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HomeMy WebLinkAboutHARMONY TECHNOLOGY PARK SECOND - Filed DA-DEVELOPMENT AGREEMENT - 2003-11-24DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into this __� I_f day of v�Y 2001, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; HEWLETT-PACKARD COMPANY, a Delaware Corporation hereinafter referred to as the "Developer." WITNESSETH: WHEREAS, the Developer -is the owner of certain real property situated in the County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property" or "Development") and legally described as follows, to wit: Harmony Technology Park Second Filing, located in Section 4, Township 6 North, Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the Developer desires to develop the Property and has submitted to the City all plats, plans (including utility plans), reports and other documents required for the approval of a final plan according to the City's development application submittal requirements master list (the final development plan documents) copies of which are on file in the office of the City Engineer and made a part hereof by reference; and WHEREAS, the parties hereto have agreed that the development of the Property will require increased municipal services from the City in order to serve such area and will further require the installation of certain improvements primarily of benefit to the lands to be developed and not to the City of Fort Collins as a whole; and WHEREAS, the City has approved the final development plan documents submitted by the Developer subject to certain requirements and conditions, which involve the installation of and construction of utilities and other municipal improvements in connection with the Property. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is agreed as follows: General Conditions A. The terms of this Agreement shall govern all development activities of the 1 7. Prior to the issuance of any building permits in Phase 2, the Developer shall have completed construction of Cambridge Avenue from Harmony Road to Rock Creek Drive to full -width collector roadway standards as shown on the final development plan documents. 8. (A) The provisions contained in Sections 3.6.4, 3.3.2(E)(1)(c) and 3.7.3(E)(1)(a) of the City's Land Use Code ("LUC"), taken together, impose upon the Developer an obligation to ensure that the Development complies with the City's traffic "level of service" standards, specifically requiring with respect to arterial streets, that the Developer construct such off -site street improvements as the City's Traffic Engineer determines to be necessary, based upon traffic safety considerations and the traffic impacts of the Development. In order to assist the Traffic Engineer in making this determination, the Developer is required to submit a transportation impact study approved by the Traffic Engineer, consistent with guidelines maintained by the City. As provided in LUC Section 3.7.3(E)(1)(a), said improvements must be either fully funded or constructed prior to the issuance of a building permit for any building in the Development which generates the traffic impact necessitating the improvements and, pursuant to LUC Section 3.3.2(E)(1)(c), the same must be constructed prior to the issuance of any certificate of occupancy for such building. (B) Based upon the transportation impact study previously submitted by the Developer, the City's Traffic Engineer has determined that the traffic impacts generated by the occupancy of the third and subsequent buildings in the Development will require the design and construction, with the approval of the City and the Colorado Department of Transportation (°CDOT"), of an additional southbound to eastbound left turn lane (the "Intersection Improvements") on Ziegler Road at its intersection with Harmony Road (the "Intersection"). The parties acknowledge, however, that the Intersection Improvements will be made necessary not only by the Development, but also by other development in the same vicinity, and by the overall growth and development of the Fort Collins community, and that said improvements will benefit the community at large. Accordingly, the parties agree that the Developer's obligations under the foregoing provisions of the LUC can and shall be satisfied in the following manner: 1. If the Developer wishes to construct more than two (2) buildings in the Development, the Developer shall, no less than six (6) months prior to applying for a building permit for any such additional building provide to the City a new transportation impact study prepared by a traffic engineer of the Developer's choosing and approved by the City's Traffic Engineer, which study shall identify the traffic impacts generated by the construction and occupancy of the Development. 2. Upon receipt of the foregoing information by the City, the City Engineer, after consultation with the Traffic Engineer, will notify the Developer of the percentage portion of the Project Costs (hereinafter defined) to be paid by the Developer. If the Developer believes that the City Engineer's determination of the Developer's percentage portion is not supported by the transportation impact study, or is otherwise unacceptable, the Developer may, within sixty (60) days of the City Engineer's determination, seek review of such determination by the City Manager. The City Manager shall make his decision regarding the Developer's percentage portion within thirty (30) days after receipt of notice from the Developer requesting the City Manager's review. If the City Manager upholds the City Engineer's percentage portion determination or otherwise fails to modify the same to the Developer's satisfaction, the Developer may seek further review of the percentage portion determination by the City Council ("Council"). Any such request for Council review must be pursued by the Developer within sixty (60) days after the date of the notice from the City Manager of his decision, or the date by which the City Manager is required hereunder to provide his determination, whichever is earlier. Such request for Council review shall be pursued by the filing of a written request with the City Clerk. Such request, if filed, shall be submitted to the Council by the City Clerk within sixty (60) days of the date of filing of the same. The Council shall, by motion, decide whether to review the City Engineer's determination of percentage portion. If Council does decide to undertake such review, a hearing shall be held by the Council for that purpose, in which event the Council's determination shall be based upon the information relied upon by the City Engineer, together with such additional information, if any, that the Council considers relevant and helpful to its determination. If no request for Council review of the percentage portion determination is timely filed as provided herein, or if the Council declines to undertake such review, the City Engineer's determination of percentage portion shall be final. If the Council does review the matter, the Council's determination of percentage portion shall be final. 3. Furthermore, if the Developer wishes to construct more than two (2) buildings in the Development, no less than six (6) months prior to applying for a building permit for any such additional building, the Developer shall separately 11 provide to the City, in a form satisfactory to the City Engineer and to CDOT, a design of the Intersection Improvements, together with a cost estimate for the same. Said cost estimate shall include the costs of design, engineering, construction, right-of-way acquisition and project management, plus an additional fifteen percent (15%) to cover unanticipated additional expenses (the "Project Costs"). Said design and estimate of Project Costs may be provided at the same time as the traffic report contemplated by subpart 2 hereof, or may be provided at a later date; however, in any event, such design and estimate of Project Costs must be provided to the City at least six months prior to applying for a building permit for more than the first two buildings in the Development. Within 30 days after receipt of the estimated Project Costs provided by the Developer, the City shall either confirm its acceptance of the amount of Project Costs or advise the Developer of such other amount as the City believes represents actual Project Costs. If there is then a disagreement regarding the amount of Project Costs, such matter will be resolved in the same manner as is provided in subpart 2 with respect to determination of the Developer's percentage portion. 4. Prior to applying for a building permit for the third building in the Development, the Developer shall pay to the City, in cash, the full amount of that portion of the Project Costs to be paid by the Developer, which percentage portion shall be determined by the City in accordance with subpart 2 hereof and which Project Costs shall be -determined pursuant to subpart 3 hereof, together with interest at the rate of eight percent (8%) per annum from that date which is sixty (60) days after the date that the City Engineer first notified the Developer of the dollar amount of its share of the Project Costs determined in accordance with subpart 3 hereof. Notwithstanding anything contained in this Section II (D)(8)(A) to the contrary, upon timely payment of said amount, the Developer shall thereafter be relieved of any and all further obligations relating to the Intersection Improvements, and neither building permits nor certificates of occupancy for the third and subsequent buildings in the Development shall be withheld or delayed by the City by reason of the fact that the Intersection Improvements may not have been constructed by the City. 12 5. In the event the Intersection Improvements have already been installed at the time the Developer applies for a building permit for the third building in the Development, the Developer shall reimburse the City for the Developer's percentage portion as determined under subpart 2 hereof of the actual Project Costs, plus 8% per annum on such prorata share from the date the Intersection Improvements were installed. 6. In the event that the Developer fails to make payment in full to the City for its portion of the Intersection Improvements as determined by the City Engineer in accordance with the provisions of this Section, no building permit shall be issued by the City for the third or any subsequent building in the Development until such payment has been made. 7. In the event the Developer pays in a timely manner its percentage portion of the Project Costs pursuant to this Section, the City agrees to complete installation of the Intersection Improvements no later than three (3) years after the Developer's occupancy of the third building in the Development. In the event the City in its sole discretion has not installed the Intersection Improvements within said three-year period, the City will repay the portion of the Project Costs advanced by the Developer on the third anniversary of the Developer's occupancy of the third building in the Development. If the City later installs the Intersection Improvements, upon such completion, the Developer will pay to the City the funds previously repaid to the Developer by the City relating to such Project Costs. 9. The landscaping located in the medians within Technology Parkway and Cambridge Avenue adjacent to this development 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. 10. The landscaping located in the medians within Technology Parkway and Cambridge Avenue adjacent to this development shall be "drip" and/or "micro -spray" irrigated. Standard "spray" type irrigation is not permitted. 13 11. The Developer hereby indemnifies and holds the City harmless from any damage caused to the roadway (concrete, asphalt, curb and gutter) when such damage is caused, directly or indirectly, by the acts or omissions of the Developer in irrigating the landscaping within the medians on Technology Parkway and Cambridge Avenue adjacent to this development site. Notwithstanding any provision in this Agreement to the contrary, this indemnity may be assigned only to a bonafide business 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 business association and approved in writing by the City. 12. The Developer is responsible for the maintenance and repair of all enhanced crosswalks across driveway accesses within the public right-of-way. At the time of execution of this Agreement a permit is not required for the maintenance and repair of said enhanced crosswalks, however, if at some future time a permit is required by the City for this work in the right-of-way, the Developer shall obtain said permit prior to commencement of work. 13. 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). 14. 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. 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, 14 maintenance, repair and reconstruction obligations shall be those of the Developer or the Developer's successor(s) in interest. Such subdrain system is likely to be located both upon private and public property and, to the extent that it is located on public property, all maintenance, operation, repair or reconstruction shall be conducted in such a manner that such public property shall not be damaged, or if damaged, shall, upon completion of any such project, be repaired in accordance with then existing City standards. The City shall not be responsible for, and the Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and hold harmless the City against any damages or injuries sustained in the development as the result of groundwater seepage or flooding, structural damage or other damage resulting from failure of any such subdrain system. 3. Without admitting or denying any duty to protect water rights, the Developer, for 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. 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 15 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 an emergency accessway for the Phase in which the permit is being requested. Said issuance of a Footing and Foundation permit is limited to footing and foundation construction only and shall not include any vertical construction of either combustible or non-combustible material. Upon the installation of a permanent water system and a continuous emergency accessway for the Phase in which the permit is being requested, the Developer shall have the right to receive, upon payment of applicable fees therefor, building permits for said Phase. 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. 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 ihprovements 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 (1) and (J) 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. J. Development Phasing 1. The phases of the Development do not have to be constructed in 16 numeric succession, provided, however, that no construction can occur on any given phase until all infrastructure improvements required to serve such phase have been completed. III. Miscellaneous A. The Developer agrees to provide and install, at its expense, adequate barricades, warning signs and similar safety devices at all construction sites within the public right-of-way and/or other areas as deemed necessary by the City Engineer and Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been completed. B. As required pursuant to Chapter 20, Article IV of the City Code, the Developer shall, at all times, keep the public right-of-way free from accumulation of waste material, rubbish, or building materials caused by the Developer's operation, or the activities of individual builders and/or subcontractors; shall remove such rubbish as often as necessary, but no less than daily and; at the completion of the work, shall remove all such waste materials, rubbish, tools, construction equipment, machinery, and surplus materials from the; public right-of-way. The Developer further agrees to maintain the finished street surfaces so that they are free from dirt caused by the Developer's operation or as a result of building activity. Any excessive accumulation of dirt and/or construction materials shall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until the problem is corrected to the satisfaction of the City Engineer. If the Developer fails to adequately clean such streets within two (2) days after 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. 17 E. Nothing herein contained shall be construed as a waiver of any requirements of the City Code or the Land Use Code, and the Developer agrees to comply with all requirements of the same. With regard to Land Use Code Sections 3.7.3(E)(1)(a) and 3.3.2(E)(1)(c), the parties agree that compliance with the same shall be accomplished as set forth in Section I I (D) (8) (B) of this Agreement. The parties further agree that the terms of this Agreement are intended to implement, and not to conflict with or supersede, the provisions of the City Code and the Land Use Code. F. Nothing herein contained shall be construed as being inconsistent with the terms and conditions of the Vested Rights Agreement. In the event of any apparent inconsistency between the provisions of this Agreement and the provisions of the Vested Rights Agreement, the Vested Rights Agreement shall prevail. G. 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. H. 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. I. This Agreement shall run with the Property and shall be binding upon and inure to the benefit of the parties hereto, their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but'not be, limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. J. 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. K. 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 0 continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. L. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney's fees and costs incurred by reason of the default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph III.D of this Agreement. M. 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. N. 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. O. 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 With a copy to: City Attorney's Office City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 If to the Developer: Hewlett-Packard Company Attn: Facilities Manager 3404 East Harmony Road Mail Stop 10 Fort Collins, CO 80528-9599 With a copy to: David E. Dwyer Dwyer, Huddleson & Ray, P.C. 215 West Oak Street 19 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. Provided, however, that 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 construction standards and specifications of the City on file in the office of the City Engineer at the time of the resubmittal. Nothing herein shall be construed as requiring any change in the location or layout of parking, street size and location, sidewalk size and location, building location, size and height, detention pond size, or configuration of the infrastructure to be installed by the Developer. 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 (refer to Paragraph 11 (G) of this Agreement for allowable building permits.) 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 2 10th Floor 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. P. When used in this Agreement, words of the masculine gender shall include the feminine and neuter gender, and when the sentence so indicates, words of the neuter gender shall refer to any gender; and words in the singular shall include the plural and vice versa. This Agreement shall be construed according to its fair meaning, and as if prepared by all parties hereto, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto pertaining to the matters addressed in this Agreement. There shall be deemed to be no other terms, conditions, promises, understandings, statements, representations, expressed or implied, concerning this Agreement, unless set forth in writing signed by all of the parties hereto. Further, paragraph headings used herein are for convenience of reference and shall in no way define, limit, or prescribe the scope or intent of any provision under this Agreement. In the event of a conflict that cannot be reasonably reconciled between the provisions contained in Article II — Special Conditions and any other provision of the Agreement, the provisions contained in Article II — Special Conditions shall control. AT IULN� : City Clerk APPROVED AS TO CONTENT: City Engineer APPROaD AS TO FORM: Deouty City Attorney THE CITY OF FORT COLLIN�, COLORADO, a Municipal Corporation 0 20 ager DEVELOPER: HEWLETT-PACKARD COMPANY, a Delaw e C oration By: teve Stiesmeyer, Colorado Site Operations Manager, As Attorney -In -Fact For Ann O. Bas.kins, Vice President & General Counsel 21 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. 22 EXHIBIT "B" Not Applicable 23 EXHIBIT "C" Refer to the Final Plat for this Development 24 EXHIBIT "D" DEVELOPMENT AGREEMENT REGARDING VESTED RIGHTS THIS DEVELOPMENT AGREEMENT REGARDING VESTED RIGHTS (this "Agreement") is entered into as of the 24th day of June -001, by and between the CITY OF FORT COLLINS, COLORADO, a municipal corporation (the "City"), and HEWLETT-PACKARD COMPANY, a Delaware corporation (the "Company"). RECITALS WHEREAS, the Company owns certain property in the City, Latimer County, Colorado, as more specifically described in Exhibit A attached hereto and by this reference incorporated herein and labeled "Harmony Technology Park" (the "Property"); WHEREAS, the Company has annexed the Property to the City; WHEREAS, the Company intends to develop the Property and create a site specific development plan for the Property; WHEREAS, the site specific development plan contemplates that the development of the Property shall take at least fifteen (15) years; WHEREAS, the Company desires that the term of its vested right in the Property be fifteen (15) years; and WHEREAS, development of the Property will produce substantial economic benefits for the City in the form of increased property, use and"sales taxes and new jobs and other economic development, all of which promote the general welfare of the citizens of the City and others. NOW THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties agree as follows: AGREEMENT 1. Consent. The Company hereby intends to develop the Property subject to the terns and conditions of its site specific development plan and the terms and conditions of this Agreement and any subsequent development agreements executed by the parties. In the event the City enters into this Agreement prior to approval of the site specific development plan by the City Council of the City, the parties agree that the binding effect or this Agreement is expressly conditioned upon such approval by the City Council. 2. Vested Rights. Pursuant to Section 2.2.11 of the Fort Collins Land Use Code and applicable Colorado law, including C.R.S. 24-68-101, et seq., the parties agree that the Company shall have fifteen (15) years (the "Term of the Vested Property Right") following the approval of the Company's final plan or other site specific development plan to (i) undertake and complete the development and use of the Propem under the terms and conditions of the final approved site specific development plan and site development agreement and (ii) install and complete all engineering improvements (water, sewer, streets, curb, gutter, street lights, fire hydrants, landscaping and storm drainage) in accordance with City codes, rules and regulations, and the City will not forfeit the Company's vested rights in the Property within the Term of the Vested Property Right. The running of the Term of the Vested Property Right shall be tolled during the pendency of any appeal, referendum, initiative or judicial action that is filed that would, if successful, prevent the development of the Property. Nothing herein shall be construed to prohibit the City from applying to the development of the Property such ordinances or regulations as may exist at the time of development that are general in nature and are applicable to all property subject to land use regulation by the City, as permitted under § 24-68-105(2), C.R.S. 3. Appeal, Referendum. Initiative and Judicial Action. If any appeal, referendum, initiative or judicial action is filed that would, if successful, have the effect of preventing the development of the Property, the Company may delay commencement of or actual construction of the public improvements, including the letting of bids and including the provision of temporary electric service, until such referendum, initiative or judicial action is finally resolved unless the City agrees to fully reimburse the Company for the cost of the public improvements in the event that the referendum, initiative or judicial action prevents the development of the Property. The City shall, to the extent allowed by applicable laws and the Charter of the City, cooperate in the defense of the Company, at the Company's expense, with regards to anv referendum, initiative and judicial action that would, if successful, have the effect of preventing the development of the Property. 4. Incorporation. The terms and conditions of this Agreement shall be deemed to be incorporated into the site -specific development plan, when approved by the City. 5 Integration and Amendment. This Agreement represents the entire Agreement between the parties with respect to the Property and supersedes all prior written or oral agreements or understandings with regard to the obligations of the parties with regard to the Property. This Agreement may only be amended by written agreement signed by the Company and the City. Only the City Council, as a representative of the City, shall have authority to amend this Agreement. 6. Remedies. In the event that a party breaches its obligations under this Agreement, the injured party shall be entitled to monetary damages, equitable relief, including specific performance, and such other remedies at law or in equity as may be available under applicable law. In the event of litigation relating to or arising out of this Agreement, the prevailing party, whether plaintiff or defendant, shall be entitled to, recover costs and reasonable attorneys' fees. 7. Effective Date. This Agreement shall become effective on the date that it is executed and delivered and has been approved by the City Council. If the City does not approve the site specific development plan for the Property, this Agreement shall become null and void and of no force or effect whatsoever. If the City does not approve the site specific development plan for Property, neither party will be liable to the other for any costs that the other party has incurred in the negotiation of this Agreement or in any other matter related to the potential development of the Property. 8. Severability. Should any court of competent jurisdiction rule that any term, condition or provision of this Agreement is illegal or otherwise unenforceable, it is the intent of the parties that the remainder of the Agreement continue to be fully enforceable and that all other rights and obligations of the parties shall continue to be fully effective. 9. Bindine Effect and Recordation. The promises made in this Agreement by the Company shall be deemed to have been made by any corporation or other business affiliated with the Company that acquires ownership or possession of all or any portion of the Property. The parties agree to execute a memorandum of this Agreement that the Company shall prepare and record with the Clerk and Recorder for Larimer County, Colorado. It is the intent of the parties that their respective rights and obligations set forth in this Agreement shall constitute equitable servitudes that run with the land and shall benefit and burden anv successors to the parties. The site specific development plan for the Property shall contain a note that it is subject to this Agreement and shall recite the book and page or reception number where the memorandum of this Agreement is recorded. The site specific development plan shall recite that all lienholders, if anv, agree to the terms and conditions of this Agreement and subordinate their interests to this Agreement. The Company agrees to all promises made by the Company which shall constitute equitable servitudes that run with the land, but the shareholders, officers, representatives and agents of the Company shall have no personally liability for such promises. IN WITNESS WHEREOF, the parties have caused this Development Agreement Regarding Vesting Rights to be executed as of the date first written above. HEWLETT-PACKARD COMPANY, a Delaware�cornn(2�nn By: Its: Colorado Site Operations Manager, As Attorney -in -Fact For Ann O. Baskin, Vice President & General Counsel ATTEST: ��Ip Illlll,�i �� I, City Clerk STATE OF COLORADO ) ss. COUNTY OF LARIMER ) THE CITY OF FORT COLLINS, COLORADO By: Mayor The foregoing Development Agreement Regarding Vested Rights was executed before me this 26 day of July 2001, by Steve Sriesmeyer as of HEWLETT-PACKARD COMPANY, a Delaware corporation. WITNESS my hand and official seal. RHONDA R. LiCDONNE NOTARY PUSUC STATE OF COLORADO W Commission Expires eo y/ STATE OF COLORADO ) ss. COUNTY OF LARIMER ) My commission expires e7 DO Notary Public The foregoing Development Agreement was executed before me this,;��day �2001, by Ray Martinez, as Mayor, and by 2 ��rl/ k%)%- —✓�� �iC�-ti—' as City Clerk, of the CITY OF FORT COLLINS, COLORADO, a m ' iumC pal corporation. WITNESS my hand and official seal. *** Colorado Site Operations Manager, As Attorney -in -Fact For Ann O. Baskins, Vice President & General Counsel EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Harmony Technology Park Second Filing, located in Section 4, Township 6 North, Range 68 West of the 6th P.M.. City of Fort Collins, County of Larimer, State of Colorado. therein have been completely installed, including all individual lot service lines leading in and from the main to the property line. G. The installation of all utilities shown on the final development plan documents shall be inspected by the Engineering Department of the City and shall be subject to such department's approval. The Developer agrees to correct any deficiencies in such installations in order to meet the requirements of the plans and/or specifications applicable to such installation. In case of conflict, the final development plan documents shall supersede the standard specifications. H. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the Property (and other lands as may be required, if any). The Developer shall meet or exceed the minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainage or seepage waters from the Property in a manner or quantity different from that: which was historically discharged and caused by the design or construction of the storm drainage facilities, except for (1) such claims and damages as are caused by the acts or omissions of the City in maintenance of such facilities'as have been accepted by the City for maintenance; (2) errors, if any, in the general concept of the City's master plans (but not to include any details of such plans, which details shall be the responsibility of the Developer); and (3) specific written or otherwise documented directives that may be given to the Developer by the City. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless 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 VI 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 9 LLVHTED POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby make, constitute and appoint Steve Stiesmeyer, Colorado Site Operations Manager for Hewlett- Packard Company, a Delaware corporation (the "Company"), the undersigned's true and lawful attorney -in -fact, with full power of substitution, to act for and in the name, place and stead of the undersigned, as an officer of the Company, in all matters relating to the execution, delivery and recordation of plats, real estate development agreements, off -site easements, fmal real estate compliance plans, and overall development plan or any other documents, applications, consents or instruments necessary or convenient in connection with real estate development projects or improvements involving the Company in the State of Colorado. This Limited Power of Attorney shall be effective from the date hereof through December 30, 2001, and the Company may revoke this Limited Power of Attorney in writing at any time without notice. A facsimile of the undersigned's signature or a photocopy of this Power of Attorney shall be as valid and effective as the original for all purposes. IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand and corporate seal this - � day of 4 n M 4 ✓ , 2001. Printed Name: Ann O. Baskin Title: Vice President & General Counsel Attest: /' Printed Name: Charles N. Chamas Title: Assistant Secretary & Managing Counsel CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California) l County of ,'`-i } ss. On otC ' ` 02, , before me, peisonally appeared rr 'ZyC.BORN Commiss)on # 1156476 z Notary )u;,Lc-Califomiq i Scr+a Cloaq Counfy MY Com m', =x Oct ?2, 2.01 Place Notary Seal Above Public') Di'personally known to me ❑ proved to me on the basis of satisfactory evidence to be the personfs) whose name(* is/are subscribed to the within instrument and acknowledged to me that-4e/she/they executed the same in his/her/fl is authorized capacityfiesj, and that by his/herFNaeir signature(&) on the instrument the person(&), or the entity upon behalf of which the person(&) acted, executed the instrument. `WITNESS my hand/and official seal. —L_ Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Title or Type of DI Document Date: / — `­/— /�7f Number of Pages: / Signers) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual � / Corporate Officer —Title(&): "i ❑ Partner—❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee • Guardian or Conservator ❑ Other: Signer Is Representing: Top of 01999 National Notary APocPaion • 9350 be Soto Ave.. PO, Box 2402 • Chavei CA 91313-2402 • waw nationalnotari Prod No. 59V Reorder Call Tol Fee 1-a0o-3]66a9 applicable, shall include right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. J. The Developer shall provide the City Engineer with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construction. Utilities will not be initially accepted prior to as -built drawings being submitted to and approved by the City of Fort Collins. K. The Developer specifically represents that to the best of its knowledge all portions of the Property dedicated (both in fee simple and as easements) to the City associated with this Development are in compliance with all environmental protection and anti -pollution laws, rules, regulations, orders or requirements, including solid waste requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such portions of the Property as are dedicated to the City pursuant to this Development, are in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer, for itself and its successor(s) in interest, does hereby indemnify and 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 Develloper 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. If. Special Conditions 0 A. Water Lines 1. Notwithstanding anything in this Development Agreement to the contrary, the Property will be provided water service from the City, and all water line improvements shall be installed and inspected in accordance with the City's regulations and the approved (plans therefor. 2. The parties acknowledge and agree that the Developer will, as a condition of approval of the Development, be installing certain water line improvements that may be of future benefit not only to the Development but also to other properties in the area of the Development that are presently undeveloped, which properties may eventually receive water service either from the City or from the Fort Collins -Loveland Water District (the "Water District:."). These water line improvements are being installed at the request of the Water District. Said improvements, once completed, shall be dedicated to the City. It is acknowledged that the Developer intends to enter into an Agreement with the Water District for repayment of the cost of oversizing certain water line improvements, which may include all or a portion of the improvements to be installed under this Agreement. The Developer's installation of said improvements, and payment of the cost shall not be construed as a waiver of the Developer's right to pursue any such reimbursement rights through the Water District. This provision shall not be construed, however, as establishing any reimbursement right on the part of the Developer, or as creating any obligation on the part of the Water District to enter into such an agreement. B. Sewer Lines 1. Notwithstanding anything in this Development Agreement to the contrary, the Property will be provided sanitary sewer service from the South Fort Collins Sanitation District (the "Sanitation District"), and all sewer line improvements shall be installed and inspected in accordance with the Sanitation District's regulations and the approved plans therefor. C. Storm Drainage Lines and Appurtenances 1. All on -site and off -site storm drainage improvements associated with Phase 1 of this Development, as shown on the approved final development plan documents, shall be completed by the Developer in accordance with said final development plan documents prior to the issuance of any certificate of occupancy in Phase 1 of the Development. All on -site and off -site storm drainage improvements associated with Phase 2 of this Development, as shown on the approved final development plan documents, shall be completed by the Developer in accordance with said final development plan documents prior to the issuance of any certificate of occupancy in Phase 2 of the Development. All on -site storm drainage improvements associated with Phase 3 of this Development, as shown on the approved final development plan documents, shall be completed by the Developer in accordance with said final development plan documents prior to the issuance of any certificate of occupancy in Phase 3 of the Development. 7 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 the desired 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 or within the warranty period of such construction 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 $54,160.35 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(K) to the contrary, the City may enter upon the Property for the purpose of making such improvements and undertaking such activities as may be necessary to ensure that the provisions of said plans and the Criteria are properly enforced. The City may apply such portion of the security deposit(s) as may be necessary to pay all costs incurred by the City in undertaking the administration, construction, and/or installation of the erosion control measures required by said plans and the Criteria. In addition, the City shall have the option to withhold building permits and certificates of occupancy, as stated in Paragraph III.D of this Agreement, as it deems necessary in order to ensure that the Developer installs and maintains the erosion control measures throughout the build -out of this Development. 4. It is important that all lots be graded to drain in the configuration shown on the approved final development plan documents. For this reason the following additional requirements shall be followed for building on all lots: Prior to the issuance of a certificate of occupancy for any lot 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 11 Floor elevation has been built in accordance with the elevation specified on the approved Final Development Plan documents. The certification shall 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 all minor swales adjacent to the building or on the lot have been graded correctly and in accordance with the grades shown on the approved 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 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 structures, 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 serving this Development and outside of the public rights -of -way, including the onsite detention pond, which shall remain operational and free from any nuisance to the public at all times. The City shall be responsible for the: maintenance of storm sewers within the public rights -of -way. 7. The Developer understands that the outfall system from this Development is to be built by a third party. In the event said third party fails to complete the outfall system in time the Developer understands that there will be no 'Certificate of Occupancy issued for this Development. 8. The parties agree that the approval of design of the storm drainage facilities that is on private property, in or outside public easements, shall run for the length of that certain Development Agreement regarding Vested Rights, dated June 25, 2001, a copy of which is attached hereto as Exhibit "D" and incorporated herein by this reference (the "Vested Rights Agreement".) The Developer shall have fifteen (15) years (the term of the Vested Rights Agreement) following the approval of the final plan or other site specific development plan to (i) undertake and complete the development and use of the Property under the terms and conditions of the final approved site specific development plan and site development agreement and (ii) install and complete all storm drainage improvements in accordance with City codes, rules and regulations, and the City will not forfeit the Developers' vested rights in the Development within the term of the Vested Rights Agreement. 7 D. Streets. 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Technology Parkway, Cambridge Avenue, and Harmony Road for those portions of said street abutting the Property as shown on the approved final development plan documents. Reimbursement for Cambridge Avenue and Technology Parkway shall be for oversizing the street from local (access) standards to collector standards. In addition, at the time that the plat for the development has been accepted by the City and filed and recorded at the Larimer County Clerk, the City agrees to reimburse the Developer $340,606.00 ($3.50 per square foot x 97,316 square feet) for additional right-of-way dedication beyond the half - width local (access,) standard of 25.5 feet required for the local (access) standard street portion to shift the alignment of Cambridge off of the section line and onto the property of the Developer, minus any improvements required for the special use and benefit of the Developer (such as deceleration lanes or auxiliary traffic lanes needed for access to the development, or mitigation of excess traffic volumes generated by the development.) Reimbursement for Harmony Road shall be for oversizing the sidewalk from local (access) standards to major arterial standards for the said Harmony Road roadway improvements classified as interim as specified in the final development plan documents. If at a future date the Developer constructs Harmony Road roadway improvements classified as ultimate as specified in the final development plan documents, reimbursement for Harmony Road shall be for oversizing the street (minus sidewalk) from local (access) standards to major 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 E 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. 1 No street oversizing reimbursement shall be due the Developer for Timberwood Drive and Precision Drive. In addition, no reimbursement shall be due the Developer for oversizing Cambridge Drive above collector standards, and, in accordance with Section 24-112(2) of the City Code, all additional expense incurred in the design and construction of Technology Parkway and Cambridge Avenue because of the addition of the Developer requested street medians shall not be reimbursable. 4. The Developer shall secure a state highway access permit and notice to proceed prior to any construction on Harmony Road in accordance with Colorado Department of Transportation (CDOT) requirements. 5. Prior to the release of any permits for Phase 1 (whether full building permit or footing and foundation permit) the Developer shall construct a construction access road from the Development to Ziegler Road. The Developer shall ensure that all construction traffic shall access the site from Ziegler Road; and no construction access shall be allowed from Harmony Road until such time as the interim improvements to Harmony Road are completed. Said construction access road shall be constructed in accordance with the requirements contained in paragraph II(F)(2) of this Agreement. 6. Prior to a certificate of occupancy being issued in Phase 1, the Developer shall have completed construction of the following roadways: (A) Technology Parkway from the intersection of Precision Drive to the intersection of Harmony Road, (B) Timberwood Drive adjacent to the entire development site between Technology Parkway and Cambridge Avenue, (C) Precision Drive adjacent to building E for an approximate distance of 600' in length from the Precision Drive and Technology Parkway intersection terminating in a PFA approved temporary turnaround, (D) Harmony Road interim design improvements in accordance with the final development plan documents. 9