HomeMy WebLinkAboutBANNER HEALTH MEDICAL CAMPUS - Filed DA-DEVELOPMENT AGREEMENT - 2013-10-11RECEPTION#: 20130076247,10/0712013 at
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Angela Myers, Clerk & Recorder, Larimer
County, CO
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement"), is made and entered
into this � day of 013, by and between the CITY OF FORT
COLLINS, COLORADO, a M nicipal Corporation, hereinafter referred to as the "City";
and Banner Health, Inc., an Arizona nonprofit Corporation hereinafter referred to as the
"Developer"; and Imago Enterprises, Inc., a Colorado Corporation hereinafter referred to
as the "Owner."
WITNESSETH:
WHEREAS, the Developer has entered into an agreement with the Owner to
acquire ownership 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:
Lot 1, Banner Health Medical Campus located in Northeast Quarter of Section 4,
Township 6 North, Range 68 West of the 6th P.M., City of Fort Collins, County of
Larimer, State of Colorado.
WHEREAS, the Owner is also the owner of property adjacent to the
Development on which certain storm drainage facilities will be installed which are
necessary to serve both the Development and the Owner's adjacent property; and
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
Property 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 development of 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:
City Clerk's Office, Fort Collins, Colorado
responsible bidder; and evidence must be submitted to the City prior to the
commencement of the work showing that the award was given to the lowest responsible
bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the
contract for the construction of the improvements must be insured by a performance
bond or other equivalent security. For purposes of this paragraph, the term "City
improvements" shall mean either (1) existing improvements owned by the City that are
to be modified or reconstructed, or (2) any improvements funded in whole or in part by
the City.
4. The Developer agrees to reimburse the City the sum of $49,961.56,
plus a percentage added to recognize the effects of inflation, for the Developments local
street portion of the cost to widen Harmony Road adjacent to the Property. The inflation
factor ("Inf. Fac.") for each year's increase shall be calculated using the construction
cost index for Denver as published in the Engineering News Record ("ENR") of June,
2010, as the base index ("I -base") and the same index published in the ENR in the
month preceding payment of the reimbursement ("I -year of payment"). Payment shall
be made to the City prior to the issuance of the first building permit. The formula for
calculating said inflation factors shall be as follows:
Inf. Fac. = (1-year of payment) — (I -base)
(1-base)
The amount to be added to the reimbursement amount to compensate for inflation shall
be equal to the amount of the reimbursement amount times the inflation factor. Said
amounts added to compensate for inflation shall not reduce the total (principal) amount
due.
5. The Developer is responsible for constructing the following two right
turn lanes on Harmony Road: 1) right turn lane onto Lady Moon Drive and 2) right turn
lane onto Cinquefoil Lane, prior to the issuance of the first certificate of occupancy.
The Harmony Road Improvements for the right turn lanes onto Lady Moon Drive and
Cinquefoil Lane are made necessary not only because of the Development, but also
because of other development in the same vicinity, and because of the overall growth
and development of the region round about, and that said improvements will benefit the
community at large. Accordingly, the parties agree that the costs for the right turn lanes
shall be satisfied in the following manner:
Right turn lane onto Lady Moon Drive
a. The Developer agrees to design and complete construction of
the turn lane at the Developer's expense.
b. The City shall reimburse the Developer for twenty-one percent
(21%) of the applicable costs for the design and construction of
the turn lane. The Developer shall submit receipts and
documentation as identified in Section 24-112 of the City Code.
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c. The Developer is responsible for thirty-six percent (36%) of the
costs for the design and construction of the turn lane.
d. The Developer may request reimbursement from adjacent future
development for the remaining forty-three percent (43%) of the
turn lane cost as identified in Section 3.3.2(F)(2) of the Land
Use Code.
e. The percentages of costs have been determined and agreed
upon based upon an approved Traffic Impact Study submitted
by the Developer.
Right turn lane onto Cinquefoil Lane
a. The Developer agrees to design and complete construction of
the turn lane at the Developer's expense.
b. The City agrees to reimburse the Developer for 100% of the
cost to design and construct the turn lane ("Cinquefoil Turn
Lane Cost") onto Cinquefoil lane after final acceptance of the
turn lane. Documentation and information shall be provided to
the City as identified in Section 3.3.2(F)(2) of the Land Use
Code with the request for payment.
c. Prior to the issuance of a building permit in Phase 2 of the
Development the Developer agrees to reimburse the City for
eight percent (8%) of the Cinquefoil Turn Lane Cost (the
Developer's portion) plus a percentage to recognize the costs of
inflation. The inflation factor ("Inf. Fac.") for each year's
increase shall be calculated using the construction cost index
for Denver as published in the Engineering News Record
(°ENR") with the date of the Developer's submittal letter
requesting reimbursement for the Cinquefoil Turn Lane Cost, as
the base index ("I -base") and the same index published in the
ENR in the month preceding payment of the reimbursement ("-
year of payment"). Payment shall be made to the City prior to
the issuance of the first building permit in Phase 2. 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 reimbursement amount to
compensate for inflation shall be equal to the amount of the
reinbursement times the inflation factor. Said amounts added
to compensate for inflation shall not reduce the total (principal)
amount due.
d. Based upon the approved Traffic Impact Study submitted by the
Developer the adjacent developments will contribute ninety
percent (90%) of the traffic to this turn lane and as such the City
can file reimbursement agreements against these adjacent
properties.
6. 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.
7. 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 Owner has dedicated an easement to the City for the off -site
detention pond and associated facilities (the "Pond Easement"). The Final
Development Plan Documents identify areas within the Pond Easement area which are
not to be disturbed in order to prevent environmental damage to the natural habitats or
features in the ("Natural Habitat Buffer Zone"), except for the purposes allowed within
the Final Development Plan Documents, which activities are allowable under Section
3.4.1 (E). Neither the Developer nor its contractor shall intrude upon, remove, fill,
dredge, build upon, degrade or otherwise alter natural habitats and features unless
identified in the Final Development Plan Documents.
2. The Developer shall ensure that all landscaping with the Natural
Habitat Buffer Zone is properly maintained for a three (3) year period following
construction thereof to ensure that the vegetation is fully established.
a. The status and effectiveness of the vegetation shall be
evaluated and the results reported to the City of Fort Collins
Environmental Planner, Planning Department semi-annually
for review.
b. Developer shall provide to the City prior to the issuance of
any Certificate of Occupancy an acceptable form of security
(cash, bond, letter of credit) to guarantee completion of the
buffer zone landscape improvements. An estimate for said
improvements shall be prepared by the Developer and
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approved by the City. Said estimate of landscape
improvements shall constitute plant material and irrigation
system improvements at 67% of the construction value to be
held until said landscape improvements are constructed and
accepted by the City. The City shall return the security to the
Developer upon the Developer's installation of the landscape
improvements and the City's acceptance thereof. If the
uplands have not been established in accordance with the
approved plans, then the Developer shall promptly take such
steps as are necessary (and present to the city
Environmental Planner a written proposal of steps and
timing) to bring the buffer zone into conformance with the
approved plans. If the Developer does not take action to
bring the buffer zone plantings into conformance with the
approved plans, the City shall use the security provided by
the Developer to install said landscape improvements and
the Developer shall forfeit any right to the security.
3. The areas of the Development that are planned to be seeded, 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 specked species per
1000 square centimeters (approximately one square foot), or fifty percent (50%)
coverage of the specified foliage as measured from five feet (6) 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 feet (6) 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 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.
4. Prior to issuance of the Certificate of Occupancy the Developer
shall provide a weed management plan prepared by a qualified professional and
reviewed and approved by the City's Environmental Planner. The Developer shall also
provide to the City prior to issuance of the Certificate of Occupancy an acceptable form
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of security (cash, bond, or letter of credit) to guarantee completion of the monitoring
outlined in the above -referenced plan. An estimate for said monitoring shall be prepared
by the Developer and approved by the City.
5. 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.
6. 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.
7. Prior to the commencement of any development activities within the
Limits of Development (L.O.D.), 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 any certificate of occupancy 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 any certificate of occupancy 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
the City's 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 Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or
under any other law.
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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
successor(s) in interest, hereby agrees to indemnify and hold harmless the City against
any damages or injuries sustained in the Development as the result of groundwater
seepage or flooding, structural damage or other damage resulting from failure of any
such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and
hold harmless the City against any damages or injuries to water rights caused, directly
or indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided the Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice of any such claim to the Developer within ninety (90) days after the City first
receives notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause the forgoing indemnities and hold harmless agreements by the
Developer to not apply to such claim and such failure shall constitute a release of the
foregoing indemnities and hold harmless agreements as to such claim.
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 a
reasonable accessway to each building. 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
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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.
3. The existing sidewalk adjacent to the Development along Lady
Moon Drive shall be kept open and accessible during all phases of construction of the
Development.
I. Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain Footing and Foundation permits upon the
installation of those improvements shown on Right of Way Schedule Plans Exhibit of the
Final Development Plan Documents.
2. The parties acknowledge that sanitary sewer improvements are not
required for issuance of Footings & Foundation permits. Prior to issuance of the
Footings & Foundation permit, Developer's engineer shall validate the invert elevation at
the exiting sanitary sewer connection point and invert of the new sanitary sewer main
pipe exiting the building to ensure compliance with slope requirements for such
improvements.
J. Building Permits
1. Notwithstanding any provision in this Agreement to the contrary,
sidewalks, right turn lane construction on Harmony Road (including any associated curb
and gutter), and the median work in Lady Moon Drive shall not be required as a
condition of issuance of a building permit for the Development but shall be required to
be installed prior to the issuance of any certificate of occupancy for the Development.
2. Prior to the issuance of any building permit for the Development, all
sanitary sewer improvements required by the Final Development Plan Documents shall
be completed by the Developer and accepted by the City, ensuring that the sewer main
from the building to the existing point of connection fully complies with the Final
Development Plan Documents and all applicable provisions of the Municipal Code.
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, prior to the Developer commencing construction. The Developer shall pay
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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.
L. 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. 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.
M. The Final Development Plan Documents shall remain in effect through
completion of all phases of development of the Development but only upon the
occurrence of both of the following events: (i) completion of the public improvements
shown on the Final Development Plan Documents within the three (3) year time period
described in Section 2.2.11(D)(3) of the Land Use Code, and (ii) issuance of one
building permit for the Development. Accordingly, once (i) and (ii) above are met,
development of all future phases of the Development shall not be subject to changes in
the City Code and the Land Use Code which are inconsistent or in conflict with the
approved Final Development Plan Documents or any portion thereof. By way of
example, but not limitation, the Low Impact Development requirements of the Larimer
County Urban Area Street Standards and the City's Stormwater Criteria Manual
requiring parking areas to have a minimum of twenty-five percent (25%) permeable
pavement area, which requirements were adopted after submission of the Preliminary
Development Plan for the Development and which are in conflict with the Final
Development Plan Documents, shall not apply to future phases of the Development.
III. Miscellaneous
A. An additional phase(s) are shown on the Final Plan Development
Documents and the Developer agrees that prior to any construction of any other
phase(s) a minor amendment shall be submitted for said phase(s) that. includes utility
plans (final grading plans, erosion control plans and any utility connections or
infrastructure needed for said phase).
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B. 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.
C. 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.
D. 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.
E. 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
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 Agreement. The Developer
hereby waives any right to object to any such discrepancy in dates.
F. Subject to the provisions of Paragraph II.M. of this Agreement, nothing
herein contained shall be construed as a waiver of any requirements of the City Code or
the Land Use Code and the Developer agrees to comply with all requirements of the
same.
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G. 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.
H. 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.
I. This Agreement shall run with the Property, including any subsequent
replatting of all, or a portion of the Property. This Agreement shall also 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.
J. 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.
K. 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.
L. 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.
M. 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
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1. 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,
ea ance of the Property caused Ibyhor onro
any change in
grade, contour or appbehalf f, 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; except as allowed per
Section II.J.1 of this agreement. 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 Agreement.
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
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party or parties, and no third party or parties shall have any right of action hereunder for
any cause whatsoever.
N. 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.
O. 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:
If to the Developer:
If to the Owner:
City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
Kip C. Edwards
Banner Health
1441 N. 12th Street
Phoenix, AZ 85006
Lester Kaplan
Imago Enterprises, Inc.
140 Palmer Drive
Fort Collins, CO 80525
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.
P. When used in this Agreement, words of the masculine gender shall
include the feminine and neuter gender, and when the sentence so indicates, wards 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
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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.
Q. The Owner is made a party to this Agreement for the following purposes:
(i) subjecting the Property to the covenants contained in this Agreement; and (ii)
obligating the Owner to the provisions of Paragraphs I.K., II.C.2., II.C.8.,II.C.9. and
II.C.10. hereof. The City and the Developer expressly acknowledge and agree that,
except with regard to the above -referenced obligations of the Owner, 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.
�O<.pRT c�<<iy THE CITY OF FORT COLLINS, COLORADO,
:N a Municipal Corporation
�LAL
By. A0. &i,
10
COL00P9 ity Man g
ATTEST:
City Clerk
APPROVED AS TO CONTENT:
M
21
DEVELOPER:
Banner Health, Inc. an Arizona Nonprofit
Corporation
ATTEST:
By:
Printed Name: a.R.k
Title: '
STATE OF /RA )
) ss.
COUNTY OF /Jec.n )
The foregoing instrument was acknowledged before me this day of
_,,,,E W , 2013, by
and by -Wades
Arizona Nonprofit Corporation.
R uBECSTRA
STATE OF COLORADO
NSo
OTARY IPA 200EEMBER 06 2016
680
Ld-EEBORAH
MMI I
My Commission Expires:
as
as of Banner Health, Inc. n
22
OWNER:
Imago Enterprises, Inc., a Colorado
Corporation
B•
Lest r Kaplan, President
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of
2013, by Lester Kaplan as President of Imago Enterprises, Inc. a
Colorado Corporation.
otary Public
My Commission Expires: It' doi t0
NOTAIR�' �tIR41C
STAIR GF OOLORADO
NOTARY Ott
23
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.
24
EXHIBIT "B"
STANDARD OPERATING PROCEDURES (SOPS)
Banner Health Medical Campus, Fort Collins, CO
A. Purpose
In order for physical stormwater Best Management Practices (BMPs) to be effective, proper
maintenance is essential. Maintenance includes both routinely scheduled activities, as well as non -
routine repairs that may be required after large storms, or as a result of other unforeseen problems.
Standard Operating Procedures (SOPS) should clearly identify BMP maintenance responsibility. BMP
maintenance is typically the responsibility of the entity owning the BMP.
Identifying who is responsible for maintenance of BMPs and ensuring that an adequate budget is
allocated for maintenance is critical to the long-term success of BMPs. Maintenance responsibility
may be assigned either publicly or privately. For this project, the privately owned BMPs shown in
Section B below are to be maintained by the property owner, homeowner's association (HOA), or
property manager.
B. Site -Specific SOPS
The following stormwater facilities contained within the Banner Health Medical Campus project are
subject to SOP requirements:
- Extended Detention Basin
- Porous Landscape Detention (PLD) within Detention Basins
- Storm Drains and Tree Roots
The location of said facilities can be found on the Utility Plans and Landscape Plans for Banner
Health Medical Campus. Site specific features are listed below:
Extended Detention Basin
"ODP Pond"
"Pond 1"
"Pond 2"
Porous Landscape Detention (PLD) within Detention Basins
"ODP Pond"
"Pond 1"
"Pond 2"
Storm Drains and Tree Roots
All storm drain systems
Inspection and maintenance procedures and frequencies, specific maintenance requirements and
activities, as well as BMP-specific constraints and considerations shall follow the guidelines outlined
in Volume 3 of the Urban Drainage and Flood Control District (UDFCD) Urban Storm Drainage
Criteria Manual.
Page 1 of 3
Extended Detention Basin Maintenance Plan
Routine Maintenance Table (Summary from Table EDB-1, Chapter 6 of UDFCD)
Required Action Maintenance Objective Frequency of Action
Occasional mowing to limit unwanted
Lawn mowing and vegetation. Maintain irrigated turf grass as 2 Routine — Depending on aesthetic requirements.
Lawn care to 4 inches tall and nonirrigated native turf
grasses at 4 to 6 inches.
Sediment, Debris Remove sediment, debris and litter from the Routine — Including just before annual storm seasons (that
and Litter removal entire pond to minimize outlet clogging and is, April and May), end of storm season after leaves have
improve aesthetics. fallen, and following significant rainfall events.
Nonroutine — Performed when sediment accumulation
occupies 20 percent of the WQCV. This may vary
Major Pond Remove accumulated sediment from the considerably, but expect to do this every 10 to 20 years,
Sediment removal* bottom of the basin. as necessary per inspection if no construction activities
take place in the tributary watershed. More often if they
do.
Inspect basins to insure that the basin
continues to function as initially intended.
Examine the outlet for clogging, erosion, Routine — Annual inspection of hydraulic and structural
Inspections slumping, excessive sedimentation levels, facilities. Also check for obvious problems during routine
overgrowth, embankment and spillway maintenance visits, especially for plugging of outlets.
integrity and damage to any structural
element.
Porous Landscape Detention (PLD) within Detention Basins Maintenance Plan
Routine Maintenance Table (Summary from BMP Maintenance Section_5.0, Chapter 6 of UDFCD)
Required Action Maintenance Objective Frequency of Action
Occasional mowing to limit unwanted
Lawn mowing and vegetation. Maintain irrigated turf grass as 2 Routine —Depending on aesthetic requirements.
Lawn care to 4 inches tall and nonirrigated native turf
grasses at 4 to 6 inches.
Sediment, Debris Remove sediment, debris and litter from the Routine — Including just before annual storm seasons (that
and Litter removal entire PLD area to minimize outlet clogging is, April and May), end of storm season after leaves have
and improve aesthetics. fallen, and following significant rainfall events.
Inspect the infiltrating surface to determine if
the bioretention area is providing acceptable
infiltration. If standing water persists for
Inspections more than 24 hours after runoff has ceased Routine — Inspect at least twice annually following
clogging should be further investigated and precipitation events.
remedied. Check for erosion and repair as
necessary.
Page 2 of 3
Storm Drain Lines Maintenance Plan
The storm drain lines are located in proximity to trees. The situation is unavoidable; therefore, special maintenance has been
identified to ensure these storm drain systems perform as they were designed.
Routine Maintenance Table
Required Action Maintenance Objective Frequency of Action
Use a video camera to inspect the condition
of the storm drain pipes. Cleanout pipes as
Inspection needed. If the integrity of the pipe is Every two to five years.
compromised, then repair the damaged
section(s).
Page 3 of 3
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 Developer 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.
26
4-1
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.
27
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
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 designed and constructed by the
Developer so 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.
I. The developer shall pay the applicable °stormwater plant investment fee"
in accordance with Chapter 26, Article VII of the City Code. This fee is included with
building permit fees and shall be paid prior to the issuance of each building permit.
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 Owner specifically represents that to 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 Owner, 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 Owner. 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 Owner of any claim made
against it to which this indemnity and hold harmless agreement by the Owner could
apply, and the Owner shall have the right to defend any lawsuit based on such claim
and to settle any such claim provided the Owner 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 Owner within ninety (90) days after the City first receives a notice of such claim
under the Colorado Govemmental Immunity Act for the same, shall cause this indemnity
and hold harmless agreement by the Owner 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 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.
M. If the Developer or Contractor or any agent or representative thereof
causes damage to any public infrastructure (including without limitation, any surface
pavers, flagstones, or other stone or concrete surfaces, planters, street and decorative
lights, or canopies) such damage shall be promptly repaired with the same kind, quality,
color, serviceability and material composition aspects as was possessed by the
infrastructure damaged, unless otherwise expressly agreed to by the City in writing.
Paver repair and replacement in Downtown alleys shall comply with the City's specific
requirements for pavers.
II. Special Conditions
A. Water Lines
Not applicable.
B. Sewer Lines
Not Applicable
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 Final Development Plan
Documents prior to the issuance any certificate of occupancy. Completion of
improvements shall include the certification by a professional engineer licensed in
Colorado that the drainage facilities which serve this Development have been
constructed in conformance with said Final Development Plan Documents. Said
certification shall be submitted to the City at least two weeks prior to the issuance of any
certificate of occupancy in this Development.
2. The Developer shall be responsible for maintaining the structural
integrity and operational functions of all on -site drainage facilities constructed outside of
the public right-of-way throughout the build -out of this Development. When the off -site
drainage facilities constructed outside of the public right-of-way are accepted by the
City, the Owner shall be responsible for maintaining the structural integrity and
operational functions of such off -site drainage facilities. 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 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 $73,537.50 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
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 comers 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 improvements 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 improvements 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 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 properties during
the construction of these 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 storm water 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 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
storm water 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.
7
8. Consistent with Paragraph II.C.2, the Developer shall be
responsible for maintenance of all on -site storm drainage facilities, and the Owner shall
be responsible for maintenance of all off -site storm drainage facilities, that are required
in the Final Development Plan Documents and that are constructed outside of the public
right-of-way in accordance with the attached Standard Operating Procedures in Exhibit
B. Owner shall have the right to assign some or all of its maintenance obligations to
future third party owners of the Owner's property.
9. The Developer shall obtain written authorization for grading and
construction improvements within the Fossil Creek Reservoir Inlet Ditch right of way or
easement limits. Such authorization shall include the agreement of the Developer to
indemnify and hold harmless the owners of the Fossil Creek Reservoir Inlet Ditch, North
Poudre Irrigation 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 and the Owner shall each 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 an increase in
storm water flows added to the canal by such party in excess of historic flows from such
parry's property, except as such claims, damages, injury or cause of action are as a
result of a negligent act or acts of the Irrigation Company.
10. The Final Development Plan Documents identify landscaping
associated with the off -site drainage improvements which is to be installed by the
Developer (the "Phase 1 Improvements"). The Final Development Plan Documents
also include a note regarding the future installation of detention pond landscaping within
that portion of the Owner's adjacent property known as Parcel K, Sixth Amendment to
Harmony Technology Park, Overall Development Plan. The Owner agrees that, upon
the development of such Parcel K, the Owner shall be responsible for installation of
detention pond landscaping in conformance with the City of Fort Collins Detention Pond
Landscape Design Standards and Guidelines.
D. Streets.
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along Cinquefoil
Lane for those portions of said street abutting the Property as shown on the Final
Development Plan Documents. Reimbursement for Cinquefoil Lane shall be for
oversizing the street from local (access) standards to Minor Collector standards
(Collector standard is: 46 feet Asphalt, Vertical Curb and Gutter, 8 foot Parkway and 5
foot Sidewalk). The City shall make reimbursement to the Developer for the aforesaid
oversized street improvements in the manner provided in and 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.
2. Subject to the conditions identified below in this Agreement, the
City agrees to reimburse the Developer for oversizing public street improvements along
Le Fever Drive for those portions of said street abutting the Property as shown on the
Final Development Plan Documents. Le Fever Drive is not currently shown as a
Collector on the Master Street Plan and thus the oversizing reimbursement shall *be on
the condition that Le Fever Drive is added as a Collector Street on the Master Street
Plan within in a period of 24 months from the execution of this agreement. It is the
Developer's responsibility to pursue (and provide information and documentation
needed for) the evaluation of a change to the Master Street Plan. Reimbursement for
Le Fever Drive shall be for oversizing the street from local (access) standards to Minor
Collector standards. The City shall make reimbursement to the Developer for the
aforesaid oversized street improvements in the manner provided in and 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.
3. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II(D) are "City improvements" (as
defined below) and, as such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the sum of Thirty
Thousand Dollars ($30,000), the contract for the construction of the same must be
submitted to a competitive bidding process resulting in an award to the lowest
9