Table of Contents
Development agreements are negotiated on a case-by-case basis. Because each development agreement is unique and based on a particular development site and/or project, such agreements vary widely in content and the specific terms negotiated. The agreement depends largely on specific site conditions and/or mitigation objectives sought.
Many agreements contain the following basic elements at a minimum:
- Recitals – These function similar to a purpose statement. What is the intent of the development agreement? How are the parties authorized to enter into such agreement?
- General Provisions – This section describes the project and use of the property, definitions of key terms, process for amending or terminating the agreement, and the relationship of the agreement to other regulations.
- Obligations – This section outlines the specific terms of the agreement. For example, are there fiduciary responsibilities? Site maintenance obligations? The agreement should include both developer and local government responsibilities.
- Exhibits or Attachments – These typically include a legal description of the property, any specific costs related to the obligations in the agreement, and other necessary supporting documents.
The following sections describe each of these elements and provide standard language regarding hazard mitigation that can be considered by Colorado local governments. Model language is in gray shading. Commentary is located in italics in the column at the right. The model language used in this document is based on existing ordinances from several communities around the state, including municipalities and counties. The language is illustrative only; consult local counsel to tailor language for your jurisdiction.
A development agreement is a legally-binding document, and should therefore be carefully reviewed and/or drafted by the local government’s attorney.
Negotiating and Drafting Development Agreements: Development agreements allow local governments to achieve greater community benefits not otherwise required by adopted regulations. The local government attorney(s) should be involved in direct negotiations and drafting the agreement.
Below are some basic recitals that could be applicable to development agreements pertaining to hazard mitigation.
Recitals: Other recitals may be applicable to the agreement, depending on the history of the property, the application under review, suggestions by local attorney(s), and the obligations included in the agreement.
- WHEREAS, [the developer] seeks permission to [type of approval sought – e.g., subdivision, site development] the property as described on [Exhibit A].
- WHEREAS, the [governing body] seeks to protect the public health, safety, and welfare of the community.
- WHEREAS, the [governing body] seeks to implement policies from the [comprehensive plan, local hazard mitigation plan, or other adopted policy] regarding [hazard mitigation, or similar].
- WHEREAS, the mutual promises and obligations in this agreement are authorized by State law and the [local government] regulations.
This section of the agreement should describe the general terms of the agreement including:
A. Legal description of the property.
B. Definitions (e.g., “development” or “geologic hazard area”).
C. Description of parties (local government, developer or applicant, etc.).
D. Process for amending, terminating, or extending the timeframe for the agreement.
E. Does the agreement prevail over other zoning and/or subdivision regulations where there is conflict?
F. Noticing requirements to comply with state and local laws.
General Provisions: This section may or may not include additional sections for legal framework depending on the attorney and/or terms of the agreement. For example, the agreement may include interpretation, severability, remedies, no third-party beneficiary, and other paragraphs deemed necessary for an effective binding contract.
For the specific terms of the agreement, local governments should consider the following as they pertain to hazard mitigation:
A. Geographic location. Where are the terms of the agreement applicable? Do they apply to the entire property? A portion of the property?
B. Applicability. At what point do the terms of the agreement go into effect? Do they apply to new structures? Existing structures? Are they limited to a specific time period?
C. Duration. At what point in time do the terms of the agreement expire? Are the terms effective for three years? Until completion of the first phase of development? In perpetuity?
D. Responsibility. Which party is responsible for specific terms of the agreement? Does the developer bear the cost of all mitigation activities? Are there inspections of improvements by the local government? If so, how often, and are there penalties for noncompliance?
E. Sensitive lands and/or hazard areas. Specific hazard areas, such as seismic zones, the wildland-urban interface (WUI), geologic hazard areas, or floodways, can be specifically addressed in the agreement. Reference to hazard areas requires that some level of mapping exist or be performed. For developments in a mapped hazard area, the community may require avoiding development in those areas and/or require adequate mitigation techniques to reduce risk.
F. Additional documentation. To protect lives and property, a development agreement can require additional documentation be prepared and submitted prior to certain development activities. For example, an evacuation plan might be required for subdivision in the WUI, or a soils report for development in areas with subsidence.
G. Procedures. Just like procedures in a development code, a development agreement can establish specific procedures for permitting development within a defined area or time period.
H. Maintenance. Requiring mitigation activities as a condition for development approval can be effective for some time; however, including long-term maintenance provisions will ensure that effective mitigation is achieved for decades or longer. For example, a development agreement can require that defensible space required by the agreement be maintained and inspected annually, or that new structures in a development use fire-resistant building materials, or require the construction of safe-rooms (shelter against tornadoes and other wind events) for uses where large numbers of people congregate.
Obligations or Terms of the Agreement: This section does not have to be labeled “obligations.” There might be several sections following the recitals that are dedicated to the individual terms of the agreement, such as “limitation on number of structures,” or “long-term maintenance of landscaping.” For the purposes of this model, we title the section “obligations” as a catch all for the terms of the agreement.
Maintenance: Maintenance provisions can help achieve one of the greatest challenges in planning for hazard mitigation – addressing existing development. Addressing hazard mitigation for future development is easier – by avoiding hazard areas all together or imposing stricter standards on development within known hazard areas. But strengthening already approved developments through long-term maintenance provisions helps communities be more resilient to future hazard events.