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HomeMy WebLinkAboutWARREN FARMS THIRD - Filed DA-DEVELOPMENT AGREEMENT - 2004-03-11DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into this `j day of /lam 'OZ 2000, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; Warren Farms Development Company, LLC, a Colorado limited liability company, hereinafter referred to as the "Developer." WITNESSETH: WHEREAS, the Developer is the owner of certain real property situated in the County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property' or "Development') and legally described as follows, to wit: Warren Farms, 3'd Filing, a Tract of Land Located in the Southeast Quarter if Section 26, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the Developer desires to develop the Property and has submitted to the City all plats, plans (including utility plans), reports and other documents required for the approval of a final plan according to the City's development application submittal requirements master list (the final development plan documents) copies of which are on file in the office of the City Engineer and made a part hereof by reference, and WHEREAS, the parties hereto have agreed that the development of the Property will require increased municipal services from the City in order to serve such area and will further require the installation of certain improvements primarily of benefit to the 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: General Conditions A. The terms of this Agreement shall govern all development activities of the Developer pertaining to the Property. For the purposes of this Agreement, "development activities" shall include, but not be limited to, the following: (1) the actual construction of improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or 0 E. Natural Resources 1. The Developer shall be responsible for implementing mitigation measures in accordance with the Wetlands Mitigation Plan, attached hereto as Exhibit "G", to compensate for the disturbance of approximately 0.92 acres of wetlands on this development site Said mitigation shall be accomplished by the creation of wetlands through the establishment of hydrologic regime and wetland vegetation for the wetland area actually disturbed. Construction of said wetland mitigation area shall be completed prior to the issuance of more than 37 building permits. Notwithstanding the foregoing, the Developer shall be responsible for maintaining the proposed mitigation area for a minimum of 3 years from the date of its construction or until acceptance by the City to ensure that the wetland vegetation and hydrologic regime are fully established. In addition, the Developer shall warranty the establishment of the proposed mitigation area for a period of 3 years from the date of installation of this vegetation. At the end of the 3-year warranty period, the City's (Natural Resources Director shall inspect the wetlands planned by the Developer. If the wetlands have been established in accordance with the Wetlands Mitigation Plan, they shall be approved and accepted by the City's Natural Resources Director. If the wetlands have not been established in accordance with the Wetlands Mitigation Plan, then the Developer shall promptly take such steps as described in the Wetlands Mitigation Plan to bring the wetlands into conformance. Finally, the Developer shall obtain the City's prior approval of any changes from the approved final development plan documents in regard to wetlands mitigation. The City reserves the right to withhold the issuance of any building permits and certificates of occupancy beyond the 37'h for this Development until the City has approved such changes. 2. The Developer shall warranty the establishment of the proposed vegetation in Tract A as shown on the approved final development plan documents for a period of 3 years from date of installation of this vegetation. In addition, the Developer shall be responsible for maintaining the wetlands on Tract A for a minimum of 3 years from the date of its construction or until acceptance by the City to ensure that the wetland vegetation and hydrologic regime are fully established. Planted wetlands shall be monitored for their effectiveness and status in accordance with the Wetland Mitigation Plan, attached hereto as Exhibit "G". 3. The Developer shall delineate all Limits of Development with orange construction fence prior to any type of construction including over lot grading. 4. Fueling facilities shall be located at least one hundred (100) feet from any body of water, wetland, natural drainage way or manmade drainage way. The fuel tanks and fueling area must be set in a containment area that will not allow a fuel spill to directly flow, seep, runoff, or be washed into a body of water, wetland or drainage way. F. Ground Water 1. The City shall not be responsible for, and the Developer hereby 10 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. 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 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. G. 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. H. 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. I. 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. 11 III. Miscellaneous A. The Developer agrees to provide and install, at its expense, adequate barricades, warning signs and similar safety devices at all construction sites within the public right-of-way and/or other areas as deemed necessary by the City Engineer and Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been completed. B. As required pursuant to Chapter 20, Article IV of the City Code, the Developer shall, at all times, keep the public right-of-way free from accumulation of waste material, rubbish, or building materials caused by the Developer's operation, or the activities of individual builders and/or subcontractors; shall remove such rubbish as often as necessary, but no less than daily and; at the completion of the work, shall remove all such waste materials, rubbish, tools, construction equipment, machinery, and surplus materials from the public right-of-way. The Developer further agrees to maintain the finished street surfaces so that they are free from dirt caused by the Developer's operation or as a result of building activity. Any excessive accumulation of dirt and/or construction materials shall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until the problem is corrected to the satisfaction of the City Engineer. If the Developer fails to adequately clean such streets within two (2) days after receipt of written notice, the City may have the streets cleaned at the Developer's expense and the Developer shall be responsible for prompt payment of all such costs. The Developer also agrees to require all contractors within the Development to keep the public right-of-way clean .and free from accumulation of dirt, rubbish, and building materials. C. The Developer hereby agrees that it will require its contractors and subcontractors to cooperate with the City's construction inspectors by ceasing operations when winds are of sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the public health and welfare. D. The Developer shall, pursuant to the terms of this Agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the final development plan documents, or any documents executed in the future that are required by the City for the approval of an amendment to a development plan, and the City may withhold 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 "routing for approval" of the various development plan documents may result in certain of said documents carrying dates of approval and/or execution that are later than the date of execution of this 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) 12 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 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 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 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 13 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: David E. Bailey Warren Farms Development Company C/O Erie County Investment Company 601 Corporate Circle Golden, CO 80401 With a copy to: Stephen A. Maguire 6300 S. Syracuse Way, Suite 293 Englewood, CO 80111 303/740.8883 Brock Chapmann Kaufman and Broad of Colorado, Inc. 8401 East Belleview Avenue, Suite #200 Denver, CO 80237 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 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 14 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. A TEST: City Clerk APPROVED AS TID CONTENT: City Engin6er APPRO D AS TO FORM: eputy City Attorney THE CITY OF FORT COLLINS, COLORADO, a Municipal) Corporation By: Q-P— q. �''V L City Ma' ger DEVELOPER: Warren Farms Development Company, LLC, a Colorado Limited Liability Company David €.Bailey, Manager ATTEST: By: Stephen A. Maguire, Mana er 15 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. 16 EXHIBIT "B" The development agreement for the 3"' Filing of Warren Farms, City of Fort Collins, Larimer County, Colorado. Cost Estimate for Major Drainage Improvements The following cost estimate for the improvements constitute costs associated with major drainage improvements which are eligible [or developer repay. These costs are based on construction estimates from The Cumberland Companies and negotiations between the Developer and the City. _Item _ Earthwork -- cut Quantity Unit Unit Cost Total Co 1,405 cu. $ $ Earthwork - fill 19,678 yds. 2.00 cu. $ 2,810 $ Right-of-way - detention 1.16 yds. 2.00 acres $ 39,356 pond $ Right-of-way --drainage 0.304 20,000 acres $ 23,200 $ _easement Revegetation 103,000 31,312 5.5 acres $ $ Engineering 1.0 650 I.S. 3,575 $ $ Totals 15,000 15,000 $ — 115,253 17 EXHIBIT "C" Refer to the Final Plat for this Development M IIx8.5 19 appearance of the Property caused by, or on behalf of, the Developer with the intent to construct improvements thereon. P. 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 subject to that phase have been completed and accepted by the City as shown on the Final Utility Plans. 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 for that phase of 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 shall be inspected by the Engineering Department of the City and shall be subject to such IIxB.5 20 N 8.5 21 Exhibit 'G' WETLANDS MITIGATION PLAN WARREN FARMS FORT COLLINS, COLORADO Prepared for Warren Farm Land Development LLC Golden, Colorado Prepared By Nuszer-Kopatz Urban Design Associates Denver, Colorado February 2000 22 Table of Contents 1.0 Introduction........................................................................... 1 2.0 WETLANDS OVERVIEW......................................................... 2 2.1 WETLAND CONSTRUCTION ........................................... 2 2.1a Surveying...................................................................... 2 2.1b Earthwork..................................................................... 2 2.1(b)(1) Vegetation Clearing ................................................... 2 2.11(b)(2) Excavation and Grading .............................................. 2 2.11c Wetland Site Design......................................................... 3 2.1.d Species Composition for Wetland Planting ............................. 3 2.1e Wetland Mitigation Monitoring ........................................... 3 23 Wetlands Mitigation Plan Warren Farms Fort Collins, Colorado 1.0 Introduction Warren Farm Land Development LLC, is proposing a 151 unit, single family development in Central Fort Collins at Horsetooth Rd. and Meadowlark Avenue, which will result in the: moving and recreating of an existing wetland condition. Wetland Survey Repot prepared by Cedar Creek Associates, identified the current majority of species found within the wetland are: Salix exigua Coyote willow Juncus balticus Baltic rush Equisetum laevigatum smooth scouring -rush Carex aquatilis water sedge Agropyron smithii Western Wheatgrass Reed canarygrass Within the development proper, 0.92 acres of "Waters of the United States" will be impacted. In order to mitigate the wetlands a wetland mitigation plan has been prepared to compensate the habitat of the wetlands lost from construction. The overall goal of the mitigation plan includes the following *Compensate lost wetlands at 1.0 to 1.5 ratio per city of Fort Collins requirements. *Develop wetlands within the approximate area where existing wetlands will be lost; *Maintain existing hydological processes; *Provide habitat: for species displaced by the removal of existing wetlands. 24 2.0 Wetlands The mitigation plan details the vegetation to be planted. The hydological functions will be obtained by grading of the detention pond that will enable surface water inundation and soil water saturation to occur in the excavated areas. If the compensated goals are not fully achieved during implementation, modifications to the plan can and will be made. Once constructed, data will be collected and submitted in monitoring report to the City of Fort Collins. 2.1 Wetland Construction. 2.1a Surveying The existing wetland area has been staked and surveyed per the previously submitted wetland survey and report, and the project engineer has obtained elevations and measurements of the ground surface. The wetland survey is as shown on this plan. The information was submitted to the Army Corps of Engineers (COE) and it was their determination that the area fell under the COE's nation wide permit process, and that no mitigation would be required. Mitigation, as proposed is, as required by the City of Fort Collins. The engineer following excavation will verify the correct final grading per the plans. 2.Ib Earthwork This item covers the clearing, excavation and grading, disposal, placement, topsoiling and compaction of all the materials within the limits of work required to construct 1.38 acres of emergent wetlands, and riparian area, combined to replace .92 acres of disturbed wetlands. See plan for details. All of the work is per the project engineer's grading plans for the detention and wetland mitigation area. Topography contours as proposed are shown on the mitigation plan as well for reference. 2.1(b)(1) Vegetation Clearing The initial step in the implementation of the mitigation plan is the stripping of existing wetland vegetation. Stripped vegetation would be stockpiled on -site at a depth of 12"+/-, and adjacent to the mitigation areas. Stripped topsoil shall not be stockpiled for longer than thirty days because of possible oxidation of the soil, loss of some of the seeds viability and the possible release of metals that may be toxic to seedlings. This does not include existing on -site "deadwood" and timber from two existing cottonwoods to be removed within the detention area. 2.1(b)(2) Excavation and Grading The wetland topsoil and subsoil, along with the vegetation, would be stripped and stock piled upland of the excavation area. During excavation the upper 12 inches of wetland topsoil would be segregated from the subsoil. The topsoil should be stockpiled separately 25 within the upland at a depth of 12"+/-, not to exceed longer than thirty (30) days. The subsoils would be removed to final elevation as described in the final engineering plans. 2.1 c Wetland Site Design The emergent wetland mitigation plan is designed to re-create the same relative area and quality of the impacted wetlands. Establishment of site hydrology that provides sufficient water at the frequent and duration required for wetland vegetation is essential. Hydrologic conditions from stormwater flows, nuisance irrigation, water from the ditch and normal ground water will provide sufficient water for wetland inundation. These flows will be sufficient for the establishment and continuous growth of wetland vegetation. The; goal for the plan, as designed, is for sufficient soil saturation, surface inundation and the establishment of wetland vegetation. 2.1d Species Composition for Wetland Planting It is proposed that stock piled wetlands material will be placed with in the mitigation area as shown on the: plan, at a +/- 12" depth and the wetlands would be allowed to naturally revegetate from this material, and seed bank from the reapplied topsoil from the wetland. 2.1 e Wetland Mitigation Monitoring Following restoration efforts the wetland mitigation area will be assessed for the effectiveness of the project for three growing seasons. The observations will occur in June and September of each growing season. The status and effectiveness of the wetland mitigation will be evaluated and the results will be report to the Clients, the City of Fort Collins, and to the U.S. Army Corps of Engineers, as appropriate. If it is found that the seed bank is not sufficient, wetland plants will be planted with plugs on 2-foot centers. The species repllaced will come from the list below: Salix exigua Coyote willow Juncus balticus Baltic rush Juncus torreyi Torrey rush Carex nebraskensis Nebraska sedge Scirpus americanus Threesquare Any non -viable plant material, will be replaced with same species, size and quantities as originally installed per above. The monitoring reports would include, but not limited to vegetation cover, plant species composition, soil saturation and/ or surface inundation, and the removal of unwanted non-native species by mechanical methods. The Developer and the City agree that following the restoration efforts, the mitigation site will be assessed for the effectiveness of the project. The developer shall also ensure that the wetlands are properly maintained for a three (3) year period following construction thereof to ensure that the wetland vegetation and hydrologic regime are fully established. Monitoring of the wetland would occur at least in June and September of the first 26 growing season and in late summer of the remaining growing seasons. The status and effectiveness of the wetland mitigation will be evaluated and the results will be reported to the City Natural Resources Department for review. The Developer and the City agree that the Developer shall be responsible for all seeded areas for a minimum of two (2) growing seasons from the date of completion or until the following plant establishment criteria is met. The Developer .and the City agree that all seeded areas shall be inspected jointly by the Developer and the City at specified intervals. Areas seeded in the spring shall be inspected for required coverage the following fall not later than October 1. Areas seeded at any other time shall be inspected the following two summers not later than August 1. The required coverage for the first inspection shall be ten (10) viable live seedlings of the spccificd species per 1000 square centimeters (approximately one square foot), or fifty percent (50%) coverage of the specified foliage as measured from five feet (5') directly overhead, with no bare spots larger than 1000 square centimeters. At the time of the second growing season inspection, there shall be seventy-five percent (75%) foliage cover of the specified species planted as measured from five (5') directly overhead. No more than ten percent (10%) of the species noted on the site may be weedy species as defined by Article III, Section 20-41 of the Code of the City of Fort Collins. Determination of required coverage will be based on fixed transects each ten meters in length, randomly placed in representative portions of the seeded areas, with plant species or bare ground/rock/litter being noted every ten (10) centimeters along each transect. The Developer shall warrant all seeded areas for two (2) growing seasons from the date of completion. The Developer shall rework and reseed per original specifications and areas that are dead, diseased, contain too many weedy species, or fail to meet the coverage requirement at no additional cost to the City. 27 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 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 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 3 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 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. Prior to the issuance of any building permit(s) for this development, the Developer shall, in accordance with Section 26-121 of the City Code, reimburse the City the sum of $10,039.45, plus inflation, for the cost of installation of the Developer's portion of the 24-inch water main in Horsetooth Road adjacent to the development. This reimbursement its based upon the front footage (1,153.96 feet) along Horsetooth Road. 0 The inflation shall be calculated based upon the Construction Cost Index for Denver (2611.92) as published in the Engineering News Record (ENR) on August 16, 1979. The ENR index for February 14, 2000 was 4528.52. This yields a total amount of $17,406.30 which includes inflation. The actual amount due will be adjusted at the time of payment to reflect the most current ENR index. B. Sewer Lines Not Applicable C. Storm (Drainage Lines and Appurtenances 1. The Developer and the City agree that all on -site and off -site storm drainage improvements, 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 37 building permits in 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 any more than 37 building permits for 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 $17,528.00 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 W improvements and undertaking such activities as may be necessary to ensure that the provisions of said plans and the Criteria are properly enforced. The City may apply such portion of the security deposit(s) as may be necessary to pay all costs incurred by the City in undertaking the administration, construction, and/or installation of the erosion control measures required by said plans and the Criteria. In addition, the City shall have the option to withhold building permits and certificates of occupancy, as stated in Paragraph III.D of this Agreement, as it deems necessary in order to ensure that the Developer installs and maintains the erosion control measures throughout the build -out of this Development. 4. The Developer and the City agree that 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 building on all lots: Prior to the issuance of a certificate of occupancy for any lot in this development, the Developer shall provide the City with certification that the lot has been graded correctly and in accordance with the approved final development plans. Such certification shall include, certification for: the grading of any minor swales, (if applicable); certification that the lot corner elevations surveyed are correct and in accordance with the approved final development plain documents, and certification that the minimum floor elevation (when applicable) for all buildings constructed on any 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. 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. 6. The Developer shall 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 1 through 17, lots 43 through 105 and lots 132 through 151. 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. 7. 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 proposed detention pond that will be located on Tract A of this development shall be dedicated to the City in fee on the Plat. The City shall pay for this 0 tract in accordance with Exhibit B attached hereto. The Developer shall warranty the establishment of the proposed vegetation in Tract A as shown on the approved final development plan documents for a period of 3 years from date of installation of this vegetation. In addition, the Developer shall be responsible for maintaining the detention pond on Tract A for a minimum of 3 years from the date of its construction or until acceptance by the City. 8. The City agrees to make a cost sharing payment to the Developer for certain construction and improvement costs to be expended by the Developer that will benefit a larger area than the Property. The City also agrees to make a payment to the Developer for certain easements and a right of way granted, or to be granted to the City on the plat for the Property. The aggregate amount of the said payments will be $115,253 and shall be paid to the Developer within sixty (60) days after the on -site and off -site storm drain improvements described in subsection II.C.1 have been completed and accepted by the City. The $115,253 sum is an agreed -upon amount that was negotiated between the Developer and the City using the pricing information set forth in Exhibit "B" attached hereto. D. Streets 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Meadowlark Avenue and Horsetooth Road (adjacent to the right turn lane) for those portions of said street abutting the Property as shown on the approved final development plan documents. Reimbursement 'for Meadowlark Avenue shall be for oversizing the street from local (access) standards to collector standards. Reimbursement for Horsetooth Road (adjacent to the right turn lane) shall be for oversizing the sidewalk from local (access) standards to arterial standards. (Said oversizing reimbursements shall be based on the street standards established in July 1996.) 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 24-1 12 (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 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). 7 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 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'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. The Developer shall be responsible for the construction of all bicycle and pedestrian paths as shown on the final development plan documents, including the associated bridge structures spanning the New Mercer Canal and the portions of path that extend offsite through The Preserve at the Meadows Project Development Plan (see Exhibit 'D') prior to issuance of more than 37 building permits in this Development. However, if the Developer is not able to construct the bridge structures prior to start of the irrigation season, the Developer shall have the option to escrow cash for the construction of the bridge structures and complete the construction of said bridge structures no later than December 31, 2000. The amount of said funds shall be the estimated cost to construct said improvements, which estimate shall be prepared by the Developer and approved by the City, plus an additional 15% of the estimate to cover any contingencies and unexpected costs. Said amount shall be deposited with the City prior to the issuance of more than 37 building permits for this Development. Notwithstanding the foregoing, the City will in the future construct a storm main under a portion of the proposed bicycle/ pedestrian path to connect regional detention facilities. Therefore, the Developer shall construct a temporary eight (8) foot asphalt path in lieu of the proposed eight (8) foot concrete path and escrow cash for the difference between constructing an eight (8) foot concrete path versus an eight (8) foot asphalt path (see Exhibit'E' for the portion of bicycle/ pedestrian path in question). The amount of said funds shall be the estimated cost of the difference to construct said improvements, which estimate shall be prepared by the Developer and approved by the City, plus an additional 15% of the estimate to cover any contingencies and unexpected costs. Said amount shall be deposited with the City prior to the issuance of more than 37 building permits for this Development. 0 Except as provided in the following paragraph, any interest earned by the City as a result of said deposits 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 who 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% 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. The Developer and the City also agree that following completion of the aforementioned improvements the Developer shall continue to have responsibility for maintenance and repair of said improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code of the City. At such time that the City accepts the aforementioned improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code of the City, the Developer shall maintain all onsite bicycle and pedestrian improvements, excluding those which are to be maintained by the City (as shown on Exhibit `F' attached hereto). The New Mercer Canal Company shall not be responsible for maintenance of any bicycle and pedestrian paths as shown on the final development plan documents, including without limitation the associated bridge structures, spanning the New Mercer Canal and portions of path that extends offsite through The Preserve at the Meadows Project Development Plan (as shown on Exhibit 'D' attached hereto). The New Mercer Canal Company will not be responsible for any damages to the bicycle and pedestrian paths that may occur or result from the reasonable cleaning or maintenance of the canal. 5. The City shall issue no building permit for the construction of any structure within the Property until such time as Meadowlark Avenue has been constructed (including curb, gutter, and pavement with at least the base course completed). At such time that the City requires the Developer to construct the final pavement section for Meadowlark Avenue, the Developer shall complete the Horsetooth Road right turn lane. 6. Shop drawings for the two bridge structures crossing the New Mercer Canal shall be submitted to the City's Engineering Department for review and approval two weeks prior to commencing construction on either bridge structure. 7. Following completion of all public infrastructure improvements, the Developer shall continue to have responsibility for maintenance and repair of said improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code of the City. 41