HomeMy WebLinkAboutTRAIL HEAD AMENDED AGREEMENT # 1 - Filed DA-DEVELOPMENT AGREEMENT - 2012-09-04RECEPTION#: 20120056934, 08/21/2012 at
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Scott Doyle, Larimer County, CO
1 TRAIL HEAD
2 AMENDMENT AGREEMENT NO. 1
4 THIS AMENDMENT AGREEMENT (this "Amendment"), made and entered into this 27th
5 clay of July, 2012, by and between the CITY OF PORT COLLINS, COLORADO, a Municipal
6 Corporation, hereinafter referred to as the "C�"; and EAST VINE PROPERTIES LLC, a Colorado
7 limited liability company, hereinafter referred to as the "Developer."
9 WITNESSETH;
10
i 1 WHEREAS, the City entered into a Development Agreement (the "Original Development
12 Agreement") with Trail Head Inc. ("THI") on December- 30, 2004, pertaining to that certain real
13 property situated in the County of Larinner, State of Colorado, which was legally described as set
14 forth in the Original Development Agreement (hereafter referred to as the "Original Property"):
15
16 WHEREAS, various lots within the Original Property have been sold and the Developer does
17 not own all of the Original Property,
18
19 WHEREAS, that portion of the Original Property which is still owned by the Developer will
20 be referred to as the "Development Property" and is more fully described as follows, to wit:
21
22 See Exhibit A attached hereto
23
24 WHEREAS, the parties presently desire to modify and supplement the Original Development
25 Agreement by this Amendment;
26
27 NOW, THEREFORE, in consideration of the promises of the parties hereto and other good
28 and valuable consideration, the receipt and adequacy of which. are hereby acknowledged, the parties
29 hereto agree to amend and supplement the terms and conditions of the Original Development
30 Agreement as follows:
31
32 A. Assumption of Liabilities and Rights. The Developer hereby assumes all obligations
33 of and hereby becomes entitled to all benefits due to THI under the Original Development
34 Agreement, and the City hereby approves such assumption. The Developer agrees that the Original
35 Development Agreement, as modified and supplemented by this Amendment, shall, along with the
36 requirements on the Plat of Trail Head Subdivision and other applicable recorded documents, govern
37 the development activities of the Developer pertaining to the Development Property.
38
39 B. Subheading II (Special Conditions) Paragraph D.3 shall be replaced with the
40 following paragraph effective as of the date of this Amendment:
41
42 3. THI was obligated to construct the local street portion of the East Vine Drive
43 improvements adjacent to the Original Property prior to the issuance of the first building
1'railHcadAgrecmcnl-Amendl_018 (7-25-12).doe
City Clerk's Office, Fort Collins, Colorado
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DEVELOPER:
Last Vine Properties LLC, a Colorado limited
liability company
By: `(,>. -bzg ►k
e Deifik, Manager t #rt W"t -- IV% - T6cfi
STATE Or )
) ss.
COUNTY Or [)Z&j )
The foregoing instrument was acknowledged before me this _ day of�T-
, 2012, by Bruce Deifik as Manger of East Vine Properties LLC, by
Jordan D. Deifik as Attorney in fact. r ^
N
My Commission Expires:
?A REpF�i��
NpTARY '•z
nuc
OF C6V:
Page 10 of a 11-Page (inclusive of Exhibit A) Amendment Agreement dated the 27th day of July, 2012, between the
City of Fort Collins, Colorado, and East Vine Properties LLC.
TrailHeadAgreemcni-Alliclldl_OIa (7-25-12).doe 10
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423 Exhibit A
424
425
426 The following lots located in Trail Head, Section 4, Township 7 North, Range 68 West of the 611i
427 P.M., City of Fort Collins, County of Larimer, State of Colorado:
428
429 Block Lot Numbers
430 3 1, 2, 17, 18
431 4 1, 2, 11 through 14, 23, 24
432 9 1
433 12 1 through 9
434 13 1 through 8
435 14 2 through 4
436 15 3 through 5
437 16 2
438 17 2 through 13
439
440 Tracts
441 F & G
442
443
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44 pert -nit in accordance with section 24-95 of the City Code. However, in the Original
45 Development Agreement, THI and the City agreed that such construction would not occur at
46 the time of the execution of the Original Development Agreement. Pursuant to the Original
47 Development Agreement, the City agreed to be responsible to construct (or get a third party
48 to construct) said street and for any costs to remove temporary improvements and rebuild
49 these areas to final design standards, and THI agreed to provide to the City a cash deposit in
50 the amount of $180,658.00 to cover THI's share of the cost of the construction which shall
51 include but not be limited to the future inlet(s), stonndrain line(s), culvert(s), pavement,
52 subgrade, curb, gutter, sidewalks, crosspans, sidewalk ramps, waterline(s) and street trees.
53 As of the execution of this Amendment, the City states that none of the construction has been
54 done by the City and no deposit has been made by THI. As a result of the execution of this
55 Amendment, the Developer has agreed to make the amount of the cash deposit pursuant to
56 the terms of this paragraph. The aunount of said funds is the estimated cost to construct said
57 improvements. One third (1/3) of said amount ($60,219.34) was deposited with the City on
58 July 22, 2011, another one third (1/3) of said amount ($60,219.33) was deposited with the
59 City on June 11, 2012, and the remaining one third (1/3) of said amount ($60,219.33) is
60 being paid to the City concurrent with the City's execution and delivery of this Amendment,
61
62 Since all of this fee will be paid by the Developer after the year 2005, the Developer
63 agrees to pay the amounts specified above plus an additional amount (along with each of the
64 tlu•ee payments described above) to be calculated as described. below to recognize the effect
65 of inflation, with said amount to be increased each year until payment is completed in full.
66 Upon payment of each fee required under this Subsection, TI- I's and the Developer's
67 obligation to pay a share of the costs for constructing Vine Drive in conjunction with the
68 Development Property and the Original Property shall be satisfied.
69
70 The inflation factor (Inf Fac.) for each year's increase in the amount of the fee shall
71 be calculated using the construction cost index for Denver as published in the Engineering
72 News Record (ENR) for January 2005, as the base index (1-base) and the same index
73 published in the ENR for the January in each succeeding year immediately preceding
74 payment (1-year of payment). The formula for calculating said inflation factors shall be as
75 follows:
76
77 Inf. Fac. --a-year of Daymentl --CI--base)
78 (1-base)
79
80 The amount to be added to the fee to compensate for inflation shall be equal to the
81 amount of the fee times the inflation factor. Said amounts added to compensate for inflation
82 shall not reduce the total (principal) amount due. Any interest earned by the City as a result
83 of said deposit shall be the property of the City to cover administration and inflation in order
84 to better assist the City in snaking reimbursement to the party who constructs said
85 improvements.
86
Trail HeadAgreement-Amend 1 —0 18 (7-25.12).doc 2
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87 The City acknowledges receipt as of July 22, 2011, of the amount of $70,558.67 as
88 payment in full for the first installment due tinder this section (including the inflation factor).
89
90 The City acknowledges receipt as of June 11, 2012, of the amount of $ 76,151.01 a
91 payment in full for the second installment due under this section (including the inflation
92 factor).
93
94 The City acknowledges receipt of the amount of $76,151.01 as payment in full for the
95 third and final installment due under this section (including the inflation factor), concurrent
96 with the execution and delivery of this Amendment by the City.
97
98 C. Subheading_ II (Special Conditions) Paragraph DA shall be replaced with the
99 following effective as of the date of this Amendment:
l00
101 4. TIII was obligated to construct the local street portion of the Greenfields
102 Drive north of Campfire Drive and for the bridge improvements over the Larimer and Weld
103 Canal prior to the issuance of the first building permit in accordance with section 24-95 of
104 the City Code. However, in the Original Development Agreement, TIH and the City agreed
105 that such construction would not occur at the time of the execution of the Original
106 Development Agreement. Pursuant to the Original Development Agreement, the City agreed
107 to be responsible to construct (or get a third party to construct) said street and bridge
108 improvements, and THI agreed to provide to the City a cash deposit in the amount of
109 $168,898.00 to cover THI's share of the cost of the construction which shall include but not
110 be limited to the future inlet(s), storindrain line(s), bridge, culvert(s), pavement, subgrade,
III curb, gutter, sidewalks, crosspans, sidewalk ramps, waterline(s) and street trees. As of the
112 execution of this Amendment, the City states that none of the construction has been done by
113 the City and no deposit has been made by THI. As a result of the execution of this
114 Amendment, the Developer has agreed to make the amount of the cash deposit pursuant to
115 the terms of this paragraph. The amount of said funds is the estimated cost to construct said
116 improvements. One third (1/3) of said amount ($56,299.34) was deposited with the City on
117 July 22, 2011, another one third (1/3) of said amount ($56,299.33) was deposited with the
118 City on June 11, 2012, and the remaining one third (1/3) of said amount ($56,299.33) is
119 being paid to the City concurrent with the City's execution and delivery of this Amendment.
I
121 Since all of this fee will be paid by the Developer after the year 2005, the Developer
122 agrees to pay the amount specified above plus an additional amount (along with each of the
123 three payments described above) to be calculated as described below to recognize the effect
124 of inflation, with said amount to be increased each year until payment is completed in full.
125 Upon payment of each fee required under this Subsection, THI's and the Developer's
126 obligation to pay a share of the costs for constructing Greenfrelds Drive in conjunction with
127 the Development Property and the Original Property shall be satisfied.
'128
TmillieadAgreement-Amendl_018 (7-25-12),doc 3
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129 The inflation factor (Inf. Fac.) for each year's increase in the amount of the fee shall
130 be calculated using the construction cost index for Denver as published in the Engineering
131 News Record (ENR) for January 2005, as the base index (1-base) and the same index
132 published in the ENR for the January in each succeeding year inunediately preceding
133 payment (I -year of payment). The formula for calculating said inflation factors shall be as
134 follows:
135
136 Inf. Fac. = (1-year of payment) - (I -base)
137 (1-base)
138
139 The amount to be added to the fee to compensate for inflation shall be equal to the
140 amount of the fee times the inflation factor. Said amounts added to compensate for inflation
141 shall not reduce the total (principal) amount due. Any interest earned by the City as a result
142 of said deposit shall be the property of the City to cover administration and inflation in order
143 to better assist the City in making reimbursement to the party who constructs said
144 improvements.
145
146 The City acknowledges receipt as of July 22, 2011, of the amount of $65,965.63 as
147 payment in full for the first installment due under this section (including the inflation factor).
148
149 The City acknowledges receipt as of June 11, 2012, of the amount of $ 71,193.93_a
150 payment in full for the second installment due under this section (including the inflation
151 factor).
152
153 The City acknowledges receipt of the amount of $ 71,193.93 as payment in fiill for
154 the third and final installment due under this section (including the inflation factor)
155 concurrent with the execution and delivery of this Aniendtnent by the City.
156
157 D. Subheading II (Special Conditions) Paragraph D.5 shall be replaced with the
158 following effective as of the date of this Amendment:
159
160 5. THI was obligated to construct the local street portion of the Glacier Creek
161 Drive improvements west of Three Forks Drive prior to the issuance of the first building
162 permit in accordance with section 24-95 of the City Code. However, in the Original
163 Development Agreement, TI-11 and the City agreed that such construction would not occur at
164 the time of the execution of the Original Development Agreement. Pursuant to the Original
165 Development Agreement, the City agreed to be responsible to constrict (or get a third party
166 to construct) said street, and THI agreed to provide to the City a cash deposit in the amount
167 of $20,817.00 to cover TI II's share of the cost of the construction which shall include but not
169 be limited to the future inlet(s), storntdrain line(s), culvert(s), pavement, subgrade, curb,
169 gutter, sidewalks, crosspans, sidewalk ramps, waterline(s) and street trees. As of the
170 execution of this Amendment, the City states that none of the construction has been done by
171 the City and no deposit was made by TH1. As a result of the execution of this Amendment,
I'milHeadA&reemenl-rljnendl 018 (7-25-12).doc 4
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172 the Developer has agreed to make the amount of the cash deposit pursuant to the terms of this
173 paragraph. The amount of said fluids is the estimated cost to construct said improvements.
174 One third (1/3) of said amount ($6,939.00) was deposited with the City on July 22, 2011,
175 another one third (1/3) of said amount ($6,939.00) was deposited with the City on June 11,
176 2012, and the remaining one third (1/3) of said amount ($6,939.00) shall be paid to the City
177 concurrent with the City's execution and delivery of this Amendment.
178
179 Since all of this fee will be paid by the Developer after the year 2005, the Developer
180 agrees to pay the amount specified above plus an additional amount (along with each of the
181 three payments described above) to be calculated as described below to recognize the effect
182 of inflation, with said amount to be increased each year until payment is completed in fiill.
183 Upon payment of each fee required under this Subsection, THI's and the Developer's
184 obligation to pay a share of the costs for constructing Glacier Creek Drive in conjunction
185 with the Development Property and the Original Property shall be satisfied.
186
187 The inflation factor (Inf Fac.) for each year's increase in the amount of the fee shall
188 be calculated using the construction cost index for Denver as published in the Engineering
189 News Record (ENR) for January 2005, as the base index (I -base) and the same index
190 published in the ENR for the January in each succeeduig year irrunediately preceding
191 payment (]-year of payment). The formula for calculating said inflation factors shall be as
192 follows:
193
194 Inf. Fac. = (1- eY ai of payment) - (1-base)
195 (1-base)
196
197 The amount to be added to the fee to compensate for inflation shall be equal to the
198 ainount of the fee times the inflation factor. Said amounts added to compensate for inflation
199 shall not reduce the total (principal) amount due. Any interest earned by the City as a result
200 of said deposit shall be the property of the City to cover administration and inflation in order
201 to better assist the City in making reimbursement to the party who constructs said
202 improvements.
203
204 The City acknowledges receipt as of July 22, 2011, of the amount of $8,130.39 as
205 payment in ful I for the first installment due under this section (including the inflation factor).
206
207 The City acknowledges receipt as of June 11, 2012, of the amount of $ 8,774.80 as
208 payment in frill for the second installment due under this section (including the inflation
209 factor).
210
211 The City acknowledges receipt of the amount of $ 8,774.80 as payment in full for the
212 third and final installment due under this section (including the inflation factor) concurrent
213 with the execution and delivery of this Amendment by the City.
214
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215 E. Section III (Miscellaneous) Subsection N shall be amended by replacingthe addresses
216 under "If to the Developer" with the following addresses to read:
217
218 If to the Developer: East Vine Properties LLC
219 Attn: Edward P. Nicks
220 c/o Integrated Properties, Ine
221 3900 E. Mexico Ave, Suite 1400
222 Denver, CO 80210
223
224 And: Brown Gold Law Firm LLC
225 Attn: Iluntington C. Brown, Esq.
226 1512 Larimer Street, Suite 600
227 Denver, Colorado 80202-1610
228
229 Any party hereto shall have the right to change its address (for itself or for any person who is to
230 receive a copy of any notices) by written notice to the other party.
231
232 F. Requirements and Documents. The City and the Developer acknowledge that the
233 Developer has knowledge of the Final Development Plans, the Original Development Agreement,
234 Minor Amendment #06021, with an effective date of April 7, 2006, Minor Amendment 40700009,
235 with ail effective date of March 28, 2007, and Minor Amendment #0800033, with an effective date
236 of June 28, 2008, this Amendment, and the following letters (collectively, the "JB Letters") from Jeff
237 Baldwin, Construction Inspector, City of Fort Collins, to John Engle, Roche Constriction: i.e., dated
238 August 10, 2006 (the "August 10, 2006 Letter"), January 24, 2007 (the "January 24, 2007 Letter"),
239 and September 8, 2008 (the "September 8, 2008 Letter'). Other than the doctunents described in the
240 preceding sentence, the City has not provided, and the City and the Developer are not aware of, any
241 other amendments, side letters or other documents concerning the Original Property that modified or
242 explained the obligations of THI under the Original Development Agreement, and which may or may
243 not be binding upon the Developer with respect to the Development Property (the "Unknown
244 Documents")
245
246 By executing this Amendment, the City and the Developer are not making any
247 representations concerning the applicability of the Unknown Documents to the Developer, and. the
248 Developer is not assuming or otherwise accepting any obligations set forth in any Unknown
249 Documents. The City (i) warrants that there are no Unknown Documents which would reduce the
250 deposits required of THI pursuant to the Original Development Agreement, or the Developer
251 pursuant to this Amendment, (ii) warrants that as of the execution of this Amendment, the Developer
252 is not in default under any obligations or requirements of the Final Development Plans, the Original
253 Development Agreement, -this Amendment, the three (3) Minor Amendments described in the
254 preceding paragraph or the JB Letters, and (iii) acknowledges that the Developer is relying on such
255 warrants and agreements in entering into this Amendment.
256
257 If the City hereafter claims that TI II or the Developer has breached any Unknown Document,
TrailileadAgreement-Amend 1_018 (7-25-12).doc
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258 the City will provide the Developer with written notice, explaining the details of the nature of such
259 default, and the Developer shall have the opportunity to cure or object to such default within sixty
260 (60) days following delivery of the written notice, and during such cure period, the City shall not
261 have the right to exercise any of its remedies against the Developer under the Original Development
262 Agreement for such alleged default, including, without limitation, withholding building permits for
263 the Development Property or the Original Property unless such action is, in the judgment of the City,
264 necessary for the immediate protection of public health and /or safety. If the Developer fails to cure
265 or successfully persuade the City that its objection to the applicability of the claimed defaulted
266 obligation is legitimate within such sixty (60) day period, then the City may exercise all rights
267 against the Developer under the original Development Agreement or otherwise for such default,
268 including, without limitation, withholding building permits. The City agrees that it will complete (or
269 cause others to complete) the construction projects described in this Amendment at no additional
270 cost to Developer.
271
272 G. Existing and Future Repairs Needed. The parties acknowledge that (by attachments
273 to an email from Sheri Langenberger of the City of Ft. Collins dated July 7, 2011) the City has
274 identified those areas which, as of July 7"', 2011, the City considered will require additional repairs
275 and/or replacements (the "July 7 2011 Punchl ist"). In order to identify the repairs and replacements
276 which make up the July 7, 2011 Punchlist, a copy of all the attachments to such July 7, 2011 email
277 are attached hereto as Exhibits B1 through B5.
278
279 The parties further agree that (A) pursuant to the Augu§t 10, 2006 Letter, the warranty period
280 on the public improvements in Trail Head Filing 1("Trail I lead 1" ), Phase 1 commenced August 10,
281 2006, (B) pursuant to the January 24, 2007 Letter, the warranty period on the public improvements in
282 Trail Head 1, Phase 2 commenced January 24, 2007, and (C) pursuant to the September 8, 2008
283 Letter, the warranty period on the public improvements in each Phase of Trail Head 1 was and is to
284 last for a total of five (5) years after its applicable connmencement date. The parties acknowledge
285 that this provision is not intended either to derogate or create any generally applicable obligation to
286 repair new damage or correct newly discovered defects as work in the Development proceeds. Upon
287 the posting of a bond or bonds, under Section H below, as determined by the City to be sufficient to
288 secure Developer's remaining warranty obligations for the public improvements under this Section
289 G, the City agrees that it will not enforce by any means (including the withholding of building
290 permits) the obligations of the Developer under this Section G against any lots located in the Trail
291 Head Subdivision other than the Development Property, and said owners of lots other than the
292 Development Property are intended third party beneficiaries of this provision, despite any contrary
293 language regarding third party beneficiaries in the Original Development Agreement.
294
295 H. Bond. The developer tinder the Original Development Agreement had posted two
296 bonds as security for its obligations under the public improvements warranty required for the
297 Development, one of which has been found to no longer be a valid bond. The face amount of the
298 bond remaining in effect as security for its obligations under the public improvement warranty
299 periods described in the preceding paragraph was $339,194.00, and the parties recognized that such
300 amount might have been either more or less than the total amount of such repairs needed for the
TrailHeadAgreemcnl-Amendt_018 (7-25-12).doc 7
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301 public improvements in the two Phases of Trail Head 1. As a condition of the execution hereof and
302 the release of any additional building permits in Trail Head 1, the Developer has posted, and the City
303 acknowledges receipt of, a new bond which, when added to the existing bond for $339,194.00,
304 restores the total bond amount to no less than $690,000.00 (the "Current Bond Amount").
305
306 No later than August 13, 2012, the Developer shall provide to the City an estimate by Roche
307 Constructors, Inc. (or other contractor chosen by the Developer and reasonably acceptable to the
308 City) of all costs necessary to correct the defects identified in the July 7, 2011 Punchlist, considering
309 all current applicable Larimer County Urban Area Street Standards and the standard for final
310 acceptance of the improvements as sufficient in the reasonable judgment of the City Engineer.
311
312 After taking into consideration the estimate described in the preceding paragraph, the parties
313 agree to use reasonable efforts to agree on a bond amount (the "New Bond Amount") equal to the
314 then anticipated possible exposure for the correction of the defects identified in the July 7, 2011
315 Punchlist. If the parties have not agreed on a New Bond Annount on or before August 27, 2012, the
316 City shall in its reasonable discretion then determine and notify the Developer in writing of the New
317 Bond Amount required to secure such potential exposure on or before August 30, 2012'.
318
319 If the New Bond Amount (whether as agreed by the parties or determined solely by the City)
320 is greater than the Current Bond Amount, and if the Developer has neither satisfactorily completed
321 the correction of the defects identified in the July 7, 2011 Punchlist, nor posted. one or more new
322 bonds so that the total bonds then posted equal the New Bond Amount by September 6, 2012, then
323 no additional building permits will be issued in the Development Property until such time as the
324 defects identified in the July 7, 2011 Punchlist have been fully and satisfactorily completed or the
325 New Bond Amount has been posted. Except as provided in this subparagraph, nothing contained
326 herein will eliminate any rights the City may have under the Original Development Agreement.
327 Until such time, if any, that the New Bond Amount is required which exceeds the Current Bond
328 Amount, the City agrees that the Current Bond Amount is sufficient to secure Developer's remaining
329 warranty obligations for the public improvements under Section G and this Section H, and if the
330 New Bond Amount is equal to or less than the Current Bond Amount already posted, then no
331 enforcement will be taken by the City regarding the July 7, 2011 Punchlist unless such repairs are not
332 completed by November 1, 2012 (and subject to force majearre).
333
334 The parties further agree that if the defects identified in the July 7, 2011 Punchlist have not
335 been corrected by November 1, 2012, the City anticipates calling on such bonds as may then be in
336 place in order to cause the correction of said defects under the City's direction; except that, if
337 completion of the July 7, 2001 Punchlist is delayed as a result of acts of God, governmental control
338 or other factors beyond the reasonable control of either the Developer or the contractor being utilized
339 by the Developer for the July 7, 2011 Punchlist repairs, then the date of November 1, 2012 shall be
340 extended but only by so many days as such delay is caused by such force majeure factors.
341
342 Upon completion and initial acceptance of the improvements corrected or replaced in
343 response to the July 7, 2011 Punchlist, the parties will again use reasonable efforts to agree on a
TrailHeadAgrecmene-Amendl_018 (7-25-12).dac 8
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344 lesser bond amount to be held by the City for the 2. year warranty period fallowing such acceptance
345 of said improvements. The City wil l at no time have any obligation, beyond the requirements of the
346 City's own municipal codes and regulations, to agree on any bond amount it reasonably determines is
347 not adequate to secure the remaining warranty obligations for the Development.
348
349 I. Recording. This Amendment wilt -be promptly hereafter recorded bythe City with the
350 office of the Clerk and. Recorder for Larimer County, Colorado.
351
352 J. Binding.Effect, Pursuant to Section 11111 of the Original Development Agreement,
353 this Amendment shall.run with the land; provided that, the City acknowledges that, concurrent with
354 the execution and delivery of this Amendment, the Developer has fully satisfied its obligations to
355 make the payments under Sections B, Cand D of this Amendment (collectively, the "Development
356 Pavnients").
357
358 K. :Effect of this Amendment. All other teems and conditions of the Original
359 Development Agreement shall remain unchanged and in full force and effect, except as expressly
360 amended in this Amendment.
361
362 IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and
363 year first above written.
365 oce
THE CITY OF FORT COLLINS, COLORADO,
366 a Municipal Corporation
367 368369370 City Manager
371 ATTEST:
373
373 �1
374 City Clerk
375
376 APPROVE, D AS TO CONTENT:
377
378
3 City ngince
nO
381 APPROVED AS TO FORM;
382
383
384 UUU
385 Deputy City Attorney
386 Page 9 of a I l-page (uiclusivc of x iiiit Amendment Agreement dated 27th day. of July, 2012, between the City
387 of Fort Collins, Colorado, and East Vine Properties LLC.
388 Tra1t%adAgreement-Amendt_0t&(7-2S-12)_dnc 9