HomeMy WebLinkAboutFALCON RIDGE PUD REPLAT - Filed DA-DEVELOPMENT AGREEMENT - 2003-10-27DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this
day of(�%*1
199-1 by and between the CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the "City"; and
Poudre Fire .Authority (PFA) and Sandcreek Associates LLC, a
Colorado limited liability company (Sandcreek) hereinafter
referred to as the "Developers".
WITNESSETH:
WHEREAS, the Developers are the owners 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:
FIRST REPLAT OF FALCON RIDGE PUD (aka: Fire Station #12 - Lots
14-19 Falcon Ridge PUD), being lots 14 through 19 and Tract B
of Falcon Ridge PUD, City of Fort Collins, County of Larimer,
State of Colorado (being a part of the Southwest quarter of
Section 36, Township 8 North, Range 69 West of the 6th P.M.)
WHEREAS, PFA is the owner of Lot 2 of the Property and
Sandcreek is the owner of Lots 1, 3, 4, and Tract B of the
Property; and
WHEREAS, the Developers 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
Director of Engineering and made a part hereof by reference; and
WHEREAS, the Developers 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 Developers 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
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 Developers 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 Developers 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 Developers shall be responsible for prompt payment of all
such costs.
C. The Developers 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 Developers 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
Developers, 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 Developers 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
Fort Collins City 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
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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 Developers 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
Developers 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 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. 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,
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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, Cc 80522
With a copy to:
If to the Developer
With a copy to:
If to the Developer
With a copy to:
City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, Cc 80522
Sandcreek Assoc.
C/o Ed Lawler
605 South College Avenue
Fort Collins, Co 80521
Peter Sherman
4535 Eagle Lake Dr.
Fort Collins, Cc 80524
Poudre Fire Authority
C/o Mel Carlson
102 Remington St.
Fort Collins, Co. 80521
City of Fort Collins
C/o Steve White
P.O. Box 580
Fort Collins, Cc 80522
Notwithstanding the foregoing, if any party to this Agreement, or
their 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
party 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 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
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for convenience of reference and shall in no way define, limit
or prescribe the scope or intent of any provision under this
Agreement.
ATTEST \\
�J
CITY C?,F.RK
APPROVED AS TO CONTENT:
� 2sz� � \s2
Director of Enginee g
APPROV; D AS TO FORM:
V�qct�
Deputy City Attorney
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: /� , " '
Cit ]anager
DEVELOPER:
Sandcreek Associates--LLC, a Colorado
limited 1j �ility company
1 _ �
By;--�:",.--T
Edwar4 W+. LaW et,, 1 kna�
I 1"
By:
Peter R. Sherman, Manager
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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.
101
EXHIBIT "B"
NOT APPLICABLE
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receipt and adequacy of which are hereby acknowledged, it is agreed
as follows:
I. General Condition
A. The terms of this Agreement shall govern all development
activities of the Developers 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 Developers 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
Developers commences or performs any construction pursuant
hereto after three (3) years from the date of execution of
this agreement, the Developers shall resubmit the project
utility plans to the Director of Engineering for
reexamination. The City may require the Developers 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 six
hundred and sixty feet (6601) 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
Developers within the time as established under "Special
Conditions" in this document.
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E. Except as otherwise herein specifically agreed, the
Developers 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 Engineering Department of the City
and shall be subject to such department's approval. The
Developers 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 Developers 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
Developers 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
Developers does hereby indemnify and hold harmless the City
from anv 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; and (3) specific directives that may be
given to the Developers 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 Developers 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
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development.
I. The Developers 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 Developers 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 Developers 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 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
Developers 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 Developers 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.
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II. Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. The Developers and the City agree that all on -site
and off -site storm drainage improvements, as shown on the approved
utility plans for this development, shall be completed by the
Developers in accordance with the approved plans prior to the
issuance of any certificate of occupancy. Completion of
improvements shall include the certification by a professional
engineer licensed in Colorado that the drainage facilities which
serve this development have been constructed in conformance with
said approved plans. Any deviations from the approved utility
plans shall be the responsibility of the Developers to correct
prior to the issuance of any certificate of occupancy. Said
certification shall be submitted to the City at least two weeks
prior to the date of issuance for any certificate of occupancy.
2. The Developers 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 this development.
The Developers shall also be required to post a security deposit
prior to beginning construction to guarantee the proper
installation and maintenance of the erosion control measures shown
on the approved Plan. Said deposit shall be of the amount
specified in the Development Agreement dated May 20, 1996 by and
between the City of Fort Collins and Sandcreek for Phase II of
Falcon Ridge PUD development. 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 Developers 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. 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 Developers installs and maintains the erosion control measures
shown on the approved Plan throughout the buildout of this
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development.
3. The Developers and the City agree that the storm
drainage system for this development contains some features that
make it important to grade the lots and construct the storm
drainage facilities in accordance with the approved plans and to
ensure that the storm drainage 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 all lots:
(a) The drainage improvement system required to be constructed
on each lot, including the lot grading and minor swale
grading, shall be completed in accordance with the approved
utility plans for the development and said completion shall be
certified as being in accordance with said plans by a
professional engineer licenced in Colorado. A certification
by such engineer that the lot grading and minor swale grading
and 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 lot in
the development. Said certification shall be submitted to
the City at least two weeks prior to the date of issuance of
any certificate of occupancy.
(b) In addition the Developers 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 lot. Said notice shall reference
the location of the specific restrictions shown on plans and
notes on 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.
4. Lots 1, 2, 3, and 4 of the Property abut certain
storm drainage facilities and it is agreed that it is of the utmost
importance that no storm water from said facilities enters the
buildings built on said lots. In order to provide the assurance
that the buildings built on said lots are constructed at an
elevation that. said storm water cannot enter, the approved utility
plans for this development contain specifications for the minimum
elevation for any opening to each such building. Prior to the
issuance of a certificate of occupancy for each said building, the
Developers shall provide certification from a Colorado licensed
professional engineer that the lowest opening to any such building
is at or above the minimum elevations required on said utility
plans, and that the lot corner elevations are the same as those
specified on the approved utility plans. Said certification is in
addition to, and may be done in conjunction with, the certification
of the minor Swale grading and lot grading described in paragraph
II.C.3. above.
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5. The Developers and the City agree that the Developers
is responsible for ensuring that the drainage facilities which
serve this development are constructed within the dedicated
drainage easement areas, as shown on the approved utility plans and
on the plat, and that said facilities contain the stormwater flows
within the easements so dedicated. The City shall not be
responsible for, and the Developers hereby agrees to indemnify the
City against, any damages or injuries sustained in the development
as a result of stormwater flows which are not contained within the
dedicated drainage easement areas shown on the approved utility
plans and plat for the development, whether resulting from
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
within the public right-of-way.
6. The Developers and the City agree that the Developers
is obligated to maintain all on -site and off -site storm drainage
facilities serving this development, outside of the public rights -
of -way.
7. The Developers 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 Developers 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.
D. Streets.
1. The Developers and the City agree that no street
oversizing reimbursement from the City is due the Developers for
this development.
2. In accordance with Section 24-95 (a) of the City
Code, and in order to minimize the disturbance of grading,
landscaping, and other improvements related to the buildings to be
constructed on Lot 2 of the Property, the Developers and the City
agree that no building permit for Lot 2 of the Property shall be
issued until the improvements to Country Club Road including the
water lines, fire hydrants, and sanitary sewer lines adjacent to
said Lot have been completed and accepted by the Elco Water
District, and Cherry Hills Sanitation District respectively.
3. The Developer and the City agree that prior to the
issuance of any building permit for Lot 2 of the Development either
(1)the public street improvements for Country Club Road (including
curb, gutter, sidewalk and pavement with at least the base course
completed) shall be completed and accepted by Larimer County, or
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(2) that Developer may, in lieu of constructing said improvements,
pay the City such funds as are sufficient to cover the cost of the
future construction of said improvements as hereafter provided.
The amount of said funds, in the form of cash, bond, nonexpiring
letter of credit or other form of City approved security, shall be
equal to the estimated cost to construct said improvements, which
estimate shall be prepared by the Developer and approved by the
City, plus 25% to cover the cost of construction engineering,
surveying and project management. Said amount shall be paid to the
City prior to the issuance of any building permit for Lot 2 of the
Development.
Any interest earned by the City as a result of said deposit shall
be the property of the City to cover administration and inflation
in order to better assist the City in making reimbursement to the
party that constructs said improvements.
If the Developer is the party that constructs said improvements,
upon completion of said improvements and acceptance of them by the
City, the City shall return to the Developer the amount deposited
plus any interest earned by the City as a result of said deposit,
less 3°s of the total amount remaining, (which includes said amount
deposited plus the interest earned by the City) to be kept by the
City to cover its costs for administration of said deposits.
4. The Developers and the City agree that, in accordance
with Section 26-679 of the City Code, prior to the issuance of any
certificate of occupancy for Lot 2 of this development, and prior
to allowing any public vehicular access to Country Club Road from
this development, the improvements to Country Club Road as shown on
the approved utility plans for this development must be completed
in accordance with said plans, accepted by Larimer County, and
proof of said acceptance must be submitted to the City's
Engineering Department.
5. The Developers and the City agree that, in accordance
with Section 26-679 of the City Code, prior to the issuance of any
certificate of occupancy in this development the improvements to
Falcon Hill Road as shown on the approved utility plans for this
development must be completed in accordance with said plans.
6. Prior to beginning any construction activity within
the State Highway Right -of -Way for State Highway 1, as shown on the
approved utility plans for this development, the Developers shall
comply with all conditions set forth in the letter dated April 9,
1996 from the Colorado Department of Transportation and attached
hereto as Exhibit "C".
7. The Developers and the City agree that the Developers
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 Developers
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).
E. Groundwater
1. The Developers and the City recognize that soil
borings in this development have indicated the presence of shallow
groundwater and the potential for perched groundwater due to
shallow depth to bedrock. Accordingly, it is agreed that the
Developers shall be allowed to install a subdrain system designed
to help prevent water from seeping into basements of homes
constructed within the development. Prior to the installation of
any such subdrain system, the Developers shall submit a hydrologic
study and plans for said subdrain system, prepared by a
professional engineer licensed in Colorado and designed in
accordance with the City's criteria for subdrains within the public
right-of-way. Such study and plans shall be reviewed and approved
by the City prior to the Developers constructing the subdrain
system. The Developers and the City agree that the City shall not
be responsible for the maintenance of any such subdrain system and
that it shall be the responsibility of the Developers to maintain
said subdrain system. The City shall not be responsible for, and
the Developers hereby agrees to indemnify the City against, any
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 within
the public rights -of -way.
F. Hazards and Emergency Access.
1. No combustible material will be allowed on the site
until a permanent water system is installed by the Developers and
approved by the City.
III. Miscellan
A. The Developers 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 Developers shall, at all times, keep the public right-
of-way free from accumulation of waste material or rubbish
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