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HomeMy WebLinkAboutBUFFALO RUN APARTMENTS PUD - Filed DA-DEVELOPMENT AGREEMENT - 2003-05-28DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this., day 99 by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and Real Estate Advisors of Florida, Inc., a Florida Corporation, hereinafter referred to as the "Developer": and Buffalo Run Apartments Limited Partnership, an Ohio limited partnership, hereinafter referred to as the "Owner'. WITNESSETH: WHEREAS. the Developer has entered into an agreement with the Owner to develop certain real property situated in the County of Larimer, State of Colorado, (hereafter referred to as the "Property") and legally described as follows, to wit: Buffalo Run Apartments, P.U.D., a tract of land located in the Southwest 1/4 of Section 7, Township 7 North, Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS the Developer desires to develop the Property and has submitted to the City all plats; plans (including utility plans) reports and other documents required for the approval of a final plan according to the City's Development application submittal requirements master list (the final development plan documents) copies of which are on file in the office of the City Engineer and made a part hereof by reference, and WHEREAS, the parties hereto have agreed that the development of the Property will require increased municipal services from the City in order to serve such area and will further require the installation of certain improvements primarily of benefit to the lands to be developed and not to the City of Fort Collins as a whole; and WHEREAS, the City has approved the final development plan documents submitted by the Developer subject to certain requirements and conditions which involve the installation of and construction of utilities and other municipal improvements in connection with the Property. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is agreed as follows: I. General Conditions A. The terms of this Agreement shall govern all development activities of the Developer pertaining to the Property. For the purposes of this Agreement, "development F. Hazards and Emergency Access 1. N'o combustible material will be allowed on the site until a permanent water system is installed by the Developer and approved by the City. 2. Prior to beginning any building construction, and throughout the buildout of this development, the Developer shall provide and maintain at all times an accessway to said building or buildings. Such accessway shall be adequate to handle any emergency vehicles or equipment, and the accessway shall be kept open during all phases of construction. Sucn accesswav shall be constructed to an unobstructed width of at least 20 feet with 4 inches of aggregate base course material compacted according to city standards and with an 80 foot diameter turnaround at the building end of said accessway. The turnaround is not required if an exit point is provided at the end of the accessway. Prior to the construction of said accessway, a plan for the accessway shall be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for review and processing.) If such accessway is at any time deemed inadequate by the Poudre Fire Authority or City Engineer, the accessway shai! be promptly brought into compliance and until such time that the accessway is brought into compliance. the City may issue a stop work orderfor all or part of the Development. G. Footing and Foundation Permits 1. Notwithstanding any provision in this Agreement to the contrary, the Developer shall have the right to obtain a Footing and Foundation permit upon the installation of all -nderground water. sanitary sewer, and storm sewer facilities, and an emergency accessway for the site in which the permit is being requested. Facilities shall include but not be limited to all mains. lines services and appurtenances for the site as shown on the final development plan documents. All of such facilities need not be installed prior to receiving a footing and foundation permit if an alternative plan for emergency access is submitted to and approved by the Poudre Fire Authority, in which case the alternative plan will dictate the improvements which will be required for such permit. 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 10 individual builders and/or subcontractors; shall remove such rubbish as often as necessary, but no less than daily and; at the completion of the work, shall remove all such waste materials, rubbish. tools, construction equipment, machinery, and surplus materials from the public right-of-way. The Developer further agrees to maintain the finished street surfaces so that they are free from dirt caused by the Developer's operation or as a result of building activity. Any excessive accumulation of dirt and/or construction materials shall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until the problem is corrected to the satisfaction of the City Engineer. If the Developer fails to adequately clean such streets within two (2) days after receipt of written notice, the City may have the streets cleaned at the Developer's expense and the Developer shall be responsible for prompt payment of all such costs. The Developer also agrees to require all contractors within the development to keep the public right-of-way clean and free from accumulation of dirt, rubbish, and building materials. C. The Developer hereby agrees that it will require its contractors and subcontractors to cooperate with the City's construction inspectors by ceasing operations when winds are cf sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the public health and welfare. D. The Developer shall. pursuant to the terms of this Agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the final development plan documents, or any documents required by the City Engineer for the approval of an amendment to a development plan, and the City may withhold such building permits and certificates of occupancy as it deems necessary to ensure performance hereof. E. Nothing 'Herein contained shall be construed as a waiver of any requirements of the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable) and the Developer agrees to comply with all requirements of the same. F. In the event the City waives any breach of this Agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. G. Financial obligations of the City of Fort Collins payable after the current fiscal year and/or not appropriated or budgeted are contingent upon funds for that purpose being appropriated. budgeted and otherwise made available by the Fort Collins City Council. H. This Agreement shall run with the Property and shall be binding upon and inure to the benefit of the parties hereto. their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and 11 conditions of this Agreement I. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the City hereby agrees to release said Developer from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. J. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. K. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall be liable to the non -defaulting party for the non - defaulting party's reasonable attorney's fees and costs incurred by reason of the default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph III. D of this Agreement. L. Except as may be otherwise expressly provided herein, this Agreement shall not be construed as or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever. M. It is expressly understood and agreed by and between the parties hereto that this Agreement shell 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 Agrjeement 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 12 With a copy to City Attorney's Office City of Fort Collins P.O. Box 580 Fort Collins, Co 80522 If to the Developer: Real Estate Advisors of Florida, Inc. 7800 East Kemper Road Cincinnati. OH 45249 With a copy to: W.O. Brisben Companies, Inc. Attn: Scott McFadden St. Elmo Building 1433 171h Street, Suite 110 Denver, CO 80202 If to the Owner: Buffalo Run Apartments Limited Partnership 7800 East Kemper Road Cincinnati, OH 45249 With a copy to: W.O. Brisben Companies, Inc. Attn: Scott McFadden St. Elmo Building 1433 17th Street, Suite 110 Denver, CO 80202 Notwithstanding the foregoing, if any party to this Agreement, or their successors, grantees or assigns, wishes to change the person, entity or address to which notices under this Agreement are to be sent as provided above. such party shall do so by giving the other parties to this Agreement written notice of such change. 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 fore convenience of reference and shall in no way define, limit, or prescribe the scope or intent of any provision under this Agreement. P. The Owner is made a party to this Agreement solely for the purpose of subjecting the Property to the covenants contained in this Agreement. The City and the Developer expressly acknowledge and agree that the Owner shall not be liable for any 13 obligations of the Developer under this Agreement, unless the Owner were to exercise any of the rights of the Developer in which event the obligations of the Developer shall become those of the Owner. ATTEST: ILt. A '�' A City Clerk APPROVED AS TO CONTENT:,. City Engineer A PR VED AS TO FORM. Deputy City Attorney THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: QQ, 4. 4 City Mai46ger fiCl AT7 ATTEST: . Xisben DEVELOPER: REAL ESTATE ADVISORS OF ORIDA, INC., a Florida corporation William 0. Brisben;"f 5?e"sident 39 OWNER: BUFFALO RUN APARTMENTS LIMITED PARTNERSHIP, an Ohio limited partnership By: W.O. BRISBEN COMPANIES, INC., an Ohio corporation as General Party�r By: William 0. Bris Companies, Ire+ ,Secretary 15 zrn, President of W.O. Brisben , President EXHIBIT "A" Schedule of water lines to be installed out of sequence. Not Applicable. 2. Schedule of sanitary sewer lines to be installed out of sequence. Not Applicable. 3. Schedule of street improvements to be installed out of sequence. Not Applicable 4. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. 16 EXHIBIT "B" Not Applicable 17 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 approved utility plans and in full compliance with the standards and specifications of the City on file in the office of the City Engineer at the time of approval of the utility plans relating to the specific utility, subject to a three (3) year time limitation from the date of execution of this Agreement. In the event that the Developer commences or performs any construction pursuant hereto after the passage of three (3) years from the date of execution of this agreement, the Developer shall resubmit the utility plans to the City Engineer for reexarnination. The City may then require the Developer to comply with the approved standards and specifications of the City on file in the office of the City Engineer at the time of the resubmittal. C. No building permit for the construction of any structure within the development shall be issued by the City until the public water lines and stubs to each lot, fire hydrants, sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and pavement with at least the base course completed) serving such structure have been completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred and sixty feet (660') from a single point of access, unless the structures contain sprinkler systems that are approved by the Poudre Fire Authority. D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets described on Exhibit "A." attached hereto. shall be installed within the time and/or sequence required on Exhibit''A." If the City Engineer has determined that any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the utility plans and shall be installed by the Developer within the time as established under "Special Conditions" in this document. E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by this development as shown on the approved final development plan documents and other approved documents pertaining to this development on file with the City. F. Street improvements shall not be installed until all utility lines to be placed therein have been completely installed. including all individual lot service lines leading in and from the main to the property line. G. The installation of all utilities shown on the final development plan documents shall be inspected by the Engineering Department of the City and shall be subject to such 2 department's approval. The Developer agrees to correct any deficiencies in such installations in order to meet the requirements of the plans and/or specifications applicable to such installation. In case of conflict, the final development plan documents shall supersede the standard specifications. H. Developments constructed with privately maintained streets shall be constructed to the same design standards as those constructed on similar public rights -of -way (ROW). Public easements shall be provided for access; utilities and drainage as required by the design and location of such infrastructure and as reflected on the plans. Alignment and grades on privately maintained streets and drives shall allow for safe access, ingress and egress by owners, visitors, the general public and public safety officials and equipment, as approved by the City Engineer. I. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer does hereby indemnify and hold harmless the City from any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainage or seepage waters from the Property in a manner or quantity different from that which was historically discharged and caused by the design or construction of the storm drainage facilities, except for (1) such claims and damages as are caused by the acts or omissions of the City in maintenance of such facilities as have been accepted by the City for maintenance, (2) errors, if any, in the general concept of the City's master plans (but not to include any details of such plans, which details shall be the responsibility of the Developer); and (3) specific written or otherwise documented directives that may be given to the Developer by the City. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developerwithin ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Imrriunity Act for the same shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. Approval of and acceptance by the City of any storm drainage facility design or construction shall in no manner be deemed to constitute a waiver or relinquishment by the City of the aforesaid indemnification. The Developer shall engage a Colorado licensed professional engineer to design the storm drainage facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be intended for the benefit of the City, and subsequent purchasers of property in the development. J. The Developer shall pay storm drainage basin fees in accordance with Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for credit or City 3 repayment under the provisions of Chapter 26 are described together with the estimated cost of the improvements on the attached Exhibit "B," which improvements, if applicable, 8shall include right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. K. The Developer shall provide the City Engineer with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construction. Utilities will not be initially accepted prior to as -built drawings being submitted to and approved by the City of Fort Collins. L. The Developer specifically represents that to the best of its knowledge all portions of the Property dedicated (both in fee simple and as easements) to the City associated with this development are in compliance with all environmental protection and anti -pollution laws, rules, regulations. orders or requirements, including solid waste requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such portions of the Property as are dedicated to the City pursuant to this development, are in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer does hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority, pertaining to the disposal of hazardous substances pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks excavation and/or backfill of hazardous substances, pollutants or contaminants, or environmental cleanup responsibilities of any nature whatsoever on, of, or related to any property dedicated to the City in connection with this development. provided that such disposal or cleanup is not necessitated 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. The Developer further agrees to indemnify and hold harmless the City from any claims or actions based directly, indirectly or in any manner on any of the aforementioned environmental risks brought against the City by third parties arising as a result of the dedication of portions of the Property to the City in connection with this development. Said indemnification shall not extend to claims, actions or other liability arising as a result of any hazardous substance, pollutant or contaminant generated or deposited by the City, its agents or representatives, upon portions of the Property dedicated to the City in connection with this development. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days ar"ter 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 M release of this indemnity and hold harmless agreement as to such claim. II. Special Conditions A. Water Lines 1. Prior to the issuance of any building permit(s) for this development, the Developer shall, in accordance with Section 26-121 of the City Code, reimburse the City at the rate of $16.75 per front foot plus an inflation factor for the cost of the Developer's portion of the 24-inch water main in Lemay Avenue which is adjacent to the property. The inflation factor shall be calculated based upon the Construction Cost Index for Denver as published in the Engineering News Record of July 4, 1988. B. Sewer Lines 1. Notwithstanding anything in this Development Agreement to the contrary, the City acknowledges that the Boxelder Sanitation District will be providing sanitary sewer to the Property, and as a result, review and approval of the plans for sanitary sewer improvements shall be by the District and not the City. C. Storm Drainage Lines and Appurtenances 1. The Developer and the City agree that all on -site and off -site storm drainage improvements, as shown on the approved final development plan documents, shall be completed by the Developer in accordance with said final development plan documents prior to the issuance of any certificate of occupancy for the development. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve this development have been constructed in conformance with said final development plan documents. Said certification shall be submitted to the City at least two weeks prior to the date of issuance of any certificate of occupancy for the development. 2. The Developer agrees to provide and maintain erosion control improvements as shown on the approved final development plan documents to stabilize all over -lot grading in and adjacent to this development. The Developer shall also be required to post a security deposit in the amount of $16.275.00 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the approved final development plan documents. Said security deposit(s) shall be made in accordance with the criteria set forth in the City's Storm Drainage Design Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to abide by the provisions of the approved final development plan documents or the Criteria. the City, after giving the Developer written notice of such failure and a stated period within which to correct the same, may enter upon the Property for the purpose of making such improvements and undertaking such activities as may be 5 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 111. D of this Agreement. as it deems necessary in order to ensure that the Developer installs and maintains the erosion control measures throughout the buildout of this development. 3. The buildings to be constructed in this development abut certain storm drainage facilities and it is agreed that it is of the utmost importance that no storm water from said facilities enters buildings 7 and 8. In order to provide the assurance that said buildings are constructed at an elevation that said storm water cannot enter, the approved final development plan documents contain specifications for the minimum elevation for any opening to each such building. Prior to the issuance of a certificate of occupancy for each of said buildings. the Developer shall provide certification from a professional engineer licensed in Colorado that the lowest opening to said building is at or above the minimum elevation required on the approved final development plan documents. Said certification is in addition to, and may be done in conjunction with, the site certification described in paragraph I I. C.1. above. 4. The Developer shall obtain the City's prior approval of any changes from the approved final development plan documents in grade elevations and/or storm drainage facility configuration that occur as a result of the construction of houses and/or development of lots, whether by the Developer or other parties. The City reserves the right to withhold the issuance of building permits and certificates of occupancies for this development until the City has approved such changes as being acceptable for the safe and efficient delivery of storm drainage water. 5. The Developer and the City agree that the Developer is obligated to maintain all on -site storm drainage facilities not accepted for maintenance by the City and all off -site storm drainage facilities not accepted for maintenance by the City serving this development and outside of the public rights -of -way. In addition the Developer shall clean the existing crossing under Mulberry Street (State Highway 14) as specified on the approved final development plan documents. 6. The developer agrees to construct the off -site swale in accordance with the approved final development plan documents. Upon request by the City of Fort Collins Utilities, the developer agrees to construct the under -drain portion below this off -site swale as shown on the approved final development plan documents. The construction and installation of this under -drain is deemed necessary by the City for the safe and efficient discharge of runoff from this development. A D. Streets. 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developerfor oversizing public street improvements for East Lincoln Avenue and North Lemay Avenue as follows: 1.1 North Lemay Avenue The City agrees to reimburse the Developer for 1'/ feet of a 6- foot wide sidewalk along the east side of the street. 1.2 East Lincoln Avenue The City agrees to reimburse the Developer for street improvements for East Lincoln Avenue shown on the approved final development plan documents for the Property with the exception of the taper of East Lincoln Avenue east of 12th Street, the curb along East Lincoln Avenue and 4% feet of a 6-foot wide sidewalk along the south side of East Lincoln Avenue. 1.3 The City shall make reimbursement to the Developer for the aforesaid oversized street improvements in accordance with Section 24-112 of the Code of the City. The Developer agrees and understands that the City shall have no obligation to make reimbursement payments for street oversizing unless funds for such payments shall first have been budgeted and appropriated from the Street Oversizing Fund by the City Council; and the Developer further understands that to the extent that funds are not available for such reimbursement. the City may not, in the absence of the Developer's agreement, require the construction, at the Developer's expense, of any oversized portion of streets not reasonably necessary to offset the traffic impacts of the development. The Developer does hereby agree to construct the aforesaid oversized street improvements with the understanding that the Developer may not be fully reimbursed by the City for the cost of such construction. The Developer further agrees to accept payment in accordance with Section 24-112 (d) of the Code of the City as full and final settlement and complete accord and satisfaction of all obligations of the City to make reimbursements to the Developer for street oversizing expenses. It is anticipated by the City that the City's reimbursement, in accordance with Section 24- 112 (d). would not be less than fifty percent (50%) of the Developer's actual expenses incurred and will be calculated in accordance with the formula as set forth in Section 24-112 (d). 2. It is understood that the improvements that are to be constructed in the 7 public right-of-way as described in this Section II(D) are "City improvements" (as defined below) and, as such, any contract for the construction of the same must be executed in writing. If the cost, of such improvements exceeds the sum of Thirty Thousand Dollars ($30,000), the contract for the construction of the same must be submitted to a competitive bidding process resulting in an award to the lowest responsible bidder; and evidence must be submitted to the City prior to the commencement of the work showing that the award was given to the lowest responsible bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000). the contract for the construction of the improvements must be insured by a performance bond or other equivalent security. For purposes of this paragraph, the term 'City improvements' shall mean either (1) existing improvements owned by the City that are to be modified or reconstructed, or (2) any improvements funded in whole or in part by the City. 3. The Developer and the City agree that the Developer is responsible for all costs for the initial installation of traffic signing and striping for this development related to the development's local street operations. In addition the Developer is responsible for all costs for traffic signing and striping related to directing traffic access to and from the development (e.g., all signing and striping for a right turn lane into the development site). 4. If the Developer constructs street improvements through undeveloped areas of the City, the City agrees to enter into a Reimbursement Agreement with the Developer in accordance with Section 29-678 of the Transitional Land Use Regulations. The Reimbursement Agreement would prov de that the Developer may be reimbursed for a portion of the construction cost of the street improvements whenever any property specially benefitted by such improvement begins to utilize such improvements by making direct connection to such street improvements. 5. Prior to the issuance of the first certificate of occupancy for the Property, all on -site and off -site improvements to North Lemay Avenue, East Lincoln Avenue, and 12th Street, including related ut!lity and storm drainage improvements, shall be completed as shown on the final development plan documents approved and accepted by the City. In lieu of installing the aforesaid on -site and off -site street improvements, the Developer shall have the option of escrov,/ing cash irrevocable non -expiring letter of credit, security bond or other form of financial security acceptable to the City. Such escrow shall be in the amount of 125% of the estimated cost of the local street portion of any of the aforesaid street improvements which have not been completed at the time of posting of such escrow. 6. Block Drive shall be barricaded from vehicular access from East Lincoln Avenue once the Developer reconstructs and the City approves the connection of Block Drive to 12`h Street as shown on the approved final development plan documents. 7. Subject to the provisions of paragraph 5 above, the Developer and the City agree that the construction of 12" Street must be completed in accordance with the City approved final development plan documents priorto the issuance of the first certificate of occupancy. 8. All public infrastructure improvements, including all on -site and off -site storm drainage improvements. shall be completed by the Developer in accordance with the approved final development plan documents therefor and accepted by the City prior to the issuance of any certificate of occupancy for any structure on the Property. 9. Pursuant to Section 24-95 of the City Code, the Developer is obligated to construct the arterial standard street improvements for North Lemay Avenue along the frontage of the Property. Since the City is contemplating a Street Oversizing Project for North Lemay Avenue along the frontage of the Property, the Developer is only required to construct a 6 foot concrete sidewalk as shown on the approved final development plan documents at the time of construction of this Development. Because the Developer remains obligated for the local street portion (which includes vertical curb and gutter, 4'/2 feet of sidewalk width. and one travel lane of full depth asphalt on the east side of North Lemay Avenue) of the improvements along the frontage of the Property, the Developer shall be required to make a payment to the City for the cost of its local share of the construction for Ncrth Lemay Avenue along its frontage in lieu of actual construction of the same, less the 4'/2 feet of sidewalk. Such payment in lieu of construction shall be made prior to the issuance of more than 25 percent (25%) of the building permits within this development. The amount of such payment shall be $21.072.00. vhich is the estimated cost, prepared by the Developer and approved by the City. to construct said improvements; plus 25 percent (25%) to cover the cost of construction. engineering. surveying and project management. Such payment shall fully satisfy the Developer's obligation for the local street portion of North Lemay Avenue, and regardless of the actual cost to the City in constructing its contemplated improvements to North Lemay Avenue. the Developer shall not be required to pay any additional amounts therefor nor shall it be entitled to any reimbursement of the amount earlier paid to the City. E. Ground 'Water 1. The City shall not be responsible for, and the Developer hereby agrees to indemnify and hold harmless the City against, any damages or injuries sustained in the development as a result of ground water seepage or flooding, structural damage, or other damage unless such damages or injuries are sustained as a result of the City's failure to properly maintain its storm drainage facilities in the development. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply. and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure ofthe City to give notice of any such claim to the Developer within ninety (90) days after the City first receives noticE' of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. 9