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HomeMy WebLinkAboutMULBERRY AND LEMAY CROSSINGS - Filed DA-DEVELOPMENT AGREEMENT - 2004-06-15DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into this l2 day of 2000, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and Ft. Collins Partners I, 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: Mulberry and Lemay Crossings, filing 1. Lot 1. located in the Southwest 1/4 of Section 7. Township 7 North, Range 63 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 tothe 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 V\rHEREAS. the City has aoproved the final development plan documerts suhmitti.d 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: I. General Conditions A. The terms of this Agreement shall govern all development activities of the Developer pertaining to the Property. For the purposes of this Agreement, "development activities" shall include, but not be limited to, the following: (1) the actual construction of improvements, (2) obtaining a permit therefor. or (3) any change in grade, contour or appearance of the Property caused byor on behalf of, the Developer with the intent to construct improvements thereon. 4. Prior to the issuance of any building permit, the emergency access to the site as shown in Exhibit "E" shall be in place. 5. On or before August 15. 2000, the Developer shall deliver to the City the sum of $200,000 to be deposited in an interest bearing account (in a type of account customarily used by the City) for the use and benefit of the City for the design and construction of a pedestrian bridge and/or associated pedestrian improvements for the crossing of the Poudre River adjacent to Mulberry Street. Interest earned by the City as a result of said deposit shall be timely returned to the Developer upon expenditure of the $200,000 by the City. If the Developer fails to deposit the funds by said date. the City shall have the ability to place a stop work order on all work at the site until such funds are deposited. 6. Prior to the issuance of any certificate of occupancy and/or the opening for business of any retail or large retail establishment, all street improvements as shown on the approved final development plan documents or any amendments thereof (except for those streets that may be excluded from construction pursuant to paragraph II D 10) shall be constructed, completed, accepted by the City and open to traffic. 7. 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 Lemay Avenue, Mulberry Street (SH 14), 12" Street and, to the extent the City has jurisdiction. Magnolia Street.) 8. A Colorado State Highway Access Permit must be obtained by the Developer prior to beginning construction of Mulberry Street (SH 14) and prior to commencing improvements to the intersection of SH 14 and Lem?y Avenue, th- intersection of SH 14 and 12"' street and the frontage roads adjacent to SH 14. All improvements shall be completed prior to the issuance of any certificate of occupancy. 9. The Developer shall be responsible for all costs for the signal improvements, including signing and striping for the intersections of Magnolia Street and Lemay Avenue, Lincoln Avenue and Lemay Avenue. and Mulberry Street and Lemay Avenue. except as herein indicated. The developer shall be reimbursed for any portion of the signal installation at the intersection of Lemay Avenue and Lincoln Avenue that is installed and set in the ultimate location. Any placement of poles or equipment that will need to be relocated with future improvements to the intersection are not eligible for reimbursement. The cost of the signal at the intersection of Magnolia Avenue and Lemay Avenue shall be fully borne by the Developer because it is for the special use of the development. The Developer shall be responsible for the cost of the signal improvements at the Mulberry Street and Lemay Avenue intersection, minus 25%, which shall be borne 10 by the City, because of the City's request to add double left turn lanes to the intersection. All signal improvements, signing and striping work shall be done by the City and upon completion of the work the City shall bill the developerfor the actual costs of labor, material and overhead for the work performed. 10. The City anticipates that it will receive final approval to construct a roundabout at the intersection of Mulberry Street (SH 14) and Lemay Avenue. The limits of said construction shall be as follows: From the bridge across the Poudre River on Lemay Avenue (sta 6+10) to Station 14+64.56 and from the bridge across the Poudre River on Mulberry Street (SH 14) (sta 32+00) to station 53+69 ("Roundabout"). In such event, the provisions set forth on Exhibit "D" shall go into effect as modifications to this Development Agreement and shall supersede any provisions of this Development Agreement that are inconsistent with Exhibit "D 11. The Developer and the City agree that the Developer is responsible for all costs for the initial installation of traffic signing and striping for this Development related to the Development's local street operations. In addition the Developer is responsible for all costs for traffic signing and striping related to directing traffic access to and from the Development (e.g all signing and striping for a right turn lane into the Development site). 12. 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 29-13 and 29-14 of the Transitional Land Use Regulations of the City. 13. The City is the permittee for the State Highway Access Permits necessary for the work associated with this project within the State right-of-way, but since the developer is the party responsible for constructing all improvements within the State right-of-way the Developer agrees to comply with all requirements imposed upon the permitee during the course of the construction work and the maintenance period following the completion of said work. The Developer also agrees that all construction and accesses shall be constructed and maintained in accordance with the State Highway Access Permits, Notice To Proceed Documents and any other item issued by the State for work associated with this project, including the State Highway Access Code, all attachments, terms. conditions and exhibits of the State Highway Access Permits. 14. The approved final development plans for Magnolia Street east of 12" Street require grading and slope easements as set forth on Exhibit "F". The Developer shall use its best efforts to obtain said slope easements. If such easements cannot be obtained in time for the issuance of the building permit for the development, the Developer shall be entitled to receive such permit provided it first submits an amendment to the approved final development plans incorporating a retaining wall or other acceptable design solutions in lieu of the design requiring the grading and slope easements. Such 11 amendment shall be approved by the City prior to release of the building permit, which approval shall not be unreasonably withheld. No work shall be done on the affected portion of Magnolia Street until either the grading and slope easements have been obtained or an alternate design has been approved by the City. E. Natural Resources 1. The Developer shall be responsible for implementing mitigation measures in accordance with the Outfall Plan, to compensate for off -site stormwater outfall disturbance adjacent to the Poudre River. The Developer shall be responsible for maintairing the vegetation. seed and plants. shown on the proposed Outfall Plan and shall warranty the establishment of the proposed Outfall area for 3 years from the date of its construction and vegetation installation or until acceptance by the City whichever shall first occur, to ensure that the Outfall Plan vegetation is fully established. At the end of the 3- year warranty period, the City Natural Resources Director shall inspect the Outfall area planted by the Developer. If the vegetation has not been established in accordance with the Outfall Plan and the Development Agreement. then the Developer shall rework and/or reseed per original specifications any area that is dead, diseased, contains too many weedy species, or fails to meet the approved requirement. at no additional cost to the City. Finally, the Developer shall not make any changes from the approved final development plan documents in regard to the Outfall Plan without the City's prior written approval. 2. The Developer agrees that the area shall be inspected jointly by the Developer and the City at specified intervals. Areas planted in the spring shall be inspected for establishment the following fall not later than October 1. Areas planted at any other time shall be inspected the following two summers not later than August 1. 3. The Developer and the City agree that the Developer shall delineate all Limits of Development with orange construction fence prior to any type of construction, including over -lot grading. 4. Fueling facilities shall be located at least one hundred (100) feet from any 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. runoff, or be washed into a body of water, wetland or drainage way F. Fill Material 1. Fill material shall be governed by the provisions of the Supplemental Development Agreement for Stockpiling and Grading executed by the Developer and the City concurrently with this Agreement. 12 2. Any additional fill material to be brought to the site beyond that authorized in the Supplemental Development Agreement for Stockpiling and Grading shall require the issuance of a development construction permit before such fill may be brought to the site. All requirements of said permit shall be completed and complied with. 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 sustained as a result of the City's failure to properly maintain its storm drainage facilities in the Development. 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 -econstruction obligations shall be those of the Developer or the Developers 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 Citv 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 13 the foregoing 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 (not necessarily the system shown within the final approved plans) is installed by the Developer and approved by the City. 2. Prior to beginning any building construction, and throughout the buildout of this Development, the Developer shall provide and maintain at all times an accessway to said building or buildings. Such accessway shall be adequate to handle any emergency vehicles or equipment, and the accessway shall be kept open during all phases of construction. Such accessway shall be constructed to an unobstructed width of at least 20 feet with 4 inches of aggregate base Course material compacted according to city standards and with an 80 foot diameter turnaround at the building end of said accessway The turnaround is not required if an exit point is provided at the end of the accessway. A plan for the accessway has been submitted to and approved by the Poudre Fire Authority and City Engineer.. and such plan is shown on Exhibit 'E". If such accessway is at any time deemed inadequate by the Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into compliance and until such time that the accessway is brought into compliance, the City and/or the Poudre Fire Authority may issue a stop work order for all or part of the Development. I. Footings and Foundation Permits 1. Notwithstanding any provision in this Agreement to the contrary, the Developer shall have the right to obtain a Footings and Foundation Permit upon the installation of all underground water, sanitary sewer and storm sewer facilities for the construction phase in which the permit is being requested in accordance with the Overall Utility Plan —Phase 1 plan sheets. Facilities shall include but not be limited to all mains, lines. services, fire hydrants and appurtenances for the site as shown on the final development plan documents. In addition. the emergency accessway shown on Exhibit E shall be installed by the Developer prior to receipt of a Footings and Foundation Permit. J. Development Construction Permit 1. The Developer shall apply for and obtain a Development Construction Permit for this Development, in accordance with Division 2.6 of the Land Use Code (or Section 29-12 of the Transitional Land Use Regulations, if applicable), prior to the 14 Developer commencing construction. The Developer shall pay the required fees for said Permit and construction inspection, and post security to guarantee completion of the public improvements required for this Development, prior to issuance of the Development Construction Permit. K. Maintenance and Repair Guarantees 1. The Developer agrees to provide a two-year maintenance guarantee and a five-year repair guarantee covering all errors or omissions in the design and/or construction of the public improvements required for this Development, which guarantees shall run concurrently and shall commence upon the date of completion of the public improvements and acceptance thereof by the City. More specific elements of these guarantees are noted in Exhibit 'C." Security forthe 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 ;J) and (K) 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 . 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 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 neid or construed to be a waiver of any subsequent breach hereof. G. All financial obligations of the City arising under this Development Agreement that are payable after the current fiscal year are contingent upon funds for that purpose being annually appropriated, budgeted and otherwise made available by the Fort Collins City Council, in its discretion. H. This Agreement shall run with the Property and shall be binding upon and inure to the benefit of the parties hereto, their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any 16 assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. I. With the exception of the transfer of the Property from the Developer to Wal-Mart Real Estate Business Trust, 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. 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 s-ch notice or other communication shall be deemed given when so hand -delivered or three (3) days after so mailed: 17 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: Ft. Collins Partners I, LLC c/o Goldberg Property Assoc. Attn: Mark Goldberg 1120 Lincoln Street, Suite 1101 Denver. Co 80203 With a copy to: March and Liley, P.C. Attn: Lucia Liley 110 Oak Street, Suite 200 Fort Collins, Co 80524 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. m ATTEST: City Clerk APPROVED AS TO CONTENT: v City Engineer APPROVE TO FORM: Deputy City Attorney THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: ?ge City Man DEVELOPER: Ft. Collins Partners I, LLC, a Colorado limited liability company By Goldberg Property Associates, Inc, a Colorado Corporation, its soleoember 0 Marl W. Goldberg, Vice Vresident 19 B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the approved utility plans and in full compliance with the standards and specifications of the City on file in the office of the City Engineer at the time of approval of the utility plans relating to the specific utility, subject to a three (3) year time limitation from the date of execution of this Agreement. In the event that the Developer commences or performs any construction pursuant hereto after the passage of three (3) years from the date of execution of this agreement, the Developer shall resubmit the utility plans to the City Engineer for reexamination. The City may then require the Developer to comply with the approved standards and specifications of the City on file in the office of the City Engineer at the time of the resubmittal. C. Except as otherwise herein specifically agreed, no building permit for the construction of any structure within the Property shall be issued by the City until the public water lines and stubs to each lot, fire hydrants, sanitary sewer lines and stubs to each lot, and Public streets (including curb, gutter, and pavement with at least the base course completed) serving such structure have been completed and accepted by the C ty. No Pc,ruing permits snail ce issued =Pr any structure located in excess of six hundred and sixty feet (660') from a single point of access, unless the structures contain sprinkler systems that are approved by the Poudre Fire Authority. D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets described on Exhibit "A." attached hereto, shall be installed within the time and/or sequence required on Exhibit "A." If the City Engineer has determined that any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the utility plans and shall be installed by the Developer within the time as established under "Special Conditions" in this document. E. The Developer agrees to install and pay for all water, sanitary sewer; and storm drainage facilities and appurtenances, and all streets, curbs, gutters. sidewalks, bikeways and other public improvements required by this Development as shown on the approved final development plan documents and other approved documents pertaining to this Development on file with the City, F Street improvements shall not be installed until all utility lines to be placed therein have been completely installed. including all individual lot service lines leading in and from the main to the property line. G. The installation of all utilities shown on the final development plan documents shall be inspected by the Engineering Department of the City and shall be subject to such department's approval. The Developer agrees to correct any deficiencies in such installations in orderto 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. M EXHIBIT "A" Schedule of water lines to be installed out of sequence. Not Applicable. Schedule of sanitary sewer lines to be installed out of sequence. Not Applicable. 3. Schedule of street improvements to be installed out of sequence. Not Applicable 4. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. NA EXHIBIT "B" Not Applicable 21 EXHIBIT "C" MAINTENANCE GUARANTEE: The Developer hereby warrants and guarantees to the City, for a period of two (2) years from the date of completion and acceptance by the City of the public improvements warranted hereunder, the full and complete maintenance and repair of the public improvements constructed for this Development. This warranty and guarantee is made in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land Use Regulations, as applicable. This guarantee applies to the streets and all other appurtenant structures and amenities lying within the rights-cf-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 cmpany or city department. The Developer shall maintain said public improvements in a manner that will assure compliance on a consistent basis with all constriction 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 22 improvements, to include, without limitation, the roads, streets, fills, embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the right-of-way easements and other public properties, resulting from failures caused by design and/or construction defects. This agreement to hold the City harmless includes defects in materials and workmanship, as well as defects caused by or consisting of settling trenches, fills or excavations. Further, the Developer agrees that the City shall not be liable to the Developer during the warranty period, for any claim of damages resulting from negligence in exercising 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. 23 EXHIBIT "D" 1. The provisions of this Exhibit "D" shall only apply if, on or before December 1, 2000, the City and the Colorado Department of Transportation have executed an intergovernmental agreement ("IGA") providing for the design and construction of the Roundabout and the City has appropriated all monies required for such design and construction, and within 10 days after such execution or the effective date of such appropriation, whichever is later, the City shall have sent written notice to the Developer of its intent to proceed with the Roundabout. In the event that such IGA execution, appropriation of monies or sending of notice is not timely accomplished as described above, then the Developer shall proceed under the terms contained in the body of the Development Agreement, and the City thereupon agrees to promptly complete the review of the final utility plan sheets submitted by the Developer for the conventional signalized Mulberry and Lemay intersection improvements (and any associated street improvements) and to apply for all access permits for streets shown on the final utility plans which may have been revoked on account of the anticipated Roundabout. In such event, if the City thereafter decides to construct the Roundabout or informs the Developer not to proceed with construction of the conventional signalized improvements at the Mulberry and Lemay intersection, then the Developer shall thereupon be relieved of all payment obligations set forth in paragraphs 3.a.(1)and 3.a.(2) of this Exhibit "D" and completion of such improvements shall not be a requirement of issuance of any permit for the Property. If the Developer has already then made the payments to the City required in paragraph 3.a.(1) and 3.a.(2) of this Exhibit "D", such monies, including all accrued interest, shall promptly be returned to the Developer by the City. 2. The City shall construct and maintain the following improvements, and the Developer shall have no obligation to construct, maintain or provide warranties for the same: a. Roundabout. b. Relocation of the 24 inch waterline on the south side of Mulberry Street to accommodate the storm drain outfall pipe under Mulberry Street. C. Stormdrain outfall pipe under Mulberry Street, including the backflow prevention valve installed at the downstream end of this pipe and the manually operated gate installed at the upstream end of this pipe. d. Inlet (C6-1) at the northwest corner of Mulberry Street and 12" Street and the stormdrain line from said inlet outleting into the pond (line C6). The inlet (D- 2) located on Lemay Avenue south of the southern access drive into Lot 2. e. All off -site plantings and all otherdrainage improvements between the outfall of the drainage pipe under Mulberry Street (SH14) and the Poudre River as shown on the approved final development plan documents. b. With the exception of 3.a.(1) and 3.a.(2) above, all of the items listed in paragraph 3 above shall be based upon the Developer's bid documents, subject to review and approval by the City. C. All costs owed by the Developer shall be paid to the City on or before August 15, 2000, which assumes that bids for the Roundabout project will be advertised on or before September 1, 2000. In the event that the bid advertising date is postponed to a date beyond September 1, 2000, then payment by the Developer shall be made within 30 days of written request by the City, which request shall be reasonably related to the new timetable. If the Developer fails to timely deposit such funds, the City shall have the ability to place a stop work order on all work at the development site until such funds are deposited with the City. d. Such funds shall be placed in an interest bearing account (of a type customarily used by the City). The City agrees that it shall not expend the funds deposited by the Developer until the City has expended all Federal funding for the Roundabout project. The City agrees to track the interest accrued on account of the funds deposited by the Developer, and all such accrued interest shall be delivered to the Developer upon completion of the Roundabout project. 4. All other requirements of the Development Agreement or the City Code (e.g. the requirement to obtain access permits) in connection with the Mulberry and Lemay intersection improvements and those items specified in paragraph 2 above shall be the City's responsibility, and the Developer shall be relieved of the same. Similarly, the Developer shall not be entitled to receive any payments in connection with such improvements (e.g. oversizing reimbursement). 5. Completion ofthedesign and/or construction ofthe Roundabout, oranyofthe items set forth in paragraph 2 above, shall not be a requirement for issuance of a building permit or certificate of occupancy for the Property. 6. The City and the Developer shall in good faith coordinate the construction activities of their respective projects. The Developer shall allow the City and its contractors onto the Property to perform the work required for the Roundabout. 7. In the event the Roundabout is constructed by the City and the design does not include an eastbound left turn lane onto 121h Street, then the Developer shall not be required to make the payments described in paragraphs 3.a.(1) and 3.a.(2) above, and the Developer shall thereupon have no obligation for the construction of, or payment of costs for, any street or signal improvements to such intersection. In addition, to the extent that additional right-of-way is required across property included in the Mulberry and Lemay Crossings Preliminary PUD in order to construct the Roundabout, the Developer shall be under no obligation to dedicate the same. The Developer agrees that neither it, nor any officer, employee or agent of the Developer, will attempt, directly or indirectly, to influence CDOT to eliminate the eastbound left turn lane onto 12'h Street. 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 (' ) 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) specificwritten orotherwise documented directives that may be given to the Developer by the City. The City agrees to give notice to the Developer of any claim made against it to which this ndemnity and hoid harmless agreement by the Developer could apply and the Developer shall have the right to defend any awsuit based on such -Maim 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 i90) 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 storm drainage basin fees in accordance with Chapter 25, 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, snail include right-of-way. design and construction costs. See Section ILC, Special Conditions. Storm Drainage Lines and Appurtenances. for specific instructions J. The Developer shall provide the City Engineer with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construction. Utilities will not be initially accepted prior to as -built drawings being submitted to and approved by the City of Fort Collins. K. The Developer specifically represents that to the best of its knowledge all portions of the Property dedicated (both in fee simple and as easements) to the City associated with this Development are in compliance with ail environmental protection and 3 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 portions of the Property as are dedicated to the City pursuant to this Development, are in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer. for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority or any third party, pertaining to the disposal of hazardous substances. pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfill of hazardous substances, pollutants or contaminants. or environmental cleanup responsibilities of any nature whatsoever on, of. or related to any property dedicated to the City in connection with this Development, provided that such damages or liability are not caused by circumstances arising entirely after the date of acceptance by the City of the public improvements constructed on the decicated property except to the extent that such circumstances are the result of acts or cm ssiens of the Develcper. Said indemnification shall nct extend to claims, actions or other liability arising as a result of any hazardous substance, poilutart or contaminant generated or deposited by the City, its agents or representatives upon portions of the Property dedicated to the City in connection with this Deveicpment. 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 ofthe 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 underthe Colorado Governmental Immunity Act forthe 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. II. Special Conditions A. Water Lines 1 City water customers will be impacted by the work on the City 24 inch water main necessitated by the Development, and, therefore, the Developer shall submit a work sequence and schedule to the Utilities Director for review and approval prior to starting that work. The duration of the shut -down must be minimized and the shut down vji!I not be allowed to be scheduled or to occur during June. July or August of 2000 or 2001 2. Notwithstanding anything in this agreement to the contrary, the Property will be provided water service from the ELCO Water District and all waterline improvements rd shall be installed and inspected in accordance with the Water District's regulations and the approved plans therefor. In addition, the City shall have the right to inspect the waterline installation, trenching, backfill and/ or compaction and to require construction of the same to City Standards and Criteria. In the event of a conflict between City and ELCO standards. the ELCO Standards shall control. B. Sewer Lines 1. Notwithstanding anything in this agreement to the contrary, the Property will be provided sanitary sewer service from the Boxelder Sanitation District and all waste water line improvements shall be installed and inspected in accordance with the Sanitation District's regulations and the approved plans therefor. In addition. the City shall have the right to inspect the sanitary sewer installation. trenching, backfill and/ or compaction and to require construction of the same to City Standards and Criteria. In the event of a conflict between City and Boxelder standards. the Boxelder Standards shall control. C. Storm Drainage Lines and Appurtenances 1. All on -site detention ponds, all drainage conveyances from and to such ponds and the drainage conveyance to the temporary existing outfall pipes under State Higrway 14, 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 any building permits in this Development. Completion of these improvements shall mean the construction and the certification by a professional engineer licensed in Colorado that these drainage facilities serving this Development have been constructed in conformance with the final development plan documents. Said certification shall be submitted to the City at least two weeks prior to the date of issuance of any building permit for the Development. The Developer and the City agree that only a Footings and Foundation Permit may be issued by the City prior to completion and such certification. 2. All permanent drainage improvements associated with this Development, including all off -site drainage improvements. 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 any certificate of occupancy for the Development. Completion of improvements shall mean the construction and the certification by a professional engineer licensed in Colorado that the drainage facilities whicn serve this Development have been constructed in conformance with said final development plan documents. Said certification shall be submitted to the City at least two weeks prior to the date of issuance of any certificate of occupancy for the Development. 3. In the event that the Developer is unable to complete the construction of drainage improvements and the plantings associated with the outfall system between the downstream end of the pipe under Mulberry Street (SH 14) and the Poudre River as shown on the approved final development plan documents for this development due to high flow 5 conditions in the Poudre River, then the Developer shall escrow 150% of the costs of these improvements (as estimated by the Developer and approved by the City) prior to issuance of any Certificate of Occupancy within this development. Said construction shall then occur as soon as physically possible thereafter, and the escrowed funds shall be returned to the Developer upon completion of construction and approval of the certification for these improvements. 4. The Developer and the City agree that the storm drainage system for this Development contains some features that make it important to construct the facilities in accordance with the plans and to ensure that the facilities are maintained and kept operational throughout the build -out of this Development and at all times thereafter. For this reason the following additional requirement shall be followed: Prior to the issuance of any certificate of occupancy in this development the Developer shall provide the City with certification that the lot has been graded correctly and that the finished floor elevation and the ,minimum floor elevation for all buildings constructed on said lot have been comcieted in accordance with the approved final aeve,opment plan aocuments. Saia certification snail be compieted 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 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 paragraphs one (1) and two (2) above) of said drainage facilities and during the construction of structures and /or lots within this Development the City reasonably determines based upon evidence that said drainage facilities no longer comply with the approved plans. the Developer shall bring such facilities back up to the standards and specifications as shown on the approved plans Failure to maintain the structural integrity and operational function of said drainage facilities following certification shal! result in the withholding of the issuance of additional building permits arid/ or certificates of occupancy until such drainage facilities are repaired to the operational function and structural integrity which was approved by the City. 6 The Developer agrees to provide and maintain erosion control improvements as shown on the approved final development plan documents to stabilize all over -lot grading in and adjacent to this Development. The Developer shall also be required to post a security deposit in the amount of 540.498.00 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 provisions of the approved final development plan documents or the Criteria, notwithstanding any provisions contained in paragraph III(J) to the contrary, the City may enter upon the Property for the purpose of making such improvements and undertaking such activities as may be necessary to ensure that the 6 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 I I I. 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. If the Developer has not commenced construction of a structure or utility installation under the authority of a development construction permit within one month of completing the delivery of fill and grading of the same on Lot 1 then the Developer shall seed and mulch the graded fill material or employ other approved erosion control procedures as required pursuant to the approved grading and erosion control plans. The site of the Overall Development Plan (except for Lot 1) shall be seeded and mulched for erosion control upon completion of fill operations. 7 The Developer shall obtain the City's prior approval of any changes from the approved final development plan documents in grade elevations arc/or storm drainage racwri configuration that occur as a result of the construction of houses and/or development of lots. whether by the Developer or other parties under the control of the Developer. 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. 8. The Developer and the City agree that 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 and outside of the public rights -of -way. including, without limitation, the on - site water quality ponds and plantings associated with such ponds. If at anytime following completion and certification of the improvements and the plantings within these ponds. the City deems that these improvements and/ or plantings no longer meet City requirements as shown on the approved final development plan documents for this development. the Developer shall be required to restore said improvements and/ or plantings to an equal condition to that shown on the approved final development plan documents for this development. Failure by the Developer to restore such improvements to such equal condition shall be considered a zoning violation and shall be administered as stated in the City of Fort Collins Land Use Code Sections 3.2.1(1)(5) and 3.2.1(I)(6). 9. The City agrees that it shall be responsible for maintaining the outfall pipe between the proposed detention pond at the northeast corner of Mulberry Street and Lemav Avenue (as well as the backflow prevention valve installed at the downstream end of this pipe) and the manually operated gate installed at the upstream end of this pipe. The Developer hereby provides the City with its warranty of said backflow prevention devices, for a period of 5 years following installation. against any manufacturing or construction - related defects. 7 10. The Developer shall warranty and maintain the off -site plantings and all other drainage improvements between the outfall of the drainage pipe under Mulberry Street (SH 14) and the Poudre River as shown on the approved final development plan documents for a period of 3 years following installation. At the end of the 3-year warranty period, the City shall inspect such plantings and improvements and the Developer shall make all necessary changes to bring the same into conformance with the approved final development plans. 11. The Developer and the City agree that construction of the off -site storm sewer crossing under Mulberry Street (SH 14) shall be done in coordination with the City of Fort Collins Water Utility. The Developer agrees to contact the City of Fort Collins Utilities (Water Utility) and coordinate the timing of such construction prior to the commencement of any work that could interfere with the existing City of Fort Collins water main located parallel to. and south of, Mulberry Street (SH 14). 2 The Developer and the City agree that the Developer shall obtain a license from the Colorado Department of Transportation (CDOT) to work in the state right- of-way prior to any construction work taking place in said right-of-way The Developer agrees to comply with all City of Fort Collins. and CDOT regulations for utility construction in the state right-of-way . D. Streets. 1. Subject to the conditions of this Agreement. the City agrees to reimburse the Developer for oversizing public street improvements along Magnolia Street (between Lemay Avenue and 12'h Street), Lemay Avenue, Lincoln Avenue and Mulberry Street (SH 14) for those portions of said streets abutting the Property as shown on the approved final development plan documents. Reimbursement for M.gnalia Street shall be for oversizing the street from local (access) standards to collector standards. Reimbursement for Lemay Avenue and Lincoln Avenue shall be for oversizing the street from local (access) standards to arterial standards. The Developer has opted to construct portions of Lemay Avenue to less than City arterial street standards. There will be no street oversizing participation or reimbursement for these improvements. Reimbursement for Mulberry Street (SH 14) shall be for oversizing the street from local (access) standards to major arterial standards. The C-ty snail make reimbursement to the Developer for the aforesaid oversized street improvements in accordance with Section 24-112 of the Code of the City. The Developer agrees and understands that the City shall have no obligation to make reimbursement payments for street oversizing unless funds for such payments shall first have been budgeted and appropriated from the Street Oversizing Fund by the City Council; and the Developer further understands that to the extent that funds are not available for such reimbursement, the City may not, in the absence of the Developer's agreement, require the construction, at the Developer's expense, of any oversized portion of streets not reasonably necessary to offset the traffic impacts of the Development. The Developer does hereby agree to construct the aforesaid oversized street improvements with the understanding that the Developer may not be fully reimbursed by the City for the cost of such construction. The Developer further agrees to accept payment in accordance with Section 24-112 (d) of the Code of the City as full and final settlement and complete accord and satisfaction of all obligations of the City to make reimbursements to the Developer for street oversizing expenses. It is anticipated by the City that the City's reimbursement, in accordance with Section 24-112 (d). would not be less than fifty percent (50%) of the Developer's actual expenses incurred and will be calculated in accordance with the formula as set forth in Section 24-112 (d). 2. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for the local street improvements on Lemay Avenue and Lincoln Avenue for those portions of said streets abutting the Buffalo Run Apartments PUD as shown on the approved final development plan documents, for the portion of which improvements are constructed to the ultimate design and cross section for said roadways. The amount of such reimbursement shall be limited to S26 340 00 beinc the funds Which have been received from the Buffalo Run Apartments developerforthe future construction of the local street improvements adiacent to the site. The amount received was based upon actual cost *or construction of the portions of the local street construction that were completed by the Developer of the Buffalo Run Apartments site and as such the City shall not be responsible for any costs above and beyond the amount collected to fund such local improvements. Reimbursement shall be for the costs incurred for construction of the local street improvements, for those portions that are built in accordance with the ultimate street design, and submittal(s) for reimbursement shall be in accordance with Section 24-112 of the Code of the City 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. 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. 300), 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 oe 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 Ti"101-sand 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. W]