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HomeMy WebLinkAboutFOSSIL CREEK COMMERCIAL PLAZA - Filed DA-DEVELOPMENT AGREEMENT - 2003-11-04DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this day of ate—L&O 199k, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and James P. Peterson, an individual, hereinafter referred to as the "Developer". WITNESSETH: WHEREAS, the Developer is the owner of certain real property situated in the County of Larimer, State of Colorado, (hereafter referred to as the "Property") and legally described as follows, to wit: FOSSIL CREEK COMMERCIAL PLAZA (4223 S. Mason), a portion of Tract A, located in the S.E. 1/4 of Section 35, Township 7 North, Range 69 West, of the 6th P.M., City of Fort Collins, Colorado WHEREAS, the Developer desires to develop the Property and has submitted to the City a subdivision plat and/or a site plan and landscape plan, a copy of which is on file in the office of the Director of Engineering and made a part hereof by reference; and WHEREAS, the Developer has further submitted to the City utility plans for the Property, a copy of which is on file in the office of the Director of Engineering 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 subdivision plat and/or site plan and landscape plan 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 Notwithstanding the foregoing, if either 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 party to this agreement written notice of such change. O. When used in this Agreement, words of the masculine gender shall include the feminine and neuter gender, and when the sentence so indicates, words of the neuter gender shall refer to any gender; and words in the singular shall include the plural and vice versa. This Agreement shall be construed according to its fair meaning, and as if prepared by all parties hereto 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. THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: 0j f - T�/I'�/�..�/� CityVManager ATTE T: ' CITY CLERK APPROVED AS TO CONTENT: 1,4 Director of Engineering �'ED AS TO FORM: 1VdAloLPR s stant City Attorney 10 DEVELOPER: James P. Peterson, an individual James P. Peterson, an individual 11 EXHIBIT "A" 1. Schedule of water lines to be installed out of sequence. Not Applicable. 2. Schedule of sanitary sewer lines to be installed out of sequence. Not Applicable. 3. Schedule: of street improvements to be installed out of sequence. Not Applicable. 4. Schedule: of storm drainage improvements to be installed out of sequence. Not Applicable. 12 EXHIBIT "B" NOT APPLICABLE 13 ,Fd&1 Gi� (O-W* SUBDIVISION AGREE = `PHIS AGREEVT is made and entered into this J � d day of A.D. 1978, by and between THE CITY OF FOFU COLLINS, COIOPADO, a municipal corooration, hereinafter sometimes designated as the "City", and Lydia M. Collopy and Francis W. Collopy, as Executor of the Estate of May Troutman and A&Attorney in Fact for PIargaret M. Pexton, hereinafter designated as the "Developer", WITNESSETH: WHEREAS, Developer is the owner of certain property situate in the County of Larimer and State of Colorado and legally described as follows: FOSSIL CREEK CONTERCLAL PLAZA, P.U.D., located in the Southeast 1/4 of Section 35, Township 7 North, Range 69 West of the Sixth P.M., City of Fort Collins. WIffREAS, Developer desires to develop said property as a commercial subdivision and has submitted to the City a subdivision plat (and a site plan of said property is to be developed as a Planned Unit Development), a copy of which is on file in the Office of the City Engineer and by this reference made a part hereof; and WHEREAS, Developer has further submitted to the City a utility plan for said lands, a copy of which is on file in the Office of the City Engineer and by this reference made a part hereof; and W!IEREAS, the parties hereto have agreed that the development of said lands 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 subdivision plat (and site plan where applicable) submitted by the Developer subject to certain requirements and conditions which invol%, the installation of and constru�uion of utilities and other municipal improvements in connection with said lands. NOW, TE6?REFORE, in consideration of the premises and the terms and conditions herein stated and for other valuable consideration, the adequacy of which is acknowledged by the parties hereto, it is agreed as follows: 1. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all utility lines, storm drainage facilities, streets and other municipal facilities necessary to serve the lands within the subdivision. 2. Water Lines. a. Developer agrees to install all water lines as shown on the utility plans in accordance with the requirements and as shown on said plans, whether such lines are actually on the property, bordering the property or on other lands connecting the subject property to the existing City crater distribution system. b. Such water lines shall be installed in full compliance with the standard specifications of the City on file in the office of the City Engineer and applicable provisions of the City Code relating to the installation of such lines. c. Developer understands and agrees that no building permit for any structure in the subdivision shall be issued by the City until the water line and the fire hydrant serving such structure is installed and accepted by the City. d. Any water lines described on Exhibit A, attached hereto shall be installed within the time required on Exhibit A. If the City Engineer determines that any lines shown on the utility plans are required to provide service to other areas of the City, those lines shall be installed within the time determined by the City Engineer. -2- e. All of said lines shall be installed at the sole expense of the Developer. f. The installation of said line shall be inspected by the Engineering Services Department of the City and shall be subject to such department's ap- proval. Developer agrees to correct any deficiencies in such installation in order to meet the requiremP-nts of the plans and the specifications applicable to such installation. 3. Sanitary Sewer Collection Lines. a. The Developer agrees to install all sanitary sewer collection lines shown on the utility plans, whether the same be on or off the subject property- b. Such sanitary sewer lines shall be installed in full compliance with the standard specifications of the City of file in the office of the City Engineer relating to the installation of such lines. c. Developer understands and agrees that no building permit shall be issued by the City for any structure in the subdivision until the sanitary sewer line serving such structure is installed and accepted by the City. d. Any sanitary sewer lines described on Exhibit A, attached hereto shall be installed within the titre required on Exhibit A. If the City Engineer determines that any lines shown in the utility plans are required to provide service to other areas of the City, those lines shall be installed within the time determined by the City Engineer. e. All of said lines shall be installed at the sole expense of the Developer, except the City shall determine the cost of the sanitary trunk sewer to be borne by the Developer based upon the area of his development at the time the final project costs are determined. -3- f. The installatior. ,f said lines shall be inspectea oy the Engineering Services Department of the City and subject to such department's approval. Developer agrees to correct any deficiencies in such installation in order to meet the requirerents of the plans and the specifications applicable to such installation. 4. Electric Lines and Facilities. The City Light and Power Department shall install all electric distribution lines and facilities required for the subject property and the Developer shall pay for such work in accordance with the established charges of the Light and Power Department. Such installation shall include all street lights required for the development. 5. Storm Sewer Lines and Facilities. a. The Developer shall install all storm sewer lines and facilities shown on the utility plans. Developer further agrees that the storm runoff which was designed to enter the New Mercer Canal box calvert will be directed to the Creger Depression storm sewer, subject to an agreement with the other developers of said storm sewer, or shall be accounted for in another manner subject to the approval of the City Engineer. b. Such storm sewer lines and facilities shall be installed in full compliance with the standard specifications of the City on file in the office of the City Engineer- relating to the installation of such lines. c. Developer understands and agrees that no building permit shall be issued by the City for any structure within this subdivision prior to the relocation of the New Mercer Canal, plans for said relocation to be approved in writing by the City Engineer prior to any coork on said relocation. Developer agrees to corgplete the installation of detention facilities for each lot in accordance with drainage Plans suhmit_ted in conjunction with site plans and approved by the City Engineer Prior to the issuance of a certificate of occupancy for that lot. d. All of said lines and facilities shall be constructed in an orderly fashion, as determined by the City Engineer, so as to prevent damage to other utilities, streets, curb, gutter, sidewalks, and all adjacent properties. e. All of said facilities shall be installed at the sole expense of Developer. f. The install-ation of all of such lines and facilities shall be in- spectcd by the Engineering Services Department of the City and shall be subject to such department's approval. Developer agrees to correct any deficiencies in such installation in order to meet the requirements of the plans and the specifications applicable to such installation. 6. Streets. a. The Developer agrees to install all streets shown on the utility plans, complete with paving, curb, gutter and sidewalks. b. Such streets shall be installed in full compliance with the standard specifications of the City on file in the office of the City Engineer relating to the installation of such streets. c. No building permit for the construction of any structure in the subdivision shall be issued by the City until the street providing access to the structures is unproved with at least the gravel base required. Furthermore, no building permit shall be issued by the City for any structure located in excess of 660 feet from a single point of access. d. Any streets described on Exhibit A, attached hereto, shall be completely installed with the time required on Exhibit A. If the City Engineer determines that any streets shown on the utility plans are required to provide access to other areas of the City, those streets shall be installed within the time required by the City Engineer. e. All of said streets shall be installed at the sole expense of the Developer. -5- f. Developer agrees to correct any deficiencies in such installation in order to rrcmet the requirements of the plans and the specifications applicable to such installation. g. Street improvemnts shall not be installed until all utility lines to be placed in the streets have been completely instilled and all services to individual lots have been installed from main utility lines to the property line. h. The Developer agrees to provide and install at his expense adequate barricades, warning signs, or other devices on the dead ends of streets to be continued, unfinished crossings, and other sites designated by the City Engineer as areas requiring such rrrasures to insure the public safety. 7. Other Requirements. a. Developer has the option of installing plastic water mains rather than the ductile iron pipe specified on the utility plans. All materials and methods used in such installation are subject to the review and approval of the City prior to any water line construction. Such construction shall comply with all standards and specifications developed by the City relating to the installation of plastic water lines. 8. Miscellaneous. a. This agreement shall be binding upon the parties hereto, their heirs, personal representatives and assigns. b. Nothing herein contained shall be construed as a waiver of any requirements in the City Subdivision Ordinance or any other provision of the City Code and the Developer agrees to comply with all requirements of the same. 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 building permit therefor, or (3) any change in grade, contour or appearance of said 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 Council -approved standards and specifications of the City on file in the office of the Director of Engineering 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 three (3) years from the date of execution of this agreement, the Developer shall resubmit the project utility plans to the Director of Engineering for reexamination. The City may require the Developer to comply with approved standards and specifications of the City on file in the office of the Director of Engineering at the time of resubmittal. C. No building permit for the construction of any structure within the development shall be issued by the City until the water lines, fire hydrants, sanitary sewer lines and streets (including curb, gutter and sidewalk 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 nine hundred feet (9001) from a single point of access. 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 Director of Engineering has determined that any water limes, 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 plat, site, landscape and utility plans, and other approved documents pertaining to this development on file with the City. F. Street improvements (except curbs, gutters and walks) 2 ATI'EST: City Clerk -flY.l.'1tl N • •'1 11111,• • ••••• ITA Developer Title Executor of the Estate of y Troutman Attorney -in -fact for Margarfat M. Yexton r EXHIBIT A 1. Schedule of water lines to be installed out of sequence. Not applicable 2. schedule of sanitary sewer lines to be installed out of sequence. Not applicable 3. Schedule of street improvenents to be installed out of sequence. Not applicable ADDENDUM NO. 1 The subdivision agreement for Fossill Creek Conynercial Plaza P.U.D., dated November 2, 1978, is hereby amended as follows: Paragraph 5 of said agreement relating to storm sewer lines and facilities shall be amended to include the following: A. Te=,orary Facilities The City agrees to permit the Developer to utilize the existing 24-inch diameter RCP culvert crossing South College Avenue as a release for storm drainage at a rate not to exceed the historic 2-year recurrence storm and of a quality conforming, substantially, to the historic run- off for the Target site, provided the Developer shall detain, on such site, storm water in an ammnunt equal to the difference between runoff from the 100-year recurrence storm in a developed condition and the runoff from the aforementioned 2-year recurrence storm in the historic condition in a manner satisfactory to the City Engineer and at the Developer's sole expense. B. Permanent Facilities The Developer agrees to construct drainage facilities for storm water runoff from the Fossil Creek Commercial Plaza, P.U.D. in one of the following manners: 1. The Developer shall participate with other property owners in the area in construction of a 36-inch diameter reinforced concrete pipe interceptor storm seer situate adjacent to the west R.O.W. line of College Avenue known as McClelland Drive Interceptor Storm; Sewer which runs from the Creger Depression to Mail Creek, said construction to be completed and accepted by the City on or before April 1, 1980. A-1 ADDENDUM NO. L - Continued 2. In the alternative the Developer agrees to participate in a special Improveient Drainage District to be administered by the City in the event that the City shall decide to establish said district for the purpose of constructing the said McClelland Drive Interceptor Sewer. 3. In the alternative, the Developer agrees that he shall provide a design on or before July 1, 1979 for the permanent release of storm water runoff from Fossil Creek Commercial Plaza P.U.D. to a site and by a method approved by the City Engineer, said construction to be completed on or before April 1, 1980. C. Building Permit Issuance Developer understands and agrees that the City shall issue no additional building permits for the Fossil Creek Commercial Plaza P.U.D. until detailed engineering drawings for one of the above mentioned permanent drainage facilities has been submitted to and approved by the City Engineer. Paragraph 7 - Add the following: b. The Developer shall provide for the design and shall obtain the approval of the Colorado Division of Highways and the City's Traffic Engineer for a traffic signalization system for the intersection of South College Avenue with Troutman Drive. The Developer agrees to pay for the costs associated with the installation including poles, lights, controllers and the connection by the City's Light and Power Department. The Developer has agreed to participate to the extent of a total of $32,000.00 subject to reasonable escalation. Installation to be completed on or before official opening day for Target store. The signal controller shall be four phase with capability of expansion to eight phase for future use. The traffic signal must be designed to inter- face with the City's computerized master control system. A-2 ATTEST: lyCity Clerk APPROVED: Director of Public Works City Attorney ADDENDUM NO. 1 THE CITY OF FORT COLLINS, COLORADO By City Manager Developer JTitle Executor of the Estate of May Troutman P Attorney -in -fact for r M aret M. Pexton A-3 ADDENDUM NO. 2 The Subdivision Agreement for Fossil Creek Commercial Plaza P.U.D. dated November 2, 1978, as amended by Addendum No. 1 thereto, is further amended as follows: Paragraph 5 of said agreement pertains to storm sewer lines and facilities. Addendum No. 1 was an amendment to said paragraph 5. It is agreed that such provisions relating to storm sewer lines and facilities are further amended as follows: (1) Temporary Facilities. The Developer has pro- posed to the City temporary facilities to be utilized for storm drainage in connection with the site now being devel- oped for LaBelles (the North portion of Lot 1, Fossil Creek Commercial Plaza). Such temporary facilities will utilize some of the permanent facilities now installed on the site. Under the Developer's proposal, storm water from the LaBelles site will be temporarily detained in a detention pond and will flow from the detention pond into a storm sewer line which has been installed in the subdivision. After entering said storm sewer line, such storm waters will flow south to a point south of McClelland Drive and into a manhole. A pump will be installed in the manhole which will carry the waters in the manhole to College Avenue. The storm waters will then flow down College Avenue south to an existing catch basin and n into an existing 24-inch RCP culvert which crosses College Avenue. The specifications for the pumping system have been furnished to and approved by the City. The City agrees to accept the Developer's proposal for such temporary facilities and agrees that the installation of the same will satisfy the City's requirements in connection with the LaBelles site until the permanent facilities hereinafter referred to are installed. If such temporary facilities are installed in accordance with the proposal made by the Developer to the City, the same will be adequate to permit issuance of a Certificate of Occupancy for the LaBelles facility insofar as completed storm drainage facilities are required in connec- tion with the issuance of such Certificate of Occupancy. (2) Addendum No. 1 provided three alternatives for permanent storm drainage facilities. The first two alterna- tives both involved a plan to construct a 36-inch diameter interceptor storm sewer adjacent to the west right-of-way line of College Avenue running from the Creger Depression to Mail Creek. Under the first alternative, such facilities would be installed by the Developer participating with other property owners in the area. Under the second alternative such facilities would have been installed through a special drainage improvement district to be administered by the City. The third alternative was for a separate storm drainage system designed solely for Fossil Creek Commercial Plaza -2- 1441 P.U.D. The parties have agreed that the drainage system to be utilized shall be the drainage system contemplated by the first two alternatives and that such system shall be install- ed through a special improvement district to be organized and administered by the City. The Developer agrees to cooperate with the City in all ways possible to organize such district and to install the improvements through the district proce- dures. The drainage lines which have been installed on the site by the Developer have been installed in accordance with the design for this storm sewer system. Therefore, the parties agree that the alternate system envisioned by para- graph B3 of the Addendum shall not be installed or designed. Dated: August 2 b , 1979. THE CITY OF FORT COLLINS, APPROVED: Diyj�for o PUbli orkLr- City Attorney Francis W. Collopy,�e torfor of the Estate of May Teoutman -3- MARGARET M. PEXTON By< JAI Francis W. Collopy, Attorney -in -Fact Lydla Collopy CT -4- 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 utility plans 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 utility plans shall :supersede the standard specifications. H. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer 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 directives that may be given to the Developer by the City. Approval of and acceptance by the City of any storm drainage facility design or construction shall in no manner be deemed to constitute a waiver or relinquishment by the City of the aforesaid indemnification. The Developer shall engage a Colorado licensed professional engineer to design the :storm drainage facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be intended for the benefit of the City, and subsequent purchasers of property in the development. I. The Developer shall pay storm drainage basin fees in accordance with Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for credit or City repayment under the provisions of Chapter 26 are described together with estimated cost of the improvements on the attached Exhibit "B," which improvements, if applicable, shall include right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. J. The Developer shall provide the Director of Engineering with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construction. 3 K. The Developer specifically represents that to the best of its knowledge all portions of the Property dedicated to the City associated with this development are in compliance with all environmental. protection and anti -pollution laws, rules, regulations, orders or requirements, including solid waste requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such portions of the Property as are dedicated to the City pursuant to this development, are in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer does hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority, pertaining to the disposal of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfill of hazardous substances, pollutants or contaminants, or environmental cleanup responsibilities of any nature whatsoever on, of or related to any property dedicated to the City in connection with this development. The Developer further agrees to indemnify and hold harmless the City from any claims or actions based directly, indirectly or in any manner on any of the aforementioned environmental risks brought against the City by third parties arising as a result of the dedication of portions of the Property to the City in connection with this development. Said indemnification shall not extend to claims, actions or other liability arising as a result of any hazardous substance, pollutant or contaminant generated or deposited by the City, its agents or representatives, upon portions of the Property dedicated to the City in connection with this development. II. Special Conditions A. Water Lines Not. Applicable B. Sewer Lines Not. Applicable 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 utility plans for this development, shall be completed by the Developer in accordance with the approved plans prior to the issuance of any certificate of occupancy. Completion of improvements shall include the certification by a professional C_ engineer licensed in Colorado that the drainage facilities which serve this development have been constructed in conformance with said approved plans. Any deviations from the approved utility plans shall be the responsibility of the Developer to correct prior to the issuance of any certificate of occupancy. Said certification shall be submitted to the City at least two weeks prior to the date of issuance for any certificate of occupancy. 2. The Developer agrees to provide and maintain erosion control improvements as shown on the approved utility plans 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 $ 1,166 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the approved Plan. Said security deposit 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 utility plans or the Criteria, 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 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. 3. The Developer shall obtain the City's prior approval of any changes from the approved utility plans 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 until the City has approved such changes as being acceptable for the safe and efficient delivery of storm drainage water. D. Streets. 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Mason Street for those portions of said street abutting the Property as shown on the approved utility plans. Reimbursement for Mason Street shall be for oversizing the sidewalk from residential (access) standards (4 foot) to Arterial standard (7 foot). The City shall make reimbursement to the Developer for the aforesaid oversized street improvements in accordance with Section 24-121 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 5 Street Oversizing Fund by the Fort Collins 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 24-121 (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 24-121 (d), will not be less than fifty percent (5006) of the Developer's actual expenses incurred and will be calculated in accordance with the formula as set forth in Section 24-121 (d). 2. It is understood that the streets to be constructed as described in this Section II.D. are "city improvements" 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 Fifteen Thousand Dollars ($15,000), 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. 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 (eg. all signing and striping for a right turn lane into the development site). E. Groundwater. 1. The Developer and the City recognize that this development is adjacent to the New Mercer Ditch and that seepage from said ditch may impact the ground water levels in this development. Accordingly, it is agreed that the City shall not be responsible for and that the Developer hereby indemnifies the City for any claims of damages or injuries that may be alleged to have been sustained in the development as a result of groundwater seepage, whether resulting from groundwater flooding, structural M 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. F. Hazards and Emergency Access. 1. No combustible material will be allowed on the site until a permanent water system is installed by the Developer and approved by the City. 2. Prior to beginning any building construction, 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. Prior to the City allowing combustible material on the site (other than forming material forconcrete footings, foundations and/or concrete walls) such accessway shall be improved to a 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. 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 Director of Engineering in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been completed and approved by the Director of Engineering. B. The Developer shall, at all times, keep the public right- of-way free from accumulation of waste material or rubbish caused by the Developer's operation; shall remove such rubbish no less than weekly 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. 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 Director of Engineering. 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. 7 C. The Developer hereby agrees that it will require its subcontractors to cooperate with the City's construction inspectors by ceasing operations when winds are of sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the public: health and welfare. D. The Developer shall, pursuant to the terms of this Agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the original plat and related documents, or any replat as subsequently filed by the Developer, 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, 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 at the parties hereto, their personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. I. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the City hereby agrees to release said Developer from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. J. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has 3 been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of five (5) 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. 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 registered or 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, Cc 80522 With a copy to: If to the Developer With a copy to: City Attorney's Office City of Fort Collins P.O. Box 580 Fort Collins, Co 80522 x 7