Loading...
HomeMy WebLinkAboutSTORYBOOK 3RD FILING - Filed DA-DEVELOPMENT AGREEMENT - 2014-05-12RECEPTION#: 20140022061, 05/02/2014 at 03:22:01 PM,1 OF 26, R $136.00 TD Pgs: 0 Angela Myers, Clerk & Recorder, Larimer County, CO DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement"), is made and entered into this !V' day of 4a,,1 , 2014, by and between the CITY OF FORT COLLINS, COLORADO, a unM icipai Corporation, hereinafter referred to as the "City"; and Midtown Homes at Storybook, LLC, a Colorado limited liability company, hereinafter referred to as the "Developer." WITNESSETH: WHEREAS, the Developer 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: STORYBOOK 3RD FILING, Being a Replat of Lots 1 — 76, Tracts A, B and C, Storybook 2"d Filing situate in the Southwest % of Section 32, Township 8 North, Range 68 West of the Sixth P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the Developer desires to develop the Property and has submitted to the City all plats, plans (including utility plans), reports and other documents required for the approval of a final plan according to the City's development application submittal requirements master list (the "Final Development Plan Documents") copies of which are on file in the office of the City Engineer and made a part hereof by reference; and WHEREAS, the parties hereto have agreed that the development of the Property will require increased municipal services from the City in order to serve such area and will further require the installation of certain improvements primarily of benefit to the Property and not to the City of Fort Collins as a whole; and WHEREAS, the City has approved the Final Development Plan Documents submitted by the Developer, subject to certain requirements and conditions, which involve the installation of and construction of utilities and other municipal improvements in connection with the development of the Property. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is agreed as follows: JCity Clerk's Office, Fort Collins, Colorado defined below) and, as such, any contract for the construction of the same must be executed in writing. If the cost of such improvements exceeds the sum of Thirty Thousand Dollars ($30,000), the contract for the construction of the same must be submitted to a competitive bidding process resulting in an award to the lowest responsible bidder; and evidence must be submitted to the City prior to the commencement of the work showing that the award was given to the lowest responsible bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the contract for the construction of the improvements must be insured by a performance bond or other equivalent security. For purposes of this paragraph, the term "City improvements" shall mean either (1) existing improvements owned by the City that are to be modified or reconstructed, or (2) any improvements funded in whole or in part by the City. 3. The construction of the public street improvements as shown on the Final Development Plan Documents has been separated into two construction phases, Phase 1 and Phase 2, as depicted on the Phase Plan. a. Phase 1. The Developer acknowledges that the public street improvements in Phase 1 were previously constructed by a prior developer and that such improvements have not been initially accepted by the City. As required by the Engineering Department, the Developer shall complete the following prior to the issuance of the first certificate of occupancy in Phase 1: (i) Construction of approximately 340 lineal feet of new sidewalks in Phase 1 along the east side of Little John Lane from Maid Marian Court to Friar Tuck Court as shown on the Final Development Plan Documents. (ii) Improvement of the existing accessible ramps in Phase 1 to current ADA standards including, but not limited to, the incorporation of truncated domes, cross -slope and ramp slope. (iii) Restoration of the failed pavement on Maid Marian Court. (iv) Submission to the City of cash, check, or letter of credit or bond in a form acceptable to the City of sufficient security to guarantee the Developer's maintenance and repair of the Phase 1 public street improvements, as set forth in the Project Quantities and Cost Estimate Sheet therefor dated February 13, 2014 which is attached hereto as Exhibit "C" and incorporated herein by this reference. Thereafter, and prior to final acceptance by the City of the Phase 1 public street improvements and the release of security for such improvements, the Developer shall complete the following: (i) Taper mill and overlay of all streets in Phase 1 after building construction and any necessary repair of crosspans. (ii) Construction of the oversized sidewalk along Mountain Vista Drive from the east boundary of the Property to Little John Lane. 10 b. Phase 2. The Developer shall construct and obtain initial acceptance of the public Improvements in Phase 2 prior to the issuance of the first building permit in Phase 2. 4. In accordance with Section 24-95 of the City Code the Developer is responsible for constructing the portion of Mountain Vista Drive, Little John Lane and Chesapeake Drive adjacent to the site prior to the issuance of the first building permit. Notwithstanding the foregoing, the Developer has elected to postpone the construction of such street improvements as described herein below by delivering to the City, at the times prescribed below, a cash deposit sufficient to guarantee completion of the construction of the such improvements: a. Prior to the issuance of the first building permit within Phase 1, the Developer shall deliver a cash deposit to the City equal to the cost of construction of the local street portion of the northerly one-half of Mountain Vista Drive from station 5+58.16 to station 12+23.26 (665.16 lineal feet), with the exception of the sidewalk and street trees to be constructed with this Development; b. Prior to the issuance of the first building permit within Phase 1, the Developer shall deliver a cash deposit to the City equal to cost of construction of the local street portion of the easterly one-half of Little John Lane from existing inlets to Mountain Vista Drive (approximately 35 lineal feet); C. Prior to the issuance of the first building permit within Phase 2, the Developer shall deliver a cash deposit to the City equal to the cost of construction of the local street portion of the northerly and southerly one -halves of Chesapeake Drive from station 4+22.59 to station 4+32.59(10 lineal feet). The amount of each of the cash deposits referenced above shall be the City's adopted 'Local Street Cost' for the year in which the payment is made multiplied by the linear feet of street not being constructed. The Local Street Cost is a per linear foot cost estimate prepared yearly and approved by the City for the cost to Install the local street portion of a roadway. The estimate includes but is not limited to the cost of the pavement and subgrade, curb, gutter and 4.5 feet (in width) of sidewalk, and the parkway landscaping. Any interest earned by the City on the cash deposits made pursuant to this paragraph shall be the property of the City. If the Developer is the party that constructs, or causes the construction of, said improvements, upon completion of said improvements and acceptance of them by the City, the City shall return to the Developer the amount deposited for such improvement, less 3% of the total amount remaining, (which includes said amount deposited plus any interest earned by the City) to be kept by the City to cover its costs for administration of said deposits. it 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 this Development in accordance with the Final Development Plan Documents, 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 necessary because of the Development that are constructed by the Developer. 6. Following completion of all public infrastructure improvements, the Developer shall continue to have responsibility for maintenance and repair of said improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code of the City. E. Natural Resources 1. 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 26 building permits in this Development. In all areas associated with this Development that are to be landscaped or planted in accordance with the Final Development Plan Documents, and do require a building permit, the completion of soil amendments shall include certification by the Developer that the work has been completed in accordance with section 12-132 of the City Municipal Code. This certification shall be submitted to the City at least two (2) weeks prior to the date of Issuance of any certificate of occupancy in this Development. G. Ground Water, Subdrains and Water Rights 1. The City shall not be responsible for, and the Developer (for itself and its successor(s) in interest) hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the Development as a result of ground water seepage or flooding, structural damage, or other damage unless such damages or injuries are proximately caused by the CIVs negligent operation or maintenance of the City's storm drainage facilities in the Development. However, nothing herein shall be deemed a waiver by the City of its immunities, defenses, and limitations to liability under the Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any other law. 2. If the Development includes a subdrain system, any such subdrain system, whether located within private property or within public property such as street rights -of -way or utility or other easements, shall not be owned, operated, maintained, repaired or reconstructed by the City and it is agreed that all ownership, operation, 12 maintenance, repair and reconstruction obligations shall be those of the Developer or the Developer's successors) in interest. Such subdrain system is likely to be located both upon private and public property and, to the extent that it is located on public property, all maintenance, operation, repair or reconstruction shall be conducted in such a manner that such public property shall not be damaged, or if damaged, shall, upon completion of any such project, be repaired in accordance with then existing City standards. The City shall not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the Development as the result of groundwater seepage or flooding, structural damage or other damage resulting from failure of any such subdrain system. 3. Without admitting or denying any duty to protect water rights, the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries to water rights caused, directly or indirectly by the construction, establishment, maintenance or operation of the Development. 4. The City agrees to give notice to the Developer of any claim made against it to which the foregoing indemnities and hold harmless agreements by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided the Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause the forgoing indemnities and hold harmless agreements by the Developer to not apply to such claim and such failure shall constitute a release of the foregoing indemnities and hold harmless agreements as to such claim. H. Hazards and Emergency Access 1. No combustible material will be allowed on the site until a permanent water system is installed by the Developer and approved by the City. I. Development Construction Permit 1. The Developer shall apply for and obtain a Development Construction Permit for this Development, in accordance with Division 2.6 of the Land Use Code, prior to the Developer commencing construction. The Developer shall pay the required fees for said Permit and construction inspection, and post security to guarantee completion of the public improvements required for this Development, prior to issuance of the Development Construction Permit. 13 J. 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 initial acceptance thereof by the City. More speck elements of these guarantees are noted in Exhibit "D." Security for the maintenance guarantee and the repair guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code. Notwithstanding the provisions of Paragraphs III.H and 111.1 of this Agreement to the contrary, the obligations of the Developer pursuant to this paragraph and Exhibit "D" may not be assigned or transferred to any other person or entity unless the warranted improvements are completed by, and a letter of acceptance of the warranted improvements is received from the City by, such other person or entity. III. Miscellaneous A. The Developer agrees to provide and install, at its expense, adequate barricades, warning signs and similar safety devices at all construction sites within the public right-of-way and/or other areas as deemed necessary by the City Engineer and 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 falls 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. 14 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. 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. 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 15 been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. K. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party"s reasonable attorney's fees and costs incurred by reason of the default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph III.D of this Agreement. L. Except as may be otherwise expressly provided herein, this Agreement shall not be construed as or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever. M. It is expressly understood and agreed by and between the parties hereto that this Agreement shall be governed by and its terms constnied 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 Attomey's Office City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 If to the Developer. Midtown Homes at Storybook, LLC 1043 Eagle Drive Loveland, CO 80537 Attn: Nick Galluzzo 16 With a copy to: Farmers Bank Attn: Kelly Cowper PO Box 220 Ault, CO 80610 Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees or assigns, wishes to change the person, entity or address to which notices under this Agreement are to be sent as provided above, such party shall do so by giving the other parties to this Agreement written notice of such change. O. When used in this Agreement, words of the masculine gender shall include the feminine and neuter gender, and when the sentence so indicates, words of the neuter gender shall refer to any gender, and words in the singular shall include the plural and vice versa. This Agreement shall be construed according to its fair meaning, and as if prepared by all parties hereto, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto pertaining to the matters addressed in this Agreement. There shall be deemed to be no other terms, conditions, promises, understandings, statements, representations, expressed or implied, concerning this Agreement, unless set forth in writing signed by all of the parties hereto. Further, paragraph headings used herein are for convenience of reference and shall in no way define, limit, or prescribe the scope or intent of any provision under this Agreement. P. Lender Acknowledgment 1. The City acknowledges (i) that it has been informed by Farmers Bank (the "Lender"), that the Lender has extended a loan (the "Loan") to the Developer to finance the costs of constructing and equipping the Development. 2. The City acknowledges that, pursuant to Section III.N of this Agreement, the Developer has requested that copies of all notices given by the City to the Developer shall also be given to the Lender at the address set forth therein. The City further acknowledges that the Lender has a right (but not the obligation) to remedy or cure any default by the Developer under this Agreement on behalf of the Developer and that the City will accept such remedy or cure if properly carried out by the Lender on behalf of the Developer. 3. Nothing contained herein shall be construed to impose any liability or obligation of the City to the Lender, except as expressly provided in this Paragraph III.P. 17 THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By. City Manager ATTEST: City Clerk • :r :y APPROVED AS TO CONTENT: n0 •: DO E ineer A RO E AS TO FORM: Deputy City Attorney 18 DEVELOPER: Midtown Homes at Storybook, LLC, a Colorado Limited Liabilitv Conxenv By: Printed Name: , 13 Title: CER STATE OF COLORADO ) BARBARA J BIEGEL )Ss. NOTARY PUBLIC, STATE OF COLORADO COUNTY OF LARIMER ) My Comm. Expires July 6, 2015 The foregoing instrument was acknowledged before me this WA day of =-- _, 2014, by _ ) Q&,'A � g ct�„ as M �x,cc c� of Midtown Homes at Storybook, LLC. My Commission Expires: --MY eanrmission Expires July 6, 201S 19 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, sidewalk, and pavement with at least the base course completed) serving such structure have been completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred and sixty feet (660') from a single point of access, unless the structures contain sprinkler systems that are approved by the Poudre Fire Authority. D. Any water lines, sanitary sewer lines, storm drainage lines, electrical lines, and/or streets described on Exhibit "A," attached hereto, shall be installed within the time and/or sequence required on Exhibit "A." If the City Engineer has determined that any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the Final Development Plan Documents and shall be installed by the Developer within the time as established under "Special Conditions" in this Agreement. E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by this Development as shown on the Final Development Plan K EXHIBIT 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. Street improvements shall be installed in accordance with Paragraph II.D.3 of this Agreement. 5. Schedule of storm drainage improvements to be installed out of sequence. Storm drainage improvements shall be installed in accordance with Paragraph II.C.1 of this Agreement. 20 EXHIBIT "B" Page 1 of 3 STANDARD OPERATING PROCEDURES (SOPs) Storybook Td Filing, Fort Collins, CO A. Purpose In order for physical stormwater Best Management Practices (BMPs) to be effective, proper maintenance is essential. Maintenance includes both routinely scheduled activities, as well as non- routine repairs that may be required after large storms, or as a result of other unforeseen problems. Standard Operating Procedures (SOPs) should clearly identify BMP maintenance responsibility. BMP maintenance is typically the responsibility of the entity owning the BMP. Identifying who is responsible for maintenance of BMPs and ensuring that an adequate budget is allocated for maintenance is critical to the long-term success of BMPs. Maintenance responsibility may be assigned either publicly or privately. For this project, the privately owned BMPs shown in Section B below are to be maintained by the property owner, homeowner's association (HOA), or property manager. B. Site -Specific SOPs The following stormwater facilities contained within the Storybook 3`d Filing project are subject to SOP requirements: - Constructed Inlets and detention ponds - New offske Detention Pond - Storm Drains The location of said facilities can be found on the Utility Plans and Landscape Plans for Storybook 3rd Filing. Inspection and maintenance procedures and frequencies, specific maintenance requirements and activities, as well as BMP-spedfic constraints and considerations shall follow the guidelines outlined in Volume 3 of the Urban Drainage and Flood Control District (UDFCD) Urban Storm Drainage Criteria Manual. SOP Maintenance Summary Table Stormwater Facility / Ownership / BMP Responsibili UDFCD Maintenance Reference Constructed Inlets and Private Follow guidelines for Inlets and Detention Pond New offsite Detention Pond Private Follow guidelines for Detention Ponds Storm Drains Private Follow guidelines for Storm Drains 21 EXHIBIT W Page 2 of 3 Constructed Inlets and Detention Pond Maintenance Plan Routine Maintenance Table (Summary from Chapter 6 of UDFCD) Required Action Maintenance Objective Frequency of Action Sediment, Debris Remove sediment, debris and litter as Routine — Including just before And Litter removal needed. Floating debris can dog the annual storm seasons (that is, April Outlet structure and May), end of storm season after leaves have fallen, and following signifk:ant rainfall events Mosquito Control Inspect for signs of mosquito breeding; provide treatment when breeding is Routine — Inspect Weekly. found. Inspection and treatment is Typically, inspections start in recommended to be performed by a Mid -May and extend to mosquito control service. Mid- September Major Pond Remove accumulated sediment from the Non routine — Performed as Sediment removal bottom of the basin to maintain volume necessary to maintain Inspections and deter algae growth. Harvesting of volume and deter algae vegetation may also be desirable for growth. This may vary nutrient removal (see notes 1 and 2, considerably, but expect below). Upon completion of sediment to do this every 10 to 20 removal, re-establish growth zones and years, as necessary per and replant if necessary. inspection if no construction activities take place in the tributary watershed. More often if they do. Inspections Inspect to ensure that the facility continues Routine — Annual inspection of to function as initially intended. Examine hydraulic and structural facilities. the outlet for dogging, erosion, slumping, Also check for obvious problems excessive sedimentation levels, overgrowth, during routine maintenance embankment integrity and damage to any visits, especially for plugging structural element. of outlets. Note the amount of sediment and look for debris at the outlet structure. '1. Harvesting plants will permanently remove nutrients from the system, although removal of vegetation can also resuspend sediment and leave areas susceptible to erosion. Additionally, the plants growing on the safety wetland bench of a retention pond help prevent drowning accidents by demarking the pond boundary and creating a visual barrier. For this reason, UDFCD does not recommend harvesting vegetation completely as routine maintenance. However, aquatic plant harvesting can be performed if desired to maintain volume or eliminate nuisances related to overgrowth of vegetation. When this is the case, perform this activity during the dry season (November to February). This can be performed manually or with specialized machinery. 22 EXHIBIT "B" Page 3 of 3 *2. if a reduction in cattails is desired, harvest them annually, especially in areas of new growth. Cut them at the base of the plant just below the waterline, or slowly pull the shoot out from the base. Cattail removal should be done during late summer to deprive the roots of food and reduce their ability to survive winter. *Harvesting recommendatbra taken directly from BMP Maintenance Section 9.0. Chapter 6 of UDFCD. Storm Drain Unes Maintenance Plan The storm drain lines are located in proximity to trees. The situation is unavoidable; therefore, special maintenance has been Identified to ensure these storm drain systems perform as they were designed. Routine Maintenance Table Required Action Maintenance Objectivv Frequency of Action Inspection Use a video camera to inspect the condition of the storm drain pipes. Every two to five years. Cleanout pipes as needed. N the Integrity of the pipe is compromised, then repair the damaged section(s). 23 NO 88p8pp8pp8pp8p NNNNNN pp8p8po8opp8p8pp8pp8ppp8p8pp8p P�p88p8o8008o8 pp88p8p8 NNYlHNNNNNN ODN�l,O 11111D0000� t+�NNN NN {�1 J J a p 1� m F� p BE pAp i[ E88 lOQ�, lOp�,pg 8888880 a N J 0 0 N N N N M g N g g g N M N N N N h y N 4049 NN N � W 888888 8889889 888 _• p NMNNi1►N p8888888888 MNNNNNNNNN N�O ooO� O�� IY N 4 �WyW 8p8888p8 8p8p8{p88p88888 . . . . 88p88NP88p8p8 t8��OyO8p8p ' F NNNMNN NNN1g Hl . N N N ~NNNNN1 NNM O w O I N y ILIIIL 000000 00000 a 0 0 0 O W O LC us in } W Z J J WIL a u � 1i1i>;>;UU JJUU�� 1i1i1i JJJ������� V!!-1ilili>Y JNJJJ(/j(�j (/1Ygti JfnLL7N Q r L R'. 4 v �� ►= 3�� �9i3�3u.>��3 t9acSilLs!! R 0 S ld F o A !1 Si R 16 A R :, p 1t I x ! il y WEEK 75! EXHIBIT "D" MAINTENANCE GUARANTEE: The Developer hereby warrants and guarantees to the City, for a period of two (2) years from the date of completion and first acceptance by the City of the public improvements warranted hereunder, the full and complete maintenance and repair of the public improvements constructed for this Development. This warranty and guarantee is made in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land Use Regulations, as applicable. This guarantee applies to the streets and all other appurtenant structures and amenities lying within the rights -of -way, easements and other public properties, including, without limitation, all curbing, sidewalks, bike paths, drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any maintenance and/or repair required on utilities shall be coordinated with the owning utility company or city department. The Developer shall maintain said public improvements in a manner that will assure compliance on a consistent basis with all construction standards, safety requirements and environmental protection requirements of the City. The Developer shall also correct and repair, or cause to be corrected and repaired, all damages to said public improvements resulting from development -related or building -related activities. In the event the Developer fails to correct any damages within thirty (30) days after written notice thereof, then said damages may be corrected by the City and all costs and charges billed to and paid by the Developer. The City shall also have any other remedies available to it as authorized by this Agreement. Any damages which occurred prior to the end of said two (2) year period and which are unrepaired at the termination of said period shall remain the responsibility of the Developer. REPAIR GUARANTEE: The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5) year period, commencing upon the date of completion and acceptance by the City of the public improvements constructed for this Development, from any and all claims, damages, or demands arising on account of the design and construction of public improvements of the Property shown on the approved plans and documents for this Development; and the Developer furthermore commits to make necessary repairs to said public improvements, to include, without limitation, the roads, streets, fills, embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the right-of-way easements and other public properties, resulting from failures caused by design and/or constriction 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. 25 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. 26 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. All storm drainage facilities shall be designed and constructed by the Developer so as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainage or seepage waters from the Property in a manner or quantity different from that which was historically discharged and caused by the design or construction of the storm drainage facilities, except for (1) such claims and damages as are caused by the acts or omissions of the City in maintenance of such facilities as have been accepted by the City for maintenance; (2) errors, if any, in the general concept of the City's master plans (but not to include any details of such plans, which details shall be the responsibility of the Developer); and (3) specific written or otherwise documented directives that may be given to the Developer by the City. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. Approval of and acceptance by the City of any storm drainage facility design or construction shall in no manner be deemed to constitute a waiver or relinquishment by the City of the aforesaid indemnification. The Developer shall engage a Colorado licensed professional engineer to design the storm drainage facilities as 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. 3 I. 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. J. 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. K. 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 successors) in interest, does hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority or any third party, pertaining to the disposal of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfill of hazardous substances, pollutants or contaminants, or environmental cleanup responsibilities of any nature whatsoever on, of, or related to any property dedicated to the City in connection with this Development, provided that such damages or liability are not caused by circumstances arising entirely after the date of acceptance by the City of the public improvements constructed on the dedicated property, except to the extent that such circumstances are the result of acts or omissions of the Developer. Said indemnification shall not extend to claims, actions or other liability arising as a result of any hazardous substance, pollutant or contaminant generated or deposited by the City, its agents or representatives, upon the property dedicated to the City in connection with this Development. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided the Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. 4 L. The Developer acknowledges and agrees that the City, as the owner of any adjacent property (the "City Property') on which off -site improvements may be constructed, or that may be damaged by the Developer's activities hereunder, expressly retains (and does not by this Agreement waive) its rights as property owner. The City's rights as owner may include without limitation those rights associated with the protection of the City Property from damage, and/or the enforcement of restrictions, limitations and requirements associated with activities on the City Property by the Developer as an easement recipient. M. If the Developer or Contractor or any agent or representative thereof causes damage to any public infrastructure (including without limitation, any surface pavers, flagstones, or other stone or concrete surfaces, planters, street and decorative lights, or canopies) such damage shall be promptly repaired with the same kind, quality, color, serviceability and material composition aspects as was possessed by the infrastructure damaged, unless otherwise expressly agreed to by the City in writing. Paver repair and replacement in Downtown alleys shall comply with the City's specific requirements for pavers. II. Special Conditions A. Water Lines Not applicable. B. Sewer Lines Not Applicable C. Storm Drainage Lines and Appurtenances 1. In accordance with the Final Development Plan Documents for this Development, the construction of storm drainage improvements shall be phased. The Developer shall complete these improvements sequentially in accordance with said Final Development Plan Documents starting with Phase 1 and ending with Phase 2. The sequential completion of these improvements shall necessitate that the required overall site drainage certification also be done in phases in accordance with the following requirements: a) All on -site and off -site storm drainage improvements associated with Phase 1 of this Development, as such phase is depicted on Sheet 19 of 20 of the Utility Plans for the Development (the "Phase Plan"), including the onsite storm drainage improvements and the offsite bioswales adjacent to Phase 1 to be installed within the 20- foot wide drainage easement dedicated by the Poudre R-1 School District and recorded at Reception No. 2005-0063922 (the "Poudre R-1 Drainage Easement"), shall be completed by the Developer in accordance with the Final Development Plan Documents prior to the issuance of more than 12 building permits within Phase 1. b) All on -site and off -site storm drainage improvements associated with Phase 2 of this Development, as such phase is depicted on the Phase Plan, including the onsite storm drainage improvements and the offsite bioswales adjacent to Phase 2 to be installed within the Poudre R-1 Drainage Easement, shall be completed by the Developer in accordance with the Final Development Plan Documents prior to the issuance of more than 6 building permits within Phase 2. c) The water quality and storm drainage detention pond and all storm drainage facilities related thereto as depicted on Sheet 20 of 20 of the Utility Plans for the Development (the "Offsite Pond Facilities") shall be constructed by the Developer on adjacent property owned by the Poudre R-1 School District pursuant to that Detention Pond Easement Agreement between the Developer and the Poudre School District R-1. The Offsite Pond Facilities, shall be completed by the Developer in accordance with the Final Development Plan Documents prior to the issuance of more than 12 building permits within the Development or December 31, 2015, whichever occurs first (in accordance with the letter from The Dow Law Firm representing the Larimer & Weld Irrigation Company dated March 13, 2014). d) Completion of the storm drainage facilities improvements set forth in subparagraphs a, b and c above shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve any particular phase or phases of Development have been constructed in conformance with said Final Development Plan Documents. Said certification shall be submitted to the City at least two weeks prior to the date of issuance of additional building permits in each such phase. 2. The Developer shall be responsible for maintaining the structural Integrity and operational functions of all required storm drainage facilities throughout the build -out of this Development. If at any time following certification (as required pursuant to Paragraph II.C.1.d 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 6 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 $7,500.00 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the Final Development Plan Documents. Said security deposit(s) shall be made in accordance with the criteria set forth in the City's Storm Drainage Design Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to abide by the erosion control provisions of the Final Development Plan Documents or the erosion control provisions of the Criteria after receiving notice of the same or an emergency situation exists which would reasonably require immediate mitigation measures, then, in either event, and notwithstanding any provisions contained in Paragraph III.J to the contrary, the City may enter upon the Property for the purpose of making such improvements and undertaking such activities as may be necessary to ensure that the provisions of said plans and the Criteria are properly enforced. The City may apply such portion of the security deposit(s) as may be necessary to pay all costs incurred by the City in undertaking the administration, construction, and/or installation of the erosion control measures required by said plans and the Criteria. In addition, the City shall have the option to withhold building permits and certificates of occupancy, as stated in Paragraph OLD 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. All lots within the Development shall be graded to drain in the configuration shown on the Final Development Plan Documents. For this reason the following additional requirements shall be followed for all buildings/structures on all lots: Prior to the issuance of a certificate of occupancy for a building within the Development, the Developer shall provide the City with a grading certification that demonstrates that the lot has been graded and the building has been built in accordance with the elevations specified on the Final Development Plan Documents. Such certification shall include the following certifications: (1) 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; (ii) 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; and (III) that the elevations of all comers 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. 7 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 the 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 drainage design for this Development provides for the evacuation of storm drainage runoff out of the water quality and detention facilities and into the drainage outfall system within a reasonable amount of time. 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 and of a rainfall event. If, during or within 2 years after construction and acceptance of the Offsite Pond Facilities, 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. 7. The Developer shall be responsible for maintenance of all storm drainage facilities that are constructed outside of the public right-of-way. These facilities shall be maintained per the Drainage Infrastructure Standard Operating Procedures attached as Exhibit "B" to this Agreement. 8. The Developer shall record a notice with the Larimer County Clerk and Recorder describing the landscaping and fencing restrictions that exist for the drainage easements in this Development. Said notice shall reference the location of the specific restrictions shown on plans and notes in the Final Development Plan Documents. Said notice shall be recorded in a City approved form prior to the sale of any lots affected by such restrictions. 9. The Developer has entered into a Stormwater Drainage Discharge Agreement ("Discharge Agreement") with the Larimer & Weld Irrigation Company ("irrigation Company") for the construction of the Offske Pond Facilities and the discharge of a maximum of 3 cfs of stormwater therefrom into the No. 8 Outlet Ditch owned and operated by the Irrigation Company. The Developer agrees to indemnify and hold harmless the Irrigation Company in accordance with the terms of such agreement. The Developer, and its successors and assigns, agrees to indemnify and hold harmless the City from any claims, damages, injury or cause of action arising from the construction of the Mite Pond Facilities, or arising from the increase in stormwater flows added to the No. 8 Outlet Ditch by the Development in excess of historic flows except as such claims, damages, injury or cause of action are as a result of a negligent act or acts of the Irrigation Company or of the City. 8 10. The Developer shall limit the construction of the Offsite Pond Facilities and the offsite bioswales described in Paragraphs II.C.1.a and b to the "limits of disturbance" as delineated on the Final Development Plan Documents. The limits of disturbance shall be delineated in the field with a construction fence and said fence shall be installed prior to the commencement of any grading or construction in the Poudre R-1 School District property adjacent to this Development. The contractor shall re -seed and restore all areas that are disturbed during construction of the Offsite Pond Facilities and such offsite bioswales in accordance with the Final Development Plan Documents promptly following the conclusion of construction activities. 11. The Developer is obligated to maintain all on -site storm drainage facilities not accepted for maintenance by the City and all off -site storm drainage facilities not accepted for maintenance by the City serving this Development including the Offsite Pond Facilities and the offsite bioswales described in Paragraphs II.C.1.a and b. The Developer shall ensure that the detention pond, as per the Final Development Plan Documents, is maintained. The Developer shall further guarantee that the detention pond shall be maintained in a way that prevents it from becoming a nuisance to the public, and shall further ensure that the pond does not have a permanently exposed water surface. D. Streets. 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for the oversizing of the public sidewalk along Mountain Vista Drive from the east boundary of the Property to Little John Lane from local (access) standards (4.5 feet wide) to Minor Arterial standards (6 feet wide) as shown on the Final Development Plan Documents. The City shall make reimbursement to the Developer for the aforesaid oversized public sidewalk improvements in the manner provided in and in accordance with Section 24-112 of the Code of the City. The Developer agrees and understands that the City shall have no obligation to make reimbursement payments for public sidewalk 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 the oversized improvements not reasonably necessary to offset the traffic impacts of the Development. The Developer does hereby agree to construct the aforesaid oversized public sidewalk 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 public sidewalk 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 9