HomeMy WebLinkAboutOLD TOWN NORTH - Filed DA-DEVELOPMENT AGREEMENT - 2010-04-060
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Scott Doyle, Larimer County, CO
DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this day ofjy�r,
200L , by and between the CITY OF FORT COLLINS, COLORADO, a Municipal
Corporation, hereinafter referred to as the "City"; and Old Town North LLC., a Colorado
limited liability company, hereinafter referred to as the "Developer".
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property"
or "Development") and legally described as follows, to wit:
Old Town North, located in South Half of the Southwest Quarter of Section 1,
Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins, County of
Larimer, State of Colorado.
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, plans (including utility plans), reports and other documents required for
the approval of a final plan according to the City's development application submittal
requirements master list (the "Final Development Plan Documents") copies of which are
on file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and
will further require the installation of certain improvements primarily of benefit to the
lands to be developed and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the Final Development Plan Documents
submitted by the Developer subject to certain requirements and conditions, which
involve the installation of and construction of utilities and other municipal improvements
In connection with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
General Conditions
A. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Properly. For the purposes of this Agreement,
"development activities" shall include, but not be limited to, the following: (1) the actual
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4. No building permits shall be issued on lots 1 thru 6 of Block 9 until
Osiander Street is constructed and accepted in front of said lots and connecting out to
Redwood Street, and the alley behind and/or adjacent. to the lots is constructed and
accepted by the City.
5. The Developer is responsible for constructing Osiander Street
within the right-of-way dedicated as a part of this Development prior to the issuanc
the first building permit in accordance with Section 24 e -95 of the City Code. However, the of
parties agree that the construction of this street will not be completed with this
Development in order to minimize the grading within the Dry Creek 100 year floodway.
Since the Developer is responsible for the construction of the unbuilt portion of said
street and for any costs to remove temporary improvements and rebuild these areas to
final design standards, the Developer agrees to provide to the City a cash deposit in the
amount of $ 41,582.56 to cover the cost of the construction which shall include but not
be limited to the future inlet(s), stormdrain line(s culverts
gutter, sidewalks, crosspans, sidewalk ramps, waterline(s) ()� pavement, subgrade, curb,
p and street trees. The
amount of said funds is the estimated cost to construct said improvements. Fifty
percent (50%) of said amount ($ 20,791.28) shall be deposited with the City prior to the
issuance of more than 52 building permit for this Development and the remaining fifty
percent (50%) of said amount ($ 20,791.28) shall be deposited with the City prior to the
issuance of more than 104 building permits for this Development.
If any portion of this fee is paid by the Developer after the year 2004, the Developer
agrees to pay the amount specified above plus an additional amount to be calculated as
described below to recognize the effect of inflation, with said amount to be increased
each year until payment is completed in full.' Upon payment of each fee required under
this Subsection, the Developer's obligation to pay its share of the costs for constructing
Osiander Street in conjunction with the Development shall be satisfied.
The inflation factor (Inf. Fac.) for each year's increase in the amount of the fee shall be
calculated using the construction cost index for Denver as published in the Engineering
News Record (ENR) for March 2004, as the base index (1-base) and the same index
published in the ENR for the January in each succeeding year immediately preceding
payment (1-year of payment). The formula for calculating said inflation factors shall be
as follows:
Inf. Fac. _ (1-year of payment) — (1-base)
(I -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.
Said improvements to Osiander Street shall be made at such time that the street can
be extended and connected to Redwood Street.
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Except as provided in the following paragraph, any interest earned by the City as
result of said deposit shall be the property of the City to cover administration and
constructs said improvements.. rty
inflation -in order to better assist the City in making reimbursement to the pa who
If the Developer is the party that constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the
Developer the amount deposited plus any interest earned by the City as a result of said
deposit, less 3% of the total amount remaining, (which includes said amount deposited
Plus any interest earned by the City) to be kept by the City to cover its costs for
administration of said deposits.
6. The Developer is responsible for constructing Blondel Street within
the right-of-way dedicated as a part of this Development prior to the issuance of the first
building permit in accordance with Section 24-95 of the City Code. However, the parties
agree that the construction of this street will not be completed with this Development in
order to minimize the grading within the Dry Creek 100 year floodway. Since the
Developer is responsible for the construction of the unbuilt portions of said streets and
for any costs to remove temporary improvements and rebuild these areas to final design
standards, the Developer agrees to design and build the extension of Blondel Street
prior to the issuance of any building permit in Block 6 (Phase 3) of this Development.
The design and construction shall include but not be limited to the future inlet(s),
stormdrain line(s), culvert(s) designed to accommodate the Dry Creek channel flows,
pavement, subgrade, curb, gutter, sidewalks, crosspans, sidewalk ramps, waterline(s)
and street trees.
7. In accordance with Section 24-95 of the City Code the Developer is
responsible for constructing the portion of relocated Vine Drive (from station 5+30 to
station 21+15) adjacent to the site prior to the issuance of the first building permit.
However, the parties agree that the construction of this street will not be completed with
this Development in order to minimize the grading within the Dry Creek floodway. Since the Developer is responsible for the constructio100 year
n the unbk portions
of said streets and for any costs to remove temporary improvements and rebuild these
areas to final design standards, the Developer agrees to provide to the City a cash
deposit in the amount of $ 194,786.60 to cover the cost of the design and construction
which shall include but not be limited to the future inlet(s), stormdrain line(s), culvert(s),
pavement, subgrade, curb, gutter, sidewalks, crosspans, sidewalk ramps, waterline(s)
and street trees. The amount of said funds is the estimated cost to construct said
improvements. Fifty percent (50%) of said amount ($ 97,293.30) shall be deposited
with the City prior to the issuance of more than 52 building
and the remainingf , 9 permit for this Development
iffy percent (50 /o) of said amount ($ 97,293.30) shall be deposited
with the City prior to the issuance of more than 104 building permits for this
Development.
If any portion of this fee is paid by the Developer after the year 2004, the Developer
agrees to pay the amount specified above plus an additional amount to be calculated as
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described below to recognize the effect of inflation, with said amount to be increased
each year until payment is completed in full. Upon payment of each fee required under
this Subsection, the Developer's obligation to pay its share of the costs for constructing
relocated Vine Drive in conjunction with the Development shall be satisfied.
The inflation factor (Inf. Fac.) for each year's increase in the amount of the fee shall be
calculated using the construction cost index for Denver as published in the Engineering
News Record (ENR) for March 2004, as the base index (1-base) and the same index
published in the ENR for the January in each succeeding year immediately preceding
Payment (1-year of 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.
Said improvements to relocated Vine Drive shall be constructed at such time that the
City deems the improvements to be necessary or at such time as improvements are
made to adjacent portions of relocated Vine Drive, whichever shall first occur.
Except as provided in the following paragraph, any interest earned by the City as a
result of said deposit shall be the property of the City to cover administration and
inflation in order to better assist the City in making reimbursement to the party who
constructs said improvements.
If the Developer is the party that constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the
Developer the amount deposited plus any interest earned by the City as a result of said
deposit, less 3% of the total amount remaining, (which includes said amount deposited
plus any interest earned by the City) to be kept by the City to cover its costs for
administration of said deposits.
B. In accordance with Section 24-95 of the City Code the Developer is
responsible for constructing the portion of Redwood Street (from station 44+73 to
station 48+59) adjacent to the site prior to the issuance of the first building permit.
Notwithstanding the foregoing, the Developer shall have the option to postpone this
Redwood Street construction by delivering to the City a cash deposit sufficient to
guarantee completion of the design and construction of the improvement necessary for
Redwood Street to meet City street design standards. The amount of said funds shall
be $ 34,941.68, the estimated cost to design and construct said improvements,
including but not limited to the future inlet(s), stormdrain line(s), culvert(s), pavement,
subgrade, curb, gutter, sidewalks, crosspans, sidewalk ramps, waterline and the street
trees. Fifty percent (50%) of said amount ($ 17,470.84) shall be deposited with the City
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prior to the issuance of more than 52 buildin
remainin fi o 9 permit for this Development and the
9 fty percent (50 /o) of said amount ($ 17,470.84) shall be deposited with the
City prior to the issuance of more than 104 building permits for this Development.
If any fee is paid by the Developer after the year 2004, the Developer agrees to pay the
amount specified above plus an additional amount to be calculated as described below
to recognize the effect of inflation, with said amount to be increased each year until
payment is completed in full. Upon payment of each fee required under this
Subsection, the Developer's obligation to
its share of th
improvements in conjunction with this Development shall be satisfiede Redwood Street
The inflation factor (Inf. Fac.) for each year's increase in the amount of the fee shall be
calculated using the construction cost Index for Denver as published in the Engineering
News Record (ENR) for March 2004, as the base index (1-base) and the same index
published in the ENR for the January in each succeeding year immediate)
payment (1-year of payment). The formula for calculating said inflation factors hall in
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.
The improvements to Redwood Street shall be constructed at such time that the City
deems the improvements to be necessary or at such time as improvements are made to
adjacent portions of Redwood Street, whichever shall first occur.
Except as provided in the following paragraph, any interest earned by the City as a
result of said deposit shall be the property of the City to cover administration and
inflation in order to better assist the City in making reimbursement to the party who
constructs said improvements.
If the Developer is the party that constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the
Developer the amount deposited plus any interest earned by the City as a result of said
deposit, less 3% of the total amount remaining, (which includes said amount deposited
plus any interest earned by the City) to be kept by the City to cover its costs for
administration of said deposits.
9. Prior to the issuance of more than 54 building permits the off -site
sidewalk connection to College Ave (SH 287) shall be built and accepted by the City.
Prior to the issuance of more than 160 building permits the internal trail adjacent to the
detention pond shall be built and accepted by the City.
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10. The traffic impact studies for the site shows the need for a west
bound right turn lane and an east bound left turn lane on existing Vine Drive with
buildout of the Development. in lieu of constructing, these improvements at this time
with the Development the Developer has the option to postpone the turn lane
construction on existing Vine Drive by delivering to the City a cash deposit sufficient to
guarantee completion of the design, right-of-way acquisition and construction of the
improvement necessary for existing Vine Drive to meet City turn lane design standards.
The amount of said funds shall be $ 59,835.71, the estimated ost to design ad
construct said improvements, including but not limited to the futurec nlet(s), stormd ain
line(s), pavement, subgrade, curb, gutter, crosspans, and sidewalk ramps. Said amount
shall be deposited with the City prior to the issuance of any building permit for this
Development.
If any fee is paid by the Developer after the year 2004, the Developer agrees to pay the
amount specified above plus an additional amount to be calculated as described below
to recognize the effect of inflation, with said amount to be increased each year until
payment is completed in full. Upon payment of each fee required under this
Subsection, the Developer's obligation to pay its share of the Redwood Street
improvements in conjunction with this Development shall be satisfied.
The inflation factor (Inf. Fac.) for each year's increase in the amount of the fee shall be
calculated using the construction cost index for Denver as published in the Engineering
News Record (ENR) for March 2004, as the base index (1-base) and the same index
published in the ENR for the January in each succeeding year immediately preceding
payment (1-year of 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.
The improvements to existing Vine Drive shall be constructed at such time that the City
deems the improvements to be necessary or at such time as improvements are made to
adjacent portions of existing Vine Drive, whichever shall first occur.
Except as provided in the following paragraph, any interest earned by the City as a
result of said deposit shall be the property of the City to cover administration and
inflation in order to better assist the City in making reimbursement to the party who
constructs said improvements.
If the Developer is the party that constructs said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return to the
Developer the amount deposited plus any interest earned by the City as a result of said
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deposit, less 3% of the total amount remaining, (which includes said amount deposited
plus any interest earned by the City) to be kept by the City to cover its costs for
administration of said deposits.
11. Footing and Foundation permits shall be required on all lots. Prior
to the issuance of a full building permit for any lot a survey shall be done by a Colorado
licensed surveyor to verify that the foundation was properly placed. A copy of the
survey shall be provided to the Building Department and the Engineering Chief
Construction Inspector prior to the issuance of the full building permit on said lot. If the
survey shows that any portion of the foundation has not been properly placed (i.e. the
foundation is not within the required setbacks or extends into an easement) that portion
or portions of the foundation shall be removed and a new foundation put in place that
properly fits within the building setbacks/ building envelope and does not extend into the
platted easements.
12. The "G" lots as indicated on the plat are for garages only. No
dwelling space or dwelling units can be provided on these lots.
13. The 30 foot gas line easement crosses several lots within this
Development. No building permits shall be issued on these lots (lots 1, 2, 3, 4, 5, 6, G1,
G2 of Block 5, lots 4, 5, 6, 20, 21, 22 of Block 4, lots 9, 10, 18, 19, 20 of Block 3, and
lots 17, 18, 19, 20 of Block 2) until such time as a recorded copy of the easement
vacation or quit claim deed for the gas easement is provided to the City Engineering
Department showing the vacation or abandonment of this easement by the gas
company.
14. No construction work shall be allowed and no building permits shall
be issued within Phase 2 or Phase 3, except for overlot grading as shown on the Final
Development Plan Documents.
15. Any vehicular access for any lot in this Development shall be off of
the adjacent alley(s).
16. No construction work including overlot grading shall occur on the
property to the South of Tract III (outside the platted boundaries) until a drainage
easement is dedicated to and accepted by the City.
17. No construction work including overlot grading can occur on the
portion of land owned by Lyle Carpenter and under condemnation proceedings until the
City has been granted possession of the property by the Court.
18. The 10 foot temporary asphalt path/ trail (approximate stations
46+50 to 49+50) North of Cajetan Street as shown on the interim Redwood Street plans
shall be constructed with this Development. Construction of the path shall be done in a
timely manner in order to reduce the amount of time the path is unavailable for use; and
continuous work, excluding weather related delays, shall be performed. If the City
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determines that ongoing, continuous construction of the path is not occurring, the City
may withhold building permits and/or certificates of occupancy to ensure performance.
19. No more than 108 building permits shall be issued before the
ultimate Redwood Street improvements have been constructed in accordance with the
Final Development Plan Documents and is usable as an access point into the
Development.
20. At such time as the ultimate Redwood Street improvements are in
place the temporary emergency access is no longer needed and can be removed and a
request submitted to vacate the easement.
21. The ultimate Redwood Street alignment is within right-of-way that
was purchased from Colorado Department of Transportation (CDOT). As a part of the
purchase agreement CDOT was allowed to use the building that exists within the right-
of-way until CDOT's new facilities are built whereupon CDOT would vacate the existing
building. CDOT's new facilities are built and CDOT has vacated the existing building
within the Redwood Street right-of-way. The Developer shall be responsible for the
removal of the building prior to starting work on the ultimate Redwood Street
improvements. Reimbursement of a portion of these costs may be paid utilizing Street
Oversizing Funds in accordance with Section 24-112 of the City Code and Paragraph
II.D.1 of this agreement.
22. The Developer may enter into a reimbursement agreement with the
City in accordance with Section 3.3.2(F)(2) of the Land Use Code for the "local street
portion" -of streets being built to city standards adjacent to undeveloped or
redevelopable property. (This may be applicable for improvements to Redwood Street
and Jerome Street.) This shall apply only if the Developer is the party to construct such
improvements.
23. The cost of the ultimate Redwood Street improvements shall be
included within the security amount provided by the Developer to the City to assure said
infrastructure completion.
24. Two points of access into the Development site shall be in place at
all times once construction work starts in the area north of the Lake Canal. Such access
shall be adequate to handle any emergency vehicles or equipment, and the access
shall be kept open during all phases of construction. Such access 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 access. The turnaround is not required if an exit point is
provided at the end of the access. Prior to the construction of said access(es), a plan
for the access(es) 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 access or accesses are at any
time deemed inadequate by the Poudre Fire Authority or City Engineer, the access(es)
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brought into compliance, the City and/or the Poudre Fire Authority may issue shall be promptly brought into compliance and until such time that the accesses) are
work order for all or part of the Development, a stop
25. Prior to the issuance of any building permit, two acceptable access
points (Jerome Street and the emergency access or Jerome Street and Redwood
Street) as shown on the Final Development Plan Documents shall be constructed and
accepted by the City (excluding the portion of Redwood Street that is not to be built at
this time in accordance with Paragraph 8 above).
26. Since the permanent alley and street improvements connecting
alley 'Y' and Blondel Street can not be built at this time and since the Developer. has
proposed an interim solution that provides a connection between these streets and will
allow the development of the lots abutting alley 'Y', the Developer shall be responsible
for the maintenance of the interim improvements. The Developer shall be responsible
for maintaining of all improvements that are not a part of the final street and alley
design including the retaining wall, guardrail, concrete pan and the pavement
connecting alley 'Y' with Blondel Street.
27. 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.
28. 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.
29. The construction of Redwood Street is contemplated to be a City
Street Oversizing Project. The City's management of the construction of the roadway is
at the City's convenience; however this does not relieve the Developer's responsibility to
have this facility in place prior to the issuance of any building permits for the project.
The Developer shall contribute, in cash, the cost of the local street portions of the
roadway improvements (Local Street Contribution), estimated by the developers
engineer to be $121,000. At such time as the City receives the Local Street
Contribution and copies of the Final Development Plan Documents, it will begin the
construction process in accordance with normal City policies, including City Council
action for appropriations, project review, utility coordination and competitive bidding.
E. 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
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water seepage or flooding, structural damage, or other damage unless such damages
storm drainage facilities in the Development. However, nothing herein shall be deeor injuries are proximately caused by the City's negligent operation or maintenance of its
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a waiver by the City of its Immunities, defenses, and limitations to liability under the
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 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
successors) in interest, hereby agrees to indemnify and hold harmless the City against
any damages or injuries sustained in the Development as the result of groundwater
seepage or flooding, structural damage or other damage resulting from failure of any
such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and
hold harmless the City against any damages or injuries to water rights caused, directly
or indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided the Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice.of any such claim to the Developer within ninety (90) days after the City first
receives notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause the forgoing indemnities and hold harmless agreements by the
Developer to not apply to such claim and such failure shall constitute a release of the
foregoing indemnities and hold harmless agreements as to such claim.
F. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a
permanent water system is installed by the Developer and approved by the City.
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G. Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall be required to obtain a Footing and Foundation permit after 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. The
aforesaid facilities shall include but not be limited to all mains, lines, services, fire
hydrants and appurtenances for the Phase as said facilities are shown on the Final
Development Plan Documents.
. 2. The requirement set out in paragraph one (1) above is necessary to
assure the proper placement of any foundation. After the foundation has been built, a
survey shall be done by a Colorado licensed surveyor to verify its proper location.
Copies of the survey shall be provided to the Building Department and the Engineering
Chief Construction Inspector prior to the issuance of the full building permit on said lot.
If the survey shows that the foundation has not been properly placed, the foundation or
the portion of the foundation that has not been properly placed shall be removed and a
new foundation put in place that properly fits within the building setbacks/ building
envelope and does not extend within the platted easements.
H. Natural Resources
1. The Developer shall ensure that all wetlands and uplands are
properly maintained for a two (2) 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. If the wetlands have been established
in accordance with the approved Mitigation Plan for the Old Town North Project
Detention Pond, they shall be approved and accepted by the City Natural Resources
Director. If the wetlands have not been established in accordance with the approved
Mitigation Plan for the Old Town North Project Detention Pond, then the Developer shall
promptly take such steps as are necessary to bring the wetlands into conformance with
the approved Mitigation Plan for Old Town North Project Detention Pond.
2. The Developer shall be responsible for implementing mitigation
measures to compensate for the complete removal 0.177 acres of wetlands on this
Development. (If said wetland boundaries are found to be different from those shown
on the Final Development Plan Documents, the Developer shall modify the Final
Development Plan Documents through the amendment process as established in
Section 2.2.10 of the Land Use Code. Verification of said wetland boundaries and the
completion of revisions to the Final Development Plan Documents, if necessary, shall
be completed prior to the issuance of any building permits for phase one of the
Development.)
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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 this agreement. In the event that the Developer commences or
performs any construction pursuant hereto after the passage of three (3) years from the
date of 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 aggregate 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.
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
2
3. The Developer shall accomplish said mitigation by the creation of
wetlands through the establishment of hydrologic regime and wetland vegetation.
Construction of said 0.23 acres of wetland mitigation shall be completed prior to the
building per
issuance of more than seventy-five percent (75%) of the total bmits for phase
one of this Development.
4. All seeded areas shall be inspected jointly by the Developer and
the City at specified intervals. Areas seeded will be inspected for 2 seasons or until well
established, whichever first occurs. Areas seeded in the spring shall be inspected for
required coverage the. following falls not later than October 1. Areas seeded at any
other time shall be inspected the following summers not later than August 1. The
required coverage for the first inspection shall be ten (10) viable live seedlings of the
specified species per 1000 square centimeters (approximately one square foot), or fifty
percent (50%) coverage of the specified foliage as measured from five feet (5') directly
overhead, with no bare spots larger than 1000 square centimeters. At the time of the
second growing season inspection, there shall be seventy-five percent (75%) foliage
cover of the specified species planted as measured from five (5') directly overhead. No
more than ten percent (10%) of the species noted on the site may be weedy species as
defined by Article 111, 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 warrant all seeded
areas for two growing seasons from the date of completion. The Developer shalt rework
fications any areas that are dead, diseased, contain too
and reseed per original speci
many weedy species, or fail to meet the coverage requirement at no additional cost to
the City.
5. Fueling facilities shall be located at least one hundred (100) feet
from any City of Fort Collins Natural Area property, 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.
6. The Developer shall delineate the all Limits of Development,
including boundaries around wetlands and existing trees that are to be undisturbed, with
orange construction fence prior to any type of construction, including overlot grading.
7. Prior to any grading or other construction, any prairie dogs
inhabiting portions of the site within the Limits of Development (L.O.D.) shall be
relocated or eradicated by the Developer. City -approved methods as set forth in
Chapter 4 of the City Code shall be used, and, when applicable, the use of methods
reviewed and approved by the Colorado Division of Wildlife. 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.
20
1. Trails
1. In order to guarantee the completion of the Developer's share of
the regional trail system from Jerome Street to Redwood Street the Developer shall
escrow funds to be deposited with the City in the form of cash, bond, nonexpiring letter
of credit or other form of City approved security sufficient to guarantee completion of
said construction. The amount of said funds shall be the estimated cost to construct
said improvements, which estimate shall be prepared by the Developer and approved
by the City, plus an additional 25% of the estimate to cover any contingencies and
unexpected costs. Said amount shall be deposited with the City prior to the issuance of
any building permit for this Development. If the Developer is the party that constructs
said improvements, then upon completion of said improvements and acceptance of
them by the City, the City shall return to the Developer the amount deposited plus any
interest earned by the City as a result of said deposit, less 3% of the total amount
remaining, (which includes said amount deposited plus the interest earned by the City)
to be kept by the City to cover its costs for administration of said deposit.
2. The Developer shall build the aforesaid regional trail to a width of ten
(10) feet in accordance with City trail standards (5" thick, fiber mesh and 2 Ibs/sack
Yosemite Brown color) as shown on the Final Development Plan Documents. The City
shall reimburse the Developer for the cost of two (2) feet of the width of the trail,
including the cost of adding the color and fiber mesh for said two (2) foot width, after
acceptance of the trail by the City. (The regional trail is the ten (10) foot wide trail that
runs from Jerome Street to Redwood Street). Construction of the trail shall be done in a
timely manner; and continuous work, excluding weather related delays, shall be
performed. If the City determines that ongoing, continuous construction of the trailis.
not occurring, the City may withhold building permits and/or certificates of occupancy to
ensure performance. Upon completion of dedication of a 30 foot wide trail easement to
the City, and upon construction by the Developer of the trail as described above and as
shown on the Final Development Plan Documents, and upon acceptance by the City of
the dedication and the construction, the City shall be responsible for the maintenance of
said trail, except for any damage done to said trail by the Lake Canal Company, (and/or
its representatives or assignees) in its use of the trail and/or adjacent areas for
maintenance, access or any other activities associated with the adjacent Lake Canal,
which damage shall be the responsib!14 of the Developer to repair and/or replace. The
Trail Easement shall be dedicated to the City in a format acceptable to the City and the
Developer shall be responsible for all costs associated with the preparation of and the
payment of any fees associated with the processing and filing of said document.
J. Soil Amendment
In all areas associated with Phases 1 and 2 of 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. The soil
amendment for these areas within Phases 1 and 2 of this development that do not
21
require a building permit can also be done in phases. In the areas that do not require a
building permit within any particular block within Phase 1 of this development and that
are to be landscaped, the soil amendment shall be completed prior to the issuance of
any certificate of occupancy in that block. In the areas that do not require a building
permit within any particular block within Phase 2 of this development and that are to be
landscaped, the soil amendment shall be completed prior to the issuance of any
certificate of occupancy in that block. Completion of the soil amendment requirement
for both phases 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 the requested certificate of occupancy.
K. 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 issuan
of the Development Construction Permit. ce
L. Maintenance and Repair Guarantees
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 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.
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.
22
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.
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
23
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 to: (a) terminate the Agreement and seek damages; (b) treat the
Agreement as continuing and require specific performance or; (c) avail itself of any
other remedy at law or equity.
K. In the event of the default of any of the provisions hereof by either party
which shall require the party not in default to commence legal or equitable action
against said defaulting party, the defaulting party shall be liable to the non -defaulting
party for the non -defaulting party's reasonable attorney's fees and costs incurred by
reason of the default. Nothing herein shall be construed to prevent or interfere with the
City's rights and remedies specified in Paragraph III.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement
shall not be construed as or deemed to be an agreement for the benefit of any third
party or parties, and no third party or parties shall have any right of action hereunder for
any cause whatsoever.
M. It is expressly understood and agreed by and between the parties hereto
that this Agreement shall be governed by and its terms construed under the laws of the
State of Colorado and the City of Fort Collins, Colorado.
24
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: Old Town North LLC
Attn: Monica Sweere, Manager
P.O. Box 270053
Fort Collins, Co 80527
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.
THE CITY OF FORT COLLINS, C
a Municipal Corooration A
25
ATTEST:
qo,,UL % - Yk
City Clerk
APPROVED AS TO C NTENT:
l
City Engineer
APPROVE 4CS�-O FORM:
puty City Attorney
DEVELOPER:
Old Town ND(th ZO
a-6elor limited
liability co*a
Monica Sweere, is nager/Member
26
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.
27
EXHIBIT "B"
Not Applicable
28
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.
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.
29
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.
H. All storm drainage facilities shall be so designed and constructed by the
Developer as to protect downstream and adjacent properties against injury and to
adequately serve the Property (and other lands as may be required, if any). The
Developer shall .meet or exceed the minimum requirements for storm drainage facilities
as have been established by the City in its Drainage Master Plans and Design Criteria.
The Developer, for itself and its successor(s) in interest, does hereby indemnify and
hold harmless the City from any and all claims that might arise, directly or indirectly, as
a result of the discharge of injurious storm drainage or seepage waters from the
Property in a manner or quantity different from that which was historically discharged
and caused by the design or construction of the storm drainage facilities, except for (1)
such claims and damages as are caused by the acts or omissions of the City in
maintenance of such facilities as have been accepted by the City for maintenance; (2)
errors, if any, in the general concept of the City's master plans (but not to include any
details of such plans, which details shall be the responsibility of the Developer); and (3)
specific written or otherwise documented directives that may be given to the Developer
by the City. The City agrees to give notice to the Developer of any claim made against
it to which this indemnity and hold harmless agreement by the Developer could apply,
and the Developer shall have the right to defend any lawsuit based on such claim and to
settle any such claim provided Developer must obtain a complete discharge of all City
liability through such settlement. Failure of the City to give notice of any such claim to
the Developer within ninety (90) days after the City first receives a notice of such claim
under the Colorado Governmental Immunity Act for the same, shall cause this indemnity
and hold harmless agreement by the Developer to not apply to such claim and such
failure shall constitute a release of this 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.
1. The Developer shall pay storm drainage basin fees in accordance with
Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for
credit or City repayment under the provisions of Chapter 26 are described together with
the estimated cost of the improvements on the attached Exhibit "B," which
improvements, if applicable, shall include right-of-way, design and construction costs.
See Section Ii.C, Special Conditions, Storm Drainage Lines and Appurtenances, for
speck instructions.
Further, the Developer agrees that the City shall not be liable to the Developer during
the warranty period, for any claim of damages resulting from negligence in exercising
engineering techniques and due caution in the construction of cross drains, drives,
structures or buildings, the changing of courses of streams and rivers, flooding from
natural creeks and rivers, and any other matter whatsoever on private property. Any
and all monetary liability occurring under this paragraph shall be the liability of the
Developer.
The obligations of the Developer pursuant to the "maintenance guarantee" and "repair
guarantee" provisions set forth above may not be assigned or transferred to any other
person or entity unless the warranted improvements are completed by, and a letter of
acceptance of the warranted improvements is received from the City by, such other
person or entity.
30
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 give notice of any such claim
to the Developer within ninety (90) days after the City first receives a notice of such
claim under the Colorado Governmental Immunity Act for the same, shall cause this
indemnity and hold harmless agreement by the Developer to not apply to such claim
and such failure shall constitute a release of this indemnity and hold. harmless
agreement as to such claim.
L. The Developer acknowledges and agrees that the City, as the owner of
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
4
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
Not Applicable
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1- The approved Final Development Plan Documents for this
Development call for the phasing of the construction of storm drainage improvements.
The Developer shall complete these improvements in accordance with said approved
Final Development Plan Documents. The completion of these improvements will result
in the overall site drainage certification for this Development being 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 approved Final
Development Plan Documents, shall be completed by the Developer in accordance with
said Final Development Plan Documents prior to the issuance of more than 104 building
permits in Phase 1 of this Development. Phase 1 certification shall include all on -site
drainage improvements associated with Phase 1 construction as shown on the Final
Development Plan Documents for this development which include the outfall from the
proposed detention facilities associated with Phase 1, to the Dry Creek drainage
channel. Additionally the Developer shall complete the grading of the on -site detention
pond shown as being part of Phase 1 of this Development prior to the issuance of more
than 52 building permits in Phase 1 of this Development. The Developer shall be
required to inform the City as soon as the grading of the pond is completed and the City
shall inspect the detention pond and ensure compliance with this requirement prior to
issuance of more than 52 building permits in Phase 1 of this Development.
b) Detailed utility and grading plans for Phase 2 of this
Development shall be submitted and approved by the City prior to issuance of any
building permits in Phase 2 of this Development.
c) Detailed utility and grading plans for Phase 3 of this
Development shall be submitted and approved by the City prior to issuance of any
building permits in Phase 3 of this Development. Phase 3 construction and certification
shall include the construction and certification of the regional drainage channel and
culverts associated with Phase 3 of this development as shown on the Final
Development Plan Documents. Additionally, no issuebuilding
in
Phase 3 of this development until the floodway designation that currrelnttlly exist don
these lot has been officially removed by the City of Fort Collins and FEMA and a
revised floodplain and floodway mapping has been accepted and published.
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 the 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 any phase being
certified.
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 approved 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 approved 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 $ 23,728.88 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion control measures
shown on the approved Final Development Plan Documents. Said security deposit(s)
shall be made in accordance with the criteria set forth In the City's Storm Drainage
Design Criteria and Construction Standards (Criteria). If, at any time, the Developer
fails to abide by the erosion control provisions of the approved 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 I11.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 buildings 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 and all lots:
a. 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
specked 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 approved such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
6. The Developer shall restrict construction activities for: the storm
drainage improvements associated, with this Development to the limits of construction
as shown on the Final Development Plan Documents. The contractor shall re -seed
and/or restore all areas that are disturbed during construction of the storm drainage
improvements in accordance with the Final Development Plan Documents promptly
following construction. The Developer shall ensure that all work related to the restoring
of disturbed areas is done expeditiously and in accordance with the Final Development
Plan Documents and that no grading is done outside of the approved areas as .shown
on the Final Development Plan Documents.
7. The Developer shall obtain a Floodplain Use Permit from the City
prior to commencing any construction activity within the Dry Creek Floodplain Limits as
delineated on the Final Development Plan Documents for this Development.
Additionally, the Developer shall obtain a floodplain use permit prior to obtaining any
building permit for any lot that is located within the Dry Creek floodplain as delineated
on the Final Development Plan Documents for this Development. Prior to the issuance
of a Certificate of Occupancy for any structure located within the delineated Dry Creek
floodplain, the Developer shall submit and obtain approval of a FEMA elevation
certificate that shows that the structure built complied with all FEMA floodplain
regulations. Such a certificate shall also show that the structure complies with all the
details and elevation tables for floodplain lots as shown on the Final Development Plan
Documents for this Development.
8. The Developer is obligated to maintain all on -site storm drainage
facilities not accepted for maintenance by the City and all off -site storm drainage
facilities not accepted for maintenance by the City serving this Development. The
Developer shall ensure that detention facilities are maintained and that the pumping
system that is installed in conjunction with the permanent retention facility is in good
operational condition at all times. The Developer shall further guarantee that the
retention/detention pond shall be maintained in a way that will guarantee that it would
not become a nuisance to the public, and shall make sure that the pond does not have
a permanently exposed water surface.
9. The Developer shall obtain a permit for grading and construction of
improvements within the Lake Canal right of way, or enter into a contract with the Lake
Canal Company for grading and construction within their right of way. Such permit/
contract shall include the Developer's Agreement to indemnify and hold harmless the
Lake Canal Ditch Company ("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
causes 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 a result of a negligent act or acts of the Irrigation
Company.
10. No construction activities shall be undertaken within the Dry Creek
Floodway as delineated on the Final Development Plan Documents. The boundaries of
the floodway area shall be staked and posted as a no disturbance area. The area
encompassed within the floodway limits cannot be used during construction for
equipment storage, material storage, or temporary storage of fill dirt. Failure to comply
with such a condition shall result in the stoppage of work on the site, withholding of
building permits and/or certificates of occupancy in this Development and the
implementation of all other applicable City of Fort Collins floodplain and floodway
regulations.
D. Streets.
1 • Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Redwood
Street and Jerome Street for those portions of said street abutting the Property as
shown on the Final Development Plan Documents. Reimbursement for Redwood Street
and Jerome Street shall be for oversizing the from local (access) standards to collector
standards including the demolition of the building within the Redwood Street right-of-
way. 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. !t is anticipated
by the City that the City's reimbursement, in accordance with Section 24-112 (d), would
not be less than fifty percent (50%) of the Developer's actual expenses incurred and will
be calculated in accordance with the formula as set forth in Section 24-112 (d).
2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II(D) are "City improvements (as
defined below) and, as such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the sum of Thirty
Thousand Dollars ($30,000), the contract for the construction of the same must be
submitted to a competitive bidding process resulting in an award to the lowest
responsible bidder; and evidence must be submitted to the City prior to the
commencement of the work showing that the award was given to the lowest responsible
bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the
contract for the construction of the improvements must be insured by a performance
bond or other equivalent security. For purposes of this paragraph, the term "City
improvements" shall mean either (1) existing improvements owned by the City that are
to be modified or reconstructed, or (2) any improvements funded in whole or in part by
the City.
3. No building permits shall be issued on lots 8 and 9 of Block 9 until
such time as the alley connection through to Oslander Street is built and accepted by
the City, and the temporary turnaround easement is vacated.
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