HomeMy WebLinkAboutFOOTHILLS MALL REDEVELOPMENT (DQ)SEARS(DQ) PHASE 1 - Filed DA-DEVELOPMENT AGREEMENT - 2014-03-03RECEPTION#: 20140009139, 02/24/2014 at
01:19:29 PM,1 OF 20, R $106.00 TD Pgs: 0
Angela Myers, Clerk & Recorder, Larimer
County, CO
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement"), is made and entered
into this `lTN day of February, 2014, by and between the CITY OF FORT COLLINS,
COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and
WALTON FOOTHILLS HOLDINGS Vl, L.L.C., a Delaware limited liability company,
hereinafter referred to as the "Developer"; and WALTON FOOTHILLS HOLDINGS VI,
L.L.C., a Delaware limited liability, and SRC FACILITIES STATUTORY TRUST NO
2003-A, a Delaware statutory trust acting only with respect to the applicable SUB]
Portfolio, hereinafter referred to collectively as the "Owner."
WITNESSETH:
WHEREAS, the Owner owns certain real property situated in the County of
Larimer, State of Colorado (hereafter sometimes referred to as the "Property" or
"Development") and legally described as follows, to wit:
A PARCEL OF LAND, BEING A PORTION OF TRACTS E, T AND U OF
SOUTHMOOR VILLAGE FIFTH FILING AS RECORDED AT BOOK 1495, PAGE
172, AND A PORTION OF TRACTS 8 AND 10 OF THE FOOTHILLS FASHION
MALL EXPANSION AS RECORDED AT RECEPTION NUMBER 88042995 IN
THE LARIMER COUNTY CLERK AND RECORDER'S OFFICE, SITUATED IN
THE SOUTHWEST 1/4 OF SECTION 25, TOWNSHIP 7 NORTH, RANGE 69
WEST OF THE SIXTH PRINCIPAL MERIDIAN, CITY OF FORT COLLINS,
COUNTY OF LARIMER, STATE OF COLORADO, BEING DESCRIBED AS
FOLLOWS:
COMMENCING AT A POINT AT THE NORTHEAST CORNER OF TRACT A AS
DEDICATED IN THE FOOTHILLS FASHION MALL FOLEY'S EXPANSION, AS
RECORDED AT RECEPTION NO. 97008164 IN THE LARIMER COUNTY
CLERK AND RECORDER'S OFFICE, WHENCE THE NORTHWEST CORNER
OF TRACT B OF SAID PLAT BEARS S89052'45"W, 996.10 FEET ALONG THE
NORTH LINE OF SAID PLAT; THENCE S48°11'05"W, 2,133.74 FEET TO THE
POINT OF BEGINNING; THENCE S45°25157"E, 74.68 FEET; THENCE
S00005'32"W, 75.19 FEET; THENCE S59058'22' W, 85.76 FEET; THENCE
S51046'43"W, 134.13 FEET; THENCE N8905428"W, 411.85 FEET TO THE
WEST LINE OF THE VACATED FRONTAGE ROAD AS RECORDED IN BOOK
1580, PAGE 897 IN SAID OFFICE; THENCE N00019'08"W, ALONG SAID
WEST LINE 149.93 FEET; THENCE N89°51'07"E, ALONG THE NORTH LINE
OF SAID VACATED FRONTAGE ROAD 15.00 FEET; THENCE N00°19'08"W,
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City Clerk's Office, Fort Collins, Colorado
H. Hazards and Emergency Access
1. No combustible material will be allowed on the site until a
permanent water system is installed by the Developer and approved by the City.
2. Prior to beginning any building construction, and throughout the
build -out of this Development, the Developer shall provide and maintain at all times a
reasonable accessway to each building. Such accessway shall be adequate to handle
any emergency vehicles or equipment, and the accessway shall be kept open during all
phases of construction. Such accessway shall be constructed to an unobstructed width
of at least 20 feet with 4 inches of aggregate base course material compacted according
to city standards and with an 100 foot diameter turnaround at the building end of said
accessway. The turnaround is not required if an exit point is provided at the end of the
accessway. Prior to the construction of said accessway, a plan for the accessway shall
be submitted to and approved by the Poudre Fire Authority and City Engineer. (Three
plan sets shall be submitted to the Poudre Fire Authority at 102 Remington Street for
review and processing.) If such accessway is at any time deemed inadequate by the
Poudre Fire Authority or City Engineer, the accessway shall be promptly brought into
compliance and until such time that the accessway is brought into compliance, the City
and/or the Poudre Fire Authority may issue a stop work order for all or part of the
Development.
Footing and Foundation Permits
1. Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain Footing and Foundation permits upon the
installation of all underground water, sanitary sewer, and storm sewer facilities, and an
emergency accessway for the phase in which the permit is being requested. Facilities
shall include but not be limited to all mains, lines, services, fire hydrants and
appurtenances for the site as shown on the Final Development Plan Documents.
III. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate
barricades, warning signs and similar safety devices at all construction sites within the
public right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook"
and shall not remove said safety devices until the construction has been completed.
B. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of
waste material, rubbish, or building materials caused by the Developer's operation, or
the activities of individual builders and/or subcontractors; shall remove such rubbish as
often as necessary, but no less than daily and; at the completion of the work, shall
remove all such waste materials, rubbish, tools, construction equipment, machinery,
and surplus materials from the public right-of-way. The Developer further agrees to
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maintain the finished street surfaces so that they are free from dirt caused by the
Developer's operation or as a result of building activity. Any excessive accumulation of
dirt and/or construction materials shall be considered sufficient cause for the City to
withhold building permits and/or certificates of occupancy until the problem is corrected
to the satisfaction of the City Engineer. If the Developer fails to adequately clean such
streets within two (2) days after receipt of written notice, the City may have the streets
cleaned at the Developer's expense and the Developer shall be responsible for prompt
payment of all such costs. The Developer also agrees to require all contractors within
the Development to keep the public right-of-way clean and free from accumulation of
dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to cooperate with the City's construction inspectors by ceasing
operations when winds are of sufficient velocity to create blowing dust which, in the
inspector's opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements
or obligations may be shown on the Final Development Plan Documents, or any
documents executed in the future that are required by the City and agreed to by the
Developer for the approval of an amendment to the Final Development Plan Documents
requested by Developer, and the City may withhold (or to the extent permitted by law,
revoke (after affording Developer a notice and cure period as set forth in paragraph III.J.
below if such revocation pertains to a certificate of occupancy)) such building permits
and certificates of occupancy as it deems necessary to ensure performance in
accordance with the terms of this Agreement. The processing and "routing for
approval" of the various development plan documents may result in certain of said
documents carrying dates of approval and/or execution that are later than the date of
execution of this Agreement. The Developer hereby waives any right to object to any
such discrepancy in dates.
E. Nothing herein contained shall be construed as a waiver of any
requirements of the City Code or the Land Use Code and the Developer agrees to
comply with all requirements of the same.
F. In the event the City waives any breach of this Agreement, no such waiver
shall be held or construed to be a waiver of any subsequent breach hereof.
G. All financial obligations of the City arising under this Agreement that are
payable after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins City
Council, in its discretion.
H. This Agreement shall run with the Property, including any subsequent
replatting of all, or a portion of the Property. This Agreement shall also be binding upon
and inure to the benefit of the parties hereto, their respective personal representatives,
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heirs, successors, grantees and assigns. It is agreed that all improvements required
pursuant to this Agreement touch and concern the Property regardless of whether such
improvements are located on the Property. Assignment of interest within the meaning
of this paragraph shall specifically include, but not be limited to, a conveyance or
assignment of any portion of the Developer's legal or equitable interest in the Property,
as well as any assignment of the Developer's rights to develop the Property under the
terms and conditions of this Agreement. Developer shall have the right to assign any of
its rights or obligations under this Agreement; however, such assignment shall not
relieve the Developer of any of its obligations hereunder except as set forth in
Paragraph 111.1. below.
I. In the event the Developer transfers title to the Property and is thereby
divested of all equitable and legal interest in the Property, the Developer shall be
released from liability under this Agreement with respect to any breach of the terms and
conditions of this Agreement occurring after the date of any such transfer of interest.
Upon the occurrence of such event, the succeeding property owner shall be bound by
the terms of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material
element hereof. In the event that either party shall fail to perform according to the terms
of this Agreement, such party may be declared in default. In the event that a party has
been declared in default hereof, such defaulting party shall be given written notice
specifying such default and shall be allowed a period of ten (10) days within which to
cure said default, provided, however, any such breach which may not reasonably be
cured within ten (10) days shall not be considered a default if the non -performing party,
within said ten (10) day period, institutes efforts to cure said breach and diligently
prosecutes said efforts to completion. In the event the default remains uncorrected after
the expiration of such cure periods, 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,
except that in no event shall a party be liable lost profits or consequential, punitive or
exemplary damages.
K. In the event of the default of any of the provisions hereof by either party
which shall require the party not in default to commence legal or equitable action
against said defaulting party, the defaulting party shall be liable to the non -defaulting
party for the non -defaulting party's reasonable attorney's fees and costs incurred by
reason of the default. Nothing herein shall be construed to prevent or interfere with the
City's rights and remedies specified in Paragraph III.D of this Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement
shall not be construed as or deemed to be an agreement for the benefit of any third
party or parties, and no third party or parties shall have any right of action hereunder for
any cause whatsoever.
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M. It is expressly understood and agreed by and between the parties hereto
that this Agreement shall be governed by and its terms construed under the laws of the
State of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other
party relating to this Agreement shall be hand -delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as set
forth below; and such notice or other communication shall be deemed given when so
hand -delivered or three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
If to the Developer: Walton Foothills Holdings VI, L.L.C.
c/o Bryan McFarland
5750 DTC Parkway, Suite 210
Greenwood Village, CO 80111
With a copy to: Brownstein Hyatt Farber Schreck LLP
c/o Robert Kaufmann
410 Seventh Street, Suite 2200
Denver, CO 80202
If to the Owner: Walton Foothills Holdings VI, L.L.C.
c/o Bryan McFarland
5750 DTC Parkway, Suite 210
Greenwood Village, CO 80111
SRC Facilities Statutory Trust No. 2003-A
C/O Sears Roebuck and Company
3333 Beverly Road D768TAX 62-107A
Hoffman Estates, IL 60179
Notwithstanding the foregoing, if any party to this Agreement, or its successors,
grantees or assigns, wishes to change the person, entity or address to which notices
under this Agreement are to be sent as provided above, such party shall do so by giving
the other parties to this Agreement written notice of such change.
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017097\0003\10980737.11
O. When used in this Agreement, words of the masculine gender shall
include the feminine and neuter gender, and when the sentence so indicates, words of
the neuter gender shall refer to any gender; and words in the singular shall include the
plural and vice versa. This Agreement shall be construed according to its fair meaning,
and as if prepared by all parties hereto, and shall be deemed to be and contain the
entire understanding and agreement between the parties hereto pertaining to the
matters addressed in this Agreement. There shall be deemed to be no other terms,
conditions, promises, understandings, statements, representations, expressed or
implied, concerning this Agreement, unless set forth in writing signed by all of the
parties hereto. Further, paragraph headings used herein are for convenience of
reference and shall in no way define, limit, or prescribe the scope or intent of any
provision under this Agreement.
P. The Owner is made a party to this Agreement solely for the purpose of
subjecting the Property to the covenants contained in this Agreement. The City and the
Developer expressly acknowledge and agree that the Owner shall not be liable for any
obligations of the Developer under this Agreement, unless the Owner exercises the
rights of the Developer to initially construct the Development, in which event the
obligations of the Developer shall become those of the Owner. The City acknowledges
that the Developer intends to complete utilities, infrastructure and the building on the
Property to "vanilla shell' condition, and Owner intends to complete the traditional
interior finishes and fixturing thereafter. For the purposes of this Section III.P., the City
acknowledges and agrees that "initial construction" set forth in the second sentence of
this Section III.P. excludes the interior retail finishing and fixturing work, which is
intended to be performed by Owner.
Q. Lender Acknowledgment
1. The City acknowledges that, pursuant to Section III.N of this
Agreement, the Developer may in the future request that copies of all notices given by
the City to the Developer shall also be given to a lender which will be identified in writing
to the City by name and address. The City further acknowledges that such lender has a
right (but not the obligation) to remedy or cure any default by the Developer under this
Agreement on behalf of the Developer and that the City will accept such remedy or cure
if properly carried out by such Lender on behalf of the Developer.
2. Nothing contained herein shall be construed to impose any liability
or obligation of the City to the lender, except as expressly provided herein.
R. At the request of Developer or Owner, the City shall, within twenty (20) days
after receipt of such request, deliver to the requesting party, a letter addressed thereto
stating, if such be the case: (a) that this Agreement is unmodified and is in full force
and effect, or referring to any modifications thereof, and (b) that the City has no
knowledge, without an obligation of investigation, of a default by Owner or Developer
under this Agreement that, to the knowledge of the City, then remains uncured, or, if
any, specifying any such defaults.
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S. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the
same agreement.
T. It is expressly understood and agreed by the parties hereto that (a) this
Development Agreement is executed and delivered by U.S. Bank Trust National
Association, not individually or personally but solely as trustee of the SRC Facilities
Statutory Trust No. 2003-A, a Delaware statutory trust (the "Trust"), in the exercise of
the powers and authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as personal representations, undertakings and agreements by U.S. Bank
Trust National Association but is made and intended for the purpose of binding only the
Trust, (c) nothing herein contained shall be construed as creating any liability on U.S.
Bank Trust National Association, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any, being expressly
waived by the parties hereto and (d) under no circumstances shall U.S. Bank Trust
National Association be personally liable for the payment of any indebtedness or
expenses of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under this
Development or any other related document.
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
�.'t.�F• F�RT
ATTEST: c,.0 • '•.�o
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City Clerk
APPROVED AS TO CONTENT: ZORgDO
.� ity give
APPR D AS TO FORM:
D puty City Attorney
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017097\0003\10980737.11
DEVELOPER:
WALTON FOOTHILLS HOLDINGS VI, L.L.C.,
a Delaware limited liability company
By: Foothills Alberta Management, LLC,
a Colorado limits, liability company
Its: Authorized Aaent
By:
STATE OF COLORADO )
) ss.
COUNTY OF 9&i9" && _ )
Donald G.
Its: Manac
The foregoing instrument was acknowledged before me this ,-1:2A. day of
v , 2014, by Donald G. Provost, Manager of Foothills Alberta Management,
LLC, a Colorado limited liability company, Authorized Agent of Walton Foothills Holdings
VI, L.L.C., a Delaware limited liability company. F
Notary Public
My Commission Expires:
My Commission Expires 12114/2014
16
017097\0003\ 10980737.9
OWNER:
WALTON FOOTHILLS HOLDINGS VI, L.L.C.,
a Delaware limited liability company
By: Foothills Alberta Management, LLC,
a Colorado limited liability company
Its: Authorized went
0
STATE OF COLORADO )
) ss.
COUNTY OF P4,"OE )
Donald G.
Its: Manag
The foregoing instrument was acknowledged before me this day of
2014, by Donald G. Provost, Manager of Foothills Alberta Management,
LLC, a Colorado limited liability company, Authorized Agent of Walton Foothills Holdings
VI, L.L.C., a Delaware limited liability company.
Notary Public
My Commission Expires: /,',> - ty-f4'
�.�:• �pTq RY•,.y�
9TF O80
F . U-op
My Commission Expires 12/14/2014
17
0 1 7097\0003\10980737.9
OWNER:
SRC FACILITIES STATUTORY TRUST 2003-
A, a Delaware statutory trust acting only with
respect to the applicable SUBI Portfolio
By: U.S. BANK TRUST NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as SUBI Trustee
By. a, -,-
Melissa-,-
Melissa A. Rosal
Vice President
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK }
THE undersigned, a Notary Public in and for the County and State aforesaid,
does hereby certify that Melissa A. Rosal, Vice President of U.S. Bank Trust National
Association, not in its individual capacity, but solely as SUBI Trustee of the SRC
Facilities Statutory Trust No. 2003-A, a Delaware statutory trust acting only with respect
to the applicable SUBI Portfolio, appeared before me this day in person and
acknowledged under oath that in such capacity she signed and delivered the said
instrument pursuant to authority duly given to her by said corporation.
GIVEN under my hand and seal this day of February, 2014.
Notary Public
My Commission Expires:
OFFOAL SEAL.
EAIKA'FO.RSb'�J�f ,
Notsl►y P0114 Sets'9 ,P71wj My Commiftlob EiP�- 8,pip-
18
017097\0003110980737.11
Exhibit "A"
1. Schedule of electrical service installation.
Electrical lines need to be installed prior to the installation of the sidewalk, curb
returns, handicap ramps, paving and landscaping. If the Developer installs any curb
return, sidewalk or handicap ramp prior to the installation of electrical lines in an area
that interferes with the installation of the electrical line installation, the Developer shall
be responsible for the cost of removal and replacement of those items and any
associated street repairs.
2. Schedule of water lines to be installed out of sequence.
Not Applicable.
3. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable.
4. Schedule of street improvements to be installed out of sequence.
Not Applicable
5. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable.
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017097\0003\10980737.11
37.09 FEET; THENCE S89054'28"E, 251.24 FEET; THENCE S00005'32"W,
30.00 FEET; THENCE S89054'28"E, 115.29 FEET TO A POINT OF
CURVATURE OF A CURVE CONCAVE NORTHWESTERLY HAVING A
RADIUS OF 150.00 FEET; THENCE NORTHEASTERLY, THROUGH A
CENTRAL ANGLE OF 45031'29", ALONG THE ARC OF SAID CURVE 119.18
FEET, SAID CURVE HAVING A CHORD THAT BEARS N67°19'48"E, 116.07
FEET; THENCE N44°34'03"E, 72.48 FEET TO THE POINT OF BEGINNING,
CONTAINING 97,090 SQUARE FEET (2.229 ACRES) MORE OR LESS
(FOOTHILLS REDEVELOPMENT PLANNING AREA 1).
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, plans (including utility plans), reports and other documents required for
the approval of a final plan according to the City's development application submittal
requirements master list (the "Final Development Plan Documents") copies of which are
on file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
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
Property and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the Final Development Plan Documents
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 the development of the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
General Conditions
A. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement,
"development activities" shall include, but not be limited to, the following: (1) the actual
construction of improvements, (2) obtaining a permit therefor, or (3) any change in
grade, contour or appearance of the Property caused by, or on behalf of, the Developer
with the intent to construct improvements thereon.
B. As of the date of this Agreement, adequate public water lines and stubs,
fire hydrants, electrical lines, sanitary sewer lines and stubs, and public streets
(including curb, gutter, sidewalk, and pavement with at least the base course
completed) exists to the Property. Future phasing of the overall mall development
intends to modify existing (and/or install new) utilities and roadways, in conjunction with
the overall mall development. No permanent certificate of occupancy shall be issued
until the Developer completes the stormwater, water and sanitary sewer utilities and
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?u
Exhibit "B"
Additional Water Quality Facilities
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01709710003110980737.11
sidewalk improvements that the City reasonably determines to be necessary to meet
the infrastructure requirements for the Development in the portion of the project
identified in the major amendment as Foothills Mall Redevelopment Subdivision, and
acceptance by the City of said improvements.
C. Any water lines, sanitary sewer lines, storm drainage lines, electrical 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 drainage facilities and/or streets are
required to provide service or access to other areas of the City, those facilities shall be
shown on the Final Development Plan Documents and shall be installed by the
Developer within the time as established under "Special Conditions" in this Agreement.
D. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public
improvements required by this Development as shown on the Final Development Plan
Documents and other approved documents pertaining to this Development on file with
the City.
E. Street improvements shall not be installed until all utility lines to be placed
therein have been completely installed, including all individual lot service lines (water
and sewer) leading in and from the main to the property line and all electrical lines.
F. The installation of all utilities shown on the Final Development Plan
Documents shall be inspected by the Engineering Department of the City and shall be
subject to such department's approval. The Developer agrees to correct any
deficiencies in such installations in order to meet the requirements of the plans and/or
specifications applicable to such installation. In case of conflict, the Final Development
Plan Documents shall supersede the standard specifications, except that if the conflicts
are a result of Federal or State mandated requirements, then the Federal or State
mandated requirements shall prevail.
G. All storm drainage facilities shall be designed, constructed and maintained
by the Developer so as to protect downstream and adjacent properties against injury
and to adequately serve the Property (and other lands as may be required, if any). The
Developer shall meet or exceed the minimum requirements for storm drainage facilities
as have been established as of the date hereof by the City in its Drainage Master Plans
and Design Criteria. The Developer, for itself and its successor(s) in interest, does
hereby indemnify and hold harmless the City from any and all claims that might arise,
directly or indirectly, as a result of the discharge of injurious storm drainage or seepage
waters from the Property in a manner or quantity different from that which was
historically discharged and caused by the design or construction of the storm drainage
facilities, except for (1) such claims and damages as are caused by the acts or
omissions of the City in maintenance of such facilities as have been accepted by the
City for maintenance; (2) errors, if any, in the general concept of the City's master plans
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(but not to include any details of such plans, which details shall be the responsibility of
the Developer); and (3) specific written or otherwise documented directives that may be
given to the Developer by the City. The City agrees to give notice to the Developer of
any claim made against it to which this indemnity and hold harmless agreement by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice of any such claim to the Developer within ninety (90) days after the City first
receives a notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause this indemnity and hold harmless agreement by the Developer to not
apply to such claim and such failure shall constitute a release of this indemnity and hold
harmless agreement as to such claim. Approval of and acceptance by the City of any
storm drainage facility design or construction shall in no manner be deemed to
constitute a waiver or relinquishment by the City of the aforesaid indemnification. The
Developer shall engage a Colorado licensed professional engineer to design the storm
drainage facilities as aforesaid and it is expressly affirmed hereby that such
engagement shall be intended for the benefit of the City.
H. The Developer shall pay the applicable "stormwater plant investment fee"
in accordance with Chapter 26, Article VII of the City Code. This fee is included with
building permit fees and shall be paid prior to the issuance of each building permit.
I. The Developer shall provide the City Engineer with certified Record Plan
Transparencies on Black Image Diazo Reverse Mylars upon completion of each phase
of the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City of Fort Collins.
J. The Developer acknowledges and agrees that the City, as the owner of
any adjacent property (the "City Property") on which off -site improvements may be
constructed, or that may be damaged by the Developer's activities hereunder, expressly
retains (and does not by this Agreement waive) its rights as property owner. The City's
rights as owner may include without limitation those rights associated with the
protection of the City Property from damage, and/or the enforcement of restrictions,
limitations and requirements associated with activities on the City Property by the
Developer as an easement recipient.
K. If the Developer or any agent or representative thereof causes damage to
any public infrastructure (including without limitation, any surface pavers, flagstones, or
other stone or concrete surfaces, planters, street and decorative lights, or canopies)
such damage shall be promptly repaired with the same kind, quality, color, serviceability
and material composition aspects as was possessed by the infrastructure damaged,
unless otherwise expressly agreed to by the City in writing. Paver repair and
replacement in Downtown alleys shall comply with the City's specific requirements for
pavers.
0 1 7097\0003\1 0980737.11
II. Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. All on -site and off -site storm drainage improvements associated with this
Development, as shown on the Final Development Plan Documents, shall be completed
by the Developer in accordance with said Final Development Plan Documents prior to
the issuance any certificate of occupancy. Completion of improvements shall include
the certification by a professional engineer licensed in Colorado that the drainage
facilities which serve this Development have been constructed in conformance with said
Final Development Plan Documents. Said certification shall be submitted to the City at
least two weeks prior to the issuance of any certificate of occupancy in this
Development. A temporary certificate of occupancy will be issued before all storm
drainage improvements which relate to the Property are completed. Some
improvements, specifically water quality mitigation, which are shown in Green on Exhibit
B hereto (the "Additional Water Quality Facilities"), will be completed in future phasing of
the overall mall development, and a permanent certificate of occupancy will be issued
upon completion of said Additional Water Quality Facilities. If after two years from the
date of this signed Development Agreement, the Additional Water Quality Facilities is
not constructed and certified with future phasing of the overall mall development, the
Developer shall promptly design and install an adequate water quality facility for this
Development per City of Fort Collins criteria with all approvals by the City. No later than
the expiration of one year from the date of this signed Development Agreement, if the
Additional Water Quality Facilities has not been constructed and certified with the future
phasing of the overall mall development, the Developer will implement interim water
quality treatment measures satisfactory to the City to address storm drainage from the
Development. The parties acknowledge that such interim water quality measures may
be identified and described as part of the development approvals for phase two. The
Developer shall escrow the cost of the Additional Water Quality Facilities before the
issuance of a Certificate of Occupancy, unless the cost thereof is budgeted by the
Developer to be paid out of bonds which have been issued by the Foothills Municipal
District and the City is provided with covenants reasonably satisfactory to the City to
ensure that bond monies will be available to pay for said .Additional Water Quality
Facilities and will remain available to be applied solely to the completion of said
Additional Water Quality Facilities.
2. The Developer shall be responsible for maintaining the structural integrity
and operational functions of all drainage facilities throughout the build -out of this
Development. If at any time following certification (as required pursuant to paragraph
one (1) above) of said drainage facilities and during the construction of structures and/or
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lots within this Development the City reasonably decides that said drainage facilities no
longer comply with the Final Development Plan Documents, the City shall give written
notice to the Developer of all items which do not comply with the Final Development
Plan Documents. Unless the Developer successfully appeals the decision of non-
compliance, it shall bring such facilities back up to the standards and specifications as
shown on the Final Development Plan Documents. Failure to maintain the structural
integrity and operational function of said drainage facilities following certification shall
result in the withholding of the issuance of additional building permits and/ or certificates
of occupancy on the Development until such drainage facilities are repaired to the
operational function and structural integrity which was approved by the City.
3. The Developer agrees to provide and maintain erosion control
improvements as shown on the Final Development Plan Documents to stabilize all over -
lot grading in and adjacent to this Development. The Developer shall also be required
to post a security deposit in the amount of $3,000.00 prior to beginning construction to
guarantee the proper installation and maintenance of the erosion control measures
shown on the Final Development Plan Documents. Said security deposit(s) shall be
made in accordance with the criteria set forth in the City's Storm Drainage Design
Criteria and Construction Standards (Criteria). If, at any time, the Developer fails to
abide by the erosion control provisions of the Final Development Plan Documents or the
erosion control provisions of the Criteria after receiving notice of the same or an
emergency situation exists which would reasonably require immediate mitigation
measures, then, in either event, and notwithstanding any provisions contained in
paragraph III(J) to the contrary, the City may enter upon the Property for the purpose of
making such improvements and undertaking such activities as may be necessary to
ensure that the provisions of said plans and the Criteria are properly enforced. The City
may apply such portion of the security deposit(s) as may be necessary to pay all costs
incurred by the City in undertaking the administration, construction, and/or installation of
the erosion control measures required by said plans and the Criteria. In addition, the
City shall have the option to withhold building permits and certificates of occupancy, as
stated in Paragraph III.D of this Agreement, as it deems necessary in order to ensure
that the Developer installs and maintains the erosion control measures throughout the
build -out of this Development.
4. It is important that all lots be graded to drain in the configuration shown on
the Final Development Plan Documents. For this reason the following requirements
shall be followed for all buildings/structures on all lots:
Prior to the issuance of a certificate of occupancy for any lot or building
the Developer shall provide the City with certification that the lot and or the
building has been graded correctly. This grading certification shall
demonstrate that the lot or building finish floor elevation has been built in
accordance with the elevation specified on the Final Development Plan
Documents. The certification shall also show that the minimum floor
elevation or minimum opening elevation for any building constructed is in
compliance with the minimum elevation as required on the Final
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Development Plan Documents. The certification shall demonstrate as well
that any minor swales adjacent to the building or on the lot have been
graded correctly and in accordance with the grades shown on the Final
Development Plan Documents. The certification shall also show that the
elevations of all corners of the lot are in accordance with the elevations
shown on the Final Development Plan Documents. Said certification shall
be completed by a Colorado licensed professional engineer and shall be
submitted to the City at least two weeks prior to the date of issuance of the
desired certificate of occupancy.
5. The Developer shall obtain the City's prior approval of any changes from
the Final Development Plan Documents in grade elevations and/or storm drainage
facility configuration that occur as a result of the construction of houses and/or
development of lots, whether by the Developer or other parties. The City reserves the
right to withhold the issuance of building permits and certificates of occupancy for this
Development until the City has deemed such changes as being acceptable for the safe
and efficient delivery of storm drainage water.
6. The Developer shall limit the construction of the off -site storm drainage
improvements to the limits of construction as shown on the Final Development Plan
Documents. The contractor shall re -seed and/or restore all areas that are disturbed
during construction of the off -site storm drainage improvements in accordance with the
Final Development Plan Documents promptly following construction. No grading shall
be done outside of the approved areas as shown on the Final Development Plan
Documents.
7. The Developer shall be responsible for maintenance of all storm drainage
facilities that are constructed outside of the public right-of-way.
D. Streets.
1. No street oversizing reimbursement from the City is due the
Developer for this Development.
2. In accordance with Section 24-95 of the City Code and to meet
pedestrian level of service for the Development, the Developer is responsible for
constructing the portion of College Avenue sidewalk, both adjacent to the Property and
south to Monroe Drive, prior to the issuance of the first building permit. Presently no
sidewalk exists along the Property. In satisfaction of this obligation, the Developer shall
have the option to postpone the College Avenue sidewalk construction, by providing
payment in lieu of construction of the local street portion of sidewalk as further outlined
below:
a. The amount of payment for the local street portion of College Avenue
sidewalk is stipulated to be $14,175.00. This amount is based on the
City's established local street portion estimate amount for 2013 to be
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$35.00 per lineal foot of sidewalk and 405 feet of sidewalk construction
required with the Development.
b. The payment amount outlined above for College Avenue sidewalk is
required to be paid by the Developer to the City prior to the issuance of
a building permit for the Property.
c. Except as provided in the following paragraph, any interest earned by
the City as a result of said deposit shall be the property of the City to
cover administration and inflation in order to better assist the City in
making reimbursement to the party who constructs the sidewalk.
d. If the Developer or the Developer's successor(s) in interest is the party
that construct said improvements, upon completion of said
improvements and acceptance of them by the City, the City shall return
to the Developer the amount deposited.
e. It is anticipated that the sidewalk will be constructed with the permitting
and construction of a future phase of the overall mall redevelopment,
however, no permanent certificate of occupancy shall be issued for the
Property until the sidewalk construction is completed and accepted by
the City.
3. Notwithstanding any provision herein to the contrary, the Developer
shall be responsible for all costs for the initial installation of traffic signing and striping on
the Property as shown on the Final Development Plan Documents.
4. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with Sections 2.2.3, 3.3.1 and 3.3.2 of the Land Use Code
of the City.
E. Natural Resources
Not Applicable
F. Soil Amendment
1. In all areas associated with this Development that are to be
landscaped or planted in accordance with the Final Development Plan Documents, and
do not require a building permit, the soils shall be loosened and amended by the
Developer in accordance with Section 3.8.21 of the Land Use Code prior to the
issuance of any certificate of occupancy in this Development. Completion of soil
amendments shall include certification by the Developer that the work has been
completed. This certification shall be submitted to the City at least two (2) weeks prior
to the date of issuance of any certificate of occupancy in this Development.
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G. Ground Water, Subdrains and Water Rights
1. The City shall not be responsible for, and the Developer (for itself
and its successor(s) in interest) hereby agrees to indemnify and hold harmless the City
against any damages (including structural or other damage) or injuries sustained in the
Development as a result of ground water seepage or flooding unless such damages or
injuries are proximately caused by the City's negligent operation or maintenance of the
City's storm drainage facilities in the Development. However, nothing herein shall be
deemed a waiver by the City of its immunities, defenses, and limitations to liability under
the Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or under
any other law.
2. If the Development includes a subdrain system, any such subdrain
system, whether located within private property or within public property such as street
rights -of -way or utility or other easements, shall not be owned, operated, maintained,
repaired or reconstructed by the City and it is agreed that all ownership, operation,
maintenance, repair and reconstruction obligations shall be those of the Developer or
the Developer's successor(s) in interest. Such subdrain system is likely to be located
both upon private and public property and, to the extent that it is located on public
property, all maintenance, operation, repair or reconstruction shall be conducted in such
a manner that such public property shall not be damaged, or if damaged, shall, upon
completion of any such project, be repaired in accordance with then existing City
standards. The City shall not be responsible for, and the Developer, for itself and its
successor(s) in interest, hereby agrees to indemnify and hold harmless the City against
any damages (including structural or other damage) or injuries sustained in the
Development as the result of groundwater seepage or flooding resulting from failure of
any such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and
hold harmless the City against any damages or injuries to water rights caused, directly
or indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided the Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice of any such claim to the Developer within ninety (90) days after the City first
receives notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause the forgoing indemnities and hold harmless agreements by the
Developer to not apply to such claim and such failure shall constitute a release of the
foregoing indemnities and hold harmless agreements as to such claim.
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