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HomeMy WebLinkAboutGROVE AT FORT COLLINS - Filed DA-DEVELOPMENT AGREEMENT - 2012-03-09RECEPTION#: 20120012827, 02/28/2012 at 08:57:29 AM, 1 OF 31, R $161.00 TD Pgs: 0 Scott Doyle, Larimer County, CO DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement"), is made and entered into this —,a day of l+F�3 , v�� 2012, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and Campus Crest at Fort Collins, LLC, a Delaware limited liability company, hereinafter referred to as the "Developer"; and Colorado State University Research Foundation, a Colorado non-profit corporation, hereinafter referred to as the "Owner." WITNESSETH: WHEREAS, the Owner is the owner of certain real property situated in the County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property" or "Development") and legally described as follows, to wit: The Grove at Fort Collins, being a replat of a portion of Tract C, Windtrail Townhomes P.U.D., First Replat; a replat of a portion of lot 1, Centre for Advanced Technology P.U.D., Ninth Filing and a tract of land, located in Section 23, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado, except Tract A thereof. WHEREAS, the Owner and the Developer have entered into agreements pursuant to which the Developer has acquired a long-term leasehold interest in a portion of the Property and temporary and permanent easements over and across all of the Property; and WHEREAS, the Developer desires to develop the Property and has submitted to the City all plats, plans (including utility plans), reports and other documents required for the approval of a final plan according to the City's development application submittal requirements master list (the "Final Development Plan Documents") copies of which are on file in the office of the City Engineer and made a part hereof by reference; and WHEREAS, the parties hereto have agreed that the development of the Property will require increased municipal services from the City in order to serve such area and will further require the installation of certain improvements primarily of benefit to the Property and not to the City of Fort Collins as a whole; and WHEREAS, the City has approved the Final Development Plan Documents submitted by the Developer, subject to certain requirements and conditions, which City Clerk's Office, Fon Collins, Colorado limits as delineated on the Final Development Plan Documents for this Project. An approved no -rise certification must accompany the floodplain use permit for construction elements within the floodway portion of the floodplain. 15. A FEMA Elevation Certificate shall be provided to and approved by the Fort Collins Floodplain Administrator prior to the issuance of a Certificate of Occupancy for any structure in the 100-year floodplain. This certification can be completed in conjunction with the grading certification required in paragraph II.C.4 above. 16. Failure to comply with all floodplain requirements in sections 9.12 above shall result in a stop work order and/or the withholding of the issuance of additional building permits and/ or certificates of occupancy until the violation(s) are corrected and approved by the City in accordance with Chapter 10 of City Code. D. Streets 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along New Rolland Moore Drive for those portions of said street abutting the Property as shown on the Final Development Plan Documents. Reimbursement for New Rolland Moore Drive shall be for oversizing the street from local (access) standards to collector standards; however, said reimbursement shall not include 460 feet in linear length of the overall approximately 1,796 feet of roadway due to the City's previous reimbursement for the 460 feet of Existing Rolland Moore Drive roadway abutting the Gardens at Spring Creek. The City shall make reimbursement to the Developer for the aforesaid oversized street improvements in accordance with Section 24-112 of the Code of the City. The Developer agrees and understands that the City shall have no obligation to make reimbursement payments for street oversizing unless funds for such payments shall first have been budgeted and appropriated from the Street Oversizing Fund by the City Council; and the Developer further understands that to the extent that funds are not available for such reimbursement, the City may not, in the absence of the Developer's agreement, require the construction, at the Developer's expense, of any oversized portion of streets not reasonably necessary to offset the traffic impacts of the Development. The Developer does hereby agree to construct the aforesaid oversized street improvements with the understanding that the Developer may not be fully reimbursed by the City for the cost of such construction. The Developer further agrees to accept payment in accordance with Section 24-112 (d) of the Code of the City as full and final settlement and complete accord and satisfaction of all obligations of the City to make reimbursements to the Developer for street oversizing expenses. 2. It is understood that the improvements that are to be constructed in the public right-of-way as described in this Paragraph II(D) are "City improvements" (as defined below) and, as such, any contract for the construction of the same must be executed in writing. If the cost of such improvements exceeds the sum of Thirty Thousand Dollars ($30,000), the contract for the construction of the same must be to submitted to a competitive bidding process resulting in an award to the lowest responsible bidder; and evidence must be submitted to the City prior to the commencement of the work showing that the award was given to the lowest responsible bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the contract for the construction of the improvements must be insured by a performance bond or other equivalent security. For purposes of this paragraph, the term "City improvements" shall mean either (1) existing improvements owned by the City that are to be modified or reconstructed, or (2) any improvements funded in whole or in part by the City. 3. The Developer hereby indemnifies and holds the City harmless from any damage caused to the roadway (concrete, asphalt, curb and gutter, pavement subgrade) when such damage is caused, directly or indirectly, by the acts or omissions of the Developer in the operation and maintenance of the rain gardens along New Rolland Moore Drive within the Development (including the irrigating of the landscaping within the rain gardens) as shown on the Final Development Plan Documents. 4. Portions of the right-of-way for the Existing Rolland Moore Drive (which were dedicated to the City in conjunction with the Gardens at Spring Creek development) are no longer required because of the shortening and reconfiguration of the roadway. The Developer shall be responsible for (i) payment to the City of costs to vacate such right-of-way, which include the City's Transportation Development Review Fee of $800 and Larimer County recording fees (presently estimated to be $50) for the ordinance approving the vacation; and (ii) the provision of a legal description and exhibit acceptable to the City for the area to be vacated. The City reserves the right to withhold the issuance of building permits and certificates of occupancy until the above described costs and materials are provided to the City. The City shall be responsible for processing the right-of-way vacation upon receipt of the items to be submitted by the Developer. The ordinance of the City vacating such right-of-way shall provide that the vacation shall be effective upon the City's acceptance of the public streets constructed within the Project and the City shall be responsible for recording such ordinance upon acceptance of the public streets. In the event that the actual recording fees submitted by the Developer exceed the amount submitted by the Developer therefor, the City shall refund the excess fees to the Developer. 5. 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 the 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. 6. Following completion and City acceptance of all public infrastructure improvements, the Developer shall continue to have responsibility for maintenance and repair of said improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code of the City. I E. Natural Resources 1. The Final Development Plan Documents identify areas within the Property which are not to be disturbed in order to prevent environmental damage to the natural habitats and features ("Natural Habitat Buffer Zone"). Neither the Owner, Developer nor its contractor shall intrude upon, remove, fill, dredge, build upon, degrade or otherwise alter natural habitats and features delineated on the Final Development Plan Documents, except as defined in Section 3.4.1(E)(2) of the Land Use Code or as noted in the Final Development Plan Documents. The Developer shall notify the City of Fort Collins Environmental Planner when on -site construction begins; the City's Environmental Planner shall periodically inspect the site to ensure compliance with the buffer zone requirements (as set forth in Section 3.4.1(E) of the Land Use Code) established in the Final Development Plan Documents. 2. The Developer shall delineate the Development's property boundary adjacent to all Limits of Development (L.O.D.) as defined by Section 3.4.1(E)(2)(N) of the Land Use Code, including boundaries around existing trees that are to be undisturbed with orange construction fence, or another method approved by the City pursuant to said Section 3.4.1(E)(2)(N) of the Land Use Code prior to any type of construction, including overlot grading. 3. All weed control, vegetation management, and monitoring efforts must adhere to the Long -Term Monitoring and Weed Management Plan prepared by Cedar Creek Associates and attached to this Development Agreement as Exhibit "C". An estimate for said monitoring shall prepared by the Developer and approved by the City. Developer shall provide to the City prior to issuance of the Development Construction Permit an acceptable form of security (cash, bond, or letter of credit) to guarantee completion of the monitoring outlined in the above -referenced plan at 125% of the approved estimate for said monitoring. The City shall return the security to the Developer upon completion of the term of the monitoring as provided in the Long Term Monitoring and Weed Management Plan. 4. Developer shall provide to the City prior to issuance of any building permits an acceptable form of security (cash, bond, or letter of credit) to guarantee completion of the buffer zone landscape improvements. An estimate for said landscape improvements shall be prepared by the Developer and approved by the City. Said estimate of landscape improvements shall constitute plant material and irrigation system improvements at 67% of the construction value to be held until said landscape improvements are constructed and accepted by the City. The City shall return the security to the Developer upon the Developer's installation of the landscape improvements and the City's acceptance thereof (see the Long -Term Monitoring and Weed Management Plan for these criteria). If the buffer zone improvements have not been established in accordance with the approved plans, then the Developer shall promptly take such steps as are necessary (with a written proposal of steps and timing to be approved by the City) to bring the buffer zone into conformance with the approved plans (this step can be completed in conjunction with the reporting and adaptive 12 management strategies associated with the Long -Term Monitorinq and Weed Manaaement Plan, referenced above). If the Developer does not take action to bring the buffer zone into conformance with the approved plans, the City shall use the security provided by the Developer to install said landscape improvements and the Developer shall forfeit any right to the security. 5. The trees along the Larimer Canal No. 2 shall be surveyed prior to any construction to confirm the presence or absence of raptor nesting activity. If an active nest is documented, the buffer zone setbacks in 3.4.1 shall apply, and as per the applicant's Ecological Characterization Study, "should be maintained during the breeding, nesting, and nestling rearing period." 6. Fueling facilities shall be located at least one hundred (100) feet from natural body of water, wetland, natural drainage way or manmade drainage way. The fuel tanks and fueling area must be set in a containment area that will not allow a fuel spill to directly flow, seep, run off, or be washed into a body of water, wetland or drainage way. F. 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 or as noted below, 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. For those areas of the plan designated as Natural Habitat Buffer Zones, soil testing prior to amending the soil can be completed to determine if the existing topsoil meets the standards set forth in Section 3.8.21 of the Land Use Code. If the topsoil within the Natural Habitat Buffer Zones meets or exceeds these standards, then only soil loosening shall be required. 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. Parks and Recreation 1. The Owner agrees to reimburse the City the sum of $69,050,00, plus a percentage added to recognize the effects of inflation, for the cost to construct Existing Rolland Moore Drive adjacent to the Property and Tract A of the Grove at Fort Collins. The inflation factor shall be calculated using the construction cost index for Denver as published in the Engineering News Record (ENR) of June, 2003, and the same index published in the ENR in the month preceding payment of the reimbursement. (For reference, the inflation cost adjustment from June 2003 to November 2011 is 37%, resulting in the reimbursable amount of $94,598.50 with the 37% added to recognize the effects of inflation, as of November 2011.) Payment shall 13 be made to the City prior to the issuance of the first building permit within the Development. 2. The Developer is responsible for the removal of any and all portions of Existing Rolland Moore Drive not needed due to reconfiguration of the road as shown on the Final Development Plan Documents. This responsibility includes all concrete curb, gutter, and sidewalk, roadway asphalt and road base, and landscaping. The Developer will furnish and place clean fill to a depth within 4" of finished grade and furnish and place 4" of top soil leveled to match existing surrounding grades. Fill material and topsoil must be approved by the City (Park Maintenance) prior to installation. The topsoil must be prepared for seeding per Sec. 12-132 of the City Code regarding soil amendment. All disturbed areas shall then be seeded by the Developer with a seed mix approved by the City (Park Maintenance prior to seeding. The City (Park Maintenance) must be given two weeks notice prior to any work being done on this portion of Existing Rolland Moore Drive. The Developer shall be responsible for all labor, materials, erosion protection, permits and traffic control to properly complete the project. 3. As shown on the Final Development Plan Documents, the Developer is responsible for the ongoing maintenance of the approximately 65 feet of sidewalk that is outside of Property, situated in the Existing Rolland Moore Drive right- of-way, and follows both the west side of Perennial Lane and the west side of the maintenance driveway for the Gardens at Spring Creek. H. Ground Water, Subdrains and Water Rights 1. The City shall not be responsible for, and the Developer (for itself and its successor(s) in interest) hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the Development as a result of ground water seepage or flooding, structural damage, or other damage unless such damages or injuries are proximately caused by the City's negligent operation or maintenance of the City's storm drainage facilities in the Development. However, nothing herein shall be deemed a waiver by the City of its immunities, defenses, and limitations to liability under the Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any other law. 2. If the Development includes a subdrain system, any such subdrain system, whether located within private property or within public property such as street rights -of -way or utility or other easements, shall not be owned, operated, maintained, repaired or reconstructed by the City and it is agreed that all ownership, operation, 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 14 standards. The City shall not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the Development as the result of groundwater seepage or flooding, structural damage or other damage resulting from failure of any such subdrain system. 4. Without admitting or denying any duty to protect water rights, the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries to water rights caused, directly or indirectly by the construction, establishment, maintenance or operation of the Development. 5. The City agrees to give notice to the Developer of any claim made against it to which the foregoing indemnities and hold harmless agreements by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided the Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause the forgoing indemnities and hold harmless agreements by the Developer to not apply to such claim and such failure shall constitute a release of the foregoing indemnities and hold harmless agreements as to such claim. Property. 6. No basements are allowed for any residential structure within the Hazards and Emergency Access 1. No combustible material will be allowed on the site until a permanent water system is installed by the Developer and approved by the City. 2. Prior to beginning any building construction, and throughout the build -out of this Development, the Developer shall provide and maintain at all times a reasonable accessway to each building. Such accessway shall be adequate to handle any emergency vehicles or equipment, and the accessway shall be kept open during all phases of construction. Such accessway shall be constructed to an unobstructed width of at least 20 feet with 4 inches of aggregate base course material compacted according to city standards and with an 100 foot diameter turnaround at the building end of said accessway. The turnaround is not required if an exit point is provided at the end of the accessway. Prior to the construction of said accessway, a plan for the accessway shall be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for review and processing.) If such accessway is at any time deemed inadequate by the 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 15 and/or the Poudre Fire Authority may issue a stop work order for all or part of the Development. 3. The Developer shall ensure that tree canopies do not encroach within any fire lanes (denoted as emergency access easements, as shown on the Final Development Documents) for a vertical distance of 14' from the ground level. J. Footing and Foundation Permits 1. Notwithstanding any provision in this Agreement to the contrary, the Developer shall have the right to obtain Footing and Foundation permits upon the installation of all underground water, sanitary sewer, and storm sewer facilities, and an emergency accessway for the phase in which the permit is being requested. Facilities shall include but not be limited to all mains, lines, services, fire hydrants and appurtenances for the site as shown on the Final Development Plan Documents. K. Development Construction Permit 1. The Developer shall apply for and obtain a Development Construction Permit for the 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 the Development as shown on the Final Development Plan Documents, prior to issuance of the Development Construction Permit. In addition, prior to the issuance of the Development Construction Permit, the Developer is required to apply for, and pay to the City, the costs associated with the street name change of Existing Rolland Moore Drive. L. 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 the Development in accordance with the Final Development Plan Documents, 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. M. Building Construction Standards 16 1. At least one multi -family building that is constructed within the Development (the "LEED Building") must be Leadership in Energy and Environmental Design ("LEED") certified. Prior to the issuance of a building permit for the LEED Building, the Developer shall provide evidence to the City of the official registration of the LEED Building with the U.S. Green Building Council's LEED for Homes Rating System and a preliminary scorecard. Prior to issuance of the certificate of occupancy for the LEED Building, the Developer shall provide evidence to the City of the complete submittal package provided to the U.S. Green Building Council ("USGBC") for determination of project certification. Developer shall obtain LEED certification for the LEED Building no later than two (2) years after issuance of the certificate of occupancy for such building, and provide evidence thereof to the City. 2. All other buildings within the Project shall be built to the same or comparable specifications and standards as the LEED Building, but such buildings are not required to go through the LEED certification process or be LEED certified. Prior to issuance of the certificate of occupancy for each such building, the Developer shall submit to the City a statement from a third -party LEED Accredited Professional and a LEED Green Rater (i.e. not including an employee of the Developer) which verifies that each such building in the Project has been built to the same or comparable specifications and standards as the LEED Building, and shall also provide with such statement reasonable detail (in the form of documentation of the results of visual inspections'conducted periodically during construction) in support thereof. N. Heating 1. Buildings constructed within the Development shall not be equipped with electric sourced heating systems. O. Ditch Realignment 1. No final certificate of occupancy for any building constructed within the Development shall be issued by the City until the new channel for the Larimer No. 2 Canal has been excavated for the rerouting of irrigation water flows, and is fully operational. P. Prohibition of Pets 1. To the extent permitted by law, all leases for residential units constructed within the Development shall prohibit pets. 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 17 Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been completed. B. As required pursuant to Chapter 20, Article IV of the City Code, the Developer shall, at all times, keep the public right-of-way free from accumulation of waste material, rubbish, or building materials caused by the Developer's operation, or the activities of individual builders and/or subcontractors; shall remove such rubbish as often as necessary, but no less than daily and; at the completion of the work, shall remove all such waste materials, rubbish, tools, construction equipment, machinery, and surplus materials from the public right-of-way. The Developer further agrees to maintain the finished street surfaces so that they are free from dirt caused by the Developer's operation or as a result of building activity. Any excessive accumulation of dirt and/or construction materials shall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until the problem is corrected to the satisfaction of the City Engineer. If the Developer fails to adequately clean such streets within two (2) days after receipt of written notice, the City may have the streets cleaned at the Developer's expense and the Developer shall be responsible for prompt payment of all such costs. The Developer also agrees to require all contractors within the Development to keep the public right-of-way clean and free from accumulation of dirt, rubbish, and building materials. C. The Developer hereby agrees that it will require its contractors and subcontractors to cooperate with the City's construction inspectors by ceasing operations when winds are of sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the public health and welfare. D. The Developer shall, pursuant to the terms of this Agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the Final Development Plan Documents, or any documents executed in the future that are required by the City for the approval of an amendment to a development plan, and the City may withhold (or to the extent permitted by law, revoke) such building permits and certificates of occupancy as it deems necessary to ensure performance in accordance with the terms of this Agreement. The processing and "routing for approval" of the various development plan documents may result in certain of said documents carrying dates of approval and/or execution that are later than the date of execution of this Agreement. The Developer hereby waives any right to object to any such discrepancy in dates. E. Nothing herein contained shall be construed as a waiver of any requirements of the City Code or the Land Use Code and the Developer agrees to comply with all requirements of the same. F. In the event the City waives any breach of this Agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. 18 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 Owner'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 Owner transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the Owner shall be released from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. J. In the event the Developer transfers its interest in 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. 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 that such defaulting party is the Owner, the City shall provide a copy of such notice to the Developer within the same time period. The Developer shall have the right, but not the obligation, to cure a default of the Owner. 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 19 involve the installation of and construction of utilities and other municipal improvements in connection with the development of the Property. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is agreed as follows: I. General Conditions A. The terms of this Agreement shall govern all development activities of the Developer pertaining to the Property. For the purposes of this Agreement, development activities shall include, but not be limited to, the following: (1) the actual construction of improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or appearance of the Property caused by, or on behalf of, the Developer with the intent to construct improvements thereon. B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the Final Development Plan Documents and in full compliance with the standards and specifications of the City on file in the office of the City Engineer at the time of approval of the utility plans relating to the specific utility, subject to a three (3) year time limitation from the date of approval of the site specific development plan. In the event that the Developer commences or performs any construction pursuant hereto after the passage of three (3) years from the date of approval of the site specific development plan, the Developer shall resubmit the utility plans to the City Engineer for reexamination. The City may then require the Developer to comply with the approved standards and specifications of the City on file in the office of the City Engineer at the time of the resubmittal. C. No building permit for the construction of any structure within the Property shall be issued by the City until the public water lines and stubs to each lot, fire hydrants, electrical lines, sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and pavement with at least the base course completed) serving such structure have been completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred and sixty feet (660') from a single point of access, unless the structures contain sprinkler systems that are approved by the Poudre Fire Authority. D. Any water lines, sanitary sewer lines, storm drainage lines, electrical lines, and/or streets described on Exhibit 'A," attached hereto, shall be installed within the time and/or sequence required on Exhibit "A." If the City Engineer has determined that any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the Final Development Plan Documents and shall be installed by the Developer within the time as established under "Special Conditions" in this Agreement. 2 reason of the default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Para h III i.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; 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: Campus Crest at Fort Collins, LLC Attn: Robbie Robinson 2100 Rexford Road, Suite 414 Charlotte, NC 28211 With a copy to: Liley Rogers & Martell, LLC Attn: Lucia A. Liley 300 S, Howes Street Fort Collins, CO 80521 If to the Owner: CSURF Attn: Nancy Hurt P.O. Box 483 Fort Collins, CO 80522 With a copy to: David L. Wood 303 West Prospect Road Fort Collins, CO 80526 20 grantees or assigns, wishes to change the person, entity or address Notwithstanding the foregoing, if any party to this Agreement, or its successors, 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 matters addressed in this Agreement. There shall be deemed to be noother 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. Q. Unless the Owner were to exercise any of the rights of the Developer in which event the obligations of the Developer shall become those of the Owner, the City and the Developer expressly acknowledge and agree that the Owner shall not be liable for any obligations imposed on the Developer under this Agreement and shall be liable only for those obligations expressly stated in the Agreement to be obligations of the Owner. Furthermore, the City and the Owner expressly acknowledge and agree that the Developer shall not be liable for any obligations imposed on the Owner under this Agreement. R. This Agreement may be executed in separate counterparts. When all parties have executed a copy of this Agreement, it shall be binding upon the parties the same as if they had all executed the original document. THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation as City Manager 21 APPROVED AS TO CONTENT: .ro, cityn�r APPROV AS TO FORM: Deputy City Attorney WA DEVELOPER: Campus Crest at Fort Collins, LLC, a Delaware limited liability company By: Campus Crest Properties, LLC, a North Carolina limited liability company, its Manager Printed Name: ; Title: Manager STATE OF NORTH CAROLINA ) ) ss. COUNTY OF MECKLENBURG ) The foregoing instrument was acknowledged before me this 9 day of ✓UA/ , 2012, by Campus Crest at Fort Collins, LLC, a Delaware limited liability company y CaEdn'atj us Crest Prop rties, LLC, a North Carolina limited liability company, its Manager, by L. L�-�y,,., its Manager. 1 Notary Public My Commission Expires: t ����►+u�+►►rr,,,, QP Notary Public Mecklenburg county Ay CommJ2Qi 6 "' oarxplres= 23 OWNER: Colorado State University Research Foundation, a Colorado non-profit corporation By: Kathleen Henry, CEO/ r sident G STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this _[41 _— day of Colo7, 2012, by Kathleen Henry as CEO/President and by Julie Birdsall as CFO of roState University Research Foundation, a Colorado non-profit corporation. My Commission Expires: / 6 /Z/? PublicNotary .rr O,�PFtY pC1��i MARTHA JO * ' WILSON �OF C01-C� 24 EXHIBIT "A" Schedule of electrical service installation. Electrical lines need to be installed prior to the installation of the sidewalk, curb returns, handicap ramps, paving and landscaping. If the Developer installs any curb return, sidewalk or handicap ramp prior to the installation of electrical lines in an area that interferes with the installation of the electrical line installation, the Developer shall be responsible for the cost of removal and replacement of those items and any associated street repairs. 2. Schedule of water lines to be installed out of sequence. Not Applicable. 3. Schedule of sanitary sewer lines to be installed out of sequence. Not Applicable. 4. Schedule of street improvements to be installed out of sequence. Not Applicable 5. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. 25 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 Project. This warranty and guarantee is made in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land Use Regulations, as applicable. This guarantee applies to the streets and all other appurtenant structures and amenities lying within the rights -of -way, easements and other public properties, including, without limitation, all curbing, sidewalks, bike paths, drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any maintenance and/or repair required on utilities shall be coordinated with the owning utility company or city department. The Developer shall maintain said public improvements in a manner that will assure compliance on a consistent basis with all construction standards, safety requirements and environmental protection requirements of the City. The Developer shall also correct and repair, or cause to be corrected and repaired, all damages to said public improvements resulting from development -related or building -related activities. In the event the Developer fails to correct any damages within thirty (30) days after written notice thereof, then said damages may be corrected by the City and all costs and charges billed to and paid by the Developer. The City shall also have any other remedies available to it as authorized by this Agreement. Any damages which occurred prior to the end of said two (2) year period and which are unrepaired at the termination of said period shall remain the responsibility of the Developer. REPAIR GUARANTEE: The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5) year period, commencing upon the date of completion and acceptance by the City of the public improvements constructed for this Project, from any and all claims, damages, or demands arising on account of the design and construction of public improvements of the Project shown on the approved plans and documents for this Project; 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. 26 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 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. 27 EXHIBIT "C" LONG-TERM MONITORING AND WEED MANAGEMENT PLAN FOR THE GROVE AT FORT COLLINS PREPARED BY STEPHEN LONG CEDAR CREEK ASSOCIATES 12-08-2011 WEED CONTROL PLAN SUMMARY This section summarizes the elements of the weed control plan to be prepared for the Natural Habitat Buffer Zone (project area) if weeds are deemed to be detrimental to plant establishment success or are required to be eradicated as per regulations. No more than 10 % weeds (see below for "weed" definition), as estimated based on total plant cover, will be permitted in the project area at the end of the three-year monitoring period. The project area will be evaluated twice per year for weed establishment; once in mid -growing season and once at the end of each growing season for a period of three years following construction and planting, or as needed based on field determinations. The completed plan will be submitted to governmental agencies, including the City of Fort Collins Natural Areas Program and Larimer County, as required for review and approval. The weed control plan will be prepared by a Commercial Pesticide Applicator licensed in the Rangeland category by the Colorado Department of Plant Industry (LCPA). All subsequent weed control activities will also be conducted by an LCPA. The plan to be prepared will take the form of an Integrated Pest Management Plan (IPM) that will consider all methods of control that would potentially be applicable to the project area. These methods include mechanical, chemical, cultural, and biological techniques. Prior to plan preparation, a visit to the project area will be conducted at the end of the first growing season by the LCPA accompanied by representatives of the City of Fort Collins, Campus Crest at Fort Collins LLC, and Larimer County, as appropriate. The objective of this site visit is to assess site conditions, routes of access, weedy species present, the relationship of surrounding water / wetland bodies to the proposed areas to be treated, potential sources of run-on and run-off, and any other factors relevant to the weed control planning process. Given the presence of wetlands adjacent to project area, initial emphasis will be given to weed control methods other than those of a chemical nature, though chemical controls do exist that are considered by the Corps of Engineers to be appropriate in such cases. Plant species to be considered as weeds and controlled and/or eradicated at this project site, as per City code, are those listed by the Larimer County Weed Control District and those listed as noxious by the Colorado Weed Law. Species listed by Larimer County, or observed on the site, and to be controlled are as follows. Additional species may be identified for specific control in the effort to reach 90% non -weed species cover. Canada Thistle Russian knapweed Dalmatian toadflax Spotted knapweed Diffuse Knapweed Tamarisk (saltcedar) Leafy spurge Yellow toadflax Bindweed Musk Thistle Note: Smooth brome was planted across the site for haying purposes in the past and is the predominant non -wetland species on the site. It will be very difficult to eradicate this species. Reasonable efforts will be made to control smooth brome and cheat grass however, they are not E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by this Development as shown on the Final Development Plan Documents and other approved documents pertaining to this Development on file with the City. F. Street improvements shall not be installed until all utility lines to be placed therein have been completely installed, including all individual lot service lines (water and sewer) leading in and from the main to the property line and all electrical lines. G. The installation of all utilities shown on the Final Development Plan Documents shall be inspected by the Engineering Department of the City and shall be subject to such department's approval. The Developer agrees to correct any deficiencies in such installations in order to meet the requirements of the plans and/or specifications applicable to such installation. In case of conflict, the Final Development Plan Documents shall supersede the standard specifications, except that if the conflicts are a result of Federal or State mandated requirements, then the Federal or State mandated requirements shall prevail. H. Public easements shall be provided for access, utilities and drainage as required by the design and location of such infrastructure and as reflected on the plans. Alignment and grades on privately maintained streets and drives shall allow for safe access, ingress and egress by owners, visitors, the general public and public safety officials and equipment, as approved by the City Engineer. I. All storm drainage facilities required by the Final Development Plan Documents shall be designed and constructed by the Developer so as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the City in its Alternative Analysis for the Design of the Mason Street Outfall, as a part of the Spring Creek Master Drainage Plan, and Design Criteria. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainage or seepage waters from the Property in a manner or quantity different from that which was historically discharged and caused by the design or construction of the storm drainage facilities required by the Final Development Plan Documents, 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 3 to be considered as part of the weed species listed above and will not be counted as part of the 10% allowable weed species. VEGETATION SUCCESS MONITORING At the end of each of the first three full growing seasons following initial planting, the Natural Habitat Buffer Zone (project area) will be monitored quantitatively to determine the overall level of site stability and vegetation establishment. The results of this assessment will be submitted to the City of Fort Collins in a report on or about December 31 of each monitoring year. Information and showings to be submitted with each annual quantitative monitoring report include a project location map, project history summary, a discussion of the conditions of the mitigation sites, a summary of the data collected, copies of all data sheets completed in the field, and a continuation of the photographic record submitted with the first annual report. As appropriate, recommendations will be made with respect to the continued maintenance and monitoring of the mitigation area. Native Species Planting Success Assessment Revegetation success will be judged based on three criteria. These criteria include (1) the percent total ground cover of native grass and forb species present in the project area, (2) the percent success of the shrub and tree plantings and (3) the suppression of weed species. The total ground cover criterion will be assessed on an annual basis. During the first growing season, the required coverage shall be 40% coverage (not including the weed species identified in the weed plan) with no significant bare spots. During the second growing season's inspection, there shall be 60% foliage cover (not including the weed species identified in the weed plan) of the specified species as found during the methodology described below. In the third growing season, or as needed until the success criterion is met, the total ground cover contributed by all grass, forb, and shrub species (not including the weed species identified in the weed plan) present in the project area is equal to or greater than 80%. In addition, there will be no evidence of erosion detrimental to vegetation establishment or site stability. Shrub and tree plantings will be considered successful when 90 percent of the total shrub and tree plantings are alive at the end of growing season three. In the case of shrubs, volunteer plants of all native species will be included in the tally. The weed suppression criteria will be met if, after three growing seasons, the total cover provided by weed -classed species does not exceed 10 percent across the project area. In terms of surficial stability, the presence of rills and gullies, if any, will be noted. All gullies will be repaired at the first opportunity and reseeded / mulched at the next recognized planting season. All rills determined to be detrimental to the establishment of a stable, self-perpetuating b\ vegetation community will be obliterated by surficial manipulation or repaired as noted for identified gullies. Any actions deemed necessary by the applicant (with approval from the City) or the City to enhance mitigation success and / or site stability will be taken as a result of each annual monitoring assessment. Monitoring will continue on at least an annual basis for a period of three years, or until determined by the City that the vegetation is well established in accordance with the coverage specifications described above, whichever occurs first. Sampling Technique Specifics Plant cover will be evaluated at the end of each growing season using the point -intercept method. A 100-foot tape will be laid out along the surface at a maximum of eight locations in the planted uplands. Transects will be sited to represent the vegetation conditions common within the project area. At each one -foot interval along each transect, a "hit' will be recorded. A hit will consist of vegetation (by species), "free water", floating algae, or bare ground/rock/litter combined. The percent total plant cover will then be calculated for each transect. Shrub and tree species planted will be tallied at the end of each growing season by a simple count of viable species present at the time of monitoring fieldwork. Any indications of insect or animal damage will be noted as will any indications of nutrient deficiencies. ADDITIONAL. MONITORING REQUESTED BY THE CITY Construction activities will occur in close proximity to existing wetlands near the Windtrail Drainage. All attempts will be made during construction to avoid all disturbances to wetlands. Where wetland disturbances cannot be avoided, disturbances will be limited to passage over the wetlands by construction equipment. The wetlands will be protected with a construction mat across which construction equipment will travel. At the termination of construction, the construction mat will be removed and the wetland allowed to return to natural conditions. As requested by the City, the disturbances related to construction in these wetlands will be assessed at the end of the growing season following the termination of construction. Should it be determined that the effected wetlands are not re-establishing to a pre -disturbance condition as compared to the abutting undisturbed wetlands, a site preparation/planting plan will be developed and implemented to mitigate these disturbances. The disturbed/revegetated areas will be included in the vegetation monitoring activities as noted above. Given the presumed small sizes and disjunct locations of the wetlands potentially to be disturbed, the vegetation success evaluations will be completed using a plot/cover estimate technique similar to that currently in use at the project site at the end of the first growing season following planting. harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. Approval of and acceptance by the City of any storm drainage facility design or construction shall in no manner be deemed to constitute a waiver or relinquishment by the City of the aforesaid indemnification. The Developer shall engage a Colorado licensed professional engineer to design the storm drainage facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be intended for the benefit of the City, and subsequent purchasers of property in the Development. J. The Developer shall pay the applicable "stormwater plant investment fee" in accordance with Chapter 26, Article VII of the City Code. This fee is included with building permit fees and shall be paid prior to the issuance of each building permit. K. The Developer shall provide the City Engineer with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of each phase of the construction. Utilities will not be initially accepted prior to as -built drawings being submitted to and approved by the City of Fort Collins. L. The Developer specifically represents that to its knowledge all property dedicated (both in fee simple and as easements) to the City associated with this Development (whether on or off -site) is in compliance with all environmental protection and anti -pollution laws, rules, regulations, orders or requirements, including solid waste requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such property as is dedicated to the City pursuant to this Development, is in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority or any third party, pertaining to the disposal of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfill of hazardous substances, pollutants or contaminants, or environmental cleanup responsibilities of any nature whatsoever on, of, or related to any property dedicated to the City in connection with this Development, provided that such damages or liability are not caused by circumstances arising entirely after the date of acceptance by the City of the public improvements constructed on the dedicated property, except to the extent that such circumstances are the result of acts or omissions of the Developer. Said indemnification shall not extend to claims, actions or other liability arising as a result of 4 any hazardous substance, pollutant or contaminant generated or deposited by the City, its agents or representatives, upon the property dedicated to the City in connection with this Development. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided the Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. M. The Developer acknowledges and agrees that the City, as the owner of any adjacent property (the "City Property") on which off -site improvements may be constructed, or that may be damaged by the Developer's activities hereunder, expressly retains (and does not by this Agreement waive) its rights as property owner. The City's rights as owner may include without limitation those rights associated with the protection of the City Property from damage, and/or the enforcement of restrictions, limitations and requirements associated with activities on the City Property by the Developer. N. If the Developer or Contractor or any agent or representative thereof causes damage to any public infrastructure (including without limitation, any surface pavers, flagstones, or other stone or concrete surfaces, planters, street and decorative lights, or canopies) such damage shall be promptly repaired with the same kind, quality, color, serviceability and material composition aspects as was possessed by the infrastructure damaged, unless otherwise expressly agreed to by the City in writing. II. Special Conditions A. Water and Sewer Lines Not applicable B. Rolland Moore Drive 1. As shown on the Final Development Plan Documents, the Developer has proposed a design alignment that provides connectivity of Rolland Moore Drive from Centre Avenue to Shields Street in conformance with the City's Master Street Plan. This alignment is a revised alignment from the previously approved 2003 CSURF Centre for Advanced Technology Overall Development Plan ("2003 ODP") and does not utilize an existing section of Rolland Moore Drive constructed by the Gardens at Spring Creek development ("Existing Rolland Moore Drive") in accordance with the 2003 ODP. Instead, the Developer has proposed a new connection of Rolland Moore Drive that provides connectivity of the roadway from Centre Avenue to Shields Street through an additional connection to Centre Avenue ("New Rolland Moore Drive") that is 5 approximately 800 feet south of the Existing Rolland Moore Drive in conformance with the Amendment CSURF Centre for Advanced Technology Overall Development Plan approved in 2011. The usage of the terms Existing Rolland Moore Drive and New Rolland Moore Drive are for clarifying purposes throughout this Agreement and shall not be construed as the actual roadway names. It is intended that Existing Rolland Moore Drive, known and existing as Rolland Moore Drive as of the date of this Agreement, will be renamed and New Rolland Moore Drive will become "Rolland Moore Drive" because it will provide connectivity from Centre Avenue to Shields Street. C. Storm Drainage Lines and Appurtenances 1. All on -site and off -site storm drainage improvements associated with this Development, as shown on the Final Development Plan Documents, shall be completed by the Developer in accordance with said Final Development Plan Documents prior to the issuance 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 constructed in conformance with said Final Development Plan Documents. Said certification shall be submitted to the City at least two weeks prior to 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 as shown on the Final Development Plan Documents 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 in accordance with the approved Final Development Plan Documents following certification shall result in the withholding of the issuance of additional building permits and/ or certificates of occupancy until such drainage facilities are repaired to the operational function and structural integrity which was approved by the City. 3. The Developer agrees to provide and maintain erosion control improvements as shown on the Final Development Plan Documents to stabilize all over - lot grading in and adjacent to this Development. The Developer shall also be required to post a security deposit in the amount of $28,320 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the Final Development Plan Documents. Said security deposit(s) shall be made in accordance with the criteria set forth in the City's Storm Drainage Design Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to 6 abide by the erosion control provisions of the Final Development Plan Documents or the erosion control provisions of the Criteria after receiving notice of the same or an emergency situation exists which would reasonably require immediate mitigation measures, then, in either event, and notwithstanding any provisions contained in Paragraph III(J) to the contrary, the City may enter upon the Property for the purpose of making such improvements and undertaking such activities as may be necessary to ensure that the provisions of said plans and the Criteria are properly enforced. The City may apply such portion of the security deposit(s) as may be necessary to pay all costs incurred by the City in undertaking the administration, construction, and/or installation of the erosion control measures required by said plans and the Criteria. In addition, the City shall have the option to withhold building permits and certificates of occupancy, as stated in Paragraph III.D of this Agreement, as it deems necessary in order to ensure that the Developer installs and maintains the erosion control measures throughout the build -out of this Development. 4. It is important that all lots be graded to drain in the configuration shown on the Final Development Plan Documents. For this reason the following requirements shall be followed for all buildings/structures on all lots: Prior to the issuance of a certificate of occupancy for any lot or building the Developer shall provide the City with certification that the lot and or the building has been graded correctly. This grading certification shall demonstrate that the lot or building finish floor elevation has been built in accordance with the elevation specified on the Final Development Plan Documents. The certification shall also show that the minimum floor elevation or minimum opening elevation for any building constructed is in compliance with the minimum elevation as required on the Final Development Plan Documents. The certification shall demonstrate as well that any minor swales adjacent to the building or on the lot have been graded correctly and in accordance with the grades shown on the Final Development Plan Documents. The certification shall also show that the elevations of all corners of the lot are in accordance with the elevations shown on the Final Development Plan Documents. Said certification shall be completed by a Colorado licensed professional engineer and shall be submitted to the City at least two weeks prior to the date of issuance of the desired certificate of occupancy. 5. The Developer shall obtain the City's prior approval of any changes from the Final Development Plan Documents in grade elevations and/or storm drainage facility configuration that occur as a result of the construction of houses and/or development of lots, whether by the Developer or other parties. The City reserves the right to withhold the issuance of building permits and certificates of occupancy for this Development until the City has deemed such changes as being acceptable for the safe and efficient delivery of storm drainage water. 6. The Developer shall limit the construction of any off -site storm drainage improvements to the limits of construction as shown on the Final Development Plan Documents. The contractor shall re -seed and/or restore any areas that are disturbed during construction of off -site storm drainage improvements in accordance with the Final Development Plan Documents promptly following construction. The Developer shall ensure that no negative impact occurs to the adjoining properties during the construction of any such facilities. No grading shall be done outside of the approved areas as shown on the Final Development Plan Documents. 7. The drainage design for this Development provides for the evacuation of storm drainage runoff in a reasonable amount of time out of the water quality and detention facilities and into the drainage outfall system. The water quality and detention facilities have been designed to discharge stormwater runoff from frequent storms over a 40 hour period through a small diameter outlet. Under the intended operation of the water quality and detention pond, there will not be standing water in the pond more than 48 hours after the end of a rainfall event. If after construction and acceptance of the detention facilities, as provided in the Final Development Plan Documents, surfacing or standing water conditions persist in these facilities; and if such conditions are beyond what can be expected in accordance with the approved stormwater design, the Developer shall promptly, upon such discovery, install an adequate de -watering system in the detention facilities. Such a system shall be reviewed and approved by the City prior to installation. 8. The Developer shall be responsible for maintenance of all storm drainage facilities that are constructed by the Developer outside of the public right-of- way in accordance with the Final Development Plan Documents. The Developer shall maintain the major swale constructed by the Developer in Outlot A to ensure the swale functions as designed including flow capacity and all slopes while meeting all natural area and landscaping requirements. The Developer shall also maintain the rain gardens located within New Rolland Moore Drive right-of-way including the custom chase grates for the public sidewalk as shown on the Final Development Plan Documents. The rain gardens shall be maintained per City of Fort Collins specifications. If the City determines that the rain gardens have failed, then the City will at its expense, retrofit the rain gardens and maintain the retrofitted improvement thereafter. 9. The parties acknowledge that: a. neither the Owner nor the Developer are responsible for maintenance of the storm drainage facilities located within the Stormwater Drainage Easement recorded at Reception # 97028757, and depicted on Sheet 2 of the plat of this Development (the "Windtrail Park Easement"), which facilities benefit the real property known and described as the Windtrail Park PUD, a Common Interest Community; maintenance of such storm drainage facilities is the sole responsibility of the homeowners association(s) for the properties located within the Windtrail Park PUD and any subsequent replats thereof; and 8 b. neither the Owner nor the Developer are responsible for maintenance of the Drainage Easement dedicated on the plat of the Windtrail Townhomes P.U.D., First Replat at Reception #96002674), and depicted on Sheet 2 of the plat of this Development (the "Windtrail Townhomes Easement"), which Drainage Easement benefits the real property known and described as the Windtrail Townhomes P.U.D., a Common Interest Community; maintenance of the improvements within such easement is the sole responsibility of the homeowners association(s) for the properties located within the Windtrail Townhomes P.U.D. First Replat and any subsequent replats thereof. 10. The parties further acknowledge that the Windtrail Park Easement and the Windtrail Townhomes Easement are both located within Outlot A, which is a portion of the platted area of the Development. Notwithstanding any other provision of this Agreement to the contrary, neither the Developer nor the Owner shall be liable for any damage caused in connection with the maintenance of, or the failure to maintain, the drainage improvements and/or facilities located within such easements and neither the Developer nor the Owner waive any right to assert any and all claims that may arise, directly or indirectly, from the maintenance or lack of maintenance of such easements. 11. All retaining walls shown on the Final Development Plan Documents over four feet in height, measured from the low side grade to the top of the wall, will require a separate permit from the Building Department. A separate permit is not required for retaining walls that are not over four feet in height, measured from the low side grade to the top of the wall, provided the horizontal distance to the next uphill retaining wall is at least equal to the total height of the lower retaining wall (unless supporting a surcharge or impounding Class I, II or IIIA Liquids, as defined in the 2009 International Building Code, as adopted and amended by the City). Structural designs shall accompany all retaining walls requiring building permit approval. 12. Portions of this Property are located in the FEMA-regulatory 100- year flood fringe and floodway of Spring Creek according to FEMA FIRM Panel No. 08069C0987F, effective December 19, 2006. All activities in this Development are subject to the applicable requirements of Chapter 10 of the Fort Collins Municipal Code. Basements shall be expressly prohibited in any structure built in the Spring Creek flood fringe within this Development. 13. The overnight storage of any construction materials or equipment in the Spring Creek currently effective FEMA-regulatory floodway is expressly prohibited. This includes, but is not limited to, machinery, stockpiles, fences, and any other construction materials that can be dislodged or floated offsite and obstruct floodway conveyance. Violations of this requirement will be subject to the penalties outlined in Chapter 10 of the Fort Collins Municipal Code. 14. Approved floodplain use permits are required prior to mobilization for all structures and each site construction element (detention ponds, bike paths, parking lot, utilities, landscaped areas, etc.) within the Spring Creek 100-year floodplain 9