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HomeMy WebLinkAboutSOUTHMOOR VILLAGE FIFTH TRACT E - Filed DA-DEVELOPMENT AGREEMENT - 2011-11-30RECEPTION#: 20110070374, 11/17/2011 at 12:01:34 PM, 1 OF 17, R $91.00 TD Pgs: 0 Scott Doyle, Larimer County, CO DEVELOPMENT AGREEMENT (Tract E of the Foothills Mali) THIS DEVELOPMENT AGREEMENT (the "Agreement"), is made and entered into as of this 7th day of September, 2011, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and GGP -Foothills L.L.C., a Delaware limited liability company, hereinafter referred to as the "Developer." WITNESSETH: WHEREAS, the Developer is the owner of certain real property situated in the County of Larimer, State of Colorado (hereafter sometimes referred to as the "Property" or "Development") identified as Tax Parcel No. 97253-08-005 and legally described as follows, to wit: Tract E, Southmoor Village, Fifth Filing, located in the Southwest X of Section 25, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the Developer desires to redevelop the Property and has submitted to the City all plans (including utility plans), reports and other documents (the "Final Development Plan Documents") that are required for the approval of a final plan according to the City's development application submittal requirements master list, 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 in connection with the development of the Property the Developer will install certain Sidewalk Improvements (as defined in Section II.A.1 below) for the benefit of the City and the Developer; and WHEREAS, the City has approved the Final Development Plan Documents submitted by or on behalf of the Developer, subject to certain requirements and conditions, which involve the installation of and construction of the Sidewalk Improvements in connection with the development of the Property as set forth in this Agreement. 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: 1 ✓ City Clerk's Office, Fort Collins, Colorado 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 either hand -delivered, sent by certified mail, return receipt requested, or sent by an overnight courier that issues a delivery receipt, 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, three (3) days after so mailed, or one (1) day after sent by overnight courier: 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 Fork Collins, CO 80522 If to the Developer: GGP -Foothills L.L.C. 110 N. Wacker Drive Chicago, IL 60606 Attn: Chief Legal Officer With a copy to: GGP-Foothills L.L.C. 215 E. Foothills Parkway, Suite 220 Fort Collins, Co 80525 Attn: General Manager 10 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. [Remainder of page intentionally left blank. Signature page follows.] 11 hi witness whereof, the parties have executed this Agreement as of the date first above written. COi h City Clerk ,` APPROVED AS TO C'Q -r 1nq rt y Engmegr APPROV TO FORM: DdrutMity Attorney THE CITY OF FORT COL S, CO RADO, a Municipal Corporation By: City -Manager DEVELOPER: GGP-FootIrmiled Is, L. re a Delawa By: arvin J. ev STATE OF ILLINOIS ) Senior Vie P ) ss. COUNTY OF COOK ) company t and Chief Legal Officer GGThe foregoing instrument was acknowledged before me this �` day of , 2011, by Marvin J. Levine as Senior Vice President and Chief Legal Officer of G P -Footh ills, L.L.C. Notary Public My Commission Expires: 12,.- ENOTARRY AL SEAL C NISSEN . STATE OF ILLINOISN EXPIRES:08/22J 2 MAINTENANCE GUARANTEE: EXHIBIT "A" The Developer hereby warrants and guarantees to the City, for a period of two (2) years from the date of completion and first acceptance by the City of the Sidewalk Improvements, water service line, and fire line (collectively, the "Guaranteed Improvements") the full and complete maintenance and repair of the Guaranteed Improvements. This warranty and guarantee is made in accordance with the City of Fort Collins Land Use Code and/or the Transitional Land Use Regulations, as applicable. This guarantee applies to the Guaranteed Improvements. Any maintenance and/or repair required on utilities shall be coordinated with the owning utility company or city department. The Developer shall maintain the Guaranteed Improvements in a manner that will assure compliance on a consistent basis with all construction standards, safety requirements and environmental protection requirements of the City. The Developer shall also correct and repair, or cause to be corrected and repaired, all damages to the Guaranteed Improvements resulting from development -related or building -related activities. In the event the Developer fails to correct any damages within thirty (30) days after written notice thereof, then said damages may be corrected by the City and all reasonable and actual costs and charges billed to and paid by the Developer. The City shall also have any other remedies available to it as authorized by this Agreement. Any damages which occurred prior to the end of said two (2) year period and which are unrepaired at the termination of said period shall remain the responsibility of the Developer provided the City has delivered notice to the Developer of such damages prior to the expiration of said two (2) year period. REPAIR GUARANTEE: The Developer agrees to hold the City of Fort Collins, Colorado, harmless for a five (5) year period, commencing upon the date of completion and acceptance by the City of the Guaranteed Improvements, from any and all claims, damages, or demands arising on account of the design and construction of the Guaranteed Improvements; and the Developer furthermore commits to make necessary repairs to the Guaranteed Improvements resulting from failures caused by design and/or construction defects. This agreement to hold the City harmless includes defects in materials and workmanship, as well as defects caused by or consisting of settling trenches, fills or excavations. Further, the Developer agrees that the City shall not be liable to the Developer during the warranty period, for any claim of damages resulting from negligence in exercising engineering techniques and due caution in the construction of cross drains, drives, structures or buildings, the changing of courses of streams and rivers, flooding from natural creeks and rivers, and any other matter whatsoever on private property. Any and all monetary liability occurring under this paragraph shall be the liability of the Developer. The obligations of the Developer pursuant to the "maintenance guarantee" and "repair guarantee" provisions set forth above may not be assigned or transferred to any other person or entity unless the warranted improvements are completed by, and a letter of acceptance of the warranted improvements is received from the City by, such other person or entity. EXHIBIT "B" CONCEPTUAL PLAN FOR SIDEWALK IMPROVEMENTS (See Attached) p n n D n D n r n g3al ENFEaj9l�l o € �b�$rn nz6 € A q in ; o N_ lit a 2103 wuKNMK t7AKEF<y - CONCEPT SIDEWALK DESIGN a CONCEPT LAYOUT ., ��NORTHERN^ OPTION 1 ENGINEERING nt F� _j +F, q m m [ m \ m ■§ � � � # m || | | |||||||||�| ] • .�� :B - § ° 66| - ' CORNER BAKERY -CONCEPT SIDEWALK »Sw coc���u T OPTION NHERN � NORTHERN ENGINEERING � _ 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 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 modifications to, replacements of or new or additional water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, sidewalks, and bikepaths shown on the Final Development Plan Documents shall be installed as shown on the Final Development Plan Documents and in full compliance with the standards and specifications of the City on file in the office of the City Engineer as of the date 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 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. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all modifications to, replacements of or new or additional water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, sidewalks, and bikepaths shown on the Final Development Plan Documents. D. 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 installation in order to meet the standard City specifications applicable to such installation. In case of conflict, the Final Development Plan Documents shall supersede the standard City specifications, except that if the conflicts are a result of Federal or State mandated requirements, then the Federal or State mandated requirements shall prevail. E. All new storm drainage facilities or alterations to the existing storm drainage facilities shown on the Final Development Plan Documents shall be designed and constructed by the Developer so as to protect downstream and adjacent properties against injury and to adequately serve the Property. The Developer shall cause all new storm drainage facilities or alterations to the existing storm drainage facilities shown on the Final Development Plan Documents to 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 materially different from that which was historically discharged and caused by the design or construction of the new storm drainage facilities or alterations to the existing storm drainage facilities shown on the Final Development Plan Documents, 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 City's Drainage Master Plans and Design Criteria; 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 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. F. The Developer shall provide the City Engineer with certified Record Plan Transparencies on Black Image Diazo Reverse Mylars upon completion of the Sidewalk Improvements. Utilities will not be initially accepted prior to as -built drawings being submitted to and approved by the City of Fort Collins. G. The Developer specifically represents that to its knowledge all property dedicated (both in fee simple and as easements) to the City associated with this Development (whether on or off -site) is in compliance with all environmental protection and anti -pollution laws, rules, regulations, orders or requirements, including solid waste requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such property as is dedicated to the City pursuant to this Development, is in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority or any third party, pertaining to the disposal of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfili 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 3 that such circumstances are the result of acts or omissions of the Developer. Said indemnification shall not extend to claims, actions or other liability arising as a result of any hazardous substance, pollutant or contaminant generated or deposited by the City, its agents or representatives, upon the property dedicated to the City in connection with this Development. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided the Developer must obtain a complete discharge 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. For the avoidance of doubt, the parties acknowledge and agree that no property is dedicated to the City by the Developer's execution and delivery of this Agreement. IL Special Conditions A. Sidewalks. 1. As used in this Agreement, the term "Sidewalk Improvements" shall mean those certain sidewalk improvements along South College Avenue (SH287) adjacent to the Property, including an off site sidewalk connection to the bus stop north of the Property, the design and construction of which shall be in accordance with applicable law, including, without limitation, the City Code and the Larimer County Urban Area Street Standards (the "LCUA Street Standards"), and shall be subject to the reasonable approval of both the City and the Developer. Attached as Exhibit "B" to this Agreement is the conceptual design of the Sidewalk Improvements ("Conceptual Design"). The Developer acknowledges that a variance will be required to permit five (5) foot wide sidewalks as shown on the Conceptual Plan in lieu of the required seven (7) foot wide sidewalks. The Developer shall be responsible for applying for this variance, and any other variances required to design and construct the Sidewalk Improvements as shown on the Conceptual Plan. Any material deviation from the Conceptual Design not required to comply with applicable law shall be subject to the reasonable approval of both the City and the Developer. The Developer acknowledges that the City has raised certain safety concerns with the Conceptual Plan, and the Developer agrees to work in good faith with the City to address the City's safety concerns as the final plans for the Sidewalk Improvements are developed. Subject to the conditions of this Agreement, the City agrees to reimburse the Developer for oversizing the sidewalk along South College Avenue (SH 287) for those portions of said street abutting the Property all as shown on the Final Development Plan Documents if the Developer is the party that constructs said improvements. Reimbursement for South College Avenue (SH 287) shall be for oversizing the street sidewalk from local (access) standards to Arterial standards. The City shall make reimbursement to the Developer for the Sidewalk 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 the Sidewalk Improvements unless funds for such payments shall first have been budgeted and appropriated Street Oversizing Fund by the City Council; and the Developer further undrsstands and the City agrees 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 the Sidewalk improvements. 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 reimbursement to the Developer for the Sidewalk Improvements. The City agrees to use good faith efforts to budget and appropriate funds to reimburse the Developer for the Sidewalk Improvements. 2. It is understood that the improvements that are to be constructed in the public right-of-way as described in this Section II(A) 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. in accordance with Section 24-95 of the City Code the Developer is responsible for constructing the Sidewalk Improvements prior to the issuance of the first building permit. Notwithstanding the foregoing the City will issue building permits and certificates of occupancy prior to construction of the Sidewalk Improvements, and the Developer shall have the option to postpone the construction of the Sidewalk Improvements until December 31, 2013. In the event the Developer has not completed construction of the Sidewalk Improvements by the time a certificate of occupancy is ready to be issued for any building on the Property, the Developer shall deliver to the City the amount of $75,000 (the "Deposit") as a cash deposit to guarantee completion of the design and construction of the Sidewalk Improvements and the City will issue the certificate of occupancy. At the Developer's option, the Deposit may be a letter of credit or bond in lieu of cash. Upon completion of the Sidewalk Improvements by the Developer, the City shall return the Deposit to the Developer. Any interest earned by the City on the Deposit shall be the property of the City to cover administration expenses. Notwithstanding the foregoing or any provision to the contrary contained herein, in the event the Developer does not develop the Property the Developer shall not be required to design and construct the Sidewalk Improvements. W, 4. If the Developer is the party that constructs the sidewalk along the frontage of the property, the Developer shall submit to the City all plans for the design of the sidewalk for City review and approval. Any easements needed to accommodate the sidewalk location (utility, grading, construction or access easements) shall be provided by the Developer, including any processing and applicable recording fees prior to City approval of the plans and issuance of the Development Construction Permit s. If the Developer is not the party that designs the sidewalk along the frontage of the property and the City or it's agents proceed with the design of the sidewalk, the Developer agrees to provide to or obtain for the City any necessary easements that may be needed by the City (in a form satisfactory to the City) or the Citys representative that may be needed to construct said sidewalk along South College Avenue (SH287). The easements may consist of grading easements, construction easements, utility easements, and/ or access easements that may be necessary to accommodate the sidewalk along the frontage of the Property and or g at no charge to the City. The easements shall be provided by the Developer at no cost to the City. b. 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. B. 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 the City's storm drainage facilities that serve 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. 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. 3. 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. C. Hazards and Emergency Access 1. Prior to beginning any building construction, and throughout the build -out of this Development, the Developer shall provide and maintain at all times a reasonable accessway to each building. Such accessway shall be adequate to handle any emergency vehicles or equipment, and the accessway shall be kept open during all phases of construction. Such accessway shall be constructed to an unobstructed width of at least 20 feet with 4 inches of aggregate base course material compacted according to city standards and with an 100 foot diameter turnaround at the building end of said accessway. The turnaround is not required if an exit point is provided at the end of the accessway. Prior to the construction of said accessway, a plan for the accessway shall be submitted to'and approved by the Poudre Fire Authority and City Engineer. (Three plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for review and processing.) If such accessway is at any time deemed inadequate by the Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into compliance and until such time that the accessway is brought into compliance, the City and/or the Poudre Fire Authority may issue a stop work order for all or part of the Development. Notwithstanding the foregoing or any provision to the contrary contained herein, the City hereby approves the existing construction accessways located on the Property. D. Development Construction Permit 1. The Developer shall apply for and obtain a Development Construction Permit for this Development, in accordance with Division 2.6 of the Land Use Code, prior to the Developer commencing construction. The Developer shall pay the required fees for said Permit and construction inspection, and post the Deposit as required pursuant to Section II.A.3 of this Agreement. E. Maintenance and Repair Guarantees I. The Developer agrees to provide a two-year maintenance guarantee and a five-year repair guarantee covering all errors or omissions in the design and/or construction of the public improvements required for this Development, which guarantees shall run concurrently and shall commence upon the date of completion of the public improvements and acceptance thereof by the City. More specific elements of these guarantees are noted in Exhibit "A," Security for the maintenance guarantee and the repair guarantee shall be as provided in Section 3.3.2(C) of the Land Use Code. Notwithstanding the provisions of paragraph III (H) and (1) of this Agreement to the contrary, the obligations of the Developer pursuant to this paragraph and Exhibit "A" 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. Provided the Sidewalk Improvements are completed in accordance with the Final Development Plan Documents and applicable law, including, without limitation, the City Code and the LCUA Street Standards, the City shall deliver a letter of acceptance to the Developer not later than thirty (30) days after the completion of the Sidewalk Improvements. Ill. 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) business 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 or its successors in interest 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 by the Developer or its successors in interest that are required by the City for the approval of an amendment to a development plan. In the event the Developer is in default under this Agreement beyond the applicable notice and cure periods set forth in Section I11.J. below, 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 Agreement. The processing and "routing for approval" 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 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 or the Land Use Code 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, including any subsequent replatting of all, or a portion of the Property. This Agreement shall also be binding upon and inure to the benefit of the parties hereto, their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. I. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the Developer shall be released from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. J. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the 9