Loading...
HomeMy WebLinkAboutWATERGLEN PUD - Filed DA-DEVELOPMENT AGREEMENT - 2004-03-12DEVELOPMENT AGREEMENT THIS AGRE=EMENT, made and entered into this--/ day of A i�li t-�199 �i , by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; Patrick B. Roche, 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: Waterglen P.U.D. located in the East ''/z of Section 4, Township 7 North, Range 68 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: I. General Conditions A. The terms of this Agreement shall govern all development activities of the Developer pertaining to the Property. For the purposes of this Agreement, "development activities" shall include, but not be limited to, the following: (1) the actual construction of improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or appearance of the Property caused by, or on behalf of, the Developer with the intent to shall be in full satisfaction of the Developer's obligation for off -site improvements. In the event that Vine Drive is selected as the Truck Route and the City has received other deposits for such off -site Vine Drive improvements from a third party or parties, the amount of the Developers payment to the City for such improvements shall be proportionately reduced so that each party making payment to the City for such improvements is paying only its proportionate share of the total cost therefor and that the City receives no more than 100% of such costs from all affected parties. 8. As an alternative to constructing that portion of the off -site Vine Drive improvements from the intersection of Vine Drive and County Road 9E west to the intersection of Vine Drive and Lemay, the Developer shall have the option of submitting design drawings for County Road 9E (Timberline Road) from its intersection with Vine Drive, south approximately '/2 mile to the improved section of County Road 9E and constructing the same prior to the issuance of more than 128 Building Permits or Letters of Completion within this development. The Developer shall have the option of posting an escrow for such off -site improvements (including the off -site Vine Drive improvements to the extent the same are not already the subject of an escrow posted with the City) in lieu of constructing the same, and the conditions forthe posting and the release of such escrow shall be the same as those provided herein above for the off -site Vine Drive improvements, with the exception of changes to reflect any difference in the engineer's estimate of cost of construction. The specific provisions to accomplish this alternative shall be embodied in an addendum to this Development Agreement. 9. All on -site street improvements shall be constructed by the Developer in accordance with the attached Phasing Plan. 10. Prior to the construction of any of the off -site Vine Drive improvements shown on the approved Utility Plans for the development, the Developer shall submit to the City all remaining permanent and/or temporary easements, if any, required by the City for the construction of such improvements. Such easements may include, without limitation, easements that are needed for the purpose of reconstructing, modifying, improving and/or relocating any driveways along Vine Drive affected by such construction. E. Ground Water 1. The City shall not be responsible for, and the Developer hereby agrees to indemnify and hold harmless the City against, any damages or injuries sustained in the development as a result of ground water seepage or flooding, structural damage, or other damage unless such damages or injuries are sustained as a result of the City's failure to properly maintain its storm drainage facilities in the development. 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 ofthe 10 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 such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. F. Administrative Changes 1. Prior to release of more than 129 building permits and/or Letters of Completion (25% of 516), the Developer shall have submitted to and received approval from the City of a minor administrative change to the approved site and landscape plans which change shall mitigate the visual impacts of the floodwall commencing at the intersection of Waterglen Drive and Vine Drive and running approximately 500 feet east from said intersection, (e.g. appropriate plantings and use of exposed aggregate in the floodwall), provided that such mitigation measures shall be consistent with the approved stormwater plans. Within such time frame the Developer shall also submit to and receive approval from the City of any other minor administrative changes to the site and landscape plans to make such plans conform to the approved utility plans. 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 thiey 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. 11 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 required by the City Engineer 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 hereof. E. Nothing herein contained shall be construed as a waiver of any requirements of the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable) and the Developer agrees to comply with all requirements of the same. F. In the event the City waives any breach of this Agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. G. 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 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 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 12 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 treasonable attorney's fees and costs incurred by reason of the default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph III.D of this Agreement. L. Except as may be otherwise expressly provided herein, this Agreement shall not be construed as or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever. M. It is expressly understood and agreed by and between the parties hereto that this Agreement shall be governed by and its terms construed under the laws of the State of Colorado and the City of Fort Collins, Colorado. N. Any notice or other communication given by any party hereto to any other party relating to this Agreement shall be hand -delivered or sent by certified mail, return receipt requested, addressed to such other party at their respective addresses as set forth below, and such notice or other communication shall be deemed given when so hand -delivered or three (3) days after so mailed: If to the City: Engineering Development Review City of Fort Collins P.O. Box 580 Fort Collins. Co 80522 With a copy to: City Attorney's Office City of Fort Collins P.O. Box 580 Fort Collins. Co 80522 If to the Developer: Patrick B. Roche P.B. Roche Development Co., LLC 361 N. 71"Avenue, Suite 103 P. O. Box 1136 Greeley, Co. 80632 With a copy to: Lucia A. Liley March & Liley, P.C. 110 E. Oak Street, 2nd Floor Fort Collins, Co. 80524 13 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 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 fore convenience of reference and shall in no way define, limit, or prescribe the scope or intent of any provision under this Agreement. ATTEST: I V� I ". City Clerk APPROVED AS TO CONTENT: City Engineer APPROV ASCTO FORM: GC �eput'y City Attorney THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: Cip— a. qanLk City n(v�ager 14 DEVELOPER: By: a"", I> /(A" Patrick B. Roche 15 EXHIBIT "A" 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. East Vine Drive and or County Road 9E (Timberline Road) 4. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. 16 EXHIBIT"B" Not Applicable 17 construct improvements thereon. B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the approved utility plans and in full compliance with the standards and specifications of the City on file in the office of the City Engineer at the time of approval of the utility plans relating to the specific utility, subject to a three (3) year time limitation from the date of execution of this Agreement. In the event that the Developer commences or performs any construction pursuant hereto after the passage of three (3) years from the date of execution of this agreement, the Developer shall resubmit the utility plans to the City Engineer for reexamination. The City may then require the Developer to comply with the approved standards and specifications of the City on file in the office of the City Engineer at the time of the resubmittal. C. No building permit for the construction of any structure within the development shall be issued by the City until the public water lines and stubs to each lot, fire hydrants, sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and pavement with at least the base course completed) serving such structure have been completed and accepted by the City. Except as otherwise approved in the 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, clutters, sidewalks, bikeways and other public improvements required by this development as shown on the approved final development plan documents and other approved documents pertaining to this development on file with the City. F. Street improvements shall not be installed until all utility lines to be placed therein have been completely installed, including all individual lot service lines leading in and from the main to the property line. G. The installation of all utilities shown on the final development plan documents shall be inspected by the Engineering Department of the City and shall be subject to such department's approval. The Developer agrees to correct any deficiencies in such installations in order to meet the requirements of the plans and/or specifications applicable 2 to such installation. In case of conflict, the final development plan documents shall supersede the standard specifications. H. Developments constructed with privately maintained streets shall be constructed to the same design standards as those constructed on similar public rights -of -way (ROW). Public easements shall be provided for access, utilities and drainage as required by the design and location of such infrastructure and as reflected on the plans. Alignment and grades on privately maintained streets and drives shall allow for safe access, ingress and egress by owners, visitors, the general public and public safety officials and equipment, as approved by the City Engineer. I. 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. J. 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, 3 shall include right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. K. 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 submitted to and approved by the City of Fort Collins. L. 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, 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. 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 clairn and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. II. Special Conditions 0 A. Water Lines "Notwithstanding anything in this Development Agreement to the contrary, the City acknowledges that the East Larimer County Water District will provide water service to the Property and, as a result, review and approval of plans for water service improvements shall be by the District and not the City." B. Sewer Lines "Notwithstanding anything in this Development Agreement to the contrary, the City acknowledges that the Boxelder Sanitation District will provide sanitary sewer service to the Property and, as a result, review and approval of plans for sanitary sewer service improvements shall be by the District and not the City." 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 installed in phases as shown on the Phasing Plan, a copy of which is attached hereto and incorporated herein by reference ("Phasing Plan"). Phase 1 drainage improvements shall be completed by the Developer in accordance with said final development plan documents priorto the issuance of more than 27 building permits and/or Letters of Completion in phase 1 of this development. In addition, no more then 17 building permits and/or Letters of Completion in phase 2 of this development, no more then 15 building permits and/or Letters of Completion in phase 3, no more then 13 building permits and/or Leiters of Completion in phase 4, no more then 30 building permits and/or Letters of Completion in phase 5, no more then 16 building permits and/or Letters of Completion for phase 6, no building permits and/or Letters of Completion in phase 7, no more then 2 building permits and/or Letters of Completion in phase 8 and no more then 4 building permits and/or Letters of Completion in phase 10 shall be issued prior to the completion of all on -site and off -site storm drainage improvements for each respective phase as shown on the approved final development plan documents. With the exception of phase 1 improvements, which must be installed and completed as the first phase of development, the remaining phases may be developed in any sequence as determined by the Developer, provided thatthe improvements for each phase are installed in accordance with the above stated requirements. No certificate of occupancy or Letter of Completion shall be issued for any building in phase 9 of this development prior to the completion and certification of the drainage improvements associated with phase 9 as shown on the approved development plan documents. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve this development have been constructed in conformance with said final development plan documents. Said certification shall be submitted to the City at least two weeks prior to the date of issuance of additional building permits or certificates of occupancy as specified. 5 2. 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 $ 105,000.00 prior to beginning construction to guiarantee 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, the City, after giving the Developer written notice of such failure and a stated period within which to correct the same, 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 I II.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. The developer and the City agree that prior to any grading work being done within this development the developer shall obtain a City flood plain use permit for 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 or Letter of Completion 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 final development plan documents are correct and in accordance with the approved final development plan documents; and the minimum floor elevation if applicable for all buildings constructed on said lot has been completed in accordance with the approved final development plan documents. Said certification shall be completed by a Colorado licensed professional engineer and shall be submitted to the City at least two weeks prior to the date of issuance of the desired certificate of occupancy. 5. The City and the Developer agree that no building permits shall be issued for lots 338 through 345 until storm drainage improvements are made based upon a City approved design which protects said lots from stormwater which may overtop or breach the Larimer & Weld & Canal. 2 6. The City and the Developer agree that prior to the issuance of any certificates of occupancy or Letters of Completion within this development, the developer shall complete and certify the grading of the major channel along the east and south property boundary of this development, as well as the channel work at the two ( 2 ) locations adjacent to the Larimer & Weld Canal on the north property boundary of this development as shown on the approved development plans. Said certification shall be completed by a Colorado licensed professional engineer. 7. The Developer and the City agree that prior to the issuance of any building permit for any lot located within a City flood plain as determined by the approved development plans, the Developer shall obtain a City flood plain use permit for that lot. Additionally, prior to the issuance of a certificate of occupancy or Letter of Completion for any lot located within said flood plain, the Developer shall submit a flood plain elevation certification to the City for each lot, on a FEMA form using City flood plain elevations. 8 The Developer shall obtain the City's prior approval of any changes from the approved final development plan documents in grade elevations and/orstorm 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, Letters of Completion and certificates of occupancies for this development until the City has approved such changes as being acceptable for the safe and efficient delivery of storm drainage water. 9. The Developer and the City agree that, with the exception of the floodwall to be constructed as part of phase 1 improvements and which will be maintained by the City, 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. 10. Prior to constructing the off -site portion of Vine Drive as required in sub- paragraph II.DA, the Developer shall have submitted an application for a Conditional Letter of Map Revision ("CLOMAR") to the City and shall have had the same approved by FEMA. D. Streets. 1. The Developer and the City agree that no street oversizing reimbursement from the City is due the Developer for this development. 23he 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). 7 3. The design and construction standards for privately maintained streets and emergency accessways shall be the same as the standards for public streets. Grades, alignments, and widths may be modified in accordance with accepted design principles, only on the condition that safe access is maintained for public safety officials and equipment. Such modifications from public street standards may be made only if approved by the City Engineer. Easements for access, utilities and drainage shall be dedicated to the public and clearly shown on the plat. 4. The Developer and the City agree that all street improvements for Vine Drive (Off -site and adjacent to the development), as shown on the approved final development plan documents, shall be completed by the Developer in accordance with said final development plan documents prior to either (A) the issuance of more than 128 (25 % of 510) building permits and/or Letters of Completion within this development, or (B) upon determination of the City Engineer that the condition of Vine Drive is no longer safe for vehicular travel, which ever shall occur first. In addition, the Developer agrees to meet with the City prior to the issuance of the first building permit, to visually evaluate the existing condition of the asphalt pavement on Vine Drive and to correct such deficiencies at the Developer'; expense. Furthermore, prior to the issuance of the first building permit or Letter of Completion, the Developer shall post a security deposit with the City, in an amount as estimated by the Developer's consultant, equal to the cost to construct such off - site street improvements plus twenty five percent (25%). Such estimate shall be subject to the City's approval and shall be submitted to the City not less than two (2) weeks prior to the request to establish such escrow. This escrow shall be in the form of cash, Irrevocable non expiring Letter of Credit, Surety Bond or other form of financial security acceptable to the City. Any interest earned by the City as a result of said cash escrow shall be the property of the City to cover administration and inflation in orderto better assist the City in making reimbursement to the party that constructs the improvements. In accordance with the following provisions, the City shall return the amount deposited plus, if a cash deposit, any interest earned by the City as a result of such cash deposit and less 3% of such total cash amount remaining (which includes said amount deposited with the City plus interest earned by the City) to be kept by the City to cover its costs for administration of said cash deposit: (a) If the Developer constructs such street improvements, the deposit shall be returned to the Developer. (b) If a successor or assign of the Developer constructs such street improvements, the deposit shall be returned to the Developer unless such successor or assign also posted the deposit with the City. (c) If a third party constructs the off -site Vine Drive improvements, the deposit shall be released to the Developer ( or his successor or assign, as applicable), upon the posting with the City of a substitute deposit for those Vine Drive improvements adjacent to the Property to the extent that the same have not been constructed by such third party or the E:? Developer 5. As an alternative to, and in lieu of, the posting of cash or acceptable collateral with the City as described in subparagraph 4 above, the Developer, at his option, shall be permitted to pay cash deposits to the City for each building permit or Letter of Completion released in accordance with the following provisions: (a) The Developer will pay an amount approved by the City for the improvements to County Road 9E ( Timberline Road) or an amount approved by the City for the improvements to Vine Drive prior to the issuance of each building permit or Letter of Completion for each single-family dwelling unit, multi -family building or garage commencing with the first building permit or Letter of Completion in the first phase. If any portions of said sums are paid by the Developer after the year 1999, the Developer agrees to pay the amount, to be calculated as described below, to recognize the effects of inflation, with said amount to be increased each year until payment is completed in full. (b) The inflation factor ("Inf. Fac.") for each year's payments shall be calculated using the cost index for Denver as published in the Engineering News Record ("ENR") for October 1998 as the base index ("I -base") and the same index published in the ENR for the January of each succeeding year immediately preceding payment ("I -year of payment'). The formula for calculating said inflation factor shall be as follows: Inf. Fac.-0-year of payment) - (1-base) (I -Base) (c) The amount to be added to each payment for either the Vine Drive or County Road 9E improvements to compensate for inflation shall be equal to either of the approved payments times the inflation factor. Said amounts added to compensate for inflation shall not reduce the total (principal) amount due. 6. In order to construct the off -site Vine Drive improvements, certain easements will be needed from the Burlington Northern Railroad. Such easements shall be submitted to the City prior to the issuance of more than 128 (25% of 510) building permits or Letters of Completion within this development, provided that the Developer has posted an escrow with the City for such offsite improvements prior to release of the first Certificate of Occupancy or Letter of Completion. If an escrow has not been submitted, these easements shall be submitted to the City prior to the first Certificate of Occupancy or Letter of Completion. 7. The City and the Developer agree that if Vine Drive is selected as the "Truck Route", the Developer will only be obligated to improve Vine Drive adjacent to the Property. In such event, the City shall release the deposit posted by the Developer for Vine Drive upon a cash payment by the Developer to the City equal to 100% of the costs for such off -site Vine Drive improvements (and not the adjacent improvements to Vine Drive) based upon the earlier engineer's estimate approved by the City. Such payment .01