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HomeMy WebLinkAboutPRESIDIO APARTMENTS - Filed DA-DEVELOPMENT AGREEMENT - 2011-07-07RECEPTION#: 20110038082, 06127/2011 at 01:11:13 PM, 1 OF 19, R $101.00 TD Pgs: 0 Scott Doyle, Larimer County, CO DEVELOPMENT AGREEMENT PRESIDIO APARTMENTS THIS DEVELOPMENT AGREEMENT b and between Is made and entered the CITY OF FORT into this 22 o day of " \L y and Mil S, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and Milestone Presidio LLP, a Colorado �dliability hereinafter to as the "Developer"; and Imago Ep�ises,lncaColorado Corporation, referred to as "Imago Enterprises." WITNESSETH: in WHEREAS, Imago Enterprises llothe owner of hereafter eferedltoraslproperty the `Developmendt or the County y" Land legally te of described as follows, to wit: the Property) legally Presidio Apartments, located in the Northeast City of FortCollins, arr of cCounty of Larhmer6, North, Range 68 West of the 6th P.M., State of Colorado. th Imago WHEREAS, the Developer f that isred into an of the Property on whichtthelapartment Enterprises to acquire ownership o portion community improvements will be situated, legally described as follows, to wit: Lot 1, Presidio Apartments, located in the PNortheast Mrte st Fort Quarter ofsSection of Township 6 North, Range 68 West of the 6th Y Larimer, State of Colorado. WHEREAS, the Developer has submitted to the City all plats, plans (including ion all of the utility plans), reports and other documents required ffor evelopmentu otf an f apartment improvements to the Property, necessary lrtme t community on the Property, all in accordance th the it"Final FinalVeDevelopment Plan submittal requirements master (collectively, 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 eCity in order to serve rovements primarily ofsbenefuch t tothe will further require the installation of certainimp 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 development of the Property. lerWs Office, Fort Collins, Colorado CRY C §a 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 be solely liable for any damages or injuries sustained in the or therr damage resulting from faileure of any suchuage r bdra nsystem.flooding, structural damage 3. Without admitting or denying any duty to protect water rights, the Developer, for itself and its successor(s) in interest, hereby agrees to be solely liable for 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 sole liability agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided the Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause the forgoing sole liability agreement by the Developer to not apply to such claim and such failure shall constitute a release of the foregoing sole liability agreement as to such claim. H. Hazards and Emergency Access 1. No combustible material will be allowed on the site until a permanent water system is installed by the Developer and approved by the City. 2. Prior to beginning any building construction, and throughout the build - out of this Development, the Developer shall provide and maintain at all times a reasonable 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 100 foot diameter turnaround at the building end of said accessway. The turnaround is not required if an exit point is provided at the end of the accessway. Prior to the construction of said accessway, a plan for the accessway shall be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for review and processing.) If such accessway is at any time 10 L� deemed inadequate by the Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into compliance and until such time that the accessway is brought into compliance, the City and/or the Poudre Fire Authority may issue a stop work order for all or part of the Development. Building Permits 1. Upon application, payment, and approval by all City departments the Developer shall have the right to obtain Footing and Foundation permits following its closing on the acquisition of the Property; provided, however, no certificate of occupancy shall issue for a building until the installation of all applicable facilities has been completed to that building, including but not limited to all underground water, sanitary sewer, and storm sewer facilities, and an emergency accessway for the phase in which the certificate of occupancy is being requested. Facilities shall include for the s t as be limited to all mains, lines, services, fire hydrants and appurtenances shown on the Final Development Plan Documents. J. Development Construction Permit 1. The Developer shall apply for and obtain a Development Construction Permit for each portion (on -site and off -site) of this Development, in accordance with Division 2.6 of the Land Use Code, prior to the Developer commencing construction. The Developer shall pay the required fees for said Permit and construction inspection, and post security to guarantee completion of the public improvements required for this Development, prior to issuance of each Development Construction Permit. K. Maintenance and Repair Guarantees 1. The Developer agrees to provide a two-year maintenance guarantee and a five-year repair guarantee covering all errors or omissions in the design and/or construction of the public improvements required for this Development, which guarantees shall run concurrently and shall commence upon the date of completion of the public improvements and acceptance thereof by the City. More specific elements of these guarantees are noted in Exhibit "B." Security for the maintenance guarantee and the repair guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code. 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 "B" may not be assigned or transferred to any other person or entity unless the warranted improvements are completed by, and a letter of acceptance of the warranted improvements is received from the City by, such other person or entity. III. Miscellaneous A. The Developer agrees to provide and install, at its expense, adequate barricades, warning signs and similar safety devices at all construction sites within the public right-of-way and/or other areas as deemed necessary by the City Engineer and 11 "UK Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been completed. B. As required pursuant to Chapter 20, Article IV of the City Code, the Developer shall, at all times, keep the public right-of-way free from accumulation of waste material, rubbish, or building materials caused by the Developer's operation, or the activities of individual builders and/or subcontractors; shall remove such rubbish as often as necessary, but no less than daily and; at the completion of the work, shall remove all such waste materials, rubbish, tools, construction equipment, machinery, and surplus materials from the public right-of-way. The Developer further agrees to maintain the finished street surfaces so that they are free from dirt caused by the Developer's operation or as a result of building activity. Any excessive accumulation of dirt and/or construction materials shall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until the problem is corrected to the satisfaction of the City Engineer. If the Developer fails to adequately clean such streets within two (2) days after receipt of written notice, the City may have the streets cleaned at the Developer's expense and the Developer shall be responsible for prompt payment of all such costs. The Developer also agrees to require all contractors within the Development to keep the public right-of-way clean and free from accumulation of dirt, rubbish, and building materials. C. The Developer hereby agrees that it will require its contractors and subcontractors to cooperate with the City's construction inspectors by ceasing operations when winds are of sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the public health and welfare. D. The Developer shall, pursuant to the terms of this Agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the Final Development Plan Documents, or any documents executed in the future that are required by the City for the approval of an amendment to a development plan, and the City may withhold (or to the extent permitted by law, revoke) such building permits and certificates of occupancy as it deems necessary to ensure performance in accordance with the terms of this Development Agreement. The processing and "routing for approval" of the various development plan documents may result in certain of said documents carrying dates of approval and/or execution that are later than the date of execution of this Development Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of this Agreement. The Developer hereby waives any right to object to any such discrepancy in dates. E. Nothing herein contained shall be construed as a waiver of any requirements of the City Code or the Land Use Code and the Developer agrees to comply with all requirements of the same. F. In the event the City waives any breach of this Agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. 12 G. All financial obligations of the City arising under this Agreement that are payable after the current fiscal year are contingent upon funds for that purpose being annually appropriated, budgeted and otherwise made available by the Fort Collins City Council, in its discretion. H. This Agreement shall run with the Property, including any subsequent replatting of all, or a portion of the Property. This Agreement shall also be binding upon and inure to the benefit of the parties hereto, their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. I. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the Developer shall be released from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. In the event that the Secretary of the Department of Housing and Urban Development ("HUD") succeeds to the interests of the Developer, any obligations of the Developer "or its successors and assigns" to indemnify the City or to hold the City harmless under this Agreement shall be held in abeyance, without prejudice to the City, until such time as HUD has transferred the Property to a new third party developer/owner, who shall be automatically deemed to have assumed all such obligations hereunder effective immediately upon the recording of the deed from HUD to the new developer/owner. J. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. K. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting parry'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. 13 !� 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: Milestone Presidio, LLP 1400 16th Street, 6th Floor Denver, CO 80202 With a copy to: Moye White, LLP 1400 16'h Street, 6th Floor Denver, CO 80202 Attn: Erik K. Foster, esq. if to Imago Enterprises: Imago Enterprises, Inc. 140 Palmer Dr. Fort Collins, CO 80525 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 14 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. Imago Enterprises is made a party to this Agreement for the purpose of subjecting the entirety of the Property to the covenants contained in this Agreement. The City and the Developer expressly acknowledge and agree that Imago Enterprises shall not be liable for any obligations of the Developer under this Agreement, unless Imago Enterprises were to exercise any of the rights of the Developer in which event the obligations of the Developer shall become those of Imago Enterprises. APPROVED AS TO CONTENT: �-eity Engm APPROV D S TO FORM: Deputy City Attorney THE CITY OF FORT COLLINS, COLORADO, a Munic' al Cor By; 0 ity Mana e 15 DEVELOPER: Milestone Presidio LLP, a Colorado limited liability partnership By: Milestone Development Group — Fort Collins, LLC, a Colorado limited liability comp Its ana ing General Partn r By: Kenneth M. Kiken, M nager STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this � day of 30,41 , 2011, by Milestone Presidio, LLP by Milestone Development Group — Fort Collins, LLC managing general partner by Kenneth M. Kiken as Manager. ._�.U�.. Notary Public My Com my Wmiulw E6 Ion JIM A 2W STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) „v„,..J ENTERPRISES: Imago Enter ises, Inc., a Colorad C pora ion By: Lester M. Kaplan, President 11,01 The foregoing instrument was acknowledged before me this 0110111 Ju,K,e. -2011, by Lester M. Kaplan as President of Imago Enterprises, Inc.,,,,,.11 aNP My Commission Expires: �Z iu. day of blic EXHIBIT 'A' 1. Schedule of electrical service installation. Electrical lines need to be installed prior to the installation of the sidewalk, curb returns, handicap ramps, paving and landscaping. If the Developer installs any curb return, sidewalk or handicap ramp prior to the installation of electrical lines in an area that interferes with the installation of the electrical line installation, the Developer shall be responsible for the cost of removal and replacement of those items and any associated street repairs. 2. Schedule of water lines to be installed out of sequence. Not Applicable. 3. Schedule of sanitary sewer lines to be installed out of sequence. Not Applicable. 4. Schedule of street improvements to be installed out of sequence. Not Applicable 5. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. M2 EXHIBIT "B" MAINTENANCE GUARANTEE: The Developer hereby warrants and guarantees to the City, for a period of two (2) years from the date of completion and first acceptance by the City of the public improvements warranted hereunder, the full and complete maintenance and repair of the public improvements constructed for this Development. This warranty and guarantee is made in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land Use Regulations, as applicable. This guarantee applies to the streets and all other appurtenant structures and amenities lying within the rights -of -way, easements and other public properties, including, without limitation, all curbing, sidewalks, bike paths, drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any maintenance and/or repair required on utilities shall be coordinated with the owning utility company or city department. The Developer shall maintain said public improvements in a manner that will assure compliance on a consistent basis with all construction standards, safety requirements and environmental protection requirements of the City. The Developer shall also correct and repair, or cause to be corrected and repaired, all damages to said public improvements resulting from development -related or building -related activities. In the event the Developer fails to correct any damages for which they are responsible within thirty (30) days after written notice thereof, then said damages may be corrected by the City and all costs and charges billed to and paid by the Developer. The City shall also have any other remedies available to it as authorized by this Agreement. Any damages which occurred prior to the end of said two (2) year period and which are unrepaired at the termination of said period shall remain the responsibility of the Developer. REPAIR GUARANTEE: The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5) year period, commencing upon the date of completion and acceptance by the City of the public improvements constructed for this Development, from any and all claims, damages, or demands arising on account of the design and construction of public improvements on the Property shown on the approved plans and documents for this Development; and the Developer furthermore commits to make necessary repairs to said public improvements, to include, without limitation, the roads, streets, fills, embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the right-of-way easements and other public properties, resulting from failures caused by design and/or construction defects. This agreement to hold the City harmless includes defects in materials and workmanship, as well as defects caused by or consisting of settling trenches, fills or excavations. Further, the Developer agrees that the City shall not be liable to the Developer during the warranty period, for any claim of damages resulting from negligence in exercising engineering techniques and due caution in the construction of cross drains, drives, structures or buildings, the changing of courses of streams and rivers, flooding from 1f \0� natural creeks and rivers, and any other matter whatsoever on private property. Any and all monetary liability occurring under this paragraph shall be the liability of the Developer. The obligations of the Developer pursuant to the "maintenance guarantee" and "repair guarantee" provisions set forth above may not be assigned or transferred to any other person or entity unless the warranted improvements are completed by, and a letter of acceptance of the warranted improvements is received from the City by, such other person or entity. 2 wpm of the arties hereto and ses NOW, THEREFORE, in considerah t and afdequacy o fwhich are he eby other good and valuable consideration, the receip acknowledged, it is agreed as follows: General Conditions tivities of the A. The terms of this Agreement shall govern all development acdevelopment Developer pertaining to the Property. For the purposes of this Agreementactual constr lopm of o activities" shall include, but not be limited to, the followi g: change grade, contour or improvements, (2) obtaining a permit therefor, r () Y 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 lines, shall be�nstalled as srm sewer hown on and facilities, streets, curbs, gutters, sidewalks, and bikepaths the Final Development Plan Documents and in ice of thel compliance CityEngineerth the standards and the time of approval specifications of the City on file in the off year time limitation of the utility plans relatt of the s tethe f speic cific c devbelopment plan. ject to a three 3n the event that the from the date of approvalnt hereto after the Developer commences or performs o approval construction he purite sua specific development plans the of three (3) years from the date 7 The Developer shall resubmit the utility plans to the City Engineer forapproved ination. and City may then require the Developer to comply with the specifications of the City on file in the office of the City Engineer at the time of the resubmittal. C. The Developer may not proceed beyond foundation constrsation nt arynsewee public water lines and stubs to each lot, fire hydrants, eleccurb, elines, r, and pavement with lines and stubs to each lot, and public streets suh (including curb, gand at least the base course completed) serving shallcbe ssuedeforaany structurve been e loca ed in accepted by the City. No building perm its excess of six hundred and sixty feet (660') from a single point of access, unless the structures contain sprinkler systems that are approved by the Poudre Fire Authority. D. Any water lines, sanitary sewer lines, storm drainage lines, electrical lines, and/or streets described on Exhibit "A,"t ,tA � If the C ty Eng nhed hereto, lee ehastdetermined that alled within the time and/or sequence required on Exhibi any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other ocuments the andCity, shall be installledshall the shown on the Final Development Plan Developer within the time as established under "Special Conditions" in this Agreement. E. Except as otherwise herein specifically anag steam t e Develonage per agrees to and install and pay for all water, sanitary appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by this Development as shown on the Final Development Plan Documents and other approved documents pertaining to this Development on file with the City. F. Street improvements shall not be installed until all utility lines to be placed therein have been completely installed, to the property including all tlnedual and a�l electrical lines lines(water and sewer) leading m and from 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 tmanda edstandard aequireme,then thespecifications, hat if Federathe o� State nflicts are a result of Federal or State mandated requirements shall prevail. H. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer, for itself and its successor(s) in interest, does hereby agree a result t it llf be solely liable for any and all claims that might arise, directly or indirectly, as 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 o romi ss omissions the City in, except omaintenance lof such ms and damages as are caused by the acts 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 detailsosuch tpllnns, which details shall be the responsibility of the Developer); and (3) specific or otherwise documented directives that of alven to the Developy ny claim made age nst it toewhich this ty. The City agrees to give notice to the Developer sole liability agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based onsuch l of all City liability ity through such seaim and to settle any such claim tlementd. Developer must obtain a completedischarge 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, andshall such failurethis shall consliability titutegaere ease ement bof the Developer to not apply to such claim the City of this sole liability agreement as to such rvshall in noal of nd cceptance manner beydeemed to any storm drainage facility design or construction constitute a waiver or relinquishment by the City of the aforesaid rights and protections. The Developer shall engage a Colorado licensed professional engineer to design the storm drainage facilities as aforesaid the benefit of the City, and subsequent purchasers of engagement shall be intended for property in the Development. 3 le "stormwer plant investment 1. The developer shall pay the i of thebCity Code. This fee is included fee" with in accordance with Chapter 26, Article Vl building permit fees and shall be paid prior to the issuance of each building permit. J. The Developer shall provide City My ar sEngineer upon completion of each phase Transparencies on Black Image DiazoReve se of the construction. Utilities will not be initially rt Collins. ted prior to as -built drawings being submitted to and approved by the City of K. The Developer specificallrepresents t t to Its knowledge l property with this dedicated (both in fee simple and as easements)tothe Cityassociated s in ironmental Development (whether on or off -site) i orders or requirements, including sol'dtwaste and anti -pollution laws, rules, regulations,ency requirements, as defined by the U. SEnvironmental Protection ated to thegC'ty purse egulations this 40 C.F.R., Part 261, and that such property as s ded Development, is in compliance with all such corequirements a y hazardous sulning to bstancesh pollupants or osal or existence in or on such dedicated property contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 19ait gated s as in annteamended, ad eestlations , does herebyagree thereunder. The Developer, for itself an that it shall be solely liable for any liability whatsoever thatposedisposal e City by any governmental authority or any third parry, pertaining to by the Of hazardous substances, pollutants or c minants, and and/or backfilla of phazardolus esubstance leaking underground storage tanks, excavation pollutants or contaminants, or environmental cleanup ethe Cityt'inscon a tion with of any nature whatsoever on, of, or related to any property dedicated to this Development, provided that such damages or liability are not caused by ublic circumstances arising entirely after the dedicated d property, acceptanceby to the extent tthat he psuch improvements constructed on the de P circumstances are the result of actsomissions of the liabDty arising as a eseveloper. Said lultlof any agreement shall not extend to claims, actions hazardous substance, pollutant or contaminant ind connection onby the ywith agents or representatives, upon the property ded Gated to the City made this Development. The City agrees to give notice to the Developer of any claimand the against it to which this right liability defend any law uit ba edeon such claimloper could pand to settle Developer shall have the ght oete any such claim provided the Developer of the Cityst ln a to give of anyrsuchfclalim' toliability through such settlement. Fa the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental immunity apply Act tothe same, suchfailuhle shall s sole liability agreement by the Developer to osuch claim and constitute a release of this sole liability agreement as to such claim. L. The Developer acknowledges and agrees that the City, as the owner of any adjacent property (the "City Property') on which off -site improvements may be constructed, or that may be damaged by the Developer's activities hereunder, The expressly retains (and does not by this Agreement waive) its rights as property owner. rights as owner may include without limitation those rights associated with the protection of the City Property from damage, and/or the enforcement of restrictions, limitations and requirements associated with activities on the City Property by the Developer as an easement recipient. II. Special Conditions A. Water Lines 1. Not Applicable B. Sewer Lines 1. Nothwithstanding anything in this Agreement to the contrary, the Development will be provided sewer service from the South Fort Collins Sanitation District ("Sewer District"), and all sewer line improvements shall be installed and inspected in accordance with the Sewer District's regulations and the approved plans therefor. C. Storm Drainage Lines and Appurtenances 1. All onsite and offsite storm drainage improvements associated with this Development, as shown on the Final Development Plan Documents, shall be completed in accordance with said Final Development Plan Documents prior to the issuance of any certificate of occupancy. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve this Development have been shall be subm ttedconformance to thewith City at leasttDevelopment weeks prior to Documents. Said certification the issuance of any certificate of occupancy in this Development. 2. The Developer shall be responsible for maintaining the structural integrity and operational functions of all drainage facilities throughout the build -out of this Development. If at any time following certification (as required pursuant to paragraph one (1) above) of said drainage facilities and during the construction of structures and /or lots within this Development the City reasonably decides that said drainage facilities no longer comply with the Final Development Plan Documents, the City shall give written notice to the Developer of all items which do not comply with the Final Development Plan Documents. Unless the Developer successfully appeals the decision of non-compliance, it shall bring such facilities back up to the standards and specifications as shown on the Final Development Plan Documents. Failure to maintain the structural integrity and operational function of said drainage facilities following certification shall result in the withholding of the issuance of additional building permits and/ or certificates of occupancy until such drainage facilities are repaired to the operational function and structural integrity which was approved by the City. 5 3. The Developer agrees to provide and maintain erosion control improvements as shown on the Final Development Plan Documents to stabilize all overlot grading in and adjacent to this Development. The Developer shall also be required to post a security deposit in the amount of $ 2,406.38 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the offsite (Presidio Precision Drive) portion of the Final Development Plan Documents. Said security deposit(s) shall be made in accordance with the criteria set forth in the City's Storm Drainage Design Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to abide by the erosion control provisions of the Final Development Plan Documents or the erosion control provisions of the Criteria after receiving notice of the same or an emergency situation exists which would reasonably require immediate mitigation measures, then, either nd notwithstanding any provisions contained in paragraph 111(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 theprovisions of said such plans and the Criteria are properly enforced. The City may apply portion the security deposit(s) as may be necessary to pay all costs incurred by the City in undertaking the administration, construction, and/or installation of the erosion control measures required by said plans and the Criteria. In addition, the City shall have the option to withhold building permits and certificates of occupancy, as stated in Paragraph III.D of this Agreement, as it deems necessary in order to ensure that the Developer installs and maintains the erosion control measures throughout the build -out of this Development. 4. The Developer agrees to provide and maintain erosion control improvements as shown on the Final Development Plan Documents to stabilize all overlot grading in and adjacent to this Development. The Developer shall also be required to post a security deposit in the amount of $ 13,752.38 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the onsite (Presidio Apartments) portion of the Final Development Plan Documents. Said security deposit(s) shall be made in accordance with the criteria set forth in the City's Storm Drainage Design Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to abide by the erosion control provisions of the Final Development Plan Documents or the erosion control provisions of the Criteria after receiving notice of the same or an emergency situation exists which would reasonably require immediate mitigation measures, then, in either event, and notwithstanding any provisions contained in paragraph 111(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 it in order rmits and certificateof occupancy, to ensure that dthe Developer in Paragraph III.D of this Agreement, as deems necessary 6 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 (CO) for any building the Developer shall provide the City with certification that the lot and the building grades have been set correctly. This grading certification shall demonstrate that the building's finished 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 opening elevation for any building constructed is in compliance with the minimum elevation as required on the Final Development Plan Documents. The final lot 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. There are to be several buildings on a single lot, therefore a CO can be issued for the individual buildings with a partial certification that includes verification that there is at least one half foot of fall away from the building within the first 10 feet or less. The issuance of the final CO for the final building on a lot will require that all "Lot" and building elevations are correct, with all interior grades and swales in final form. Said certifications 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. 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. 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 drainage design for this Development provides for the evacuation of storm drainage runoff in a reasonable amount of time out of the water quality and detention facilities and into the drainage outfall system. The water quality and detention facilities have been designed to discharge stormwater runoff from frequent storms over a 40 hour period through a small diameter outlet. Under the intended operation of the water quality and detention pond, there will not be standing water in the pond more than 48 hours after the end of a rainfall event. if surfacing or standing water conditions persist in these facilities; and if such conditions are beyond what can be expected in accordance with the approved stormwater design, the Developer shall promptly, upon such discovery, install an adequate de -watering system in the detention facilities. Such a system shall be reviewed and approved by the City prior to installation. This does not apply to the fore bays, which can have standing water longer than 48 hours. NA be ntenane of l storm 8. The Developer constructed loutside of the public crrightlof-wayC including Storm drainage facilities that arere Drain Line A. 9. The water quality measures located within the detention pond, including the fore bays, bioswale, and PLD, require precise construction and proper maintenance in order for them to function properly. If these features do not function according to the design due to excessive standing water or sediment buildup, within 3 growing seasons, the Developer will be required to design and construct the an alternative structure to convey the drainage throughhe bottom of the detention pond. 10. The construction of the PI -Ds within the detention pond shall be after site construction and after the stabilization surfaces shalof l be determined bycthe Erosion on Conequacy of trol stabilization of the landscape Inspector. D. Streets. 1. Subject to the conditions of this Agreement, the City agrees to reimburse Developer for oversizing public street improvements along Rock Creek Drive for those portions of said street abutting the Property as shown on the Final Development Plan Documents. Reimbursement for Rock Creek Drive shall be for oversizing the sidewalk from locat(ecDeveloperdfodrstheto caforesaidaoaerszedhstrelet ty shall make reimbursement to he improvements in accordance with Section 24-112 of the Code of the City. 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 ailable for such Developer further understands that to the extent that funds are not av reimbursement, the City may not, in the absence of Developer's agreement, require the construction, at Developer's expense, of any oversized portion of streets not reasonably necessary to offset the traffic impacts of the Development. Developer does hereby agree to construct the aforesaid oversized street improvements with the understanding that Developer may not be fully reimbursed by the City for the cost of such construction. 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 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 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 11(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 timprovements forr the construction of the same must Ibe Thousand Dollars ($30,000),he contract 8 submitted to a competitive bidding process resulting iri 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 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. 4. Following completion of all public infrastructure improvements, Developer shall continue to have responsibility for maintenance and repair of said improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code of the City. E. Natural Resources 1. Not applicable. F. Soil Amendment 1. In all areas associated with this Development that are to be landscaped or planted in accordance with the Final Development Plan Documents, and do not require a building permit, the soils shall be loosened and amended by the Developer in accordance with Section 3.8.21 of the Land Use Code prior to the issuance of any certificate of occupancy in this Development. Completion of soil amendments shall include certification by the Developer that the work has been completed. This certification shall be submitted to the City at least two (2) weeks prior to the date of issuance of any certificate of occupancy in this Development. G. Ground Water, Subdrains and Water Rights 1. The City shall not be responsible for, and the Developer (for itself and its successor(s) in interest) hereby agrees to be solely liable for 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 der r the Colher orado Governmental Immunity Act (Section 24-20-101 CR5, et. seq.) Y D] 0