Loading...
HomeMy WebLinkAbout800 LEMAY PROPERTIES - Filed DA-DEVELOPMENT AGREEMENT - 2003-07-31DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this N day of FELT; , A.D. 198�-, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as "the City," and 800 LEMAY PROPERTIES, a Colorado limited partnership, hereinafter referred to as "the Developer," WHEREAS, the Developer is the owner of certain property situate in the County of Larimer, State of Colorado, and legally described as follows, to -wit: 800 Lemay Properties, a subdivision of a portion of the Northwest Quarter of Section 18, Township 7 North, Range 68 West of the 6th P.M., City of Fort Collins, Larimer County, Colorado. WHEREAS, the developer desires to develop said property and has submitted to the City a subdivision plat and/or a site plan, a copy of which is on file in the Office of the City Engineer and made a part hereof by reference: and WHEREAS, the Developer has further submitted to the City a utility plan for said lands, a copy of which is 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 said lands 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 subdivision plat and/or site plan submitted by the Developer subject to certain requirements and conditions or, (c) avail itself of any other remedy at law or equity. In the event of 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 attorneys' fees and costs incurred by reason of default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph 3 E of this Agreement. THE CITY OF FORT COLLINS, COLORADO A Muni ci Cor grati on By City Manag6r ATTEST: 1 I City Clerk APPROVED AS TO FORM: City Sifgi i neer— . f City t orney 7 +° 800 L MAY PROPERTIES, a Colorado limi artners 4Z 42�n W. Fries, General Partner Patricia Potter, General Partner -10- FXNTRTT "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. Storm drainage improvements to be installed out of sequence. See paragraph 2.A. -11- EXHIBIT "B" The Development Agreement for 809 Lemay Properties. This exhibit does not apply to this development. COST ESTIMATE FOR MAJOR DRAINAGE IMPROVEMENTS Include only those major storm drainage basin improvements required by an adopted basin master plan. ITEM DESCRIPTION 1. Storm sewer, manholes, end sections, etc. Sub -Total UANTITY UNIT COST TOTAL COST L.f. /L.f. $ L.f. /L.f. $ Ea. Ea. $ Ea. Ea. $ 2. Channel excavation, detention pond excavation and riprap ( a) C.Y. $ /C.Y. $ (b) C.Y. $ /C".Y. $ (c) C.Y. $ /C.Y. $ Sub -Total $. EXHIBIT B - Page 2 ITEM DESCRIPTION 3. Right-of-way & easement acquisition (a) (b) Sub -Total 4. ( a) Professional Design Other UANTITY UNIT COST TOTAL COST S.F. $ /S.F. $ Ac. $ /Ac. $ $ Lump Sum $ Total estimated cost of Storm Drainage improvements eligible for credit or City repayment Prepared by: Address: Title: E 800 Lemay Properties Amendment Agreement No.l THIS AMENDMENT AGREEMENT, is made and entered into this Lq day of COLORADO a munic- 1986, by and between the CITY OF FORT COLLINS, ipa corporation ("City"), and 800 LEMAY PROPERTIES, a Colorado limited partnership ("Developer"), is an amendment to that certain Development Agreement dated the 18th of February, A.D. 1986, by and between the City and 800 LEMAY PROPERTIES (the "Development Agreement"). WHEREAS, the parties hereto previously executed a Development Agree- ment on February 18, 1986. WHEREAS, the parties are presently desirous of modifying the original Development Agreement referred to above. NOW THEREFORE, in consideration of the initial promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: Paragraph A of Section 2 ("Special Conditions") of the Development Agreement: is hereby amended to provide as follows: A. Storm drainage lines and appurtenances. The Developer has submitted to the City Storm Drainage Utility a stone drainage plan and report as required in the Develop- ment Agreement. The City has approved the drainage plan with the condition that the Developer agrees to the three require- ments below: (i) The Developer shall be solely responsible for maintenance of the drainage facilities, including the 12" storm drainage line across Lemay Avenue from the site. (ii) Vertical and horizontal locations of water, sani- tary sewer and electric services along the route of the proposed storm sewer must be- field verified before beginning site work or cutting Lemay Avenue. (iii)No work of any form can take place within the Lemay Avenue right-of-way before gaining approval from the Traffic Engineering Division (221-6615) and providing 24 hours advance notice to the Engineer- ing Construction Inspectors (221-6605). Except as herein amended or modified, The Development Agreement dated February 18, 1986, shall continue in full force and effect. This Development Agreement and Amendment No. 1 constitutes the entire under- standing of the parties. IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first written. ATTEST: _U�& S*0� City Clerk APPROVED: G lGG%�7 `C City Attorney C? City veer CITY OF FORT COLLINS y'munipal corporation By City Manager 800 LEMAY PROPERTIES, a Colorado limited partnership arvin W. Fries, General Partner Patricia Potter, General Partner �;t_4'jg M4�z"�' � John E. Maher RCPTN # 86014099 .120/86 14:59:09 # OF PAGES — 1 FEE — J. ULVANG, RECORDER - LARIMER COUNTY, CO. DOC. FEE- $.00 NOTICE Please take notice that on February 24, 1986, the Planning and Zoning Board of the City of Fort Collins, Colorado, approved the Final Subdivision Plat known as 800 Lemay Properties , which development was submitted and pro- cessed in accordance with Section 118-83 of the Code of the City of Fort Collins. The Final Plat of the subject property together with the develop- ment agreement dated February 18, 1986 between the City of Fort Collins and the developer, out of which document accrue certain rights and obligations of the developer, and/or subsequent owners of the subject property, are on file in the office of the Clerk of the City of Fort Collins. The subject property is more particularly described as follows: Being a plat of a portion of the northwest one quarter of Section 18, Township 7 North, Range 68 West of the 6th p.m., City of Fort Collins, County of Lari mer, State of Colorado tty Secret ry, ann�ng and Zoning Boa City f Fo�t Collins Dated: #5 It ! l)t4 $3.00 DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this / , day of , A.D. 198�-y by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as "the City," and 800 LEMAY PROPERTIES, a Colorado limited partnership, hereinafter referred to as "the Developer," WITNESSETH: WHEREAS,, the Developer is the owner of certain property situate in the County of Larimer, State of Colorado, and legally described as follows, to -wit: 800 Lemay Properties, a subdivision of a portion of the Northwest Quarter of Section 18, Township 7 North, Range 68 West of the 6th P.M.,, City of Fort Collins, Larimer County, Colorado. WHEREAS„ the developer desires to develop said property and has submitted to the City a subdivision plat and/or a site plan, a copy of which is on file in the Office of the City Engineer and made a part hereof by reference: and WHEREAS„ the Developer has further submitted to the City a utility plan for said lands, a copy of which is 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 said lands 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 subdivision plat and/or site plan 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 said lands. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, it is agreed as follows: 1. General Conditions. A. 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 Council -approved 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 two (2) 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 two (2) years from the date of execution of this agreement, the Developer shall resubmit the project utility plans to the City Engineer for reexamination. The City may require the Developer to comply with approved standards and specifications of the City on file in the Office of the City Engineer at the time of resubmittal. B. No building permit for the construction of any structure within the development shall be issued by the City until the water lines, fire hydrants, sanitary sewer and streets (with at least the base course completed) serving such structure -2- have seen completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred sixty feet (660') from a single point of access. C. 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 sewer 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. D. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer and storm sewer facilities and appurtenances, and all streets, curbing, gutter, sidewalks, bikeways and other municipal facilities necessary to serve the lands within the development. E. Street improvements (except curbing, gutter and walks) 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. F. The installation of all utilities shown on the utility drawings shall be inspected by the Engineering Division of -3- which -involve the installation of and construction of utilities and other municipal improvements in connection with said lands. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, it is agreed as follows: 1. General Conditions. A. 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 Council -approved 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 two (2) 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 two (2) years from the date of execution of this agreement, the Developer shall resubmit the project utility plans to the City Engineer for reexamination. The City may require the Developer to comply with approved standards and specifications of the City on file in the Office of the City Engineer at the time of resubmittal. B. No building permit for the construction of any structure within the development shall be issued by the City until the water lines, fire hydrants, sanitary sewer and streets (with at least the base course completed) serving such structure -2- the City and shall be subjected 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 utility drawings shall supersede the standard specifications. G. 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 to be developed (and other lands as may he required, if any). The Developer has met or exceeded minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer 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 development 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) 10 specific directives as may be given to the Developer by the City. 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 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, subsequent purchasers of property in the development and downstream and adjacent property owners all of whom shall be third party beneficiaries of said agreement between the Developer and Engineer. H. The Developer shall pay storm drainage basin fees in accordance with Chapter 93 of the City Code. Storm drainage improvements eligible for credit or City repayment under provisions of Chapter 93 are described together with the estimated cost of the improvements on the attached Exhibit "B", which improvements shall include right of way, design and construction costs. The basin fee payable by the Developer shall be reduced by the estimated cost of said eligible improvements. Upon completion of such eligible improvements, the amount of such reduction shall be adjusted to reflect the actual cost. If the cost of the eligible improvements constructed by the Developer and described in the above mentioned exhibit exceeds the amount of the storm drainage fees payable for the development, the City shall reimburse the excess cost out of the Storm Drainage fund upon -5- completion of the improvements and approval of the construction by the City. I. The Developer shall provide the City Engineer with certified Record Utility Drawing Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construction. 2. Special Conditions. A. Storm drainage lines and appurtenances. Prior to the issuance of any building permit the developer agrees to submit to the City Storm Drainage Utility a Storm drainage plan and report and obtain City approval of said plan and report. Any requirements that result from the City's approval of said Storm drainage plan and report shall be completed prior to the issuance of any Certificate of Occupancy. B. Streets. The City agrees to repay the Developer for oversizing only the sidewalk along Lemay Avenue to arterial standards in lieu of local street standards in accordance with Section 99-6(F) of the Code of the City of Fort Collins. When payment is requested by the Developer, the City's obligation for payment shall be limited to those funds then budgeted, appropriated, and available by the City for that development or work then completed. 3. Miscellaneous. A. The Developer agrees to provide and install, at his 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 in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been approved by the City Engineer. B. The Developer shall, at all times, keep the public right- S. of -way free from accumulation of waste material or rubbish caused by his operation, shall remove such rubbish no less than weekly 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. He further agrees to maintain the finished street surfaces free from dirt caused by his operation. 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 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 his expense and he shall be respon- sible for prompt payment of all such costs. C. The Developer hereby insures that his subcontractors shall 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. When the inspector determines that erosion (either by wind or water) is likely to be a problem, the surface area of erodable earth material exposed at any one time shall not exceed 200,000 square feet for earthworks operations. Temporary or permanent erosion control shall be incorporated into the subdivision at the earliest practicable time. By way of explanation and without limitation, said control may -7- consist of seeding of approved grasses, temporary dikes, gabions, and/or other devices. E. 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 original plat, or on any replat subsequently filed by the Developer, and the City may withhold such building permits and certificates of occupancy as it deems necessary to ensure performance hereof. In addition, it is agreed and understood between the developer and the City that the City shall have the right to refuse issuance of building permits and certificates of occupancy in the subject development as the City, in its sole discretion, shall deem necessary in order to insure performance by the Developer of any other obligation the Developer may have to the City, whether pursuant to other development agreements, or otherwise. F. Nothing herein contained shall be construed as a waiver of any requirements of the City Code, and the Developer agrees to comply with all requirements of the same. 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. Financial obligations of the City of Fort Collins payable after the current fiscal year and/or not appropriated or budgeted are contingent upon funds for that purpose being M appropriated, budgeted and otherwise made available. I. This Agreement shall run with the real property hereinabove described and shall be binding upon the parties hereto, their personal representatives, heirs, successors, grantees and assigns. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, assignment of any portion of the Developer's proprietary interest in the real property hereinabove described, as well as any assignment of the Developer's rights to develop such property under the terms and conditions of this Agreement. J. In the event the Developer hereafter transfers title to such real property and is thereby divested of all equitable and legal interest in said property, the City hereby agrees to release said Developer 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. K. Each and every term and condition of this Agreement shall be deemed to be a material element thereof. In the event either party shall fail or refuse to perform according to the terms of this Agreement, such party may be declared in default. In the event a party has been declared in default hereof, such defaulting party shall be allowed a period of five (5) 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; M or, (c) avail itself of any other remedy at law or equity. In the event of 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 attorneys' fees and costs incurred by reason of default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph 3 E of this Agreement. ATTEST: Ctty Clerk APPROVED AS TO FORM: i C7 y Wgineer % C ty Aitorney THE CITY OF FORT COLLINS, COLORADO A Muni cipal.Cprp!�"tian By City Manager 800 LEMAY PROPERTIES, a Colorado Zpartlimit nership r in W. Fries, General Partner 1 Patricia Potter, General Partner -10- 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. Storm drainage improvements to be installed out of sequence. See paragraph 2.A. -11- EXHIBIT "B" The Development Agreement for 809 Lemay Properties. This exhibit does not apply to this development. COST ESTIMATE FOR MAJOR DRAINAGE IMPROVEMENTS Include only those major storm drainage basin improvements required by an adopted basin master plan. ITEM DESCRIPTION QUANTITY UNIT COST TOTAL COST 1. Storm sewer, manholes, end sections, etc. (a) L.f. /L.f. $ (b) L.f. /L.f. $ (c) Ea. Ea. $ (d) Ea. Ea. $ Sub -Total $ 2. Channel excavation, detention pond excavation and riprap (a) C.Y. $ /C.Y. $ (b) C.Y. $ /C.Y. $ (c) C.Y. $ /C.Y. $ Sub -Total $ EXHIBIT B - Page 2 ITEM DESCRIPTION 3. Right-of-way & easement acquisition (a) (b) Sub -Total 4 (a) 5 Professional Design Other TITY UNIT COST TOTAL COST S.F. $ /S.F. $ Ac. $ /Ac. $ Lump Sum $ Total estimated cost of Storm Drainage improvements eligible for credit or City repayment Prepared by: Address: Title: have seen completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred sixty feet (660') from a single point of access. C. 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 sewer 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. D.. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer and storm sewer facilities and appurtenances, and all streets, curbing, gutter, sidewalks, bikeways and other municipal facilities necessary to serve the lands within the development. E. Street improvements (except curbing, gutter and walks) 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. F. The installation of all utilities shown on the utility drawings shall be inspected by the Engineering Division of -3- the City and shall be subjected 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 utility drawings shall supersede the standard specifications. G. 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 to be developed (and other lands as may he required, if any). The Developer has met or exceeded minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer 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 development 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) -4- specific directives as may be given to the Developer by the City. 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 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, subsequent purchasers of property in the development and downstream and adjacent property owners all of whom shall be third party beneficiaries of said agreement between the Developer and Engineer. H. The Developer shall pay storm drainage basin fees in accordance with Chapter 93 of the City Code. Storm drainage improvements eligible for credit or City repayment under provisions of Chapter 93 are described together with the estimated cost of the improvements on the attached Exhibit "B", which improvements shall include right of way, design and construction costs. The basin fee payable by the Developer shall be reduced by the estimated cost of said eligible improvements. Upon completion of such eligible improvements, the amount of such reduction shall be adjusted to reflect the actual cost. If the cost of the eligible improvements constructed by the Developer and described in the above mentioned exhibit exceeds the amount of the storm d'.rainage fees payable for the development, the City shall reimburse the excess cost out of the Storm Drainage fund upon -5- completion of the improvements and approval of the construction by the City. I. The Developer shall provide the City Engineer with certified Record Utility T)rawing Transparencies on Black Image Diazo Reverse ?MyIars upon completion of any phase of the construction. 2. Special Conditions. A. Storm drainage lines and appurtenances. 1. Prior to the issuance of any building permit the developer agrees to submit to the City Storm Drainage Utility a Storm drainage plan and report and obtain City approval of said ,plan and report. Anv requirements that result from the City's approval of said Storm drainage plan and report shall be completed prior to the issuance of any Certificate of Occupancy. B. Streets. The City agrees to repay the Developer for oversizing only the sidewalk along Lemay Avenue to arterial standards in lieu of local street standards in accordance with Section 99-6(F) of the Code of the City of Fort Collins. 11hen payment is requested by the Developer, the City's obligation for payment shall be limited to those funds then budgeted, appropriated, and available by the City for that development or work then completed. 3. Miscellaneous. A. The Developer agrees to provide and install, at his 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 in accordance with the City's "Work Area Traffic Control Handbook" and shall not remove said safety devices until the construction has been approved by the City Engineer. B. The Developer shall, at all times, keep the public right- -6- of -way free from accumulation of waste material or rubbish caused by his operation, shall remove such rubbish no less than weekly 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. He further agrees to maintain the finished street surfaces free from dirt caused by his operation. Any excessive accumulation of dirt and/or construction materials snall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until 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 his expense and he shall be respon- sible for prompt payment of all such costs. C. The Developer hereby insures that his subcontractors shall 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. b-then the inspector determines that erosion (either by wind or water) is likely to be a problem, the surface area of erodable earth material exposed at any one time shall not exceed 200,000 square feet for earthworks operations. Temporary or permanent erosion control shall be incorporated into the subdivision at the earliest practicable time. By way of explanation and without limitation, said control may -7- consist of seeding of approved grasses, temporary dikes, gabions, and/or other devices. E. 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 original plat, or on any replat subsequently filed by the Developer, and the City may withhold such building permits and certificates of occupancy as it deems necessary to ensure performance hereof. In addition, it is agreed and understood between the developer and the City that the City shall have the right to refuse issuance of building permits and certificates of occupancy in the subject development as the City, in its sole discretion, shall deem necessary in order to insure performance by the Developer of any other obligation the Developer may have to the City, whether pursuant to other development agreements, or otherwi se. F. Nothing herein contained shall be construed as a waiver of any requirements of the City Code, and the Developer agrees to comply with all requirements of the same. 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. Financial obligations of the City of Fort Collins payable after the current fiscal year and/or not appropriated or budgeted are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. I. This Agreement shall run with the real property hereinabove described and shall be binding upon the parties hereto, their personal representatives, heirs, successors, grantees and assigns. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, assignment of any portion of the Developer's proprietary interest in the real property hereinabove described, as well as any assignment of the Developer's rights to develop such property under the terms and conditions of this Agreement. J. In the event the Developer hereafter transfers title to such real property and is thereby divested of all equitable and legal interest in said property, the City hereby agrees to release said Developer 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. K. Each and every term and condition of this Agreement shall be deemed to he a material element thereof. In the event either party shall fail or refuse to perform according to the terms of this Agreement, such party may be declared in default. In the event a party has been declared in default hereof, such defaulting party shall be allowed a period of five (5) 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; In