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HomeMy WebLinkAboutSOUTH COLLINS TECH CENTER - Filed DA-DEVELOPMENT AGREEMENT - 2003-12-08DEVELOPMENT AGREE THIS AGREEMENT, made and entered into this LL day of `L.-J�- { A.D. 1986, by and between THE CITY OF FORT COLLINS, COLORADO, a Munici- pal Corporation, hereinafter referred to as "the City," and Heintz Investments, a Colorado corporation, herein after 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: Kids R 4 Us, being a part of Lots 3 and 4, South Collins Tech Center, First Filing, Fort Collins, La'.rimer County, State of 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 util- ity 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 not be limited to, assignment of any portion of the Devel- oper's proprietary interest in the real property hereinaf- ter described, as well as any assignment of the Devel- oper's rights to develop such property under the terms and conditions of this agreement. J. In the event the Developer herein after transfers title to such real property and is thereby divested of all equit- able 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 con- ditions 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 Agree- ment and seek damages; (b) treat the Agreement as conti- nuing and require specific performance; or, (c) avail itself of any other remedy at law or equity. L. 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 -10- 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: Cerk APPROVED AS TO FORM: City Kngineer ,1Zj,1J , .,,--- Attorney THE CITY OF FORT COLLINS, COLORADO A Muni pal Corporation By ity Manager Heintz Investments, a Colorado corporation Whitie Heintz, President ATTEST: 7 (corporate seal) ,chard Heintz -11- 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. Not applicable. -12- EXHIBIT B - Page 2 ITEM DESCRIPTION 3. Right-of-way & easement acquisition (a) (b) Sub -Total 4. Professional Design (a) 5. Other UANTITY UNIT COST TOTALCOST S.F. $ /S.F. $ Ac. $ /Ac. $ Lump Sum Total estimated cost of Storm Drainage improvements eligible for credit or City repayment Prepared by: Title: Address: 1� EXHIBIT "B" The Development Agreement for Kids R 4 Us Day Care Center. 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 p. Channel excavation, detention pond excavation and riprap ANTITY UNIT COST TOTAL COST L.f. /L.f. $ L.f. /L.f. $ Ea. Ea. $ Ea. Ea. $ $ C.Y. $ /C.Y. $ C.Y. $ /C.Y. $ C.Y. $ /C.Y. $ Sub -Total $ DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this a z. day of�u e A.D. 1982, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as "the City," and COLLINS PARK VENTURE, a 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: South Collins Tech Center, First Filing, located in the northeast one -quarter of Section 31, Township 7 North, Range 68 West of the Sixth Principal Meridian, 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 premises and the terms and conditions acknowledged by the parties hereto, it is agreed as follows: 1. General Conditions. A. All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, side- walks, and bikepaths shall be installed as shown on the approved utility plans and in full compliance with the Council approved standard 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 any time limitations as provided by Ordinance. 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 struc- ture have been completed and accepted by the City. No build- ing permits shall be issued for any structure located in excess of six hundred sixty feet (660') from a single point of access. -2- 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 determines that any water 'lines, sanitary sewer lines, storm sewer facilities and/or streets shown on the utility plans are required to provide service or access to other areas of the City, those utilities shall be installed within the time determined by the City Engineer as referred to 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 develop- ment. 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 indivi- dual lot service lines leading in and from the main to the property line. F. The installation of all utilities shown on the utility draw- ings shall be inspected by the Engineering Division of the City and shall be subject to such department's approval. -3- 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 supercede the standard specifications. G. All storm sewer facilities shall be so designed and con - strutted as to protect the downstream properties and to adequately serve the property to be developed (and other lands as may be required, if any). The developer hereby agrees to -indemnify and hold the City harmless from any and all claims that might arise, directly or indirectly, as a result of the discharge of storm drainage or seepage waters from the devel- opment in a manner or quantity different from that which was historically discharged. H. 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 construc- tion. 2. Special Conditions. A. Water lines (oversizing, payback, etc.). The Developer shall pay the City for its pro rata share of the 1.6" water main in Timberline Road. The amount of this payment shall be based upon a charge of $2.77 per foot of Timberline frontage and shall be due upon Developer's request for any water tap or building permit on the subject property. The Developer shall pay its pro rata share of the water main located within Horsetooth Road. The payment due shall be based on invoices provided to the City from Platte River Power Authority. This payment shall be due upon receipt of the invoices from Platte River Power Authority but not before the Developer's request for the first tap or building permit in the Development. -4- B. Sanitary sewer (oversizing, payback, etc.). Not Applicable. C. Storm drainage lines and appurtenances (detention pond con- struction, off -site mains, etc.). All storm drainage facilities shall be completed before issuance of 3 building permits or 2 certificates of occupancy. Maintenence of all drainage facilities not within street rights -of -way shall be the responsibility of the landowners. D. Streets (oversizing, traffic lights, signs, etc.). The City shall repay the Developer for the oversizing of Horsetooth Road and Timberline Road to arterial standards in lieu of local street standards in accordance with the Code of the City of Fort Collins Article 99-6 (F). The City shall provide the Developer with a plan for the improvement of Timberline Road by October 30, 1982. The Developer shall revise its utility plans to agree with the City plans and obtain approval by March 30, 1983. The Developer shall be responsible for maintenence of the islands within Wolverine Drive. 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 Engi- neer 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 director. 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, -5- 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 utili- ties 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 ade- quacy 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 Agree- ment, "development activities" shall include, but not be limited, to the following: (1) The actual construction of improvements, (2) Obtaining a building permit therefore, or (3) Any change in the 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, side- walks, and bike paths 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 -2- 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 ac- cumulation or 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 responsible 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 consist of seeding of approved grasses, temporary dikes, gabions, and/or other devices. 10 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 buil- ding permits and certificates of occupancy as it deems neces- sary to ensure performance hereof. F. This Agreement shall be binding upon the parties hereto, their successors, grantees, heirs, personal representatives, and assigns and shall be deemed to run with the real property above described. G. Nothing herein contained shall be construed as a waiver of any ATTEST: City Clerk APPROVED: requirements of the City Code, and the Developer agrees to comply with all requirements of the same. THE CITY OF FORT COLLINS, COLORADO A Municipal Corporation By,,- D,,>U1tY Manager COLLINS PARK VENTURE Phillip H. Christensen, Partner -7- 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. Horsetooth Road and Timberline Rod shall be completed by May 30, 1985. 4. Storm drainage improvements to be installed out of sequence. See Paragraph 2C DEVELOPMENT AGREEMENT ry+ THIS AGREEMENT, made and entered into this /9' day ofOCT�_-ti, A.D. 1986, by and between THE CITY OF FORT COLLINS, COLORADO, a Munici- pal Corporation, hereinafter referred to as "the City," and Heintz Investments, a Colorado corporation, herein after referred to as "the Developer," IJTTAIC CCCTU 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: Kids R 4 Us, being a part of Lots 3 and 4, South Collins Tech Center, First Filing, Fort Collins, Larimer County, State of 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 util- ity 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 utili- ties 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 ade- quacy 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 Agree- ment, "development activities" shall include, but not be limited, to the following: (1) The actual construction of improvements, (2) Obtaining a building permit therefore, or• (3) Any change in the 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, side- walks, and bike paths 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 -2- 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 re-exam- ination. 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') from 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 deter- mined 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 facil- ities 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 Devel- oper agrees to install and pay for all water, sanitary -3- sewer and storm sewer facilities and appurtenances, and all streets, curbing, gutter, sidewalks, bikeways and other municipal development. F. 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. 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 instal- lation. 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 min- imum 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 -4- 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 facili- ties, 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 drain- age 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. I. The Developer shall pay storm drainage basin fees in accordance with Chapter 93 of the City Code. Storm drain- age 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 -5- 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 eli- gible 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 develop- ment, the City shall reimburse the excess cost out of the Storm Drainage fund upon completion of the improvements and approval of the construction by the City. J. The Developer shall provide the City Engineer with certi- fied Record Utility Drawing Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construction. 2. Special Conditions. A. Water lines. The Developer shall pay to the City the sum of $3683.67 the cost of engineering and construction of the 16 inch water main in Timberline Road, based on a charge of $2.77 per foot of Timberline frontage for the South Collins Tech Center. The frontage along Timberline Road is 1329.85 feet, which makes the payment due to the City equal to $3683.67. This payment shall be due upon Developer's first request for a water tap or building permit. B. Sewer lines. Not Applicable M C. Storm drainage lines and appurtenances. The trash and debris at the end of Deer Trail shall be removed by the Developer so that the storm water runoff is not prevented from entering the detention pond. The Developer shall place a layer of 2 inch washed rock, 5 feet by 5 feet and 1 foot thick at the end of both gutters on Deer Trail to prevent erosion from runoff. These two requirements must be met and approved by the City before issuance of the first building permit. D. Streets. The developer and the City agree that there is no repay due to the Developer for street oversizing, or off site improve- ments. 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- of-way free from accumulation of waste material or rubbish caused by the Developer's 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 -7- 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 re-exam- ination. 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') from a single point of access. 0. 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 deter- mined 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 facil- ides 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 Devel- oper agrees to install and pay for all water, sanitary -3- free from dirt caused by the Developer's operation. Any excessive accumulation of dirt and/or construction materi- als 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 cooperate with the City's construction inspectors by ceas- ing 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. Tem- porary 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, gabiohs, and/or other devices. E. The Developer shall, pursuant to the terms of this agree- ment, complete all improvements and perform all other obligations required herein, as such improvements or obli- le gations 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 certifi- cates 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 obliga- tion 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 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 M not be limited to, assignment of any portion of the Devel- oper's proprietary interest in the real property hereinaf- ter described, as well as any assignment of the Devel- oper's rights to develop such property under the terms and conditions of this agreement. J. In the event the Developer herein after transfers title to such real property and is thereby divested of all equit- able 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 con- ditions 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 Agree- ment and seek damages; (b) treat the Agreement as conti- nuing and require specific performance; or, (c) avail itself of any other remedy at law or equity. L. 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 -10- 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: City Clerk APPROVED AS TO FORM: City E Weer C y Attorney THE CITY OF FORT COLLINS, COLORADO A f4unicipal Corporation By 1ty Manager Heintz Investments, a Colorado corp.Qr�ti on l Whitie Heintz, President \- 1 ATTEST: (corporate seal) R chdrd Heintz -11- sewer and storm sewer facilities and appurtenances, and all streets, curbing, gutter, sidewalks, bikeways and other municipal development. F. 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. 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 instal- lation. 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 min- imum requirements for storm drainage facilities as have been established by the City in its Drainage Plaster 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 facili- ties, 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 drain- age 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. I. The Developer shall pay storm drainage basin fees in accordance with Chapter 93 of the City Code. Storm drain- age 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 -5- 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 eli- gible 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 develop- ment, the City shall reimburse the excess cost out of the Storm Drainage fund upon completion of the improvements and approval of the construction by the City. J. The Developer shall provide the City Engineer with certi- fied Record Utility Drawing Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construction. 2. Special Conditions. A. Water lines. The Developer shall pay to the City the sum of $3683.67 the cost of engineering and construction of the 16 inch water main in Timberline Road, based on a charge of $2.77 per foot of Timberline frontage for the South Collins Tech Center. The frontage along Timberline Road is 1329.85 feet, which makes the payment due to the City equal to $3683.67. This payment shall be due upon Developer's first request for a water tap or building permit. B. Sewer lines. Not Applicable C. Storm drainage lines and appurtenances. The trash and debris at the end of Deer Trail shall be removed by the Developer so that the storm water runoff is not: prevented from entering the detention pond. The Developer shall place a layer of 2 inch washed rock, 5 feet by 5 feet and 1 foot thick at the end of both gutters on Deer Trail to prevent erosion from runoff. These two requirements must be met and approved by the City before issuance of the first building permit. D. Streets. The developer and the City agree that there is no repay due to the Developer for street oversizing, or off site improve- ments. 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 - of• -way free from accumulation of waste material or rubbish caused by the Developer's 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 -7- free from dirt caused by the Developer's operation. Any excessive accumulation of dirt and/or construction materi- als 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 cooperate with the City's construction inspectors by ceas- ing 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. Tem- porary 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 agree- ment, complete all improvements and perform all other obligations required herein, as such improvements or obli- me gations may be shown on the original plat, or on any re,plat 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 certifi- cates 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 obliga- tion 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 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 M