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HomeMy WebLinkAboutSIDEHILL - Filed DA-DEVELOPMENT AGREEMENT - 2004-06-21DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into this I `, " day of t , -r 2004, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and JamesCompany, a division of TOUSA Homes, Inc., a Florida Corporation, hereinafter referred to as the "Developer" and SIDEHILL ONE LLC, a Colorado limited Liability Company, SIDEHILL TWO LLC, a Colorado limited liability company, and POSTLE DEVELOPMENT COMPANY, a Colorado corporation, hereinafter referred to as the "Owner." WITNESSETH: WHEREAS, the Developer has acquired or will acquire from the Owner the rights to develop certain real property situated in the County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property" or "Development") and legally described as follows, to wit: A tract of land located in Section 20, Township 7 North, Range 68 West of the 6th Principal Meridian, City of Fort Collins, Larimer County, Colorado WHEREAS, the Developer desires to develop the Property and has submitted to the City all plats, plans (including utility plans), reports and other documents required for the approval of a final plan according to the City's development application submittal requirements master list (the "Final Development Plan Documents") copies of which are on file in the office of the City Engineer and made a part hereof by reference; and WHEREAS, the parties hereto have agreed that the development of the Property will require increased municipal services from the City in order to serve such area and will further require the installation of certain improvements primarily of benefit to the lands to be developed and not to the City of Fort Collins as a whole; and WHEREAS, the City has approved the Final Development Plan Documents submitted by the Developer subject to certain requirements and conditions, which involve the installation of and construction of utilities and other municipal improvements in connection with the Property. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is agreed as follows: foregoing security to conform to the final cost estimate; provided, however, that in no event shall the amount of said security be required to exceed the sum of $2,500,000. In order to then fund the construction of the APF Improvements, the Developer will thereafter substitute cash for the security as provided in Paragraph II(D)(6) below. 4. Under Section 24-95 of the City Code, the Developer is also responsible for the construction of the local portion of Timberline Road adjacent to the Development. In lieu of actually constructing such local portion, the Developer may satisfy this obligation by making the following payments: a. Prior to the issuance of building permits for more than 75 dwelling units in Filing One, of the Development (excluding Outlot A), the Developer shall pay to the City Engineering Department, in cash, the local street portion of Timberline Road for Filing One excluding Outlot A. The amount to be paid under this provision shall be determined on the basis of the final design and estimate to be completed by the City. b. Prior to the issuance of building permits for more than 75 dwelling units in Outlot A within Filing One of the Development, the Developer shall pay to the City Engineering Department, in cash, the local street portion of Timberline Road for Outlot A, the amount of which payment shall also be determined on the basis of the final design and estimate to be completed by the City. 5. The Developer's initial payment of its local street portion under Paragraph II(D)(4) above shall be in the amount of $100,000. Said payment shall be paid in cash to the City Engineering Department to fund engineering and design work on the APF Improvements, and, notwithstanding any provision to the contrary in Paragraph II(D)(4) above, shall be due and payable upon the City's issuance of a development construction permit for the Development. Said payment ($100,000) shall be nonrefundable, whether or not the Developer elects to proceed with the Development, but shall in any event be credited to the Developer's local street portion referenced in Paragraph II(D)(4) above. 6. The City contemplates bidding the construction contract for the Timberline Road improvements in the Spring of 2005. Accordingly, on or before February 28, 2005, if the Developer is then proceeding with construction of the Development, the Developer hereby agrees to pay the balance of any local street portion cost that is still due for Filing One and Outlot A under Paragraph II(D)(4) above, together with the total amount of cash required to be paid by the Developer to fund the APF Improvements as required under Paragraph II(D)(3) above. 7. The Developer has caused a petition to be filed with the City Council requesting the formation of a SID in order to provide a mechanism whereby the Developer can be reimbursed for financing the required APF improvements. The formation of the SID shall be solely at the discretion of the City Council, and the City in 10 no way guarantees that the SID will, in fact, be established by the Council. If the Council does choose to establish the SID, the City will utilize the SID assessment payments of the property owners in the SID, including any SID payments made by the Developer as a benefited property owner in the District, to repay the Developer for the total amount actually paid by the Developer for the APF Improvements under this Agreement. If the SID is not established by the Council, the Developer shall continue to be obligated to satisfy the APF requirements in the manner described in Paragraphs II(D)(3) through II(D)(7) hereof in order for the Development to proceed, but only to the extent such APF requirements specifically apply to the Development. Those portions of the APF requirements applicable to the SC Group Investments, LLC Property (as hereinafter defined), if different from those applicable to the Development, shall be the responsibility of the developer of the SC Group Investments, LLC. Property If the Developer fails to satisfy such requirements with respect to the Development, the Development will not be able to proceed. Whether or not the SID is created, the parties agree that the Developer's posting of the security required under Paragraph II(D)(3) above, its replacement of the security with cash funds on or before February 28, 2005 under Paragraph II(D)(6) above, and its payment of its local street portion as provided in Paragraph II(D)(4) above, shall satisfy the APF requirements for the Development. Said payments shall also satisfy the APF requirements for the development of that certain neighboring parcel of real property shown on Exhibit "C," attached hereto and incorporated herein by this reference (the "SC Group Investments, LLC, Property").; provided, however, that said payments shall satisfy the APF requirements for the SC Group Investments, LLC Property only with regard to any development proposal submitted to the City for said property within five (5) years of the date of execution of this Agreement. 8. The Developer agrees that the Sharp Pointe Drive connection to Midpoint Drive is required for connectivity and circulation for this Development. The Developer is obligated to construct its local street portion of the Sharp Pointe Drive connection which is estimated to cost $120,443. In lieu of this construction; the Developer shall provide to the City Street Oversizing Fund one-third of said estimate, or the sum of $40,147.67, prior to the issuance of any building permits for Filing One of the Development, excluding Outlot A. In lieu of the lump sum payment to the City, the Developer may pay to the City $1,338.26, at the time of issuance of each of the first 30 building permits in Filing One of the Development, excluding Outlot A. The obligation of each future filing within the property will be identified and determined in each future Filing's Development Agreement. Any payment made under this Paragraph shall be in the amount of said estimate plus such additional amount as is necessary to bring the estimate current, accounting for actual inflation costs. The inflation factor shall be calculated using the construction cost index for Denver as published in the Engineering News Record (ENR) of September, 2003, and the same index published in the ENR in the month preceding payment of the reimbursement. 9. The Developer agrees to reimburse the City the sum of $384,061.79, plus a percentage added to recognize the effects of inflation, for the cost of constructing the Timberline and Drake improvement project adjacent to the Property 11 which was completed by the City in 2001. The inflation factor shall be calculated using the construction cost index for Denver as published in the Engineering News Record (ENR) of August, 2001, and the same index published in the ENR in the month preceding payment of the reimbursement. Payment shall be made to the City prior to the issuance of the first building permit in this Development. 10. Notwithstanding any provision herein to the contrary, the Developer shall be responsible for all costs for the initial installation of traffic signing and striping for this Development, including both signing and striping related to the Developer's internal street operations and the signing and striping of any adjacent or adjoining local, collector or arterial streets that is made necessary because of the Development. 11. Following completion of all public infrastructure improvements, the Developer shall continue to have responsibility for maintenance and repair of said improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code of the City. E. Natural Resources 1. The Developer shall ensure that all wetlands and uplands are properly maintained for a three (3) year period following construction thereof to ensure that the vegetation and hydrologic regime are fully established. Monitoring of the vegetation shall occur at least in June and September of the first growing season and in late summer of the remaining growing seasons. The status and effectiveness of the vegetation shall be evaluated and the results reported to the City of Fort Collins Natural Resources Department semi-annually for review. 2. The areas of the Development that are planned to be seeded, including the wetland mitigation, shall be inspected jointly by the Developer and the City at specified intervals for three (3) seasons or until determined by the City to be well established in accordance with the coverage specifications of this paragraph, whichever occurs first. Areas seeded in the Spring shall be inspected for required coverage each immediately subsequent Autumn not later than October 1 st. Areas seeded at any other time shall be inspected each immediately subsequent Summer not later than August 1 st. The required coverage for the first inspection shall be ten (10) viable live seedlings of the specified species per 1000 square centimeters (approximately one square foot), or fifty percent (50%) coverage of the specified foliage as measured from five feet (5') directly overhead, with no bare spots larger than 1000 square centimeters. At the time of the second growing season inspection, there shall be seventy-five percent (75%) foliage cover of the specified species planted as measured from five (5') directly overhead. No more than ten percent (10%) of the species noted on the site may be weedy species as defined by Article III, Section 20-41 of the Code of the City. The Developer shall be responsible for weed control at all times. Determination of required coverage will be based on fixed transects each ten meters in length, randomly placed in representative portions of the seeded areas, with plant species or bare ground/rock/litter being noted every ten (10) centimeters along each transect. The Developer shall 12 warrant all seeded areas for three (3)-growing seasons from the date of completion. The Developer shall rework and reseed per original specifications any areas that are dead, diseased, contain too many weedy species, or fail to meet the coverage requirement at no additional cost to the City. 3. Fueling facilities shall be located at least one hundred (100) feet from natural body of water, wetland, natural drainage way or manmade drainage way. The fuel tanks and fueling area must be set in a containment area that will not allow a fuel spill to directly flow, seep, run off, or be washed into a body of water, wetland or drainage way. 4. The Developer shall delineate the Development's property boundary adjacent to all Limits of Development (L.O.D.) as defined by Article V, Section 5.1.2 of the Land Use Code, including boundaries around existing trees that are to be undisturbed, with orange construction fence prior to any type of construction, including overlot grading. 5. Prior to the commencement of any development activities within the Limits of Development, the Developer shall relocate or eradicate any prairie dogs inhabiting any portions of the site using City -approved methods as set forth in Chapter 4 of the City Code. If prairie dogs are present fumigation is best done between late April and early June and relocation shall occur prior to March 1 or after May 31 of any given year. F. Soil Amendment 1. In all areas associated with this Development that are to be landscaped or planted in accordance with the Final Development Plan Documents, and do not require a building permit, the soils shall be loosened and amended by the Developer in accordance with Section 3.8.21 of the Land Use Code prior to the issuance of more than twenty building permits in this Development. Completion of soil amendments shall include certification by the Developer that the work has been completed. This certification shall be submitted to the City at least two (2) weeks prior to the date of issuance of additional building permits in this Development. G. Ground Water, Subdrains and Water Rights 1. The City shall not be responsible for, and the Developer (for itself and its successor(s) in interest) hereby agrees to indemnify and hold harmless the City against, any damages or injuries sustained in the Development as a result of ground water seepage or flooding, structural damage, or other damage unless such damages or injuries are proximately caused by the City's negligent operation or maintenance of its storm drainage facilities in the Development. However, nothing herein shall be deemed a waiver by the City of its immunities, defenses, and limitations to liability under the 13 Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any other law. 2. If the Development includes a subdrain system (which for Filings 2 and 3 may incorporate a pump station), any such subdrain system, whether located within private property or within public property such as street rights -of -way or utility or other easements, shall not be owned, operated, maintained, repaired or reconstructed by the City and it is agreed that all ownership, operation, maintenance, repair and reconstruction obligations shall be those of the Developer or the Developer's successor(s) in interest. Such subdrain system is likely to be located both upon private and public property and, to the extent that it is located on public property, all maintenance, operation, repair or reconstruction shall be conducted in such a manner that such public property shall not be damaged, or if damaged, shall, upon completion of any such project, be repaired in accordance with then existing City standards. The City shall not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the Development as the result of groundwater seepage or flooding, structural damage or other damage resulting from failure of any such subdrain system. If a pump station is incorporated into the subdrain system for Filings 2 and 3 of the Development, the Developer (for itself and its successor(s) in interest) agrees to establish and fund an operation and maintenance account through a property owners' association in an amount mutually acceptable to the City and the Developer. 3. Without admitting or denying any duty to protect water rights, the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries to water rights caused, directly or indirectly by the construction, establishment, maintenance or operation of the Development. 4. The City agrees to give notice to the Developer of any claim made against it to which the foregoing indemnities and hold harmless agreements by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided the Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to notify the Developer of any such claim within ninety (90) days after the City first receives written notice of the same, shall cause the forgoing indemnities and hold harmless agreements by the Developer to not apply to such claim and such failure shall constitute a release of the foregoing indemnities and hold harmless agreements as to such claim. H. Hazards and Emergency Access 1. No combustible material will be allowed on the site until a permanent water system is installed by the Developer and approved by the City. 2. Prior to beginning any building construction in Tracts A, B or C (which represent the multi -family portion of this development), and throughout the build- 14 out of this Development, the Developer shall provide and maintain at all times an accessway to said building or buildings. Such accessway shall be adequate to handle any emergency vehicles or equipment, and the accessway shall be kept open during all phases of construction. Such accessway shall be constructed to an unobstructed width of at least 20 feet with 4 inches of aggregate base course material compacted according to city standards and with an 80 foot diameter turnaround at the building end of said accessway. The turnaround is not required if an exit point is provided at the end of the accessway. Prior to the construction of said accessway, a plan for the accessway shall be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for review and processing.) If such accessway is at any time deemed inadequate by the Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into compliance and until such time that the accessway is brought into compliance, the City and/or the Poudre Fire Authority may issue a stop work order for all or part of the Development. Development Construction Permit 1. The Developer shall apply for and obtain a Development Construction Permit for this Development, in accordance with Division 2.6 of the Land Use Code (or Section 29-12 of the Transitional Land Use Regulations, if applicable), prior to the Developer commencing construction. The Developer shall pay the required fees for said Permit and construction inspection, and post security to guarantee completion of the public improvements required for this Development, prior to issuance of the Development Construction Permit. J. Maintenance and Repair Guarantees 1. The Developer agrees to provide a two-year maintenance guarantee and a five-year repair guarantee covering all errors or omissions in the design and/or construction of the public improvements required for this Development, which guarantees shall run concurrently and shall commence upon the date of completion of the public improvements and acceptance thereof by the City. More specific elements of these guarantees are noted in Exhibit "D." Security for the maintenance guarantee and the repair guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use Regulations, as applicable. Notwithstanding the provisions of Paragraphs III (H) and (1) of this Agreement to the contrary, the obligations of the Developer pursuant to this paragraph and Exhibit "D" may not be assigned or transferred to any other person or entity unless the warranted improvements are completed by, and a letter of acceptance of the warranted improvements is received from the City by, such other person or entity. 15 Miscellaneous A. The Developer agrees to provide and install, at its expense, adequate barricades, warning signs and similar safety devices at all construction sites within the public right-of-way and/or other areas as deemed necessary by the City Engineer and Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been completed. B. As required pursuant to Chapter 20, Article IV of the City Code, the Developer shall, at all times, keep the public right-of-way free from accumulation of waste material, rubbish, or building materials caused by the Developer's operation, or the activities of individual builders and/or subcontractors; shall remove such rubbish as often as necessary, but no less than daily and; at the completion of the work, shall remove all such waste materials, rubbish, tools, construction equipment, machinery, and surplus materials from the public right-of-way. The Developer further agrees to maintain the finished street surfaces so that they are free from dirt caused by the Developer's operation or as a result of building activity. Any excessive accumulation of dirt and/or construction materials shall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until the problem is corrected to the satisfaction of the City Engineer. If the Developer fails to adequately clean such streets within two (2) days after receipt of written notice, the City may have the streets cleaned at the Developer's expense and the Developer shall be responsible for prompt payment of all such costs. The Developer also agrees to require all contractors within the Development to keep the public right-of-way clean and free from accumulation of dirt, rubbish, and building materials. C. The Developer hereby agrees that it will require its contractors and subcontractors to cooperate with the City's construction inspectors by ceasing operations when winds are of sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the public health and welfare. D. The Developer shall, pursuant to the terms of this Agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the Final Development Plan Documents, or any documents executed in the future that are required by the City for the approval of an amendment to a development plan, and the City may withhold (or to the extent permitted by law, revoke) such building permits and certificates of occupancy as it deems necessary to ensure performance in accordance with the terms of this Development Agreement. The processing and "routing for approval" of the various development plan documents may result in certain of said documents carrying dates of approval and/or execution that are later than the date of execution of this Development Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of this Agreement. The Developer hereby waives any right to object to any such discrepancy in dates. 16 E. Nothing herein contained shall be construed as a waiver of any requirements of the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable) and the Developer agrees to comply with all requirements of the same. F. In the event the City waives any breach of this Agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. G. All financial obligations of the City arising under this Agreement that are payable after the current fiscal year are contingent upon funds for that purpose being annually appropriated, budgeted and otherwise made available by the Fort Collins City Council, in its discretion. H. This Agreement shall run with the Property and shall be binding upon and inure to the benefit of the parties hereto, their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. I. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the Developer shall be released from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. J. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. Notwithstanding any provision hereof to the contrary, City's sole remedy in the event Developer fails to make the payments described in Paragraph II(D) of this Agreement shall be to withhold permits or approvals to Developer for the Development until such time as such payments are made or alternative sources for the funds described in Paragraph II(D)(3), in the form acceptable to the City, are provided. K. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action 17 against said defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney's fees and costs incurred by reason of the default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph III.J of this Agreement. L. Except as may be otherwise expressly provided herein, this Agreement shall not be construed as or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever. M. It is expressly understood and agreed by and between the parties hereto that this Agreement shall be governed by and its terms construed under the laws of the State of Colorado and the City of Fort Collins, Colorado. N. Any notice or other communication given by any party hereto to any other party relating to this Agreement shall be hand -delivered or sent by certified mail, return receipt requested, addressed to such other party at their respective addresses as set forth below; and such notice or other communication shall be deemed given when so hand -delivered or three (3) days after so mailed: If to the City: Engineering Development Review City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 With a copy to: City Attorney's Office City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 If to the Developer: JamesCompany, a division of TOUSA Homes, Inc. 2919 Valmont Road, Suite 204 Boulder, CO 80301 Attn: Dan Wenzinger With a copy to: Ms. Catherine A. Hance, Esquire DAVIS, GRAHAM & STUBBS, LLP 1550 Seventeenth Street, Suite 500 Denver, CO 80202 If to the Owner: SIDEHILL ONE LLC Coronado West 301 West Warner, Suite 134 Tempe, AZ 85284 Attn: John Cork 10 AND POSTLE DEVELOPMENT COMPANY 6800 79th Street, Suite 201 Niwot, CO 80503 Attn: Jim Postle. President With a copy to: Mr. Peter Gold 301 West Warner, Suite 134 Tempe, AZ 85284 Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees or assigns, wishes to change the person, entity or address to which notices under this Agreement are to be sent as provided above, such party shall do so by giving the other parties to this Agreement written notice of such change. 0. When used in this Agreement, words of the masculine gender shall include the feminine and neuter gender, and when the sentence so indicates, words of the neuter gender shall refer to any gender; and words in the singular shall include the plural and vice versa. This Agreement shall be construed according to its fair meaning, and as if prepared by all parties hereto, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto pertaining to the matters addressed in this Agreement. There shall be deemed to be no other terms, conditions, promises, understandings, statements, representations, expressed or implied, concerning this Agreement, unless set forth in writing signed by all of the parties hereto. Further, paragraph headings used herein are for convenience of reference and shall in no way define, limit, or prescribe the scope or intent of any provision under this Agreement. P. The Owner is made a party to this Agreement solely for the purpose of subjecting the Property to the covenants contained in this Agreement. The City and the Developer expressly acknowledge and agree that the Owner shall not be liable for any obligations of the Developer under this Agreement, unless Owner were to exercise any of the rights of the Developer in which event the obligations of the Developer shall become those of the Owner. P�TTEST: City Clerk THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation City M ager 19 General Conditions A. The terms of this Agreement shall govern all development activities of the Developer pertaining to the Property. For the purposes of this Agreement, "development activities" shall include, but not be limited to, the following: (1) the actual construction of improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or appearance of the Property caused by, or on behalf of, the Developer with the intent to construct improvements thereon. B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the Final Development Plan Documents and in full compliance with the standards and specifications of the City on file in the office of the City Engineer at the time of approval of the utility plans relating to the specific utility, subject to a three (3) year time limitation from the date of approval of the site specific development plan. In the event that the Developer commences or performs any construction pursuant hereto after the passage of three (3) years from the date of approval of the site specific development plan, the Developer shall resubmit the utility plans to the City Engineer for reexamination. The City may then require the Developer to comply with the approved standards and specifications of the City on file in the office of the City Engineer at the time of the resubmittal. C. No building permit for the construction of any structure within the Property shall be issued by the City until the public water lines and stubs to each lot or multi- family building, fire hydrants, electrical lines, sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and pavement with at least the base course completed) serving such structure have been completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred and sixty feet (660') from a single point of access, unless the structures contain sprinkler systems that are approved by the Poudre Fire Authority. D. Any water lines, sanitary sewer lines, storm drainage lines, electrical lines, and/or streets described on Exhibit 'A," attached hereto, shall be installed within the time and/or sequence required on Exhibit "A." If the City Engineer has determined that any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the Final Development Plan Documents and shall be installed by the Developer within the time as established under "Special Conditions" in this document. E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by this Development as shown on the Final Development Plan Documents and other approved documents pertaining to this Development on file with the City. 2 APPROVED AS TO CO TENT: City Engineer APPR�)ASLTOlFORM: Deputy City Attorney DEVELOPER: JamesCompany, a division of TOUSA Homes, Inc., a FlMida Corporation By: -- — Dan Wenzinger, 'xecu ve Vice President, Operations OWNER: SIDEHILL ONE LLC, a Colorado limited liability company By:,' Joh SfDEHI liability Managing Member LLC, a Colorado limited Jtshn Cork, Managing Member POSTLE DEVELOPMENT COMPANY, a Colorado corp ation By: Jame Postle, President 20 EXHIBIT "A" 1. Schedule of electrical service installation. Electrical lines need to be installed prior to the installation of the sidewalk, curb returns, handicap ramps, paving and landscaping. If the Developer installs any curb return, sidewalk or handicap ramp prior to the installation of electrical lines in an area that interferes with the installation of the electrical line installation, the Developer shall be responsible for the cost of removal and replacement of those items and any associated street repairs. 2. Schedule of water lines to be installed out of sequence. Not Applicable. 3. Schedule of sanitary sewer lines to be installed out of sequence. Not Applicable. 4. Schedule of street improvements to be installed out of sequence. Not Applicable 5. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. 21 EXHIBIT "B" Not Applicable 22 EXHIBIT "C" A tract of land situate in the Southeast'/4 of Section 19, Township 7 North, Range 68 West of the 6t" P.M., which considering the East line of the Northeast '/4 of said Section 19 as bearing S 00°19'30" W and with all bearings contained herein relative thereto is contained within the boundary lines which begin at a point on the East line of the said Southeast'/4 which bears S 00°29'55" W 367.93 feet from the East '/4 corner of said Section 19 and run thence S 00°29'55" W 2284.06 feet to the Southeast corner of said Section 19; thence S 89°53'54" W 1056.80 feet along the South line of the said Southeast '/4 to a point on the East right of way line of the Union Pacific Railroad; thence N 00°28'22" E 2276.85 feet along said East right of way line, thence N 89°30'30" E 1057.94 feet to the point of beginning, County of Larimer, State of Colorado. 23 EXHIBIT °D" MAINTENANCE GUARANTEE: The Developer hereby warrants and guarantees to the City, for a period of two (2) years from the date of completion and first acceptance by the City of the public improvements warranted hereunder, the full and complete maintenance and repair of the public improvements constructed for this Development. This warranty and guarantee is made in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land Use Regulations, as applicable. This guarantee applies to the streets and all other appurtenant structures and amenities lying within the rights -of -way, easements and other public properties, including, without limitation, all curbing, sidewalks, bike paths, drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any maintenance and/or repair required on utilities shall be coordinated with the owning utility company or city department. The Developer shall maintain said public improvements in a manner that will assure compliance on a consistent basis with all construction standards, safety requirements and environmental protection requirements of the City. The Developer shall also correct and repair, or cause to be corrected and repaired, all damages to said public improvements resulting from development -related or building -related activities. In the event the Developer fails to correct any damages within thirty (30) days after written notice thereof, then said damages may be corrected by the City and all costs and charges billed to and paid by the Developer. The City shall also have any other remedies available to it as authorized by this Agreement. Any damages which occurred prior to the end of said two (2) year period and which are unrepaired at the termination of said period shall remain the responsibility of the Developer. REPAIR GUARANTEE: The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5) year period, commencing upon the date of completion and acceptance by the City of the public improvements constructed for this Development, from any and all claims, damages, or demands arising on account of the design and construction of public improvements of the Property shown on the approved plans and documents for this Development; and the Owner furthermore commits to make necessary repairs to said public improvements, to include, without limitation, the roads, streets, fills, embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the right-of-way easements and other public properties, resulting from failures caused by design and/or construction defects. This agreement to hold the City harmless includes defects in materials and workmanship, as well as defects caused by or consisting of settling trenches, fills or excavations. Further, the Developer agrees that the City shall not be liable to the Developer during the warranty period, for any claim of damages resulting from negligence in exercising 24 engineering techniques and due caution in the construction of cross drains, drives, structures or buildings, the changing of courses of streams and rivers, flooding from natural creeks and rivers, and any other matter whatsoever on private property. Any and all monetary liability occurring under this paragraph shall be the liability of the Developer. The obligations of the Developer pursuant to the "maintenance guarantee" and 'repair guarantee" provisions set forth above may not be assigned or transferred to any other person or entity unless the warranted improvements are completed by, and a letter of acceptance of the warranted improvements is received from the City by, such other person or entity. 25 F. Street improvements shall not be installed until all utility lines to be placed therein have been completely installed, including all individual lot service lines (water and sewer) leading in and from the main to the property line and all electrical lines. G. The installation of all utilities shown on the Final Development Plan Documents shall be inspected by the Engineering Department of the City and shall be subject to such department's approval. The Developer agrees to correct any deficiencies in such installations in order to meet the requirements of the plans and/or specifications applicable to such installation. In case of conflict, the Final Development Plan Documents shall supersede the standard specifications. H. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainage or seepage waters from the Property in a manner or quantity different from that which was historically discharged and caused by the design or construction of the storm drainage facilities, except for (1) such claims and damages as are caused by the acts or omissions of the City in maintenance of such facilities as have been accepted by the City for maintenance; (2) errors, if any, in the general concept of the City's master plans (but not to include any details of such plans, which details shall be the responsibility of the Developer); and (3) specific written or otherwise documented directives that may be given to the Developer by the City. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to notify the Developer of any such claim within ninety (90) days after the City first receives written notice of the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. Approval of and acceptance by the City of any storm drainage facility design or construction shall in no manner be deemed to constitute a waiver or relinquishment by the City of the aforesaid indemnification. The Developer shall engage a Colorado licensed professional engineer to design the storm drainage facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be intended for the benefit of the City, and subsequent purchasers of property in the Development. I. The Developer shall pay storm drainage basin fees in accordance with Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for credit or City repayment under the provisions of Chapter 26 are described together with the estimated cost of the improvements on the attached Exhibit "B," which 3 improvements, if applicable, shall include right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. J. The Developer shall provide the City Engineer with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of each phase of the construction. Utilities will not be initially accepted prior to as -built drawings being submitted to and approved by the City of Fort Collins. K. The Developer specifically represents that to the best of its knowledge all property dedicated (both in fee simple and as easements) to the City associated with this Development (whether on or off -site) is in compliance with all environmental protection and anti -pollution laws, rules, regulations, orders or requirements, including solid waste requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such property as is dedicated to the City pursuant to this Development, is in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority or any third party, pertaining to the disposal of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfill of hazardous substances, pollutants or contaminants, or environmental cleanup responsibilities of any nature whatsoever on, of, or related to any property dedicated to the City in connection with this Development, provided that such damages or liability are not caused by circumstances arising entirely after the date of acceptance by the City of the public improvements constructed on the dedicated property, except to the extent that such circumstances are the result of acts or omissions of the Developer. Said indemnification shall not extend to claims, actions or other liability arising as a result of any hazardous substance, pollutant or contaminant generated or deposited by the City, its agents or representatives, upon the property dedicated to the City in connection with this Development. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to notify the Developer of any such claim within ninety (90) days after the City first receives written notice of the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. L. The Developer acknowledges and agrees that the City, as the owner of any adjacent property (the "City Property") on which off -site improvements may be constructed, or that may be damaged by the Developer's activities hereunder, expressly 0 retains (and does not by this Development Agreement waive) its rights as property owner. The City's rights as owner may include without limitation those rights associated with the protection of the City Property from damage, and/or the enforcement of restrictions, limitations and requirements associated with activities on the City Property by the Developer as an easement recipient. II. Special Conditions A. Water Lines 1. Prior to the issuance of any building permit(s) for this Development, the Developer shall, in accordance with Section 26-121 of the City Code, reimburse the City the sum of $54,037.52, plus inflation for the cost of the Developer's portion of the Drake Road/County Road 9 (now Ziegler Road) 24-inch water main. This reimbursement is based upon the front footage along the water main (2,350.08 feet) which is adjacent to portions of the Development. The inflation shall be calculated based upon the Construction Cost Index for Denver as published in the Engineering News Record of December 1, 1997. 2. Prior to the issuance of any building permit(s) for this Development, the Developer shall, in accordance with Section 26-121 of the City Code, reimburse the City the sum of $47,680.00, plus inflation for the cost of the Developer's portion of the Timberline Road 24-inch water main. This reimbursement is based upon the front footage along the water main (2,980 feet) which is adjacent to portions of the Development. The inflation shall be calculated based upon the Construction Cost Index for Denver as published in the Engineering News Record, of April, 1989. B. Sewer Lines 1. The existing sanitary sewer in Drake Road has insufficient capacity. The City is constructing a relief sewer project which includes a sewer from the Drake Water Reclamation Facility to a point approximately 1600 feet west of the northeast corner of Section 29. The remaining work includes approximately 665 feet of 42-inch sewer and 805 feet of 24-inch of sewer. The Developer agrees to pay one sixth of the cost of the 665 feet of 42-inch sewer including the cost of the railroad permit. The final amount of the reimbursement (estimated to be $47,400) will be determined following construction. Payment will be made by the Developer to the City within 60 days following completion of construction of the sewer. If payment is not made within 60 days, building permits will be withheld until reimbursement is received. C. Storm Drainage Lines and Appurtenances 1. All on -site and off -site storm drainage improvements associated with this Development, as shown on the Final Development Plan Documents, shall be completed by the Developer in accordance with said documents prior to the issuance of 5 any certificates of occupancy in Tracts A, B or C (which represent the multi -family portion of this development) and prior to obtaining more than 20 building permits in the single family portion of this Development. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities (including the improvements on the off -site detention pond within the Rigden Farm Filing 6 property) which partially serve the Development have been constructed in conformance with said Final Development Plan Documents. This certification shall be submitted to the City at least two weeks prior to the date of issuance of any building permits or certificates of occupancy as appropriate. 2. The Developer shall be responsible for maintaining the structural integrity and operational functions of all drainage facilities throughout the build -out of this Development. If at any time following certification (as required pursuant to Paragraph II(C)(1) above) of said drainage facilities and during the construction of structures and /or lots within this Development the City reasonably decides that said drainage facilities no longer comply with the Final Development Plan Documents, the City shall give written notice to the Developer of all items which do not comply with the Final Development Plan Documents. Unless the Developer successfully appeals the decision of non-compliance, it shall bring such facilities back up to the standards and specifications as shown on the Final Development Plan Documents. Failure to maintain the structural integrity and operational function of said drainage facilities following certification shall result in the withholding of the issuance of additional building permits and/or certificates of occupancy until such drainage facilities are repaired to the operational function and structural integrity which was approved by the City. 3. The Developer agrees to provide and maintain erosion control improvements as shown on the Final Development Plan Documents to stabilize all over - lot grading in and adjacent to this Development. The Developer shall also be required to post a security deposit in the amount of $ 86,889.20 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the Final Development Plan Documents. Said security deposit(s) shall be made in accordance with the criteria set forth in the City's Storm Drainage Design Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to abide by the erosion control provisions of the Final Development Plan Documents or the erosion control provisions of the Criteria after receiving notice of the same or an emergency situation exists which would reasonably require immediate mitigation measures, then, in either event, and notwithstanding any provisions contained in Paragraph III(J) to the contrary, the City may enter upon the Property for the purpose of making such improvements and undertaking such activities as may be necessary to ensure that the provisions of said plans and the Criteria are properly enforced. The City may apply such portion of the security deposit(s) as may be necessary to pay all costs incurred by the City in undertaking the administration, construction, and/or installation of the erosion control measures required by said plans and the Criteria. In addition, the City shall have the option to withhold building permits and certificates of occupancy, as stated in Paragraph III.D of this Agreement, as it deems necessary in order to ensure that the Developer installs and maintains the erosion control measures throughout the build -out of this Development. 4. It is important that all lots be graded to drain in the configuration shown on the Final Development Plan Documents. For this reason the following additional requirements shall be followed for all buildings/structures on all lots: Prior to the issuance of a certificate of occupancy for any lot or building the Developer shall provide the City with certification that the lot and or the building have been graded correctly. This grading certification shall demonstrate that the lot or building finish floor elevation has been built in accordance with the elevation specified on the Final Development Plan Documents. The certification shall also show that the minimum floor elevation or minimum opening elevation for any building constructed is in compliance with the minimum elevation as required on the Final Development Plan Documents. The certification shall demonstrate as well that any minor swales adjacent to the building or on the lot have been graded correctly and in accordance with the grades shown on the Final Development Plan Documents. The certification shall also show that the elevations of all corners of the lot are in accordance with the elevations shown on the Final Development Plan Documents. Said certification shall be completed by a Colorado licensed professional engineer and shall be submitted to the City at least two weeks prior to the date of issuance of the desired certificate of occupancy. 5. The Developer shall obtain the City's prior approval of any changes from the Final Development Plan Documents in grade elevations and/or storm drainage facility configuration that occur as a result of the construction of houses and/or development of lots, whether by the Developer or other parties. The City reserves the right to withhold the issuance of building permits and certificates of occupancy for this Development until the City has deemed such changes as being acceptable for the safe and efficient delivery of storm drainage water. 6. The Developer shall limit the construction of the off -site subdrain line to the limits of construction as shown on the Final Development Plan Documents. The contractor shall re -seed and restore all areas that are disturbed during construction of the off -site subdrain line in accordance with the Final Development Plan Documents promptly following construction unless precluded by winter, in which event, promptly in the spring. 7. The Developer shall ensure that no negative impact occurs to the adjoining property during the construction activities. No grading shall be done outside of the approved areas as shown on the Final Development Plan Documents. 8. The drainage design for this Development provides for the evacuation of storm drainage runoff in a reasonable amount of time out of the detention facilities and into the drainage outfall system. If, during or within 2 years after construction and acceptance of the detention facilities associated with this Development, surfacing or standing water conditions persist in these facilities; and if such conditions are beyond what can be expected in accordance with the approved stormwater design, the Developer shall promptly, upon such discovery, install an adequate de -watering system in the detention facilities. Such a system shall be reviewed and approved by the City prior to installation. 9. The Developer shall be responsible for maintenance of all storm drainage facilities that are constructed outside of the public right-of-way. 10. In all areas associated with this Development that are to be landscaped or planted in accordance with the Final Development Plan documents, and do not require a building permit, the soils shall be loosened and amended by the Developer in accordance with Section 3.8.21 of the Land Use Code prior to the issuance of more than twenty (20) building permits in the Development. Completion of soil amendments shall include certification by the Developer that the work has been completed. This certification shall be submitted to the City at least two (2) weeks prior to the date of issuance of additional building permits in this Development. D. Streets. 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Drake Road and Timberline Road for those portions of said streets that abut the Property as shown on the Final Development Plan Documents. Reimbursement for Drake Road shall be for oversizing the street from local (access) standards to minor arterial standards. Reimbursement for Timberline Road shall be for oversizing the street from local (access) standards to major arterial standards. The City shall make reimbursement to the Developer for the aforesaid oversized street improvements in accordance with Section 24-112 of the Code of the City. The Developer agrees and understands that the City shall have no obligation to make reimbursement payments for street oversizing unless funds for such payments shall first have been budgeted and appropriated from the Street Oversizing Fund by the City Council; and the Developer further understands that to the extent that funds are not available for such reimbursement, the City may not, in the absence of the Developer's agreement, require the construction, at the Developer's expense, of any oversized portion of streets not reasonably necessary to offset the traffic impacts of the Development. The Developer does hereby agree to construct the aforesaid oversized street improvements with the understanding that the Developer may not be fully reimbursed by the City for the cost of such construction. The Developer further agrees to accept payment in accordance with Section 24-112 (d) of the Code of the City as full and final settlement and complete accord and satisfaction of all obligations of the City to make reimbursements to the Developer for street oversizing expenses. It is anticipated by the City that the City's reimbursement, in accordance with Section 24-112 (d), would not be less than fifty percent (50%) of the Developer's actual expenses incurred and will be calculated in accordance with the formula as set forth in Section 24-112 (d). Notwithstanding the foregoing, the parties anticipate that the City will undertake the design and construction of the Timberline improvements using, in part, funds of the Developer, in accordance with Paragraphs II(D)(3) through II(D)(7) below, in which event the reimbursement provisions of this paragraph would not be applicable. 2. It is understood that the improvements that are to be constructed in the public right-of-way as described in this Section II(D) are "City improvements" (as defined below) and, as such, any contract for the construction of the same must be executed in writing. If the cost of such improvements exceeds the sum of Thirty Thousand Dollars ($30,000), the contract for the construction of the same must be submitted to a competitive bidding process resulting in an award to the lowest responsible bidder; and evidence must be submitted to the City prior to the commencement of the work showing that the award was given to the lowest responsible bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the contract for the construction of the improvements must be insured by a performance bond or other equivalent security. For purposes of this paragraph, the term "City improvements" shall mean either (1) existing improvements owned by the City that are to be modified or reconstructed, or (2) any improvements funded in whole or in part by the City. 3. The Developer understands that the City's Adequate Public Facilities ("APF") provision applies to this Development as set forth in Section 3.7.3 of the City's Land Use Code ("LUC"). Accordingly, while this Development may proceed with construction of the on -site and off -site infrastructure improvements as shown on the Final Development Plan Documents, no building permits shall be issued for the Development until the provisions of said Section 3.7.3 of the LUC have been satisfied. This means that certain improvements must be made to the Prospect/Timberline intersection to increase the capacity of that intersection to service levels that will accommodate the traffic impacts of the Development. While the City has these improvements programmed into the City's Capital Improvement Program, that project is unfunded and unscheduled at this time. Therefore, in order to satisfy the above - referenced APF requirement, if the Developer proceeds with the Development, the Developer has elected to fund the City's share of the capacity improvements that must be made to the ProspectMmberline intersection (the "APF Improvements"), excluding street oversizing improvements.. The arrangement under which the Developer intends to provide said funding is set forth in Paragraphs II(D)(3) through II(D)(7) of this Agreement. If the Developer provides the funding as specified therein, the City will construct the APF Improvements at such time as it determines, in its sole discretion, that the funding provided by the Developer, in combination with such other funds as the City may consider necessary, is adequate to fully fund the scope of improvements that the City wishes to make. The cost of the APF Improvements that will need to be paid by the Developer is presently estimated to be $2,300,000. In order to proceed with the Development, the Developer hereby agrees to post a bond with the City, or provide other security in a form acceptable to the City, in said amount. Upon receipt of the Developer's payment in the amount of $100,000 pursuant to Paragraph II(D)(5) below, the City will procure a design of the APF Improvements. At such time as said design has been finalized and a final cost estimate of the APF Improvements has been completed by the City, the Developer hereby agrees to adjust the amount of the 0