Loading...
HomeMy WebLinkAboutTHE PADS AT HARMONY FILING 1 - Filed DA-DEVELOPMENT AGREEMENT - 2007-11-28DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into this 2Ava day of 11449cm 2007, by and between the CITY OF FORT COLLINS. COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and Harmony Executive Park, LLC, a Colorado limited liability company, hereinafter referred to as the "Developer"; and Harmony Executive Park, LLC, a Colorado limited liability company, ARC Communities 2, LLC, a Delaware limited liability company, and Matrix Capital Bank, a Federal Savings Bank collectively hereinafter referred to as the "Owner." WITNESSETH: WHEREAS, the Developer has entered into an agreement with the Owner to develop certain real property situated in the County of Larimer. State of Colorado, (hereafter sometimes referred to as the "Property" or "Development") and legally described as follows, to wit: The Pads at Harmony, Filing 1, located in Section 32, Township 7 North, Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the Developer desires to develop the Property and has submitted to the City all plats, plans (including utility plans), reports and other documents required for the approval of a final plan according to the City's development application submittal requirements master list the "Final velopment ocuments") copies of on file in the office ( of the City Engineer l r and made apart Dhereof by reference; andich are 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 alnldsut hbe devel pedeandinstnolation of certain improvement to the City of Fort Collins as ally f benefit to the whole;primaand 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. 5. The Developer agrees to reimburse the City the sum of $20,120.86, plus a percentage added to recognize the effects of inflation, for the cost to construct the traffic signal at Harmony Road and Snow Mesa Drive 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 June 2006, 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. 6. The landscaping located in the Snow Mesa Drive traffic circle median shall not be 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. 7. 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 Snow Mesa Drive traffic circle median internal to this development site. Notwithstanding any provision in this Agreement to the contrary, this indemnity may be assigned only to a bonafide commercial property management 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 association and approved in writing by the City. 8. Notwithstanding any provision herein to the contrary, the Developer shall be responsible for all costs for the initial installation of traffic signing and striping for this Development, including both signing and striping related to the Developer's internal street operations and the signing and striping of any adjacent or adjoining local, collector or arterial streets that is made necessary because of the Development. 9. 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 1. Fueling facilities shall be located at least one hundred (100) feet from natural body of water, wetland, natural drainage way or manmade drainage way. The fuel tanks and fueling area must be set in a containment area that will not allow a fuel spill to directly flow, seep, run off, or be washed into a body of water, wetland or drainage way. 10 2. Prior to the commencement of and/or during any development activities within the limits of approved development, the Developer shall relocate or eradicate any prairie dogs inhabiting any portions of the site using City -approved methods as set forth in Chapter 4 of the City Code. If prairie dogs are present fumigation is best done between late April and early June and relocation shall occur prior to March 1 or after May 31 of any given year. F. Soil Amendment 1. In all areas associated with this Development that are to be landscaped or planted in accordance with the Final Development Plan Documents, and do not require a building permit, the soils shall be loosened and amended by the Developer in accordance with Section 3.8.21 of the Land Use Code of the City, prior to the issuance of any certificate of occupancy in this Development. Completion of soil amendments shall include certification by the Developer that the work has been completed. This certification shall be submitted to the City at least two (2) weeks prior to the date of issuance of any certificate of occupancy in this Development. G. Ground Water, Subdrains and Water Rights 1. The City shall not be responsible for, and the Developer (for itself and its successor(s) in interest) hereby agrees to indemnify and hold harmless the 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 proximately caused by the City's negligent operation or maintenance of its storm drainage facilities in the Development. However, nothing herein shall be deemed a waiver by the City of its immunities, defenses, and limitations to liability under the Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under any other law. 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. 11 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 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. H. Hazards and Emergency Access 1. No combustible material will be allowed on the site until a permanent water system is installed by the Developer and approved by the City. 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 100 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. 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 12 limited o all ces, fire ppurtenandcesfor the tsiteeas shown ton the Final sDevelopmentlP an Documents. and J. 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, 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. K. 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 "B." Security for the maintenance guarantee and the repair guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code. 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 "B" may not be assigned or transferred to anyother ther person of or entity unless the warranted improvements are completed by, 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 13 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 adequately clean such streets the satisfaction (2 the sitaftergre receipt of writtDenvnotce, ther e City may have the street streets within two el Y p 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 (or opthe l of an extent amendment to a development plan, and the Citymay permitted by law, revoke) such building permits and certificates of occupancy as it deems necessary to ensure performance in accordance with the ofms he various DevelopmentDevelopment Agreement. The processing and "routing for approval' 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 eCity waives any breach of this Agreement, no shall be held or construed to be waiver waa of any subsequent breach hereof. such waiver 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 14 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 parry'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 15 Fort Collins, CO 80522 With a copy to: City Attorney's Office City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 If to the Developer: Harmony Executive Park, LLC Attn: Gino Campana 3702 Manhattan Ave., Ste. 201 Fort Collins, CO 80526 If to the Owner: Harmony Executive Park, LLC Attn: Gino Campana 3702 Manhattan Ave., Ste. 201 Fort Collins, CO 80526 ARC Communities 2, LLC Attn: Scott Gesell 7887 East Belleview Avenue, Suite 200 Denver, CO 80111 Matrix Capital Bank Attn: Pat Howard 700 17`h Street, Suite 100 Denver, CO 80202 With a copy to: Hasler, Fonfara & Maxwell Attn: Mike Maxwell 125 S. Howes St. Fort Collins, CO 80521 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, 101 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. P. The Owner is made a party to this Agreement solely for the purpose of subjecting the Property to the covenants contained in this Agreement. The City and the Developer expressly acknowledge and agree that the Owner shall not be liable for any obligations of the Developer under this Agreement, unless the Owner were to exercise any of the rights of the Developer in which event the obligations of the Developer shall become those of the Owner. of A EST: City Clerk APPROVED AS TO CON { „ Cit gi r APPROVE TO FOR Deputy City Attorney THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: City Man er DEVELOPER: Harmony Executive Park, LLC., a Colorado limited li ility company By: 2i liz cc—z�h�- '6kjitampana, anager 17 OWNER: Harmony Executive Park, LLC a Colorado limited liability company By: Lm"panna,: anager OWNER: ARC Communities 2, LLC a Delaware limjted liabil� Matrix Capital Bank A Federal Savings Bank By: Pat Howard, xecuti Vice President 18 EXHIBIT "A" Schedule of electrical service installation. Electrical lines need to be installed prior to the installation of the sidewalk, curb returns, handicap ramps, paving and landscaping. If the Developer installs any curb return, sidewalk or handicap ramp prior to the installation of electrical lines in an area that interferes with the installation of the electrical line installation, the Developer shall be responsible for the cost of removal and replacement of those items and any associated street repairs. 2. Schedule of water lines to be installed out of sequence. Not Applicable. 3. Schedule of sanitary sewer lines to be installed out of sequence. Not Applicable. Schedule of street improvements to be installed out of sequence. Not Applicable 5. Schedule of storm drainage improvements to be installed out of sequence. Not Applicable. 19 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 The terms of this Agreement ent shall govern all development activities of the Developer pertaining to the Property. For the purposes of this Aghmentee actual „ "development activities shall include, but not be limited to, the followingen) chap a in construction of improvements, (2) obtaining a permit therefor, or (3) y 9 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 Final Development Plan Documents and in full compliance with the standards and specifications of the City on file in the office of the City Engineer at the ettime ar o approval of the utility plans relating to the specific utility, subject to a three (3) y from the date of approval of the site specific development plan. In the event that the Developer commences or performs any construction pursuant hereto after the passage of three (3) years from the date of approval of the site specific development plan, the Developer shall resubmit the utility plans to the City Engineer for reexamination. exam nation. The and City may then require the Developer to comply he appspecifications 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, electrical lines, 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, electrical 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 Final Development Plan Documents and shall be installed by the Developer within the time as established under "Special Conditions" in this document. ly reed, the per E. Except foor aallotherwise water, sanitary sewer, andgstorm drainage ofacilitiesagrees and install and pay 2 EXHIBIT "B" MAINTENANCE GUARANTEE: The Developer hereby warrants and guarantees to the City, for a period of two (2) years from the date of completion and first acceptance by the City of the public improvements warranted hereunder, the full and complete maintenance and repair of the public improvements constructed for this Development. This warranty and guarantee is made in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land Use Regulations, as applicable. This guarantee applies to the streets and all other appurtenant structures and amenities lying within the rights -of -way, easements and other public properties, including, without limitation, all curbing, sidewalks, bike paths, drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any maintenance and/or repair required on utilities shall be coordinated with the owning utility company or city department. The Developer shall maintain said public improvements in a manner that will assure compliance on a consistent basis with all construction standards, safety requirements and environmental protection requirements of the City. The Developer shall also correct and repair, or cause to be corrected and repaired, all damages to said public improvements resulting from development -related or building -related activities. In the event the Developer fails to correct any damages within thirty (30) days after written notice thereof, then said damages may be corrected by the City and all costs and charges billed to and paid by the Developer. The City shall also have any other remedies available to it as authorized by this Agreement. Any damages which occurred prior to the end of said two (2) year period and which are unrepaired at the termination of said period shall remain the responsibility of the Developer. REPAIR GUARANTEE: The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5) year period, commencing upon the date of completion and acceptance by the City of the public improvements constructed for this Development, from any and all claims, damages, or demands arising on account of the design and construction of public improvements of the Property shown on the approved plans and documents for this Development; and the Owner furthermore commits to make necessary repairs to said public improvements, to include, without limitation, the roads, streets, fills, embankments, ditches, cross pans, sub -drains, culverts, walls and bridges within the right-of-way easements and other public properties, resulting from failures caused by design and/or construction defects. This agreement to hold the City harmless includes defects in materials and workmanship, as well as defects caused by or consisting of settling trenches, fills or excavations. Further, the Developer agrees that the City shall not be liable to the Developer during the warranty period, for any claim of damages resulting from negligence in exercising engineering techniques and due caution in the construction of cross drains, drives, structures or buildings, the changing of courses of streams and rivers, flooding from natural creeks and rivers, and any other matter whatsoever on private property. Any and all monetary liability occurring under this paragraph shall be the liability of the Developer. The obligations of the Developer pursuant to the "maintenance guarantee' and 'repair guarantee' provisions set forth above may not be assigned or transferred to any 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. 21 appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public lopment improvements as shown on Final Deve an Documents and otherdapproved documentstpertaining to th seDevelopment on file wl th the City. F. Street improvements shall not be installed until all utility lines to be placed therein have been completely individual lot service nes and sewer) leading in and from installed, n l to the property line and all ele tri alllines(water 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 t the deficiencies in such I cable to such in talons in lllation.er to nIn case of requirements the Final Development specifications app Plan Documents shall supersede the standard specifications, except that if the conflicts are a result of Federal or State mandated requirements, then the Federal or State mandated requirements shall prevail. H. Public easements shall be provided for access, utilities and drainage as required by the design and location of such infrastructure and as reflected on the plans. Alignment and grades on privately maintained streets and drives shall allow for safe access, ingress and egress byo ed bsvisitors, Cty Eng neer.eral public and public safety officials and equipment, as app Y the I. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer, 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 7 and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. Approval of and acceptance by the City of any storm drainage facility design or construction shall in no manner be deemed to constitute a waiver or relinquishment by the City of the aforesaid indemnification. The Developer shall engage a Colorado licensed professional engineer to design the storm drainage facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be intended for the benefit of the City, and subsequent purchasers of property in the Development. J. The developer shall pay the applicable "stormwater plant investment fee" in accordance with Chapter 26, Article VII of the City Code. This fee is included with building permit fees and shall be paid prior to the issuance of each building permit. K. The Developer shall provide the City Engineer with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of each phase of the construction. Utilities will not be initially accepted prior to as -built drawings being submitted to and approved by the City of Fort Collins. L. The Developer specifically represents that to the best of its knowledge all property dedicated (both in fee simple and as easements) to the City associated with this Development (whether on or off -site) is 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 property as is dedicated to the City pursuant to this Development, is 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 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 the Developer must obtain a complete discharge 4 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. M. The Developer acknowledges and agrees that the City, as the owner of any adjacent property (the "City Property") on which off -site improvements may be constructed, or that may be damaged by the Developer's activities hereunder, expressly retains (and does not by this Development Agreement waive) its rights as property owner. The City's rights as owner may include without limitation those rights associated with the protection of the City Property from damage, and/or the enforcement of restrictions, limitations and requirements associated with activities on the City Property by the Developer as an easement recipient. II. Special Conditions A. Water Lines I. The point of connection to the City water system for the Development is from the property to the west of the site known as Harmony School Shops 4th Filing. Revisions to the Final Development Plan Documents specific to Harmony School Shops 4th Filing have been approved for the re -location of this water main in the Harmony School Shops. No building permits will be issued in the Development prior to the acceptance of the water mains in the Harmony School Shops 4th Filing and in the Pads at Harmony. The City is the agency that will inspect and accept these water mains but the City is not responsible for constructing these mains or for the timing of that construction. B. Sewer Lines 1. The sanitary sewer line shown on the Final Development Plan Documents to the east of the Property does not exist at this time but is included in a utility plan for Front Range Village, a proposed development currently under final plan review. No certificate of occupancy will be issued in the Development prior to the acceptance of those sanitary sewers in Front Range Village which are needed to provide wastewater service to the Property and the sanitary sewers within the Development. The City is the agency that will inspect and accept these sewers but the City is not responsible for constructing these sewers or for the timing of that construction. C. Storm Drainage Lines and Appurtenances E 1. All on -site and off -site storm drainage improvements associated Plan with this Development, the Developer) in n accordance dlnal anceewith Development Final Documents,shall aPlan completed by p Documents prior to the issuance any certificate of occupancy. Off -site drainage improvements shall include the construction of the system within the proposed Front Range Village development that would allow this site to have a working drainage outfall system or the alternative temporary outfall system that discharges into the irrigation lateral west of the Front Range Village Development. If the Developer chooses to install the temporary outfall system, than that system shall be promptly removed upon the completion of the downstream improvements of the Front Range Village drainage facilities. In order to ensure that these temporary facilities will be removed in the future and that the permanent facilities are installed, the Developer shall escrow $ 5,000.00 with the City prior to the release of any building permits in this development. This escrow will be released back to the Developer upon the completion of the permanent outfall system in the Front Range Village development, the removal of the temporary system as well as the completion of the permanent drainage outfall system in this 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 issuance of any certificate of occupancy in this 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 reasonably decides that said drainage facilities no longer comply with the Final Development Plan Documents, the City shall give written notice to the Developer of all items which do not comply with the Final Development Plan Documents. Unless the Developer successfully appeals the decision of non-compliance, it shall bring such facilities back up to the standards and specifications as shown on the Final Development Plan Documents. 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 the C tyaired to the operational function and structural integrity which was approvedY 3. The Developer agrees to provide and maintain erosion control improvements as shown on the 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 $ 24,993.00 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the 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 erosion control provisions of the Final Development Plan Documents or the 3 erosion control provisions of the Criteria after receiving notice of the same or an exists which would reasonably requirerovision iat miit mitigation emergency situation d in measures, then, in either event, and notwithstanding any p paragraph III(J) to the contrary, the City may enter upon the Property for the purpose of king such activities as may be necessary to making such improvements and underta ensure that the provisions of said plans and the Criteria are properly enforced. s I City may apply such portion of the security deposit(s) as may be necessary to pay administration, construction, and/or installation of incurred by the City in undertaking the the erosion control measures required by said plans and the Criteria. In addition, the ilding permits and certificates of occupancy, as City shall have the option to withhold bu s necessary in order to ensure stated in Paragraph III.D of this Agreement, as it deem 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 Final Development Plan Documents. For this reason the following additional requirements shall be followed for all buildings/structures on all lots: Prior to the issuance of a certificate of occupancy for any lot or building the Developer shall provide the City with certification that the lot and or the building has been graded correctly. This grading certification shall demonstrate that the lot or building finish floor elevation has been built in accordance with the elevation specified on the Final Development Plan Documents. The certification shall also show that the minimum floor elevation or minimum opening elevation for any building constructed is in compliance with the minimum elevation as required on the Final Development Plan Documents. The certification shall demonstrate as well that any minor swales adjacent to the building or on the lot have been graded correctly and in accordance with the grades shown on the Final Development Plan Documents. The certification shall also show that the elevations of all corners of the lot are in accordance with the elevations shown on the 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. Developer shall obtain the City's prior approval of any changes from the 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 deemed such changes as being acceptable for the safe and efficient delivery of storm drainage water. g, The Developer shall be responsible for maintenance of all onsite storm drainage facilities that are constructed outside of the public right-of-way. Vl 7. The Developer shall limit the construction of the storm drainage improvement lines to the limits of construction as shown on the Final Development Plan Documents. The contractor shall re -seed and restore all areas that are disturbed off -site storm drainage improvements if any in accordance with during construction of the Final Development Plan Documents promptly following construction. The Developer shall ensure that no negative impact occurs to the adjoining properties during the areas ras (shown ontrainae he Final Delvleles. No lopmen 9PIannDocuall be ments.one outside of the approved 8. The drainage design for this Development provides for the evacuation of storm drainage runoff in a reasonable amount of time out of the water quality and detention facilities and into the drainage outfall system. The water quality and detention facilities have been designed to discharge stormwater runoff from frequent storms over a 40 hour period through a small diameter outlet. Under the intended operation of the water quality and detention pond, there will not be standing water in the pond more than 48 hours after the end of a rainfall event. If, during or within 2 years after construction and acceptance of the detention facilities associated with this Development, surfacing or standing water conditions persist in these facilities; and if such conditions are beyond what can be expected in accordance with the approved stormwater design, the Developer shall promptly, upon such discovery, install an adequate de -watering system in the detention facilities. Such a system shall be reviewed and approved by the City prior to installation. D. Streets. 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Harmony Road and Snow Mesa Drive for those portions of said street abutting the Property as shown on the Final Development Plan Documents. Reimbursement for Harmony Road shall be for oversizing the sidewalk from local (access) standards to arterial standards. Reimbursement for Snow Mesa Road shall be for oversizing the street from local (access) standards to collector 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 obligations ofthe City tloamake settlement complete accord rembursements othe Deve operfor ssatisfaction street oversizing E3 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 alent security. For purposes of this paragraph, the term "City bond or other equiv improvements" shall mean either (1) existing nimprovements funded ownedin bt whole or in part by to be modified or reconstructed, or (2) y P the City. 3. Prior to the issuance of any certificate of occupancy for the Development, either a) the Developer shall have the construction of the right turn lane along Harmony Road into Snow Mesa Drive completed and accepted by the City as shown on the Final Development Plan Documents, or b) Harmony Road abutting the Property shall have been constructed and completed in accordance with an approved final development plan for Front Range Village. 4. In accordance with Section 24-95 of the City Code, the obligation for the local portion of a public street is that of the abutting property owner at the time of development. In satisfaction of this obligation, the Developer shall provide an escrow of funds to the City for the local street portion of Harmony Road abutting the Property prior to the issuance of any building permits for the Development. The escrow of funds shall be deposited with the City in the form of cash, bond, non -expiring letter of credit or other form of City approved security sufficient to guarantee completion of the construction. Said deposit shall be equal to the estimated cost of the Developer's local street portion, which estimate shall be prepared by the Developer Developer approved r hallby be relieved from any Upon the receipt and acceptance of the escrow of funds, further obligation to the City of said local portion. In addition, in the event that the Developer demonstrates in satisfaction to the City that the Developer has entered into an agreement with the developer of Front Range Village and provides to that developer said local street portion, the Developer shall also be relieved of its obligation to escrow for such local street portion, or in the event such escrow has been made the Developer shall be entitled to a prompt reimbursement equal to the principal paid to the City for said local street portion, (if in the form of cash), or (if in the form of a bond/letter of credit), the escrow shall be returned. t