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HomeMy WebLinkAboutMULBERRY AND LEMAY CROSSINGS - Filed OA-OTHER AGREEMENTS - 2004-06-15SUPPLEMENTAL DEVELOPMENT AGREEMENT FOR STOCKPILING AND GRADING THIS AGREEMENT, is made and entered into this L Z day of ✓ �/1r/� 2000, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City'; and Ft. Collins Partners I, LLC, a Colorado limited liability company, hereinafter referred to as the "Developer". WITNESSETH: WHEREAS, the Developer is the owner of certain real property situated in the County of Latimer, State of Colorado, (hereafter sometimes referred to as the "Property" or "Development" and legally described as follows, to wit: Mulberry and Lemay Crossings, filing 1, located in the Southwest 1/4 of Section 7, Township 7 North, Range 68 West of the 6th P.M., City of Fort Collins, County of Larimcr, State of Colorado. WHEREAS, the Developer desires to develop the Property and is in the process of submitting to the City the plats, 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) but, as of the date of this supplemental agreement, has not yet submitted all of said final plan documents; and WHEREAS, the Development requires the placement of substantial amounts of fill material and the Developer has obtained an immediate source of fill material which is available for application on the Development Site, but is available only for a limited time; and WHEREAS, utilization of said fill material for fill on the Development Site will be beneficial both to the Developer and to the City; and WHEREAS, the purpose of this agreement is to authorize only the placement of fill on the Development Site and, to authorize the grading of the same. 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: 1. The terms of this Agreement shall govern only the placement of fill upon the Development Site, the grading of said and the procedures for delivery of the fill to the site. This Agreement shall not be deemed to authorize any other work to be done upon the site in pursuance of the development plan. construction of the intersection Improvements, including, but not limited to, the design of such improvements, any increased cost associated with such improvements, or any damages caused by delay in installation ol'the same. 5, intersectionSi"alization. The parties acknowledge that CDOT's new requirements may delay installation of the Signal System. The parties agree that a temporary signal system may be used until the permanent improvements are installed and that the use of such a temporary system shall not affect the issuance of either a permanent or temporary certificate of occupancy for the Wal- Mart Supercenter on the Property. The Developer shall purchase the poles and mast arms needed forthe Intersection signal and construct the foundations for the poles, The City shall be responsible for completing the remaining work required to provide a fully -functional set of signal lights at the Intersection, including providing a temporary signal system by August 15, 2001 if the penmanent system cannot be installed by such date. The City represents that its cost to install its share of the Intersection signalization improvements, including any costs to install a temporary signal system, shall not exceed One Hundred Thousand Dollars ($100,000), and the Developer's reimbursement obligation to the City for such improvements shall be based on the City's actual cost for the same, not to exceed a total or One Hundred Thousand Dollars ($100,0M). The parties agree that they shall work cooperatively in the installation of the signalization and other improvements to the Intersection so that at least a temporary signal system shall be in place no later than August 15, 2001. 6. EasemenisandRiehts-of-Way. With the exception of a utility easementfrom Family Business, Inc. to the City, the City acknowledges that all easements and rights -of -way required for the development of the Property have been obtained by the Developer. The City, by Deed of Utility Easement dated January 29, 2001, a copy of which is attached hereto as Exhibit "B" and incorporated herein by reference, has obtained a permanent easement (" Easement") and a temporary constriction casement ("Temporary Easement') for utilities from Family Business, Inc. (collectively referred to herein as the "Easements"). The City hereby authorizes the Developer to perform the contemplated work within the Temporary Easement area. The City represents that it has made all required payments for the Easements as provided in that certain Agreement to Convey Easements of Real Property between the City and Family Business, inc, dated December 22, 2000, a copy of which is attached hereto as Exhibit "C" and incorporated herein by this reference. The parties understand and agree, however, that the City has made certain additional representations and promises to Family Business, Inc. with regard to the Easements, the performance of which will be under the control of the Developer during the construction of the Intersection improvements. Accordingly, the Developer will attempt in good faith to satisfy such representations and promises by: (a) Replacing the existing Public Service gas line to the office building situated on premises owned by Family Business, inc, adjacent to the Easements; (b) Commencing installation of the storm drainage improvements within the Casements before commenchig any of the construction activities related to the intersection improvements; (c) Completing all construction activities within the Rasements no more than thirty (30) days after commencement of such activities, weather permitting; (d) At the end of each day of construction activity, filling all open excavations within that area of the Easements in which vehicles are presently displayed, unless another arrangement is made between the Developer and Family Business, Inc. 7. Cooperation. The City agrees that it will in good faith cooperate with the Developer to facilitate the completion of the Intersection Improvements in as timely a manner as is reasonably possible, including, among other items, the following: T 1 Final Utility Plans. The City agrees to expedite the review and final approval of the utility plans for the Property (the "Utility Plans"). The City also agrees to expedite the review and processing of any required minor administrative change to the approved Utility Plans. 7.2 Traffic Control Plan. The Developer is required to develop a traffic control plan which must be reviewed and approved by the City and CDOT. The City agrees to expedite its review of such plan and to reasonably assist the Developer in obtaining CDOT approval of the same. 8. No Modification of Private Agreement. This Addendum shall not alter, modify, amend or otherwise change the obligations ofthe Owner or the Developer pursuant to that agreement executed in June of2000 in connection with the development of the Property. 11te Owner and the Developer expressly acknowledge that the terms and conditions of such agreement define certain rights and obligations between the Owner and the Developer and that it does not in any manuor affect the obligations of the Owner and the Developer to the City under this Addendum. 9. Effective Date of Addendum. This Addendum shall automatically he effective upon the approval by the City Council of an emergency ordinance on April 9, 2001 authorizing those payments by the City to the Developer rciercnced in Subsection 2,2(a)(i) and (ii) ofthis Addendum. Usuch ordinance is not approved on that date, this Addendum shall not go into ell ect, and the parties shall not be bound by the terms and conditions thereof- 10. Notices. Any notice or other communication given by any party hereto to any other party relating to this Addendum 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 afler 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 Port Collins P.O. Box 580 Fort Collins, Co 80522 If to the Developer: Ft. Collins Partners I, LLC c/o Goldberg Property Assoc. Attn: Mark Goldberg 1120 Lincoln Street, Suite 1101 Denver, Co 80203 Witli a copy to: March and Uley, P,C. Attn: Lucia Liley, Esq. 110 Oak Street, Suite 200 Fort Collins, Co 80524 If to the Owner: Wal-Mart Real Estate Business Trust Attn: Chris Callaway 2001 S. E. 10"' Street Bentonville, AR 72716-0550 With a copy to: Legal Department —Real) state Adele Lucas, F.sq. 2001 S. F. 10"' Street Bentonville, AR 72716-0550 Notwithstanding the foregoing, if any party to this Addendum, or its successors, grantees or .tssigns, wishes to change the person, entity or address to which notices under this Addendum arc to be sent as provided above, such party shall do so by giving the other parties to this Addendum written notice of such change. 11. Suocrsede Confliction Provisions. The parties agree that the provisions of this Addendum shall expressly supersede all of the provisions of Exhibit D to the Development Agreement and shall further supersede any provisions of the Development Agreement which are in conllicl or inconsistent with the provisions of this Addendum. All other provisions of the Development Agreement shall remain in full force and effect and continue to bind the parties hereto. 12. C ounternan. Phis Agreement may be executed in multiple counterparts, each of which shall constitute an original, but all of which, taken together, shall constitute one and the same document. Dated the dale set forth above. TEST: City Clerk Al'Pl E A O FORM: City Attt ey THE CITY OF FORT COLLTNS, COLORADO, a municipal corporation By. John P. ischbach, City Manager FT. COLLINS PARTNERS L LI,C, a Colorado limited liability company By: Goldberg Property Ass corporation, its sole rfitmbcr By: ark A. Goldberg, Vice -Pr dent l WAL-MART REAL ESTATE BUSINESS TRUST, a Delaware business trust By; Z4 x klA Robert M. Bedard, Assistant Vice President Wal-Mart Stores, Inc. is signing this Addendum solely for the purpose of being bound to the release provisions of Section 4 of this Addendum and sliall not otherwise be liable under any of its remaining terms and conditioris: WAL-MART STORES, INC., a Delaware corporation UOBy:W.___ Robert M. Bedard, Assistant Vice President STATE OP COLORADO Ci,iT AND COUNTY OF R%R = DF,NVF,R The foregoing Addendum was executed before me thus j�day of April, 2001, by Mark A. Goldberg as )NQLiPresident of Goldberg Property Associates, Inc., a Colorado corporation, the sole member of Ft. Collins Partners 1, LLC, a Colorado limited liability company, Developer. WITNESS my hand and official seal. My commission expires S y Notary Public STATE OP ARKANSAS COUNTY Of 13EN1'ON The foregoing Addendum was executed before me this e1 day of April, 2001, by Robert M. Bedard as Assistant Vice President of Wal-Mart Real L'state Business'1'nust, a Delaware business trust, Owner. WITNESS my hand and official seal. My corrunission expires IL% �Ocy Notary Public "NOTARY SEAL" Shelia Churchill, Notary Public Benton County, State of Arkansas STATE OF ARKANSAS ) My Commission Expires 1/10/2009 COUNTY OF BENI'ON The foregoing Addendum was executed before me this 6jl day of April, 2001, by Robert M. Dedard as Assistant Vice President of Wal-Mart Stores, Inc., a Delaware corporation. WITNESS my hand and official seal. My commission expires _ �- 10 -(-1W! Notary Public "NOTARY SEAL " Shelia Churchill, Notary Public Benton County, State of Arkansas My Commission Expires 1/10/2009 10 APR. 4.200' 7:36AM CLC Associates, Inc. g480 E. Orchard Road Suite 2000 Englewood, Colorado 80111 (303)770-5600 (303) 770-2349 (FAX) EXHIBIT „A„ Y0.3750 P. 2/5 Pknninp, Ennmrmnq. AmUnIum. I .Jsm r L ,tWflur6 Lena 1UNOY151 MEMORANDUM TO: Mark Goldberg Goldberg Property Associates, Inc. FROM: Kurt D. Prinslow DATE: Wit- -Xvjd ' RE: Mulberry and Lemay Crossings Mulberry I Lemay Intersection The following plan sheets comprise the construction setforthe Mulberry and Lemay Intersection. The following sheets have been prepared by CLC Associates, Inc. : Sheet Number Date of Issue or Latest Revision CS 0.00 Revised 3-15-01 CS 0.01 3-15-01 CS 1 01 3-15-01 CS 2.10 3-15-01 CS 3.00 Revised 3-27-01 CS 3.01 3-15-01 CS 3.10 Revised 3-27-01 CS 3.11 3-15-01 CS 3.13 3-15-01 CS 3.20 3-15-01 CS 4.00 3-15-01 CS 5.00 3-15-01 CS 5.01 3-15-01 CS 5.02 3-15-01 CS 5.03 Revised 3-27-01 CS 5.04 Revised 3-27-01 Rf R. T. L a V I i. Jyn.n �.... ll.v .. ... Page 2 Sheet Number Date of Issue or Latest Revision CS 5.10 3-15-01 CS 5.12 Revised 3.27-01 CS 5.13 Revised 3-27-01 CS 5.32 3-15-01 CS 5.40 3-15-01 CS 5.41 3-15-01 CS 5.42 3-15-01 CS 5.43 3.15-01 CS 5.44 3-15-01 CS 8.00 3-15-01 CS 6.01 3-15-01 Revised CCS S7.02 CS 8.00 3-15.01 CS 8.02 3-15-01 CS 9-00 3-15-01 CS 10.00 3.1541 CS 10.01 3-15-01 CS 10.02 3-15-01 CS 11.00 3-15.01 CS 11.10 3-15-01 CS 12.00 3-15-01 CS 12.01 3-15-01 CS 12.02 3-16-01 CS 12.03 3-15-01 CS 12.04 3.15-01 CS 12.05 3-15-01 CS 12.06 3.15-01 CS 12.07 3-15-0.1 CS 12.10 3-15-01 CS 12.11 3-15-01 CS 12.12 3-15.01 CS 12-13 3-15.01 CS 13.00 CS13.02 C 4,11 Revised 3.27-01 C 4.13 Revised 3-27-01 Page 3 Shast Number Date of Issue or Latest Revision C 4.21 Revised 3.27-01 C 4.22 Revised 3-27-01 C 5.11 Revised 3-27-01 C 5,90 3-15-01 C 6.10 3-15-01 C 6.11 3-15-01 C Z16 3 15-01 C 7,17 3 15-01. C 911 3-11"1 l The following sheets have been prepared by Ballof rt and Associates, Inc, and come from the Round -About Construction Plans: 116 of 255 Revised 3-14-01 117 of 255 01-16-01 119 of 255 01-16-01 121 of 255 01-16-01 122 of 255 01-1 "1 129 of 255 01-16-01 131 of 255 01-16-01 137 of 255 01-16-01 Cc: Ben Drake Goldberg Property Associates, Inc. Lucia Uley March and Uley Todd Whipple CLC / Spokane Jim Turner CLC / Denver Sent By: CITY RIGHT OF 'MAY, (ROUNDFANIBUSUTILITY.FRM 11/14/001 Mar-' 1 4:55PM; Page 2 DEED OF UTILITY EASEMENT THIS DEED, mode'his�`F day cLi«, ,2001. between FAMILY BUSINESS, INC., a Colorado corporation , of the County of Latimer, State of Colorado, GRANTOR, whose address is 4039 S. Santa Fe. Fnglewccd, CO 80110, and THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, GRANTEE, whose address is 300 LaPorte Avenue, Fort Collins, Colorado 80521 WITNESSETH: That for and in consideration cf the covenants and agreements herein set forth, the SLIM of Twenty Thousand Nine Hundred Twenty Dollars ($20,920), and other good and valuable consideration in hand paid oy `.he Grantee to t'ne Grantor, the receipt and adequacy of which is hereby acknowledged, the Crantor nerecy grants, seils and conveys to *he Grantee, its successors arts assigns, a ceroetual easement and right-of-roay :o install, operate, maintain, repair, recces-. uct, replace, inspec' and remove. at any time and from time to time perpetua, utility, :ccether mLh a right-of-way `cr access. on, aleng, through and under all cf the hereinafter cescrbed real croperty situates in the County of Larimer, State of Colorado, being described more fuily on Exhibit "A" attached 'hereto anc by this reference made a par' hereof. The Grantor further grants'c '.he Grantee (a) the right of ingress to and egress from said easements over and across said lands of the Grantor by means of roads and lanes thereon; provided, that if any portion of said !ands is or shall be subdivided and dedicated roads or highways on such portion shall extend to said easements, said right of ingress and egress on said portion steal! be confined to such dedicated roads and highways, (b) the right from time to time to enlarge, improve, reconstruct, relocate and replace any public improvements, or other structures constructed hereunder with any other number or type of public improvements, or other structures either in the original location or at any alternate location or locations within said easements. (c) the right to install, maintain and use gates in all fences which now cross or shall hereafter cross said easements: (d) the right to mark the location of said easements by suitable markers set in the ground; provided that said markers shall be placed in locations which will not interfere with any reasonable use Grantor shall make of said easements. 2. The Developer is hereby authorized to place fill dirt upon the Development Site, as is provided in the approved Grading and Erosion Control Plan, which fill dirt shall be acquired from that certain stormwater utility project being conducted by the City at the northwest comer of Overland Trail and County Road 42C and known as the Rodeo Detention Pond Project. The haul route for delivery of the fill dirt to the Development Site shall be as follows: From the Rodeo Detention Pond site north on Overland Trail to Prospect Road, Prospect Road east to Lemay Avenue, north on Lemay Avenue to the Mulberry Lemay Crossing site. Returning trucks shall follow the reverse route. 3. In the event that the Developer cannot obtain sufficient fill to meet its needs from the Rodeo Detention Pond Project, or will need alternate material for structural building pads, then the Developer is also authorized to place fill dirt upon the Development Site, as is provided in the approved Grading and Erosion Control Plan, from fill dirt to be acquired from the pit facility owned by MJR Enterprises located on North Taft Hill Road (between Vine Drive and SH 287). The haul route for delivery of fill dirt from this site to the Development Site shall be as follows: From the MJR Enterprise site north on Taft Hill Road to SH 287, SH 287 east then south to Jefferson Street, southeast on Jefferson Street to Mulberry Street (SH 14), east on Mulberry Street to Lemay Avenue, north on Lemay Avenue to the Mulberry Lemay Crossing site. Returning trucks shall follow the reverse route. 4. All trucks delivering fill material shall comply with the size, weight and load restrictions as set out in Section 18 of the Model Traffic Code as amended pursuant to Section 28-17 (14.10) through (18) of the City Code and all fill cargo shall be fully Carped and covered. The first ten (10) loads shall be weighed, and all subsequent loads shall be subject to periodic weighing as determined by the City Inspector. Such weight shall be verified at the Contractors expense by the use of a State certified portable scale. 5. If night lighting is utilized at either the Rodeo Detention Pond Project Site or the Development Site, such lighting shall be described in a lighting plan and no such lighting shall be used until such lighting plan has been approved by the City Engineer. 6. Prior to the placement of any fill within the existing or future City rights -of -way, the fill material must be first approved by the City Engineer. In order for such fill material to be approved it shall (1) be tested for swell and R-value and approved by the City Engineer prior to use in the right-of-way; (2) have an R-value and plasticity index equal to or greater than the subgrade material within the right-of-way; and (3) not have a liquid limit greater than 40 or a plasticity index greater than 20. Upon such approval, all placement of fill in existing or future rights of way of the City shall be performed in accordance with Engineering Standards, and shall be inspected and tested. 7. The fill material shall be graded by the Developer upon delivery to the Development Site fully in accordance with the approved grading and erosion control plan. Page 2 of 5 Sant ay: CITY RIGHT OF WAY; 970 419 2209; Mar-e-at a:oerM; rage u Grantor reserves the right to use said easements for purposes which will not inthts further agreeeere with Gcantee's fun enjoyment of the that he uses of said easement by Grantor and he agreements n s ted: and c concerning those uses shall be as follows: (a) Grantor shall not erect or construct any building or other structure, or drill or operate any well, or construct any reservoir or other obstruction, or otherwise add to the ground level in said easements; and, (b) Grantor shall not deposit, or permit or allow to be deposited, earth, rubbish, debris, or any other substance or material, whether combustible or noncombustible, on said easements. The Grantor states that it Is the lawful owner in fee simple of the real property described herein; that it has a good and lawful right and authority to grant, sell and convey said property or any part thereof and !hat it warrants the title of said property. Whenever used herein, the singular number shall include the plural, the plural the singular; and the use of any gender shall be applicable to all genders. All of the covenants herein contained shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns. IN WITNESS WHEREOF, the Grantor has hereunto set their hand and seal the day and year first above written; and the Grantee has caused this Deed to be executed as an Agreement by its City MaWgePr, att ted to by its City Clerk, and its corporate seat to be hereunto affixed on the f—day of 0.0 / 2001. GRANTOR: FAMILY BUSINESS, INC., a Colorado corporation itle: STATE OF COLORADO ) ss. COUNTY O r } Subscribed and worn = befoore me thiQ� day of. � 2001. by "- C , as , - -dv-� of F ily Business, Inc. a Witness my hand and official seal. My Commission expires: r.� Notary Pudic anr+rvw NOTARY STATE OF C My Q*T*N W Ex0as Sent By: CITY RIGHT OF WAY; g70 418 2209; Mar-8-01 4:58PM; Pa9a 4 THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation LTTE'T' City Clerk APPROVED AS TO FORM _i ssistant Clly Il � Ity Manager EXHIBIT "A" Page 1 of 2 DESCRIPTION OF Ti!£ FAMILY BUSINESS, INC., A COLORADO CORPORATION PERMANENT STORM SEWER EASEMENT A permanent Storm sewer Easement located in the Northwest quarter of Section 18, Township 7 North, Range 68 West of the sixth Principal Meridian, City of Fort Collins, Larimer County, Colorado, the said easement is also located in Lot 1 of the Diane Joy M.L.D. YS-45-89, a Plat. of record with the Clerk and Recorder of the said Larimer County, being more particularly described as follows; Considering the north line cf the said northwest quarter of Section 18 as beariny Nuruh 89 det3rees 21 minutes 53 seconds East between a found 3" brass cap monument at the northwest corner of the said Section 18 and a found 3" brass cap monument, at the north quarter corner of the said Section 18, based upon GPS observation; Commencing at the said northwest corner of Section 18; TflSNCE along the west line of the said northwest quarter, South 00 degrees 12 minutes 29 seconds West for a distance of 175,00 feet to the south right of way of East Mulberry Street (Colorado Highway 14) as described in Book 890 at Page 107 records of the said Clerk and Recorder; THENCE along the said south right of way, South 89 degrees 39 minutes 07 seconds East for a distance of 913.17 feet to the northeast corner of the said Lot 1, Diane Joy M.L.D. IS-45-89, and to the to the TRUE POINT OF BEGINNING of uhiu description; Th:;NC:E leaving the said south right of way, along the east line of the said Lot 1, South 00 degrees 18 minutes 53 seconds West for a distance of 337.24 feet to the southeast corner of the said Lot 1; TUENCE leaving the said cast line, along the south line of the said Lot 1, North 78 degrees 18 minutes 07 seconds West for a distance of 25.50 feet to a line which is 25.00 feet (measured at right angles) west of and parallel With the said east line of Lot 1; THENCE leaving the said south line, along the said parallel line, North 00 degrees 19 minutes 53 seconds East for a distance of 332,22 feet to the north line of the said Lot 1; i THENCE leaving the said parallel line, along the said north line, South 89 degrees 39 minutes 01 seconds Fast for a distance of 25.00 � feet to the paint of beginning, Containing 8363 square feet more less. The above described tract is subject to all easements and rights of ways now existing or of record. I hereby state that the above description was prepared by me and is true and correct to the best of my professional knowledge, belief and opinion. WALLACE C. MUSCOTT COLORADO P.L.S_ 17497 P.o. BOX 580 FORT COLLINS, CO 80522 ,. y Sent Ry: CITY RIGHT OF WAY; 970 416 2209, Mar-a-01 4:56PM; Page 6114 EXHIBIT "A' Pace 2 of 2 LOCATION SKETCH B 7-68 FAMILY BUSINESS, INC. - - 7-� N8921'530E r NORTH LINE NORTHWEST 1/4-18-7-88 # MULBERRY STREET Np (COLO. HIWAY #14) WSTuNE rnNOR1T8-wT8 /4 6n T J In AUGUST 22, 2000 569'J9'0TE-913.17' 858.17' Poe TEMP.,' CONS'T. ESM T tot 2 Lot 1 FAMILY BUSINESS, INC. A COLO, CORP. THIS SKETCH AND THE AREAS PROPPEERTYY DEPICT ONLY AND DO NOT REPRE59WT A MONU4ENT{0 BOUNDARY SURVEY, [ROUNDABOUTFAMILYBUSREVAGR 12120/001 AGREEMENT TO CONVEY EASEMENTS OF REAL PROPERTY Dated 200 O THIS AGREEMENT, is made and entered into by and between FAMILY BUSINESS, INC., a Colorado corporation, hereinafter referred to as "the Grantor", and THE CITY OF FORT COLf INS, a municipal corporation, hereinafter referred to as "the Grantee". WITNESSETH: For and in consideration of the promise of the Grantee to purchase and of the Grantor to grant the easement interests described 1n paragraph ^. and 2 hereinafter (collectively the "Easements"), and other good and valuable consideration, the receipt and acequocy of which are hereby confessed and acknowledged, the parties agree to be egally bound Whereby the Grantor agrees to sell and the Grantee agrees to ourc,ase the said Easements on the terms and conditions hereinafter set forth. 1. Deed of Utility Easement. The Grantor agrees to execute and deliver to the Grantee, at the time of closing, a utility easement more fully described in Exhibit "PUE", attached hereto and by this reference. 2. Temporary Constn Ilion Easement. The Grantor agrees to execute and de!iverto the Grantee, at the time of closing, a temporary construction easement more fully described in Exhibit "TCE", attached hereto and by this reference. 3. Method of Conveyance. Tne Grantor agrees to grant to the Grantee and the Grantee agrees to purchase from the Grantor, subject to the terms and conditions as set forth herein, the Easements. The easement described in Paragraph 1 shall be conveyed by the Deed of Utility Easement form attached as Exhibit "A". The easement described in Paragraph 2 shall be conveyed bythe Temporary Construction Easementform attached as Exhibit "B". The Easements shall be conveyed free and clear of all liens and encumbrances, except and subject to the following: A. Any restrictions, reservations or exceptions contained in any United States or State of Colorado patents of record; e. All zoning and other governmental rules and regulations; C. Statutory lien rights resulting from the inclusion of the Easements in 111 ll V-I ...I .6W IV'IV ;YI VI II ..I —"'- V11-IVL .1.1 .. lVlucGlwJ , I. VJ any special taxing district or improvement districts; D. All oil, gas or other mineral reservations or exceptions of record; and E. General property taxes, assessments and charges for 2000 and all subsequent years. 4, Purchase Price. The purchase price of the Easements shall be THIRTY EIGHT THOUSAND FIVE HUNDRED TWENTY DOLLARS ($39,520.00) and shall be computed as follows, Utility Easement $20,920 Damages : . 8,000 Temporary Construction Easement 3,600 Settlement 6,000 A. The sum of Ten Dollars ($10.00), representing an earnest money deposit, shall be paid by the Grantee upon the execution of this Agreement by check to the Grantor. B. The balance of the purchase price in the amount of THIRTY EIGHT THOUSAND FIVE HUNDRED TEN DOLLARS ($38,510,00), subject only to tax prorations, shall be payable by check from the Grantee to the Grantor at the time of dosing, as hereinafter set forth. 5, Title Insurance, On or before 15 days prior to the date of closing, the Grantee, at its own expense, shall obtain a title insurance commitment, in an amount equal to the purchase pricc, and shall provide copies -of all documents of record related to exceptions notified in said title commitment ("Title Documents"). Grantee shall have the right to inspect the Title Documents. The title insurance commitment obtained by the Grantee shall show marketable title to the Easements in the Grantor, subject only to those items set forth In paragraph 3 hereinabove. In the event said title insurance commitment discloses title defects subject to which the Grantee need not take title, written notice by Grantee shall be given to the Granterwithin five (5) calendar days after receipt by Grantee of title commitment or any title changes. The Grantor shall cure such defect within a reasonable amount of time, at its expense, without in any other manneraffecting the terms of this Agreement. It any instrument or deposit is necessary in order to obviate a defect In or objection to title, the following shall apply! (a) Any such instrument shall be In such form and shall contain such terms and conditions as may be reasonably required by the title Insurance company so as to satisfy said company sufficiently for it to omit such defect or objection; (b) Any such deposit shall be made with the said title insurance company; and (c) the Granter agrees to execute, acknowledge and deliver any such instrument and to make any such deposit, In the event said title insurance company refuses to omit any nrn-ur-cuui ncv 'U' 1 i.- title defect or objection prior to dosing, then the Grantee shall, at its election, have the right to accept such title as the Grantor is able to convey, without any reduction of the purchase price; or the Grantee shall have the right to rescindntee this greementident the and, uponts uch the rescission pursuent to this paragraph, amount of money theretofore paid to the Grantor or its agent; and upon such payment, this Agreementshall be null and void and of no further effect, and all parties to this Agreement shall be released from all obligations hereunder. Notwithstanding the foregoing, in the event the Inability of the Grantor to rketable or omission of to Grantor, the Grantor shallnvey abe ititle n default and shall continue to be able hereunder. g, Closing. The closing of this transaction shall 1ll be hell Drive, Fort d on or before April 2, •2o0t, 2:00 p.m_ at Land Title Guarantee Company, Colorado, or at such other reasonable time, date or location as the parties may mutually agree upon, 7. possession. it is agreed by the parties hereto that by execution of this Agreement by the Grantor and the Grantee that the right to possession and use of the Easements shall be conveyed to the Grantee. In the event this transaction does not close due to a default by the Grantee, the Grantee's right to possession and use shall cease upon the termination of this Agreement for said default, In the event this transaction does not close due to a default by the Grantor, the Grantee's right to possession shall continue until the Grantee acquires the Easements through its remedy of specific performance, or until the Grantee acquires the Easements through condemnation. . g, arcTggn. Real property taxes and assessments and similar expenses, in accordance with local practice, shall be prorated as of the date of closing. g, Remedies on op a9it. if any note or check received as earnest money red or when due, or if any other obligation hereunderment due is not performreunder is noted as herein provided, there halt be the following remedies; A. If the Grantee is In default, then the eamesi money deposit shall be forfeited by the Grantee and retained on behalf of the Grantor, and both parties shall thereafter be released from all obligations hereunder. It is agreed that the earnest money deposit is liquidated damages and is the Grantor's sole and only remedy forthe Grantee's orm the ions of this Agreement. -the ntor exa lwivestheremelure to fdesofspec:;ficperformance a d presstyadditional damages. g, If the Grantor is in default, the Grantee may elect to treat this 3 APR-09-01 MON 08:38 AM FAX NO, P, 23 APR-04-2001 WED 10:17 AM CITY ATTORtIEYS OFFICE FAX NO, 19702216327 P. as Agreement as terminated, in which case all payments and things of value received hereunder shall be returned to the Grantee, and the Grantee may recover such damages as may be proper, or the Grantee may elect to treat this -Agreement as being In full force and effect, and'the Grantee shall have the right to an action for specific performance or damages, or both. 10. Aftomevs' Feeagnd Costs. In the event either of the respective parties hereto shall default in any of their covenants or obligations herein provided and the party not in default commences and prevails in any legal or equitable action against the defaulting party; the defaulting party expressly agrees to pay all reasonable expenses of, said litigation, including a reasonable sum for adomeys' fees. 11. Coverrtina Law. It is expressly understood and agreed by and between the parties hereto that this Agreement is made in and shall be construed and interpreted in accordance with the laws of the State of Colorado. 12. Ngtires. Any notice or other communication given by either party hereto to the other relating to this Agreement shall be hand delivered or sent by registered or certified mail, return receipt requested, addressed to such other party at their respective. address as setforth below; and such notice or other communication shall be deemed given when so hand delivered or on the third business day after when so mailed; If to Grantor: Family Business, inc, A7TN: Bob Johnson 1209 East Mulberry Street Fort Collins, CO 80524 if to Grantee: City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 With a copy to: Ron Mills, Real Estate Services Manager City of Fort Collins Colorado P.O. Box 580 Fort Collins, CO 80522 4 APR-09-01 MON 08:38 AM FAX NO, P, 24 APR-04-2001 WED 1001 411 CITY ATTORNEYS OFFICE FAX NC 19702216327 P. 06 13. Assignment. This Agreement shall not be assigned by either of the parties hereto without the prior written consent of the other party, which consent shall not be unreasonably withheld. 14. Maintenance pf the Easement Property, The Grantor shall keep, or cause A to be kept, the property to be burdened by the Easements in its condition as of the date ' hereof until the closing of this transaction, subject to normal wear -and -tear and seasonal changes, and agrees not to commit or permit waste thereon. 15. $epresentations of Grantor, The Grantor represents and warrants as of the date hereof and as of the data of dosing that the following are true and correct; A. There Is no litigation proceeding pending (or to the Grantor's knowledge threatened) against or relating to any part of the Easements, nor does the Grantor know of or have reasonable grounds to know of any basis for any such action; B. The Grantor has no knowledge of any pending or threatened condemnation or eminent domain proceeding with respect to the Easements or any part thereof; G. The Grantor has not received notice of, and to the best of the Grantor's knowledge, there are no violations of any laws, orders, regulations or requirements of any governmental authority affecting the Easements or any part thereof; D. The Grantor has the unconditional right and power to execute and deliver this Agreement to consummate this transaction; E. The Grantor has not received notice of default or breach by them or under any of the covenants, conditions, restrictions, rights -of -way or easements affecting the Easements or any portion thereof; no such default or breach now exists or will exist on the date of closing; and no event has occurred and is continuing which, with or without notice and/or the passage of time, shall constitute such a default or breach under any thereof; and. F. To the best of the Grantor's knowledge, no property in the vicinity of the Easements has ever been used as a landfill or Waste dump; there has been no installation in, or.production, disposal or storage in the vicinity of the Easements of any hazardous waste or other tonic substances by any owner, tenant Or previous owner or previous tenant or any other activity which could have resulted in an 5 APR-09-01 MON 08:38 AM APR-04-2001 WED 10:1^ 4M CITY ATTORNEYS OFFICE FAX NO, FAX N(% 19702216327 P. 25 P. 07 environmental condition requiring investigation or remediation on the Easements; and there is no anticipated, threatened, or pending proceeding or inquiry by any governmental authority or agency with respect to property in the vicinity of the Easements that may relate to the condition of or need to take investigative or remedial action on the Easements. Grantor represents that it has provided to Grantee all environmental reports in Its possession, le. Casual .In the event that the Easements are substantially damaged byfire, flood or casualty between the date of this Agreement and the date of closing of title, this Agreement may, at the option of the Grantee, be declared null and void and of no further, force or effect; and all the parties to this Agreement shall be released from all obligations hereunder, and the Grantee shall'be entiUed to a refund of the amount of money, if any, theretofore paid to the Grantor or its agent. 17. Headings. Paragraph headings used herein are for convenience of reference and shall in noway define, limit or prescribe the scope or intent of any provision under this Agreement. 18, Terms Survive Closin❑. To the extent necessary to carry out all of the terms and provisions hereof, the said terms, obligations and rights set forth herein shall be deemed not terminated at the time of closing; nor shall they be necessarily merged with the various documents executed and delivered at such time. 19. Cgnstruction. Words of the masculine gender shall include the feminine and neuter gender and when the sentence so indicates, wqrds of the neuter gender shall refer to any gender. 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 both parties hereto, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto. There shall be deemed to be no other terms, conditions, promises, understandings, statements or representation, expressed orimplied, concerning this Agreement unless set forth in writing and signed by both parties hereto. 20, Tlme is of the ence. it is agreed that time shall be of the essence of this Agreement and each and every provision hereof_ 21 _ inspection. The Grantee or any designee, shall have the right to make inspections of the physical condition of the Easements and the improvements located thereon at the Grantee's expense. Such inspections may include, but shall not be limited to, inspections regarding compliance with any environmental protection, pollution or land use laws, rules or regulations, including, but not limited to, any laws relating to the disposal or existence of any hazardous substance or other regulated substance in or on the Easements. if written notice of any unsatisfactory condition, as determined at Grantee's 8. The approved development plan documents require the construction of a retaining wall which serves to support the fill material along the north property line of the Development Site (adjoining the property known as "Buffalo Run"). Upon presentation to and approval of the City of such easements as necessary to allow the Developer to enter upon the Buffalo Run property to construct said retaining wall the Developer may construct such wall. Furthermore, no grading or stockpiling may commence on any property for which easements for such grading or stockpiling are required until such easements are acquired by the Developer and approved by the City. 9. The Developer agrees to provide and maintain erosion control improvements as shown on the approved grading and erosion control plans incorporated herein by this reference, 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 $40,498.00 prior to beginning construction to guarantee the proper installation and maintenance of the erosion control measures shown on the approved grading and erosion control plans. 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 provisions of the approved grading and erosion control plans or the Criteria, 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. If the Developer has not commenced construction of a structure or utility installation under the authority of a development construction permit within one month of completing the delivery of fill and grading of the same on lot 1 then the Developer shall seed and mulch the graded fill material or employ other approved erosion control procedures, as required pursuant to the approved grading and erosion control plans. The Site (except for Lot 1) shall be seeded and mulched for erosion control upon completion of fill operations. 10. 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. 11. 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 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 Page 3 of 5 APR-09-01 MON 08:39 AM FAX NO, P. 26 APR-04-2001 WED 1019 "' CITY ATTORNEYS OFFICE FAX NO. 40702216327 P. 09 sale discretion, signed by Grantee, is not received by the Grantors on or before 15 days prior to the date of closing, the physical condition of the Easements and the improvements located thereon as of that date shall be deemed to be satisfactory to the Grantee. If written notice of any unsatisfactory condition, signed by the Grantee, Is given to the Grantor on or before 15 days prior to the date of closing, Grantor shall either cure such conditions or this Agreement may be terminated at the option of the Grantee. Upon such termination, all payments and things of value received hereunder by the Grantor shall be returned to the Grantee. The Grantee is responsible and shall pay for any damage which occurs to the Easements and the improvements located thereon as a result of such inspections. 22. Qandemnation Rights. The Grantor expressly acknowledges that it is aware that under Colorado law the Grantee is empowered with the right of eminent domain and that, in the event the Grantee fails to acquire the Easements from the Grantor under this Agreement, the Grantee may acquire the Easements by exercising its power of eminent domain by condemning the Easements, The Grantor further acknowledges that it is aware that under Colorado law it has the right, absent this Agreement, to require the Grantee to acquire the Easements by complying with the laws of the State of Colorado regarding eminent domain and in particular, the Grantor acknowledges that it would have the right to receive from the Grantee a Notice of Intent pursuant to Section 38-1-121, C.R.S., advising the Grantor that the Grantee intends to acquire the Easements by a condemnation action and that, If the Easements has an estimated value of Five Thousand Dollars ($5,000.00) or more, the Grantor is entitled to obtain an appraisal of the Easements, the reasonable costs of which the Grantee would pay, By entering Into this Agreementto sell the Easements to the Grantee, the Grantor understands that it is waiving any and all rights it would have underthe laws of the State of Colorado if the Grantee were to acquire the Easements through a condemnation action, 23. Bindin Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, administrators, successors and assigns. 24, No Brokpr.5. The Grantor and the Grantee each represent and warrants to �5, �cvoAa/�� kje-'eS -o /iCQLav �w`7IG4 �e�Vl�' APR-09-01 MON 08:39 AM APR-04-2001 NED 10:1P NM CITY ATTORNEYS OFFICE FAX N0, P, 27 .FAX NO, 19702216327 P. 09 the other that neither has employed, retained or consulted any broker, agent or otherfinder with respect to the Easements, and the Grantor and the Grantee shall each Indemnify and hold the other harmless from and against ail claims, demands, causes or action, debts, liabilities, Judgements and damages, including, without limitation, costs and adomey's fees incurred In connection with the foregoing, which maybe asserted orrecovered againstthe other on account of any brokerage fee, commission or other compensation arising in breach of this representation and warranty. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Grantor: FAMILY BUSINESS, a Colarad 1 By: THE CITY OF FORT COLLINS, COLORADO a Municipal Corporation Date: e' City Manager ATTEST: )t4yftCL1erk APP VED AS TO ORM: City ome APR-09-01 MON 08:39 AM FAX NO, P, 28 APR-04-2001 WED 10.20 QM CITY ATTORNEYS OFFICE FAX NO, 19702216327 P. 10 El(HIBIT "PUE" DESCRXPTION OF THE FAMILY BUSINESS, INC., A COLORADO CORPORaTSON PtiRMANENT STORM SEWER EASEMENT A Permanent Storm Sewer Easement located in the Northwest waxter of Section 18, Township 7 North, Range 68 West of the Sixth Principal Meridian, City of Fort Collins, Larimer county, Colorado, the said easement is also located in Lot 1 of the Diane Joy M.L_D. ,',S-45-89, a Plat of record with the Clerk and Recorder of the said Larimer County, being more particularly described as follows; Considering the north line of the said northwest quarter of section 18 an bearing North 89 degrees 21 minutes 53 seconds East between a found 3" brass cap monument at the northwest corner of the said Section 18 and a found 3" brass cap monument, at the north quarter corner of the said Section 18, based upon GPS,observation; Cormmz)ncing at the said northwest corner of Section 18; THENCE along the west line of the said northwest quarter, South 00 degrees 12 minutes 29 seconds West for a distance of 175,00 feet to the south right of way of East Mulberry Street (Colorado Highway 14) as described in Book 890 at Page 107 records of the said Clark and Recorder; THENCE along the said south right of way, South 89 degrees 39 minutes 07 ncconds East for a distance of 913.17 feet to the northeast corner at the said Lot 1, Diane Joy M.L.D. :S-45-89, and to the to the TRUE POINT OF BEGINNING of this description; 'RHENCE leaving the said south right of way, along the east line of the said Lot 1, South 00 degrees 18 minutes 53 seconds West for a distance of 337.24 tout to the southeast corner of the said Lot 1; THENCE leaving the said east line, along the south line of the said Lot 1, North 78 degrees 18 minutes 07 seconds West for a distance of 25.50 feet to a line which is 25.00 feet (measured at right angles) west of and parallel with the said east.l ne of Lot 1; TH;:NCS leaving the said south line, atcng the said parallel line, North 00 degrees 18 minutes 53 seconds East for a distanCe of 332,22 feet to the north line of the said Lot l; THENCE leaving tho said parallel line along the said north line, South 89 dcg_-ees 39 minutes 07 seconds E rst for a distance of 25.00 feet to the point of beginning. Containingl836B square feat more less. The above describad tract is subject to all easements and rights of ways now existing or of record. I I hereby state that the above descrintioo Was prepared by me and is truo and correct to the best of my profe3siona.1 knowledge, belief and opinion. WALLACE C. MUSCOTT COLORADO P.L.S. 17499 P.O. BOX 580 FORT COLLINS, CO 80522 APR-09-01 MON 08:40 AM FAX NO. P. 29 APR-04-2001 WED 10:20 " CITY ATTORNEYS OFFICE FAX NO, "702216327 P. 11 EXHIBIT ME" DESCRIPTION OF TH$ FAMILY BUSINESS, INC., A. COLORADO CORPORATION TLMPORARY CONSTRUCTION MEICNT A Temporary Construction Easement located in the Northwest quarter of section 18, Township 7 North, Range 68 West of the sixth Principal Meridian, City of Fort Collins, Larimer county, Colorado, the said easement is also located in Lot 1 of the Diane Joy M.L.D. IS-45-89, a Plat of record with the Clerk and Recorder of the said Larimer County, being more particularly described as follows; Considering the north line of the said northwest quarter of Section 18 as bearing North 09 degrees 21 minutes 53 seconds East between a found 311 brass cap monument at the northwest corner of the said Section 18 and EL found 3" brass cap monument, at the north quarter corner of the said section 18, based upon GPS observation; Commencing at the said northwest corner of Section 18; THENCE along the west line of tha said northwest quarter, South 00 degrees 12 minutes 29 seconds West for a distance of 175.00 feet to the south right of way of Fast Mulberry Street (Colorado Highway 14) az dascribad in Book 590 at Page 107 records of the said Clerk and Recorder; THENCE along the said south right of way, South 89 degrees 39 minutes 07 seconds East Ear a distanca of 858.17 foot to a line which is 55.00 feat (measured at right angles) west of and parallel with tho east line c- the said Lot 1, and to the TRUE POINT OF BEGINNING of this description; THENCE continuing along the said south right of way, South 89 degrees 39 minutes 07 seconds East for a distance of 30.00 feet to a line which is 25.00 feet (measured at right angles) west of and parallel with the east line of the said Lot 1; THENCE leaving the said south zight of way, along the said parallel line, South 00 degrees 18 minutes 53 seconds West for r distance of 332.22 feet to the south line of the said Lot 1; THENCE leaving the said parallel line, along the said south line of Lot 1, North 78 degrees 18 minutes 07 seconds West for a distance of 30.60 feat to the said parallel line being 55.00 feet west of the east line of Lot 1; TH-ENCE leaving the said south line, along the said parallel line, North 00 degzccs 10 minutes 53 seconds East for a distance of 326.20 feet to the point of beginning. Containing 9876 squaro feet more less. The above described tract is subject to all easenents and rights of ways now existing or of record. I hereby state that the above description was prepared by me and is true and correct to the best_ of my professional knowledge, belief and opinion. WNT,LACt C. MUSCOTT COLORADO P.L.S. 17497 P.O. *Dog 580 FORT COLLXNS, CO 80522 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. 12. 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. 13. This Agreement shall run with the Property and shall be binding upon and inure to the benefit ofthe parties hereto, their respective personal representatives, 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. 14. 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. In such event, the succeeding property owner shall be bound by the terms of this Agreement. 15. All work performed under this Agreement shall be performed subject to the requirements of the Code of the City of Fort Collins and in compliance therewith. Specifically, but without limitation, all such work shall comply with the noise regulations and the dirt, debris and construction waste regulations as established in Chapter 20 of the Code of the City. 16. 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. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. Page 4 of 5 ATTEST: �0-& City Clerk APPROVED AS TO 70NTENT: /Wv sr�_1'Z - City Engineer APPRO AS TO FORM: Deputy City Attorney THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: Q�E— 4 - u� City Mdnager 1-2 DEVELOPER: Ft. Collins Partners I, LLC, a Colorado limited liability company By: Goldberg Property Associates, Inc. Colorado Qorporation, its sole member Goldberg, Vice President Page 5 of 5 ADDENDUM TO DEVELOPMENT ACTREEMENT BETWUNI CITY OF FORT COLLINS, COLORADO AND FT. COLiANS PARTNERS I, LLC DATED .iUNE 22,200 This Addendum is made and entered into this C� day of April, 2001, by and among the City of Fort Collins, Colorado, a municipal corporation (the "City"), Ft. Collins Partners 1, LLC, a Colorado limited liability company (the "Developer"), and Wal-Mart Real Estate Business Trust, a Delaware business trust (tile "Owner"). WITNESSBTII: WHEREAS, on June 22, 2000, the City and the Developer entered into a development agreement (the "Development Agreement") in connection with the development of the following described property: Mulberry and Lemay Crossings, Filing 1, Lot 1, located in the Southwest'/4 of Section 7, Township 7 North, Range 68 West of the GI P.M., City of Fort Collins, County of Larinter, Slate of Colorado (the "Property"); and WHEREAS, subsequent to the execution of the DevelopmentAgrecment, the Devcloper sold the property to the Owner, but the Developer will continue to perform all development obligations under the Development Agreement; and W11FREAS, at the time the Development Agreement was executed, the parties thereto envisioned that the City would obtain final approval to construct a roundabout at the intersection of Mulberry Street and Lcmay Avenue (the 'Roundabout") and that, in such event, the provisions of Exhibit D to the Development Agreement would become effective and supersede inconsistent provisions of the Development Agreement; and WHEREAS, the City has now determined that it is not feasible to construct the Roundabout; and WHEREAS, it is in the best interests of all of the parties that improvements to the intersection of Mulberry Street and Lcmay Avenue (the"Intersection") be completed as concurrently as possible with the opening of the Wal-Mart Supercenler expected to occur on or before September 1, 2001; and W IiFRGAS, pursuant to the Development Agreement, the Devcloper has paid to the City the SLIM of Nine Hundred Eighty -lour Thousand Five Hundred Sixty -Five and 261100 Dollars ($984,565,26), representing the amount owed by the Developer under the Development Agreement for its share of the Roundabout costs, which Dcvcloptncnt Agreement to be approximately improvements to the Intersection; and amount was considered by the parties to the equal to the cost of constructing conventional WHF,RFAS, the Development Agreement required that this money be held in an interest bearing escrow account of the City; and WHEREAS, the current costs to construct conventional improvements to the Intersection are substantially higher than the estimated costs of such imptovcmcnts at the time the Development Agreement was executed; and WI IER1 AS, the parties hereto desire to set forth their respective rights and obligations in connection with the installation of improvements to the intersection. 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: 1. Constrvction of lntersection Tmprovemcnts. "fhe Developer shall be responsible for completing the construction of certain improvements which arc described on Exhibit "A", attached hereto and incorporated herein by reference, and which shall be referred to hereinafter as the "intersection Improvements". The estimated cost of the intersection Improvements is a minimum of Two Million Light Hundred Seventy -One Thousand Five hundred Dollars ($2,871,500), hereinafter referred to as the " Ls6mated Project Cost". 2. Pavment of the Actual Costs of the intersection Improvements 2.1 Dry �cr P.tiymcnts. The Developer shall be responsible for the payment of all actual costs of the Intersection Improvements :und shall be entitled to those payments set forth in Subsection 2.2 of this Addendum. 2,2 City Payments, The City shall make the following reimbursements and payments to the Developer: (a) On or before Apri19, 2001, the City shall present for consideration by the City Council an emergency ordinance authorizing the following payments to the Developer, and, if authorized by the City Council, shall pay such amounts to the Developer no later than April 30, 2001: (i) The sum of Nine Hundred Eighty -Pour 'Ihousand Five Hundred Sixty -Five and 26/100 Dollars ($984,565.26) plus all interest accrued thereon from the date of the Developer's deposit of the same with the City through April 8, 2001; and (ii) The sum of Two Hundred Seventy -Eight Thousand One TTundred Seventy -Four Dollars ($278,174) to partially defray the cost of the Intersection Improvements. (b) Pursuant to Section 24-112 of the City Code, at such time as the Intersection Improvements have been completed by the Developer and accepted by the City, the City shall reimburse the Developer the lesser of: (a) the sum of One Million One IIundred Forty -Light Thousand Six Hundred Dollars ($1,148,600), which represents the amount of street oversizing reimbursement the City Fnginccr has determined is reasonably due the Developer based on the Estimated Project Cost: or (b) a sum equal to forty percent (40%) of the total actual cost of the intersection Improvements. This oversizing reimbursement shall be in addition to the payments referenced in Subsection 2 2 of this Addendum. The Developer shall not be entitled to any street oversizing reimbursement for any costs other than those specified herein. "rho Developer shall provide the City with the following documentation of the total actual cost of the Intersection Improvements: (i) A letter from the Developerrequcsting reimbursement from the street oversizing fund and stating the amount and to whom the reimbursement should be made; (i i) Atabulationofquantities, unitcostsand associatedcalcuIat! onsfrom the Developer's engineer indicating the total cost of the project; (iii) An invoice from the Developer's engineer for any design and project management fees assessed on the project: (iv) The application for final payment from the Developer's contractor with all supporting documentation as approved by the Developers engineer; (v) A letter from the Developer's prime contractor, or all contractors it' the Developer acts as the prime, certifying that final payment has been received by the contractor or contractors; (vi) A letter from the Developer's engineer certifying that final payment of engineering fees has been made; and (vii) To the extent the documentation described in W through (vi) above is not suflieient to adequately determine the actual total cost of the Intersection improvements, the City Engineer may require additional documentation as may reasonably be necessary, provided that any request for such additional documentation be made no later than fifteen (15) days after receipt of the above -listed items. Payment shall be made to the Developer no later than thirty (30) days after receipt of said documentation. (c) The parties acknowledge that COOT has recently changed its requirements for signal poles, mast arms and foundations ("Signal System") on state highways, resulting in a substantial increase over the present cost of'1'wcnty-Scvelt Thousand One Hundred Seventy -Eight Dollars ($27,178) for a Signal System. Within thirty (30) days after the Signal System has been delivered to the City, in accordance with the provisions of Section 5 below, together with proof of paymcnt thereof by the Developer, the City shall reimburse the Developer for the dif1brence between the actual, cost of the Signal System and the sutra of Twenty -Seven Thousand One Hundred Seventy -Eight Dollars ($27,178), provided that such reimbursement shall not exceed the sum of Ninety -Seven Thousand Six hundred Forty Dollars ($97,640) unless the Colorado Department of Transportation ("CDOT") reimburses the City for an amount greater than such sum. The payments referenced in this Subsection 2.2 are collectively referred to herein as the "City Payments". 3, Certificate of Occuoancv. The City agrees that the completion of the Intersection Improvements shall not boa condition of the release of either a permanent or temporary certificate of occupancy for the Wal-'tart Superccnler presently being constructed on the Property. All other applicable requirements of the Development Agreement as modified by this Addcndum fir the certilicate of occupancy for such building shall continue to apply. 4. Relcascoff-inhility. The parties acknowledge that the City Payments and the release nF the certificate of occupancy in accordance with Sections 2 and 3, respectively, of this Addendum are given in full satisfaction of any claim the Developer or the Owner may have against the City in connection with the City's decision not to construct the Roundabout and/or the construction, completion and payment of the Intersection improvements. At such time as the City has delivered ilic City Payments to the Developer, and provided that the City is in compliance with Section 3 of this Addendum, the Developer and the Owner hereby agree that the City shall thereupon be released from any and all liability to each of them, jointly or individually, for any and all claims, demands, liabilities and/or causes of actions of any kind whatsoever, including, without limitation, claims of adverse effects on business operations or lost profits, arising from or in any way related to the City's previous plans to construct the Roundabout, its decision not to pursue the same, and/or the