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HomeMy WebLinkAboutDRY CREEK MINOR SUB REPLAT - Filed DA-DEVELOPMENT AGREEMENT - 2008-02-28DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into this 29 of COo6ex, 2007, by and between the CITY OF FORT COLLINS, CO ORADO, as M pal Corporation, hereinafter referred to as the "City"; and DRY CREEK LLC, a Michigan 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: RY EK MINOR Township North, Range 68DWestlof the 6th P.M., City of Fort Collins Section ownshpFIRST County of Larimer, State of Colorado. WHEREAS, the Developer desires to develop the Property and has submitted to the City all plats, plans (including utility plans), reports and other documents required for the approval of a final plan according to the City's development application submittal requirements master list (the "Final Development Plan Documents') copies of which are on file in the office of the City Engineer and made a part hereof by reference; and WHEREAS, the parties hereto have agreed that the development of the Property will require increased municipal services from the City in order to serve such area and will further require the installation of certain improvements primarily of benefit to the lands to be developed and not to the City of Fort Collins as a whole; and WHEREAS, the City has approved the Final Development Plan Documents submitted by the Developer subject to certain requirements and conditions, which involve the installation of and construction of utilities and other municipal improvements in connection with the Property. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is agreed as follows: General Conditions 6. Notwithstanding any provision herein to the contrary, the Developer shall be responsible for all costs for the initial installation of traffic signing and striping for this Development, including both signing and striping related to the Developer's internal street operations and the signing and striping of any adjacent or adjoining local, collector or arterial streets that is made necessary because of the Development. Traffic signage, including street name signs for both the public streets and the private drives shall be installed by the City in accordance with Manual on Uniform Traffic Control Devices (MUTCD) at the Developers cost. 7. As per the streets and the private drives within athis property Development laDocuments, showstrip ng odesignate bike panes And areas of no parking. The City does not maintain striping and signage for these purposes on local streets or private drives. It will be the responsibility of the Developer to install and maintain said signage and striping. For all signage and striping work within the rights -of -way on the public streets, the Developer shall either hire the City to do such work or shall hire a company licensed to do such work within the rights -of -way; and all work done by such company shall be subject to approval of the City. Such signing and striping work on the private drives does not need to be installed by the City or a company licensed to do such type of work but shall meet Poudre Fire Authority's requirements for maintaining adequate access. 8. Following completion of all public infrastructure improvements, the Developer shall continue to have responsibility for maintenance and repair of said improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code of the City. 9. The Developer shall be given credit for the "street oversizing capital expansion fees" that were previously paid for the mobile homes that had previously been constructed on the site. Since "street oversizing capital expansion fees" are greater for a single family dwelling than they are for a mobile home, there is an increase in the amount due for each lot, for which the Developer shall be responsible. Each lot in this development will be entitled to receive a credit against the "street oversizing capital expansion fee" in the amount of 1/227 of the aggregate "street oversizing capital expansion fee" which was paid to the City by the Dry Creek Mobile Home Park. E. Natural Resources 1. Any wetlands disturbed, on site or on adjacent property (public or private) shall be mitigated in kind, in place at a 1:1 ratio. If wetlands are damaged, then a mitigation plan shall be prepared and submitted to the City for review and approval. The plan shall be reviewed and approved by the City's Environmental Planner prior to the commencement of any restoration activities. F. Soil Amendment 10 In all areas associated with this Development that are to be landscaped or planted in accordance with the Final Development Plan Documents, and do not'require a building permit, the soils shall be loosened and amended by the Developer in accordance with Section 3.8.21 of the Land Use Code prior to the issuance in this Development. Completion of soil amendments shall include certification by the Developer that the work has been completed. This certification shall be submitted to the City at least two (2) weeks prior to the date of issuance more than 16 building permits in this Development. 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 11 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. H. Building Permits 1. In addition to the credit described in section II.C.13 for "stormwater Plant investment fees" and in section II.D. 9 for the "street oversizing fees" it is agreed that the Developer shall get credit for any of the following fees that were previously paid for the mobile homes that were constructed on the site in the manner described below: • Neighborhood Parkland Fee • Larimer County Transportation Expansion Fee • Capital Improvement Expansion Fees (Community Parkland, Fire, General Governmental Services, Police, Library) • Poudre School District Impact Fee With each new building permit application submitted for the Development, any of the above fees that were paid in order to obtain the original permits in the Dry Creek Mobile Home Park shall be credited in full toward the same fee category amount due in order to obtain the corresponding new building permit (e.g. previously -paid Parkland Community fee :will be applied to the Parkland Community fee amount due with the new permit application). Permit fees shall be applied on a permit -by -permit basis and only the fees paid in order to obtain one original permit may be applied to not more than one new permit, (i.e. fees paid with two original permits may not be applied against those fees due on one new permit), and can only be applied once. The Developer shall be responsible for any difference in original fee amounts paid and current fee amounts due and any other new or applicable fees associated with the building permit. The preceding terms will be applicable only until the number of new permits exceeds the number of corresponding previously -issued permits. Thereafter, the Developer shall be responsible for all fee amounts associated with any new building permit. 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. 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, prior to the Developer commencing construction. The Developer shall pay the required fees for said Permit and construction inspection, and post security to 12 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 design and/or construction of the public improvements required for this guarantee and a five-year repair guarantee covering all errors or omissions in the 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 "B." Security for the maintenance guarantee and the repair guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code. Notwithstanding the provisions of paragraphs III (H) and (I) of this Agreement to the contrary, the obligations of the Developer pursuant to this paragraph and Exhibit "B" 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. III. Miscellaneous A. The Developer agrees to provide and install, at its expense, adequate barricades, warning signs and similar safety devices at all construction sites within the public right-of-way and/or other areas as deemed necessary by the City Engineer and Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been completed. B. As required pursuant to Chapter 20, Article IV of the City Code, the Developer shall, at all times, keep the public right-of-way free from accumulation of waste material, rubbish, or building materials caused by the Developer's operation, or the activities of individual builders and/or subcontractors; shall remove such rubbish as often as necessary, but no less than daily and; at the completion of the work, shall remove all such waste materials, rubbish, tools, construction equipment, machinery, and surplus materials from the public right-of-way. The Developer further agrees to maintain the finished street surfaces so that they are free from dirt caused by the Developer's operation or as a result of building activity. Any excessive accumulation of dirt and/or construction materials shall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until the problem is corrected to the satisfaction of the City Engineer. If the Developer fails to adequately clean such streets within two (2) days after receipt of written notice, the City may have the streets cleaned at the Developer's expense and the Developer shall be responsible for prompt payment of all such costs. The Developer also agrees to require all contractors within the Development to keep the public right-of-way clean and free from accumulation of dirt, rubbish, and building materials. 13 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, inspector's opinion, is hazardous to the public health and welfare. in the D. The Developer shall, pursuant to the terms of this Agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the Final Development Plan Documents, or any documents executed in the future that are required by the City for the approval of an amendment to a development plan, and the City may withhold (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 or the Land Use Code and the Developer agrees to comply with all requirements of the same. F. In the event the City waives any breach of this Agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. G. 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 14 such event, the succeeding property owner shall be bound by the terms of this Agreement. J. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. K. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorneys 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 15 If to the Developer: Glenn Couch Uniprop 2050 International Blvd, #241 Fort Collins, CO 80524 With a copy to: Richard F. Zier Attorney at Law 322 E. Oak Street Fort Collins, CO 80524 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. City THE CITY OF FORT OLLINS, COLORADO, a Municipal Corporati By: City Manager FOR SEAL APPROVED AS TO CONTENT: 0, .City Engineer m APPROV T FORM: Deputy City Attorney DEVELOPER: Dry Creek LLC, a Michigan lim' liability company By: Roger Zlotott, Vice President 17 EXHIBIT "A" Schedule of electrical service installation. Electrical lines need to be installed prior to the installation of the sidewalk, curb returns, handicap ramps, paving and landscaping. If the Developer installs any curb return, sidewalk or handicap ramp prior to the installation of electrical lines in an area that interferes with the installation of the electrical line installation, the Developer shall be responsible for the cost of removal and replacement of those items and any Associated street repairs. 2. Schedule of water lines to be installed out of sequence. Not Applicable. 3. Schedule of sanitary sewer lines to be installed out of sequence. Not Applicable. 4. Schedule of street improvements to be installed out of sequence. Not Applicable 5. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. 18 EXHIBIT 'B" 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 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. 19 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 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 Final Development Plan Documents 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 approval of the site specific development plan. In the event that the Developer commences or performs any construction pursuant hereto after the passage of three (3) years from the date of approval of the site specific development plan, 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, electrical lines, 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 otherwise approved by the Poudre Fire Authority. D. Any new water lines, sanitary sewer lines, storm drainage lines, electrical 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 Final Development Plan Documents 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 Final Development Plan Documents and other approved documents pertaining to this Development on file with the City. F. Street improvements as specified herein or shown on the Final Development Plan Documents shall not be installed until all utility lines to be placed therein have been completely installed, including all individual lot service lines (water 2 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. Fir, EXHIBIT "C" [The following language shall be contained in the covenants, declarations and/or bylaws of Dry Creek Homeowners Association, Inc. ("HOA").] "The HOA shall have the. following duties, rights and powers: ...To operate, maintain and reconstruct, at its expense and as necessary, the Subdivision's pedestrian walkways and private drives (as designated on the Plat of the Subdivision, and as distinguished from driveways on lots), including any drainage features or improvements in the Subdivision associated therewith in accordance with the requirements of the City of Fort Collins Land Use Code." 21 and sewer) leading in and from the main to the property line and all electrical lines located within the right-of-way or utility easements behind. 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 to such installation. In case of conflict, the Final Development Plan Documents shall supersede the standard specifications, except that if the conflicts are a result of Federal or State mandated requirements, then the Federal or State mandated requirements shall prevail. 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 the applicable "stormwater plant investment fee' in accordance with Chapter 26, Article VII of the City Code. This fee is included with building permit fees and shall be paid prior to the issuance of each building permit. J. The Developer shall provide the City Engineer with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of each phase of the construction. Public streets will not be accepted prior to as -built drawings being submitted to and approved by the City. K. The Developer specifically represents that to the best of its knowledge all property dedicated (both in fee simple and as easements) to the City associated with this Development (whether on or off -site) is 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 property as is dedicated to the City pursuant to this Development, is 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 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 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 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. L. The Developer acknowledges and agrees that the City, as the owner of any adjacent property (the "City Property") on which off -site improvements may be constructed, or that may be damaged by the Developer's activities hereunder, expressly retains (and does not by this Development Agreement waive) its rights as property 4 owner. The City's rights as owner may include without limitation those rights associated with the protection of the City Property from damage, and/or the enforcement of restrictions, limitations and requirements associated with activities on the City Property by the Developer as an easement recipient. II. Special Conditions A. Water Lines 1. Notwithstanding anything in this Agreement to the contrary, the Development will be provided water service from the East Larimer County (ELCO) Water District ("Water District"), and all water line improvements shall be installed and inspected in accordance with the Water District's regulations and the approved plans therefor. B. Sewer Lines 1. Notwithstanding anything in this Development Agreement to the contrary, the Property will be provided sanitary sewer service from the Boxelder Sanitation District ("Sewer District"), and all sewer line improvements shall be installed and inspected in accordance with the Sewer District's regulations and the approved plans therefor. 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 50 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 Final Development Plan Documents, the City shall give written notice to the Developer of all items which do not comply with the Final Development Plan Documents. 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 Final Development Plan Documents. Failure to maintain the structural integrity and operational function of said drainage facilities following 5 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 $ 4,436.10 prior to beginning construction under a Development Construction Permit to guarantee the proper installation and maintenance of the erosion control measures shown on the 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 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 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. t is important that IIlots be graded to guration shown on the FinalDevelopment PlanD Documents. reason the following requirements shall be followed for all buildings/structures on all lots: a) Prior to the issuance of more than 50 building permits in this Development the City will assess whether the currently provided grading information as shown on the Final Development Plan Documents provide sufficient guidance to properly grade the proposed structures in this Development. If the City finds that, the currently provided guidance is not sufficient to properly grade the lots and prevent future flooding potential, then additional grading information shall be provided in accordance with section 2.2.1.1 of the Fort Collins Storm Drainage Criteria Manual. The developer shall submit additional grading information on all lots yet to be built on, prior to the issuance of any additional building permits in this Development. Such additional information shall include detailed grade break points on all lots, in accordance with the said City of Fort Collins Storm Drainage Criteria Manual. b) 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 deemed such changes as being acceptable for the safe and efficient delivery of storm drainage water. 6. The Developer shall limit the construction of the off -site storm drainage improvements to the limits of construction as shown on the Final Development Plan Documents. The contractor shall re -seed and/or restore all areas that are disturbed during construction of the off -site storm drainage improvements in accordance with the Final Development Plan Documents promptly following construction. The Developer shall ensure that no negative impact occurs to the adjoining properties during the construction of these improvements. No grading shall be done outside of the approved areas as shown on the Final Development Plan Documents. 7. 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 de -watering system in the detention facilities. Such a system shall be reviewed and approved by the City prior to installation. 8. The Developer shall be responsible for maintenance of all storm drainage facilities that are constructed outside of the public right-of-way. 9. The Developer shall obtain a Floodplain Use Permit from the City of Fort Collins prior to commencing any site construction activity within the Dry Creek Floodplain Limits as delineated on the Final Development Plan Documents for this Development. 10. The current City of Fort Collins 100 year Dry Creek Floodplain will become the FEMA Floodplain once the Physical Map Revision (PMR) is approved by FEMA. The current City of Fort Collins 100 year Dry Creek Floodplain shall be used to regulate this site. Part of this Development is located within those Dry Creek 100-year Floodplain boundaries. This site shall comply with all relevant City of Fort Collins floodplain regulations. Prior to the issuance of any building permit for any structure to Pe built within the Dry Creek 100 year Floodplain limits, the Developer shall obtain a separate floodplain use permit and pay all applicable floodplain use permit fees. The lowest floor elevation and all HVAC and electrical shall be elevated 18" above the 100- year flood elevation as shown in the Floodplain Table on the plans. A FEMA floodplain elevation certificate shall be provided and approved by the City of Fort Collins Utilities, prior to the issuance of a certificate of occupancy for any structure that is built within the Dry Creek 100 year floodplain limits. This certification can be done in conjunction with the grading certification required in paragraph II.C.4 above. 11. If a structure is proposed to be built on one of the floodplain lots, but the structure itself is planned to be located outside of the limits of the Dry Creek Floodplain, then a site plan for that lot shall be submitted at time of application for the building permit. The site plan must clearly show the floodplain line in relationship to the planned building envelope and must clearly indicate that the structure is entirely located outside of the floodplain limits. 12. No basements shall be allowed within the development unless all documentation required by the City Code, Land Use Code, and Larimer County Urban Area Street Standards is submitted and approved demonstrating that basements can be installed and in full compliance with the above codes and standards. Notwithstanding the forgoing, all foundations located within the Dry Creek 100 year floodplain limits shall be "slab on grade". 11 13. The Developer shall be given credit for the "stormwater plant investment fees" that were previously paid for the mobile homes and the club house that had previously been constructed on the site. If there is an increase in the amount of impervious area, then the Developer shall be responsible for paying the additional fees. The Developer shall be responsible for the fees on lots that had not yet paid a fee. The "stormwater plant investment fees" for each lot shall be calculated as follows: The new impervious surface for the Property shall be used to determine the fees for all the lots. The amount previously paid shall be subtracted from this total. The difference of these two numbers shall be the total amount of "stormwater plant investment fees" to be paid for the site. To determine the amount due with each building permit in the development this amount shall be divided by the number of single family lots. Said amount shall be paid prior to the issuance of each building permit. f3 D. Streets. 1. No street oversizing reimbursement from the City is due the Developer for this Development. 2. The following improvements shall be completed prior to the existing drives being accepted as public streets. This applies only to those drives being dedicated as public right-of-way as shown on the Final Development Plan Documents. All other existing private drives within the Development will not be subject to these requirements. a) Speed bumps shall be removed by being ground down or milled out prior to the final overlay. b) All concrete around the existing valve boxes will be removed. c) All manholes and valves will be adjusted for the overlay thickness. d) Any broken or damaged concrete existing prior to construction or damaged or broken during construction will be replaced. e) Any street cuts for utilities shall be completed prior to overlay placement. f) Taper milling will be done and a 2 inch overlay will be installed. 3. For the existing and new private drives that will remain as private drives (not dedicated as public right-of-way), the Developer agrees that the City has no obligation to perform or pay for repair and maintenance or any obligation to accept the private drives as public streets. In accordance with Section 3.6.2(L)(4) of the Land Use Code the Developer shall file a notice at the County showing the location of such drives and identifying the properties which are burdened with the obligation of operation, maintenance and reconstruction of such drives, and affirming that the City has no such obligation, nor any obligation to accept such drives as public streets. This notice shall be provided after the plat has been recorded and prior to the issuance of the Development Construction Permit for this Development. A copy showing the County recordation reception numbers shall be provided to City Engineering Department promptly following recording. 4. At such time as a homeowners association is formed the covenants, declarations and/or by-laws shall contain the language in Exhibit "C" which defines the responsibilities for the operation, maintenance and reconstruction of the private drives, which cost is to be borne by the property owners. 5. As per Section 3.6.2(L)(3) of the Land Use Code the construction of all private drives shall be under the direct supervision of a professional engineer licensed by the State of Colorado, who must certify that all improvements for private drives have been completed in accordance with the plans approved by the City. In addition, the construction of private drives that will serve emergency access purposes shall be inspected by the City Engineer for compliance with City standards and the approved plans in the same manner as is required by the City for public streets.