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HomeMy WebLinkAboutPENNY FLATS - Filed DA-DEVELOPMENT AGREEMENT - 2007-04-20Citv of Fort Collins DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into thisday of January, 2007, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and Penny Flats, LLC, a Colorado limited liability company, hereinafter referred to as the "Developer". WITNESSETH: WHEREAS, on July 6, 2004, the City Council of the City of Fort Collins adopted Resolution 2004-081 setting out a process for selling the property described below to a private developer ready, willing and able to develop such property in conformity with the City's comprehensive plan; and WHEREAS, on July 19, 2005, the City Council adopted Ordinance No. 077, 2005, approving the sale of the property described below to the Developer; and WHEREAS, the Developer has entered into an Option Agreement for Purchase and Sale of Real Property with the City dated February 24, 2006, (the "Purchase and Sale Agreement") 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: Penny Flats Subdivision, located in Section 11, Township 7 North, Range 69 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 lands to be developed and not to the City of Fort Collins as a whole; and WHEREAS, the City has approved the Final Development Plan Documents submitted by the Developer subject to certain requirements and conditions, which involve the installation of and construction of utilities and other municipal improvements in connection with the Property. 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. In addition, the Developer acknowledges the financial responsibility of an amount not to exceed $6,000.00 towards assisting in Cherry Street traffic mitigation efforts, which amount shall not be due until the issuance of the first building permit for Phase 1. 4. The pavement design and construction standards for privately maintained streets shall be as set forth in the Final Plan Development Documents. Easements for access, utilities and drainage shall be dedicated to the public and clearly shown on the plat. 5. 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. Pedestrian Connections 1. Prior to the issuance of any certificate of occupancy for each phase of development, the pedestrian connections specified for each phase of construction on the Final Development Plan Documents shall be completed. 2. The implementation of a major walkway pedestrian spine bisecting the property connecting Maple Street to Cherry Street is a key component of the Development and part of the Civic Center Master Plan. The Developer agrees that the security to guarantee completion of the public improvements as specified in paragraph II.J.1 shall include an amount sufficient to cover the projected cost to construct the pedestrian spine specified on Phase 2 of the Final Development Plan Documents, and that Developer shall post the full amount of such security prior to the issuance of a Development Construction Permit for Phase 1. The City reserves the right to hold the security for the completion of the pedestrian spine in Phase 2 until the issuance of any certificate(s) of occupancy in Phase 2. Should the Developer fail to construct the pedestrian spine improvements such that forfeiture of a vested property right has been determined as specified in Section 2.2.11(D) of the Land Use Code, the City reserves the right to use the security in order to construct the pedestrian spine improvements specified in Phase 2. 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 10 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 its storm drainage facilities in the Development. However, nothing herein shall be deemed a waiver by the City of its immunities, defenses, and limitations to liability under the 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 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. H. Hazards and Emergency Access 1. No combustible materials 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 an accessway to said building or buildings in compliance with the City Code. 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.) The accessway shall be constructed in a manner consistent with the Final Development Plan Documents. If any accessway is at any time deemed inadequate or noncompliant with the Final Development Plan Documents 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. 3. Immediately following build -out of this Development the Developer, or the Developer's successor, including the OA, shall ensure that the fire lanes are reasonably free of obstructions at all times, including ice and snow. 4. The Development requires construction of fire lanes for emergency services, of which portions of the various fire lanes are part of the parking structures, are above ground surface, and are structurally supported. Said fire lanes are indicated as emergency access easements on the plat. The following items are required to be addressed as a result of the fire lanes' configuration: a. Prior to any certificate of occupancy for each phase of the Development, the Developer shall submit to the City three signed & stamped copies of a report by a licensed professional engineer in the state of Colorado, which engineer may be selected by the Developer, certifying that the construction of all structural areas on the plat denoted as an emergency access easement for the phase was designed and constructed to meet an HS-20 design load in accordance with Poudre Fire Authority and City requirements. 12 b. Prior to any certificate of occupancy for each phase of the Development, the Developer shall post signage at the entrances off of Mason Street, Maple Street, Howes Street, and Cherry Street (as appropriate per each phase), outside of public right-of-way, indicating weight restrictions as recommended in the above referenced report, paragraph a. The Developer shall be responsible for maintaining clear ingress/egress at all times for emergency service vehicles. The Developer hereby acknowledges that Poudre Fire Authority and other emergency services will enforce to the fullest extent of the law any blockage of the fire lane, including vehicles. Footing and Foundation Permits 1. Notwithstanding any provision in this Agreement to the contrary, the Developer shall have the right to obtain a Footing and Foundation permit 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 (or Section 29-12 of the Transitional Land Use Regulations, if applicable), prior to the Developer commencing construction. The Developer shall pay the required fees for said Permit and construction inspection, and post security to guarantee completion of the public improvements required for this Development, prior to issuance of the Development Construction Permit. K. Maintenance and Repair Guarantees 1. The Developer agrees to provide a two-year maintenance guarantee and a five-year repair guarantee for public improvements completed as part of a given phase 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 for such phase and acceptance thereof by the City, which acceptance shall not be unreasonably withheld, conditioned or delayed. More specific elements of these guarantees are noted in Exhibit "C." Security for the maintenance guarantee and the repair guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use Regulations, as applicable. Notwithstanding the provisions of paragraphs III (H) and (1) of this Agreement to the contrary, the obligations of the Developer pursuant to this paragraph and Exhibit "C may not be assigned or transferred to any other person or entity unless the warranted improvements are completed by, and a letter of acceptance of the warranted 13 improvements is received from the City by, such other person or entity. No warranty provided hereunder shall be deemed extended, renewed or created by any repairs or maintenance undertaken by the Developer in response to any warranty claims hereunder. To the extent of any inconsistency between this paragraph and the plat, this paragraph shall control. 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 not 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. Notwithstanding the foregoing, the parties acknowledge that the Development is a large construction site and the generation of noise, dust, dirt, debris and other material on the construction site is to be expected as a reasonable part of the construction process. 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 14 permitted by law, revoke) such building permits and certificates of occupancy as it deems necessary to ensure performance in accordance with the terms of this Development Agreement. The processing and "routing for approval" of the various development plan documents may result in certain of said documents carrying dates of approval and/or execution that are later than the date of execution of this Development Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of this Agreement. The Developer hereby waives any right to object to any such discrepancy in dates. E. Nothing herein contained shall be construed as a waiver of any requirements of the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable) and the Developer agrees to comply with all requirements of the same. F. In the event either party hereto waives any breach of this Agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. G. All financial obligations of the City arising under this Agreement that are payable after the current fiscal year are contingent upon funds for that purpose being annually appropriated, budgeted and otherwise made available by the Fort Collins City Council, in its discretion. H. This Agreement shall run with the Property and shall be binding upon and inure to the benefit of the parties hereto, their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. I. Notwithstanding any other provision herein to the contrary, 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 further obligations hereunder or 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 15 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 substantially defaulting party shall be liable to the substantially non -defaulting party for the non -defaulting party's reasonable legal fees and costs incurred by reason of the default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph III.D of this Agreement. L. Except as may be otherwise expressly provided herein, this Agreement shall not be construed as or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever. M. It is expressly understood and agreed by and between the parties hereto that this Agreement shall be governed by and its terms construed under the laws of the State of Colorado and the City of Fort Collins, Colorado. N. Any notice or other communication given by any party hereto to any other party relating to this Agreement shall be hand -delivered or sent by certified mail, return receipt requested, addressed to such other party at their respective addresses as set forth below; and 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: Penny Flats, LLC Attention: John Koval 1811 Pearl Street Boulder, CO 80302 With a copy to: J. Marcus Painter Holland & Hart LLP 1800 Broadway, Suite 300 Boulder, CO 80302 16 Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees or assigns, wishes to change the person, entity or address to which notices under this Agreement are to be sent as provided above, such party shall do so by giving the other parties to this Agreement written notice of such change. O. When used in this Agreement, words of the masculine gender shall include the feminine and neuter gender, and when the sentence so indicates, words of the neuter gender shall refer to any gender; and words in the singular shall include the plural and vice versa. This Agreement shall be construed according to its fair meaning, and as if prepared by all parties hereto, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto pertaining to the matters addressed in this Agreement. There shall be deemed to be no other terms, conditions, promises, understandings, statements, representations, expressed or implied, concerning this Agreement, unless set forth in writing signed by all of the parties hereto. Further, paragraph headings used herein are for convenience of reference and shall in no way define, limit, or prescribe the scope or intent of any provision under this Agreement. P. The City and the Developer expressly acknowledge and agree that the City as owner of the Property shall not be liable for any obligations of the Developer under this Agreement, unless the City were to exercise any of the rights of the Developer in which event the obligations of the Developer shall become those of the City. Q. This Agreement is executed in conjunction with a contract for the sale of real estate between the parties dated February 24, 2006, (the "Contract") and the parties hereto agree that the Contract contains development specific rights and obligations which survive such contract and are deemed incorporated herein to the extent not expressly inconsistent with the terms hereof, including the provision and reservation of certain easements, temporary construction easements, rights of way, rights of first refusal, and covenants to be recorded with respect to the Property. R. The Developer shall have no obligation to develop all or any portion of the Property and shall have no liability under this Agreement to the City or to any other party for its failure to develop all or any part of the Development. The Developer and the City contemplate that the Development will be developed in phases. The Developer shall have no obligation to develop all or any portion of any phase, notwithstanding the development or non -development of any other phase, and the Developer shall have no liability under this Agreement to the City or any other party for its failure to develop all or any portion of any phase of the Development. S. The Developer shall have the right, without the consent of any other party to this Agreement, to assign or transfer all or any portion of its interests, rights or obligations under this Agreement to any Affiliate of the Developer or all of its interests, obligations or rights under this Agreement to any third party acquiring an interest or 17 estate in the Development, including, but not limited to, purchasers or long-term ground lessees of individual lots, parcels or of any improvements now or hereafter located within the Development, provided any such assigned shall expressly assume Developer's obligations hereunder. The express assumption of any of the Developer's obligations under this Agreement by its assignee or transferee shall thereby relieve the Developer of any further obligations under this Agreement with respect to the matter so assumed. The Developer shall give the City written notice of any such assignment or assumption. No assignment of a portion of Seller's interest, obligations or rights hereunder shall be permitted unless (i) as to a completed Phase of the Project, all requirements hereunder related to such Phase have been completed and (A) such Phase's engineering, infrastructure, access and other requisite real property rights (such as necessary easements) are completed and fully "stand-alone/independent" of other phases contemplated hereunder, or (B) to the extent such engineering, infrastructure, access and other requisite real property rights are not "stand-alone/independent" of other phases, then the interdependent engineering, infrastructure, access and other requisite real property rights on the other phase or phases must have been completed prior to such transfer. The parties acknowledge that upon completion of a given phase and upon sale of a certain number of units therein by the Developer, the Developer is required to transfer control of the real property related to such phase to an owners association under CCIOA, and therefore, no consent of the City to any such transfer shall be unreasonably withheld, conditioned or delayed. T. Except as otherwise specifically provided herein or any exhibit hereto, the compliance and performance of, and the exercise of discretion by, either party to this Agreement shall be governed by the standards of reasonableness. U. Notwithstanding any provision herein to the contrary, except to the extent the same may be modified by contract, nothing herein shall be construed as a waiver of any limitations or defenses of the City under the Colorado Governmental Immunity Act of the Constitution of the State of Colorado. Further, no indemnity or hold harmless provided by one party to another hereunder shall be deemed an indemnification or hold harmless of a party for that parties own negligent, willful, or intentional acts or omissions, or those of such parties' employees, agents or contractors. V. The parties acknowledge that, pursuant to the Purchase and Sale Agreement, the Project is intended to be and will be completed in phases consistent with the Final Development Plan Documents. Further, it is acknowledged that upon completion of a given Phase, the improvements in that Phase may be sold in whole or in part to third parties prior to commencement or completion of succeeding Phases. Such Phases may be constructed in succession as provided herein, may be commenced before completion of a preceding Phase, or two or more Phases may be constructed simultaneously; provided, however, the sequence of construction shall be in the following order: 19 Phase 1: Parcel A as described in the Purchase and Sale Agreement and as more fully described on Sheet C-4 of the Final Utility Plans, or as otherwise authorized by the City. Phase 2: Parcel B as described in the Purchase and Sale Agreement and as more fully described on Sheet C-5 of the Final Utility Plans, or as otherwise authorized by the City. Phase 3: Part of Parcel C as described in the Purchase and Sale Agreement as more fully described on Sheet C-6 of the Final Utility Plans, or as otherwise authorized by the City. Phase 4: Part of Parcel C as described in the Purchase and Sale Agreement and as more fully described on Sheet C-7 of the Final Utility Plans, or as otherwise authorized by the City. W. Nothing herein shall be construed as waiving, diminishing or adversely modifying either party's rights as vested by statute, ordinance or at common law upon the issuance of building permit(s) or other permits, authorization consents or other agreements between the parties. Executed effective on the date first written above. SIGNATURES ON FOLLOWING PAGE 19 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: 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. Notwithstanding anything contained herein to the contrary, the City acknowledges that this Development is a multi -phased development and that the Developer will only be obligated to complete the public improvements as described herein on a phase -by -phase basis. 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. Nothing herein shall be construed as requiring any change in the location or layout of parking, street size and location, sidewalk size and location, building location, size and height, detention pond size, or configuration of the infrastructure to be installed by the Developer. Developer may seek an extension of the time frames set forth herein due to market conditions, material shortages, weather, or other matters beyond the reasonable control of the Developer, or as otherwise may be permitted in the discretion of the City Engineer, or as otherwise permitted under the City Code. C. Except as may otherwise be authorized by the City, 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 Phase, fire hydrants, electrical lines, sanitary sewer lines and stubs to each Phase, and public streets (including curb, gutter, and pavement with at least the base course completed) serving such structure in such Phase 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. 2 f� THE CITY OF FORT C( a Munici2al Corporation By: City Vranager STATE OF COLORADO ) ss. COUNTY OF LARIMER ) `e\ The foregoing instry,ment was acknowledged before me this Z-b day of January, 2007 b - ,'it d{eb" as City Manager. Witnesst6and official seal. My commission expires: % /& NOTARY Pu._r0 .. _ate STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) APPROVED AS TO CONTENT: APP,ROVEI- AS TO FORM: Deputy 20 DEVELOPER: Penny Flats, �} a Colorado lif By: _ James STATE OF COLORADO ) ) ss. COUNTY OF BOULDER ) liability company The forego' g instrument was acknowledged before me this y of January, 2007 by , as Manager of Penny Flats, LLC. Witness rn and and official seal 21 EXHIBIT "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. 22 IWAMMI I -I" :iY Not Applicable 23 EXHIBIT "C" Refer to the Final Plat for this Development and Paragraph ILK of this Agreement 24 D. Any water lines, sanitary sewer lines, storm drainage lines, electrical lines, and/or streets described on Exhibit "A," attached hereto, shall be installed within the time and/or sequence required on Exhibit "A." If the City Engineer has determined that any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the Final Development Plan Documents and shall be installed by the Developer within the time as established under "Special Conditions" in this document. E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by this Development as shown on the Final Development Plan Documents and other approved documents pertaining to this Development on file with the City. F. Subject to the phasing schedule for the Development, 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. Public easements shall be provided for access, utilities and drainage as required by the design and location of such infrastructure and as reflected on the plans. 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; provided, however, that construction of the same consistent with the approved Final Development Plan Documents shall constitute compliance hereunder. 1. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainage or seepage waters from the 3 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 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 storm drainage basin fees in accordance with Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for credit or City repayment under the provisions of Chapter 26 are described together with the estimated cost of the improvements on the attached Exhibit "B," which improvements, if applicable, shall include right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. Such fees shall be paid pursuant to the phasing schedule for each Phase. 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 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 Development Agreement waive) its rights as property owner. The City's rights as owner may include without limitation those rights associated with the protection of the City Property from damage, and/or the enforcement of restrictions, limitations and requirements associated with activities on the City Property by the Developer as an easement recipient. 4 H. Special Conditions A. Water/Wastewater Lines 1. The Developer shall establish an Owners Association ("OX) under the Colorado Common Interest Ownership Act ("CCIOA") which shall, subject to Developer turnover under CCIOA or other applicable laws, be assigned the responsibility for maintaining the private portions of the water and wastewater systems and for receiving/paying all water and wastewater billings. 2. The City shall own and maintain the 8-inch water main extending onto the development from the 16-inch water main in Maple Street up to and including the fire hydrant as shown on the Final Development Plan Documents. This shall include surface restoration (sidewalks, pavers, planters, kiosks, etc.) which may be needed following maintenance/repair/replacement of the public water main. 3. The Developer/OA shall be responsible for the maintenance, repair, and replacement of the fire lines beyond the City's control valves located adjacent to the 8-inch City water main as shown on the Final Development Plan Documents. This shall include surface restoration which may be needed following maintenance/repair/replacement of the fire lines. 4. The Developer/OA shall own and maintain the sewer service lines which extend from the public sewer in Maple Street and provide service to the buildings in the development as shown on the Final Development Plan Documents. B. Railroad 1. The City may apply to the Public Utilities Commission of the State of Colorado ("PUC") for an order to obtain approval to upgrade the crossings to accommodate bikelane and sidewalk improvements in accordance with the Final Development Plan Documents. The Developer shall be responsible for all the requirements set forth in the order and shall indemnify and hold harmless the City against any claims that may be brought against the City by the PUC and/or the Burlington Northern Railway Company for failure to comply with said order. 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 1 and ending with Phase 4, as set forth in Paragraph III.V, below. 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: 5 a. All on -site and off -site storm drainage improvements associated with Phase 1 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 any certificate of occupancy in Phase 1. b. Similarly, all on -site and off -site storm drainage improvements associated with each of Phases 2, 3, and 4 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 any certificate of occupancy in each of said Phases 2, 3, and 4 respectively of this Development. It is understood and agreed that each of the four Phases may be completed at separate times, or in combination with any other phase. C. In all cases, completion of improvements shall include the certification by a professional engineer licensed in Colorado (and who may be selected by the Developer), that the drainage facilities which sere any particular phase of Development have been constructed in conformance with said Final Development Plan Documents, as the same may related to such Phase. Said certification shall be submitted to the City at least two weeks prior to the issuance of any certificate of occupancy for each phase. 2. The Developer has agreed to a payment -in -lieu option for water quality mitigation required for this development. A total payment of $40,000 dollars will be paid to the City of Fort Collins Stormwater Utility. The payment must be received prior to the issuance of the Development Construction Permit ("DCP") for each phase. The payments can be broken into three segments as follows, or may be paid in whole or in part in advance of such schedule: a. A payment of $16,000 prior to the issuance of the DCP for Phase 1. b. A payment of $12,000 prior to the issuance of the DCP for Phase 2. C. A payment of $12,000 prior to the issuance of the DCP for Phase 3. 3. The Developer shall be responsible for maintaining the structural integrity and operational functions of all drainage facilities throughout the build -out of ri 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 determines 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 for the warranty period therefor (as the same commences on the completion of the applicable Phase), 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. 4. 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 $9,574.00 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 if 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. 5. 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 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 (who may be selected by Developer) and shall be submitted to the City at least two weeks prior to the date of issuance of the desired certificate of occupancy. 6. 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 acting on behalf of the Developer. The City reserves the right to withhold the issuance of building permits and certificates of occupancy for this Development until the City has deemed such changes as being acceptable for the safe and efficient delivery of storm drainage water. 7. The Developer shall limit the construction of the off -site storm drainage improvements to the limits of construction as shown on the Final Development Plan Documents. The Developer shall re -seed and/or 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. No grading shall be done outside of the approved areas as shown on the Final Development Plan Documents. 8. The Developer shall be responsible for maintenance of all storm drainage facilities that are constructed outside of the public right-of-way. The Developer shall also be responsible for the installation and maintenance of all the roof drain piping that serves this property, even though some of this piping is located within the public right of way. The Developer shall ensure that the roof drain piping network remains in a good operational condition at all times. 9. The Developer shall first obtain permission from the City for any landscape changes within the drainage easement located within this Development. The City will only maintain the Howes Street Outfall box culvert within this drainage easement. 10. The Developer shall obtain a Floodplain Use Permit from the City of Fort Collins prior to commencing any construction activity within the Old Town Floodplain Limits as delineated on the Final Development Plan Documents for this Development. M D. Streets 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Mason Street, Cherry Street, and Howes Street for those portions of said street abutting the Property as shown on the Final Development Plan Documents. Reimbursement for Howes Street and Mason Street shall be for oversizing the sidewalk from local (access) standards to minor arterial standards. Reimbursement for Cherry Street shall be for oversizing the sidewalk from local (access) standards to collector standards. The City shall make reimbursement to the Developer for the aforesaid oversized street improvements in accordance with Section 24-112 of the Code of the City. The Developer agrees and understands that the City shall have no obligation to make reimbursement payments for street oversizing unless funds for such payments shall first have been budgeted and appropriated from the Street Oversizing Fund by the City Council; and the Developer further understands that to the extent that funds are not available for such reimbursement, the City may not, in the absence of the Developer's agreement, require the construction, at the Developer's expense, of any oversized portion of streets not reasonably necessary to offset the traffic impacts of the Development. The Developer does hereby agree to construct the aforesaid oversized street improvements with the understanding that the Developer may not be fully reimbursed by the City for the cost of such construction. The Developer further agrees to accept payment in accordance with Section 24-112 (d) of the Code of the City as full and final settlement and complete accord and satisfaction of all obligations of the City to make reimbursements to the Developer for street oversizing expenses. It is anticipated by the City that the City's reimbursement, in accordance with Section 24-112 (d), would not be less than fifty percent (50%) of the Developer's actual expenses incurred and will be calculated in accordance with the formula as set forth in Section 24-112 (d). 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. Notwithstanding any provision herein to the contrary, the Developer shall be responsible for all costs for the initial installation of traffic signing and striping 9