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HomeMy WebLinkAboutPEAK VIEW - Filed DA-DEVELOPMENT AGREEMENT - 2004-06-21DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into this I,'-)"" day of1, 2002, by and between the CITY OF FORT COLLINS, COLORADO, a Ma Corporation, hereinafter referred to as the "City" and BLS Development 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: Peak View Subdivision, located in the Southwest ''Y4 of Section 16, 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: 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 1 seep, runoff, or be washed into a body of water, wetland or drainage way. G. Ground Water, Subdrains and Water Rights 1. The City shall not be responsible for, and the Developer (for itself and its successor(s) in interest) hereby agrees to indemnify and hold harmless the City against, any damages or injuries sustained in the Development as a result of ground water seepage or flooding, structural damage, or other damage unless such damages or injuries are proximately caused by the City's negligent operation or maintenance of its storm drainage facilities in the Development. However, nothing herein shall be deemed a waiver by the City of its immunities, defenses, and limitations to liability under the Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any other law. 2. If the development includes a subdrain system, any such subdrain system, whether located within private property or within public property such as street rights -of -way or utility or other easements, shall not be owned, operated, maintained, repaired or reconstructed by the City and it is agreed that all ownership, operation, maintenance, repair and reconstruction obligations shall be those of the Developer or the Developer's successor(s) in interest. Such subdrain system is likely to be located both upon private and public property and, to the extent that it is located on public property, all maintenance, operation, repair or reconstruction shall be conducted in such a manner that such public property shall not be damaged, or if damaged, shall, upon completion of any such project, be repaired in accordance with then existing City standards. The City shall not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the development as the result of groundwater seepage or flooding, structural damage or other damage resulting from failure of any such subdrain system. 3. Without admitting or denying any duty to protect water rights, the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries to water rights caused, directly or indirectly by the construction, establishment, maintenance or operation of the Development. 4. The City agrees to give notice to the Developer of any claim made against it to which the foregoing indemnities and hold harmless agreements by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided the Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause the forgoing indemnities and hold harmless agreements by the Developer to not apply to such claim and such failure shall constitute a release of the foregoing indemnities and hold harmless agreements as to such claim. 10 H. 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. 2. Prior to beginning any building construction, and throughout the build - out of this Development, the Developer shall provide and maintain at all times an accessway to said building or buildings. Such accessway shall be adequate to handle any emergency vehicles or equipment, and the accessway shall be kept open during all phases of construction. Such accessway shall be constructed to an unobstructed width of at least 20 feet with 4 inches of aggregate base course material compacted according to city standards and with an 80 foot diameter turnaround at the building end of said accessway. The turnaround is not required if an exit point is provided at the end of the accessway. Prior to the construction of said accessway, a plan for the accessway shall be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for review and processing.) If such accessway is at any time deemed inadequate by the Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into compliance and until such time that the accessway is brought into compliance, the City and/or the Poudre Fire Authority may issue a stop work order for all or part of the Development. I. Footing and Foundation Permits 1. Notwithstanding any provision in this Agreement to the contrary, the Developer shall have the right to obtain a Footing and Foundation permit for all buildings in Block 1 (multifamily portion) upon the installation of all underground water, sanitary sewer, and storm sewer facilities, and an emergency accessway for the Phase in which the permit is being requested. Facilities shall include but not be limited to all mains, lines, services, fire hydrants and appurtenances for the site as shown on the Final Development Plan Documents. J. 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. K. 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 11 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 (J) and (K) 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. 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 IM obligations may be shown on the Final Development Plan Documents, or any documents executed in the future that are required by the City for the approval of an amendment to a development plan, and the City may withhold (or to the extent permitted by law, revoke) such building permits and certificates of occupancy as it deems necessary to ensure performance in accordance with the terms of this Development Agreement. The processing and "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) and the Developer agrees to comply with all requirements of the same. F. In the event the City waives any breach of this Agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. G. All financial obligations of the City arising under this Agreement that are payable after the current fiscal year are contingent upon funds for that purpose being annually appropriated, budgeted and otherwise made available by the Fort Collins City Council. in its discretion. H. This Agreement shall run with the Property and shall be binding upon and inure to the benefit of the parties hereto, their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. I. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the Developer shall be released from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. J. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice 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 13 elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. K. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney's fees and costs incurred by reason of the default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph III.D of this Agreement. L. Except as may be otherwise expressly provided herein, this Agreement shall not be construed as or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever. M. It is expressly understood and agreed by and between the parties hereto that this Agreement shall be governed by and its terms construed under the laws of the State of Colorado and the City of Fort Collins, Colorado. N. Any notice or other communication given by any party hereto to any other party relating to this Agreement shall be hand -delivered or sent by certified mail, return receipt requested, addressed to such other party at their respective addresses as set forth below; and such notice or other communication shall be deemed given when so hand - delivered or three (3) days after so mailed: If to the City: Engineering Development Review City of Fort Collins P.O. Box 580 Fort Collins, Co 80522 With a copy to: City Attorney's Office City of Fort Collins P.O. Box 580 Fort Collins, Co 80522 If to the Developer: Sn With a • • • if • • R. 14 Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees or assigns, wishes to change the person, entity or address to which notices under this Agreement are to be sent as provided above, such party shall do so by giving the other parties to this Agreement written notice of such change. 0. When used in this Agreement, words of the masculine gender shall include the feminine and neuter gender, and when the sentence so indicates, words of the neuter gender shall refer to any gender; and words in the singular shall include the plural and vice versa. This Agreement shall be construed according to its fair meaning, and as if prepared by all parties hereto, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto pertaining to the matters addressed in this Agreement. There shall be deemed to be no other terms, conditions, promises, understandings, statements, representations, expressed or implied, concerning this Agreement, unless set forth in writing signed by all of the parties hereto. Further, paragraph headings used herein are for convenience of reference and shall in no way define, limit, or prescribe the scope or intent of any provision under this Agreement. AT City Clerk APPROVED AS TO CONTENT: O, NIC00-A--4F- City Enginee APPROVES TO FORM: 4Y/�ti� -- eputy City Attorney THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: City Mafiager DEVELOPER: BLS Development LLC, a Colorado limited liability company By� Vicki L. Wagner, General Partr/ Manager 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" Not Applicable 17 EXHIBIT "C" MAINTENANCE GUARANTEE: The Developer hereby warrants and guarantees to the City, for a period of two (2) years from the date of completion and first acceptance by the City of the public improvements warranted hereunder, the full and complete maintenance and repair of the public improvements constructed for this Development. This warranty and guarantee is made in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land Use Regulations, as applicable. This guarantee applies to the streets and all other appurtenant structures and amenities lying within the rights -of -way, easements and other public properties, including, without limitation, all curbing, sidewalks, bike paths, drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any maintenance and/or repair required on utilities shall be coordinated with the owning utility company or city department. The Developer shall maintain said public improvements in a manner that will assure compliance on a consistent basis with all construction standards, safety requirements and environmental protection requirements of the City. The Developer shall also correct and repair, or cause to be corrected and repaired, all damages to said public improvements resulting from development -related or building -related activities. In the event the Developer fails to correct any damages within thirty (30) days after written notice thereof, then said damages may be corrected by the City and all costs and charges billed to and paid by the Developer. The City shall also have any other remedies available to it as authorized by this Agreement. Any damages which occurred prior to the end of said two (2) year period and which are unrepaired at the termination of said period shall remain the responsibility of the Developer. REPAIR GUARANTEE: The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5) year period, commencing upon the date of completion and acceptance by the City of the public improvements constructed for this Development, from any and all claims, damages, or demands arising on account of the design and construction of public improvements of the property shown on the approved plans and documents for this Development; and the owner furthermore commits to make necessary repairs to said public improvements, to include, without limitation, the roads, streets, fills, embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the right-of-way easements and other m public properties, resulting from failures caused by design and/or construction defects. This agreement to hold the City harmless includes defects in materials and workmanship, as well as defects caused by or consisting of settling trenches, fills or excavations. Further, the Developer agrees that the City shall not be liable to the Developer during the warranty period, for any claim of damages resulting from negligence in exercising engineering techniques and due caution in the construction of cross drains, drives, structures or buildings, the changing of courses of streams and rivers, flooding from natural creeks and rivers, and any other matter whatsoever on private property. Any and all monetary liability occurring under this paragraph shall be the liability of the Developer. The obligations of the Developer pursuant to the "maintenance guarantee" and 'repair guarantee" provisions set forth above may not be assigned or transferred to any other person or entity unless the warranted improvements are completed by, and a letter of acceptance of the warranted improvements is received from the City by, such other person or entity. iF] improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or appearance of the Property caused by, or on behalf of, the Developer with the intent to construct improvements thereon. B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the approved utility plans and in full compliance with the standards and specifications of the City on file in the office of the City Engineer at the time of approval of the utility plans relating to the specific utility, subject to a three (3) year time limitation from the date of execution of this Agreement. In the event that the Developer commences r performs m the date of construction pursuant hereto after the passage of three (3) years o execution of this agreement, the Developer shall resubmit the utility plans to the City Engineer for reexamination. The City may then require the Developer to comply with the approved standards and specifications of the City on file in the office of the City Engineer at the time of the resubmittal. C. No building permit for the construction of any structure within the Property shall be issued by the City until the public water lines and stubs to each lot, fire hydrants, sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and pavement with at least the base course completed) serving such structure have been completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred and sixty feet (660') from a single point of access, unless the structures contain sprinkler systems that are approved by the Poudre Fire Authority. D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets described on Exhibit 'A" attached hereto, shall be installed within the time and/or sequence required oExhibit "A." If the City Engineer has determined that any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide sery n ice or access to other areas of the City, those facilities shall be shown on the utility plans and shall be installed by the Developer within the time as established under "Special Conditions" in this document. E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by this Development as shown on the approved Final Development Plan Documents and other approved documents pertaining to this Development on file with the City. F. Street improvements shall not be installed until all utility lines to be placed therein have been completely installed, including all individual lot service lines leading in and from the main to the property line. G. The installation of all utilities shown on the Final Development Plan Documents shall be inspected by the Engineering Department of the City and shall be 2 PEAK VIEW SUBDIVISION AMENDMENT AGREEMENT NO. 1 k�n THIS AMENDMENT AGREEMENT, made and entered into this )day of 2004, by and between the CITY OF FORT COLLINS, COLORADO, a Munic' Cporation, hereinafter referred to as the °City"; and BLS Development LLC, a Colorado limited liability company, hereinafter referred to as the "Developer." WITNESSETH; WHEREAS, the City entered into a Development Agreement with BLS Development LLC, a Colorado limited liability company (as "Developer") on April 15, 2002, the terms of which govern the development activities of the Developer pertaining to that 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: Peak View Subdivision, located in the Southwest 1/4 of Section 16, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the parties presently desire to modify the Development Agreement because the on -site and off -site storm drainage improvements cannot be completed at this time due to the fact that the portion of the detention pond retaining walls adjacent to the Pleasant Valley and Lake Canal (PV&L) cannot safely be constructed while there is irrigation water in the canal without creating a safety hazard. 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, the parties hereto agree to amend the terms and conditions of the Development Agreement as follows: A. Section II (Special Conditions) Subsection C Paragraph 1 shall be replaced with the following paragraph to read as follows: 1. All on -site and off -site storm drainage improvements (except the detention pond retaining walls adjacent to the PV&L Canal) associated with this Development, as shown on the Final Development Plan Documents, shall be completed by the Developer in accordance with said documents prior to the issuance of more than 39 full building permits for dwelling units in this Development and an additional six footing and foundation (F&F) permits for dwelling units. (This will allow the construction of an additional three dwelling unit building and will allow two more three dwelling unit buildings to begin construction with F&F permits. This also corrects for one dwelling unit already having been mistakenly allowed over the original 35.) All remaining building permits for dwelling units will be released when the retaining wall adjacent to the PV& L Canal is constructed and certified. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve the Development have been constructed in conformance with said Final Development Plan Documents. This certification shall be submitted to the City at least two weeks prior to the date of issuance of additional building permits. B. All other terms and conditions of the Development Agreement shall remain unchanged and in full force and effect, except as expressly amended in this Amendment Agreement No. 1. IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above written. UA CITY CLERK -\- APPROVED AS''Tpp CONTENT: Director of E gineering APPRO D,AS -�Q FORM: Deputy City Attorney THE CITY OF FORT COLLINS,�COLORADO, a Municipal Corporation By: ta,mCity (Manager DEVELOPER: BLS Development LLC, a Colorado limited liability company \\ \ By (���c Vicki L. Wagner, Manager 2 subject to such department's approval. The Developer agrees to correct any deficiencies in such installations in order to meet the requirements of the plans and/or specifications applicable to such installation. In case of conflict, the Final Development Plan Documents shall supersede the standard specifications. H. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainage or seepage waters from the Property in a manner or quantity different from that which was historically discharged and caused by the design or construction of the storm drainage facilities, except for (1) such claims and damages as are caused by the acts or omissions of the City in maintenance of such facilities as have been accepted by the City for maintenance; (2) errors, if any, in the general concept of the City's master plans (but not to include any details of such plans, which details shall be the responsibility of the Developer); and (3) specific written or otherwise documented directives that may be given to the Developer by the City. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. Approval of and acceptance by the City of any storm drainage facility design or construction shall in no manner be deemed to constitute a waiver or relinquishment by the City of the aforesaid indemnification. The Developer shall engage a Colorado licensed professional engineer to design the storm drainage facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be intended for the benefit of the City, and subsequent purchasers of property in the Development. I. The Developer shall pay storm drainage basin fees in accordance with Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for credit or City repayment under the provisions of Chapter 26 are described together with the estimated cost of the improvements on the attached Exhibit "B," which improvements, if applicable, shall include right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. J. The Developer shall provide the City Engineer with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of 3 the construction. Utilities will not be initially accepted prior to as -built drawings being submitted to and approved by the City of Fort Collins. K. The Developer specifically represents that to the best of its knowledge all Portions of the Property dedicated (both in fee simple and as easements) to the City associated with this Development are in compliance with all environmental protection and anti -pollution laws, rules, regulations, orders or requirements, including solid waste requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such portions of the Property as are dedicated to the City pursuant to this Development, are in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority or any third party, pertaining to the disposal of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfill of hazardous substances, pollutants or contaminants, or environmental cleanup responsibilities of any nature whatsoever on, of, or related to any property dedicated to the City in connection with this Development, provided that such damages or liability are not caused by circumstances arising entirely after the date of acceptance by the City of the public improvements constructed on the dedicated property, except to the extent that such circumstances are the result of acts or omissions of the Developer. Said indemnification shall not extend to claims, actions or other liability arising as a result of any hazardous substance, pollutant or contaminant generated or deposited by the City, its agents or representatives, upon portions of the Property dedicated to the City in connection with this Development. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. II. Special Conditions A. Water Lines Not Applicable 0 B. Sewer Lines Not Applicable C. Storm Drainage Lines and Appurtenances 1. All on -site and off -site storm drainage improvements associated with this Development, as shown on the Final Development Plan Documents, shall be completed by the Developer in accordance with said documents prior to the issuance of more than 35 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 the Development have been constructed in conformance with said Final Development Plan Documents. This certification shall be submitted to the City at least two weeks prior to the date of issuance of additional building permits. 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 reasonably decides that said drainage facilities no longer comply with the approved plans, the City shall give written notice to the Developer of all items which do not comply with the approved plans. Unless the Developer successfully appeals the decision of non-compliance, it 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 Final Development Plan Documents to stabilize all over -lot grading in and adjacent to this Development. The Developer shall also be required to post a security deposit in the amount of $ 11,250.00 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 erosion control provisions of the approved Final Development Plan Documents or the erosion control provisions of the Criteria after receiving notice of the same or an emergency situation exists which would reasonably require immediate mitigation measures, then, in either event, and notwithstanding any provisions contained in paragraph III(J) to the contrary, the City may enter upon the Property for the purpose of making such improvements and undertaking such activities as may be necessary to ensure that the provisions of said plans and the Criteria are properly enforced. The City may apply such portion of the security deposit(s) as may be necessary to pay all costs incurred by the City 5 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. It is important that all buildings and lots be graded to drain in the configuration shown on the Final Development Plan Documents. For this reason the following additional requirements shall be followed for all building and all tots: a. Prior to the issuance of a certificate of occupancy for any lot or building the Developer shall provide the City with certification that the lot and or the building has been graded correctly. This grading certification shall demonstrate that the lot or building Finish Floor elevation has been built in accordance with the elevation specified on the Final Development Plan Documents. The certification shall also show that the minimum floor elevation or minimum opening elevation for any building constructed is in compliance with the minimum elevation as required on the Final Development Plan Documents. The certification shall demonstrate as well that any minor swales adjacent to the building or on the lot have been graded correctly and in accordance with the grades shown on the Final Development Plan Documents. The certification shall also show that the elevations of all corners of the lot are in accordance with the elevations shown on the 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 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 drainage design for this Development provides for the evacuation of storm drainage runoff in a reasonable amount of time out of the detention facilities and into the drainage outfall system. If, during or within 2 years after construction and acceptance of the detention facilities associated with this Development, surfacing or standing water conditions persist in these facilities; and if such conditions are beyond what can be expected in accordance with the approved stormwater design, the Developer shall promptly upon such discovery, install an adequate dewatering system in the detention facilities. Such a system shall be reviewed and approved by the City prior to installation. 7. The Developer shall limit the construction of the off -site storm drainage improvement lines to the "limits of development" as delineated on the Final Development Plan Documents. The Developer shall restore all areas that are disturbed M during construction of the off -site storm drainage improvements in accordance with the Final Development Plan Documents promptly following the conclusion of the construction of the off -site drainage improvements. The Developer shall ensure that no negative impact occurs to the adjoining properties to the Development during the completion of construction activities associated with this Development. No grading shall be done outside of the approved areas as shown on the approved Final Development Plan Documents for this Development. 8. The Developer shall obtain a crossing permit to allow construction of drainage facilities across the Pleasant Valley and Lake Canal (the "Canal") prior to the recordation of the subdivision plat for the Property. Such permit shall include the Developer's agreement to indemnify and hold harmless the City from any claims, damages, injury or cause of action, in relation to the normal operation and use of the drainage facilities adjacent to the Canal. The Developer shall also guarantee that any disruption to the Canal operations due to erosion and sedimentation problems within the Canal right- of-way or easement caused by this Development shall be rectified within 48 hours following written or verbal notice given by the City or the Pleasant Valley and Lake Canal Company to the Developer of the existence of such problems. 9. The Developer shall be responsible for maintenance of all storm drainage facilities that are constructed in conjunction with this Development outside of the public rights -of -way. 10. The City staff has agreed to grant to the Developer, subject to City Council approval and subject to the execution of this Agreement and recordation of a notice of the same, a non-exclusive easement (the `City Easement') for the construction and ongoing maintenance and repair of certain storm drainage improvements shown on the Final Development Plan Documents for the Development in order to provide storm drainage outfall and detention for the Development. Until such time as the City Easement is obtained by the Developer or an alternative outfall system is designed, approved and any easements needed for such a system are obtained, no construction work other than the box culvert and canal reconstruction work on the Pleasant Valley and Lake Canal shall be done. No work shall occur within the boundaries of the City owned property until such time as the City Easement has been obtained by the Developer. Any work, including work on the development site. that is done prior to obtaining the City Easement is at the Developer's risk. The Developer agrees to defend, indemnify and hold harmless the City against any claims that may be brought against the City, and further agrees to pay all the City's attorney fees and litigation costs, arising as a result of the premature commencement of such work. D. Streets. 7 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Elizabeth Street for those portions of said street abutting the Property as shown on the approved Final Development Plan Documents. Reimbursement for Elizabeth Street shall be for oversizing the street from local (access) standards to minor arterial standards. The City shall make reimbursement to the Developer for the aforesaid oversized street improvements in accordance with Section 24-112 of the Code of the City. The Developer agrees and understands that the City shall have no obligation to make reimbursement payments for street oversizing unless funds for such payments shall first have been budgeted and appropriated from the Street Oversizing Fund by the City Council; and the Developer further understands that to the extent that funds are not available for such reimbursement, the City may not, in the absence of the Developer's agreement, require the construction, at the Developer's expense, of any oversized portion of streets not reasonably necessary to offset the traffic impacts of the Development. The Developer does hereby agree to construct the aforesaid oversized street improvements with the understanding that the Developer may not be fully reimbursed by the City for the cost of such construction. The Developer further agrees to accept payment in accordance with Section 24-112 (d) of the Code of the City as full and final settlement and complete accord and satisfaction of all obligations of the City to make reimbursements to the Developer for street oversizing expenses. It is anticipated by the City that the City's reimbursement, in accordance with Section 24-112 (d), would not be less than fifty percent (50%) of the Developer's actual expenses incurred and will be calculated in accordance with the formula as set forth in Section 24-112 (d). 2. It is understood that the improvements that are to be constructed in the public right-of-way as described in this Section II(D) are "City improvements" (as defined below) and, as such, any contract for the construction of the same must be executed in writing. If the cost of such improvements exceeds the sum of Thirty Thousand Dollars ($30,000), the contract for the construction of the same must be submitted to a competitive bidding process resulting in an award to the lowest responsible bidder; and evidence must be submitted to the City prior to the commencement of the work showing that the award was given to the lowest responsible bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the contract for the construction of the improvements must be insured by a performance bond or other equivalent security. For purposes of this paragraph, the term "City improvements" shall mean either (1) existing improvements owned by the City that are to be modified or reconstructed, or (2) any improvements funded in whole or in part by the City. 3. The Developer is responsible for all costs for the initial installation of traffic signing and striping for this Development related to the Development's local street operations. In addition the Developer is responsible for all costs for traffic signing and striping related to directing traffic access to and from the Development (e.g., all signing and striping for a right turn lane into the Development site). 4. Following completion of all public infrastructure improvements, the 0 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. 5. The Developer shall be responsible for the inspection and rating of the box culvert crossing Andrews Peak Drive for the Pleasant Valley and Lake Canal in accordance with State of Colorado criteria. Said inspection and rating shall include a Load Factor Rating Summary and Maintenance Activities Report conducted by a State of Colorado approved party not affiliated with the design or construction of said box culvert. This report must be submitted to and accepted by the City as demonstration that the design and construction meets acceptable standards and are efficient for HS-20 design loading prior to any City acceptance of the box culvert structure. E. Parks 1. Tract E of this development shall only be accepted by the City (for park purposes) for ownership and maintenance once all work is completed and accepted by the City, including but not limited to retaining walls, irrigation system and turf. F. Natural Resources 1. 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 specified 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. The Developer shall be responsible for weed control related to this development at all times. 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 growing seasons from the date of completion. The Developer shall rework and reseed per original specifications any areas that are dead, diseased, contain too many weedy species, or fail to meet the coverage requirement at no additional cost to the City. 2. Fueling facilities shall be located at least one hundred (100) feet from any significant tree, body of water, wetland, or 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, 0