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HomeMy WebLinkAboutBUCKING HORSE FILING ONE - Filed DA-DEVELOPMENT AGREEMENT - 2012-11-20RECEPTION#: 20120079864, 11/09/2012 at 01:49:42 PM, 1 OF 24, R $126.00 TD Pgs: 0 Scott Doyle, Larimer County, CO DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement"), is made and entered into this :23 day of in:4o6nr 2012, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and Bucking Horse Development, Inc., a Cold ado Corporation, hereinafter referred to as the "Developer"; and Bucking Horse LLC, i Colorado limited liability company and Jessup Farm LLC, a Colorado limited lia iility company hereinafter referred to collectively as the "Owner." WITNESSETH: WHEREAS, the Developer has entered into an agreement with the Owner to acquire ownership of certain real property situated in the County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property" or "Development") and legally described as follows, to wit: Bucking Horse Filing One, And Tract AS, Tract BH, Tract BI, Lots 1-7 Block 2, Lots 1-11 Block 5, Lots 8-23 Block 11, Lots 1-8 Block 12, Lots 13-32 Block 12, Lots 35-40 Block 12, Lots 1-18 Block 13 and Lots 1-19 Block 19, Sidehill Filing Two. All located in Northwest Quarter of Section 20, Township 7 North, Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the Developer desires to develop the Property and has submitted to the City all plats, plans (including utility plans), reports and other documents required for the approval of a final plan according to the City's development application submittal requirements master list (the "Final Development Plan Documents") copies of which are on file in the office of the City Engineer and made a part hereof by reference; and WHEREAS, the parties hereto have agri ell that the development of the Property will require increased municipal services from he City in order to serve such area and will further require the installation of certain nprovements primarily of benefit to the Property and not to the City of Fort Collins as a whole; and WHEREAS, the City has approved the Final Development Plan Documents submitted by the Developer, subject to certain requirements and conditions, which involve the installation of and construction of utilities and other municipal improvements in connection with the development of the Property. City Clerk's Office, Fort Collins, Colorado additional turning movements. The option to participate must be exercised prior to the City completing capital improvements to North Timberline Road. ,i 4. Phases Al and A2 of this development may be constructed at any time because phases Al and A2 are not dependent on any other phases for infrastructure improvements. Phase A3 shall be constructed prior to Phase C1 and Phase B. Phase B may be constructed prior to Phases C1 and C2 only if the sanitary sewer, detention and drainage improvements have been completed for Phases C1 and C2. Phase C1 shall be constructed prior to Phase C2 and shall include the sanitary sewer, detention and drainage improvements in Phase C2. 5. Lot 11 Block 5 may only take access off of Blue Yonder Way until such time that Phase C2 has been completed. .6. Notwithstanding any provision herein to the contrary, the Developer shall be responsible for all costs for the initial installation of traffic signing and striping for this Development, including both signing and striping related to the Developer's internal street operations and the signing and striping of any adjacent or adjoining local, collector or arterial streets that is made necessary because of the Development. 7. Following completion of all public infrastructure improvements, the Developer shall continue to have responsibility for maintenance and repair of said improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code of the City. E. Natural Resources 1. The Bucking Horse Filing One contains three isolated wetlands with a total area of one -tenth of an acre, all of w''ich wetlands are to be filled under the approved Final Development Plan. A pendinM Project Development Plan to the east known as `Bucking Horse Filing Two", and within the Bucking Horse Overall Development Plan, contains additional wetlands which will either be preserved or mitigated for during the development review process. City staff and the Developer have agreed to address the wetlands in Filing One and Filing Two under one Wetland Preservation, Mitigation and Monitoring Plan which will be filed with the Development Agreement of Filing Two. To insure that the wetlands within Filing One are addressed in a manner that meets the requirements outlined in Section 3.4.1 of the Land Use Code, the Developer shall provide to the City, with the filing of this Development Agreement, an acceptable form of security (cash, letter of credit, etc.) to guarantee completion of the wetland mitigation for Filing One (approximately 0.10 acres). An estimate for said mitigation has been prepared by the City and the Developer has agreed to provide an $8,000 security for the 0.10 acres of wetlands in Filing One. The City shall return the security to the Developer upon the completion of an approved Wetland Preservation, Mitigation and Monitoring Plan and the filing of the Development Agreement for Filing Two. If a Development Agreement for Filing Two does not contain an approved Wetland Preservation, Mitigation and Monitoring Plan, then the Developer shall promptly take 10 such steps as are necessary to mitigate for tl.terFiling One wetlands. If the Developer does not take action to bring the wetlands intp conformance with Section 3.4.1 of the Land Use Code, the City shall use the security provided by the Developer to install said mitigation whereupon the Developer shall automatically forfeit any right to the security. 2. Fueling facilities shall be located at least one hundred (100) feet from natural body of water, wetland, natural drainage way or manmade drainage way (except the 0.10 acres of wetlands discussed above). 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. F. Soil Amendment 1. In all areas associated with this Development that are to be landscaped or planted in accordance with the Final Development Plan Documents, and do not require a building permit, the soils shall be loosened and amended by the Developer in accordance with Section 3.8.21 of the Land Use Code prior to the issuance of any certificate of occupancy in this Development. Completion of soil amendments shall include certification by the Developer that the work has been completed. This certification shall be submitted to the City at least two (2) weeks prior to the date of issuance of any certificate of occupancy in this Development. G. Ground Water, Subdrains and Water Rights 1. The City shall not be responsible for, and the Developer (for itself and its successor(s) in interest) hereby agrees to indemnify and hold harmless the City against any damages or injuries Sustained in,the Development as a result of ground water seepage or flooding, structural damage, . or other damage unless such damages or injuries are proximately caused by the City's negligent operation or maintenance of the City's storm drainage facilities in the Development. However, nothing herein shall be deemed a waiver by the City of its immunities, defenses, and limitations to liability under the Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any other law. 2. If the Development includes a subdrain system, any such subdrain system, whether located within private property or within public property such as street rights -of -way or utility or other easements, shall not be owned, operated, maintained, repaired or reconstructed by the City and it is agreed that all ownership, operation, maintenance, repair and reconstruction obligations shall be those of the Developer or the Developer's successor(s) in interest. Such subdrain system is likely to be located both upon private and public property and, to the extent that it is located on public property, all maintenance, operation, repair or reconstruction shall be conducted in such a manner that such public property shall not be damaged, or if damaged, shall, upon completion of any such project, be repaired in accordance with then existing City standards. The City shall not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against 11 any damages or injuries sustained in the D&,eiopment as the result of groundwater seepage or flooding, structural damage or other damage resulting from failure of any such subdrain system. 3. Without admitting or denying any duty to protect water rights, the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries to water rights caused, directly or indirectly by the construction, establishment, maintenance or operation of the Development. 4. The City agrees to give notice to the Developer of any claim made against it to which the foregoing indemnities and hold harmless agreements by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided the Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause the forgoing indemnities and hold harmless agreements by the Developer to not apply to such claim and such failure shall constitute a release of the foregoing indemnities and hold harmless agreements as to such claim. H. Hazards and Emergency Access 1. No combustible material will be allowed on the site until a permanent water system is installed by the Developer and approved by the City. 2. Prior to beginning any building construction, and throughout the build -out of this Development, the Developer .,hall provide and maintain at all times a reasonable accessway to each building. Such accessway shall be adequate to handle any emergency vehicles or equipment, and the accessway shall be kept open during all phases of construction. Such accessway shall be constructed to an unobstructed width of at least 20 feet with 4 inches of aggregate base course material compacted according to city standards and with an 100 foot diameter turnaround at the building end of said accessway. The turnaround is not required if an exit point is provided at the end of the 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. Footing and Foundation Permits 12 1. Notwithstanding any provision in this Agreement to the contrary, the Developer shall have the right to obtain Footing and Foundation permits upon the installation of all underground water, sanitary sewer, and storm sewer facilities, and an emergency accessway for the phase in which the permit is being requested. Facilities shall include but not be limited to all mains, lines, services, fire hydrants and appurtenances for the phase as shown on the Final Development Plan Documents. 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, 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. 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 "B." Security for the maintenance guarantee and the repair guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code. NotwithstaH',*ing 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 "B" 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 13 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 iin accordance with the terms of this Agreement. The processing and "routing for approval" of the various development plan documents may result in certain of said documents carrying dates of approval and/or execution that are later than the date of execution of this Agreement. The Developer hereby waives any right to object to any such discrepancy in dates. E. Nothing herein contained shall be construed as a waiver of any requirements of the City Code or the Land Use Code and the Developer agrees to comply with all requirements of the same. 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, including any subsequent replatting of all, or a portion of the Property. This Agreement shall also be binding upon and inure to the benefit of the parties hereto, their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required 14 pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. I. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the Developer shall be released from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. J. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. K. In the event of the default of any of the provisions hereof by either parry 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 parry 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: 15 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: Bucking Horse Development Inc. c/o Gino Campana 7307 Streamside Drive Fort Collins, CO 80525 With a copy to: Mike Maxwell, Attorney 8010 South County Road 5, Suite 207 Windsor, CO 80528 If to the Owner: Bucking Horse, LLC. c/o Gino Campana 7307 Streamside Dr. Fort Collins, Co 805-2 With a copy to: Mike Maxwell, Attorney 8010 South County Road 5, Suite 207 Windsor, CO 80528. With a copy to: Jessup Farm, LLC. c/o Gino Campana 7307 Streamside Dr. Fort Collins, Co 8052 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, 16 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. ATTEST: City Clerk APPROVED AS TO CONTENT: APPR D ASAO FORM: Deputy City Attorney THE CITY OF FORT COLLINS, PPLORADO, a Municipal Corporation By:�_._\ ) V - City Manager ' •'�cf� 17 DEVELOPER: Bucking Horse Development, Inc., a Colorado Corporation B 9Ljana, Pre ident ATTEST: Name, Title,,,,, STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknc Nnkxz, 2012, by Gino Campana other person] as of other My Comniission �W,,b efore me this day of tnd by [name of j of Bucking Horse Development, Inc. Notary Public Comm. No. 20104006744 "P 03/01/2014 18 OWNER: Bucking Horse, LLC. a Colorado Limited Liability Company. By: <59pana, anager STATE OF COLORADO ) )SS. COUNTY OF LARIMER ) The foregoing instrument was acknow Qt„, 2012, by Gino Campana as Manag My Commission Expires: --?pl 1) 14 STATE OF COLORADO COUNTY OF LARIMER ) ss. OWNER: Jessup Farm, LLC. a Colorado Limited Liability Company. By• Gi ampana,,',,4fiager The foregoing instrument was acknowledged before me th &,jd, 2012, by Gino Campana as Manager of Jessup,, My Commission Expires: —Z'`f --- N4a--ii b �OTAJl- &UB LAC' •COL�� 19 Comm. No. 20104006744 DCP. 03/01 014 NOW, THEREFORE, in consideratio I. General Conditions n 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, 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. I D. Any water lines, sanitary sewer lir'.es, storm drainage lines, electrical lines, and/or streets described on Exhibit 'A" atta0ed hereto, shall be installed within the time and/or sequence required on Exhibit "A." If the City Engineer has determined that any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the Final Development Plan Documents and shall be installed by the Developer within the time as established under "Special Conditions" in this Agreement. 2 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. 20 EXHIBIT "B" STANDARD OPERATING PROCEDURES (SOPs) A. Purpose In order for physical stormwater Best Management Practices (BMPs) to be effective, proper maintenance is essential. Maintenance includes both routinely scheduled activities, as well as non -routine repairs that may be required after large storms, or as a result of other unforeseen problems. Standard Operating Procedures should clearly identify BMP maintenance responsibility. BMP maintenance is typically the responsibility of the entity owning the BMP. Identifying who is responsible for maintenance of BMPs and ensuring that an adequate budget is allocated for maintenance is critical to the long-term success of BMPs. Maintenance responsibility may be assigned either publicly or privately. Privately owned BMPs typically are maintained by the property owner, homeowner's association (HOA), or property manager. B. Site -Specific SOPS The following stormwater facilities contained within Ducking Horse Filing One are subject to SOP requirements: Vegetated Swales Cobble Swales* Soft Infiltration Pans Detention Ponds *Note: The cobble Swales are referred to as "rain gardens" in the Bucking Horse Filing One Final Development Plan documents; however, they are not bio-retention rain gardens. They are simply a more aesthetic alternative to a traditional concrete chase or u-channel. The location said facilities can be found on the Utility Plans and Landscape Plans for Bucking Horse Filing One. Inspection and maintenance procedure and frequencies, specific maintenance requirements and activities, as well as BMP-specific constraints and considerations shall follow the guidelines outlined in Volume 3 of the Urban Drainage and Flood Control District (UDFCD) Urban Storm Drainage Criteria Manual. 21 SOP Maintenance Summary Table Storrnwater Facility / Ownership / BMP Responsibility UDFCD Maintenance Reference Follow guidelines for Grass Buffers and Swa/es. Take note Vegetated Swales Private of native vegetation. Also follow recommendations on Landscape Plans and Specifications. Follow guidelines similar to Grass Buffers and Siva/es for Cobble 9wales Private inspection, debris and litter removal, and sediment removal. Cobble may need to be removed for maintenance, and replaced as necessary. Follow guidelines similar to Sand Filters. Longer drain time Soft Infiltration Pans Private is allowed so long as positive downstream drainage is maintained. Replacement of media may be less frequent. Exercise care to retain established vegetation. Detention Ponds Private Follow applicable guidelines for Extended Detention Basins (®Bs) . The UDFCD BMP maintenance references listed above can be found in Chapter 6 of Volume 3. Applicable excerpts are included in Appendix F of the Final Drainage Report for Bucking Horse Filing One. Additionally, it is strongly recommended that the Guidelines for Use of Pesticides, Herbicides and Fertilizers (UDFCD Fact Sheet S-8), and the Landscape Maintenance procedures (UDFCD Fact Sheet S-9) be followed, not just within the drainage facilities themselves, but for the entire development. 22 EXHIBIT "C" MAINTENANCE GUARANTEE: The Developer hereby warrants and guarantees to the City, for a period of two (2) years from the date of completion and first acceptance by the City of the public improvements warranted hereunder, the full and complete maintenance and repair of the public improvements constructed for this Development. This warranty and guarantee is made in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land Use Regulations, as applicable. This guarantee applies to the streets and all other appurtenant structures and amenities lying within the rights -of -way, easements and other public properties, including, without limitation, all curbing, sidewalks, bike paths, drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any maintenance and/or repair required on utilities shall be coordinated with the owning utility company or city department. The Developer shall maintain said public improvements in a manner that will assure compliance on a consistent basis with all construction standards, safety requirements and environmental protection requirements of the City. The Developer shall also correct and repair, or cause to be corrected and repaired, all damages to said public improvements resulting from development -related or building -related activities. In the event the Developer fails to correct any damages within thirty (30) days after written notice thereof, then said damages may be corrected by the City and all costs and charges billed to and paid by the Developer. The City shall also have any other remedies available to it as authorized by this Agreement. Any damages which occurred prior to the end of said two (2) year period and which are unrepaired at the termination of said period shall remain the responsibility of the Developer. REPAIR GUARANTEE: The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5) year period, commencing upon the date of completion and acceptance by the City of the public improvements constructed for this Development, from any and all claims, damages, or demands arising on account of the design and construction of public improvements of the Property shown on the approved plans and documents for this Development; and the Developer furthermore commits to make necessary repairs to said public improvements, to include, without limitation, the roads, streets, fills, embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the right-of-way easements and other public properties, resulting from failures caused by design and/or construction defects. This agrek ment 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 23 �a engineering techniques and due caution in t ie 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. 24 E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by this Development as shown on the Final Development Plan Documents and other approved documents pertaining to this Development on file with the City. F. Street improvements shall not be. installed until all utility lines to be placed therein have been completely installed, including all individual lot service lines (water and sewer) leading in and from the main to the property line and all electrical lines. G. The installation of all utilities shown on the Final Development Plan Documents shall be inspected by the Engineering Department of the City and shall be subject to such department's approval. The Developer agrees to correct any deficiencies in such installations in order to meet the requirements of the plans and/or specifications applicable to such installation. In case of conflict, the Final Development Plan Documents shall supersede the standard specifications, except that if the conflicts are a result of Federal or State mandated requirements, then the Federal or State mandated requirements shall prevail. H. Alignment and grades on privately maintained streets and drives shall allow for safe access, ingress and egress by owners, visitors, the general public and public safety officials and equipment, as approved by the City Engineer. I. All storm drainage facilities shall be designed and constructed by the Developer so as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainage or seepage waters from the Property in a manner or quantity different from that which was historically discharged and caused by the design or construction of the storm drainage facilities, except for (1) such claims and damages as are caused by the acts or omissions of the City in maintenance of such facilities as have been a ,,cepted by the City for maintenance; (2) errors, if any, in the general concept of the C''-y's master plans (but not to include any details of such plans, which details shall be the responsibility of the Developer); and (3) specific written or otherwise documented directives that may be given to the Developer by the City. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity 3 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. it J. The developer shall pay the apocable "stormwater plant investment fee" in accordance with Chapter 26, Article VII of the City Code. This fee is included with building permit fees and shall be paid prior to the issuance of each building permit. K. 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. L. The Developer specifically represents that to its knowledge all property dedicated (both in fee simple and as easements) to the City associated with this Development (whether on or off -site) is in compliance with all environmental protection and anti -pollution laws, rules, regulations, orders or requirements, including solid waste requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such property as is dedicated to the City pursuant to this Development, is in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The 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, off, or related to any property dedicated to the City in connection with this Development, O�ovided 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 the Developer must obtain a complete discharge a of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. M. The Developer acknowledges and iagrees that the City, as the owner of any adjacent property (the "City Property') on which off -site improvements may be constructed, or that may be damaged by the Developer's activities hereunder, expressly retains (and does not by this Agreement waive) its rights as property owner. The City's rights as owner may include without limitation those rights associated with the protection of the City Property from damage, and/or the enforcement of restrictions, limitations and requirements associated with activities on the City Property by the Developer as an easement recipient. N. If the Developer or Contractor or any agent or representative thereof causes damage to any public infrastructure (including without limitation, any surface pavers, flagstones, or other stone or concrete surfaces, planters, street and decorative lights, or canopies) such damage shall be promptly repaired with the same kind, quality, color, serviceability and material composition aspects as was possessed by the infrastructure damaged, unless otherwise expressly agreed to by the City in writing. Paver repair and replacement in Downtown alleys shall comply with the City's specific requirements for pavers. Il. Special Conditions A. Water Lines Not applicable. B. Sewer Lines Not Applicable C. Storm Drainage Lines and Appurtenances 1. The Final Development Plan Documents for this Development call for the phasing of the construction of storm drainage improvements. The Developer shall complete these improvements sequentially in accordance with said Final Development Plan Documents starting with Phase A and ending with Phase C. The sequential completion of these improvements shall necessitate that the required overall site drainage certification be done in phases in accordance with the following requirements: a) All on -site and off -site storm drainage improvements associated with Phase A of this Development, as shown on the Final Development Plan Documents, shall be completed by the Developer in accordance with said Final Development Plan Documents prior to the issuance of more than 52 Certificate of Occupancies for the multi -family units in Phase A. Phase A construction shall include the overlot grading of the entire development site. Following the overlot grading of the entire site, all the disturbed areas in Phases B through C that are slated for future development shall be temporarily seeded and mulched. b) All on -site and off -site storm drainage improvements associated with Phase B of this Development, as shown on the Final Development Plan Documents, shall be completed by the Developer in accordance with said Final Development Plan Documents prior to the issuance of more than 2 Certificate of Occupancies for the non-residential structures in Phase B of the Development. c) All on -site and off -site storm drainage improvements associated with Phase C1 of this Development, as shown on the Final Development Plan Documents, shall be completed by the Developer in, accordance with said Final Development Plan Documents prior to the issuance of more than 24 building permits in Phase C1 of the Development. d) All on -site and off -site storm drainage improvements associated with Phase C2 of this Development, as shown on the Final Development Plan Documents, shall be completed by the Developer in accordance with said Final Development Plan Documents prior to the issuance of more than 11 building permits in Phase C2 of the Development. e) In all cases, completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve any particular phase of D691opment have been constructed in conformance with said Final Develoranent Plan Documents. Said certification shall be submitted to the City at least two weeks prior to the date of issuance of additional building permits in each phase. 2. The Developer shall be responsible for maintaining the structural integrity and operational functions of all drainage facilities throughout the build -out of this Development. If at any time following certification (as required pursuant to paragraph one (1) above) of said drainage facilities and during the construction of structures and /or lots within this Development the City reasonably decides that said drainage facilities no longer comply with the 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 6 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 whi-�h was approved by the City. d 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 $80,205.00 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 allibuildings/structures on all lots: Prior to the issuance of a certificate of occupancy for any lot or building the Developer shall provide the City with certification that the lot and or the building has been graded correctly. This grading certification shall demonstrate that the lot or building finish floor elevation has been built in accordance with the elevation specified on the Final Development Plan Documents. The certification shall also show that the minimum floor elevation or minimum opening elevation for any building constructed is in compliance with the minimum elevation as required on the Final Development Plan Documents. The certification shall demonstrate as well that any minor swales adjacent to the building or on the lot have been graded correctly and in accordance with the grades shown on the Final Development Plan Documents. The certification shall also show that the elevations of all 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 i , c;rade 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 perWits and certificates of occupancy for this Development until the City has deemed such changes as being acceptable for the safe and efficient delivery of storm drainage water. 6. The Developer shall limit the construction of the off -site storm drainage improvement lines 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 storm drainage improvements in accordance with the Final Development Plan Documents promptly following construction. The Developer shall ensure that no negative impact occurs to the adjoining during the construction of the detention pond facilities. No grading shall be done outside of the approved areas as shown on the Final Development Plan Documents. 7. The drainage design for this Development provides for the evacuation of storm drainage runoff in a reasonable amount of time out of the water quality and detention facilities and into the drainage outfall system. The water quality and detention facilities have been designed to discharge stormwater runoff from frequent storms over a 40 hour period through a small diameter outlet. Under the intended operation of the water quality and detention pond, there will not be standing water in the pond more than 48 hours after the end of a rainfall event. If surfacing or standing water conditions persist in these facilities; and if such conditions are beyond what can be expected in accordance with , tl�e approved stormwater design, the Developer shall promptly, upon such discovery i6stall an adequate de -watering system in the detention facilities. Such a system sha1s be reviewed and approved by the City prior to installation. 8. The Developer shall be responsible for maintenance of all storm drainage facilities that are constructed outside of the public right-of-way. These facilities shall be maintained per the Drainage Infrastructure Standard Operating Procedures attached as Exhibit B to this Development Agreement. 9. In accordance with the City's Foothill's master drainage plan and the applicable Final Development Plan Documents, the 100-year developed stormwater flow from the Development shall be detained, and these developed flows shall be released into the Fossil Creek Reservoir Inlet Ditch at a rate not to exceed 20 cfs for the 100-year design storm. D. Streets. 8 1. No street oversizing reimbursement from the City is due the Developer for this Development. 2. The Developer agrees that the Sharp Poirt:e� Drive connection to Midpoint Drive is required for connectivity and circulation for this Development. The Developer is obligated to construct its adjacent local street portion of the Sharp Point Drive connection (the local street portion within the adjacent right-of-way). In lieu of this construction the Developer shall, prior to the issuance of any building permit in this Development, make a payment to the City for a portion of the cost of this connection. The total estimated cost of this connection is $ 120,443.01 which estimate was approved with Sidehill Filing One. The payment made under this Paragraph shall be 1/3 the total amount ($40,147.67) of said estimate. A portion of this payment has been received, it was collected collected on a per building permit basis with Sidehill Filing Two and the remainder owed per this agreement is $2,629.30 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 August 2005, and same index published in the ENR in the month preceding payment. The inflation factor (Inf. Fac.) for each year's increase in the amount of the payment shall be calculated using the construction cost index for Denver as published in the Engineering News Record (ENR) for August 2005, as the base index (1-base) and the same index published in the ENR in the month preceding payment (1-year of payment). The formula for calculating said inflation factors shall be as follows: Inf. Fac. _ (I -year of payment) — (1-base) (1-base) The amount to be added to the payment to c"mpensate for inflation shall be equal to the amount of the payment times the- inflation factor. Said amounts added to compensate for inflation shall not reduce the to*al (principal) amount due. Any interest earned by the City as a result of said deposit shall be the property of the City. If the Developer is the party that constructs said improvements, upon completion of said improvements and acceptance of them by the City, the City shall return to the Developer the amount deposited, less 3% of the total amount remaining, to be kept by the City to cover its costs for administration of said deposits. 3. The City has plans to extend the median improvements in Timberline Road north of and adjacent to this Development. Currently, due to the median in Timberline Road, the intersection of Blackbird Drive and Timberline Road is a right -in right -out intersection. If the Developer is interested in changing the configuration of this intersection it has the option to work with the City and participate in the costs for the design and construction of changes to the median to allow for we