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HomeMy WebLinkAboutMOUNTAIN RIDGE FARM PUD THIRD - Filed DA-DEVELOPMENT AGREEMENT - 2003-12-23DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into this r day of 200 i , by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and Miramont Associates Limited Liability Company, 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: Mountain Ridge Farm P.U.D., 3'd Filing: Situated in the Northeast Quarter of Section 34, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins, County of L.arimer, State of Colorado. WHEREAS, the Developer desires to develop the Property and has submitted to the City all plats, plans (including utility plans), reports and other documents required for the approval of a final plan according to the City's development application submittal requirements master list (the final development plan documents) copies of which are on file in the office of the City Engineer and made a part hereof by reference; and WHEREAS, the parties hereto have agreed that the development of the Property will require increased municipal services from the City in order to serve such area and will further require the installation of certain improvements primarily of benefit to the lands to be developed and not to the City of Fort Collins as a whole; and WHEREAS, the City has approved the final development plan documents submitted by the Developer subject to certain requirements and conditions, which involve the installation of and construction of utilities and other municipal improvements in connection with the Property. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is agreed as follows: I. General Conditions A. The terms of this Agreement shall govern all development activities of the Developer pertaining to the Property. For the purposes of this Agreement, "development 1 accordance with Section 24-112 (d), would not be less than fifty percent (50%) of the Developer's actual expenses incurred and will be calculated in accordance with the formula as set forth in Section 24-112 (d). 2. It is understood that the improvements that are to be constructed in the public right-of-way as described in this Section II(D) are "City improvements" (as defined below) and, as such, any contract for the construction of the same must be executed in writing. If the cost of such improvements exceeds the sum of Thirty Thousand Dollars ($30,000), the contract for the construction of the same must be submitted to a competitive bidding process resulting in an award to the lowest responsible bidder; and evidence must be submitted to the City prior to the commencement of the work showing that the award was given to the lowest responsible bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the contract for the construction of the improvements must be insured by a performance bond or other equivalent security. For purposes of this paragraph, the term "City improvements" shall mean either (1) existing improvements owned by the City that are to be modified or reconstructed, or (2) any improvements funded in whole or in part by the City. 3. The Developer is responsible for all costs for the initial installation of traffic signing and striping for this Development related to the Development's local street operations. In addition the Developer is responsible for all costs for traffic signing and striping related to directing traffic access to and from the Development (e.g., all signing and striping for a right turn lane into the Development site). 4. Prior to the issuance of any building permit, Seneca Street shall be constructed (including curb, gutter, sidewalk, and pavement with at least the base course) as shown on the final development plan documents. In the event that Westfield Park PUD has not completed the construction of Seneca Street per the final development plan documents at the time of construction, the Developer agrees that Seneca Street shall be constructed offsite to the north to connect to the improved portion of Seneca Street. 5. Prior to the issuance of any building permit for Phase 2 and Phase 3, Troutman Parkway and the associated box culvert, and Wabash Street shall be constructed (including curb, gutter, sidewalk, and pavement with at least the base course) as shown on the final development plan documents. 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 29-13 and 29-14 of the Transitional Land Use Regulations of the City. 7. The Developer shall be responsible for the inspection and rating of the two box culverts, one crossing Seneca Street and the other crossing Troutman Parkway for the Pleasant Valley and Lake Canal in accordance with State of Colorado criteria. Said inspection and rating for the Seneca Street box culvert shall occur prior to the issuance of 10 10 building permits for Phase 1 of the development. Said inspection and rating for the Troutman Parkway box culvert shall occur prior to the issuance of any building permit for Phase 3 of the development. Said inspection and rating shall include a Load Factor Rating Summary and Maintenance Activities Report conducted by a State of Colorado approved party not affiliated with the design or construction of said box culverts. This report must be submitted to the City and must be accepted by the City as demonstrating that the design and construction meets acceptable standards and are efficient for HS-20 design loading prior to any City acceptance of the box culvert structures. 8. Shop drawings for the two box culverts, one crossing Seneca Street and the other crossing Troutman Parkway for the Pleasant Valley and Lake Canal shall be submitted to the City's Engineering Department for review and approval two weeks prior to commencing construction on either box culvert. E. 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 sustained as a result of the City's failure to properly maintain its storm drainage facilities in the Development. 2. If the development includes a subdrain system, any such subdrain system, whether located within private property or within public property such as street rights -of -way or utility or other easements, shall not be owned, operated, maintained, repaired or reconstructed by the City and it is agreed that all ownership, operation, maintenance, repair and reconstruction obligations shall be those of the Developer or the Developer's successor(s) in interest. Such subdrain system is likely to be located both upon private and public property and, to the extent that it is located on public property, all maintenance, operation, repair or reconstruction shall be conducted in such a manner that such public property shall not be damaged, or if damaged, shall, upon completion of any such project, be repaired in accordance with then existing City standards. The City shall not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the development as the result of groundwater seepage or flooding, structural damage or other damage resulting from failure of any such subdrain system. 3. Without admitting or denying any duty to protect water rights, the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries to water rights caused, directly or indirectly by the construction, establishment, maintenance or operation of the Development. 4. The City agrees to give notice to the Developer of any claim made 11 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. F. Hazards and Emergency Access 1. No combustible material will be allowed on the site until a permanent water system is installed by the Developer and approved by the City. G. Development Construction Permit 1. The Developer shall apply for and obtain a Development Construction Permit for this Development, in accordance with Division 2.6 of the Land Use Code (or Section 29-12 of the Transitional Land Use Regulations, if applicable), prior to the Developer commencing construction. The Developer shall pay the required fees for said Permit and construction inspection, and post security to guarantee completion of the public improvements required for this Development, prior to issuance of the Development Construction Permit. H. Maintenance and Repair Guarantees 1. The Developer agrees to provide a two-year maintenance guarantee and a five-year repair guarantee covering all errors or omissions in the design and/or construction of the public improvements required for this Development, which guarantees shall run concurrently and shall commence upon the date of completion of the public improvements and acceptance thereof by the City. More specific elements of these guarantees are noted in Exhibit "C." Security for the maintenance guarantee and the repair guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use Regulations, as applicable. Notwithstanding the provisions of paragraphs III (H) and (1) of this Agreement to the contrary, the obligations of the Developer pursuant to this paragraph and Exhibit "C" may not be assigned or transferred to any other person or entity unless the warranted improvements are completed by, and a letter of acceptance of the warranted improvements is received from the City by, such other person or entity. I. Parks and Recreation 1. The Developer shall be responsible to construct one-half the 8-foot width of the proposed city recreational trail adjacent to the site and the associated bridge 12 structure. Since the proposed city trail has not been constructed offsite of this development and since the city does not have monies at this time to participate in the oversizing of the trail adjacent to the site, the Developer and the City agree that the Developer shall escrow with the City the :sum of $7,862.21, to be held by the City for the recreational trail and associated bridge structure, prior to issuance of any building permits. (The escrow amount is based on a per lot fee for the recreational trail shown on the approved Preliminary Mountain Ridge Farms P.U.D.) 2. In accordance with Section 24-95 of the City Code the City agrees that it is responsible for the construction of the local portion of Seneca Street and the associated box culvert adjacent to Westfield Park. Following completion and acceptance of all public infrastructure improvements, the City agrees to reimburse the Developer $162,849.47 for said improvements. 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 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. 191 D. The Developer shall, pursuant to the terms of this Agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the final development plan documents, or any documents executed in the future that are required by the City for the approval of an amendment to a development plan, and the City may withhold (or to the extent permitted by law, revoke) such building permits and certificates of occupancy as it deems necessary to ensure performance in accordance with the terms of this Development Agreement. The processing and " irouting for approval" of the various development plan documents may result in certain of said documents carrying dates of approval and/or execution that are later than the date of execution of this Development Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of this Agreement. The developer hereby waives any right to object to any such discrepancy in dates. E. Nothing herein contained shall be construed as a waiver of any requirements of the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable) and the Developer agrees to comply with all requirements of the same. F. In the event 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 and shall be binding upon and inure to the benefit of the parties hereto, their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. I. 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 been declared in default hereof, such defaulting party shall be given written notice 14 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 construed under the laws of the State of Colorado and the City of Fort Collins, Colorado. N. Any notice or other communication given by any party hereto to any other party relating to this Agreement shall be hand -delivered or sent by certified mail, return receipt requested, addressed to such other party at their respective addresses as set forth below, and such notice or other communication shall be deemed given when so hand - delivered or three: (3) days after so mailed: If to the City: Engineering Development Review City of Fort Collins P.O. Box 580 Fort Collins, Co 80522 With a copy to: City Attorney's Office City of Fort Collins P.O. Box 580 Fort Collins, Co 80522 If to the Developer: Gary E. Nordic, Manager Miramont Associates, LLC 309 W. Horsetooth Road Fort Collins, CO 80526 P.O. Box 271290 Fort Collins, CO 80527 19 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. THE CITY OF FORT COLLINS, COLORADO, a Municipal Corp ration By: �&- U ity Manager ATTF=Q� City Clerk APPROVED AS TO CONTENT: f° City Engine r APP VED AS TO FORM: ' � eputy City Attorney DEVELOPER: Miramont Associates Limited Liability Company, a Col= p Limited Lia ' ty Company 16 Manager ATTEST: y� By: Secret ry 17 EXHIBIT "A" 1. Schedule of water lines to be installed out of sequence. Not Applicable. 2. Schedule of sanitary sewer lines to be installed out of sequence. Not Applicable. 3. Schedule of street improvements to be installed out of sequence. Not Applicable 4. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. iU "EXHIBIT B" DLD MOUNTAIN RIDGE FARM PUD 3RD FILING 01/15/2001 Rev.01-24-01 ESTIMATED COSTS FOR MAJOR DRAINAGE IMPROVEMENTS ITEM DESCRIPTION QUANTITY UNIT UNIT COST TOTAL COST 1 Storm Sewer and Irrigation System A. Water Quality Outlet Structure 1 LS $11,680.00 $11,680.00 B. Detention Pond Depth Gauge 1 EA 1,050.00 1,050.00 C. Install Manhole on Existing 12 Inch 1 LS 1,685.00 1,685.00 Irrigation Pipe D. Remove Existing 12 Inch Irrigation Pipe 63 LF 11.55 727.65 E. 12 Inch ADS N-12 Pipe 87 LF 20.25 1,761.75 F. Headwall 1 EA 2,464.00 2,464.00 Sub-Total ------------------ $19,368.40 2 Detention Pond Excavation and Riprap A. Clearing and Grubbing (Trees) 10 LDS $475.00 $4,750.00 B. Clearing and Grubbing (Rubble) 1 LDS 380.00 380.00 C. Remove & Stockpile Existing Chain 596 LF 1.10 655.60 Link Fence D. Dewater Pond 278 1 LS 2,400.00 2,400.00 E. Dewater Westfield Pond 1 LS 600.00 600.00 F. Strip & Place (Non -Structure Fill) (Pond 278) 1682 BCY 1.20 2,018.40 G. Unclassified Excay. (Pond 278) 24058 BCY 0.55 13,231.90 H. Unclassified Excay. (Westfield Pond) 204 BCY 1.20 244.80 I. Embankment (Westfield Pond) 2598 BCY 0.68 1,766.64 J. Muck Excavation (Pond 278) 19833 BCY 2.08 41,252.64 K. Excavation for Retaining Wall 805 LF 3.25 2,616.25 L. Backfill Retaining Wall 805 LF 5.25 4,226.25 M. Final Shape and Grade 1 LS 3,126.00 3,126.00 N. Type MG Grouted Riprap 1476 SF 8.80 12,988.80 O. Mirafi Filterweave 700 Fabric 1476 SF 0.80 1,180.80 P. North American Green P350 Erosion Fabric 2563 SY 4.30 11,020.90 (Westfield Pond) Q Pond 278 Overflow Spillway 1 LS 5,250.00 5,250.00 Sub -Total 107,708.98 3 Retailing Wall A. Installed 3350 LF 15.10 50,585.00 Sub -Total 50,585.00 Sheet 1 of 2 19 activities" shall include, but not be limited to, the following: (1) the actual construction of improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or appearance of the Property caused by, or on behalf of, the Developer with the intent to construct improvements thereon. B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the approved utility plans and in full compliance with the standards and specifications of the City on file in the office of the City Engineer at the time of approval of the utility plans relating to the specific utility, subject to a three (3) year time limitation from the date of execution of this Agreement. In the event that the Developer commences or performs any construction pursuant hereto after the passage of three (3) years from the date of execution of this agreement, the Developer shall resubmit the utility plans to the City Engineer for reexamination. The City may then require the Developer to comply with the approved standards and specifications of the City on file in the office of the City Engineer at the time of the resubmittal. C. No building permit for the construction of any structure within the Property shall be issued by the City until the public water lines and stubs to each lot, fire hydrants, sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and pavement with at least the base course completed) serving such structure have been completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred and sixty feet (660') from a single point of access, unless the structures contain sprinkler systems that are approved by the Poudre Fire Authority. D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets described on Exhibit 'A," attached hereto, shall be installed within the time and/or sequence required on Exhibit "A." If the City Engineer has determined that any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the utility plans and shall be installed by the Developer within the time as established under "Special Conditions" in this document. E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by this Development as shown on the approved final development plan documents and other approved documents pertaining to this Development on file with the City. F. Street improvements shall not be installed until all utility lines to be placed therein have been completely installed, including all individual lot service lines leading in and from the main to the property line. G. The installation of all utilities shown on the final development plan documents 7 4 Seeding A. Seed and Mulch 3.58 AC 615.00 2,201.70 ------- ---------- Sub-Total 2,201.70 5 Engineering and Construction Management A. Engineering Design 1 LS 56013.00 56,013.00 B. Construction Staking (Estimate) 1 EST 2500 2,500.00 C. Construction Management 1 LS 13650 13,650.00 -------- --------- Sub-Total 72,163.00 Total Construction Cost $252,027.08 6 Contingency at 5 Percent $12,601.35 $264,628A3 City of Fort Collins Stormwater Share at 71.0 Percent $187,886.19 Sheet 2 of 2 20 EXHIBIT "C" MAINTENANCE GUARANTEE: The Developer hereby warrants and guarantees to the City, for a period of two (2) years from the date of completion and 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 fora 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 owner furthermore commits to make necessary repairs to said public improvements, to include, without limitation, the roads, streets, fills, embankments, ditches, cross pans, sub -drains, 21 culverts, walls and bridges within the right-of-way easements and other public properties, resulting from failures caused by design and/or construction defects. This agreement to hold the City harmless includes defects in materials and workmanship, as well as defects caused by or consisting of settling trenches, fills or excavations. Further, the Developer agrees that the City shall not be liable to the Developer during the warranty period, for any claim of damages resulting from negligence in exercising engineering techniques and due caution in the construction of cross drains, drives, structures or buildings, the changing of courses of streams and rivers, flooding from 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. 22 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. H. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainage or seepage waters from the Property in a manner or quantity different from that which was historically discharged and caused by the design or construction of the storm drainage facilities, except for (1) such claims and damages as are caused by the acts or omissions of the City in maintenance of such facilities as have been accepted by the City for maintenance; (2) errors, if any, in the general concept of the City's master plans (but not to include any details of such plans, which details shall be the responsibility of the Developer); and (3) specific written or otherwise documented directives that may be given to the Developer by the City. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. Approval of and acceptance by the City of any storm drainage facility design or construction shall in no manner be deemed to constitute a waiver or relinquishment by the City of the aforesaid indemnification. The Developer shall engage a Colorado licensed professional engineer to design the storm drainage facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be intended for the benefit of the City, and subsequent purchasers of property in the Development. I. The Developer shall pay storm drainage basin fees in accordance with Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for credit or City repayment under the provisions of Chapter 26 are described together with the estimated cost of the improvements on the attached Exhibit "B," which improvements, if applicable, shall include right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. J. The Developer shall provide the City Engineer with certified Record Plan 3 Transparencies on Black Image Diazo Reverse Mylars upon completion of any 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 the best of its knowledge all portions of the Property dedicated (both in fee simple and as easements) to the City associated with this Development are in compliance with all environmental protection and anti -pollution laws, rules, regulations, orders or requirements, including solid waste requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such portions of the Property as are dedicated to the City pursuant to this Development, are in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer, 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 any hazardous substance, pollutant or contaminant generated or deposited by the City, its agents or representatives, upon portions of the Property dedicated to the City in connection with this Development. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. II. Special Conditions A. Water Lines 1. The existing 8-inch water main in Wabash Street is subject to the provisions of that certain Reimbursement Agreement dated December 6, 1995, between 0 the City and Deines Lumber Co. and Seier Construction Inc. In accordance with Section 26-372 of the City Code and that Agreement, the City will assess a charge for the portion of the existing 8-inch water main which is adjacent to Mountain Ridge Farm P.U.D. 3`d Filing. Prior to the issuance of any building permit(s) for this development, the Developer shall reimburse the City the sum of $1,027.64 plus inflation for the Developer's portion of the 8-inch water main in Wabash Street. The inflation shall be calculated based upon the Construction Cost Index for Denver as published in the Engineering News Record of November 14, 1994. 2. The existing 12-inch water main in Troutman Parkway is subject to the provisions of that certain Reimbursement Agreement dated December 6, 1995, between the City and Deines Lumber Co. and Seier Construction Inc. In accordance with Section 26-372 of the City Code and that Agreement, the City will assess a charge for the portion of the existing 12-inch water main which is adjacent to Mountain Ridge Farm P.U.D. 3`d Filing. Prior to the issuance of any building permit(s) for this development, the Developer shall reimburse the City the sum of $3,610.80 plus inflation for the Developer's portion of the 12-inch water main in Troutman Parkway. The inflation shall be calculated based upon the Construction Cost Index for Denver as published in the Engineering News Record of November 14, 1994. In addition, the parties acknowledge that the $3,610.80 reimbursement amount is calculated on the assumption that only 170 linear feet of the total of 450 linear feet of the 12-inch water main which is adjacent to the Property, actually benefits the Developer. Therefore, the City has contacted Seier Construction, Inc. and attempted to contact Deines Lumber Co. to obtain their consent to calculate the owed reimbursement amount based on only the beneficial 170 linear feet of the water main. While the City has been able to contact Seier Construction, Inc., and obtain its consent, the City has been unable to find Deines Lumber Co., or its principals, to obtain a similar consent from it. Therefore, the Developer agrees to indemnify the City for any additional reimbursement amount that the City may owe in the future under the Reimbursement Agreement to Deines Lumber Co. Such indemnification shall also include and cover any and all costs and reasonable attorney's fees that the City may incur in any litigation with Deines Lumber Co., or its successors or assigns, concerning this additional reimbursement amount. 3. The existing 12-inch water main in Seneca Street is covered by that certain Reimbursement Agreement dated December 24, 1996, between the City and Theodore Oakey, Martin C. Emo, and Michael C. Emo ("the Reimbursement Agreement"). In accordance with City Code Section 26-372 and the Reimbursement Agreement, the City will assess a charge for the 355 linear feet of the existing 12-inch water main which is adjacent and beneficial to the Property. The parties acknowledge that the enforcement of the Reimbursement Agreement is currently the subject of an ongoing lawsuit in the case of Progressive Living Structures, Inc., v. City of Fort Collins, et al., Case No. 00-CA-1842 ("the Lawsuit"). The plaintiff in the Lawsuit recently prevailed on a motion for summary judgment in which the Larimer County District Court ruled that the Reimbursement Agreement is void and, therefore, unenforceable. The parties agree that until there is a final judgment in the Lawsuit, which will require a ruling by the Colorado Court of Appeals, 5 and may require a ruling by the Colorado Supreme Court and possibly even a remand to the trial court and Further appeals, the parties do not know whether the amount owed under the Reimbursement Agreement is collectible. Therefore, it is agreed that the Developer will post with the City a letter of credit, from a bank and upon such terms as required by the City, guaranteeing payment of the Developer's required reimbursement amount under the Reimbursement Agreement should the final determination of the Lawsuit determine that the Reimbursement Agreement is valid and enforceable. However, should the final decision of the Lawsuit determine that the Reimbursement Agreement is void and, therefore, unenforceable, the Developer will have no obligation for reimbursement. It is agreed, however, that should the Lawsuit determine that the amount owed under the Reimbursement Agreement is collectable, the reimbursement to the City will be in the sum of $4,490.51 as of January 15, 2001 (this includes the direct cost of reimbursement plus the inflationary factor through January 15, 2001). In such event, the City shall have the right forthwith to draw against the letter of credit for the amount of $4, 490.51 together with the inflationary factor from January 15, 2001, to the date of payment. The letter of credit to be deposited with the City shall be in the amount of $5,000.00 and allow for the inflationary factor provided for under the Reimbursement Agreement. In the event a final judgment in the Lawsuit determines that the Reimbursement Agreement is void and, therefore, unenforceable, the letter of credit shall be promptly returned to the Developer. Notwithstanding the foregoing, in the event that the Lawsuit is settled and, as a result, there is no final judgement in the Lawsuit which determines the enforceability of the Reimbursement Agreement or the collectibility of the amount owed under the Reimbursement Agreement, the Developer agrees that the City may withdraw from the letter of credit and pay to the defendants in the Lawsuit, the percentage of the total amount collectable under the letter of credit that is equal to the percentage that the settlement amount paid in the Lawsuit is to the total amount that is claimed in the Lawsuit as being owed under the Reimbursement Agreement. For example, if the Lawsuit settles for $14,000 and the total amount owed under the Reimbursement Agreement at the time of the settlement is $35,000, the percentage withdrawn from the letter of credit would be 40%, and if the total amount collectable under the letter of credit at the time of settlement is $5,500, then the amount that could be withdrawn from the letter of credit would be $2,200. B. Sanitary Sewer Lines 1. Prior to the issuance of any building permit(s) for this development, the Developer shall, in accordance with Section 26-285 of the City Code, reimburse the City the sum of $2,157.36 (12.12 acres @ $178/acre) for the cost of installation of the Warren Lake Trunk Sewer to serve this development. C. Storm Drainage Lines and Appurtenances 1. All on -site and off -site storm drainage improvements associated with Phase 1 of this Development, as shown on the approved final development plan documents, shall be completed by the Developer in accordance with said final development plan documents prior to the issuance of more than 10 building permits in Lf Phase 1 of this Development. This shall include the certification of the detention pond that is owned by the City and referred to as Pond 278 on the approved Final development Plan documents. No building permits shall be issued in Phase 3 of this development prior to the completion of all storm drainage improvements associated with Phase 2 of this development. All on -site drainage improvements associated with Phase 3 of this Development, as shown on the approved final development plan documents, shall be completed by the Developer in accordance with said final development plan documents prior to the issuance of more than 9 building permits in Phase 3 of this Development. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve this Development have been constructed in conformance with said final development plan documents. Said certification shall be submitted to the City at least two weeks prior to the date of issuance of additional building permits for any phase of the Development. 2. The developer shall be responsible for maintaining the structural integrity and operational functions of all drainage facilities throughout the build -out of this Development. If at any time following certification (as required pursuant to paragraph one (1) above) of said drainage facilities and during the construction of structures and /or lots within this Development the City deems that said drainage facilities no longer comply with the approved plans, the developer shall bring such facilities back up to the standards and specifications as shown on the approved plans. Failure to maintain the structural integrity and operational function of said drainage facilities following certification shall result in the withholding of the issuance of additional building permits and/ or certificates of occupancy until such drainage facilities are repaired to the operational function and structural integrity which was approved by the City. 3. The Developer agrees to provide and maintain erosion control improvements as shown on the approved final development plan documents to stabilize all over -lot grading in and adjacent to this Development. The Developer shall also be required to post a security deposit in the amount of $11,181.00 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the approved final development plan documents. Said security deposit(s) shall be made in accordance with the criteria set forth in the City's Storm Drainage Design Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to abide by the provisions of the approved final development plan documents or the Criteria, 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. 7 4. It is important that all lots be graded to drain in the configuration shown on the approved final development plan documents. For this reason the following additional requirements shall be followed for the construction on any lot in this development: Prior to the issuance of a certificate of occupancy for any lot, the Developer shall provide the City with certification that the lot has been graded correctly (including the grading of any minor swales, if applicable); the lot corner elevations specified on the approved final development plan documents are correct and in accordance with the approved final development plan documents; and the minimum floor elevation for all buildings constructed on said lot has been completed in accordance with the approved final development plan documents. Said certification shall be completed by a Colorado licensed professional engineer and shall be submitted to the City at least two weeks prior to the date of issuance of the desired certificate of occupancy. 5. Some of the lots in this Development abut certain storm drainage facilities and it is agreed that it is of the utmost importance that no storm water from said facilities enters houses built on said lots. In order to provide the assurance that houses built on said lots are constructed at an elevation that said storm water cannot enter, the approved final development plan documents contain specifications for the minimum elevation for any opening to each such house. Prior to the issuance of a certificate of occupancy for each of lots 1 through 7 in Block 1 and lots 1 through 16 in Block 3 the Developer shall provide certification from a professional engineer licensed in Colorado that the lowest opening to any such house is at or above the minimum elevation required on the approved final development plan documents. Said certification is in addition to, and may be done in conjunction with, the site certification described in paragraph II.C.4 above. 6. The Developer shall obtain the City's prior approval of any changes from the approved final development plan documents in grade elevations and/or storm drainage facility configuration that occur as a result of the construction of houses and/or development of lots, whether by the Developer or other parties. The City reserves the right to withhold the issuance of building permits and certificates of occupancy for this Development until the City has approved such changes as being acceptable for the safe and efficient delivery of storm drainage water. 7. The Developer shall be required to file a notice with the Larimer County Clerk and Recorder describing the landscaping and fencing restrictions that exist for the drainage easements on each of lots 12, 13, 14, 15 and 16. Said notice shall reference the location of the specific restrictions shown on plans and notes in the approved final development plan documents. Said notice shall be filed in a City approved form prior to the sale of any lots affected by such restrictions. 8. The installation of the detention pond being constructed by this project I known as Pond 278 shall be the responsibility of the Developer. The City shall reimburse the Developer for a portion of the costs associated with the construction of this pond in accordance with "Exhibit B" attached. The City shall reimburse the Developer for this construction based on actual costs, which reimbursement shall be made within 30 days from submittal of actual contractor invoices as long as the City has available funds appropriated for that purpose at the time such invoices are submitted. If such funds are not available and appropriated, then the City shall reimburse the Developer as soon as funds are appropriated for that purpose. 9. The developer agrees that the Developer shall warranty the installation of all vegetation within Tract E for a period of 3 years from date of installation. 10. The Developer is obligated to maintain all on -site storm drainage facilities not accepted for maintenance by the City and all off -site storm drainage facilities not accepted for maintenance by the City serving this Development and outside of the public rights -of -way. The Developer shall assume the maintenance of the landscaping improvements of the detention pond referred to as Pond 278 that is part of this development. The City shall assume all other major maintenance responsibilities upon acceptance of the certification by a licensed professional engineer in the state of Colorado that these improvements were built in accordance with the approved development plan documents and upon verification that the installed vegetation in the detention pond area has been stabilized. D. Streets 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Seneca Street and Troutman Parkway for those portions of said street abutting the Property as shown on the approved final development plan documents. Reimbursement for Seneca Street and Troutman Parkway shall be for oversizing the street from local (access) standards to collector standards. The City shall make reimbursement to the Developer for the aforesaid oversized street improvements in accordance with Section 24-112 of the Code of the City. The Developer agrees and understands that the City shall have no obligation to make reimbursement payments for street oversizing unless funds for such payments shall first have been budgeted and appropriated from the Street Oversizing Fund by the City Council; and the Developer further understands that to the extent that funds are not available for such reimbursement, the City may not, in the absence of the Developer's agreement, require the construction, at the Developer's expense, of any oversized portion of streets not reasonably necessary to offset the traffic impacts of the Development. The Developer does hereby agree to construct the aforesaid oversized street improvements with the understanding that: the Developer may not be fully reimbursed by the City for the cost of such construction. The Developer further agrees to accept payment in accordance with Section 24-112 (d) of the Code of the City as full and final settlement and complete accord and satisfaction of all obligations of the City to make reimbursements to the Developer for street oversizing expenses. It is anticipated by the City that the City's reimbursement, in