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HomeMy WebLinkAboutBUCKING HORSE FILING TWO - Filed DA-DEVELOPMENT AGREEMENT - 2013-01-08RECEPTION#: 20120093289, 12/27/2012 at 12:50:29 PM, 1 OF 30, R $156.00 TD Pgs: 0 Scott Doyle, Larimer County, CO DEVELOPMENT AGREEMENT THIS t EVELOPMENT AGREEMENT (the "Agreement"), is made and entered into this 114 day of Zcc�Cm)Dy 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 Colorado Corporation, hereinafter referred to as the "Developer"; and Bucking Horse LLC, a Colorado limited liability 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 Two, located in 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 agreed that the development of the Property will require increased municipal services from the City in order to serve such area and will further require the installation of certain improvements primarily of benefit to the Property and not to the City of Fort Collins as a whole; and WHEREAS, the City has approved the Final Development Plan Documents submitted by the Developer, subject to certain requirements and conditions, which involve the installation of and construction of utilities and other municipal improvements in connection with the development of the Property. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is agreed as follows: /City Clerk's Office, Fort Collins, Colorado 4. In addition to the street oversizing reimbursement identified above for Nancy Gray Avenue, the Developer shall be reimbursed for the local street improvements up to the amount the City has collected minus the funds to be retained for the portion of the street that is not to be built at this time as provided in paragraph 3 above. In order to facilitate the completion of this roadway, funds had been collected by the City with Sidehill — Filing One, Sidehill — Filing Two, and Bucking Horse Filing One developments. Upon completion and initial acceptance of Nancy Gray Avenue the Developer can request reimbursement of these funds minus those retained to cover the cost of the portion of roadway not being constructed. Any such request shall follow the same process and procedures as set out herein and in the City Code for street oversizing reimbursement. Gray Avenue. 5. Lots 1-13 of Block 6 may not take vehicular access off of Nancy 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 Developer shall notify the City of Fort Collins Environmental Planner when on -site construction begins. The City's Environmental Planner shall periodically inspect the site to ensure compliance with the buffer zone requirements as set forth in Section 3.4.1(E) of the Land Use Code and as established in the Final Development Plan Documents. 2. The Developer shall delineate the Development's property boundary adjacent to all Limits of Development (L.O.D.) as defined by Section 3.4.1(E)(2)(N) of the Land Use Code, including boundaries around existing trees that are to be undisturbed with orange construction fence, or another method approved by the City pursuant to said Section 3.4.1(E)(2)(N) of the Land Use Code prior to any type of construction, including overlot grading. 3. All weed control, vegetation management, and monitoring efforts must adhere to the Wetland/Upland Mitigation Monitoring Program prepared by Cedar Creek Associates and attached to this Development Agreement as Exhibit "C". An estimate for the Nancy Gray wetland mitigation, described in the plan, shall be prepared by the Developer and approved by the City. Developer shall provide to the City prior to 10 issuance of the Development Construction Permit, an acceptable form of security (cash, bond, or letter of credit) to guarantee completion of the mitigation outlined in the above - referenced plan at 125% of the approved estimate for said mitigation. The City shall return the security to the Developer upon completion of the term of the mitigation as provided in the Wetland/Upland Mitigation Monitoring Program. 4. Developer shall provide to the City prior to issuance of any building permits an acceptable form of security (cash, bond, or letter of credit) to guarantee completion of the buffer zone landscape improvements in the Native Upland Habitat Areas, as described on the final plans. An estimate for said landscape improvements shall be prepared by the Developer and approved by the City. Said estimate of landscape improvements shall constitute plant material and irrigation system improvements at 67% of the construction value to be held until said landscape improvements are constructed and accepted by the City. The City shall return the security to the Developer upon the Developer's installation of the landscape improvements and the City's acceptance thereof (see the Wetland/Upland Mitigation Monitoring Program for these criteria). If the buffer zone improvements have not been established in accordance with the approved plans, then the Developer shall promptly take such steps as are necessary (with a written proposal of steps and timing to be approved by the City) to bring the buffer zone into conformance with the approved plans (this step can be completed in conjunction with the reporting and adaptive management strategies associated with the Wetland/Upland Mitigation Monitoring Program, referenced above). If the Developer does not take action to bring the buffer zone into conformance with the approved plans, the City shall use the security provided by the Developer to install said landscape improvements and the Developer shall forfeit any right to the security. 5. Fueling facilities shall be located at least one hundred (100) feet from natural body of water, wetland, natural drainage way or manmade drainage way. The fuel tanks and fueling area must be set in a containment area that will not allow a fuel spill to directly flow, seep, run off, or be washed into a body of water, wetland or drainage way. F. Parks and Recreation 1. The City will reimburse the Developer for the construction of 10 parking stalls located in Tract C in the parking lot adjacent to the park boundary (Tract 8). The amount to be reimbursed shall be based upon 27% of the total amount amount to construct the entire 37 parking stall parking lot. The reimbursement shall be based upon an engineer's estimate of the cost of the installation of the parking lot which estimate shall be provided by the Developer to the City. The City agrees to share the cost of the maintenance, repair and replacement of the 10 parking stalls or 27% of the entire parking lot. The City assumes no other duty related to the parking lot other than the 10 parking stalls as described and limited above. 2. The City will reimburse the Developer for the construction of 630 lineal feet of trail that exists within Tract B and is adjacent to the northeast park boundary as shown on the Final Development Plan Documents. The amount to be reimbursed shall be based upon an engineer's estimate of the cost of the installation of the trail which estimate shall be provided by the Developer to the City. 3. The Developer shall cooperate with the City on the size, location and design of the public sidewalk along Miles House Avenue adjacent to the Future City Park Boundary prior to the installation. The City agrees to reimburse the Developer for any installation costs that are above and beyond those associated with the installation of a sidewalk typical for a collector street. The amount to be reimbursed shall be based upon an engineer's estimate of the cost of the installation of the sidewalk which estimate shall be provided by the Developer to the City. The Developer shall provide revised Development Construction Plan Documents identifying the change in sidewalk to the City prior to beginning installation. G. 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. H. 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, 12 maintenance, repair and reconstruction obligations shall be those of the Developer or the Developer's successor(s) in interest. Such subdrain system is likely to be located both upon private and public property and, to the extent that it is located on public property, all maintenance, operation, repair or reconstruction shall be conducted in such a manner that such public property shall not be damaged, or if damaged, shall, upon completion of any such project, be repaired in accordance with then existing City standards. The City shall not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the Development as the result of groundwater seepage or flooding, structural damage or other damage resulting from failure of any such subdrain system. 3. Without admitting or denying any duty to protect water rights, the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries to water rights caused, directly or indirectly by the construction, establishment, maintenance or operation of the Development. 4. The City agrees to give notice to the Developer of any claim made against it to which the foregoing indemnities and hold harmless agreements by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided the Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause the forgoing indemnities and hold harmless agreements by the Developer to not apply to such claim and such failure shall constitute a release of the foregoing indemnities and hold harmless agreements as to such claim. Hazards and Emergency Access 1. No combustible material will be allowed on the site until a permanent water system is installed by the Developer and approved by the City. 2. Prior to beginning any building construction, and throughout the build -out of this Development, the Developer shall provide and maintain at all times a reasonable accessway to each building. Such accessway shall be adequate to handle any emergency vehicles or equipment, and the accessway shall be kept open during all phases of construction. Such accessway shall be constructed to an unobstructed width of at least 20 feet with 4 inches of aggregate base course material compacted according to city standards and with an 100 foot diameter turnaround at the building end of said accessway. The turnaround is not required if an exit point is provided at the end of the 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 13 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 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. 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 "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. 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. 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 14 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 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. 15 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 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. 1. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the Developer shall be released from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. J. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. K. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney's fees and costs incurred by reason of the default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph III.D of this Agreement. L. Except as may be otherwise expressly provided herein, this Agreement shall not be construed as or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever. 16 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: 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 8052 With a copy to: Mike Maxwell, Attorney 8010 South County Road 5, Suite 207 Windsor, CO 80528 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 17 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 the Owner were to exercise any of the rights of the Developer in which event the obligations of the Developer shall become those of the Owner. ATTEST: 0a City Clerk PPR0,VEQA$(TO WNTENT: City Engineer APP OVED AS TO FORM: T'� Deputy City Attorney THE CITY OF FORT COLLINS, COLORADO, a Municipal Cor oration By: �. City Manager '60� FORr�o U• • • •Z c°L0Rp, ° 18 DEVELOPER: Bucking Horse Development, Inc., a Colorado Corporation By: Gi ampana, Pre ident STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this 1 day of 2012, by Gino Campana as President of Bucking Horse Development, Inc. My Commission Expires: 11 1,7Notary Public ELISSA ANN PALMER NOTARY PUBLIC STATE OF COLORADO NOTARY 1D 200MM5173 M7 CiON EXPIRES NOVEMBER 5, 2016 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, 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 Agreement. E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by this Development as shown on the Final Development Plan Documents and other approved documents pertaining to this Development on file with the City. OWNER: Bucking Horse, LLC. a Colorado Limited Liability Company. By: 9 pana, Mana er STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this 4JI-day of 2012, by Gino Campana as Manager of Bucking Horse, LLC. My Commission Expires: 11 5 I Ito 20 otary Public ELISSA ANN PALMER NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20084005173 MY COMMISSION EXPIRES NOVEM9ER 5, 2016 EXHI— BIT "A" Schedule of electrical service installation. Electrical lines need to be installed prior to the installation of the sidewalk, curb returns, handicap ramps, paving and landscaping. If the Developer installs any curb return, sidewalk or handicap ramp prior to the installation of electrical lines in an area that interferes with the installation of the electrical line installation, the Developer shall be responsible for the cost of removal and replacement of those items and any associated street repairs. 2. Schedule of water lines to be installed out of sequence. Not Applicable. 3. Schedule of sanitary sewer lines to be installed out of sequence. Not Applicable. 4. Schedule of street improvements to be installed out of sequence. Not Applicable 5. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. 21 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 (SOPS) should clearly identify BMP maintenance responsibility. BMP maintenance is typically the responsibility of the entity owning the BMP. Identifying who is responsible for maintenance of BMPs and ensuring that an adequate budget is allocated for maintenance is critical to the long-term success of BMPs. Maintenance responsibility maybe assigned either publicly or privately. For this project, the privately owned BMPs shown in Section B below are to be maintained by the property owner, homeowner's association (HOA), or property manager. B. Site -Specific SOPs The following stormwater facilities contained within Bucking Horse - Filing Two are subject to SOP requirements: - Vegetated Swales - Vegetated Filter Strips (i.e., Grass Buffers) - Water Quality Pond The location of said facilities can be found on the Utility Plans and Landscape Plans for Bucking Horse - Second Filing. Inspection and maintenance procedure and frequencies, specific maintenance requirements and activities, as well as BMP-specific constraints and considerations shall followthe guidelines outlined in Volume 3 of the Urban Drainage and Flood Control District (UDFCD) Urban Storm Drainage Criteria Manual. SOP Maintenance Summary Table BMp Responsibility UDFCD Maintenance Reference Follow guidelines for Grass Buffers and Swales. Take note of Vegetated Swales Private native vegetation. Also follow recommendations on Landscape Plans and Specifications. Vegetated Filter Strips Private Follow guidelines for Grass Buffers and Swales. Also follow (i.e., Grass Buffers) recommendations on Landscape Plans and Specifications. Detention Ponds Private Follow applicable guidelines for Extended Detention Basins (EDBs). The complete UDFCD BMP maintenance references listed above can be found in Chapter 6 of Volume 3. Applicable excerpts for "Routine" maintenance requirements for each BMP can be found below. Additionally, it is strongly recommended that the Guidelines for Use of Pesticides, Herbicides and Fertilizers (UDFCD Fad Sheet S-8), and the Landscape Maintenance procedures (UDFCD Fact Sheet S-g) be followed, notjust within the drainage facilities themselves, but for 22 the entire development. Vegetated Swales and Vegetated Filter Strips Routine Maintenance Table (Summary from Table GS-s, Chapter 6 of UDFCD) Required Action Maintenance Objective Frequency of Action Maintain irrigated grass at 2 to 4 inches tall and Lawn mowing non -irrigated native grass at 6 to 8 inches tall. and Lawn care Collect cuttings and dispose of them offsite or Routine — As needed. use a mulching mower. Debris and Litter Keep the area clean for aesthetic reasons, Routine —As needed by removal which also reduces floatables being flushed inspection, but no less than two downstream. times peryear. Sediment Remove accumulated sediment near culverts Routine — As needed by inspection. Estimate the need to removal and in channels to maintain flow capacity. Replace the grass areas damaged in the remove sediment from 3 to io percent of total length per year, process. as determined by annual inspection. Check the grass for uniformity of cover, Inspections sediment accumulation in the swale, and near Routine —Annual inspection is culverts. suggested. Extended Detention Basin Routine Maintenance Table (Summary from Table EDB-1, Chapter 6 of UDFCD) Required Action Maintenance Objective Frequency of Action Occasional mowing to limit unwanted Lawn mowing and vegetation. Maintain irrigated turf grass Lawn care as 2 to 4 inches tall and non -irrigated Routine — Depending on aesthetic requirements, native turf grasses at 4 to 6 inches. Sediment, Debris Remove sediment, debris and litter from Routine—Includingjust before annual storm seasons and Litter removal the entire pond to minimize outlet (that is, April and May), end of storm season after clogging and improve aesthetics. leaves have fallen, and following significant rainfall events. Non -routine — Performed when sediment Major Pond accumulation occupies 20 percent of the WOCV. This Sediment Remove accumulated sediment from the may vary considerably, but expect to do this every io removal* bottom of the basin. to 20years, as necessary per inspection if no construction activities take place in the tributary watershed. More often if they do. Inspect basins to insure that the basin continues to function as initially intended. Examine the outlet for clogging, erosion, Inspections slumping, excessive sedimentation levels, overgrowth, embankment and spillway integrity and damage to any structural element. Routine —Annual inspection of hydraulic and structural facilities. Also check for obvious problems during routine maintenance visits, especially for plugging of outlets. *The "Non-routine"maintenance consideration of sediment removal has been included within the Extended Detention Basin Maintenance Table as sediment removal is essential far the long-term operation of any Extended Detention Basin. 23 EXHIBIT "C 1.0 General Approach —Wetlands and Native Upland Habitat Areas The compensatory wetland and Native Upland Habitat Areas to be created will be monitored for a minimum of three years, as typically required by the City of Fort Collins (City), to track the development of the planted vegetation communities and to determine if the mitigation and enhancement objectives have been achieved. Monitoring will occur on a bi-monthly basis during the growing season beginning on or about June 1 and ending on or about October 1 for a total of three yearly monitoring visits. The first two monitoring visits will consist of qualitative evaluations to determine the relative success of plant species establishment, the stability of the planted areas, and the incidence of weed species invasion. The results of these evaluations will be summarized in a brief report electronically submitted to the City and Bellisimo, Inc. 2.0_Wetland (0.80 Acres) Monitorinq Plan The third annual monitoring visit of each year will consist of a detailed quantitative evaluation to determine the overall success of the wetland mitigation project. Mitigation and revegetation success will be judged based on four criteria. These criteria include the size of the wetland mitigation area successfully established, the wetland soil moisture regime created, the percent ground cover of wetland -classed species present in the wetland mitigation area, the success rate of the shrubs and trees planted, and the suppression of weed species. The mitigation size criterion will be met if that portion of the mitigation site qualifying as vegetated wetlands totals 0.80 acres. The soil moisture regime criteria will be met if the wetland mitigation site surface dedicated to the establishment of hydric species exhibits saturated conditions in the upper 12.0 inches of the soil profile and/or shallow flooding throughout the majority of the growing season as evidenced either by soil characteristics or the presence of sufficient wetland indicator species. Small ridges and potholes that enhance species diversity will be acceptable so long as these features do not compromise the overall integrity of the vegetated wetlands to be created. The 24 average depth of free water over the mitigation site will be reported as will an estimate of the percent of the mitigation site overlain by free surface water. Surface water occurring in a mosaic with wetland species and representing a typical marsh community will not be included in the estimate of percent of open water present. The wetland ground cover criterion will be met if, after three growing seasons, the total ground cover contributed by all vegetation species (including willow plantings) present in the wetland mitigation site is equal to or greater than 80 percent, on average, and wetland -classed species (FAC, FACW, and OBL) are dominant (70 percent relative cover) as compared to upland -classed (FACU and UPL) species. In addition, there will be no evidence of erosion detrimental to vegetation establishment or site stability. The percent of open water occurring over the surface of the mitigation site will be considered a "null set' when calculating percent herbaceous ground cover, so long as such surface water does not indicate the formation of an 'open water" system. Shrub and tree plantings will be considered successful where 90 percent of the number planted are present on site. Volunteer plants of all native shrub and tree species will be included in the tally and counted toward the success criteria. Any indications of insect or animal damage will be noted as will any indications of nutrient deficiencies The weed suppression criteria will be met if, after three growing seasons, the total cover provided by weed -classed species does not exceed 10 percent across the mitigation site. Any actions deemed necessary to enhance mitigation success and / or site stability will be taken as a result of each annual monitoring assessment. Monitoring will continue on an annual basis until the City judges this compensatory mitigation program to be successful. Soil and Plant Cover Sampling Technique Specifics The boundaries of the compensatory wetland site will be staked with metal fence Posts to facilitate the field survey evaluations. 25 To determine the depth to which non -inundated soils are saturated, soil sample pits will be dug at four locations corresponding with the vegetation analysis plots described below. Each pit will be dug to a depth of approximately 12.0 to 14.0 inches. The depth to saturation, if occurring, will be recorded. Soil matrix colors will be recorded to assess soil moisture regime characteristics. The presence of mottles or gleying will be noted and the color, abundance, and contrast of mottles recorded, if present. A sulfidic (H2S) odor will also be noted, if observed. Ocular estimates of vegetation cover and composition (dominant species) in the created wetlands will be made at four representative plots employing a plot size of 10 feet x 10 feet. A photo will be taken of each plot at the time of each quantitative monitoring visit. The corners of the plots will be permanently marked in the field with metal fence posts, metal stakes, or similar to facilitate repeatable, non-destructive evaluations. Plots will be sited to represent the vegetation conditions common within the mitigation site. The locations of the plots will be reviewed and approved by the City's Environmental Planner prior to initiating the field sampling. The percent of invasive weeds present will be calculated and averaged from the plots evaluated. Shrub (excluding willow cuttings, if any, that will be evaluated as a part of ground cover) and tree species planted as a part of wetland mitigation construction will be tallied by a simple count of viable species present at the time of monitoring fieldwork. Any indications of insect or animal damage will be noted, as will any indications of nutrient deficiencies. That portion of the compensatory mitigation site supporting wetlands at the time of the third end -of -season monitoring visit will be surveyed to calculate the acreage of wetlands successfully created. A map depicting the results of the survey will be included with the annual report. A detailed monitoring report will be submitted to the City and Bellisimo, Inc. on or before December 31 of each monitoring year. Information and showings to be submitted with each annual quantitative monitoring report include a project location map, project history summary, a discussion of the conditions of the compensatory mitigation site, a summary of the data collected, copies of all data sheets completed in 26 the field, recommendations for corrective actions (if any) and a continuation of the photographic record submitted with the first annual report. Observation wells are not planned for the monitoring program since the wetland is designed to be wet throughout the growing season. Wells excavated to a depth of 6.0 feet could be added to the program if the anticipated soil moisture regime varies from that planned. Note Should the data from the monitoring plan show that the hydrology regime of the wetland is no longer adequate to support wetland communities, appropriate actions will be taken to ensure that the overall objectives of upland habitat creation and enhancement will be achieved. Such actions include, as necessary, seedbed preparation techniques, fertilization, reseeding and planting, and mulching. 3.0 Native Upland Habitat Areas (31.12 Acres) Monitoring Plan At the end of each of the first three full growing seasons following initial planting, the Native Upland Habitat Areas will be monitored quantitatively to determine the overall level of site stability and vegetation establishment. Revegetation success will be judged based on three criteria. These criteria include the percent total ground cover of native grass, forb, and shrub species present in the project area, the percent success of the shrub and tree plantings and the suppression of weed species. The total ground cover criterion will be met if, after three growing seasons, the total ground cover contributed by all grass, forb, and shrub, species present in the project area is equal to or greater than 65 percent. In addition, there will be no evidence of erosion detrimental to vegetation establishment or site stability. Shrub and tree plantings will be considered successful where 90 percent of the number planted are present on site. Volunteer plants of all native shrub and tree species will be included in the tally and counted toward the success criteria. 27 The weed suppression criteria will be met if, after three growing seasons, the total cover provided by weed -classed species does not exceed 10 percent across the Native Upland Habitat Areas. In terms of surficial stability, the presence of rills and gullies, if any, will be noted. All gullies will be repaired at the first opportunity and reseeded / mulched at the next recognized planting season. All rills determined to be detrimental to the establishment of a stable, self-perpetuating vegetation community will be obliterated by surficial manipulation or repaired as noted for identified gullies. Vegetation Sampling Technique Specifics Plant cover will be evaluated at the end of each growing season using the point - intercept method. A 100-foot tape will be laid out along the surface at a maximum of ten locations in the planted uplands. Transects will be sited to represent the vegetation conditions common within the project area. At each one -foot interval along each transect, a "hit" will be recorded. A hit will consist of vegetation (by species), bare ground, rock, or litter. The percent total plant cover will then be calculated for each transect. The percent of invasive weeds present will be calculated and averaged from the tansects run. Shrub and tree species planted will be tallied at the end of each growing season by a simple count of viable species present at the time of monitoring fieldwork. Any indications of insect or animal damage will be noted as will any indications of nutrient deficiencies. The results of this assessment will be submitted to the City of Fort Collins in a report on or about December 31 of each monitoring year. Information and showings to be submitted with each annual quantitative monitoring report include a project location map, project history summary, a discussion of the conditions of the mitigation sites, a summary of the data collected, copies of all data sheets completed in the field, and a continuation of the photographic record submitted with the first annual report. As appropriate, recommendations will be made with respect to the continued maintenance and monitoring of the mitigation area. 28 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 Developer furthermore commits to make necessary repairs to said public improvements, to include, without limitation, the roads, streets, fills, embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the right-of-way easements and other public properties, resulting from failures caused by design and/or construction defects. This agreement to hold the City harmless includes defects in materials and workmanship, as well as defects caused by or consisting of settling trenches, fills or excavations. 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 29 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 accepted by the City for maintenance; (2) errors, if any, in the general concept of the City's master plans (but not to include any details of such plans, which details shall be the responsibility of the Developer); and (3) specific written or otherwise documented directives that may be given to the Developer by the City. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. Approval of and acceptance by the City of any storm drainage facility design or construction shall in no manner be deemed to constitute a waiver or relinquishment by the City of the aforesaid indemnification. The Developer shall engage a Colorado licensed professional engineer to design the storm drainage facilities as 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. 30 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. J. The developer shall pay the applicable "stormwater plant investment fee" in accordance with Chapter 26, Article VII of the City Code. This fee is included with building permit fees and shall be paid prior to the issuance of each building permit. 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, 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 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 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 agrees that the City, as the owner of any adjacent property (the "City Property") on which off -site improvements may be constructed, or that may be damaged by the Developer's activities hereunder, expressly retains (and does not by this Agreement waive) its rights as property owner. The City's rights as owner may include without limitation those rights associated with the protection of the City Property from damage, and/or the enforcement of restrictions, limitations and requirements associated with activities on the City Property by the Developer as an easement recipient. 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. Special Conditions A. Water Lines Not applicable. B. Sewer Lines Not Applicable C. Storm Drainage Lines and Appurtenances 1. All on -site and off -site storm drainage improvements associated with this Development, as shown on the Final Development Plan Documents, shall be completed by the Developer in accordance with said Documents prior to the issuance of more than 17 building permits in this Development. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve the Development have been constructed in conformance with said Final Development Plan Documents. Additionally on -site certification shall provide documentation that the open space areas that are part of this Development have been graded in a manner consistent with the approved Final Development Plan Documents with no slopes greater than 3:1. All lot corner elevations for lots adjacent to open space areas shall be certified to be in conformance with the approved Final Development Plan documents. This certification shall be submitted to the City at least two weeks prior to the date of issuance of additional building permits. 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 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 $88,680.00 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 all buildings/structures on all lots: Prior to the issuance of a certificate of occupancy for any lot or building the Developer shall provide the City with certification that the lot and or the building has been graded correctly. This grading certification shall demonstrate that the lot or building finish floor elevation has been built in accordance with the elevation specified on the Final Development Plan Documents. The certification shall also show that the minimum floor elevation or minimum opening elevation for any building constructed is in compliance with the minimum elevation as required on the Final Development Plan Documents. The certification shall demonstrate as well that any minor swales adjacent to the building or on the lot have been graded correctly and in accordance with the grades shown on the Final Development Plan Documents. The certification shall also show that the elevations of all 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 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 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. 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. 10. Except as expressly permitted in a subsequent approved plan of development or other written agreement from the City, all active or passive use by livestock, pets, horses, and the like within Tract D shall be prohibited. D. Streets. 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Nancy Gray Avenue and Mile House Avenue for those portions of said street abutting the Property as shown on the Final Development Plan Documents. Reimbursement for Nancy Gray Avenue and Miles House Avenue shall be for oversizing the street from local (access) standards to collector standards. The City shall make reimbursement to the Developer for the aforesaid oversized street improvements in the manner provided in and in accordance with Section 24-112 of the Code of the City. The Developer agrees and understands that the City shall have no obligation to make reimbursement payments for street oversizing unless funds for such payments shall first have been budgeted and appropriated from the Street Oversizing Fund by the City Council; and the Developer further understands that to the extent that funds are not available for such reimbursement, the City may not, in the absence of the Developer's agreement, require the construction, at the Developer's expense, of any oversized portion of streets not reasonably necessary to offset the traffic impacts of the Development. The Developer does hereby agree to construct the aforesaid oversized street improvements with the understanding that the Developer may not be fully reimbursed by the City for the cost of such construction. The Developer further agrees to accept payment in accordance with Section 24-112 (d) of the Code of the City as full and final settlement and complete accord and satisfaction of all obligations of the City to make reimbursements to the Developer for street oversizing expenses. Reimbursements for sidewalk widths greater than 5 feet along Miles House Avenue adjacent to the Future City Park are not eligible for street oversizing reimbursement. See section F (Parks and Recreation) for provisions regarding sidewalk reimbursement along Miles House Avenue adjacent to the Future City Park. 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 agrees that the connection of Nancy Gray Avenue to Sharp Pointe Drive is required for connectivity and circulation for this Development. In accordance with Section 24-95 of the City Code the Developer is responsible for constructing the portion of Nancy Gray Avenue adjacent to the site prior to the first building permit. Because of the existing grades on the adjacent railroad property the roadway cannot be constructed to the property line at this time. Therefore, notwithstanding the foregoing, the Developer shall provide to the City a payment in lieu of construction for the portion of the roadway not being constructed as shown on the Final Development Plan Documents. The amount of said funds shall be the estimated cost of the design and local street portion of the pavement, subgrade, fill, curb, gutter, 4.5 feet (in width) of sidewalk, (2) street trees, the waterline extension (station 13+46.00 to station 14+95.00) and for the remaining portion of the street which is not to be constructed at this time (centerline station 28+19.99 to centerline station 29+20.33) The estimate shall be prepared by the Developer and approved by the City, and shall include an additional 25% of the estimate to cover any contingencies and unexpected costs. Said amount shall be estimated and deposited with the City prior to the issuance of any building permit for this Development. Since moneys have been collected by the City for the portion of Nancy Gray Avenue within the boundaries of this Development, in lieu of payment by the Developer, the City shall retain a portion of these funds equal to the amount estimated and approved above. The improvements to Nancy Gray Avenue shall be constructed at such time that the City deems the improvements to be necessary or at such time as improvements are made to adjacent portions of Nancy Gray Avenue or Sharp Point Drive, whichever shall first occur. 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.