on the East right of way line of the
Union Pacific Railroad; thence N 00'28'22" E 2276.85 feet along said East
right of way line, thence N 89°30'30" E 1057.94 feet to the point of
beginning, County of Latimer, State of Colorado.
SIDEHILL FILING TWO
AMENDMENT AGREEMENT NO. 1
THIS AMENDMENT AGREEMENT, made and entered into this - day of &V
2006, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation,
hereinafter referred to as the "City"; and Postle Development Company, a Colorado Corporation,
hereinafter referred to as the "Developer'; and Sidehill Inc., a Colorado Corporation, hereafter
referred to as the "Owner."
WITNESSETH;
WHEREAS, the City entered into a Development Agreement with Postle Development
Company (as "Developer") and Sidehill Inc. (as "Owner") on August 10, 2005, the terms of
which govern the development activities of the Developer pertaining to that 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:
Sidehill — Filing Two, a replat of Outlot A and Outlot B, Sidehill — filing One,
located in Section 20, Township 7 North, Range 68 West of the 6th P.M., City of
Fort Collins, County of Larimer, State of Colorado.
WHEREAS, the parties presently desire to modify the Development Agreement;
NOW, THEREFORE, in consideration of the promises of the parties hereto and other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree to amend the terms and conditions of the Development Agreement as follows:
A. Subheading II (Special Conditions) Paragraph C. 12 shall be added as follows:
12. The Developer agrees to pay the City $250,000 for the Developer's portion of the
following improvements that will be constructed by the City: (1) the outfall channel from the east
side of County Road 9 east along the south side of the railroad tracks until the channel ties into the
Poudre River; and (2) for the extension of the subdrain system from manhole MH-1 to where it ties
into the outfall channel. Said payment shall be made prior to November 13, 2006. If said payment is
not made by this date the City shall have the right to withhold the issuance of building permits and/or
certificates of occupancy as provided in Section IILD of this agreement.
In order for the City to construct the extension of the subdrain system to the outfall, the Developer
shall provide a design for this extension that has been reviewed and approved by the City and any
other necessary entities (example: railroad or ditch company) by November 13, 2006.
If the Developer has met the above obligations, then the City agrees to provide the Developer with
any extra dirt that is generated from the outfall channel work.
i
B. Subheading II (Special Conditions) Paragraph G. 5 shall be added as follows:
5• The Developer shall be allowed to tie in to and drain the subdrain system into the
outfall channel that is planned to be constructed by the City east of County Road 9, south of the
railroad tracks extending east to the Poudre River.
C. All other terms and conditions of the Development Agreement shall remain unchanged and in
full force and effect, except as expressly amended in this Amendment Agreement No. 1.
IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and
year first above written.
*10
APPROVED AS TO CONTENT:
Lc
t irector of Engine ng
PROV AS TO FORM:
Deputy City Attorney
THE CITY OF F T C S, COLORADO,
a Municipal Corp tion
By:�-
City Manager
DEVELOPER:
Postle D elop e Company, a Colorado Corporation
By: —
J es P stle, President
C. Storm Drainage Lines and Appurtenances
1. The Final Development Plan Documents for this Development call
for the phasing of the construction of storm drainage improvements. The Developer
shall complete these improvements sequentially in accordance with said Final
Development Plan Documents starting with Phase 1 and ending with Phase 3. The
sequential completion of these improvements shall necessitate that the required overall
site drainage certification be done in phases In accordance with the following
requirements:
a) All on -site and off -site storm drainage improvements
associated with Phase 1 of this Development, as shown on the Final Development Plan
Documents, shall be completed by the Developer in accordance with said Final
Development Plan Documents prior to the issuance of more than 45 building permits in
Phase 1. Phase 1 construction shall include the overlot grading of the entire
development site. Following the overlot grading of the entire site, all the disturbed areas
in Phases 2 through 3 that are slated for future development shall be temporarily
seeded and mulched.
b) All on -site and off -site storm drainage improvements
associated with Phase 2 of this Development, as shown on the Final Development Plan
Documents, shall be completed by the Developer in accordance with said Final
Development Plan Documents prior to the issuance of more than 29 single family
building permits in Phase 2 of the Development.
c) All on -site and off -site storm drainage improvements
associated with Phase 3 of this Development, as shown on the Final Development Plan
Documents, shall be completed by the Developer in accordance with said Final
Development Plan Documents prior to the issuance of more than 34 building permits in
Phase 3 of the Development.
d) In all cases, completion of improvements shall include the
certification by a professional engineer licensed in Colorado that the drainage facilities
which serve any particular phase of 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 additional
building permits in each phase.
2. The Developer shall be responsible for maintaining the structural
integrity and operational functions of all drainage facilities throughout the build -out of
this Development. If at any time following certification (as required pursuant to
paragraph one (1) above) of said drainage facilities and during the construction of
structures and/or lots within this Development the City reasonably decides that said
drainage facilities no longer comply with the Final Development Plan Documents, the
City shall give written notice to the Developer of all items which do not comply with the
Final Development Plan Documents. Unless the Developer successfully appeals the
M
ATTEST:
By:
ames ostle, Secretary
OWNER:
m
ATTEST:
By:.
J es ostle, Secretary
3
, a 17o)orado Corporation
Manager
1
DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this & day of
2004, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; and JamesCompany, a division of
TOUSA Homes, Inc., a Florida Corporation, hereinafter referred to as the "Developer"
and SIDEHILL ONE LLC, a Colorado limited Liability Company, SIDEHILL TWO LLC, a
Colorado limited liability company, and POSTLE DEVELOPMENT COMPANY, a
Colorado corporation, hereinafter referred to as the "Owner."
WITNESSETH:
WHEREAS, the Developer has acquired or will acquire from the Owner the rights
to develop certain real property situated in the County of Larimer, State of Colorado,
(hereafter sometimes referred to as the "Property" or "Development") and legally
described as follows, to wit:
A tract of land located in Section 20, Township 7 North, Range 68 West of
the 6th Principal Meridian, City of Fort Collins, Larimer County, Colorado
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, plans (including utility plans), reports and other documents required for
the approval of a final plan according to the City's development application submittal
requirements master list (the "Final Development Plan Documents") copies of which are
on file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and
will further require the installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the Final Development Plan Documents
submitted by the Developer subject to certain requirements and conditions, which
involve the installation of and construction of utilities and other municipal improvements
in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
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 Final Development Plan Documents 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 approval of the site specific development plan. In the event that the
Developer commences or performs any construction pursuant hereto after the passage
of three (3) years from the date of approval of the site specific development plan, 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 or multi-
family building, fire hydrants, electrical lines, 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, electrical 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 Final Development Plan Documents and shall be installed by the
Developer within the time as established under "Special Conditions" in this document.
E. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this Development as shown on the Final Development Plan
Documents and other approved documents pertaining to this Development on file with
the City.
2
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 (water
and sewer) leading in and from the main to the property line and all electrical lines.
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 notify the Developer of any such
claim within ninety (90) days after the City first receives written notice of the same, shall
cause this indemnity and hold harmless agreement by the Developer to not apply to
such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim. Approval of and acceptance by the City of any
storm drainage facility design or construction shall in no manner be deemed to
constitute a waiver or relinquishment by the City of the aforesaid indemnification. The
Developer shall engage a Colorado licensed professional, engineer to design the storm
drainage facilities as aforesaid and it is expressly affirmed hereby that such
engagement shall be intended for the benefit of the City, and subsequent purchasers of
property in the Development.
I. The Developer shall pay storm drainage basin fees in accordance with
Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for
credit or City repayment under the provisions of Chapter 26 are described together with
the estimated cost of the improvements on the attached Exhibit "B," which
3
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 each 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
property dedicated (both in fee simple and as easements) to the City associated with
this Development (whether on or off -site) is 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 property as is dedicated to the City
pursuant to this Development, is 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 the property dedicated to the City in connection with
this Development. The City agrees to give notice to the Developer of any claim made
against it to which this indemnity and hold harmless agreement by the Developer could
apply, and the Developer shall have the right to defend any lawsuit based on such claim
and to settle any such claim provided Developer must obtain a complete discharge of all
City liability through such settlement. Failure of the City to notify the Developer of any
such claim within ninety (90) days after the City first receives written notice of 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
any adjacent property (the "City Property") on which off -site improvements may be
constructed, or that may be damaged by the Developer's activities hereunder, expressly
4
retains (and does not by this Development Agreement waive) its rights as property
owner. The City's rights as owner may include without limitation those rights
associated with the protection of the City Property from damage, and/or the
enforcement of restrictions, limitations and requirements associated with activities on
the City Property by the Developer as an easement recipient.
II. Special Conditions
A. Water Lines
1. Prior to the issuance of any building permit(s) for this Development,
the Developer shall, in accordance with Section 26-121 of the City Code, reimburse the
City the sum of $54,037.52, plus inflation for the cost of the Developer's portion of the
Drake Road/County Road 9 (now Ziegler Road) 24-inch water main. This
reimbursement is based upon the front footage along the water main (2,350.08 feet)
which is adjacent to portions of the Development. The inflation shall be calculated
based upon the Construction Cost Index for Denver as published in the Engineering
News Record of December 1, 1997.
2. Prior to the issuance of any building permit(s) for this Development,
the Developer shall, in accordance with Section 26-121 of the City Code, reimburse the
City the sum of $47,680.00, plus inflation for the cost of the Developer's portion of the
Timberline Road 24-inch water main. This reimbursement is based upon the front
footage along the water main (2,980 feet) which is adjacent to portions of the
Development. The inflation shall be calculated based upon the Construction Cost Index
for Denver as published in the Engineering News Record, of April, 1989.
B. Sewer Lines
1. The existing sanitary sewer in Drake Road has insufficient capacity.
The City is constructing a relief sewer project which includes a sewer from the Drake
Water Reclamation Facility to a point approximately 1600 feet west of the northeast
corner of Section 29. The remaining work includes approximately 665 feet of 42-inch
sewer and 805 feet of 24-inch of sewer. The Developer agrees to pay one sixth of the
cost of the 665 feet of 42-inch sewer including the cost of the railroad permit. The final
amount of the reimbursement (estimated to be $47,400) will be determined following
construction. Payment will be made by the Developer to the City within 60 days
following completion of construction of the sewer. If payment is not made within 60
days, building permits will be withheld until reimbursement is received.
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements associated
with this Development, as shown on the Final Development Plan Documents, shall be
completed by the Developer in accordance with said documents prior to the issuance of
any certificates of occupancy in Tracts A, B or C (which represent the multi -family
portion of this development) and prior to obtaining more than 20 building permits in the
single family portion of this Development. Completion of improvements shall include the
certification by a professional engineer licensed in Colorado that the drainage facilities
(including the improvements on the off -site detention pond within the Rigden Farm Filing
6 property) which partially serve the Development have been constructed in
conformance with said Final Development Plan Documents. This certification shall be
submitted to the City at least two weeks prior to the date of issuance of any building
permits or certificates of occupancy as appropriate.
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 reasonably decides that said
drainage facilities no longer comply with the Final Development Plan Documents, the
City shall give written notice to the Developer of all items which do not comply with the
Final Development Plan Documents. Unless the Developer successfully appeals the
decision of non-compliance, it shall bring such facilities back up to the standards and
specifications as shown on the Final Development Plan Documents. Failure to maintain
the structural integrity and operational function of said drainage facilities following
certification shall result in the withholding of the issuance of additional building permits
and/or certificates of occupancy until such drainage facilities are repaired to the
operational function and structural integrity which was approved by the City.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the Final Development Plan Documents to stabilize all over -
lot grading in and adjacent to this Development. The Developer shall also be required
to post a security deposit in the amount of $ 86,889.20 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion control measures
shown on the Final Development Plan Documents. Said security deposit(s) shall be
made in accordance with the criteria set forth in the City's Storm Drainage Design
Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to
abide by the erosion control provisions of the Final Development Plan Documents or the
erosion control provisions of the Criteria after receiving notice of the same or an
emergency situation exists which would reasonably require immediate mitigation
measures, then, in either event, and notwithstanding any provisions contained in
Paragraph III(J) to the contrary, the City may enter upon the Property for the purpose of
making such improvements and undertaking such activities as may be necessary to
ensure that the provisions of said plans and the Criteria are properly enforced. The City
may apply such portion of the security deposit(s) as may be necessary to pay all costs
incurred by the City in undertaking the administration, construction, and/or installation of
the erosion control measures required by said plans and the Criteria. In addition, the
City shall have the option to withhold building permits and certificates of occupancy, as
stated in Paragraph III.D of this Agreement, as it deems necessary in order to ensure
that the Developer installs and maintains the erosion control measures throughout the
build -out of this Development.
4. It is important that all 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 all buildings/structures on all lots: Prior to
the issuance of a certificate of occupancy for any lot or building the Developer shall
provide the City with certification that the lot and or the building have been graded
correctly. This grading certification shall demonstrate that the lot or building finish floor
elevation has been built in accordance with the elevation specified on the Final
Development Plan Documents. The certification shall also show that the minimum floor
elevation or minimum opening elevation for any building constructed is in compliance
with the minimum elevation as required on the Final Development Plan Documents.
The certification shall demonstrate as well that any minor swales adjacent to the
building or on the lot have been graded correctly and in accordance with the grades
shown on the Final Development Plan Documents. The certification shall also show that
the elevations of all corners of the lot are in accordance with the elevations shown on
the Final Development Plan Documents. Said certification shall be completed by a
Colorado licensed professional engineer and shall be submitted to the City at least two
weeks prior to the date of issuance of the desired certificate of occupancy.
5. The Developer shall obtain the City's prior approval of any changes
from the Final Development Plan Documents in grade elevations and/or storm drainage
facility configuration that occur as a result of the construction of houses and/or
development of lots, whether by the Developer or other parties. The City reserves the
right to withhold the issuance of building permits and certificates of occupancy for this
Development until the City has deemed such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
6. The Developer shall limit the construction of the off -site subdrain
line to the limits of construction as shown on the Final Development Plan Documents.
The contractor shall re -seed and restore all areas that are disturbed during construction
of the off -site subdrain line in accordance with the Final Development Plan Documents
promptly following construction unless precluded by winter, in which event, promptly in
the spring.
7. The Developer shall ensure that no negative impact occurs to the
adjoining property during the construction activities. No grading shall be done outside
of the approved areas as shown on the Final Development Plan Documents.
8. The drainage design for this Development provides for the
evacuation of storm drainage runoff in a reasonable amount of time out of the detention
facilities and into the drainage outfall system. If, during or within 2 years after
construction and acceptance of the detention facilities associated with this
Development, surfacing or standing water conditions' persist in these facilities; and if
such conditions are beyond what can be expected in accordance with the approved
stormwater design, the Developer shall promptly, upon such discovery, install an
adequate de -watering system in the detention facilities. Such a system shall be
reviewed and approved by the City prior to installation.
9. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed outside of the public right-of-way.
10. In all areas associated with this Development that are to be
landscaped or planted in accordance with the Final Development Plan documents, and
do not require a building permit, the soils shall be loosened and amended by the
Developer in accordance with Section 3.8.21 of the Land Use Code prior to the
issuance of more than twenty (20) building permits in the Development. Completion of
soil amendments shall include certification by the Developer that the work has been
completed. This certification shall be submitted to the City at least two (2) weeks prior
to the date of issuance of additional building permits in this Development.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Drake Road
and Timberline Road for those portions of said streets that abut the Property as shown
on the Final Development Plan Documents. Reimbursement for Drake Road shall be
for oversizing the street from local (access) standards to minor arterial standards.
Reimbursement for Timberline Road shall be for oversizing the street from local
(access) standards to major arterial standards. The City shall make reimbursement to
the Developer for the aforesaid oversized street improvements in accordance with
Section 24-112 of the Code of the City. The Developer agrees and understands that
the City shall have no obligation to make reimbursement payments for street oversizing
unless funds for such payments shall first have been budgeted and appropriated from
the Street Oversizing Fund by the City Council; and the Developer further understands
that to the extent that funds are not available for such reimbursement, the City may not,
in the absence of the Developer's agreement, require the construction, at the
Developer's expense, of any oversized portion of streets not reasonably necessary to
offset the traffic impacts of the Development. The Developer does hereby agree to
construct the aforesaid oversized street improvements with the understanding that the
Developer may not be fully reimbursed by the City for the cost of such construction.
The Developer further agrees to accept payment in accordance with Section 24-112 (d)
of the Code of the City as full and final settlement and complete accord and satisfaction
of all obligations of the City to make reimbursements to the Developer for street
oversizing expenses. It is anticipated by the City that the City's reimbursement, in
accordance with Section 24-112 (d), would not be less than fifty percent (50%) of the
Developer's actual expenses incurred and will be calculated in accordance with the
formula as set forth in Section 24-112 (d). Notwithstanding the foregoing, the parties
anticipate that the City will undertake the design and construction of the Timberline
improvements using, in part, funds of the Developer, in accordance with Paragraphs
II(D)(3) through II(D)(7) below, in which event the reimbursement provisions of this
paragraph would not be applicable.
2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II(D) are "City improvements" (as
defined below) and, as such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the sum of Thirty
Thousand Dollars ($30,000), the contract for the construction of the same must be
submitted to a competitive bidding process resulting in an award to the lowest
responsible bidder; and evidence must be submitted to the City prior to the
commencement of the work showing that the award was given to the lowest responsible
bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the
contract for the construction of the improvements must be insured by a performance
bond or other equivalent security. For purposes of this paragraph, the term "City
improvements" shall mean either (1) existing improvements owned by the City that are
to be modified or reconstructed, or (2) any improvements funded in whole or in part by
the City.
3. The Developer, understands that the City's Adequate Public
Facilities ("APF") provision applies to this Development as set forth in Section 3.7.3 of
the City's Land Use Code ("LUC"). Accordingly, while this Development may proceed
with construction of the on -site and off -site infrastructure improvements as shown on the
Final Development Plan Documents, no building permits shall be issued for the
Development until the provisions of said Section 3.7.3 of the LUC have been satisfied.
This means that certain improvements must be made to the Prospect/Timberline
intersection to increase the capacity of that intersection to service levels that will
accommodate the traffic impacts of the pevelopment. While the City has these
improvements programmed into the City's Capital Improvement Program, that project is
unfunded and unscheduled at this time. Therefore, in order to satisfy the above -
referenced APF requirement, if the Developer proceeds with the Development, the
Developer has elected to fund the City's share of the capacity improvements that must
be made to the Prospect/Timberline intersection (the "APF Improvements"), excluding
street oversizing improvements.. The arrangement under which the Developer intends
to provide said funding is set forth in Paragraphs II(D)(3) through II(D)(7) of this
Agreement. If the Developer provides the funding as specified therein, the City will
construct the APF Improvements at such time as it determines, in its sole discretion,
that the funding provided by the Developer, in combination with such other funds as the
City may consider necessary, is adequate to fully fund the scope of improvements that
the City wishes to make. The cost of the APF Improvements that will need to be paid by
the Developer is presently estimated to be $2,300,000. In order to proceed with the
Development, the Developer hereby agrees to post a bond with the City, or provide
other security in a form acceptable to the City, in said amount. Upon receipt of the
Developers payment in the amount of $100,000 pursuant to Paragraph II(D)(5) below,
the City will procure a design of the APF Improvements. At such time as said design
has been finalized and a final cost estimate of the APF Improvements has been
completed by the City, the Developer hereby agrees to adjust the amount of the
decision of non-compliance, it shall bring such facilities back up to the standards and
specifications as shown on the Final Development Plan Documents. Failure to maintain
the structural integrity and operational function of said drainage facilities following
certification shall result in the withholding of the issuance of additional building permits
and/or certificates of occupancy until such drainage facilities are repaired to the
operational function and structural integrity which was approved by the City.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the Final Development Plan Documents to stabilize all over -
lot grading in and adjacent to this Development. The Developer shall also be required
to post a security deposit in the amount of $156,605.13 prior to beginning construction
to guarantee the groper installation and maintenance of the erosion control measures
shown on the Final Development Plan Documents. Said security deposit(s) shall be
made in accordance with the criteria set forth in the City's Storm Drainage Design
Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to
abide by the erosion control provisions of the Final Development Plan Documents or the
erosion control provisions of the Criteria after receiving notice of the same or an
emergency situation exists which would reasonably require immediate mitigation
measures, then, in either event, and notwithstanding any provisions contained in
paragraph III(J) to the contrary, the City may enter upon the Property for the purpose of
making such improvements and undertaking such activities as may be necessary to
ensure that the provisions of said plans and the Criteria are properly enforced. The City
may apply such portion of the security deposit(s) as may be necessary to pay all costs
incurred by the City in undertaking the administration, construction, and/or installation of
the erosion control measures required by said plans and the Criteria. In addition, the
City shall have the option to withhold building permits and certificates of occupancy, as
stated in Paragraph III.D of this Agreement, as it deems necessary in order to ensure
that the Developer installs and maintains the erosion control measures throughout the
build -out of this Development.
4. It is important that all 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 all buildings/structures on all lots:
Prior to the issuance of a certificate of occupancy for any lot or building the Developer
shall provide the City with certification that the lot and or the building has been graded
correctly. This grading certification shall demonstrate that the lot or building finish floor
elevation has been built in accordance with the elevation specified on the Final
Development Plan Documents. The certification shall also show that the minimum floor
elevation or minimum opening elevation for any building constructed is in compliance
with the minimum elevation as required on the Final Development Plan Documents.
The certification shall demonstrate as well that any minor swales adjacent to the
building or on the lot have been graded correctly and In accordance with the grades
shown on the Final Development Plan Documents. The certification shall also show that
the elevations of all corners of the lot are in accordance with the elevations shown on
the --final Development Plan Documents. Said certification shall be completed by a
foregoing security to conform to the final cost estimate; provided, however, that in no
event shall the amount of said security be required to exceed the sum of $2,500,000, In
order to then fund the construction of the APF Improvements, the Developer will
thereafter substitute cash for the security as provided in Paragraph II(D)(6) below.
4. Under Section 24-95 of the City Code, the Developer is also
responsible for the construction of the local portion of Timberline Road adjacent to the
Development. In lieu of actually constructing such local portion, the Developer may
satisfy this obligation by making the following payments:
a. Prior to the issuance of building permits for more than 75
dwelling units in Filing One, of the Development (excluding Outlot A), the
Developer shall pay to the City Engineering Department, in cash, the local
street portion of Timberline Road for Filing One excluding Outlot A. The
amount to be paid under this provision shall be determined on the basis of
the final design and estimate to be completed by the City.
b. Prior to the issuance of building permits for more than 75
dwelling units in Outlot A within Filing One of the Development, the
Developer shall pay to the City Engineering Department, in cash, the local
street portion of Timberline Road for Outlot A, the amount of which
payment shall also be determined on the basis of the final design and
estimate to be completed by the City.
5. The Developer's initial payment of its local street portion under
Paragraph II(D)(4) above shall be in the amount of $100,000. Said payment shall be
paid in cash to the City Engineering Department to fund engineering and design work
on the APF Improvements, and, notwithstanding any provision to the contrary in
Paragraph II(D)(4) above, shall be due and payable upon the City's issuance of a
development construction permit for the Development. Said payment ($100,000) shall
be nonrefundable, whether or not the Developer elects to proceed with the
Development, but shall in any event be credited to the Developer's local street portion
referenced in Paragraph II(D)(4) above.
6. The City contemplates bidding the construction contract for the
Timberline Road improvements in the Spring of 2005. Accordingly, on or before
February 28, 2005, if the Developer is then proceeding with construction of the
Development, the Developer hereby agrees to pay the balance of any local street
portion cost that is still due for Filing One and Outlot A under Paragraph II(D)(4) above,
together with the total amount of cash required to be paid by the Developer to fund the
APF Improvements as required under Paragraph II(D)(3) above.
7. The Developer has caused a petition to be filed with the City
Council requesting the formation of a SID in order to provide a mechanism whereby the
Developer can be reimbursed for financing the required APF improvements. The
formation of the SID shall be solely at the discretion of the City Council, and the City in
10
no way guarantees that the SID will, in fact, be established by the Council. If the
Council does choose to establish the SID, the City will utilize the SID assessment
payments of the property owners in the SID, including any SID payments made by the
Developer as a benefited property owner in the District, to repay the Developer for the
total amount actually paid by the Developer for the APF Improvements under this
Agreement. If the SID is not established by the Council, the Developer shall continue to
be obligated to satisfy the APF requirements in the manner described in Paragraphs
II(D)(3) through II(D)(7) hereof in order for the Development to proceed, but only to the
extent such APF requirements specifically apply to the Development. Those portions of
the APF requirements applicable to the SC Group Investments, LLC Property (as
hereinafter defined), if different from those applicable to the Development, shall be the
responsibility of the developer of the SC Group Investments, LLC. Property If the
Developer fails to satisfy such requirements with respect to the Development, the
Development will not be able to proceed. Whether or not the SID is created, the parties
agree that the Developer's posting of the security required under Paragraph II(D)(3)
above, its replacement of the security with cash funds on or before February 28, 2005
under Paragraph II(D)(6) above, and its payment of its local street portion as provided in
Paragraph II(D)(4) above, shall satisfy the APF requirements for the Development. Said
payments shall also satisfy the APF requirements for the development of that certain
neighboring parcel of real property shown on Exhibit "C," attached hereto and
incorporated herein by this reference (the "SC Group Investments, LLC, Property").;
provided, however, that said payments shall satisfy the APF requirements for the SC
Group Investments, LLC Property only with regard to any development proposal
submitted to the City for said property within five (5) years of the date of execution of
this Agreement.
8. The Developer agrees that the Sharp Pointe Drive connection to
Midpoint Drive is required for connectivity and circulation for this Development. The
Developer is obligated to construct its local street portion of the Sharp Pointe Drive
connection which is estimated to cost $120,443. In lieu of this construction; the
Developer shall provide to the City Street Oversizing Fund one-third of said estimate, or
the sum of $40,147.67, prior to the issuance of any building permits for Filing One of the
Development, excluding Outlot A. In lieu of the lump sum payment to the City, the
Developer may pay to the City $1,338.26, at the time of issuance of each of the first 30
building permits in Filing One of the Development, excluding Outlot A. The obligation of
each future filing within the property will be identified and determined in each future
Filing's Development Agreement. Any payment made under this Paragraph shall be in
the amount of said estimate plus such additional amount as is necessary to bring the
estimate current, accounting for actual inflation costs. The inflation factor shall be
calculated using the construction cost index for Denver as published in the Engineering
News Record (ENR) of September, 2003, and the same index published in the ENR in
the month preceding payment of the reimbursement.
9. The Developer agrees to reimburse the City the sum of
$384,061.79, plus a percentage added to recognize the effects of inflation, for the cost
of constructing the Timberline and Drake improvement project adjacent to the Property
11
which was completed by the City in 2001. The inflation factor shall be calculated using
the construction cost index for Denver as published in the Engineering News Record
(ENR) of August, 2001, and the same index published in the ENR in the month
preceding payment of the reimbursement. Payment shall be made to the City prior to
the issuance of the first building permit in this Development.
10. Notwithstanding any provision herein to the contrary, the Developer
shall be responsible for all costs for the initial installation of traffic signing and striping
for this Development, including both signing and striping related to the Developer's
internal street operations and the signing and striping of any adjacent or adjoining local,
collector or arterial streets that is made necessary because of the Development.
11. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
E. Natural Resources
1. The Developer shall ensure that all wetlands and uplands are
properly maintained for a three (3) year period following construction thereof to ensure
that the vegetation and hydrologic regime are fully established. Monitoring of the
vegetation shall occur at least in June and September of the first growing season and in
late summer of the remaining growing seasons. The status and effectiveness of the
vegetation shall be evaluated and the results reported to the City of Fort Collins Natural
Resources Department semi-annually for review.
2. The areas of the Development that are planned to be seeded,
including the wetland mitigation, shall be inspected jointly by the Developer and the City
at specified intervals for three (3) seasons or until determined by the City to be well
established in accordance with the coverage specifications of this paragraph, whichever
occurs first. Areas seeded in the Spring shall be inspected for required coverage each
immediately subsequent Autumn not later than October 1 st. Areas seeded at any other
time shall be inspected each immediately subsequent Summer not later than August
1st. The required coverage for the first inspection shall be ten (10) viable live seedlings
of the specified species per 1000 square centimeters (approximately one square foot),
or fifty percent (50%) coverage of the specified foliage as measured from five feet (5')
directly overhead, with no bare spots larger than 1000 square centimeters. At the time
of the second growing season inspection, there shall be seventy-five percent (75%)
foliage cover of the specified species planted as measured from five (5') directly
overhead. No more than ten percent (10%) of the species noted on the site may be
weedy species as defined by Article III, Section 20-41 of the Code of the City. The
Developer shall be responsible for weed control at all times. Determination of required
coverage will be based on fixed transects each ten meters in length, randomly placed in
representative portions of the seeded areas, with plant species or bare ground/rock/litter
being noted every ten (10) centimeters along each transect. The Developer shall
12
warrant all seeded areas for three (3)-growing seasons from the date of completion.
The Developer shall rework and reseed per original specifications any areas that are
dead, diseased, contain too many weedy species, or fail to meet the coverage
requirement at no additional cost to the City.
3. Fueling facilities shall be located at least one hundred (100) feet
from natural body of water, wetland, natural drainage way or manmade drainage way.
The fuel tanks and fueling area must be set in a containment area that will not allow a
fuel spill to directly flow, seep, run off, or be washed into a body of water, wetland or
drainage way.
4. The Developer shall delineate the Development's property
boundary adjacent to all Limits of Development (L.O.D.) as defined by Article V, Section
5.1.2 of the Land Use Code, including boundaries around existing trees that are to be
undisturbed, with orange construction fence prior to any type of construction, including
overlot grading.
5. Prior to the commencement of any development activities within the
Limits of Development, the Developer shall relocate or eradicate any prairie dogs
inhabiting any portions of the site using City -approved methods as set forth in Chapter 4
of the City Code. If prairie dogs are present fumigation is best done between late April
and early June and relocation shall occur prior to March 1 or after May 31 of any given
year.
F. Soil Amendment
1. In all areas associated with this Development that are to be
landscaped or planted in accordance with the Final Development Plan Documents, and
do not require a building permit, the soils shall be loosened and amended by the
Developer in accordance with Section 3.8.21 of the Land Use Code prior to the
issuance of more than twenty building permits in this Development. Completion of soil
amendments shall include certification by the Developer that the work has been
completed. This certification shall be submitted to the City at least two (2) weeks prior
to the date of issuance of additional building permits in this Development.
G. Ground Water, Subdrains and Water Rights
1. The City shall not be responsible for, and the Developer (for itself
and its successor(s) in interest) hereby agrees to indemnify and hold harmless the City
against, any damages or injuries sustained in the Development as a result of ground
water seepage or flooding, structural damage, or other damage unless such damages
or injuries are proximately caused by the City's negligent operation or maintenance of its
storm drainage facilities in the Development. However, nothing herein shall be deemed
a waiver by the City of its immunities, defenses, and limitations to liability under the
13
Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any
other law.
2. If the Development includes a subdrain system (which for Filings 2
and 3 may incorporate a pump station), any such subdrain system, whether located
within private property or within public property such as street rights -of -way or utility or
other easements, shall not be owned, operated, maintained, repaired or reconstructed
by the City and it is agreed that all ownership, operation, maintenance, repair and
reconstruction obligations shall be those of the Developer or the Developer's
successor(s) in interest. Such subdrain system is likely to be located both upon private
and public property and, to the extent that it is located on public property, all
maintenance, operation, repair or reconstruction shall be conducted in such a manner
that such public property shall not be damaged, or if damaged, shall, upon completion
of any such project, be repaired in accordance with then existing City standards. The
City shall not be responsible for, and the Developer, for itself and its successor(s) in
interest, hereby agrees to indemnify and hold harmless the City against any damages or
injuries sustained in the Development as the result of groundwater seepage or flooding,
structural damage or other damage resulting from failure of any such subdrain system.
If a pump station is incorporated into the subdrain system for Filings 2 and 3 of the
Development, the Developer (for itself and its successor(s) in interest) agrees to
establish and fund an operation and maintenance account through a property owners'
association in an amount mutually acceptable to the City and the Developer.
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
notify the Developer of any such claim within ninety (90) days after the City first receives
written notice of 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.
H. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a
permanent water system is installed by the Developer and approved by the City.
2. Prior to beginning any building construction in Tracts A, B or C
(which represent the multi -family portion of this development), and throughout the build-
14
out of this Development, the Developer shall provide and maintain at all times an
accessway to said building or buildings. Such accessway shall be adequate to handle
any emergency vehicles or equipment, and the accessway shall be kept open during all
phases of construction. Such accessway shall be constructed to an unobstructed width
of at least 20 feet with 4 inches of aggregate base course material compacted according
to city standards and with an 80 foot diameter turnaround at the building end of said
accessway. The turnaround is not required if an exit point is provided at the end of the
accessway. Prior to the construction of said accessway; a plan for the accessway shall
be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three
plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for
review and processing.) If such accessway is at any time deemed inadequate by the
Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into
compliance and until such time that the accessway is brought into compliance, the City
and/or the Poudre Fire Authority may issue a stop work order for all or part of the
Development.
I. 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.
J. Maintenance and Repair Guarantees
1. The Developer agrees to provide a two-year maintenance
guarantee and a five-year repair guarantee covering all errors or omissions in the
design and/or construction of the public improvements required for this Development,
which guarantees shall run concurrently and shall commence upon the date of
completion of the public improvements and acceptance thereof by the City. More
specific elements of these guarantees are noted in Exhibit "D." Security for the
maintenance guarantee and the repair guarantee shall be as provided in Section
3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use
Regulations, as applicable. Notwithstanding the provisions of Paragraphs III (H) and (1)
of this Agreement to the contrary, the obligations of the Developer pursuant to this
paragraph and Exhibit "D" 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.
15
III. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook"
and shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of
waste material, rubbish, or building materials caused by the Developer's operation, or
the activities of individual builders and/or subcontractors; shall remove such rubbish as
often as necessary, but no less than daily and; at the completion of the work, shall
remove all such waste materials, rubbish, tools, construction equipment, machinery,
and surplus materials from the public right-of-way. The Developer further agrees to
maintain the finished street surfaces so that they are free from dirt caused by the
Developer's operation or as a result of building activity. Any excessive accumulation of
dirt and/or construction materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until the problem is corrected
to the satisfaction of the City Engineer. If the Developer fails to adequately clean such
streets within two (2) days after receipt of written notice, the City may have the streets
cleaned at the Developer's expense and the Developer shall be responsible for prompt
payment of all such costs. The Developer also agrees to require all contractors within
the Development to keep the public right-of-way clean and free from accumulation of
dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing
operations when winds are of sufficient velocity to create blowing dust which, in the
inspector's opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements
or obligations may be shown on the Final Development Plan Documents, or any
documents executed in the future that are required by the City for the approval of an
amendment to a development plan, and the City may withhold (or to the extent
permitted by law, revoke) such building permits and certificates of occupancy as it
deems necessary to ensure performance in accordance with the terms of this
Development Agreement. The processing and "routing for approval" of the various
development plan documents may result in certain of said documents carrying dates of
approval and/or execution that are later than the date of execution of this Development
Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of
this Agreement. The Developer hereby waives any right to object to any such
discrepancy in dates.
16
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.
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.
1. 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. Notwithstanding any provision hereof to the contrary,
City's sole remedy in the event Developer fails to make the payments described in
Paragraph II(D) of this Agreement shall be to withhold permits or approvals to
Developer for the Development until such time as such payments are made or
alternative sources for the funds described in Paragraph II(D)(3), in the form acceptable
to the City, are provided.
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
17
f
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.J of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement
shall not be construed as or deemed to be an agreement for the benefit of any third
party or parties, and no third party or parties shall have any right of action hereunder for
any cause whatsoever.
M. It is expressly understood and agreed by and between the parties hereto
that this Agreement shall be governed by and its terms construed under the laws of the
State of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set
forth below; and such notice or other communication shall be deemed given when so
hand -delivered or three (3) days after so mailed:
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: JamesCompany, a division of TOUSA Homes, Inc.
2919 Valmont Road, Suite 204
Boulder, CO 80301
Attn: Dan Wenzinger
With a copy to: Ms. Catherine A. Hance, Esquire
DAVIS, GRAHAM & STUBBS, LLP
1550 Seventeenth Street, Suite 500
Denver, CO 80202
If to the Owner: SIDEHILL ONE LLC
Coronado West
301 West Warner, Suite 134
Tempe, AZ 85284
Attn: John Cork
18
AND POSTLE DEVELOPMENT COMPANY
6800 79t' Street, Suite 201
Niwot, CO 80503
Attn: Jim Postle, President
With a copy to: Mr. Peter Gold
301 West Warner, Suite 134
Tempe, AZ 85284
Notwithstanding the foregoing, if any party to this Agreement, or its successors,
grantees or assigns, wishes to change the person, entity or address to which notices
under this Agreement are to be sent as provided above, such party shall do so by giving
the other parties to this Agreement written notice of such change.
O. When used in this Agreement, words of the masculine gender shall
include the feminine and neuter gender, and when the sentence so indicates, words of
the neuter gender shall refer to any gender; and words in the singular shall include the
plural and vice versa. This Agreement shall be construed according to its fair meaning,
and as if prepared by all parties hereto, and shall be deemed to be and contain the
entire understanding and agreement between the parties hereto pertaining to the
matters addressed in this Agreement. There shall be deemed to be no other terms,
conditions, promises, understandings, statements, representations, expressed or
implied, concerning this Agreement, unless set forth in writing signed by all of the
parties hereto. Further, paragraph headings used herein are for convenience of
reference and shall in no way define, limit, or prescribe the scope or intent of any
provision under this Agreement.
P. The Owner is made a party to this Agreement solely for the purpose of
subjecting the Property to the covenants contained in this Agreement. The City and the
Developer expressly acknowledge and agree that the Owner shall not be liable for any
obligations of the Developer under this Agreement, unless Owner were to exercise any
of the rights of the Developer in which event the obligations of the Developer shall
become those of the Owner.
�1-
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: 1. & �-
City M ager
19
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 lots, whether by the Developer or other parties. The City reserves the
right to withhold the issuance of building permits and certificates of occupancy for this
Development until the City has deemed such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
6. The Developer shall limit the construction of the off -site storm
drainage improvement lines to the limits of construction as shown on the Final
Development Plan Documents. The contractor shall re -seed and restore all areas that
are disturbed during construction of the off -site storm drainage improvements in
accordance with the Final Development Plan Documents promptly following
construction. The Developer shall ensure that no negative impact occurs to the
adjoining during the construction of the detention pond facilities. No grading shall be
done outside of the approved areas as shown on the Final Development Plan
Documents.
7. The drainage design for this Development provides for the
evacuation of storm drainage runoff in a reasonable amount of time out of the water
quality and detention facilities and into the drainage outfall system. The water quality
and detention facilities have been designed to discharge stormwater runoff from
frequent storms over a 40 hour period through a small diameter outlet. Under the
intended operation of the water quality and detention pond, there will not be standing
water in the pond more than 48 hours after the end of a rainfall event. If, during or
within 2 years after construction and acceptance of the detention facilities associated
with this Development, surfacing or standing water conditions persist in these facilities;
and if such conditions are beyond what can be expected in accordance with the
approved stormwater design, the Developer shall promptly, upon such discovery, install
an adequate de -watering system in the detention facilities. Such a system shall be
reviewed and app-oved by the City prior to Installation.
8. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed outside of the public right-of-way, except for the
storm drainage lines B, C. D, E (but not E1), F, G, and H (but not H1) which lines shall
be maintained in their entirety by the City following certification of these lines by the
Developer and their acceptance by the City-
9. In accordance with the City's Foothill's master drainage plan and
the applicable Final Development Plan Documents, the 100-year developed stormwater
flow from the Development shall be detained, and these developed flows shall be
eleased into the Fossil Creek Reservoir Inlet Ditch at a rate not to exceed 85 cfs for
the 100-year design storm.
APPROVED AS TO CO TENT:
ftft]c t ,�
City Engineer Ir
APP�R�OVV S TO FORM:
Deputy City Attorney
DEVELOPER:
JamesCompany, a division of TOUSA Homes,
Inc., a Rna ida Corporation
In
Dan Wenzinger, xecutve Vice President,
Operations
OWNER:
SIDEHILL ONE LLC, a Colorado limited liability
company _
SIDEHILL/RIVO LLC, a Colorado limited
liability company
20
07
Managing Member
DEVELOPMENT COMPANY,a
, President
EXHIBIT "A"
Schedule of electrical service installation.
Electrical lines need to be installed prior to the installation of the sidewalk, curb
returns, handicap ramps, paving and landscaping. If the Developer installs any curb
return, sidewalk or handicap ramp prior to the installation of electrical lines in an area
that interferes with the installation of the electrical line installation, the Developer shall
be responsible for the cost of removal and replacement of those items and any
associated street repairs.
2. Schedule of water lines to be installed out of sequence.
Not Applicable.
3. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
4. Schedule of street improvements to be installed out of sequence.
Not Applicable
5. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
21
EXHIBIT "B"
Not Applicable
22
EXHIBIT "C"
A tract of land situate in the Southeast Y< of Section 19, Township 7 North,
Range 68 West of the 6`h P.M., which considering the East line of the
Northeast '/4 of said Section 19 as bearing S 00019'30" W and with all
bearings contained herein relative thereto is contained within the boundary
lines which begin at a point on the East line of the said Southeast Y< which
bears S 00°29'55" W 367.93 feet from the East'/. corner of said Section
19 and run thence S 00°29'55" W 2284.06 feet to the Southeast corner of
said Section 19; thence S 89°53'54" W 1056.80 feet along the South line
of the said Southeast '/4 to a point on the East right of way line of the
Union Pacific Railroad; thence N 00028'22" E 2276.85 feet along said East
right of way line, thence N 89"30'30" E 1057.94 feet to the point of
beginning, County of Larimer, State of Colorado.
23
EXHIBIT "D"
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of two (2) years
from the date of completion and first acceptance by the City of the public improvements
warranted hereunder, the full and complete maintenance and repair of the public
improvements constructed for this Development. This warranty and guarantee is made
in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land
Use Regulations, as applicable. This guarantee applies to the streets and all other
appurtenant structures and amenities lying within the rights -of -way, easements and
other public properties, including, without limitation, all curbing, sidewalks, bike paths,
drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any
maintenance and/or repair required on utilities shall be coordinated with the owning
utility company or city department.
The Developer shall maintain said public improvements in a manner that will assure
compliance on a consistent basis with all construction standards, safety requirements
and environmental protection requirements of the City. The Developer shall also correct
and repair, or cause to be corrected and repaired, all damages to said public
improvements resulting from development -related or building -related activities. In the
event the Developer fails to correct any damages within thirty (30) days after written
notice thereof, then said damages may be corrected by the City and all costs and
charges billed to and paid by the Developer. The City shall also have any other
remedies available to it as authorized by this Agreement. Any damages which occurred
prior to the end of said two (2) year period and which are unrepaired at the termination
of said period shall remain the responsibility of the Developer.
REPAIR GUARANTEE:
The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5)
year period, commencing upon the date of completion and acceptance by the City of the
public improvements constructed for this Development, from any and all claims,
damages, or demands arising on account of the design and construction of public
improvements of the Property shown on the approved plans and documents for this
Development; and the Owner furthermore commits to make necessary repairs to said
public improvements, to include, without limitation, the roads, streets, fills,
embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the
right-of-way easements and other public properties, resulting from 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
24
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.
25
1
DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this & day of
2004, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; and JamesCompany, a division of
TOUSA Homes, Inc., a Florida Corporation, hereinafter referred to as the "Developer"
and SIDEHILL ONE LLC, a Colorado limited Liability Company, SIDEHILL TWO LLC, a
Colorado limited liability company, and POSTLE DEVELOPMENT COMPANY, a
Colorado corporation, hereinafter referred to as the "Owner."
WITNESSETH:
WHEREAS, the Developer has acquired or will acquire from the Owner the rights
to develop certain real property situated in the County of Larimer, State of Colorado,
(hereafter sometimes referred to as the "Property" or "Development") and legally
described as follows, to wit:
A tract of land located in Section 20, Township 7 North, Range 68 West of
the 6th Principal Meridian, City of Fort Collins, Larimer County, Colorado
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, plans (including utility plans), reports and other documents required for
the approval of a final plan according to the City's development application submittal
requirements master list (the "Final Development Plan Documents") copies of which are
on file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and
will further require the installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the Final Development Plan Documents
submitted by the Developer subject to certain requirements and conditions, which
involve the installation of and construction of utilities and other municipal improvements
in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
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 Final Development Plan Documents 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 approval of the site specific development plan. In the event that the
Developer commences or performs any construction pursuant hereto after the passage
of three (3) years from the date of approval of the site specific development plan, 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 or multi-
family building, fire hydrants, electrical lines, 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, electrical 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 Final Development Plan Documents and shall be installed by the
Developer within the time as established under "Special Conditions" in this document.
E. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this Development as shown on the Final Development Plan
Documents and other approved documents pertaining to this Development on file with
the City.
2
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 (water
and sewer) leading in and from the main to the property line and all electrical lines.
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 notify the Developer of any such
claim within ninety (90) days after the City first receives written notice of the same, shall
cause this indemnity and hold harmless agreement by the Developer to not apply to
such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim. Approval of and acceptance by the City of any
storm drainage facility design or construction shall in no manner be deemed to
constitute a waiver or relinquishment by the City of the aforesaid indemnification. The
Developer shall engage a Colorado licensed professional, engineer to design the storm
drainage facilities as aforesaid and it is expressly affirmed hereby that such
engagement shall be intended for the benefit of the City, and subsequent purchasers of
property in the Development.
I. The Developer shall pay storm drainage basin fees in accordance with
Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for
credit or City repayment under the provisions of Chapter 26 are described together with
the estimated cost of the improvements on the attached Exhibit "B," which
3
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 each 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
property dedicated (both in fee simple and as easements) to the City associated with
this Development (whether on or off -site) is 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 property as is dedicated to the City
pursuant to this Development, is 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 the property dedicated to the City in connection with
this Development. The City agrees to give notice to the Developer of any claim made
against it to which this indemnity and hold harmless agreement by the Developer could
apply, and the Developer shall have the right to defend any lawsuit based on such claim
and to settle any such claim provided Developer must obtain a complete discharge of all
City liability through such settlement. Failure of the City to notify the Developer of any
such claim within ninety (90) days after the City first receives written notice of 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
any adjacent property (the "City Property") on which off -site improvements may be
constructed, or that may be damaged by the Developer's activities hereunder, expressly
4
10. The Developer shall obtain a permit for grading and construction
improvements within the Fossil Creek Reservoir Inlet Ditch right of way or easement
limits. Such permit shall include the Developer's agreement to indemnify and hold
harmless the Fossil Creek Reservoir Inlet Ditch ("Irrigation Company") and the City from
any claims, damages, injury or cause of action against the Irrigation Company or the
City by the Developer, or its successors and assigns, in relation to the normal operation
and use of the ditch by the Irrigation Company. The Developer shall further indemnify
and hold harmless the City and the Irrigation Company from any such claims, damages,
injury or cause of action by third parties which result from the increase in stormwater
flows added to the canal by the Developer in excess of historic flows except as such
claims, damages, injury or cause of action are as a result of a negligent act or acts of
the Irrigation Company.
11. The Developer shall limit the construction of the off -site storm
drainage improvement lines to the "limits of development" as delineated on the Final
Development Plan Documents. The limits of development shall be delineated in the
field with a construction fence and said fence shall be installed prior to the
commencement of any grading or construction in the properties adjacent to this
Development. The contractor shall re -seed and restore all areas that are disturbed
during construction of the off -site storm drainage improvements in accordance with the
Final Development Plan Documents promptly following the conclusion of construction
activities.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Timberline
Road for that portion of said street that abut the Property as shown on the Final
Development Plan Documents. Reimbursement for Timberline Road shall be for
oversizing the street from local (access) standards to major arterial standards. The City
shall make reimoursement to the Developer for the aforesaid oversized street
improvements in accordance with Section 24-112 of the Code of the City. The
Developer agrees and understands that the City shall have no obligation to make
reimbursement payments for street oversizing unless funds for such payments shall first
have been budgeted and appropriated from the Street Oversizing Fund by the City
Council, and the Developer further understands that to the extent that funds are not
available for such reimbursement, the City may not, in the absence of the Developer's
agreement, require the construction, at the Developer's expense, of any oversized
portion of streets not reasonably necessary to offset the traffic impacts of the
Development. The Developer does hereby agree to construct the aforesaid oversized
street improvements with the understanding that the Developer may not be fully
reimbursed by the City for the cost of such construction. The Developer further agrees
to accept payment in accordance with Section 24-112 (d) of the Code of the City as full
and final settlement and complete accord and satisfaction of all obligations of the City to
make reimbursements to the Developer for street oversizing expenses. It is anticipated
retains (and does not by this Development Agreement waive) its rights as property
owner. The City's rights as owner may include without limitation those rights
associated with the protection of the City Property from damage, and/or the
enforcement of restrictions, limitations and requirements associated with activities on
the City Property by the Developer as an easement recipient.
II. Special Conditions
A. Water Lines
1. Prior to the issuance of any building permit(s) for this Development,
the Developer shall, in accordance with Section 26-121 of the City Code, reimburse the
City the sum of $54,037.52, plus inflation for the cost of the Developer's portion of the
Drake Road/County Road 9 (now Ziegler Road) 24-inch water main. This
reimbursement is based upon the front footage along the water main (2,350.08 feet)
which is adjacent to portions of the Development. The inflation shall be calculated
based upon the Construction Cost Index for Denver as published in the Engineering
News Record of December 1, 1997.
2. Prior to the issuance of any building permit(s) for this Development,
the Developer shall, in accordance with Section 26-121 of the City Code, reimburse the
City the sum of $47,680.00, plus inflation for the cost of the Developer's portion of the
Timberline Road 24-inch water main. This reimbursement is based upon the front
footage along the water main (2,980 feet) which is adjacent to portions of the
Development. The inflation shall be calculated based upon the Construction Cost Index
for Denver as published in the Engineering News Record, of April, 1989.
B. Sewer Lines
1. The existing sanitary sewer in Drake Road has insufficient capacity.
The City is constructing a relief sewer project which includes a sewer from the Drake
Water Reclamation Facility to a point approximately 1600 feet west of the northeast
corner of Section 29. The remaining work includes approximately 665 feet of 42-inch
sewer and 805 feet of 24-inch of sewer. The Developer agrees to pay one sixth of the
cost of the 665 feet of 42-inch sewer including the cost of the railroad permit. The final
amount of the reimbursement (estimated to be $47,400) will be determined following
construction. Payment will be made by the Developer to the City within 60 days
following completion of construction of the sewer. If payment is not made within 60
days, building permits will be withheld until reimbursement is received.
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements associated
with this Development, as shown on the Final Development Plan Documents, shall be
completed by the Developer in accordance with said documents prior to the issuance of
any certificates of occupancy in Tracts A, B or C (which represent the multi -family
portion of this development) and prior to obtaining more than 20 building permits in the
single family portion of this Development. Completion of improvements shall include the
certification by a professional engineer licensed in Colorado that the drainage facilities
(including the improvements on the off -site detention pond within the Rigden Farm Filing
6 property) which partially serve the Development have been constructed in
conformance with said Final Development Plan Documents. This certification shall be
submitted to the City at least two weeks prior to the date of issuance of any building
permits or certificates of occupancy as appropriate.
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 reasonably decides that said
drainage facilities no longer comply with the Final Development Plan Documents, the
City shall give written notice to the Developer of all items which do not comply with the
Final Development Plan Documents. Unless the Developer successfully appeals the
decision of non-compliance, it shall bring such facilities back up to the standards and
specifications as shown on the Final Development Plan Documents. Failure to maintain
the structural integrity and operational function of said drainage facilities following
certification shall result in the withholding of the issuance of additional building permits
and/or certificates of occupancy until such drainage facilities are repaired to the
operational function and structural integrity which was approved by the City.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the Final Development Plan Documents to stabilize all over -
lot grading in and adjacent to this Development. The Developer shall also be required
to post a security deposit in the amount of $ 86,889.20 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion control measures
shown on the Final Development Plan Documents. Said security deposit(s) shall be
made in accordance with the criteria set forth in the City's Storm Drainage Design
Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to
abide by the erosion control provisions of the Final Development Plan Documents or the
erosion control provisions of the Criteria after receiving notice of the same or an
emergency situation exists which would reasonably require immediate mitigation
measures, then, in either event, and notwithstanding any provisions contained in
Paragraph III(J) to the contrary, the City may enter upon the Property for the purpose of
making such improvements and undertaking such activities as may be necessary to
ensure that the provisions of said plans and the Criteria are properly enforced. The City
may apply such portion of the security deposit(s) as may be necessary to pay all costs
incurred by the City in undertaking the administration, construction, and/or installation of
the erosion control measures required by said plans and the Criteria. In addition, the
City shall have the option to withhold building permits and certificates of occupancy, as
stated in Paragraph III.D of this Agreement, as it deems necessary in order to ensure
that the Developer installs and maintains the erosion control measures throughout the
build -out of this Development.
4. It is important that all 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 all buildings/structures on all lots: Prior to
the issuance of a certificate of occupancy for any lot or building the Developer shall
provide the City with certification that the lot and or the building have been graded
correctly. This grading certification shall demonstrate that the lot or building finish floor
elevation has been built in accordance with the elevation specified on the Final
Development Plan Documents. The certification shall also show that the minimum floor
elevation or minimum opening elevation for any building constructed is in compliance
with the minimum elevation as required on the Final Development Plan Documents.
The certification shall demonstrate as well that any minor swales adjacent to the
building or on the lot have been graded correctly and in accordance with the grades
shown on the Final Development Plan Documents. The certification shall also show that
the elevations of all corners of the lot are in accordance with the elevations shown on
the Final Development Plan Documents. Said certification shall be completed by a
Colorado licensed professional engineer and shall be submitted to the City at least two
weeks prior to the date of issuance of the desired certificate of occupancy.
5. The Developer shall obtain the City's prior approval of any changes
from the Final Development Plan Documents in grade elevations and/or storm drainage
facility configuration that occur as a result of the construction of houses and/or
development of lots, whether by the Developer or other parties. The City reserves the
right to withhold the issuance of building permits and certificates of occupancy for this
Development until the City has deemed such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
6. The Developer shall limit the construction of the off -site subdrain
line to the limits of construction as shown on the Final Development Plan Documents.
The contractor shall re -seed and restore all areas that are disturbed during construction
of the off -site subdrain line in accordance with the Final Development Plan Documents
promptly following construction unless precluded by winter, in which event, promptly in
the spring.
7. The Developer shall ensure that no negative impact occurs to the
adjoining property during the construction activities. No grading shall be done outside
of the approved areas as shown on the Final Development Plan Documents.
8. The drainage design for this Development provides for the
evacuation of storm drainage runoff in a reasonable amount of time out of the detention
facilities and into the drainage outfall system. If, during or within 2 years after
construction and acceptance of the detention facilities associated with this
Development, surfacing or standing water conditions' persist in these facilities; and if
such conditions are beyond what can be expected in accordance with the approved
stormwater design, the Developer shall promptly, upon such discovery, install an
adequate de -watering system in the detention facilities. Such a system shall be
reviewed and approved by the City prior to installation.
9. The Developer shall be responsible for maintenance of all storm
drainage facilities that are constructed outside of the public right-of-way.
10. In all areas associated with this Development that are to be
landscaped or planted in accordance with the Final Development Plan documents, and
do not require a building permit, the soils shall be loosened and amended by the
Developer in accordance with Section 3.8.21 of the Land Use Code prior to the
issuance of more than twenty (20) building permits in the Development. Completion of
soil amendments shall include certification by the Developer that the work has been
completed. This certification shall be submitted to the City at least two (2) weeks prior
to the date of issuance of additional building permits in this Development.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Drake Road
and Timberline Road for those portions of said streets that abut the Property as shown
on the Final Development Plan Documents. Reimbursement for Drake Road shall be
for oversizing the street from local (access) standards to minor arterial standards.
Reimbursement for Timberline Road shall be for oversizing the street from local
(access) standards to major arterial standards. The City shall make reimbursement to
the Developer for the aforesaid oversized street improvements in accordance with
Section 24-112 of the Code of the City. The Developer agrees and understands that
the City shall have no obligation to make reimbursement payments for street oversizing
unless funds for such payments shall first have been budgeted and appropriated from
the Street Oversizing Fund by the City Council; and the Developer further understands
that to the extent that funds are not available for such reimbursement, the City may not,
in the absence of the Developer's agreement, require the construction, at the
Developer's expense, of any oversized portion of streets not reasonably necessary to
offset the traffic impacts of the Development. The Developer does hereby agree to
construct the aforesaid oversized street improvements with the understanding that the
Developer may not be fully reimbursed by the City for the cost of such construction.
The Developer further agrees to accept payment in accordance with Section 24-112 (d)
of the Code of the City as full and final settlement and complete accord and satisfaction
of all obligations of the City to make reimbursements to the Developer for street
oversizing expenses. It is anticipated by the City that the City's reimbursement, in
accordance with Section 24-112 (d), would not be less than fifty percent (50%) of the
Developer's actual expenses incurred and will be calculated in accordance with the
formula as set forth in Section 24-112 (d). Notwithstanding the foregoing, the parties
anticipate that the City will undertake the design and construction of the Timberline
improvements using, in part, funds of the Developer, in accordance with Paragraphs
II(D)(3) through II(D)(7) below, in which event the reimbursement provisions of this
paragraph would not be applicable.
2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II(D) are "City improvements" (as
defined below) and, as such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the sum of Thirty
Thousand Dollars ($30,000), the contract for the construction of the same must be
submitted to a competitive bidding process resulting in an award to the lowest
responsible bidder; and evidence must be submitted to the City prior to the
commencement of the work showing that the award was given to the lowest responsible
bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the
contract for the construction of the improvements must be insured by a performance
bond or other equivalent security. For purposes of this paragraph, the term "City
improvements" shall mean either (1) existing improvements owned by the City that are
to be modified or reconstructed, or (2) any improvements funded in whole or in part by
the City.
3. The Developer, understands that the City's Adequate Public
Facilities ("APF") provision applies to this Development as set forth in Section 3.7.3 of
the City's Land Use Code ("LUC"). Accordingly, while this Development may proceed
with construction of the on -site and off -site infrastructure improvements as shown on the
Final Development Plan Documents, no building permits shall be issued for the
Development until the provisions of said Section 3.7.3 of the LUC have been satisfied.
This means that certain improvements must be made to the Prospect/Timberline
intersection to increase the capacity of that intersection to service levels that will
accommodate the traffic impacts of the pevelopment. While the City has these
improvements programmed into the City's Capital Improvement Program, that project is
unfunded and unscheduled at this time. Therefore, in order to satisfy the above -
referenced APF requirement, if the Developer proceeds with the Development, the
Developer has elected to fund the City's share of the capacity improvements that must
be made to the Prospect/Timberline intersection (the "APF Improvements"), excluding
street oversizing improvements.. The arrangement under which the Developer intends
to provide said funding is set forth in Paragraphs II(D)(3) through II(D)(7) of this
Agreement. If the Developer provides the funding as specified therein, the City will
construct the APF Improvements at such time as it determines, in its sole discretion,
that the funding provided by the Developer, in combination with such other funds as the
City may consider necessary, is adequate to fully fund the scope of improvements that
the City wishes to make. The cost of the APF Improvements that will need to be paid by
the Developer is presently estimated to be $2,300,000. In order to proceed with the
Development, the Developer hereby agrees to post a bond with the City, or provide
other security in a form acceptable to the City, in said amount. Upon receipt of the
Developers payment in the amount of $100,000 pursuant to Paragraph II(D)(5) below,
the City will procure a design of the APF Improvements. At such time as said design
has been finalized and a final cost estimate of the APF Improvements has been
completed by the City, the Developer hereby agrees to adjust the amount of the
foregoing security to conform to the final cost estimate; provided, however, that in no
event shall the amount of said security be required to exceed the sum of $2,500,000, In
order to then fund the construction of the APF Improvements, the Developer will
thereafter substitute cash for the security as provided in Paragraph II(D)(6) below.
4. Under Section 24-95 of the City Code, the Developer is also
responsible for the construction of the local portion of Timberline Road adjacent to the
Development. In lieu of actually constructing such local portion, the Developer may
satisfy this obligation by making the following payments:
a. Prior to the issuance of building permits for more than 75
dwelling units in Filing One, of the Development (excluding Outlot A), the
Developer shall pay to the City Engineering Department, in cash, the local
street portion of Timberline Road for Filing One excluding Outlot A. The
amount to be paid under this provision shall be determined on the basis of
the final design and estimate to be completed by the City.
b. Prior to the issuance of building permits for more than 75
dwelling units in Outlot A within Filing One of the Development, the
Developer shall pay to the City Engineering Department, in cash, the local
street portion of Timberline Road for Outlot A, the amount of which
payment shall also be determined on the basis of the final design and
estimate to be completed by the City.
5. The Developer's initial payment of its local street portion under
Paragraph II(D)(4) above shall be in the amount of $100,000. Said payment shall be
paid in cash to the City Engineering Department to fund engineering and design work
on the APF Improvements, and, notwithstanding any provision to the contrary in
Paragraph II(D)(4) above, shall be due and payable upon the City's issuance of a
development construction permit for the Development. Said payment ($100,000) shall
be nonrefundable, whether or not the Developer elects to proceed with the
Development, but shall in any event be credited to the Developer's local street portion
referenced in Paragraph II(D)(4) above.
6. The City contemplates bidding the construction contract for the
Timberline Road improvements in the Spring of 2005. Accordingly, on or before
February 28, 2005, if the Developer is then proceeding with construction of the
Development, the Developer hereby agrees to pay the balance of any local street
portion cost that is still due for Filing One and Outlot A under Paragraph II(D)(4) above,
together with the total amount of cash required to be paid by the Developer to fund the
APF Improvements as required under Paragraph II(D)(3) above.
7. The Developer has caused a petition to be filed with the City
Council requesting the formation of a SID in order to provide a mechanism whereby the
Developer can be reimbursed for financing the required APF improvements. The
formation of the SID shall be solely at the discretion of the City Council, and the City in
10
no way guarantees that the SID will, in fact, be established by the Council. If the
Council does choose to establish the SID, the City will utilize the SID assessment
payments of the property owners in the SID, including any SID payments made by the
Developer as a benefited property owner in the District, to repay the Developer for the
total amount actually paid by the Developer for the APF Improvements under this
Agreement. If the SID is not established by the Council, the Developer shall continue to
be obligated to satisfy the APF requirements in the manner described in Paragraphs
II(D)(3) through II(D)(7) hereof in order for the Development to proceed, but only to the
extent such APF requirements specifically apply to the Development. Those portions of
the APF requirements applicable to the SC Group Investments, LLC Property (as
hereinafter defined), if different from those applicable to the Development, shall be the
responsibility of the developer of the SC Group Investments, LLC. Property If the
Developer fails to satisfy such requirements with respect to the Development, the
Development will not be able to proceed. Whether or not the SID is created, the parties
agree that the Developer's posting of the security required under Paragraph II(D)(3)
above, its replacement of the security with cash funds on or before February 28, 2005
under Paragraph II(D)(6) above, and its payment of its local street portion as provided in
Paragraph II(D)(4) above, shall satisfy the APF requirements for the Development. Said
payments shall also satisfy the APF requirements for the development of that certain
neighboring parcel of real property shown on Exhibit "C," attached hereto and
incorporated herein by this reference (the "SC Group Investments, LLC, Property").;
provided, however, that said payments shall satisfy the APF requirements for the SC
Group Investments, LLC Property only with regard to any development proposal
submitted to the City for said property within five (5) years of the date of execution of
this Agreement.
8. The Developer agrees that the Sharp Pointe Drive connection to
Midpoint Drive is required for connectivity and circulation for this Development. The
Developer is obligated to construct its local street portion of the Sharp Pointe Drive
connection which is estimated to cost $120,443. In lieu of this construction; the
Developer shall provide to the City Street Oversizing Fund one-third of said estimate, or
the sum of $40,147.67, prior to the issuance of any building permits for Filing One of the
Development, excluding Outlot A. In lieu of the lump sum payment to the City, the
Developer may pay to the City $1,338.26, at the time of issuance of each of the first 30
building permits in Filing One of the Development, excluding Outlot A. The obligation of
each future filing within the property will be identified and determined in each future
Filing's Development Agreement. Any payment made under this Paragraph shall be in
the amount of said estimate plus such additional amount as is necessary to bring the
estimate current, accounting for actual inflation costs. The inflation factor shall be
calculated using the construction cost index for Denver as published in the Engineering
News Record (ENR) of September, 2003, and the same index published in the ENR in
the month preceding payment of the reimbursement.
9. The Developer agrees to reimburse the City the sum of
$384,061.79, plus a percentage added to recognize the effects of inflation, for the cost
of constructing the Timberline and Drake improvement project adjacent to the Property
11
which was completed by the City in 2001. The inflation factor shall be calculated using
the construction cost index for Denver as published in the Engineering News Record
(ENR) of August, 2001, and the same index published in the ENR in the month
preceding payment of the reimbursement. Payment shall be made to the City prior to
the issuance of the first building permit in this Development.
10. Notwithstanding any provision herein to the contrary, the Developer
shall be responsible for all costs for the initial installation of traffic signing and striping
for this Development, including both signing and striping related to the Developer's
internal street operations and the signing and striping of any adjacent or adjoining local,
collector or arterial streets that is made necessary because of the Development.
11. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
E. Natural Resources
1. The Developer shall ensure that all wetlands and uplands are
properly maintained for a three (3) year period following construction thereof to ensure
that the vegetation and hydrologic regime are fully established. Monitoring of the
vegetation shall occur at least in June and September of the first growing season and in
late summer of the remaining growing seasons. The status and effectiveness of the
vegetation shall be evaluated and the results reported to the City of Fort Collins Natural
Resources Department semi-annually for review.
2. The areas of the Development that are planned to be seeded,
including the wetland mitigation, shall be inspected jointly by the Developer and the City
at specified intervals for three (3) seasons or until determined by the City to be well
established in accordance with the coverage specifications of this paragraph, whichever
occurs first. Areas seeded in the Spring shall be inspected for required coverage each
immediately subsequent Autumn not later than October 1 st. Areas seeded at any other
time shall be inspected each immediately subsequent Summer not later than August
1st. The required coverage for the first inspection shall be ten (10) viable live seedlings
of the specified species per 1000 square centimeters (approximately one square foot),
or fifty percent (50%) coverage of the specified foliage as measured from five feet (5')
directly overhead, with no bare spots larger than 1000 square centimeters. At the time
of the second growing season inspection, there shall be seventy-five percent (75%)
foliage cover of the specified species planted as measured from five (5') directly
overhead. No more than ten percent (10%) of the species noted on the site may be
weedy species as defined by Article III, Section 20-41 of the Code of the City. The
Developer shall be responsible for weed control at all times. Determination of required
coverage will be based on fixed transects each ten meters in length, randomly placed in
representative portions of the seeded areas, with plant species or bare ground/rock/litter
being noted every ten (10) centimeters along each transect. The Developer shall
12
warrant all seeded areas for three (3)-growing seasons from the date of completion.
The Developer shall rework and reseed per original specifications any areas that are
dead, diseased, contain too many weedy species, or fail to meet the coverage
requirement at no additional cost to the City.
3. Fueling facilities shall be located at least one hundred (100) feet
from natural body of water, wetland, natural drainage way or manmade drainage way.
The fuel tanks and fueling area must be set in a containment area that will not allow a
fuel spill to directly flow, seep, run off, or be washed into a body of water, wetland or
drainage way.
4. The Developer shall delineate the Development's property
boundary adjacent to all Limits of Development (L.O.D.) as defined by Article V, Section
5.1.2 of the Land Use Code, including boundaries around existing trees that are to be
undisturbed, with orange construction fence prior to any type of construction, including
overlot grading.
5. Prior to the commencement of any development activities within the
Limits of Development, the Developer shall relocate or eradicate any prairie dogs
inhabiting any portions of the site using City -approved methods as set forth in Chapter 4
of the City Code. If prairie dogs are present fumigation is best done between late April
and early June and relocation shall occur prior to March 1 or after May 31 of any given
year.
F. Soil Amendment
1. In all areas associated with this Development that are to be
landscaped or planted in accordance with the Final Development Plan Documents, and
do not require a building permit, the soils shall be loosened and amended by the
Developer in accordance with Section 3.8.21 of the Land Use Code prior to the
issuance of more than twenty building permits in this Development. Completion of soil
amendments shall include certification by the Developer that the work has been
completed. This certification shall be submitted to the City at least two (2) weeks prior
to the date of issuance of additional building permits in this Development.
G. Ground Water, Subdrains and Water Rights
1. The City shall not be responsible for, and the Developer (for itself
and its successor(s) in interest) hereby agrees to indemnify and hold harmless the City
against, any damages or injuries sustained in the Development as a result of ground
water seepage or flooding, structural damage, or other damage unless such damages
or injuries are proximately caused by the City's negligent operation or maintenance of its
storm drainage facilities in the Development. However, nothing herein shall be deemed
a waiver by the City of its immunities, defenses, and limitations to liability under the
13
Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any
other law.
2. If the Development includes a subdrain system (which for Filings 2
and 3 may incorporate a pump station), any such subdrain system, whether located
within private property or within public property such as street rights -of -way or utility or
other easements, shall not be owned, operated, maintained, repaired or reconstructed
by the City and it is agreed that all ownership, operation, maintenance, repair and
reconstruction obligations shall be those of the Developer or the Developer's
successor(s) in interest. Such subdrain system is likely to be located both upon private
and public property and, to the extent that it is located on public property, all
maintenance, operation, repair or reconstruction shall be conducted in such a manner
that such public property shall not be damaged, or if damaged, shall, upon completion
of any such project, be repaired in accordance with then existing City standards. The
City shall not be responsible for, and the Developer, for itself and its successor(s) in
interest, hereby agrees to indemnify and hold harmless the City against any damages or
injuries sustained in the Development as the result of groundwater seepage or flooding,
structural damage or other damage resulting from failure of any such subdrain system.
If a pump station is incorporated into the subdrain system for Filings 2 and 3 of the
Development, the Developer (for itself and its successor(s) in interest) agrees to
establish and fund an operation and maintenance account through a property owners'
association in an amount mutually acceptable to the City and the Developer.
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
notify the Developer of any such claim within ninety (90) days after the City first receives
written notice of 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.
H. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a
permanent water system is installed by the Developer and approved by the City.
2. Prior to beginning any building construction in Tracts A, B or C
(which represent the multi -family portion of this development), and throughout the build-
14