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by law, the City and the DDA shall indemnify, save and hold harmless the Developer
from damages arising directly or indirectly out of the City's or the DDA's negligent
performance of any of the work under this Agreement. Nothing herein shall be construed
as a waiver of the provisions of the Colorado Governmental Immunity Act, Sec. 24-10-
101 et seq. C.R.S.
14. The parties acknowledge that there may be unforeseen delays and
complications that will arise during the course of performance of this Agreement and,
accordingly, they agree to reasonably consider requests for extensions of any deadline set
forth in this Agreement, as long as the requesting party is diligently and conscientiously
pursuing its obligations under this Agreement. Any such agreed upon extension shall be
set out in writing and signed by the parties.
15. This Agreement constitutes the entire understanding of the parties hereto
with regard to the subject matter hereof and may be amended only by written amendment
of the parties. This Agreement shall be binding upon the parties, their successors,
representatives and assigns. This Agreement shall be construed as though drafted by all
parties.
16. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
CITY OF FORT COLLINS,
a Colorado municipal corvor
By: J
Dar A. Atteberry, City
By:
J s B. O'Neill, II, CPPO, FNIGP
Dir cto of Purchasing & Risk Management
City/DDA/Corporex Exclusive Neg. Agr. 10
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PROVED AS TO F/ORM:
I
Senior Assistant City
A ST:
Carey Hew> Secretary
THE FORT COLLINS, COLORADO
DOWNTOWN DEVELOPMENT AUTHORITY,
a; 57c
By.
Steve
CORPOREX COLORADO, LLC,
a Colorado limited liability company
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the Board of Directors of the DDA ("DDA Board") for their review and approval.
It is the parties' intent that approval and execution of the MOU shall be completed
within 60 days of Project Design Completion provided, however, in the event that
within such timeframe the DDA Board or the City Council elects not to approve
the MOU, or such approval contains revisions to the draft MOU agreed upon by
the City/DDA Staff and the Developer, then, at the option of the Developer, the
City/DDA Staff and the Developer shall have a 10 day period after the votes of
the City Council and DDA Board, whichever vote last occurs, in which to attempt
to reach agreement on a revised MOU and, if different from that earlier approved
by the City Council and the DDA Board, an additional period, not to exceed thirty
(30) days, to present the revised MOU to such bodies for action. Any action on
the MOU by the City Council or the DDA Board shall be in the sole discretion of
such bodies. The execution of the MOU by the parties shall be defined as the
"MOU Completion."
4. Financial Agreement. Upon MOU Completion, the Developer shall prepare, at
its sole expense, a comprehensive construction cost analysis and operating pro forma for
the Project consistent with the MOU and shall provide the City/DDA Staff with evidence
of its ability to obtain the construction financing and take-out financing for construction
of the Project contemplated in the MOU. Thereafter, in consultation with the City/DDA
Staff, the Developer shall prepare a proposed financial agreement describing in more
detail the concepts set forth in the MOU and the specific requirements and terms and
conditions proposed to carry out those concepts ("Financial Agreement") which, upon a
positive recommendation from City/DDA Staff, shall be submitted for consideration by
the City Council and the DDA Board, setting forth the purchase price for the Property,
the financial obligations of all parties, the methods of financing to be utilized, the
methods of procuring such financing, the proposed mechanism for conveyance of any
property interest in the Property (e.g. fee simple deed, leasehold interest, etc.) and any
other property interests required for the Project, development incentives from the City
and/or DDA and, if applicable, any deed restrictions or future interests necessary to
ensure that the Property will be developed in accordance with the purposes set forth
herein. In addition, the proposed Financial Agreement shall include the Developer's
financial commitment to perform the Project to completion. The approval of the
Financial Agreement shall be in the sole discretion of the City Council and the DDA
Board. If approved by the City Council and the DDA Board, the City, the DDA and
Developer shall enter into the Financial Agreement committing the parties to the
development of the Project, subject to final development approval of the Project from the
City in its land use regulatory capacity. The Developer shall be responsible for ensuring
compliance of the Project with the applicable City of Fort Collins land use and zoning
requirements, along with all other applicable legal or regulatory requirements, including
without limitation any requirements of the Municipal Code of the City of Fort Collins
Municipal Code ("City Code") and the Land Use Code of the City of Fort Collins ("Land
Use Code"), to the extent applicable to the Project.
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5. Development Approvals.
5.1 Upon execution of the Financial Agreement, the Developer shall, at
its sole expense, prepare all plans and documents necessary for submittal of a
complete development application to the City's Current Planning Department and
shall diligently pursue approval of the development application for the Project.
Except as expressly provided in the Financial Agreement approved by the parties
pursuant to paragraph 4, all development application fees and related fees shall be
paid to the City by the Developer as a part of the development review process and
no fees shall be waived by the City. The Developer shall be responsible for
obtaining the necessary governmental approvals and permits, including without
limitation, the granting of all easements and encroachment permits (without
further expense on behalf of the Developer) necessary for the completion of the
development of the Project. The DDA Staff shall assist the Developer in
preparing the necessary applications for such approvals and permits and, to the
extent Iegally permitted, assist the Developer in the approval and permit process
provided, however, that the type and extent of such assistance shall be in the sole
discretion of the DDA.
5.2 The Developer acknowledges that the Developer will be required to
receive certain approvals, licenses, and permits (collectively, the "Entitlements")
that are conditions to its right to develop and build the Project, pursuant to the
City Code and Land Use Code. If requested, the DDA staff shall assist the
Developer in preparing any necessary applications for such Entitlements and shall
assist Developer in the Entitlement process to the extent permissible provided,
however, that the type and extent of such assistance shall be in the sole discretion
of the DDA. It is expressly acknowledged and agreed by the Developer that
neither this Agreement nor the Financial Agreement, nor any of the subsequent
agreements provided for herein, are intended to affect the application or
interpretation of the City Code, Land Use Code or any other regulatory or legal
requirement in force or enacted by the City pursuant to its police power authority,
and that any and all applicable procedures and requirements set forth therein or
enacted thereunder by the City or its authorized officials or employees remain in
full force and effect notwithstanding the provisions of this Agreement. The
Developer further acknowledges that neither the City Staff nor the City Attorney
has made, or can make, any promises or predictions as to the probability of the
appropriate decision -making official or body's ("Land Use Authorities")
approving any of the Developer's Entitlements applications, and that the Land
Use Authorities may be required by law to exercise independent judgment in
processing and ruling on approval and interpretation requests made by any party
hereto. The failure of one or more Land Use Authorities to approve any request
made by the Developer shall not constitute a breach of this Agreement nor shall it
be construed to be bad faith by the City, even if the approval is a contingency
hereunder.
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6. Exclusive Agreement. During the term of this Agreement, the City and the
DDA agree that they shall not enter into an agreement with any other developer, person
or entity for the development of the Property, it being the intention of the parties that the
Developer shall have the exclusive right to work toward the development of the Property
during term of this Agreement.
7. Ownership of Work Product. All drawings, plans, specifications, schematic
designs, site plans, elevations, scale models, engineering drawings, studies, feasibility
reports, assessments, marketing and trending research, marketing techniques, pricing
policies, financial information, sales processes, bidding processes, costs, profits, sales,
markets, patents, intellectual property, trademarks, service marks, patent applications,
development plans and all other data delivered in any form including, but not limited to,
writings, drawings, surveys, architectural renderings, graphs, charts, photographs,
phonographic records, tape recordings, disks, and data compilations in whatever form
recorded or stored shall be and remain at all times the sole property of the Developer
("Developer's Work Product").
8. Developer Costs. Subject to the provisions of Paragraph 9 hereof, the
Developer shall be solely responsible for all expenses incurred in the performance of this
Agreement, including but not limited to preparation of the Project Analysis, Project
Design, cost analyses and pro formas, environmental reviews, vibration studies, noise
analyses, etc., and/or costs or fees incurred in the development application and review
process. The City and the DDA shall have no obligation to reimburse, share in or support
the Developer in covering any costs incurred by it as may be necessary to perform its
obligations under this Agreement. The parties acknowledge that they may mutually
agree to modify the responsibilities of the parties from those set forth in this paragraph by
express provision of the Financial Agreement contemplated in Paragraph 4.
9. Termination.
9.1 Termination Rights of Parties.
9.1.1 The Developer may terminate this Agreement, with or
without cause, at any time prior to the execution of the Financial
Agreement.
9.1.2 The City or the DDA may terminate this Agreement, with or
without cause, at any time prior to Project Design Completion.
9.1.3 From the date of Project Design Completion and until the
Financial Agreement has been fully executed, the City and the DDA shall
have the right to terminate this Agreement for cause.
9.1.4 No termination by a party shall be effective until such party
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has given ten (10) days written notice of such termination to the other
parties.
9.2 Automatic Termination Events. Upon the occurrence of any of the
following events, this Agreement shall be automatically terminated without the
need for any further notice or action by any party hereto and upon such
termination, all rights and obligations of the parties hereto:
(a) Determination of the City/DDA Staff not to proceed to the next
stage of the Project;
(b) Failure of the City/DDA Staff to make a determination to
proceed to the next stage of the Project within the applicable timeframe
therefor,
(c) Failure to reach MOU Completion within the timeframe and
process set forth in Paragraph 3.2 hereof after a positive MOU Staff
Determination;
(d) Failure to approve and execute the Financial Agreement within
ninety (90) days after approval of the MOU by the City Council and the
DDA Board;
(e) Failure of the Developer to deliver the Project Analysis in
accordance with paragraph 1, the Project Design in accordance with
Paragraph 2, the draft MOU in accordance with Paragraph 3.1, or the
proposed Financial Agreement in accordance with Paragraph 4; or
(f) Execution of the Financial Agreement by the parties hereto,
after which the rights and obligations of the parties in connection with the
Project shall be those set forth in the Financial Agreement.
9.3 Upon termination, whether by a party or by the occurrence of an
automatic termination event as set forth in Paragraphs 9.1 and 9.2, all rights and
obligations of the parties hereto shall also be terminated, except as expressly set
forth in Paragraph 9.4 below.
9.4 Termination Payments.
9.4.1 Upon termination by the DDA or the City pursuant to
Paragraph 9.1, and any automatic termination pursuant to Paragraphs
9.2.1(a), (b), (c) or (d), the DDA shall purchase the Developer's Work
Product related to Project Analysis Completion and/or Project Design
Completion through the date of termination at the cost actually incurred by
the Developer to that date, provided that the total DDA payment to the
Developer for such cost shall not exceed the sum of Seventy-five
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Thousand Dollars ($75,000). The Developer shall provide the City/DDA
Staff with cost estimates for Project Analysis Completion and Project
Design Completion concurrently with execution of this Agreement. Upon
any termination referenced in this Paragraph 9.4 and prior to any payment
by the DDA, the Developer shall provide written documentation to the
DDA of the actual cost of the applicable portion of Developer's Work
Product.
9.4.2 The DDA shall also pay to the Developer the sum of
Twenty-five Thousand Dollars ($25,000), representing one-half of the
estimated total soft costs of Developer through MOU Completion, upon
the occurrence of any of the following events;
(a) The City or the DDA terminates this Agreement
without cause at any time after Project Design Completion and
prior to the execution of the Financial Agreement;
(b) The MOU Staff Determination is not to proceed to the
next phase of the Project and such determination is not made in the
sole, but reasonable, discretion of the City/DDA Staff;
(c) The City Council or the DDA Board determines not to
approve the draft MOU pursuant to the provisions of Paragraph 3.2
hereof and such determination is not within the sole, but
reasonable, discretion of such bodies, provided, however, that the
failure of such bodies to approve the draft MOU within the
required timeframe therefor shall not require the payment specified
in this Paragraph 9.4.2; or
(d) The City Council or the DDA Board determines not to
approve the Financial Agreement pursuant to the provisions of
Paragraph 4 hereof and such determination is not within the sole,
but reasonable, discretion of such bodies.
9.4.3 The Developer expressly acknowledges that in the event
that it terminates this Agreement pursuant to Paragraph 9.1.1 hereof or
fails to deliver required deliverables pursuant to Paragraph 9.2 hereof, the
DDA and the City shall not be obligated to make any payment or
reimbursement to the Developer or be under any other obligation in
connection with this Agreement. In the event of termination by the
Developer without cause, or failure by the Developer to deliver required
deliverables pursuant to Paragraph 9.2, the Developer shall transfer and
deliver to the DDA all Developer's Work Product, without payment or
other consideration to Developer for the same,
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9.4.4 It is expressly agreed by the parties that the payments and
other things of value provided in this Paragraph 9.4 are liquidated
damages and are the parties' sole and only remedy pursuant to this
Agreement. Developer expressly waives any remedy of specific
performance and additional damages. The City and DDA shall be entitled
to specific performance to require the transfer and delivery of Developer's
Work Product to the extent required to enforce the terms of Paragraph
9.4.3, but shall otherwise waive any remedy of specific performance and
additional damages.
10. Notices. All notices provided under this Agreement shall be effective when
mailed, postage prepaid and sent to the following addresses:.
If to the City:
City of Fort Collins
Attn: Darin A. Atteberry, City Manager
300 LaPorte Avenue
Fort Collins, CO 80521
With a copy to:
Stephen J. Roy, Esq.
City Attorney
300 Laporte Avenue
Fort Collins, CO 80521
and
James B. O'Neill, I1, CPPO, FNIGP
Director of Purchasing & Risk Management
215 N. Mason Street
Fort Collins, CO 80521
If to the DDA:
Robert Steiner, Executive Director
The Fort Collins, Colorado Downtown Development Authority
19 Old Town Square, #230
Fort Collins, CO 80524
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With a copy to:
Lucia A. Liley, Esq.
Liley, Rogers & Martell, LLC
300 South Howes Street
Fort Collins, CO 80521
If to the Developer:
Corporex Colorado, LLC
Attn: Kim Koehn, President
1125 17s' Street, Suite 2300
Denver, CO 80202
With a copy to:
Howard J. Pollack, Esq.
Brownstein Hyatt & Farber, F.C.
41017'h Street, Suite 2200
Denver, CO 80202
Any costs incurred by either party in the performance of this Agreement shall be the
obligation of such party upon termination.
11. Timeframes. It is acknowledged by the parties that the timeframes set forth
in this Agreement are maximum estimated timeframes and that it is the intention of the
parties to use their best efforts to expedite the process to the extent practically feasible.
12. The Developer, its agents, employees, contractors and representatives may
enter upon the Property, at their own risk, for the purpose of surveying, testing or
conducting any other reasonable activity thereon in pursuance of performing its duties
under this Agreement and shall provide the City with a schedule of activities they
propose to conduct on the Property in advance of each phase of development described in
this Agreement. The Developer acknowledges that the Property is currently being used
as a public parking facility and agrees to conduct its activities on the Property in a
manner that will minimize interference with the Property's use and inconvenience to the
public.
13, The Developer shall indemnify, save and hold harmless the City and the
DDA, its officers and employees, from all damages whatsoever claimed by third parties
against the City and the DDA and arising from the Developer's exercise of its rights or
obligations under this Agreement and its acts or omissions relating to the development of
the Property; and for the City's and the DDA's costs and reasonable attorneys fees,
arising directly or indirectly out of the Developer's negligent performance of any of the
work under to this Agreement. Developer shall maintain commercial general liability
insurance in the amount of $1,000,000 combined single limits. To the extent authorized
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