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HomeMy WebLinkAboutWATERFIELD PUD FIRST FILING - Filed DA-DEVELOPMENT AGREEMENT - 2004-03-12DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this 11P'r4day of ( A V 199 ), by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City", and COUNTRY CLUB FARMS, L.L.C., a Colorado Limited Liability Company ("Country Club"), and BULL RUN LIMITED PARTNERSHIP, an Ohio limited partnership ("Bull Run"), hereinafter collectively referred to as the "Owner", and REAL ESTATE ADVISORS OF FLORIDA, INC., a Florida corporation ("Advisors"), and COUNTRY CLUB are hereinafter collectively referred to as the "Developer". WITNESSETH: WHEREAS, Advisors has entered into an agreementwith Bull Run to develop, along with Country Club, certain real property situated in the County of Larimer, State of Colorado, (hereafter referred to as the "Property") and legally described as follows, to wit: Waterfield P.U.D., First Filing, located in the Southwest 1 /4 of Section 5, 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 lands to be developed and not to the City of Fort Collins as a whole; and WHEREAS, the City has approved the final development plan documents submitted by the Developer subject to certain requirements and conditions which involve the installation of and construction of utilities and other municipal improvements in connection with the Property. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is agreed as follows: I. General Conditions A. The terms of this Agreement shall govern all development activities of the harmless agreement as to such claim. F. 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 buildout of this development, the Developer shall provide and maintain at all times an accessway to said building or buildings. Such accessway shall be adequate to handle any emergency vehicles or equipment, and the accessway shall be kept open during all phases of construction. Such accessway shall be constructed to an unobstructed width of at least 20 feet with 4 inches of aggregate base course material compacted according to city standards and with an 80 foot diameter turnaround at the building end of said accessway. The turnaround is not required if an exit point is provided at the end of the accessway. Prior to the construction of said accessway, a plan for the accessway shall be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for review and processing.) If such accessway is at any time deemed inadequate by the Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into compliance and until such time that the accessway is brought into compliance, the City may issue a stop work order for all or part of the Development. G. 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 and appurtenances for the site as shown on the final development plan documents. All of such facilities need not be installed prior to receiving a Footing and Foundation permit if an alternative plan for emergency access is submitted to and approved by The Poudre Fire Authority, in which case the alternative plan will dictate the improvements which will be required for such permit. 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. 10 B. The Developer shall maintain all storm drainage facilities within the public rights - of -way along Timberline Road and Vine Drive for two (2) full years after construction is approved by the City, at which time the City will inspect the landscaping and condition of such drainage facilities, and if such inspection reveals that the landscaping and condition is viable, then the City will assume all maintenance thereafter. C. 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. D. 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. E. 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 required by the City Engineer for the approval of an amendment to a development plan, and the City may withhold such building permits and certificates of occupancy as it deems necessary to ensure performance hereof. F. 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. G. 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. H. Financial obligations of the City of Fort Collins payable after the current fiscal year and/or not appropriated or budgeted are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available by the Fort Collins City Council. 11 I. 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. J. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the City hereby agrees to release said Developer 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. K. 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. L. 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. M. 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. N. 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. 0. 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: 12 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: Country Club Farms, L.L.C. Attn: James R. McCory c/o Colorado Land Source, Ltd. 8101 E. Prentice Avenue, Suite M180 Englewood, CO 80111 Real Estate Advisors of Florida, Inc. Attn: William O. Brisben c/o W.O. Brisben Companies, Inc. 7800 East Kemper Road Cincinnati, OH 45249 With a copy to: Brisben Companies Attn: Scott McFadden St. Elmo Building 1433 17`h Street, Suite 110 Denver, CO 80202 If to the Owner: Country Club Farms, L.L.C. Attn: James R. McCory c/o Colorado Land Source, Ltd. 8101 E. Prentice Avenue, Suite M180 Englewood, CO 80111 Bull Run Limited Partnership Attn: William O. Brisben c/o W.O. Brisben Companies, Inc. 7800 East Kemper Road Cincinnati, OH 45249 13 With a copy to: Brisben Companies Attn: Scott McFadden St. Elmo Building 1433 17'h Street, Suite 110 Denver, CO 80202 Notwithstanding the foregoing, if any party to this Agreement, or their 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. P. 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 fore convenience of reference and shall in no way define, limit, or prescribe the scope or intent of any provision under this Agreement. TEST: 1 I City Clerk APPROVED AS TO CONTENT: APPR ED AS TO FORM: epu y City Attorney THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation City Manage�fsslT.* r« 14 ATTEST: By: William O. Name: DEVELOPER: Country Club Farms, L.L.C.. a Colorado Limited Liability Company By: James R. McCory, er Real Estate Advisors of FI ida, Inc., a Florida corporation / in William 0. Brisbep( President Secretary OWNER: Bull Run Limited Partnership, an Ohio limited partnership ATTEST: By: W.O. Brisben Compa es West, Inc., a Florida corporation, Gener artner By: William O. sben Name: SecretaryB Y William 0. f3risb6n, President Country Club Farms L.L.C., a Colorado limited liability company By: L James R. McCory, Manager 15 EXHIBIT "A" Schedule of water lines to be installed out of sequence. Not Applicable. 2. Schedule of sanitary sewer lines to be installed out of sequence. Not Applicable. 3. Schedule of street improvements to be installed out of sequence. Not Applicable 4. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. 16 EXHIBIT "B" Not Applicable 17 brWRIr c PAGE I OF 2 I i r f' �111111� pllllll a 1111111� 1111111� � 1 � . � iaa�,l �•����.� � 1111/111 �� ...:•. all1 Inn�il•����iui FXf1/8/T C u PA6f 2 Of 2 w 1 � I I I I 1 IN I� Ir I� 1� I� W U I W I� 1 � I W I Lu Z Ci I W Z Wco = UCONSTRUCTION fIE MfIS OF CONSTRON / EAST VpgnE I m L J/ WIDEN EASE VINE DRIVE TO 36 FEET — I f O ASPRPLT TAPERS (2 — 12 FOOT LANES, 2 — 6 FOOT BIKE LANES) I Otcc W Zo 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 approved utility plans and in full compliance with the standards and specifications of the City on file in the office of the City Engineer at the time of approval of the utility plans relating to the specific utility, subject to a three (3) year time limitation from the date of execution of this Agreement. In the event that the Developer commences or performs any construction pursuant hereto after the passage of three (3) years from the date of execution of this agreement, the Developer shall resubmit the utility plans to the City Engineer for reexamination. The City may then require the Developer to comply with the approved standards and specifications of the City on file in the office of the City Engineer at the time of the resubmittal. C. No building permit for the construction of any structure within the development shall be issued by the City until the public water lines and stubs to each lot, fire hydrants, sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and pavement with at least the base course completed) serving such structure have been completed and accepted by the 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, and/or streets described on Exhibit 'A," attached hereto, shall be installed within the time and/or sequence required on Exhibit "A." If the City Engineer has determined that any water lines; sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the utility plans and shall be installed by the Developer within the time as established under "Special Conditions" in this document. E. 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 approved final development plan documents and other approved documents pertaining to this development on file with the City. F. Street improvements shall not be installed until all utility lines to be placed therein have been completely installed, including all individual lot service lines leading in and from the main to the property line. G. The installation of all utilities shown on the final development plan documents 2 FXIWIRIT D BRISBEN COMPANIES P46f I or 3 7800 EAST XEMPER ROAD CINCINNATI. CoHIO 45249 (513) 489-1990 FAX (513) 489-2780 October 29, 1998 Mr. Davi Stringer Engineering Department, City of Fort Collins 281 North Co ege Fort Collins, C 80522 Re: Waterfield Dear Dave: On September 24, 1998, a meeting was held at the City of Fort Collins to discuss the Waterfield PUD First Filing. Attending the meeting were John Gambini of Sycamore Construction, the general contractor for Bull Run Apartments, Kim Vowell of the Brisben Companies, the developer of Bull Run Apartments, Lucia Liley of March and Liley, attorney for the developer, James R. McCory of Colorado Land Source, Ltd., the developer of Waterfield PUD and David Stringer, representing the City of Fort Collins. The purpose of the meeting was to discuss and arrive at a solution to enable Brisben to develop the Bull Run Apartments in view of the fact that certain obligations of the overall PUD could not be met in a timely fashion, potentially forcing the apartment development's demise. The following represents our understanding of the agreements that were reached: The City agreed that it would immediately prepare a Development Agreement for all of Waterfield PUD Filing 1. This agreement would be prepared; however, with the understanding that the City will later approve two separate Development Agreements dividing improvements and obligations between the single family and multi -family developments. Such amendment would relieve Brisben of certain of the overall PUD development requirements that are ultimately required upon development of the single family portion of the PUD. It was agreed that such action is necessitated so that Brisben's affordable housing effort is not overly encumbered by development costs and improvements not benefiting the apartment development. Brisben will not have to construct County Road 9E adjacent to its property; however, the City will require that an escrow (at 125% of the cost of the improvement) guaranteeing the future construction of the road to full City standards be in place prior to issuance of the first C.O. The escrow amount will be for the ultimate build -out and will be just for that portion of County Road 9E that is adjacent to the multi -family. REGIONAL OFFICES: 2525 PERIMETER PLACE DRIVE . SUITE 129 . NASHVILLE. TENNESSEE 32214 (615) 889-1998 FAX (615) 889-3334 "00-1 STUART ANDREW BOULEVARD . CNARLOTTE, NORTH CAROLINA 28217 (704) 523-4115 FAX (704) 523-4415 4891 INDEPENDENCE STREET - SUITE 149 . DENVER, COLORADO 80033 . (303) 421-9990 FAX (303) 432-8661 2325 N. W. 33RD STREET FT. LAUDERDALE. FLORIDA 33309 . (954) 239-0000 . FAX (954) 939-9563 4051 E%ECU"FIVE PARK DRIVE HARRISBURG, PENNSYLVANIA 17111 . (712) 561-2555 - FAX (217) 561-2580 EMBIT D .040E I Of a Mr. Dave Stringer October 29, 1998 Page 2 Brisben will construct a 36' paving lane and appurtenances on East Vine Drive from the intersection of County Road 9E to Merganser Drive, to include the intersection of Merganser Drive (`Interim Improvements"). The City will require an escrow or cash payment (at 125% of the cost of the improvement) for the ultimate build -out of East Vine Drive prior to the issuance of the first C.O., provided, however, that the cost of those portions of the Interim Improvements which will not need to be removed in order to build Vine Drive to full City standards will be deducted from the escrow amount and provided further that such escrow will include only that portion of Vine Drive adjacent to Bull Run and will not include the outparcels adjacent to Vine Drive. Brisben will construct full -width pavement and appurtenances (water, sewer and storm) that serve and benefit the apartments on the west side of the apartment development. The paving, sanitary sewer and water line designed to continue north on Merganser Drive (serving the single family) will be terminated and plugged at the north property line of the multi -family parcel (approximately Sta. 19+74). • Brisbet1w�'�i�r�ll construct all downstream sanitary sewer and stormwater facilities in Vine bt n front of the future apartments and in Merganser Road (up to Sta. 19+74; necessary to serve the apartment project. The stormwater improvements shall include excavation of the entire detention pond facility and installation of the outfall structure (Storm Line L). Brisben will install within the pond only the east -west concrete trickle channel that serves the upstream apartment improvements. The remainder of the trickle channel (the north -south channel) within the pond will be constructed by the single-family development (Filing 1, Phase 2 of Waterfield PUD) prior to the issuance of any building permits for such single-family development. Brisben will construct the 24" irrigation line within the apartment development property and partially across County Road 9E where it will connect to the existing 18" irrigation pipe. The 24" line will be terminated and be plugged at the apartment property line. Bull Run PUD will have no responsibility for the construction and/or escrowing of funds for off -site street improvements. Such improvements shall be the responsibility g of the single-family development (Filing 1, Phase 2 of Waterfield PUD), provided 0-3 that the developer of Filing 1, Phase 2 shall have the option of escrowing 125% of th cost of such off -site street improvements in lieu of construction. ertscrflucys "k. _` ot4 posted with the City, such-iNpr-ov b_.Yust-46�,ompk-4-sd prior to the issuance of,,,,* the first certificate of occupancy. [3 ,S) t"�>��,.-.e. -V' �G"-- �.�.. .�-a.Ao�.."� ✓J�, a..�.�-Qn"A`Stw'� ��.7Ca, F.Y'll/8/T D PAGE 3 Of 3 Mr. Dave Stringer October 29, 1998 Page 3 If the aboveT ly represents our agreement, please indicate by signing below. Sincerely, ✓fin r E. ScottMcFadden Director of Development Western Region Read and Approved this 241 day ofj t, t�, 1998. B�,r David Stringer shall be inspected by the Engineering Department of the City and shall be subject to such department's approval. The Developer agrees to correct any deficiencies in such installations in orderto meet the requirements of the plans and/or specifications applicable to such installation. In case of conflict, the final development plan documents shall supersede the standard specifications. H. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer 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 aforesaid and it is expressly affirmed hereby that such engagement shall be intended for the benefit of the City, and subsequent purchasers of property in the development. I. The Developer shall pay storm drainage basin fees in accordance with Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for credit or City repayment under the provisions of Chapter 26 are described together with the estimated cost of the improvements on the attached Exhibit "B," which improvements, if applicable, shall include right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. J. The Developer shall provide the City Engineer with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of 9 the construction. Utilities will not be initially accepted prior to as -built drawings being submitted to and approved by the City of Fort Collins. K. The Developer specifically represents that to the best of its knowledge all portions of the Property dedicated (both in fee simple and as easements) to the City associated with this development are in compliance with 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 portions of the Property as are dedicated to the City pursuant to this development, are in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer does hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority, 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. The Developer further agrees to indemnify and hold harmless the City from any claims or actions based directly, indirectly or in any manner on any of the aforementioned environmental risks brought against the City by third parties arising as a result of the dedication of portions of the Property to the City in connection with this development. 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 portions of the Property dedicated to the City in connection with this development. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to 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. II. Special Conditions A. Water Lines 1. Notwithstanding anything in this Development Agreement to the contrary, the City acknowledges that the East Larimer County Water District will be providing water service to the Property and, as a result, review and approval of plans for water service n improvements shall be by the District and not the City. B. Sewer Lines 1. Notwithstanding anything in this Development Agreement to the contrary, the City acknowledges that the Boxelder Sanitation District will be providing sanitary sewer service to the Property and, as a result, review and approval of plans for sanitary sewer service improvements shall be by the District and not the City. C. Storm Drainage Lines and Appurtenances 1. The Developer and the City agree that all on -site and off -site storm drainage improvements, as shown on the approved final development plan documents, shall be completed by the Developer in accordance with said final development plan documents prior to the issuance of more than 10 building permits in the single family portion of the development or any certificate of occupancy for the multi -family portion of the development, which ever occurs first. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve this development have been constructed in conformance with said final development plan documents. Said certification shall be submitted to the City at least two weeks prior to the date of issuance of any certificate of occupancy for the development. 2. The Developer agrees to provide and maintain erosion control improvements as shown on the approved final development plan documents to stabilize all over -lot grading in and adjacent to this development. The Developer shall also be required to post a security deposit in the amount of $42.612.00 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the approved final development plan documents. Said security deposit(s) shall be made in accordance with the criteria set forth in the City's Storm Drainage Design Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to abide by the provisions of the approved final development plan documents or the Criteria, the City, after giving the Developer written notice of such failure and a stated period of time within which to correct the same, 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 buildout of this development. 3. The Developer and the City agree that it is important that all lots be graded to drain in the configuration shown on the approved final development plan 5 documents. For this reason the following additional requirements shall be followed for building on all Lots: Prior to the issuance of a certificate of occupancy for any lot the Developer shall provide the City with certification that the lot has been graded correctly (including the grading of any minor swales, if applicable), the lot corner elevations specified on the approved final development plan documents are correct and in accordance with the approved final development plan documents; and the minimum floor elevation for all buildings constructed on said lot has been completed in accordance with the approved 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. 4. The Developer shall obtain the City's prior approval of any changes from the approved 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 occupancies for this development until the City has approved such changes as being acceptable for the safe and efficient delivery of storm drainage water. 5. The Developer and the City agree that the Developer is obligated to maintain all on -site storm drainage facilities not accepted for maintenance by the City and all off -site storm drainage facilities not accepted for maintenance by the City serving this development and outside of the public rights -of -way with the exception of the crossing of the Lake Canal. The Developer shall be responsible for the maintenance of the drainage crossing Lake Canal for a period of two (2) years from the date of completion of such crossing or until its acceptance by the City for maintenance, whichever shall first occur. D. Streets. 1. It is the obligation of the Developer to improve Vine Drive from the intersection of Vine Drive and Timberline Road (CR 9E) west to Merganser Drive. It is also the responsibility of the Developer to improve Timberline Road (CR 9E) from the intersection of Vine Drive and Timberline Road (CR 9E) north to the Larimer and Weld County Canal bridge crossing. Improvements to the aforementioned streets shall include all necessary tapers and transitions necessary to connect the proposed roadway improvements to the existing roadway in a manner which is safe for public use. Said improvements shall include any related utility and storm drainage improvements and shall be in accordance with the approved final development plan documents, the Code of the City, and Exhibit C (depiction of Vine Drive and County Road 9E street improvements) attached hereto and incorporated herein by reference. It is agreed that said improvements are not considered offsite road improvements and accordingly, construction of said improvements shall be completed and accepted by the City prior to the issuance of the first R certificate of occupancy (see Exhibit "C"). In lieu of installing the aforesaid street improvements, the Developer shall have the option of escrowing cash, an irrevocable non - expiring letter of credit, security bond or other form of financial security acceptable to the City. Such escrow, which shall be deposited with the City prior to the issuance of the first certificate of occupancy, shall be in the amount of 125% of the estimated cost of such improvements, and such escrow shall be released upon completion of the above described improvements and their acceptance by the City. 2. To satisfy its off -site street improvement requirements, the Developershall have the option of designing and constructing either (1) Vine Drive interim improvements from the western boundary of the Property to the intersection of Vine Drive and Lemay Avenue; or (2) County Road 9E interim improvements from its intersection with Vine Drive south approximately'/2 mile to the improved section of County Road 9E. However, since the traffic impacts do not necessitate these improvements at this time, the Developer, in lieu of construction of the same, shall have the option of escrowing cash, an irrevocable non -expiring letter of credit, security bond or otherform of financial security acceptable to the City for such improvements prior to the issuance of the first certificate of occupancy for the development. If the Developer selects Vine Drive off - site improvements, the sum of $500,000.00 shall be escrowed and if County Road 9E is selected, the amount escrowed shall be $250,000.00, 3. As an alternative to, and in lieu of, the posting of cash or acceptable collateral with the City as described in subparagraph 2 above, the Developer, at its option, shall be permitted to pay cash deposits to the City for each building permit released in accordance with the following provisions: (a) The Developer will pay the amount of $3,424.66 for the improvements to Timberline Road (CR 9E) or $6,849.32 for the improvements to Vine Drive prior to the issuance of each building permit for each single-family dwelling unit, multi -family building, or garage commencing with the first building permit issued in the first filing and all succeeding building permits in the first filing. If any portions of said sums are paid by the Developer after the year 1999, the Developer agrees to pay the amount specified above plus an additional amount, to be calculated as described below to recognize the effects of inflation with said amount to be increased each year until payment is completed in full. (b) The inflation factor (Inf. Fac.) for each year's payments shall be calculated using the construction cost index for Denver as published in the Engineering News Record (ENR) for October, 1998, as the base index (1-base) and the same index published in the ENR for the January in each succeeding year immediately preceding payment (I - year of payment). The formula for calculating said inflation factor II shall be as follows: Inf. Fac. = (1-year of payment) - (1-base). (I -base) (c) The amount to be added to each $3,424.66 or $6,849.32 payment to compensate for inflation shall be equal to $3,424.66 or $6,849.32 times the inflation factor. Said amounts added to compensate for inflation shall not reduce the total (principal) amount due. 4. In accordance with the following provisions, the City shall return to the Developer the amounts deposited for off -site street improvements plus, if a cash deposit, any interest earned by the City as a result of such cash deposit and less 3% of such total cash amount remaining (which includes said amount deposited with the City plus the interest earned by the City) to be kept by the City to cover its costs for administration of said cash deposit: (a) If the Developer constructs such street improvements, the deposit shall be returned to the Developer. (b) If a successor or assign of the Developer constructs such street improvements, the deposit shall be returned to the Developer unless such successor or assign also posted the deposit with the City. (c) If a third party constructs the off -site Vine Drive improvements, the deposit shall be released to the Developer (or a successor or assign of the Developer, as applicable), upon the posting with the City of a substitute deposit for those Vine Drive improvements adjacent to the Property to the extent the same have been constructed by such third party or the Developer. 5. In the event that the Developer selects the Vine Drive off -site street improvements to satisfy its obligation and the City selects Vine Drive as its "Truck Route", the Developer shall only be obligated to improve Vine Drive adjacent to the Property. In such event, the City shall release the deposit posted by the Developer for Vine Drive upon a cash payment by the Developer to the City equal to 100% of the cost for the off -site Vine Drive improvements (and not the adjacent improvements to Vine Drive) based upon the earlier engineer's estimate approved by the City. Such payment shall be in full satisfaction of the Developer's obligation for off -site street improvements. In the event that Vine Drive is selected as the "Truck Route" and the City has received other deposits for such off -site Vine Drive improvements from a third party or parties, the amount of the Developer's payment to the City for such improvements shall be proportionately reduced so that each party making a payment to the City for such improvements is paying only its proportionate share of the total cost therefor and that the 0 City receives no more than 100% of such cost from all affected parties 6. The City and the Developer acknowledge that a phasing plan is being prepared by the Developer to split the Property into two (2) separate projects, with the apartment project (Bull Run PUD) to be developed by Real Estate Advisors of Florida, Inc. and the single-family project to be developed by Country Club Farms, L.L.C.. In order separate these projects, such phasing plan must be approved by the City and an addendum to this Agreement for each separate project executed by the City and the respective developer. The parties have agreed upon certain provisions to be included in such addenda, and a copy of the letter agreement between the parties is attached as Exhibit D and incorporated herein by reference. 7. The construction of Merganser Drive and Garganey Drive including curb, gutter, and sidewalk shall be constructed and accepted by the City as shown on the approved final development plan documents prior to the issuance of the first certificate of occupancy. In lieu of installing the aforesaid street improvements, the Developer shall have the option of escrowing cash, irrevocable non -expiring letter of credit, security bond or other form of financial security acceptable to the City. Such escrow shall be in the amount of 125% of the estimated cost of the local street portion of any of the aforesaid street improvements which have not been completed at the time of posting of such escrow. 8. The Developer and the City agree that no street oversizing reimbursement from the City is due the Developer for this development. 9. The Developer and the City agree that the Developer is responsible for all costs for the initial installation of traffic signing and striping for this development related to the development's local street operations. In addition the Developer is responsible for all costs for traffic signing and striping related to directing traffic access to and from the development (e.g., all signing and striping for a right turn lane into the development site). E. Ground Water 1. The City shall not be responsible for, and the Developer hereby agrees to indemnify and hold harmless the City against, any damages or injuries sustained in the development as a result of ground water seepage or flooding, structural damage, or other damage unless such damages or injuries are sustained as a result of the City's failure to properly maintain its storm drainage facilities in the development. 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 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 0