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HomeMy WebLinkAboutADRIAN - Filed DA-DEVELOPMENT AGREEMENT -DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into this & day of Q.l(, 2005, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and William John Adrian, Jr., an individual, and Julie Adrian, an individual, hereinafter referred to as the "Developer." WITNESSETH: WHEREAS, the Developer is the owner of certain real property situated in the County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property" or "Development") and legally described as follows, to wit: Adrian Subdivision, First Filing, located in Section 9, Township 7 North, Range69Westofthe6thP.M., City of Fort Collins, County of Larimer, State ofColorado. WHEREAS, the Developer desires to develop the Property and has submitted totheCityallplats, 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 PropertywillrequireincreasedmunicipalservicesfromtheCityinordertoservesuchareaand will further require the installation of certain improvements primarily of benefit to thelandstobedevelopedandnottotheCityofFortCollinsasawhole; 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 improvementsinconnectionwiththeProperty. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which are herebyacknowledged, it is agreed as follows: General Conditions A. The terms of this Agreement shall govern all development activities of theDeveloperpertainingtotheProperty. For the purposes of this Agreement, development activities" shall include, but not be limited to, the following: (1) the actualconstructionofimprovements, (2) obtaining a permit therefor, or (3) any change in grade, contour or appearance of the Property caused by, or on behalf of, the Developerwiththeintenttoconstructimprovementsthereon. B. All water lines, sanitary sewer collection lines, storm sewer lines andfacilities, 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 approvaloftheutilityplansrelatingtothespecificutility, subject to a three (3) year time limitationfromthedateofapprovalofthesitespecificdevelopmentplan. In the event that the Developer commences or performs any construction pursuant hereto after the passageofthree (3) years from the date of approval of the site specific development plan, theDevelopershallresubmittheutilityplanstotheCityEngineerforreexamination. 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 theresubmittal. C. No building permit for the construction of any structure within the PropertyshallbeissuedbytheCityuntilthepublicwaterlinesandstubstoeachlot, fire hydrants, electrical lines, sanitary sewer lines and stubs to each lot, and public streetsincludingcurb, gutter, and pavement with at least the base course completed) servingsuchstructurehavebeencompletedandacceptedbytheCity. No building permitsshallbeissuedforanystructurelocatedinexcessofsixhundredandsixtyfeet (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, electrical lines, and/or streets described on Exhibit "A," attached hereto, shall be installed within thetimeand/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 theDeveloperwithinthetimeasestablishedunder "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 publicimprovementsrequiredbythisDevelopmentasshownontheFinalDevelopmentPlanDocumentsandotherapproveddocumentspertainingtothisDevelopmentonfilewiththeCity. 2 F. Street improvements shall not be installed until all utility lines to be placedthereinhavebeencompletelyinstalled, including all individual lot service lines (waterandsewer) leading in and from the main to the property line and all electrical lines. G. The installation of all utilities shown on the Final Development PlanDocumentsshallbeinspectedbytheEngineeringDepartmentoftheCityandshallbesubjecttosuchdepartment's approval. The Developer agrees to correct anydeficienciesinsuchinstallationsinordertomeettherequirementsoftheplansand/orspecificationsapplicabletosuchinstallation. In case of conflict, the Final DevelopmentPlanDocumentsshallsupersedethestandardspecifications, except that if the conflicts are a result of Federal or State mandated requirements, then the Federal or Statemandatedrequirementsshallprevail. H. All storm drainage facilities shall be so designed and constructed by theDeveloperastoprotectdownstreamandadjacentpropertiesagainstinjuryandtoadequatelyservetheProperty (and other lands as may be required, if any). TheDevelopershallmeetorexceedtheminimumrequirementsforstormdrainagefacilities 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 andholdharmlesstheCityfromanyandallclaimsthatmightarise, directly or indirectly, asaresultofthedischargeofinjuriousstormdrainageorseepagewatersfromthe Property in a manner or quantity different from that which was historically dischargedandcausedbythedesignorconstructionofthestormdrainagefacilities, except for (1) such claims and damages as are caused by the acts or omissions of the City inmaintenanceofsuchfacilitiesashavebeenacceptedbytheCityformaintenance; (2) errors, if any, in the general concept of the City's master plans (but not to include anydetailsofsuchplans, which details shall be the responsibility of the Developer); and (3) specific written or otherwise documented directives that may be given to the DeveloperbytheCity. 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 Cityliabilitythroughsuchsettlement. Failure of the City to give notice of any such claim totheDeveloperwithinninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnityandholdharmlessagreementbytheDevelopertonotapplytosuchclaimandsuchfailureshallconstituteareleaseofthisindemnityandholdharmlessagreementastosuchclaim. Approval of and acceptance by the City of any storm drainage facilitydesignorconstructionshallinnomannerbedeemedtoconstituteawaiveror relinquishment by the City of the aforesaid indemnification. The Developer shall engage a Colorado licensed professional engineer to design the storm drainage facilities asaforesaidanditisexpresslyaffirmedherebythatsuchengagementshallbeintended 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 withChapter26, Article VII of the City Code. Storm drainage improvements eligible for 3 credit or City repayment under the provisions of Chapter 26 are described together withtheestimatedcostoftheimprovementsontheattachedExhibit "B," whichimprovements, if applicable, shall include right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, forspecificinstructions. Transparencies on Black Image Diazo Reverse Mylars upon completion of each phJ. The Developer shall provide the City Engineer with certified Record Plan ase oftheconstruction. Utilities will not be initially accepted prior to as drawings being submittedtoandapprovedbytheCityofFortCollins. K. The Developer specifically represents that to the best of its knowledge all propertydedicated (both in fee simple and as easements) to the City associated with thisDevelopment (whether on or off -site) is in compliance with all environmental protection and anti -pollution laws, rules, regulations, orders or requirements, including solidwasterequirements, as defined by the U. S. Environmental Protection Agency Regulationsat40C.F.R., Part 261, and that such property as is dedicated to the City pursuanttothisDevelopment, is in compliance with all such requirements pertaining to thedisposalorexistenceinoronsuchdedicatedpropertyofanyhazardoussubstances, pollutants or contaminants, as defined by the Comprehensive EnvironmentalResponseCompensationandLiabilityActof1980, 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 thatmaybeimposedupontheCitybyanygovernmentalauthorityoranythirdparty, pertainingtothedisposalofhazardoussubstances, pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfill ofhazardoussubstances, pollutants or contaminants, or environmental cleanup responsibilitiesofanynaturewhatsoeveron, of, or related to any property dedicated to theCityinconnectionwiththisDevelopment, provided that such damages or liability are notcausedbycircumstancesarisingentirelyafterthedateofacceptancebytheCityofthepublicimprovementsconstructedonthededicatedproperty, except to the extent thatsuchcircumstancesaretheresultofactsoromissionsoftheDeveloper. Said indemnificationshallnotextendtoclaims, actions or other liability arising as a result of anyhazardoussubstance, pollutant or contaminant generated or deposited by the City, itsagentsorrepresentatives, upon the property dedicated to the City in connection with thisDevelopment. The City agrees to give notice to the Developer of any claim made againstittowhichthisindemnityandholdharmlessagreementbytheDevelopercouldapply, and the Developer shall have the right to defend any lawsuit based on such claim andtosettleanysuchclaimprovidedtheDevelopermustobtainacompletedischargeofallCityliabilitythroughsuchsettlement. Failure of the City to give notice of any such claimtotheDeveloperwithinninety (90) days after the City first receives a notice of suchclaimundertheColoradoGovernmentalImmunityActforthesame, shall cause thisindemnityandholdharmlessagreementbytheDevelopertonotapplytosuchclaimandsuchfailureshallconstituteareleaseofthisindemnityandholdharmlessagreementastosuchclaim. 4 L. The Developer acknowledges and agrees that the City, as the owner ofanyadjacentproperty (the "City Property") on which off -site improvements may beconstructed, or that may be damaged by the Developer's activities hereunder, expresslyretains (and does not by this Development Agreement waive) its rights as propertyowner. The City's rights as owner may include without limitation those rightsassociatedwiththeprotectionoftheCityPropertyfromdamage, and/or theenforcementofrestrictions, limitations and requirements associated with activities ontheCityPropertybytheDeveloperasaneasementrecipient. II. Special Conditions A. Water Lines Not Applicable B. Sewer Lines Not Applicable C. Storm Drainage Lines and Appurtenances 1. All on -site and off -site storm drainage improvements associatedwiththisDevelopment, as shown on the Final Development Plan Documents, shall becompletedbytheDeveloperinaccordancewithsaidDocumentspriortotheissuanceofmorethan2buildingpermitsinthisDevelopment. Completion of improvements shallincludethecertificationbyaprofessionalengineerlicensedinColoradothatthedrainagefacilitieswhichservetheDevelopmenthavebeenconstructedinconformancewithsaidFinalDevelopmentPlanDocuments. Additionally on -site certification shallprovidedocumentationthattheopenspaceareasthatarepartofthisDevelopment, have been graded in a manner consistent with the approved Final Development PlanDocuments. All lot corner elevations for lots adjacent to open space areas shall be certified to be in conformance with the approved Final Development Plan Documents. This certification shall be submitted to the City at least two weeks prior to the date ofissuanceofadditionalbuildingpermits. 2. The Developer shall be responsible for maintaining the structuralintegrityandoperationalfunctionsofalldrainagefacilitiesthroughoutthebuild -out ofthisDevelopment. If at any time following certification (as required pursuant toparagraphone (1) above) of said drainage facilities and during the construction ofstructuresand/or lots within this Development the City reasonably decides that saiddrainagefacilitiesnolongercomplywiththeFinalDevelopmentPlanDocuments, theCityshallgivewrittennoticetotheDeveloperofallitemswhichdonotcomplywiththeFinalDevelopmentPlanDocuments. Unless the Developer successfully appeals thedecisionofnon-compliance, it shall bring such facilities back up to the standards andspecificationsasshownontheFinalDevelopmentPlanDocuments. Failure to maintain 5 the structural integrity and operational function of said drainage facilities followingcertificationshallresultinthewithholdingoftheissuanceofadditionalbuildingpermitsand/or certificates of occupancy until such drainage facilities are repaired to theoperationalfunctionandstructuralintegritywhichwasapprovedbytheCity. 3. The Developer agrees to provide and maintainimprovementsasshownontheFinalDevelopmentPlanDocumentsterosion o stabili eall over - lotgradinginandadjacenttothisDevelopment. The Developer shall also be required topostasecuritydepositintheamountof $4,380.00 prior to beginning construction to guaranteetheproperinstallationandmaintenanceoftheerosioncontrolmeasuresshownontheFinalDevelopmentPlanDocuments. Said security deposit(s) shall be made in accordance with the criteria set forth in the City's Storm Drainage Design CriteriaandConstructionStandards (Criteria). If, at any time, the Developer fails to abidebytheerosioncontrolprovisionsoftheFinalDevelopmentPlanDocumentsortheerosion 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 paragraphIII(J) to the contrary, the City may enter upon the Property for the purpose of makingsuchimprovementsandundertakingsuchactivitiesasmaybenecessarytoensurethattheprovisionsofsaidplansandtheCriteriaareproperlyenforced. The City mayapplysuchportionofthesecuritydeposit(s) as may be necessary to pay all costs incurredbytheCityinundertakingtheadministration, construction, and/or installation of theerosioncontrolmeasuresrequiredbysaidplansandtheCriteria. In addition, the Cityshallhavetheoptiontowithholdbuildingpermitsandcertificatesofoccupancy, as statedinParagraphIII.D of this Agreement, as it deems necessary in order to ensure thattheDeveloperinstallsandmaintainstheerosioncontrolmeasuresthroughoutthebuild -out of this Development. 4. It is important that all lots be graded to drain in the configuration shownontheFinalDevelopmentPlanDocuments. For this reason the following requirementsshallbefollowedforallbuildings/structures on all lots: Prior to the issuance of a certificate of occupancy for any lot or building theDevelopershallprovidetheCitywithcertificationthatthelotandorthebuildinghasbeengradedcorrectly. This grading certification shall demonstrate that the lot or buildingfinishfloorelevationhasbeenbuiltinaccordancewiththeelevationspecifiedontheFinalDevelopmentPlanDocuments. The certification shall also show that the minimumfloorelevationorminimumopeningelevationforanybuildingconstructedisincompliance with the minimum elevation as required on the Final Development Plan Documents. The certification shall demonstrate as well that any minor swales adjacent tothebuildingoronthelothavebeengradedcorrectlyandinaccordancewiththegrades shown on the Final. Development Plan Documents. The certification shall also showthattheelevationsofallcornersofthelotareinaccordancewiththeelevationsshown on the Final Development Plan Documents. Said certification shall be completed byaColoradolicensedprofessionalengineerandshallbesubmittedtotheCityatleasttwoweekspriortothedateofissuanceofthedesiredcertificateofoccupancy. M 5. The Developer shall obtain the City's prior approval of any changesfromtheFinalDevelopmentPlanDocumentsingradeelevationsand/or storm drainagefacilityconfigurationthatoccurasaresultoftheconstructionofhousesand/ordevelopmentoflots, whether by the Developer or other parties. The City reserves therighttowithholdtheissuanceofbuildingpermitsandcertificatesofoccupancyforthisDevelopmentuntiltheCityhasdeemedsuchchangesasbeingacceptableforthesafeandefficientdeliveryofstormdrainagewater. 6. The Developer shall limit the construction of the off -site stormdrainageimprovementlinestothelimitsofconstructionasshownontheFinalDevelopmentPlanDocuments. The contractor shall re -seed and restore all areas that are disturbed during construction of the off -site storm drainage improvements in accordance with the Final Development Plan Documents promptly followingconstruction. The Developer shall ensure that no negative impact occurs to the adjoining property during the construction of the detention pond facilities. No gradingshallbedoneoutsideoftheapprovedareasasshownontheFinalDevelopmentPlanDocuments. 7. The drainage design for this Development provides for theevacuationofstormdrainagerunoffinareasonableamountoftimeoutofthewater quality and detention facilities and into the drainage outfall system. The water qualityanddetentionfacilitieshavebeendesignedtodischargestormwaterrunofffromfrequentstormsovera40hourperiodthroughasmalldiameteroutlet. Under the intended operation of the water quality and detention pond, there will not be standingwaterinthepondmorethan48hoursaftertheendofarainfallevent. If, during orwithin2yearsafterconstructionandacceptanceofthedetentionfacilitiesassociated 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, installanadequatede -watering system in the detention facilities. Such a system shall bereviewedandapprovedbytheCitypriortoinstallation. 8, The Developer shall be responsible for maintenance of all stormdrainagefacilitiesthatareconstructedoutsideofthepublicright-of-way. D. Streets. 1. No street oversizing reimbursement from the City is due theDeveloperforthisDevelopment. 2. The Developer is responsible for widening Vine Drive from the westsideofImpalaDrivetoTaftHillRoadasshownontheFinalDevelopmentPlanDocumentsforthisDevelopmentandtheBellwetherFarmDevelopment. However, prior to constructing any improvements within the Vine Drive right-of-way, the DeveloperisrequiredtoobtainapermitfromLarimerCounty. At such time the permit is obtained, the County may ask that the Developer remit cash in lieu of constructing theimprovementstoVineDriveasshownontheFinalDevelopmentPlanDocuments. Once an estimate for those improvements has been approved by the County andpaymenthasbeenreceivedbytheCounty, and proof of such payment has been submitted to the City's Engineering Department, then the Developer's obligation for theVineDriveimprovementsshallbeconsideredfulfilled. 3. Notwithstanding any provision herein to the contrary, the Developer shall be responsible for all costs for the initial installation of traffic signing and stripingforthisDevelopment, 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. 4. Following completion of all public infrastructure improvements, the Developer shall continue to have responsibility for maintenance and repair of saidimprovementsinaccordancewithSections2.2.3, 3.3.1 and 3.3.2 of the Land Use CodeoftheCity. E. Natural Resources 1. The areas of the Development that are planned to be seeded, shall be inspected jointly by the Developer and the City at specified intervals for three (3) seasons or until determined by the City to be well established in accordance with the coverage specifications of this paragraph, whichever occurs first. Areas seeded in the Spring shall be inspected for required coverage each immediately subsequent Autumn not later than October 1st. Areas seeded at any other time shall be inspected each immediately subsequent Summer not later than August 1 st. The required coverage for the first inspection shall be ten (10) viable live seedlings of the specified species per1000squarecentimeters (approximately one square foot), or fifty percent (50%) coverage of the specified foliage as measured from five feet (6) directly overhead, with no bare spots larger than 1000 square centimeters. At the time of the second growingseasoninspection, there shall be seventy-five percent (75%) foliage cover of the specified species planted as measured from five feet (5') directly overhead. No morethantenpercent (10%) of the species noted on the site may be weedy species asdefinedbyArticleIII, Section 20-41 of the Code of the City. The Developer shall be responsible for weed control 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 three (3) 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 costtotheCity. 2. Fueling facilities shall be located at least one hundred (100) feetfromanynaturalbodyofwater, wetland, natural drainage way or manmade drainage M way. The fuel tanks and fueling area must be set in a containment area that will notallowafuelspilltodirectlyflow, seep, run off, or be washed into a body of water, wetland or drainage way. 3. The Developer shall delineate the Development's propertyboundaryadjacenttoallLimitsofDevelopment (L.O.D.) as defined by Article V, Section5.1.2 of the Land Use Code, including boundaries around existing trees that are to be undisturbed, with orange construction fence prior to any type of construction, includingoverlotgrading. 4. Prairie Dogs- Prior to the commencement of any development activities within the Limits of Development, the Developer shall relocate or eradicate anyPrairiedogsinhabitinganyportionsofthesiteusingCity -approved methods as set forthinChapter4oftheCityCode. If prairie dogs are present, fumigation is best donebetweenlateAprilandearlyJuneandrelocationshalloccurpriortoMarch1orafterMay31ofanygivenyear. F. Soil Amendment 1. In all areas associated with this Development that are to belandscapedorplantedinaccordancewiththeFinalDevelopmentPlanDocuments, anddonotrequireabuildingpermit, the soils shall be loosened and amended by theDeveloperinaccordancewithSection3.8.21 of the Land Use Code prior to theissuanceofanycertificateofoccupancyinthisDevelopment. 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 priortothedateofissuanceofanycertificateofoccupancyinthisDevelopment. 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 CityagainstanydamagesorinjuriessustainedintheDevelopmentasaresultofgroundwaterseepageorflooding, structural damage, or other damage unless such damagesorinjuriesareproximatelycausedbytheCity's negligent operation or maintenance of itsstormdrainagefacilitiesintheDevelopment. However, nothing herein shall be deemed a waiver by the City of its immunities, defenses, and limitations to liability under theColoradoGovernmentalImmunityAct (Section 24-20-101 CRS, et. seq.) or under anyotherlaw. 2. If the Development includes a subdrain system, any such subdrain system, whether located within private property or within public property such as streetrights -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 ortheDeveloper's successor(s) in interest. Such subdrain system is likely to be located 0 both upon private and public property and, to the extent that it is located on publicproperty, 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 Citystandards. 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 againstanydamagesorinjuriessustainedintheDevelopmentastheresultofgroundwater seepage or flooding, structural damage or other damage resulting from failure of anysuchsubdrainsystem. 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 andholdharmlesstheCityagainstanydamagesorinjuriestowaterrightscaused, directlyorindirectlybytheconstruction, establishment, maintenance or operation of theDevelopment. 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 theDevelopercouldapply, and the Developer shall have the right to defend any lawsuitbasedonsuchclaimandtosettleanysuchclaimprovidedtheDevelopermustobtaina complete discharge of all City liability through such settlement. Failure of the City togivenoticeofanysuchclaimtotheDeveloperwithinninety (90) days after the City firstreceivesnoticeofsuchclaimundertheColoradoGovernmentalImmunityActforthe same, shall cause the forgoing indemnities and hold harmless agreements by theDevelopertonotapplytosuchclaimandsuchfailureshallconstituteareleaseoftheforegoingindemnitiesandholdharmlessagreementsastosuchclaim. 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. Development Construction Permit 1. The Developer shall apply for and obtain a DevelopmentConstructionPermitforthisDevelopment, 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 requiredfeesforsaidPermitandconstructioninspection, and post security to guaranteecompletionofthepublicimprovementsrequiredforthisDevelopment, prior to issuanceoftheDevelopmentConstructionPermit. J. 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 10 design and/or construction of the public improvements required for this Development, which guarantees shall run concurrently and shall commence upon the date ofcompletionofthepublicimprovementsandacceptancethereofbytheCity. MorespecificelementsoftheseguaranteesarenotedinExhibit "C." Security for themaintenanceguaranteeandtherepairguaranteeshallbeasprovidedinSection3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land UseRegulations, as applicable. Notwithstanding the provisions of paragraphs III (H) and (1) of this Agreement to the contrary, the obligations of the Developer pursuant to this paragraph and Exhibit "C" may not be assigned or transferred to any other person orentityunlessthewarrantedimprovementsarecompletedby, 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, adequatebarricades, warning signs and similar safety devices at all construction sites within thepublicright-of-way and/or other areas as deemed necessary by the City Engineer andTrafficEngineerinaccordancewiththeCity'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, theDevelopershall, 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, ortheactivitiesofindividualbuildersand/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 theDeveloper's operation or as a result of building activity. Any excessive accumulation ofdirtand/or construction materials shall be considered sufficient cause for the City towithholdbuildingpermitsand/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 promptpaymentofallsuchcosts. The Developer also agrees to require all contractors withintheDevelopmenttokeepthepublicright-of-way clean and free from accumulation ofdirt, 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 ceasingoperationswhenwindsareofsufficientvelocitytocreateblowingdustwhich, in theinspector's opinion, is hazardous to the public health and welfare. D. The Developer shall, pursuant to the terms of this Agreement, complete allimprovementsandperformallotherobligationsrequiredherein, as such improvements or obligations may be shown on the Final Development Plan Documents, or anydocumentsexecutedinthefuturethatarerequiredbytheCityfortheapprovalofan amendment to a development plan, and the City may withhold (or to the extentpermittedbylaw, revoke) such building permits and certificates of occupancy as itdeemsnecessarytoensureperformanceinaccordancewiththetermsofthisDevelopmentAgreement. The processing and "routing for approval" of the variousdevelopmentplandocumentsmayresultincertainofsaiddocumentscarryingdatesofapprovaland/or execution that are later than the date of execution of this DevelopmentAgreementortheMemorandumOfAgreement (if any) recorded to give record notice ofthisAgreement. The Developer hereby waives any right to object to any suchdiscrepancyindates. E. Nothing herein contained shall be construed as a waiver of anyrequirementsoftheCityCode, 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 waivershallbeheldorconstruedtobeawaiverofanysubsequentbreachhereof. 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 beingannuallyappropriated, budgeted and otherwise made available by the Fort Collins CityCouncil, in its discretion. H. This Agreement shall run with the Property and shall be binding upon andinuretothebenefitofthepartieshereto, 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 meaningofthisparagraphshallspecificallyinclude, 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 thetermsandconditionsofthisAgreement. I. In the event the Developer transfers title to the Property and is therebydivestedofallequitableandlegalinterestintheProperty, 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. Insuchevent, the succeeding property owner shall be bound by the terms of thisAgreement. 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 termsofthisAgreement, such party may be declared in default. In the event that a party hasbeendeclaredindefaulthereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of ten (10) days within which to 12 cure said default. In the event the default remains uncorrected, the party declaringdefaultmayelectto: (a) terminate the Agreement and seek damages; (b) treat theAgreementascontinuingandrequirespecificperformanceor; (c) avail itself of anyotherremedyatlaworequity. K. In the event of the default of any of the provisions hereof by either partywhichshallrequirethepartynotindefaulttocommencelegalorequitableactionagainstsaiddefaultingparty, the defaulting party shall be liable to the non -defaultingpartyforthenon -defaulting party's reasonable attorney's fees and costs incurred byreasonofthedefault. Nothing herein shall be construed to prevent or interfere with theCity's rights and remedies specified in Paragraph III.D of this Agreement. L. Except as may be otherwise expressly provided herein, this Agreementshallnotbeconstruedasordeemedtobeanagreementforthebenefitofanythirdpartyorparties, and no third party or parties shall have any right of action hereunder foranycausewhatsoever. M. It is expressly understood and agreed by and between the parties heretothatthisAgreementshallbegovernedbyanditstermsconstruedunderthelawsoftheStateofColoradoandtheCityofFortCollins, Colorado. N. Any notice or other communication given by any party hereto to any otherPartyrelatingtothisAgreementshallbehand -delivered or sent by certified mail, returnreceiptrequested, addressed to such other party at their respective addresses as setforthbelow; and such notice or other communication shall be deemed given when sohand -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: William John Adrian, Jr. Julie Adrian 2333 West Vine Drive Fort Collins, CO 80521 grantees or assigns, wishes to change the person, entity or address to whichNotwithstandingtheforegoing, if any party to this Agreement, or its successors, noticesunderthisAgreementaretobesentasprovidedabove, such party shall do so by givingtheotherpartiestothisAgreementwrittennoticeofsuchchange. 13 0. When used in this Agreement, words of the masculine gender shallincludethefeminineandneutergender, and when the sentence so indicates, words oftheneutergendershallrefertoanygender; and words in the singular shall include thepluralandviceversa. 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 themattersaddressedinthisAgreement. There shall be deemed to be no other terms, conditions, promises, understandings, statements, representations, expressed orimplied, concerning this Agreement, unless set forth in writing signed by all of thepartieshereto. Further, paragraph headings used herein are for convenience of reference and shall in no way define, limit, or prescribe the scope or intent of anyprovisionunderthisAgreement. 0 City Clerk APPROVED AS TO CONTENT: City Engineer ` APPROV AS TO FORM: City tDutyorneyy THE CITY OF FORT COLYNS, C a Municipal Corporation lk By: pF FO/,T DEVELOP R: William J rian, Jr. lie Adrian - 14 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. 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. 15 EXHIBIT "B" Not Applicable 16 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 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. 17 Further, the Developer agrees that the City shall not be liable to the Developer duringthewarrantyperiod, for any claim of damages resulting from negligence in exercisingengineeringtechniquesandduecautionintheconstructionofcrossdrains, drives, structures or buildings, the changing of courses of streams and rivers, flooding fromnaturalcreeksandrivers, and any other matter whatsoever on private property. AnyandallmonetaryliabilityoccurringunderthisparagraphshallbetheliabilityoftheDeveloper. 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 otherpersonorentityunlessthewarrantedimprovementsarecompletedby, and a letter ofacceptanceofthewarrantedimprovementsisreceivedfromtheCityby, such otherpersonorentity. is