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HomeMy WebLinkAboutWILLOW BROOK - Filed DA-DEVELOPMENT AGREEMENT - 2004-06-18 (2)DEVELOPMENT AGREEMENT THIS AGREEMENT, is made and entered into this Ti+ day of %wc�cs i 2001, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and Village Homes of Colorado, Inc., a Colorado corporation, hereinafter referred to as the "Developer." WITNESSETH: WHEREAS, the Developer is the owner of certain real property situated in the County of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property" or "Development") and legally described as follows, to wit: Willow Brook, being a tract of land located in the Southeast Quarter of 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 Developer pertaining to the Property. For the purposes of this Agreement, "development 1 the date the City Council hears on first reading the appropriation ordinance for the project, which is presently estimated to be September 1, 2001. The City agrees to notify the Developer of such reading when it is scheduled and to give the Developer a copy of the bid cost two weeks prior to such City Council hearing. It is understood by the Developer and the City that failure by the Developer to remit said local street portion by this date may result in the City deciding not to construct the Kechter Road Improvements. This provision shall not be construed as creating any obligation on the part of the City to enter into such an agreement regarding the Kechter Road Improvements and the City may upon its sole discretion, decide not to construct the Kechter Road Improvements. If the City decides not to construct the Kechter Road Improvements, the City will release any remittance received from the Developer, whereupon the Developer shall then be obligated to construct Kechter Road as shown on the Final Development Plan Documents. In the event that the City has not constructed Kechter Road by September 1, 2002, the Developer shall have the right to construct its portion of the road as shown on the Final Development Plan Documents. If the Developer constructs Kechter Road, the City agrees to expand reimbursement rights to the Developer as specified in paragraph III.D.1 to include Kechter Road for those portions of said street abutting the Property as shown on the Final Development Plan Documents. Reimbursement for Kechter Road shall be for oversizing the street from local (access) standards to minor arterial standards for the oversized portion of the roadway that does not need to be removed and replaced with the full -width widening of Kechter Road by future development. 5. As shown on the Final Development Plan Documents, the Development contains certain roads extending to the periphery of the Development. Both parties agree that it would be beneficial if construction of these road improvements is delayed until such time as the property (or properties) adjoining such roads develops and needs the construction of such roads to such property or properties. In satisfaction of the Developer's obligation to construct such roads, the Developer shall have the option to pay for the future construction of said improvements. The amount of said payment shall be equal to the estimated cost to construct said improvements, which estimate shall be prepared by the Developer and approved by the City. This payment shall be in full satisfaction of the Developer's obligation for such roads. In the event the Developer constructs any of the improvements and such improvements are completed by the Developer and accepted by the City, the Developer shall be entitled to a prompt reimbursement equal to the principal paid to the City for that portion or, in the event payment for such street portion has not then been made, the Developer shall be relieved of its obligation to make payment for such street portion. The improvements for which the above -referenced payment shall be made are as described below: (A) Rock Creek Drive and Big Dipper Drive east of Northern Lights Drive, and Northern Lights Drive north of Rock Creek Drive, paid to the City prior to any building permits in Phase 1 of the Development; (B) Quasar Way south of Full Moon Drive, and Eclipse Lane west of Jupiter Drive, paid to the City prior to any building permits in Phase 3 10 of the Development; and (C) Eclipse Lane east of Northern Lights Drive, paid to the City prior to any building permits in Phase 4 of the Development. 6. Prior to the release of any building permits in Phase 1, the Developer shall have completed offsite construction of Rock Creek Drive west of Cambridge Avenue to Ziegler Road, and construction of the temporary access road along Cinquefoil Drive from south of Little Dipper Drive to Kechter Road as shown on the Final Development Plan Documents. 7. The Developer shall not be issued a building permit for Lots 52, 53, or 95 in Phase 2 of the Development until the temporary turnaround easement on these lot is vacated and the street improvements to Observatory Drive in front of these lots are completed including curb, gutter, and sidewalk in accordance with City standards. 8. The Developer shall not be issued a building permit for Lots 39 and 40 in Phase 2 of the Development until the temporary turnaround easement on this lot is vacated and the street improvements to Galileo Drive in front of this lot are completed including curb, gutter, and sidewalk in accordance with City standards. 9. The Developer shall not be issued a building permit for Lot 147 of the Development and no access shall be allowed off of Quasar Way from Lot 147 of the Development with Phase 2 construction as shown on the Final Development Plan Documents for this development until Quasar Way has been completed with either improvements along the full frontage of the lot with a City approved temporary turnaround, or a permanent cul-de-sac, or alternatively, until Quasar Way has been extended to become a through street in accordance with City standards. If a temporary turn around is provided, all necessary easements shall be provided prior to acceptance of such turnaround and the issuance of any building permit on Lot 147 and allowance of access off of Quasar Way to Lot 147. 10. Prior to the release of any building permits in Phase 2, or August 1, 2002, whichever is earlier the Developer shall have completed construction of the following in accordance with the Final Development Plan Documents: (A) All mid -block pedestrian connections located in Phase 1 (internal to Parcels J, Q, AAA, and ZZ); (B) The offsite asphalt pedestrian path connection along the future extension of Big Dipper Drive; and (C) The pedestrian path that runs north -south along the Development, east of Northern Lights Drive from Rock Creek Drive to Kechter Road. 11 11. Prior to the release of more than thirty-one (31) building permits in Phase 2, the Developer shall have completed construction of all mid -block pedestrian connections located in Phase 2 (internal to Parcels RR, SS, LL, MM, O, P, and S) as shown on the Final Development Plan Documents. 12. Prior to the release of more than twenty (20) building permits in Phase 3, the Developer shall have completed construction of the mid -block pedestrian connection located in Phase 3 internal to Parcel S as shown on the Final Development Plan Documents. 13. Prior to the release of more than sixteen (16) building permits in Phase 4, the Developer shall have completed construction of all mid -block pedestrian connections located in Phase 4 (internal to Parcels T and U) as shown on the Final Development Plan Documents. 14. No lots that front on the collector roadways, (Cambridge Drive and Rock Creek Drive) shall have vehicular (driveway) access off of said collector roadways. 15. With the exception of development on Parcel I, no lot that has rear frontage to a private drive and front frontage to a residential street shall be allowed to have vehicular (driveway) access off of said residential street. 16. All phases must be constructed in numeric succession and no construction can occur on any given phase until improvements to the proceeding phase have been completed. No building permits will be issued within Phases 2, 3, and 4 until the streets and utility facilities within the preceding Phases have been completed in accordance with Section I.C. of this agreement. 17. No building permits will be issued for any construction on Parcels A, B, D, and E until utility plans for each respective parcel are approved and the street improvements fronting each respective parcel are completed including curb, gutter, and sidewalk in accordance with City standards. 18. 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). 19. Following completion of all public infrastructure improvements, the Developer shall continue to have responsibility for maintenance and repair of said improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code of the City. 12 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, 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 13 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. G. Natural Resources 1. All seeded areas shall be inspected jointly by the Developer and the City at the following specified intervals. Areas seeded in the spring shall be inspected for required coverage the following fall not later than October 1. Areas seeded at any other time shall be inspected the following two summers not later than August 1. The required coverage for the first inspection shall be ten (10) viable live seedlings of the specified species per 1000 square centimeters (approximately one square foot), or fifty percent (50%) coverage of the specified foliage as measured from five feet (5') directly overhead, with no bare spots larger than 1000 square centimeters. At the time of the second growing season inspection, there shall be seventy-five percent (75%) foliage cover of the specified species planted as measured from five (5') directly overhead. No more than ten percent (10%) of the species noted on the site may be weedy species as defined by Section 20-41 of the City Code. a) Determination of required coverage will be based on fixed transects each ten meters in length, randomly placed in representative portions of the seeded areas, with plant species or bare ground/rock/litter being noted every ten (10) centimeters along each transect. b) The Developer shall warrant all seeded areas for two growing seasons from the date of completion. The Developer shall rework and reseed per original specifications any areas that are dead, diseased, contain too many weedy species, or fail to meet the coverage requirement at no additional cost to the City. 2. The Developer shall delineate the border of the 50' natural feature buffer surrounding the existing Significant Cottonwood on the southwest edge of the site, with orange construction fence prior to commencement of any type of construction, including without limitation, over lot grading. 3. Fueling facilities shall be located at least one hundred (100) feet from any significant tree, body of water, wetland, natural drainageway 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, runoff, or be washed into a body of water, wetland or drainageway. 4. Prior to the commencement of any grading or other construction, any prairie dogs inhabiting portions of the site within the Limits of Development (LOD) shall be relocated or eradicated by the developer. City -approved methods or relocation or eradication as set forth in Chapter 4 of the City Code shall be used, and, when applicable, the methods shall be reviewed and approved by the Colorado Division of Wildlife. If prairie 14 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. H. Development Construction Permit 1. The Developer shall apply for and obtain a Development Construction Permit for this Development, in accordance with Division 2.6 of the Land Use Code (or Section 29-12 of the Transitional Land Use Regulations, if applicable), prior to the Developer commencing construction. The Developer shall pay the required fees for said Permit and construction inspection, and post security to guarantee completion of the public improvements required for this Development, prior to issuance of the Development Construction Permit. I. Maintenance and Repair Guarantees 1. The Developer agrees to provide a two (2)-year maintenance guarantee and a five (5)-year repair guarantee covering all errors or omissions in the design and/or construction of the public improvements required for this Development, which guarantees shall run concurrently and shall commence upon the date of completion of the public improvements and acceptance thereof by the City. More specific elements of these guarantees are noted in Exhibit "C." Security for the maintenance guarantee and the repair guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code, or Section 29-14 of the Transitional Land Use Regulations, as applicable. Notwithstanding the provisions of paragraphs III (H) and (1) of this Agreement to the contrary, the obligations of the Developer pursuant to this paragraph and Exhibit "C" may not be assigned or transferred to any other person or entity unless the warranted improvements are completed by, and a letter of acceptance of the warranted improvements is received from the City by, such other person or entity. III. Miscellaneous A. The Developer agrees to provide and install, at its expense, adequate barricades, warning signs and similar safety devices at all construction sites within the public right-of-way and/or other areas as deemed necessary by the City Engineer and Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been completed. B. As required pursuant to Chapter 20, Article IV of the City Code, the Developer shall, at all times, keep the public right-of-way free from accumulation of waste material, rubbish, or building materials caused by the Developer's operation, or the activities of individual builders and/or subcontractors; shall remove such rubbish as often as necessary, but no less than daily and; at the completion of the work, shall remove all such waste materials, rubbish, tools, construction equipment, machinery, and surplus 15 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. E. Nothing herein contained shall be construed as a waiver of any requirements of the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable) and the Developer agrees to comply with all requirements of the same. F. In the event the City waives any breach of this Agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. G. All financial obligations of the City arising under this Agreement that are payable after the current fiscal year are contingent upon funds for that purpose being annually appropriated, budgeted and otherwise made available by the Fort Collins City Council, in its discretion. H. This Agreement shall run with the Property and shall be binding upon and inure to the benefit of the parties hereto, their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such 16 improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. I. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the Developer shall be released from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. J. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. K. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney's fees and costs incurred by reason of the default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph III.D of this Agreement. L. Except as may be otherwise expressly provided herein, this Agreement shall not be construed as or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever. M. It is expressly understood and agreed by and between the parties hereto that this Agreement shall be governed by and its terms construed under the laws of the State of Colorado and the City of Fort Collins, Colorado. N. Any notice or other communication given by any party hereto to any other party relating to this Agreement shall be hand -delivered or sent by certified mail, return receipt 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 17 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: Peter Benson Division President Village Homes, Northern Division 310 Lashley Street, Suite 108 Longmont, CO 80501 With a copy to: Donn Eley President and Chief Operating Officer Village Homes 6 West Dry Creek Circle Littleton, CO 80120 Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees or assigns, wishes to change the person, entity or address to which notices under this Agreement are to be sent as provided above, such party shall do so by giving the other parties to this Agreement written notice of such change. O. When used in this Agreement, words of the masculine gender shall include the feminine and neuter gender, and when the sentence so indicates, words of the neuter gender shall refer to any gender; and words in the singular shall include the plural and vice versa. This Agreement shall be construed according to its fair meaning, and as if prepared by all parties hereto, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto pertaining to the matters addressed in this Agreement. There shall be deemed to be no other terms, conditions, promises, understandings, statements, representations, expressed or implied, concerning this Agreement, unless set forth in writing signed by all of the parties hereto. Further, paragraph headings used herein are for convenience of reference and shall in no way define, limit, or prescribe the scope or intent of any provision under this Agreement. THE CITY OF FORT COLLINS, COLORADO, a Municipal orporation By „al City Man er M. City Clerk APPROVED AS TO CONTENT: C City Engine r APPRO AS TO FORM: Deputy City Attorney DEVELOPER: Village Flome$ of Colorado, Inc., a Colorado 0 19 B. BerVson, Oivision President activities" shall include, but not be limited to, the following: (1) the actual construction of improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or appearance of the Property caused by, or on behalf of, the Developer with the intent to construct improvements thereon. B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the approved utility plans and in full compliance with the standards and specifications of the City on file in the office of the City Engineer at the time of approval of the utility plans relating to the specific utility, subject to a three (3) year time limitation from the date of execution of this Agreement. In the event that the Developer commences or performs any construction pursuant hereto after the passage of three (3) years from the date of execution of this agreement, the Developer shall resubmit the utility plans to the City Engineer for reexamination. The City may then require the Developer to comply with the approved standards and specifications of the City on file in the office of the City Engineer at the time of the resubmittal. C. No building permit for the construction of any structure within the Property shall be issued by the City until the public water lines and stubs to each lot, fire hydrants, sanitary sewer lines and stubs to each lot, and public streets (including curb, gutter, and pavement with at least the base course completed) serving such structure have been completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred and sixty feet (660') from a single point of access, unless the structures contain sprinkler systems that are approved by the Poudre Fire Authority. D. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets described on Exhibit 'A," attached hereto, shall be installed within the time and/or sequence required on Exhibit "A." If the City Engineer has determined that any water lines, sanitary sewer lines, storm drainage facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the utility plans and shall be installed by the Developer within the time as established under "Special Conditions" in this document. E. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer, and storm drainage facilities and appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public improvements required by this Development as shown on the Final Development Plan Documents and other approved documents pertaining to this Development on file with the City. F. Street improvements shall not be installed until all utility lines to be placed therein have been completely installed, including all individual lot service lines leading in and from the main to the property line. G. The installation of all utilities shown on the Final Development Plan E acuarrv_N 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. 20 EXHIBIT "B" Not Applicable 21 EXHIBIT "C" Refer to the Final Plat for this Development 22 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. Public easements shall be provided for access, utilities and drainage as required by the design and location of the privately maintained drives as reflected on the plans. Alignment and grades on said privately maintained drives shall allow for safe access, ingress and egress by owners, visitors, the general public and public safety officials and equipment, as approved by the City Engineer. 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 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 storm drainage basin fees in accordance with Chapter 26, Article VII of the City Code. Storm drainage improvements eligible for credit 3 or City repayment under the provisions of Chapter 26 are described together with the estimated cost of the improvements on the attached Exhibit "B," which improvements, if applicable, shall include right-of-way, design and construction costs. See Section II.C, Special Conditions, Storm Drainage Lines and Appurtenances, for specific instructions. K. 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. L. The Developer specifically represents that to the best of its knowledge all portions of the Property dedicated (both in fee simple and as easements) to the City associated with this Development are in compliance with all environmental protection and anti -pollution laws, rules, regulations, orders or requirements, including solid waste requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such portions of the Property as are dedicated to the City pursuant to this Development, are in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority or any third party, pertaining to the disposal of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfill of hazardous substances, pollutants or contaminants, or environmental cleanup responsibilities of any nature whatsoever on, of, or related to any property dedicated to the City in connection with this Development, provided that such damages or liability are not caused by circumstances arising entirely after the date of acceptance by the City of the public improvements constructed on the dedicated property, except to the extent that such circumstances are the result of acts or omissions of the Developer. Said indemnification shall not extend to claims, actions or other liability arising as a result of any hazardous substance, pollutant or contaminant generated or deposited by the City, its agents or representatives, upon portions of the Property dedicated to the City in connection with this Development. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. CI II. Special Conditions A. Water Lines 1. Notwithstanding anything in this Agreement to the contrary, the Development will be provided water service from the Fort Collins -Loveland Water District ("Water District"), and all water line improvements shall be installed and inspected in accordance with the Water District's regulations and the approved plans therefor. 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 ("Sewer District"), and all sewer line improvements shall be installed and inspected in accordance with the Sewer District's regulations and the approved plans therefor. C. Storm Drainage Lines and Appurtenances 1. The Final Development Plan Documents for this Development call for the phasing of the construction of storm drainage improvements. The Developer shall complete these improvements sequentially in accordance with said Final Development Plan Documents starting with Phase 1 and ending with Phase 4. The sequential completion of these improvements shall necessitate that the required overall site drainage certification be done in phases in accordance with the following requirements: a) All on -site and off -site storm drainage improvements associated with Phase 1 of this Development, as shown on the Final Development Plan Documents, shall be completed by the Developer in accordance with said Final Development Plan Documents prior to the issuance of more than 24 building permits in Phase 1. Phase 1 construction shall include the overlot grading of the entire development site. Following the overlot grading of the entire site, all the disturbed areas in Phases 2 through 4 that are slated for future development shall be temporarily seeded and mulched. b) All on -site and off -site storm drainage improvements associated with Phase 2 of this Development, as shown on the Final Development Plan Documents, shall be completed by the Developer in accordance with said Final Development Plan Documents prior to the issuance of more than 30 single family building permits in Phase 2 of the Development. No building permits shall be issued in the commercial site on Parcel A shown as being part of Phase 2 of this Development prior to the completion of all drainage improvements associated with this phase of development. c) All on -site and off -site storm drainage improvements associated with Phase 3 of this Development, as shown on the Final Development Plan Documents, shall be completed by the Developer in accordance with said Final 5 Development Plan Documents prior to the issuance of more than 21 building permits in Phase 3 of the Development. d) All on -site and off -site storm drainage improvements associated with Phase 4 of this Development, as shown on the Final Development Plan Documents, shall be completed by the Developer in accordance with said Final Development Plan Documents prior to the issuance of more than 16 building permits in Phase 4 of the Development. e) In all cases, completion of improvements shall include the certification by a professional engineer licensed in Colorado that the drainage facilities which serve any particular phase of 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 additional building permits in each phase. 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 approved plans, the City shall give written notice to the Developer of all items which do not comply with the approved plans. 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 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 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 $112,575.00 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 erosion control provisions of the Criteria after receiving notice of the same or an emergency situation exists which would reasonably require immediate mitigation measures, then, in either event, and notwithstanding any provisions contained in paragraph III(J) to the contrary, the City may enter upon the Property for the purpose of making such improvements and undertaking such activities as may be necessary to ensure that the provisions of said plans and the Criteria are properly enforced. The City may apply such portion of the security 0 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 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 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. The 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 approved such changes as being acceptable for the safe and efficient delivery of storm drainage water. 6. The Developer shall limit the construction of the off -site 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 during construction of the off -site storm drainage improvements in accordance with the Final Development Plan Documents promptly following construction. The Developer shall ensure that no negative impact occurs to the adjoining properties to the east of the Development during the construction of the detention pond facilities on the east side of the Development. No grading shall be done outside of the approved areas as 7 shown on the Final Development Plan Documents. 7. The drainage design for this Development provides for the evacuation of storm drainage runoff in a reasonable amount of time out of the detention facilities and into the drainage outfall system. 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 dewatering system in the detention facilities. Such a system shall be reviewed and approved by the City prior to installation. 8. The Developer shall be responsible for maintenance of all storm drainage facilities that are constructed outside of the public right-of-way, except for the storm drainage lines that are partially serving this development along Rock Creek Drive and Kechter Road, which lines shall be maintained in their entirety by the City following certification of these lines by the Developer and their acceptance by the City. 9. The Developer shall obtain a permit to allow discharge of drainage water into the North Poudre Irrigation Company's ditch prior to the recordation of the subdivision plat for the Property. Such permit shall include the Developer's Agreement to indemnify and hold harmless the North Poudre Irrigation Company ("Irrigation Company") and the City from any claims, damages, injury or cause of action against the Irrigation Company or the City by the Developer, or its successors and assigns, in relation to the normal operation and use of the ditch by the Irrigation Company, and the Developer shall further indemnify and hold harmless the City and the Irrigation Company from any such claims, damages, injury or cause of action by third parties which result from stormwater volumes added to the ditch by the Developer in excess of historic flows except as such claims, damages, injury or cause of action are as a result of a negligent act or acts of the Irrigation Company. 10. In accordance with the City's McClelland Master Drainage Plan Update and the Final Development Plan Documents, the 100-year developed stormwater flow from the Development shall be detained, and these developed flows shall be released into the Irrigation Company's ditch at a rate not to exceed 0.5 cfs per acre. D. Streets. 1. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing public street improvements along Cambridge Avenue and Rock Creek Drive for those portions of said street abutting the Property as shown on the Final Development Plan Documents. Reimbursement for Cambridge Avenue shall be for oversizing the street from local (access) standards to collector standards for the oversized portion of the roadway that does not need to be removed and replaced with the full -width widening of Cambridge Avenue by future development. Reimbursement for Rock Creek Drive shall be for oversizing from local (access) standards to collector 0 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 except in circumstances where a mistake has been made in the calculation of a payment amount. It is anticipated by the City that the City's reimbursement, in accordance with Section 24-112 (d), would not be less than fifty percent (50%) of the Developer's actual expenses incurred and will be calculated in accordance with the formula as set forth in Section 24-112 (d). 2. It is understood that the improvements that are to be constructed in the public right-of-way as described in this Section II(D) are "City improvements" (as defined below) and, as such, any contract for the construction of the same must be executed in writing. If the cost of such improvements exceeds the sum of Thirty Thousand Dollars ($30,000), the contract for the construction of the same must be submitted to a competitive bidding process resulting in an award to the lowest responsible bidder; and evidence must be submitted to the City prior to the commencement of the work showing that the award was given to the lowest responsible bidder. If the cost of such improvements exceeds Fifty Thousand Dollars ($50,000), the contract for the construction of the improvements must be insured by a performance bond or other equivalent security. For purposes of this paragraph, the term "City improvements" shall mean either (1) existing improvements owned by the City that are to be modified or reconstructed, or (2) any improvements funded in whole or in part by the City. 3. No street oversizing reimbursement shall be due the Developer for Big Dipper Drive and Cinquefoil Lane. 4. The City is contemplating construction of Kechter Road from Ziegler Road to Strauss Cabin Road ("Kechter Road Improvements") as a City Street Oversizing Capital Improvement Project. The Kechter Road Improvements require cooperation between the City and the Developer as well as other neighboring properties in the area in order for the City to construct said improvements. In lieu of the Developer's obligation to construct Kechter Road adjacent to the Development, the Developer shall remit to the City in cash the Developer's estimated local street portion of Kechter Road as reasonably determined by the City. The Developer's remittance of said local street portion is due by Es]