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HomeMy WebLinkAboutCENTRE FOR ADVANCED TECHNOLOGY PUD THIRD - Filed DA-DEVELOPMENT AGREEMENT - 2003-07-31DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this -'Am day of Auq.6+► A.D. 1987, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as "the City," and Everitt Enterprises Limited Partnership No. 1, 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: Centre for Advanced Technology P.U.D., Third Filing, located in Section 23, T. 7 N., R. 69 W. 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 requ_re 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 ATTEST: City Clerk APPROVED: tiity gineer City Attorney 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. 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 pal Corpor tion ; By 'City Manager -10- Attest By: Everitt Enterprises Limited Partnership No. 1, a Colorado limited Partnership By: Everitt rises Inc Managi ner By: Gerald R. Haxt , President -11- PYPTRTT 'VA" 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. Not applicable. -12- EXHIBIT "B" The Development Agreement for Centre for Advanced Technology PUD, Filing 3 This exhibit does not aI>ply. Include master ITPI COST ESTIf•tATE FOR MAJOR DRAINAGE INPROVENENTS only those major storm drainage basin improvements required by plan_ D'ESCRIPTIOM QUANTITY UNIT an adopted basin COST TOTAL COST 1. Storm sewer, manholes, end sectiorrs, etc. (a) L.f. /L.f. S (b) L.f. /L.f. S (c) Ea. Ea. $ �(d) Ea. Ea. S Sub -Total S 2. Channel excavation, detention pond excavation and riprap (a) C.Y. S /C.Y. $ (b) C.Y. S /C.Y. 5 (c) C.Y. S /C.Y. S Sub -Total $ DEVELOPMENT AGREEMENT THIS AGREEME1NJT, made and entered into this c , -- day of A.D. 1987, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as "the City," and Everitt Fnterprises Limited Partnership No. 1, a Colorado Limited Partnership, hereinafter referred to as "the Developer," WEREAS, the Developer is the owner of certain property situate in the County of Larimer, State of Colorado, and legally described as follows, to -wit: Centre for Advanced Technology P.U.D., Third Filing, located in Section 23, T. 7 N., R. 69 w. 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 6;MEREAS, 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 1,'3EFFAS, the City has approved the subdivision plat and/or site plan and landscape plan submitted by the Developer subject to certain requirements and co►ditions which involve the installation of and construction of utilities and other municipal improvements in connection with said lands. t,]ol7, UIERFFORE, in consideration of the premises 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. The terms of this Agreement shall govern all development activities of the Developer pertaining to the subject property described above. 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 building permit therefor, or (3) Any change in grade, contour or appearance of said 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 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 f ran the -2- date cf execution of this agreement. In the event that the Developer commences or performs any construction pursuant hereto oftor two (2) years from the date of execution of this agreement, the Developer shall resubmit the project utility plar-L-, to the City Engineer for reexamination. The City may rEmire the Developer to ccnply with approved standards and specifications o' the City on file in the office of the City Engineer at the time of resubmitt.al. C. 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 have been completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred sixty feet (660') fran a single point of access. 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 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. E. Except as otherwise herein specifically agreed, the Developer -3- agrees to irstall and pay four all water, sanitary sewer and storm sewer facilities and appurtenances, and all streets, curbing, gutter, sidewalks, bikeways and other public improvements required by this development as shown on the plat, utility and landscape plans, on file with the City. F. Street improvements (except curbing, gutter and walks) shall not be installed until all utility lines to be placed therein have been ccmpletely 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 utility drawings shall be inspected by the Engineering Division of 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. H. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the property to be developed ( and other lands as may be 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 -4- }told hannlf>cs the City frcm any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainaqe 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 emissions 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 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, and subsequent purchasers of property in the development. I. The Developer shall pay storm drainage basin fees in accordance with Chapter 93 of the City Code. Storm drainage improvements el.igible for credit or City repayment under provisions of Chapter 93 are described together with the estimated cost of the improvements on the attached Exhibit -5- "B", which improvements shall include right of way, design and construction costs. J. 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. Water lines. Not Applicable B. Sevier lines. Not Applicable C. Storm drainage lines and appurtenances. (i) The Developer agrees that all off -site and on -site drainage improvements, including the detention pond, shall be completed prior to the issuance of any building permits. D. Streets. (i) The Developer and the City agree that there is no Street Oversizing reimbursement due to the Developer from the City for this development. (ii) Included among the street improvements which are required to be constructed as a condition of the City's approval of this development are certain street improvements previously described, approved and funded as part of Special Improvement District #90. No building permit shall be issued for any building in the development prior to the completion of said street improvements for Meadowlark Avenue between Center Avenue and Drake Road. The street improvements shall be completed and accepted by the City according to the spec4,;fications contained in the agreements, resolutions and ordinances pertaining to Special Improvement District #90. 3. Miscellaneous. 0 WHEREAS, the City has approved the subdivision plat and/or site plan and landscape 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. The terms of this Agreement shall govern all development activities of the Developer pertaining to the subject property described above. 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 building permit therefor, or (3) Any change in grade, contour or appearance of said 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 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 -2- 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- 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 ti.Iaste materials, rubbish, tools, construction equipment, machinery, and surplus materials from the public ri ght-of-way. The Developer 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 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. C. The Developer hereby insures that his subcontractors shall -7- 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 erodible 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 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 and related documents, 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. 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 herein above 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 herein after 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; 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- rr�� City Clerk APPROVED: i ty /Eponeer ity Attorney THE CITY OF FORT COLLINS, COLORADO A Munici 1 Corporation City Manager -10- Attest By: i Everitt Enterprises Limited Partnership No. 1, a Colora limited Pa,ershi p A , By: Everit nterp i n ., Manag . ng�art r By: u c i w u r. . President -11- PVTTTTITT "A" 1. Schedule of water lines to be installed out of sernuence. Not Applicable. 2. Schc'dul.e 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. Not applicable. -12- EXHIBIT "B" The Development Agreement for Centre for Advanced Technology PUD, Filing 3 This exhibit does not apply. COST ESTIMATE FOR INAJOR DRAINAGE It-'PROVEIIENTS Include only those major store drainage basin improvements required by an adopted basin master plan. ITEIM DESCRIPTIOil QUANTITY UNIT COST TOTAL COST 1. Storm sewer, manholes, end sections, etc. (a) L.f. /L.f. $ (b) L.f. /L.f. S (c) Ea. Ea. S "�(d) Ea. Ea. S Sub -Total 5 2. Channel excavation, detention pond excavation and riprap ( a) C.Y. S /C.Y. S (b) C.Y. S /C.Y. S (c) C.Y. $ /C.Y. S Sub -Total S EXHIBIT B - Page 2 ITEM 3. (a) (b) 4. (a) DESCRIPTION Right-cf-way E easement acquisition Sub -Total Professional Design Other QUANTITY _ _UNIT COST TOTAL COST S.F. $ /S.F. Ac. S /Ac. $ 5 Lump Sum $ Total estimated cast of Storrs Drainage imnprovements eligible for credit or City repayment Prepared by: Address: Ti tl e: S RCPT_1 # 87046340 no /12/87 13 :15:04 # OF r- ;S - 1 FEE M. RODE4BER3ER, REC. ER - LARIMER COU.ITY CO S'i_._,; DOC FEE - $3.00 $.00 Please take notice that on July 27, 1987, the Planning and Zoning Board of the City of Fort: Collins, Colorado, approved the Final PUD Plan known as Centre For Advanced Technology, Third Filing, which development was submitted and processed in accordance with Section 118-83 of the Code of the City of Fort Collins. The Final POD plan of the subject property together with the development agreement dated July 27, 1987 between the City of Fort Collins and the developer, out of which documents accrue cer- tain rights and obligations of the developer and/or subsequent owners of the subject property, is on file in the office of the Clerk of the City of Fort Collins. The subject property is more particularly described as follows: A Tract of Land Located in the Southwest Quarter of Section 23, Township 7 North, Range 69 West of the 6th Principal Meridian, City of Fort Collins, County of Larimer, State of Colorado. i�� -� City Clerk `' : Secri�tar!(eff 'Planninearc Zoning Board City of Fort Collins Dated: r 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. C. 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 have been completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred sixty feet (660') f.rcm a single point of access. D. A.ny water lines, sanitary sewer lines, storm drainage lines, and/or streets described on Exhibit "A", attached hereto, stall 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. E. Except as otherwise herein specifically agreed, the Developer -3- 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 public improvements required by this development as shown on the plat, utility and landscape plans, on 'File with the City. F. Street improvements (except curbing, gutter and walks) shall not be installed until all utility lines to be placed therein have been canpletely 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 utility drawings shall be inspected by the Engineering Division of 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. H. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the property to be developed (and other lands as may be 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 -4- 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 f ran 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 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, and subsequent purchasers of property in the development. I. 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 -5- "B", which improvements shall include right of way, design and construction costs. J. 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. Water lines. Not Applicable B. Sewer lines. Not Applicable C. Storm drainage lines and appurtenances. (i) The Developer agrees that all off -site and on -site drainage improvements, including the detention pond, shall be completed prior to the issuance of any building permits. D. Streets. (i) The Developer and the City agree that there is no Street Oversizing reimbursement due to the Developer from the City for this development. (ii) Included among the street improvements which are required to be constructed as a condition of the City's approval of this development are certain street improvements previously described, approved and funded as part of Special Improvement District #90. No building permit shall be issued for any building in the development prior to the completion of said street improvements for Meadowlark Avenue between Center Avenue and Drake Road. The street improvements shall be completed and accepted by the City according to the specifications contained in the agreements, resolutions and ordinances pertaining to Special Improvement District #90. 3. Miscellaneous. -6- 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- 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. The Developer 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 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. C. The Developer hereby insures that his subcontractors shall -7- 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 erodible 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 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 and related documents, 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. 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 herein above 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 herein after 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 10