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HomeMy WebLinkAboutHARVEST PARK - Filed DA-DEVELOPMENT AGREEMENT - 2003-11-21DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into this 30th day of June 2000, by and between the CITYOF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and The Writer Corporation, a Colorado Corporation, 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: Harvest Park Subdivision (Harvest Park PDP), a tract of land located in the east half of Section 5, Township 6 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 1 maintained by the City and it is agreed that all installation, maintenance, operation, repair and reconstruction obligations relating to the landscaping and the irrigation of said landscaping shall be those of the Developer or the Developer's successor(s) in interest. To the extent that said landscaping and irrigation is located on public property, all installation, maintenance, operation, repair and reconstruction shall be conducted in such a manner that such public property shall not be damaged, or if damaged, shall be repaired in accordance with then existing City standards. 8. The landscaping located in the medians with outfall curb and gutter within Rock Creek Drive, Corbett Drive and the four traffic circle medians internal to this development shall be "drip" irrigated. "Spray" type irrigation is permissible only on medians with drainage inlet and inflow curb and gutter as specified on the final development plan documents. 9. The Developer hereby indemnifies and holds the City harmless from any damage caused to the roadway (concrete, asphalt, curb and gutter) when such damage is caused, directly or indirectly, by the acts or omissions of the Developer in irrigating the landscaping within the medians on Rock Creek Drive, Corbett Drive and/or the medians within the four traffic circles internal to this development site. Notwithstanding any provision in this Agreement to the contrary, this indemnity may be assigned only to a bonafide homeowner's association which has lawfully assumed the irrigation obligation from the Developer and only if such assignment is in writing and duly and lawfully executed by such homeowner's association and approved in writing by the City. 10. The Developer is responsible for the inspection and rating of the three box culverts across the McClelland Channel on Corbett Drive, Old Mill Road, and Ziegler Road in accordance with State of Colorado criteria. Said inspection and rating shall include a Load Factor Rating Summary and Maintenance Activities Report conducted by a State of Colorado approved party not affiliated with the design or construction of said box culverts. This report must be submitted to the City and must be accepted by the City as demonstrating that the design and construction meets acceptable standards and efficient for HS-20 design loading prior to any City acceptance of the box culvert structures. 11. 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). 12. The Developer is responsible for the maintenance of any pedestrian facilities located within Tract L of Block 22, Tract M of Block 24, and/or Tract N of Block 13. Said maintenance responsibilities for the pedestrian facilities apply to all pedestrian amenities lying with the dedicated tracts, including, without limitation, all sidewalks and pedestrian bridges. 10 13. The Developer shall not be issued a building permit for Lot 3 of Block 21 until: (1) the temporary turnaround easement on this lot is vacated, (2) the street improvements in front of the lot are completed including curb, gutter, and sidewalk, and (3) County Fair Lane has been completed with either City approved temporary turnarounds, or permanent cul-de-sacs, or extended to become a through street in accordance with City standards. 14. In conjunction with Phase 2 as described in the final development plan documents, the Developer is responsible for the construction of the off -site sidewalk and sidewalk ramps along the west side of Corbett Drive adjacent to the Preston Junior High school site (approximately 250 feet in length) in accordance with City standards, where said sidewalk does not presently exist. 15. The Developer and the City agree that all lots that front the collector roadways, (Rock Creek Drive and Corbett Drive) shall not have vehicular (driveway) access off of said collector roadways. 16. All phases must be constructed in numeric succession and no construction can occur on any given phase until improvements to the proceeding phase have been completed. No building permits will be issued within Phases 2 and 3 until the streets and utility facilities within the preceding Phases have been completed in accordance with Section I.C. of this agreement. 17. The Developer's obligation to construct the north half of Harvest Park Lane is limited to improvements from the back of curb to the street centerline (sidewalk is not required of the Developer along the north half of Harvest Park Lane.) The Developer agrees that any construction along Harvest Park Lane requires that at a slope easement be obtained from the affected property owner(s) along the north boundary adjacent to this roadway. The Developer cannot construct the roadway until the City receives said easements. If the Developer cannot obtain said easements then the Developer shall prepare revisions, to the utility plans that allows the roadway to be built without any offsite work, and must obtain City approval of said revisions prior to constructing the roadway. 18. The Developer agrees that the four traffic circle medians internal to this development are subject to the sight distance easement restriction language as specified in the final development plan documents. 19. Following completion of all public infrastructure improvements, the Developer shall continue to have responsibility for maintenance and repair of said improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code of the City. E. Natural Resources 11 1. The Developer and the City agree that following the McClelland Channel improvements the site will be assessed for the effectiveness of the project. The Developer shall also ensure that all vegetation within the channel is properly maintained for a three (3) year period following construction thereof to ensure that the vegetation and hydrologic regime are fully established. Monitoring of the vegetation shall occur in June and September of the first growing season and in late summer of the remaining growing seasons. The status and effectiveness of the vegetation shall be evaluated and the results shall be reported to the City. The Developer shall be responsible for all seeded areas for a period of three (3) growing seasons from the date of completion or until the plant establishment criteria as set forth in Paragraph (2) below are met, whichever is later. 2. All seeded areas shall be inspected jointly by the Developer and the City at the intervals specified herein. Areas seeded in the spring shall be inspected for required coverage the following fall not later than October 1. Areas seeded at any other time shall be inspected the following two summers not later than August 1. The required coverage for the first inspection shall be ten (10) viable live seedlings of the specified species per 1000 square centimeters (approximately one square foot), or fifty percent (50%) coverage of the specified foliage as measured from five feet (5) directly overhead, with no bare spot larger than 1000 square centimeters. At the time of the second growing season inspection, there shall be seventy-five percent (75%) foliage cover of the specified species planted as measured from five (6) directly overhead. No more than ten percent (10%) of the species noted on the site may be weedy species as defined by Article III, Section 20-41 of the Code of the City of Fort Collins. Determination of required coverage will be based on fixed transects each ten meters in length, randomly placed in representative portions of the seeded areas, with plant species or bare ground/rock/litter being noted every ten (10) centimeters along each transect. The Developer shall warrant all seeded areas for two growing seasons from the date of completion. The Developer shall rework and reseed per original specifications any areas that are dead, diseased, contain too many weedy species, or fail to meet the coverage requirement at no additional cost to the City. 3. The Developer and the City agree that the Developer shall delineate all Limits of Development with orange construction fence prior to any type of construction including over lot grading. 4. Fueling facilities shall be located at least one hundred (100) feet from any body of water, wetland, natural drainageway or manmade drainageway. The fuel tanks and fueling area must be set in a containment area that will not allow a fuel spill to directly flow, seep, runoff, or be washed into a body of water, wetland or drainageway. F. Ground Water, Subdrains and Water Rights 1. The City shall not be responsible for, and the Developer, for itself and its iPA successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the Development as a result of ground water seepage or flooding, structural damage, or other damage unless such damages or injuries are sustained as a result of the City's failure to properly maintain its storm drainage facilities in the Development. 2. If the development includes a subdrain system, any such subdrain system, whether located within private property or within public property such as street rights -of -way or utility or other easements, shall not be owned, operated, maintained, repaired or reconstructed by the City and it is agreed that all ownership, operation, maintenance, repair and reconstruction obligations shall be those of the Developer or the Developer's successor(s) in interest. Such subdrain system is likely to be located both upon private and ,public property and, to the extent that it is located on public property, all maintenance, operation, repair or reconstruction shall be conducted in such a manner that such public property shall not be damaged, or if damaged, shall, upon completion of any such project, be repaired in accordance with then existing City standards. The City shall not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the development as the result of groundwater seepage or flooding, structural damage or other damage resulting from failure of any such subdrain system. 3. Without admitting or denying any duty to protect water rights, the Developer, for itsf:lf and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries to water rights caused, directly or indirectly by the construction, establishment, maintenance or operation of the Development. 4. The City agrees to give notice to the Developer of any claim made against it to which the foregoing indemnities and hold harmless agreements by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided the Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause the forgoing indemnities and hold harmless agreements by the Developer to not apply to such claim and such failure shall constitute a release of the foregoing indemnities and hold harmless agreements as to such claim. G. 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. H. Development Construction Permit 13 1. The Developer shall apply for and obtain a Development Construction Permit for this Development, in accordance with Division 2.6 of the Land Use Code (or Section 29-12 of the Transitional Land Use Regulations, if applicable), prior to the Developer commencing construction. The Developer shall pay the required fees for said Permit and construction inspection, and post security to guarantee completion of the public improvements required for this Development, prior to issuance of the Development Construction Permit. I. Maintenance and Repair Guarantees 1. The Developer agrees to provide a two-year maintenance guarantee and a five-year repair guarantee covering all errors or omissions in the design and/or construction of the public improvements required for this Development, which guarantees shall run concurrently and shall commence upon the date of completion of the public improvements and acceptance thereof by the City. More specific elements of these guarantees are noted in Exhibit "C." Security for the maintenance guarantee and the repair guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use Regulations, as applicable. Notwithstanding the provisions of paragraphs III (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 or entity unless the warranted improvements are completed by, and a letter of acceptance of the warranted improvements is received from the City by, such other person or entity. III. Miscellaneous A. The Developer agrees to provide and install, at its expense, adequate barricades, warning signs and similar safety devices at all construction sites within the public right-of-way and/or other areas as deemed necessary by the City Engineer and Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been completed. B. As required pursuant to Chapter 20, Article IV of the City Code, the Developer shall, at all times, keep the public right-of-way free from accumulation of waste material, rubbish, or building materials caused by the Developer's operation, or the activities of individual builders and/or subcontractors; shall remove such rubbish as often as necessary, but no less than daily and; at the completion of the work, shall remove all such waste materials, rubbish, tools, construction equipment, machinery, and surplus materials from the public right-of-way. The Developer further agrees to maintain the finished street surfaces so that they are free from dirt caused by the Developer's operation or as a result of building activity. Any excessive accumulation of dirt and/or construction materials shall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until the problem is corrected to the satisfaction of the City Engineer. If the Developer fails to adequately clean such streets within two (2) days after 14 receipt of written notice, the City may have the streets cleaned at the Developer's expense and the Developer shall be responsible for prompt payment of all such costs. The Developer also agrees to require all contractors within the Development to keep the public right-of-way clean and free from accumulation of dirt, rubbish, and building materials. C. The Developer hereby agrees that it will require its contractors and subcontractors to cooperate with the City's construction inspectors by ceasing operations when winds are of sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the public health and welfare. D. The Developer shall, pursuant to the terms of this Agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the final development plan documents, or any documents executed in the future that are required by the City for the approval of an amendment to a development plan, and the City may withhold (or to the extent permitted by law, revoke) such building permits and certificates of occupancy as it deems necessary to ensure performance in .accordance with the terms of this Development Agreement. The processing and " irouting for approval" of the various development plan documents may result in certain of said documents carrying dates of approval and/or execution that are later than the date of execution of this Development Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of this Agreement. The developer hereby waives any right to object to any such discrepancy in dates. E. Nothing herein contained shall be construed as a waiver of any requirements of the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable) and the Developer agrees to comply with all requirements of the same. F. In the event the City waives any breach of this Agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. G. All financial obligations of the City arising under this agreement that are payable after the current fiscal year are contingent upon funds for that purpose being annually appropriated, budgeted and otherwise made available by the Fort Collins City Council in its discretion. H. This Agreement shall run with the Property and shall be binding upon and inure to the benefit of the parties hereto, their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. I. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the Developer shall be released from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. J. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. K. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney's fees and costs incurred by reason of the default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph III.D of this Agreement. L. Except as may be otherwise expressly provided herein, this Agreement shall not be construed as or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever. M. It is expressly understood and agreed by and between the parties hereto that this Agreement shall be governed by and its terms construed under the laws of the State of Colorado and the City of Fort Collins, Colorado. N. Any notice or other communication given by any party hereto to any other party relating to this Agreement shall be hand -delivered or sent by certified mail, return receipt requestedl, addressed to such other party at their respective addresses as set forth below; and such notice or other communication shall be deemed given when so hand - delivered or three (3) days after so mailed: If to the City: Engineering Development Review City of Fort Collins P.O. Box 580 Fort Collins, Co 80522 With a copy to: City Attorney's Office City of Fort Collins 16 P.O. Box 580 Fort Collins, Co 80522 If to the Developer: Darwin Horan The Writer Corporation 6061 S. Willow Drive, Suite 232 Englewood, CO 80111 With a copy to: Dino DiTullio Everitt Enterprises, Inc. PO BOX 2125 Fort Collins, CO 80522 Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees or assigns, wishes to change the person, entity or address to which notices under this Agreement are to be sent as provided above, such party shall do so by giving the other parties to this Agreement written notice of such change. 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, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto pertaining to the matters addressed in this Agreement. There shall be deemed to be no other terms, conditions, promises, understandings, statements, representations, expressed or implied, concerning this Agreement, unless set forth in writing signed by all of the parties hereto. Further, paragraph headings used herein are for convenience of reference and shall in no way define, limit, or prescribe the scope or intent of any provision under this Agreement. THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: Q-0— I . 'k City Wnager ATTEST: "V n ^ � `� City Clerk APPROVED AS TO CONTENT: 17 City Engineer APPROV AS TO FORM: Deputy City Attorney U DEVELOPER: Corporation �Cprporation I lu 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. 19 A. The terms of this Agreement shall govern all development activities of the Developer pertaining to the Property. For the purposes of this Agreement, "development activities" shall include, but not be limited to, the following: (1) the actual construction of improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or appearance of the Property caused by, or on behalf of, the Developer with the intent to construct improvements thereon. B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the 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 reexamination. The City may then require the Developer to comply with the approved standards and specifications of the City on file in the office of the City Engineer at the time of the resubmittal. C. No building permit for the construction of any structure within the Property shall be issued by the City until the public water lines and stubs to the subject lot, fire hydrants, sanitary sewer lines and stubs to the subject 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 6 EXHIBIT "B" The Development Agreement for Harvest Park — PDP, City of Fort Collins, Larimer County, Colorado. The following cost estimates for "McClelland Channel' improvements constitute costs associated with major drainage improvements that are eligible for repay to the developer. These costs are based on analysis presented to the City by Sear Brown for Structural Improvements on March 22, 2000; and by Vignette Studios on April 18, 2000 for the "Enhanced Landscaping" Improvements. The City shall make payments to the Developer on the basis of actual costs as submitted by the Developer, based on actual Contractor Invoices within 60 days from submittal of invoices. The City reimbursed costs for Structural Improvements (Riffle Pools and Drop Structures) shall not exceed the maximum amount of $83,403.00 as detailed and listed below. The City reimbursed costs for "Enhanced Landscaping" Improvements (Trees and Shrubs) shall not exceed the maximum amount of $24,006.25 as detailed and listed below. NA McClellands Channel Improvements for Harvest Park Cost estimate for Riffle Pools, Drop Structures and Enhanced Landscaping Riffle Pools and Drop Structures costs calculated by: Jim Allen -Morley, PE of Sear Brown, March 22, 2000 Enhanced Landscaping Costs calculated by Terence Hoaglund, ASLA of Vignette Studios, April 18, 2000 Structural Channel Improvements (Riffle Pools and Drop Structures): Item Unit Unit Cost 4TY _ Total $ Cost $ Two Riffle Pools Dewatering L.S. $2,000.00 1 $2,000 Grout Ground Water barrier L.S. $1 ,000.00 1 $1 ,000 Type II Bedding Type L River Rock(Installation) 3'to 4' River Rock(installation) ton C.Y. C.Y. $20.40 $35.00 $35.00 5 203 116 $103 $7,097 $4,044 Type L River Rock(material) ton $46.00 15 $700 3'to 4' River Rock(Material) ton $21.00 254 $5.339 Subtotal $20,283.33 11 Control Structures Dewatering L.S. $2.000.00 1 $2,000 Type L River Rock(installation) 3'to 4' River Rock(installation) C.Y. C.Y. $35.00 $35.00 517 276 $18.083 $9.644 Type L River Rock(material) ton $48.00 39 $1,783 T to 4' River Rock(Material) ton $21.00 606 $12.731 Engineering L.S. $6,000.00 1 $6.000 Surveying L.S. $2,000.00 1 $2,000 Subtotal $52,241 Subtotal $72,524 15% cont $10.879 Total $83,403 21 Enhanced Landscaping Improvements: Item Size Units CITY (Total) 112 of QTY Unit Cost Ci 's Share ($) TOTAL ($) Deciduous Shade Trees 2" CAL ea 82 41 200 8200 Coniferous Trees 6-8' B&B ea 34 17 250 4250 Deciduous Shrubs 5 Gal ea 674 337 25 8425 Subtotal $20,875 15%Contigency $3,131.25 Total Landscaping $24,006.25 Maximum Reimbursable Amount by the City for all McCllelland Channel Improvements (Including contingency) Total Structural $83,403.00 Total Landscaping $24,006.25 Total Channel Improvements $107,409.25 22 EXHIBIT "C" Refer to the Final Plat for this Development 23 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 department's approval. The Developer agrees to correct any deficiencies in such installations in order to meet the requirements of the plans and/or specifications applicable to such installation. In case of conflict, the final development plan documents shall supersede the standard specifications. H. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the; City in its Drainage Master Plans and Design Criteria. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainage or seepage waters from the Property in a manner or quantity different from that which was historically discharged and caused by the design or construction of the storm drainage facilities, except for (1) such claims and damages as are caused by the acts or omissions of the City in maintenance of such facilities as have been accepted by the City for maintenance; (2) errors, if any, in the general concept of the City's master plans (but not to include any details of such plans, which details shall be the responsibility of the Developer); and (3) specific written or otherwise documented directives that may be given to the Developer by the City. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreernent as to such claim. Approval of and acceptance by the City of any storm drainage facility design or construction shall in no manner be deemed to constitute a waiver or relinquishment by the City of the aforesaid indemnification. The Developer shall engage a Colorado licensed professional engineer to design the storm drainage facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be intended for the benefit of the City, and subsequent purchasers of property in the Development. I. The Developer shall pay storm drainage basin fees in accordance with Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for credit or City repayment under the provisions of Chapter 26 are described together with the estimated cost of the improvements on the attached Exhibit "B," which improvements, if 3 applicable, shall include right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. J. The Developer shall provide the City Engineer with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construction. Utilities will not be initially accepted prior to as -built drawings being submitted to and approved by the City of Fort Collins. K. The Developer specifically represents that to the best of its knowledge all portions of the Property dedicated (both in fee simple and as easements) to the City associated with this Development are in compliance with all environmental protection and anti -pollution laws, rules, regulations, orders or requirements, including solid waste requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such portions of the Property as are dedicated to the City pursuant to this Development, are in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer, for itself and its successor(s) in interest, does hereby indemnify and holld harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority or any third party, pertaining to the disposal of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfill of hazardous substances, pollutants or contaminants, or environmental cleanup responsibilities of any nature whatsoever on, of, or related to any property dedicated to the City in connection with this Development, provided that such damages or liability are not caused by circumstances arising entirely after the date of acceptance by the City of the public improvements constructed on the dedicated property, except to the extent that such circumstances are the result of acts or omissions of the Developer. Said indemnification shall not extend to claims, actions or other liability arising as a result of any hazardous substance, pollutant or contaminant generated or deposited by the City, its agents or representatives, upon portions of the Property dedicated to the City in connection with this Development. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice! of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. H. Special Conditions 4 A. Water Lines Not Applicable B. Sewer Lines Not Applicable C. Storm Drainage Lines and Appurtenances 1. All the storm drainage improvements associated with Phase 1 of this development, 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 more than 8 building permits in Phase 1 of this Development. No building permits shall be issued in Phase 2 of this Development prior to completion of the "McClelland's Channel" improvements as shown in the approved development plan documents. No more than 55 building permits shall be issued in Phase 2 of this development prior to completion of all drainage facilities associated with Phase 2 of this development as shown on the approved development plan documents. No more than 59 building permits shall be issued in Phase 3 of this development prior to the completion of all drainage facilities associated with Phase 3 of this development as shown on the approved development plan documents. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that said drainage facilities have been constructed in conformance with said final development plan documents. Certification shall be submitted to the City at least two weeks prior to the date of issuance of additional building permits as specified in this paragraph. 2. The Developer shall be responsible for maintaining the structural integrity and operational functions of all drainage facilities throughout the build -out of this Development. If at any time following certification (as required pursuant to paragraph one (1) above) of said drainage facilities and during the construction of structures and /or lots within this Development the City deems that said drainage facilities no longer comply with the approved plains, the developer shall bring such facilities back up to the standards and specifications as shown on the approved plans. Failure to maintain the structural integrity and operational function of said drainage facilities following certification shall result in the withholding of the: issuance of additional building permits and/ or certificates of occupancy until such drainage facilities are repaired to the operational function and structural integrity which was approved by the City. 3. The Developer agrees to provide and maintain erosion control improvements as shown on the 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 $84,891.00 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, notwithstanding any provisions contained in paragraph III(J) to the contrary, the City may enter upon the Property for the purpose of making such improvements and undertaking such activities as may be necessary to ensure that the provisions of said plans and the Criteria are properly enforced. The City may apply such portion of the security deposit(s) as may be necessary to pay all costs incurred by the City in undertaking the administration, construction, and/or installation of the erosion control measures required by said plans and the Criteria. In addition, the City shall have the option to withhold building permits and certificates of occupancy, as stated in Paragraph III.D of this Agreement, as it deems necessary in order to ensure that the Developer installs and maintains the erosion control measures throughout the build -out of this Development. 4. It is important that all lots be graded to drain in the configuration shown on the approved final development plan documents. For this reason the following additional requirements shall be followed for building on all lots: Prior to the issuance of a certificate of occupancy for any lot in this development, the Developer shall provide the City with certification that the lot has been graded correctly (including the grading of any minor swales, if applicable); the lot corner elevations specified on the approved final development plan documents are correct and in accordance with the approved final development plan documents; and the minimum floor elevation for all buildings constructed on said lot has been completed in accordance with the approved final development plan documents. Said certification shall be completed by a Colorado licensed professional engineer and shall be submitted to the City at least two weeks prior to the date of issuance of the; desired certificate of occupancy. 5. Some lots 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 houses built on such lots. In order to provide the assurance that said houses built on said lots 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 house. Prior to the issuance of a certificate of occupancy for each of lots 21 through 28 Block 13, lots 1 through 16 Block 22, lots 13 through 16 Block 24; the Developer shall provide certification from a professional engineer licensed in Colorado that the lowest opening to any house built on said lots 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 II.C.1. above. 6. 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 0 development of lots, whether by the Developer or other parties. The City reserves the right to withhold the issuance of building permits and certificates of occupancy for this Development until the City has approved such changes as being acceptable for the safe and efficient delivery of storm drainage water. 7. 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. 8. The City shall maintain all City owned property within the McClelland Channel area except for the bike/pedestrian path. The Developer and the City agree that the bike/pedestrian path and all associated channel crossing improvements which crosses the City owned property shall be maintained by the Developer. 9. The installation of the channel improvements commonly known as the "McClelland Channel" being constructed by this project shall be the responsibility of the Developer. The City shall reimburse the Developer for the costs associated with building the drop structures in the McClelland Channel, and for half of the landscaping costs associated with the construction of the McClelland Channel, which costs are referred to as "Enhanced Landscaping" costs. The "Enhanced Landscaping" costs shall be defined as the costs of the trees and shrubs being placed in the "McClelland Channel' area. The City shall reimburse the Developer the costs of the installation of two riffle pools and 11 grade control structures in the channel area, which costs are estimated by the developer's engineer to be $72,524.00 as detailed in "Exhibit B" attached. The City shall reimburse the Developer for this construction based on actual costs, as long as these costs do not exceed the estimated $ 72,524.00 plus a 15% contingency. Thus, the reimbursement by the City for these structures shall not exceed the sum of $ 83,472.00. The City shall also reimburse the Developer for up to half of the costs of installing the "Enhanced Landscaping" in the channel. The City shall reimburse the Developer for its share of the "Enhanced Landscaping" based on actual costs, as long as these costs do not exceed the sum of $24,006.25. This sum represents the City's share of the "Enhanced Landscaping" costs plus a 15 % contingency based on the submitted estimate by the landscape architect for this Development as detailed and listed in "Exhibit B" attached. Said channel improvements and "Enhanced Landscaping" must be certified and accepted by the City prior to any reimbursement. 10. The City shall reimburse the Developer as required pursuant to Paragraph 9 above, within 60 days from submittal of invoices provided that the City has available funds appropriated for that purpose at the time these invoices are submitted. If not, the City shall reimburse the Developer promptly after funds are appropriated for that purpose, subject to the provisions of Paragraph III (G) of this Agreement. These invoices shall be the actual Contractor submitted invoices. 11. The provisions of this agreement dealing with the repay of the II "McClelland Channel" improvements shall become effective only if the Developer of this subdivision completes the actual improvements in accordance with paragraph II.C.9 above. If the improvements are built by a third party then, no reimbursement shall be due to the Developer of Harvest Park and any provisions of this Development Agreement that deal with the repay for "McClelland Channel" Improvements, including "Exhibit B" attached, shall be null and void. 12. The Developer shall warranty the installation of all vegetation within the McClelland Channel for a period of 3 years from date of installation. 13. The City shall assume maintenance of the channel upon completion of the channel improvements and acceptance by the City of these improvements. The City shall accept these improvements upon certification by a licensed professional engineer in the state of Colorado that these improvements were built in accordance with the approved development plan documents and upon verification that the installed vegetation in the channel area has been stabilized. D. Streets. 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Rock Creek Drive, Corbett Drive, and Ziegler Road (formerly County Road 9) for those portions of said street abutting the Property as shown on the approved final development plan documents. Reimbursement for Corbett Drive and Rock Creek Drive shall be for oversizing the street from local (access) standards to collector standards. Reimbursement for Ziegler Road shall be for oversizing the street from local (access) standards to minor arterial standards. The City shall make reimbursement to the Developer for the aforesaid oversized street improvements in accordance with Section 24-112 of the Code of the City. The Developer agrees and understands that the City shall have no obligation to make reimbursement payments for street oversizing unless funds for such payments shall first have been budgeted and appropriated from the Street Oversizing Fund by the City Council; and the Developer further understands that to the extent that funds are not available for such reimbursement, the City may not, in the absence of the Developer's agreement, require the construction, at the Developer's expense, of any oversized portion of streets not reasonably necessary to offset the traffic impacts of the Development. The Developer does hereby agree to construct the aforesaid oversized street improvements with the understanding that the Developer may not be fully reimbursed by the City for the cost of such construction. The Developer further agrees to accept payment in accordance with Section 24-112 (d) of the Code of the City as full and final settlement and complete accord and satisfaction of all obligations of the City to make reimbursements to the Developer for street oversizing expenses. It is anticipated by the City that the City's reimbursement, in accordance with Section 24-112 (d), would not be less than fifty percent (50%) of the Developer's actual expenses incurred and will be calculated in accordance with the formula as set forth in Section 24-112 (d). f3 2. It is understood that the improvements that are to be constructed in the public right-of-way as described in this Section II(D) are "City improvements" (as defined below) and, as such, any contract for the construction of the same must be executed in writing. If the cost of such improvements exceeds the sum of Thirty Thousand Dollars ($30,000), the contract for the construction of the same must be submitted to a competitive bidding process resulting in an award to the lowest responsible bidder; and evidence must be submitted to the City prior to the commencement of the work showing that the award was given to the lowest responsible bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the contract for the construction of the improvements must be insured by a performance bond or other equivalent security. For purposes of this paragraph, the term "City improvements" shall mean either (1) existing improvements owned by the City that are to be modified or reconstructed, or (2) any improvements funded in whole or in part by the City. 3. The Developer agrees that no street oversizing reimbursement shall be due for Old Mill Road and Harvest Park Lane and, in accordance with Section 24- 112(2), all additional expense to Rock Creek Drive and Corbett Drive as a result of the addition of the Developer requested street medians and the traffic circle intersections, shall not be reimbursable. 4. The Developer agrees that prior to the issuance any building permits in Phase 1, the Developer shall have completed construction of Ziegler Road, adjacent to the entire development site as shown on the approved final development plan documents. 5. The Developer agrees that prior to the release of more than 57 (fifty- seven) building permits in Phase 2 and any building permits in Phase 3, the Developer shall have completed construction of Corbett Drive across the McClelland Channel and the pedestrian trail system (including the pedestrian bridge) adjacent to the channel, internal to Phase 2. Type III barricades shall be installed at the termination of Corbett Drive across the channel (if Corbett Drive south of the culvert and McClelland Channel has not been completed at this time) and at the termination of the pedestrian trail system. The construction obligations outlined herein shall be completed as shown on the approved final development plan documents. 6. Prior to the release of more than 51 (fifty-one) building permits in Phase 3, the Developer shall have completed construction of Old Mill Road across the McClelland Channel and the pedestrian trail system (including improvements to the existing pedestrian crossing) adjacent to the channel, internal to Phase 3. Type III barricades shall be installed at the termination of Old Mill Road across the channel (if Old Mill Road south of the culvert and the McClelland Channel has not been completed at this time.) The construction obligations outlined herein shall be completed as shown on the approved final development plan documents. 7. The landscaping located in the medians within Rock Creek Drive, Corbett Drive and the four traffic circle medians internal to this development shall not be {7