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HomeMy WebLinkAboutOVERLOOK PUD FIFTH - Filed DA-DEVELOPMENT AGREEMENT - 2004-01-12DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into this %l- day of S ;"? A, 2000, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" Overlook Development Company, a Colorado limited liability company, hereinafter referred to as the "Developer." WITNESSETH: WHEREAS, the Developer is the owner of certain real property situated in the County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property" or "Development") and legally described as follows, to wit: Overlook Fifth Filing P.U.D. (The Overlook/Seneca Center at Arapahoe Farm, Final P.U.D.), located in the Southwest Quarter of Section 34, Township 7 North and the Northwest Quarter of Section 3, Township 6 North all in Range 69 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: General Conditions A. The terms of this Agreement shall govern all development activities of the 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. 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, and throughout the build - out of this Development, the Developer shall provide and maintain at all times an accessway to said building or buildings. Such accessway shall be adequate to handle any emergency vehicles or equipment, and the accessway shall be kept open during all phases of construction. Such accessway shall be constructed to an unobstructed width of at least 20 feet with 4 inches of aggregate base course material compacted according to city standards and with an 80 foot diameter turnaround at the building end of said accessway. The turnaround is not required if an exit point is provided at the end of the accessway. Prior to the construction of said accessway, a plan for the accessway shall be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for review and processing.) If such accessway is at any time deemed inadequate by the Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into compliance and until such time that the accessway is brought into compliance, the City and/or the Poudre Fire Authority may issue a stop work order for all or part of the Development. G. Footing and Foundation Permits 1. Notwithstanding any provision in this Agreement to the contrary, the Developer shall have the right to obtain a Footing and Foundation permit upon the installation of all underground water, sanitary sewer, and storm sewer facilities, and an emergency accessway for the Phase in which the permit is being requested. Facilities shall include but not be limited to all mains, lines, services, fire hydrants and appurtenances for the site as shown on the final development plan documents. IM H. Development Construction Permit 1. The Developer shall apply for and obtain a Development Construction Permit for this Development, in accordance with Division 2.6 of the Land Use Code (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 mat&als, 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 11 materials shall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until the problem is corrected to the satisfaction of the City Engineer. If the Developer fails to adequately clean such streets within two (2) days after receipt of written notice, the City may have the streets cleaned at the Developer's expense and the Developer shall be responsible for prompt payment of all such costs. The Developer also agrees to require all contractors within the Development to keep the public right-of-way clean and free from accumulation of dirt, rubbish, and building materials. C. The Developer hereby agrees that it will require its contractors and subcontractors to cooperate with the City's construction inspectors by ceasing operations when winds are 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 "routing for approval" of the various development plan documents may result in certain of said documents carrying dates of approval and/or execution that are later than the date of execution of this Development Agreement or the Memorandum Of Agreement (if any) recorded to give record notice of this Agreement. The developer hereby waives any right to object to any such discrepancy in dates. E. Nothing herein contained shall be construed as a waiver of any requirements of the City Code, 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 12 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 parity'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 requested, addressed to such other party at their respective addresses as set forth below; and such notice or other communication shall be deemed given when so hand - delivered or three (.3) days after so mailed: If to the City: Engineering Development Review City of Fort Collins P.O. Box 580 Fort Collins, Co 80522 13 With a copy to: City Attorney's Office City of Fort Collins P.O. Box 580 Fort Collins, Co 80522 If to the Developer: Overlook Development Company, LLC 4714 Valley Ridge Court Fort Collins, CO 80526 With a copy to: Joseph H. Fonfara Hasler, Fonfara and Maxwell LLP 125 South Howes, Sixth Floor P.O. Box 2267 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. Theire 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: (2� I . /L-jj s City N116nager 1 City Clerk APPROVED AS TO CONTENT: 14 1-� City Enginee APPROV AS TO FORM: Deputy City Attorney DEVELOPER: Overlook Development Company, LLC By: David Piet, npo , Manager AI Alexander, Manager 15 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. 16 EXHIBIT "B" Not Applicable EXHIBIT "C" Refer to the Final Plat for this Development Transportation Services DEVELOPMENT CONSTRUCTION PERMIT Permit Number: 01-13 Issuance Date: -/ - Project Name: ___ Overlook Fifth Filing P.U.D. Project A. K.A.: The Overlook/Seneca Center at Arapahoe Farm, Final P.U.D. or The Overlook Convenience Center Project Location: _southwest corner of Harmony Road and Seneca Street Permittee: Felix Boias. Wheeler Construction Services City and developer contacts: See attached Exhibit A "for names and phone numbers of all contact persons for this project. Fees: Permit Application Fee (paid at the time of application) $ 300.00(pd.) Construction Inspection Fee (paid prior to issuance of this permit) $ 4716.08 Total $ 5016.08 Development Bond or other approved security: Amowrt of security deposited with the City to guarantee the completion of all public improvements to be constructed as shown on the approved plans for the development. $ 103.672.13 Form of security deposited with the City: Letter of Credit PERFORMANCE REQUIREMENTS OF THIS PERMIT: I. '['lie Permittee shall be responsible to require their Project Engineer to incorporate into all design drawings and specifications the certification of all materials testing by an Engineer. The Permittee shall have an Engineer prepare revised design drawings and secure City approval for all revisions to the Utility flans and related documents. The Permittee shall have an Engineer represent_ as required by the City in the Development Agreement, that the improvements are constructed in Colltormancc with the approved Utility Plans and the standards and specifications of the City. The Permittee shall provide "as -constructed° plans prepared by an Engineer prior to the City's acceptance of the constructed p�uhlic improvements. (All references above to the terms "Project Engineer" and "I(ngincer" shall mean a Professional Lngineer licensed in Colorado.) 2. All contractors who perform work on this project must be bonded and licensed in conformance with City requirements. 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 each lot, fire hydrants, sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and pavement with at least the base course completed) serving such structure have been completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred and sixty feet (660') from a single point of access, unless the structures contain sprinkler systems that are approved by the Poudre Fire Authority. D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets described on Exhibit 'A," attached hereto, shall be installed within the time and/or sequence required on Exhibit "A." If the City Engineer has determined that any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the utility plans and shall be installed by the Developer within the time as established under "Special Conditions" in this document. E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by this Development as shown on the approved final development plan documents and other approved documents pertaining to this Development on file with the City. F. Street improvements shall not be installed until all utility lines to be placed therein have been completely installed, including all individual lot service lines leading in and from the main to the property line. 2 City of Fort Collins Transportation Services Engineering Department DEVELOPMENT CONSTRUCTION PERMIT PernritNumber: 01-13 Issuance Date: Project Name: _ Overlook Fifth Filing P.U.D. _ Project A. K.A.: The Overlook/Seneca Center at Arapahoe Farm, Final P.U.D. or The Overlook Convenience Center Project Location: southwest corner of Ilarmony Road and Seneca Street Permittee: Felu-.Rojas Wheeler Construction Services City and developer contacts: See attached Fehibit 'A "for names and phone numbers of all contact persons for this project. Fees: Permit Application Fee (paid at the time of application) S 300.00(pd.) Construction Inspection Fee (paid prior to issuance of this permit) S 4716.08 'Total S 5016.08 Development Bond or other approved security: Amount of security deposited with the City to guarantee the completion of all public improvements to be constructed as shown on the approved plans for the development. S 103.672.1 1 Form of security deposited with the City: Letter of Credit PERFORMANCE REQUIREMENTS OF THIS PERMIT: 1. 'fhc Permittee shad be responsible to require their Projcct Engineer to incorporate into all design drawings and specifications the certification of all materials testing by an l'ngineer. The Permittee shall have an ingineer prepare revised design drawings and secure City approval for all revisions to the Utility Plans and related documents The Permittee shall have an Engineer represent, as required by the City in the Development :agreement, that the improvements are constructed in conformance with the approved Utility Plans and the standards and specifications of the City. The Permittee shall provide "as -constructed" plans prepared by an Engineer prior to the City's acceptance of the consn'ucted public improvements. (All references above to the terms "Project Engineer" and "Fnginecr" shall mean a Professional Engineer licensed in Colorado.) 1. All contractors who perform work on this project must be bonded and licensed in conformance with City requirements. =N1 '.n rl h ,_i�il, .;c V.(" IIP I'C.!inc 7p0 "nrr('„I fins. '�.rl 90522'�1580 i1i01 21-:,05 • V\!-?70; Development Construction Permit. Page 2,5 3. Construction time restrictions: 4. The applicant understands that additional permits may be required for this development project and the applicant shall secure those permits directly from the issuing departments. 5. ['his permit, along with a complete set of all approved plans and documents for this project (utility plans, site plan. landscape plan, development agreement, soils report, pavement design, traffic safely, drainage report, plat easements and any other official documents), shall be kept on the development site availahle for use by City staff doing inspections. 6. Permit Expiration (in accordance with Section 29-12 of the Transitional land Use Regulations or Section 2.6.3(K) of the Land Use Code, whichever is applicable): a. If construction has not begun within sixty (60) days from the date of issuance of this permit, this permit shall expire and the applicant will forfeit the permit fee paid for this Permit, whereupon the applicant must re -apply for a new permit. b. In addition. this permit shall expire one year from the date of issuance. The applicant may apply for an extension by reapplication at least two weeks prior to the expiration date. Such application shall contain information SLIfliClent to justify the granting of the extension. An extension may be granted for up to six months. 7. Building permits and certificates of occupancy will only be issued when all conditions contained in the Development Agreement and Sections 33.2(C) and (D) of the Land Use Code or Sections 29- 678 and 29-679 ol'the Transitional Land U'sc Regulations_ whichever is applicable, are met. If the Development Agreement does not specify times for completion of public improvements, or i f there is no Development Agreement. then the improvement requirements specified in Section 24-95 of the City ('ode shall apply_ which provides that construction of all improvements shall be required prior to the lime of issuance ofthe first building permit. 9. Acceptance by the City of the public improvements shall be after (1) final inspection has been conducted by the City: (2) punch list items from the final inspection are completed and accepted by the City: and (3) required certifications from the licensed professional engineer that improvements arc completed to City standards, speci tications and approved Utility Plans; and the "as -constructed" plans have been received and accepted by the City. 9. The warranty on street improvements is for five (5) years from the date of acceptance by the City of the completed improvements. in accordance with Sections 29-13 and 29-14 of the Transitional Land Ilse Regulations and/or Sections 2.2.3(C)(3)(g)_ 3.3.l (C)(2), and 3.3.2(C) of the Land Use C'odc, as applicable. 10. The City Erosion Control Inspector must be notified at least twenty-four (24) hours prior to any Development Construction Permit, Page 3/5 planned construction on this project. All required perimeter silt fencing and other erosion/sediment control best management practices (BMP's) that can be installed prior to construction must be in place and inspected by the City Erosion Controltnspector before any land disturbing activity begins. 11. No work (including grading) shall be started in State Highway right-of-way until a permit is issued by the Colorado Department of Transportation to allow such work to begin. 12. Other conditions: Permittee's acknowledgment signature: By signing this permit 1 acknowledges that I am acting with the knowledge, consent, and authority of the owners of the property (including all owmets having legal or equitable interest in the real property. as delincd in Section 1-2 of the City Code: and including common areas legally connected to or associated with the property which is the subject of this application) without whose consent and authority the requested action could not lawfully be accomplished_ Pursuant to said authority. I hereby permit City officials to enter upon the property for purposes of inspection and, if necessary, to enter upon such property to perlotm work required of the applicant if the applicant were to fail to perform the required work. I also acknowledge that I have read this permit document with all its requirements and conditions. and I agree to all of the terms and conditions so stated in this permit. Applicant/Project Manager's Signature: Date: Approval fr)r issuance: City Engineer Approval: t iJ�il v Date: , , of (Permit Issuance Date) Development Construction Permit, Page 4/5 EXHIBIT "A" DEVELOPMENT PROJECT CONTACT PERSONS Name, address and numbers Project Name: Overlook Fifth Filing P.U.D. Project A.K.A.: The Overlook/Seneca Center at Arapahoe Farm Final P.U.D. City Staff Contact Persons: Development Engineer: Marc Virata 281 N. College, P.O. Box 580, F.C., CO 80522 970 221-6605 Construction Inspector: Dave Burke 281 N. College, P.O. Box 580, F.C., CO 80522 970 221-6605 Cell: 970 218-1740 Current Planner: Steve Olt 281 N. College, P.O. Box 580, F.C., CO 80522 970 221-6341 Water Utilities Engineer: Stormwater Utilities Engineer: Erosion Control Inspector: Roger Buffington 700 Wood Street, Fort Collins, CO 80521 970 221-6854 Glen Schlueter 700 Wood Street, Fort Collins, CO 80521 970 221-6065 Bob Zackley 700 Wood Street, Fort Collins, CO 80521 970 224-6063 Natural Resources: Kim Kreimeyer/Doug Moore 281 N. College, P.O. Box 580, F.C., CO 80522 970 221-6750 Traffic Operations: Eric Bracke 625 Ninth Street, Fort Collins. CO 80524 970 224-6062 Street closures: Syl Mireles Development Constriction Permit, Page 5/5 625 Ninth Street, Fort Collins, CO 80524 970 221-6815 Transportation Planning: Kathleen Reavis 210 E. Olive, Fort Collins, CO 80524 970 224-6140 Forestry: Tim Buchanan 291 N. College Avenue, Fort Collins, CO 80524 970 221-6641 Light and Power: Janet McTague 700 Wood Street, Fort Collins, CO 80521 970 224-6154 Developer' Contact Persons: Project Manager: Felix Rojas Wheeler Construction Services 1027 W. Horsetooth Ste. 200 970 225-9194 Cell: 970 290-4803 Owner(s): Dave Pietenpol / Al Alexander Overlook Development Company, L1,C 4714 Valley Ridge Court Fort Collins, CO 80526 Developer: Manager: Larry Hawe B.S.S., LLC, 2803 East Harmony Road Fort Collins, CO 970 229-0700 Architect/Planner: Project Engineer: Allan Gill Vignette Studios 144 N. Mason Ste. 2 Fort Collins, CO 80524 970 472 9125 Patricia Kroetch North Star Design, Inc. 1194 W. Ash St. Suite 13 Windsor, CO 80550 686-6939 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 clairn and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. Approval of and acceptance by the City of any storm drainage facility design or construction shall in no manner be deemed to constitute a waiver or relinquishment by the City of the aforesaid indemnification. The Developer shall engage a Colorado licensed professional engineer to design the storm drainage facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be intended for the benefit of the City, and subsequent purchasers of property in the Development. I. The Developer shall pay 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 applicable, shall iinclude right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. 3 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 hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority or any third party, pertaining to the disposal of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfill of hazardous substances, pollutants or contaminants, or environmental cleanup responsibilities of any nature whatsoever on, of, or related to any property dedicated to the City in connection with this Development, provided that such damages or liability are not caused by circumstances arising entirely after the date of acceptance by the City of the public improvements constructed on the dedicated property, except to the extent that such circumstances are the result of acts or omissions of the Developer. Said indemnification shall not extend to claims, actions or other liability arising as a result of any hazardous substance, pollutant or contaminant generated or deposited by the City, its agents or representatives, upon 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. II. Special Conditions A. Water Lines 0 Not Applicable B. Sewer Lines Not Applicable C. Storm Drainage Lines and Appurtenances 1. All on -site and off -site storm drainage improvements, as shown on the approved final development plan documents, shall be completed by the Developer in accordance with said final development plan documents prior to the issuance of any certificate of occupancy in the Development. Completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve this Development have been constructed in conformance with said final development plan documents. Said certification shall be submitted to the City at least two weeks prior to the date of issuance of any certificate of occupancy in the Development. 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 plans, 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 $5,700.00 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 5 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: a. Prior to the issuance of a certificate of occupancy for any lot 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 finish 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. The Developer shall obtain the City's prior approval of any changes from the approved final development plan documents in grade elevations and/or storm drainage facility configuration that occur as a result of the construction of houses and/or development of lots, whether by the Developer or other parties. The City reserves the right to withhold the issuance of building permits and certificates of occupancy for this Development until the City has approved such changes as being acceptable for the safe and efficient delivery of storm drainage water. 6. 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. D. Streets. 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Seneca Street and Harmony Road for those portions of said street abutting the Property as shown on the approved final development plan documents. Reimbursement for Seneca Street shall be for oversizing the sidewalk from local (access) standards to collector standards. Reimbursement for Harmony Road shall be for oversizing the sidewalk from local (access) standards to 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). 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 to reimburse the City the sum of $1,520.00, plus a percentage added to recognize the effects of inflation, for the cost to construct Harmony Road adjacent to the property. The inflation factor shall be calculated using the construction cost index for Denver as published in the Engineering News Record (ENR) of December, 1998, and the same index published in the ENR in the month preceding payment of the reimbursement. Payment shall be made to the City prior to the issuance of the first building permit. 4. 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). 5. The former Harmony Road street alignment along the southern boundary of the Development (known as Fromme Prairie Way in the final development 7 plan documents) is required to be built to City Standards, and will be accepted by the City as a private street. 6. It is the agreed intent of both the City (contingent upon City Council approval) and the Developer to vacate the former Harmony Road right-of-way along the southern boundary of this development. Due to remaining uncertainties surrounding future development in the general area, the City and the Developer agree to hold in abeyance the process of vacation of the right-of-way until such time that the parcel west of the existing Harmony Ridge P.U.D. (currently under City review as "Harmony Ridge Phase 2") has received approval by the pertinent City decision maker. Further, it is the agreed intent of both parties to provide a 40 foot wide utility, public and emergency access easement within the former Harmony Road right-of-way. Both parties agree that the intent of this easement is to provide public access to the Cathy Fromme Prairie trailhead and emergency access to Harmony Ridge Phase 2. Both parties agree that said right-of-way is not intended for future connections to Taft Hill Road or full public access to Harmony Ridge Phase 2 as it pertains to the current City approval for said parcel. The City recognizes that the Developer has made changes to the design of the alignment and width of Fromme Prairie Way, and inclusion of a residential (mixed) use component based on the agreements referenced herein. If for any reason, the intent of vacation of the former Harmony Road is changed during the City approval process; the City agrees to review certain commitments, specifically: a. If Fromme Prairie Way is not vacated or physically limited to trailhead and emergency access, Fromme Prairie Way will become a public street and the City agrees to enter into a reimbursement agreement with the Developer in accordance with Section 29-678 of the Transitional Land Use Regulations. If Fromme Prairie Way is not vacated or physically limited to trailhead and emergency access, the City agrees to consider, in accordance with its applicable land use regulations, a change in use from mixed use commercial and residential to commercial uses only. 7. The City Staff will initiate the vacation of the right-of-way for the former Harmony Road alignment at such time that the parcel west of the existing Harmony Ridge P.U.D. (currently under City review as "Harmony Ridge Phase 2"), has received approval by the pertinent City decision maker, without a vehicular second point of access for all modes of transportation from internal areas of said parcel to said roadway alignment. If the City Staff initiates the vacation of the right-of-way of said street alignment, such vacation may be approved only if the City Council determines that the Developer has complied, or is willing to comply with the following: a. A 40-foot wide public, utility and emergency access easement 0 shall be retained along the entire southern property boundary within the former right-of-way. b. The pavement design and construction standards for privately maintained streets shall be the same as the standards for public streets. Grades, alignments, and widths may be modified in accordance with accepted design principles, provided that safe access is maintained for all future owners, visitors, the general public and public safety officials and equipment. Such modifications from public street standards may be made only if approved by the City Engineer. Easements for access, utilities and drainage shall be dedicated to the public and clearly shown on the plat. 8 . Following completion of all public infrastructure improvements, the Developer shall continue to have responsibility for maintenance and repair of said improvements in accordance with Sections 29-13 and 29-14 of the Transitional Land Use Regulations of the City. E. Ground Water, Subdrains and Water Rights 1. The City shall not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the Development as a result of ground water seepage or flooding, structural damage, or other damage unless such damages or injuries are 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, repaiir 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 properly shall not be damaged, or if damaged, shall, upon completion of any such project, be repaired in accordance with then existing City standards. The City shall not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the development as the result of groundwater seepage or flooding, structural damage or other damage resulting from failure of any such subdrain system. 3. Without admitting or denying any duty to protect water rights, the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold 9