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HomeMy WebLinkAboutFAIRBROOKE HEIGHTS PUD - Filed DA-DEVELOPMENT AGREEMENT - 2003-10-22DEVELOPMENT AGREEMENT Alk THIS AGREEMENT, made and entered into this �5 day of199_(;, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and Eric Booton, an individual, 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 referred to as the "Property") and legally described as follows, to wit: Fairbrooke Heights P.U.D., a tract of land located in the Northwest quarter of Section 21, Township 7 North, Range 69 West of the Sixth Principal Meridian, City of Fort Collins, County Of Larimer, State of Colorado. WHEREAS, the Developer desires to develop the Property and has submitted to the City a subdivision plat and/or a site plan and landscape plan, a copy of which is on file in the office of the City's Director of Engineering and made a part hereof by reference; and WHEREAS, the Developer has further submitted to the City utility plans for the Property, a copy of which is on file in the office of the Director of Engineering 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 subdivision plat and/or site plan and landscape plan 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 By: City Wanager CITY CLERK' APPROVED AS TO CONTENT: Director of Engineering APPROVED AS TO FORM: �6 As I stant City Attorney DEVELOPER: Eric Booton, an individual. By: ti�C .� �' \�'�• Eric Booten 10 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. 11 EXHIBIT "B" NOT APPLICABLE AT THIS TIME. This Exhibit shall be added by an amendment to this Agreement in accordance with paragraph II.C.9. of this Agreement. 12 DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this day of Ma V , A.D. 198a, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as "the City," and G AND D ENTER- PRISES, A Colorado Limited Partnership, hereinafter referred to as "the Developer," WITNESSETH: WHEREAS, the Developer is the owner of certain property situate in the County of Larimer, State of Colorado, and legally described as follows, to -wit: Aspen Heights, a Planned Unit Development, situate in the Northwest 1/4 of Section 21, Township 7 North, Range 69 West, of the Sixth P.M., City of Fort Collins, Larimer County, Colorado. WHEREAS, the Developer desires to develop said property and has submitted to the City a subdivision plat and/or a site plan, a copy of which is on file in the Office of the City Engineer and made a part hereof by reference; and WHEREAS, the Developer has further submitted to the City a utility plan for said lands, a copy of which is 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 said lands 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 subdivision plat and/or site plan 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 said lands. NOW, THEREFORE, in consideration of the premises and the terms and conditions acknowledged by the parties hereto, it is agreed as follows: 1. General Conditions. A. All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, side- walks, and bikepaths shall be installed as shown on the approved utility plans and in full compliance with the Council approved standard 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 any time limitations as provided by Ordinance. B. No building permit for the construction of any structure within the development shall be issued by the City until the water lines, fire hydrants, sanitary sewer and streets (with at least the base course completed) serving such struc- ture have been completed and accepted by the City. No build- ing permits shall be issued for any structure located in excess of six hundred sixty feet (660') from a single point of access. C. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets described on Exhibit "A", attached hereto, -2- shall be installed within the time and/or sequence required on Exhibit "A". If the City Engineer determines that any water lines, sanitary sewer lines, storm sewer facilities and/or streets shown on the utility plans are required to provide service or access to other areas of the City, those utilities shall be installed within the time determined by the City Engineer as referred to under "Special Conditions" in this document. D. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer and storm sewer facilities and appurtenances, and all streets, curbing, gutter, sidewalks, bikeways and other municipal facilities necessary to serve the lands within the develop- ment. E. Street improvements (except curbing, gutter and walks) shall not be installed until all utility lines to be placed therein have been completely installed, including all indivi- dual lot service lines leading in and from the main to the property line. F. The installation of all utilities shown on the utility draw- ings shall be inspected by the Engineering Division 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. -3- In case of conflict, the utility drawings shall supercede the standard specifications. G. All storm sewer facilities shall be so designed and con- structed as to protect the downstream properties and to adequately serve the property to be developed (and other lands as may be required, if any). The developer hereby agrees to indemnify and hold the City harmless from any and all claims that might arise, directly or indirectly, as a result of the discharge of storm drainage or seepage waters from the devel- opment in a manner or quantity different from that which was historically discharged. H. The Developer shall provide the City Engineer with certified Record Utility Drawing Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construc- tion. 2. Special Conditions. A. Water lines (oversizing, payback, etc.). Not applicable. B. Sanitary sewer (oversizing, payback, etc.). Not applicable. C. Storm drainage lines and appurtenances (detention pond con- struction, off -site mains, etc.). On -site detention is waived. Storm water will be detained in an existing pond in Brown Farm 5th Filing. D. Streets (oversizing, traffic lights, signs, etc.). The Developer shall provide "No Parking" signs (to City standards) as indicated on the site plan. -4- 3. Miscellaneous. A. The Developer agrees to provide and install, at his 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 Engi- neer in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been approved by the director. B. The Developer shall, at all times, keep the public right-of- way free from accumulation of waste material or rubbish caused by his operation, shall remove such rubbish no less than weekly 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. He further agrees to maintain the finished street surfaces free from dirt caused by his operation. Any excessive ac- cumulation or dirt and/or construction materials shall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until 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 his expense and he shall be responsible for prompt payment of all such costs. -5- C. The Developer hereby insures that his subcontractors shall cooperate with the City's construction inspectors by ceasing operations when winds are of sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the public health and welfare. D. When the inspector determines that erosion (either by wind or water) is likely to be a problem, the surface area of erodable earth material exposed at any one time shall not exceed 200,000 square feet for earthworks operations. Temporary or permanent erosion control shall be incorporated into the subdivision at the earliest practicable time. By way of explanation and without limitation, said control may consist of seeding of approved grasses, temporary dikes, gabions, and/or other devices. E. The Developer shall, pursuant to the terms of this agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the original plat, or on any replat subsequently filed by the Developer, and the City may withhold such buil- ding permits and certificates of occupancy as it deems neces- sary to ensure performance hereof. F. This Agreement shall be binding upon the parties hereto, their successors, grantees, heirs, personal representatives, and assigns and shall be deemed to run with the real property above described. G. Nothing herein contained shall be construed as a waiver of any requirements of the City Code, and the Developer agrees to comply with all requirements of the same. THE CITY OF FORT COLLINS, COLORADO A Municipal Corporation ATTEST: �y l By: /" x 2?Y `t y Clerk � t ty IFjj tanager APPROVED: Ale 'd �- Di c�� u 15T is orks li C tty Attorney G AND D ENTERPRISES Fred Gusherst -7- 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 building permit therefor, or (3) any change in grade, contour or appearance of said 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 Council -approved standards and specifications of the City on file in the office of the Director of Engineering 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 three (3) years from the date of execution of this agreement, the Developer shall resubmit the project utility plans to the Director of Engineering for reexamination. The City may require the Developer to comply with approved standards and specifications of the City on file in the office of the Director of Engineering at the time of resubmittal. C. No building permit for the construction of any structure within the development shall be issued by the City until the water lines, fire hydrants, sanitary sewer lines and streets (including curb, gutter and 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 nine hundred feet (900') from a single point of access. 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 Director of Engineering 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 plat, site, landscape and utility plans, and other approved documents pertaining to this development on file with the City. F. Street improvements (except curbs, gutters and walks) 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 utility plans shall be inspected by the 3 EXHIBIT "A" 1. Schedule of water lines to be installed out of sequence. N/A 2. Schedule of sanitary sewer lines to be installed out of sequence. N/A 3. Schedule of storm drainage improvements to be installed out of se- quence. Storm water shall be transported across Pleasant Valley and Lake Canal to an existing detention pond in Tract "C", Brown Farm 5th Filing. 4. Street improvements to be installed out of sequence. A temporary cul-de-sac with 80 ft. diameter for Sommerville Drive at the north property line will be required unless Sommerville Drive has been completed from Prospect Road to this P.U.D. at the time of construction of Sommerville Drive within this P.U.D. FAIRBROOKE HEIGHTS P.U.D. AMENDMENT AGREEMENT NO. 1 THIS AMENDMENT AGREEMENT, made and entered into thisgo? day ofx crate/ of 1991, by and between the CITY OF FORT COLLINS, COLORADO, a municipal corporation, ("City") and ERIC BOOTON, an individual ("Developer"), is an amendment to that certain Development .Agreement dated June 25, 1996 by and between the City and ERIC BOOTON, hereinafter referred to as the "Development Agreement." WHEREAS, the City and the Developer previously executed the Development Agreement, and WHEREAS, the parties are presently desirous of modifying the Development Agreement; NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. That subheading II (Special Conditions), Section C, Paragraph one (1) shall be modified in its entirety to read as follows: 1. The Developer and the City agree that Phase 2 as described in the approved utility plans shall be irevised by dividing said Phase 2 into two new phases to be known as Phase 2 and Phase 3. The revised Phase 2 shall encompass only the single family lot development and the new Phase 3 shall encompass only the multi -family development. All on -site and off -site storm drainage improvements for each respective phase shall be completed by the Developer in accordance with the approved utility plans. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve the specified phase of this development have been constructed in conformance with said approved utility plans. Any deviations from said approved utility plans shall be the responsibility of the Developer to correct prior to the issuance of more building permits or certificates of occupancy, for each respective phase, than are permitted below in sub- paragraphs a. and b. The following special conditions shall be required on revised Phase 2 and new Phase 3: a. The: Developer and the City agree that a new phasing plan for the revised Phase 2 and new Phase 3 shall be submitted and approved prior to the issuance of more than 12 building permits for Phase 2 or any building permits for Phase 3. b. The Developer and the City agree that the new Phase 3 area shall be regraded and the Developer shall reseed said area to reduce wind and water erosion. The public sanitary sewer line serving the new Phase 3 shall be extended to the first manhole, as shown on the approved utility plans, so as to not require any cutting or removal of the new pavement on Somerville Drive. The public water service line shall also be extended an adequate distance from the water main in Somerville Drive so as to not require the destruction and replacement of new street pavement on Somerville Drive. The above described grading, and water and sanitary sewer line extensions shall be completed prior to the issuance of more than 12 building permits for the revised Phase 2 and prior to the issuance of any certificates of occupancy for the new Phase 3. 2. That subheading II (Special Conditions), Section C, Paragraph two (2) shall be modified in its entirety to read as follows: 2. The Developer agrees to provide and maintain erosion control improvements as shown on the approved utility plans to stabilize all over -lot grading in and adjacent to revised Phase 2 and new Phase 3 of this development. The Developer shall also be required to post a security deposit in the amount of $14,564.00 prior to beginning construction in revised Phase 2 or new Phase 3 to guarantee the proper installation and maintenance of the erosion control measures shown on the approved utility plans for each respective Phase of this development. 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 utility plans or the Criteria, 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 buildout of this development. 3. That Exhibit `B" shall be revised in its entirety to read as follows, to wit: E=BIT °B^ I! M Qd ! 1. A 1 . The following cost estimate for the improvements constitute costs associated with major drainage improvements which are eligible for developer repay. These costs are based on quota from Gerrard Excavating, Inc and negotiations between the developer and the City. jIEM DESCRn TION -COST 1. Ditch and road grading 12 of total grading for irrigation ditch and road $18,354.50 2. Side Weir Total cost of expanding weir into existing pond 6.415.00 3. Rip Rap Total cost of rip rap for spill into existing pond 4,145.00 4. Overflow Structure 12 of relocated overflow in existing pond 1,340.00 5. Headwall City pays for relocated headwall in existing pond 2,580.00 6.36 inch Concrete Pipe City pays for 65 if of pipe to extend into pond for 3,038.75 future channel improvements 7. Compaction Testing 12 of testing for ditch and road grading 500.00 8 . Engineering City's cost for major drainage improvements eng. 3,000.00 9. Surveying 12 of costs for surveyipg and plat preparation of 2,010.00 irrigation and pond improvements 10. Ditch agreement fees 12 of costs for ditch agreements 750.00 11. Legal fees 12 of fees for agreement review and 1,500.00 condemnation proceedings 12. Landscaping 12 or revegatation along ditch and pond 1.000.00 TOTAL: 544,633 25 4. That a new paragraph shall be added to subheading II (Special Conditions), Section C, in its entirety to read as follows: 10. In the event that any third party appeals the City's execution of this Amendment Agreement No. 1, the Developer shall have the option, in his sole discretion, of completing all remaining development improvements as Phase 2 improvements in accordance with the terms and conditions of the Development Agreement dated June 26, 1996 and the approved final'utility plans associated therewith. In such event, this Amendment Agreement No. 1 shall be null and void and of no further effect. Except as modified above, all other terms and conditions of the Development Agreement shall remain unchanged and in full force and effect. Nothing in this Amendment Agreement No. I shall be construed to waive, remove, limit, or abridge in any manner or to any extent either party's right to seek damages from the other for breach of the Development Agreement between them dated June 26, 1996, which occurred prior to the date hereof, or to defend against any such actions for damages, and by execution hereof, neither party admits to any breach of the Development Agreement. IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first above written. ATTEST: CITY CLERK APPROVED AS TO CONTENT: Director of Engineering�--�l APPROVED AS TO//FORM: l Deputy City Attorney THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation City anager DEVELOPER: ERIC BOOTON, an,individual 1 L Eric Booton 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 utility plans shall supersede the standard specifications. H. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer does hereby indemnify and hold harmless the City from any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainage or seepage waters from the Property in a manner or quantity different from that which was historically discharged and caused by the design or construction of the storm drainage facilities, except for (1) such claims and damages as are caused by the acts or omissions of the City in maintenance of such facilities as have been accepted by the City for maintenance; (2) errors, if any, in the general concept of the City's master plans (but not to include any details of such plans, which details shall be the responsibility of the Developer); and (3) specific directives that may be given to the Developer by the City. 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 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 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 Director of Engineering with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construction. K. The Developer specifically represents that to the best of its knowledge all portions of the Property dedicated 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 3 dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer does hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority, pertaining to the disposal of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfill of hazardous substances, pollutants or contaminants, or environmental cleanup responsibilities of any nature whatsoever on, of or related to any property dedicated to the City in connection with this development. The Developer further agrees to indemnify and hold harmless the City from any claims or actions based directly, indirectly or in any manner on any of the aforementioned environmental risks brought against the City by third parties arising as a result of the dedication of portions of the Property to the City in connection with this development. Said indemnification shall not extend to claims, actions or other liability arising as a result of any hazardous substance, pollutant or contaminant generated or deposited by the City, its agents or representatives, upon portions of the Property dedicated to the City in connection with this development. II. Special Conditions A. Water Lines Not Applicable B. Sewer Lines Not Applicable C. Storm Drainage Lines and Appurtenances 1. The Developer has designated two phases for the development of the Property. Phase 1 consists entirely of single-family lot development while Phase 2 consists of single-family and multi -family development. The Developer and the City agree that all on -site and off -site storm drainage improvements for each respective phase shall be completed by the Developer in accordance with the approved plans prior to the issuance of: (a) more than 10 building permits for Phase 1; and (b) any certificate of occupancy for the multi -family development of Phase 2 and more than 4 building permits for the single family development of Phase 2. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve the specified phase of this development have been constructed in conformance with said approved plans. Any deviations from the approved utility plans shall be the responsibility of the Developer to correct prior to the issuance of more than the above stated number of building permits for each of the phases. Said certification shall 0 be submitted to the City at least two weeks prior to the date of issuance for any building permit greater than the above stated numbers in each phase. 2. The Developer agrees to provide and maintain erosion control improvements as shown on the approved utility plans to stabilize all over -lot grading in and adjacent to each of the two phases of this development. The Developer shall also be required to post security deposits in the amount of $14,662.00 for Phase 1; and $14,564.00 for Phase 2 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the approved Plan. Said security deposit 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 utility plans or the Criteria, 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 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. 3. The Developer agrees that no building permits shall be issued for Lots 23, 24, 35 through 39, and 43 through 47 until all permanent on -site and off -site storm drainage improvements associated with Phase 2 construction are completed and certified by a professional engineer licensed in Colorado. 4. The Developer and the City agree that the storm drainage system for this development contains some features that make it important to construct the facilities in accordance with the plans and to ensure that the facilities are maintained and kept operational throughout the buildout of this development. For this reason the following additional requirements shall be followed for building on Lots 24 and 37: a. The portions of the drainage improvement system required to be constructed on any of the above lots, and other portions not on said lots but that are necessary for the system serving said lots to properly function, shall be completed in accordance with the approved utility plans and said completion shall be certified as being completed in accordance with said plans by a licensed professional engineer. Said certification shall be received by the City prior to the issuance of a building permit for any of the above lots. A certification by such engineer that the drainage systems' function and adequacy to serve its purpose has not been impaired by the construction and landscaping on said lot, shall be submitted to the City prior to the issuance of a certificate of occupancy for each of the above lots. b. In addition the Developer shall be required to record a notice with the Larimer County Clerk and Recorder describing the landscaping and fencing restrictions that exist for the drainage easements on each of the said lots. Said s covenant shall reference the location of the specific restrictions shown on plans and notes in the approved utility plans for this development. Said covenant shall be in a form approved by the City. The covenant shall be recorded with the Larimer County Clerk and Recorder prior to the sale of any lots affected by such restrictions. 5. The Developer and the City agree that it is important that certain lots be graded to drain in the configuration shown on the approved plans for this development. For this reason the following additional requirements shall be followed for building on Lots 18 through 24, 26 through 31 and 38 through 50: Prior to the issuance of a certificate of occupancy for each of said lots 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 plans are correct and in accordance with the approved plans; and the minimum floor elevation for all buildings constructed on said lot has been completed in accordance with the approved plans. 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. 6. Lots 44 through 50 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 utility plans 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 said lots, the Developer shall provide certification from a licensed professional engineer that the lowest opening to any such house is at or above the minimum elevations required on said utility plans. 7. The Developer shall obtain the City's prior approval of any changes from the approved utility plans in grade elevations and/or storm drainage facility configuration that occur as a result of the construction of houses and/or development of lots, whether by the Developer or other parties. The City reserves the right to withhold the issuance of building permits and certificates of occupancies until the City has approved such changes as being acceptable for the safe and efficient delivery of storm drainage water. 8. In addition 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 24 and 37. Said notice shall reference the location of the specific restrictions shown on plans and notes in the approved utility plans for this development. Said notice shall be filed in a City approved form prior to the sale of any lots affected by such restrictions. ri 9. The Developer and the City agree that the Developer shall construct regional storm drainage improvements along the Pleasant Valley and Lake Canal. It is agreed that in order for the Developer to be entitled to reimbursement from the City for any expenses incurred in constructing said improvements, "Exhibit B" describing the improvements and showing the cost thereof, must be completed by amendment to this Agreement prior to the commencement of any construction (excluding grading) of said improvements by the Developer. D. Streets. 1. The Developer and the City agree that no street oversizing reimbursement from the City is due the Developer for this development. 2. The Developer and the City agree that the Developer is responsible for all costs for the initial installation of traffic signing and striping for this development related to the development 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 (eg. all signing and striping for a right turn lane into the development site). E. Groundwater. 1. The Developer and the City recognize that this development is adjacent to the Pleaseant Valley and Lake Canal and that seepage from said canal may impact the ground water levels in this development. Accordingly, it is agreed that the City shall not be responsible for and that the Developer hereby indemnifies the City for any claims of damages or injuries sustained in the development as a result of groundwater seepage, whether resulting from groundwater 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. 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 Director of Engineering in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been completed and approved by the Director of Engineering. B. The Developer shall, at all times, keep the public right-of-way free from accumulation of waste material or rubbish caused by the Developer's operation; shall remove such rubbish no less than weekly 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. 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 Director of Engineering. 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. C. The Developer hereby agrees that it will require its subcontractors to cooperate with the City's construction inspectors by ceasing operations when winds are of sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the public health and welfare. D. The Developer shall, pursuant to the terms of this Agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the original plat and related documents, or any replat as subsequently filed by the Developer, and the City may withhold such building permits and certificates of occupancy as it deems necessary to ensure performance hereof. E. Nothing herein contained shall be construed as a waiver of any requirements of the City 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. Financial obligations of the City of Fort Collins payable after the current fiscal year and/or not appropriated or budgeted are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available by the City of Fort Collins Council. H. This Agreement shall run with the Property and shall be binding upon and inure to the benefit of the parties hereto, their 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 City hereby agrees to release said Developer from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In n 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 specifying such default and shall be allowed a period of five (5) 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. 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. 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 Corporation 9