AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR DOVE VALLEY BUSINESS PARK

Transcription

1 AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR DOVE VALLEY BUSINESS PARK

2 TABLE OF CONTENTS Page RECITALS... 1 AGREEMENT... 3 Article 1 - DEFINITIONS AND GENERAL PROVISIONS Definitions Covenants Term Inclusion of Additional Property Cooperation in Defending Legal Challenges... 8 Article 2 - VESTED RIGHTS Vesting of Property Rights Property Rights Vested No Obligation to Develop Sites Conflict Applicability of Other Regulations No Implied Restrictions; No Vested Rights Obtained Through Fraud or Misrepresentation Reserved Board Police Powers No County Responsibility for Outside Causes Waiver of Existing Claims Processing ASP and Plat Applications Required Updates to Traffic and Drainage Projections; Applicable Site Development Regulations Other Restrictions on Approval of ASP Applications Article 3 - SUBDIVISION, FEES, BOARD SERVICES Subdivision Fees Board Services Article 4 - DEFAULT; REMEDIES; TERMINATION Default by Board Default by Developer Notices of Default i-

3 TABLE OF CONTENTS (continued) Page 4.4 Limitation on Actions Remedies Article 5 - MISCELLANEOUS Amendment of this Agreement Authorization of Project MDP Amendments Recordation of Agreement Applicable Law Attorneys Fees No Joint Venture or Partnership Waiver Board Findings Severability Further Assurances Authorization Notices Assignment; Binding Effect Venue and Choice of Law; Construction Counterparts EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY... A-1 EXHIBIT B MASTER DEVELOPMENT PLAN PROCESS... B-1 EXHIBIT C ADMINISTRATIVE SITE PLAN PROCESS... C-1 EXHIBIT D ADMINISTRATIVE REPLAT PROCESS... D-1 EXHIBIT E ADMINISTRATIVE AMENDMENT PROCESS... E-1 EXHIBIT F TECHNICAL AMENDMENT PROCESS... F-1 EXHIBIT G USE BY SPECIAL REVIEW PROCESS... G-1 EXHIBIT H DESIGN STANDARDS... H-1 EXHIBIT I BUILDING PERMIT PROCESSING SCHEDULE... I-1 EXHIBIT J DEFINITIONS... J ii-

4 AMENDED AND RESTATED DEVELOPMENT AGREEMENT THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT (as defined in Section 1.1, this Agreement ) is made and entered into as of the day of, 2014 (as defined in Section 1.1, the Effective Date ), by and between Dove Valley Business Park Associates, Ltd., a Colorado limited partnership (as defined in Section 1.1, Developer ) and THE BOARD OF COUNTY COMMISSIONERS OF ARAPAHOE COUNTY, COLORADO, a body corporate and politic (as defined in Section 1.1, the Board ), acting on behalf of the County of Arapahoe, State of Colorado (as defined in Section 1.1, the County ). RECITALS This Agreement is made with respect to the following facts: A. Unless a different meaning is clearly indicated, capitalized terms used in this Agreement have the meanings set forth in Section 1.1. B. On January 7, 2003, Developer and Board entered into the Original Development Agreement with respect to the Original Property. The Original Development Agreement had a 15-year term, and the Original Property was comprised of the Property and the Conveyed Parcels. C. Developer and Board desire that the term of the Original Development Agreement shall be extended with respect to the Property by an additional 15 years, such Term as so extended commencing on the date of the Original Development Agreement and continuing through and including May, 2029 (such date being the fifteenth (15th) anniversary of the date on which this Agreement is recorded in the real property records of the County Clerk and Recorder. D. With respect to the Conveyed Parcels, Developer and Board acknowledge that the Conveyed Parcels are (and shall remain) subject to the Original Development Agreement, that this Agreement affects only the Property, that this Agreement does not affect the Conveyed Parcels and shall not be construed to modify or amend the Original Development Agreement in any manner as applied to the Conveyed Parcels, and that as of the Effective Date the Original Agreement remains in force and effect in accordance with its terms as applied to the Conveyed Parcels. E. With respect to the Property, Developer and Board intend that Articles 1 through 5 and Exhibits A through E of the Original Development Agreement shall be amended, restated and replaced in their entirety by Articles 1 through 5 and Exhibits A through J of this Agreement, and further intend this Agreement to amend and restate in its entirety the Original Development Agreement by consolidating the Original Development Agreement and the amendments thereto into a single document for ease of reference as applied to the Property. F. Developer owns the Property and desires to develop the Project as a multi-use business park known as Dove Valley Business Park, as more specifically set forth in this Agreement and the Development Plan. Developer has received Board approval of the Project,

5 and expects to receive approvals of site plans in the future, based upon the Supporting Documentation, upon which the Board relied and will rely. G. Development of the Project will require Developer to provide large investments in infrastructure improvements and public facilities (which may include offsite improvements), including, without limitation, roads, drainage facilities, water lines, parks and recreation facilities which will serve the needs of the Project and the Board. Completion of these improvements and facilities will require substantial investments by Developer. Such investments can be supported only if there are assurances that the development of the Project will be allowed to proceed to ultimate completion as provided in this Agreement. H. The County receives certain tax revenues from the Property and the Project. Completion of the Project in accordance with the terms of this Agreement and the Development Plan may contribute substantially to the economic growth of the County and, consequently, may increase tax revenues to the County. I. The legislature of the State of Colorado adopted the Vested Property Rights Statute to provide for the establishment of vested property rights in order to ensure reasonable certainty, stability and fairness in the land use planning process and in order to stimulate economic growth, secure the reasonable investment backed expectations of landowners, and foster cooperation between the public and private sectors in the area of land use planning. The Vested Property Rights Statute authorizes the Board to enter into development agreements with landowners providing for vesting of property development rights. J. Consistent with the Vested Property Rights Statute, the Vested Property Rights Regulations authorize the Board to enter into development agreements with landowners and other qualified Applicants providing for the vesting of property development rights consistent with the Vested Property Rights Statute. K. Development of the Property in accordance with this Agreement is expected to provide for orderly growth in accordance with the policies and goals set forth in the County s Comprehensive Plan, ensure reasonable certainty, stability and fairness in the land use planning process, stimulate economic growth, secure the reasonable investment-backed expectations of Developer, foster cooperation between the public and private sectors in the area of land use planning, and otherwise achieve the goals and purposes for which the Vested Property Rights Statute and the Vested Property Rights Regulations were enacted. In exchange for these benefits and the other benefits to the County contemplated by this Agreement, together with the public benefits served by the orderly development of the Property, Developer desires to receive the assurance that it may proceed with development of the Property pursuant to the terms and conditions contained in this Agreement. Additionally, Developer desires to receive assurance from the Board that development of the Property and the Project will be subject to the expedited review and approval processes set forth in the County s Master Development Plan regulations and in this Agreement. L. Developer and Board have agreed to set forth in writing their agreements concerning the foregoing

6 AGREEMENT NOW, THEREFORE, in consideration of the terms, conditions and covenants set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Developer and Board agree as follows: ARTICLE 1 - DEFINITIONS AND GENERAL PROVISIONS 1.1 Definitions. Initially capitalized terms not defined in this Section 1.1 shall, for purposes of this Agreement and the other Exhibits to this Agreement, have the meanings attributed to them in Exhibit J. For purposes of this Agreement, the following terms and references shall have the meanings indicated: (a) Administrative Site Plan (ASP). As defined in Exhibit J, the Administrative Site Plan ( ASP ) is the final step in the Master Development Plan process. Each ASP approved for the Project pursuant to the procedures set forth in Exhibit C shall be a Project ASP and shall be incorporated within the Project MDP. (b) Agreement. This Amended and Restated Development Agreement for Dove Valley Business Park. (c) Applicant. A Lot Owner, or authorized agent of a Lot Owner, entitled to submit an application for an approval required for development of a Site in accordance with the requirements and procedures set forth in this Agreement and/or the Code, whichever is applicable under the terms of this Agreement. (d) Board. Together with its successors and assigns (whether by operation of law or otherwise), the Board of County Commissioners of Arapahoe County, Colorado, a body corporate and politic, but not including the County Assessor, County Treasurer, County Sheriff, County Coroner, County Public Airport Authority, County Clerk or County Water and Wastewater Authority. (e) Building Code. The 2009 edition of the International Building Code (IBC) as adopted by the Board, and any additional amendments or alternatives thereto as the Board may adopt from time to time. (f) Building Permit. Any permit required to be issued by the Board s building official pursuant to the Building Code. (g) Code. The Arapahoe County Land Development Code, as in effect on the Effective Date (specifically, excluding any revisions after Resolution , December 17, 2013) unless otherwise expressly stated in this Agreement, including all documents incorporated therein by reference including but not limited to the following: the Arapahoe County Infrastructure Design and Construction Standards; the Arapahoe County Stormwater Management Manual; the Arapahoe County Grading, Erosion and Sediment Control Manual; the Arapahoe County Guidelines for Traffic Impact Studies (for avoidance of doubt, such land development code and regulations only, and not any land development code or land development regulations of a successor governmental entity to the Board or the County)

7 (h) Conveyed Parcels. Those parcels which were owned by Developer and comprised a portion of the Original Property as of the effective date of the Original Development Agreement, but which Developer subsequently conveyed to third parties and are not owned by Developer as of the Effective Date, are not part of the Property, remain subject to the terms and conditions of the Original Development Agreement, and are neither subject to nor affected by this Agreement. (i) County. Together with any successor governmental entity (whether by operation of law or otherwise), the County of Arapahoe, State of Colorado. (j) Design Standards. As set forth in Exhibit H, the provisions of Chapter 15 of the Code that are applicable to the Project pursuant to Section 2.11(d). (k) Developer. Dove Valley Business Park Associates, Ltd., a Colorado limited partnership, together with its successors and assigns. (l) Development Application. An application to the Board for an approval pursuant to Board subdivision or zoning regulations for development of a Site including, without limitation, applications for (i) an MDP, (ii) an ASP, (iii) a subdivision plat; (iv) a Use By Special Review; and (v) any amendment (formal or administrative) to any of the foregoing. (m) Development Plan. The following documents (as the same have been or may be amended from time to time) are components of the Development Plan for the Project, and collectively constitute the Development Plan: i. Project MDP. ii. iii. iv. Master Drainage Plan. Master Traffic Study. The following plat documents: (a) (b) (c) (d) (e) (f) Dove Valley Business Park Subdivision Filing No. 24 Final Plat Dove Valley V Final Plat Dove Valley V Filing No. 4 Final Plat Dove Valley V Filing No. 5 Final Plat Dove Valley V Filing No. 7 Final Plat Dove Valley V Filing No. 9 Final Plat v. Master Subdivision Improvement Agreement. vi. Following the Effective Date, any Project ASP approved for a Site. vii. Any other document so designated by the parties pursuant to an amendment to this Agreement

8 viii. To the extent provided by this Agreement, any amendment to any of the documents listed in clauses i through vii above, whether or not such amendment is approved by the Board as an administrative amendment. Agreement. (n) Effective Date. Has the meaning stated in the initial paragraph of this (o) Exhibits. The following Exhibits to this Agreement, all of which are incorporated by reference into and made a part of this Agreement. EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT G EXHIBIT H EXHIBIT I EXHIBIT J Legal Description of Property Master Development Plan Process Administrative Site Plan Process Administrative Replat Process Administrative Amendment Process Technical Amendment Process Use by Special Review Process Design Standards Building Permit Processing Schedule Definitions (Section of the Code) (p) Lot. A parcel of land within the Project established by a plat and intended as a unit for the transfer of ownership or development pursuant to this Agreement and the Development Plan. (q) Lot Owner. The owner of record of any Lot within the Property. (r) Master Drainage Plan. That certain Master Development Plan Drainage report for Dove Valley Master Development Plan prepared by WRC Engineering, Inc., WRC File: , dated September 2000 and revised February 10, 2003, which report was approved by the Board in connection with its approval of the Project MDP, as graphically depicted on sheet 8 of the Project MDP, together with approved amendments thereto. (s) Master Development Plan ( MDP ). As defined in Exhibit J, the Master Development Plan ( MDP ) is an alternative Planned Unit Development process available for all or any part of an Office Park Development and other eligible developments. The Board of County Commissioners may, by resolution, adopt standards which allow this process to be used in other development scenarios. The process is intended for developments that are able to contain within the development the impacts of final site design and architecture, due to the size of the development, perimeter screening and landscaping features, topography, or well-defined architectural and site design standards. The MDP sets forth one or more proposed development scenarios for the project. It establishes development parameters that are more refined and more precise than those set forth in preliminary development plans, thereby enabling an expedited staff-level review of final site plans as established in the MDP. (t) Master Subdivision Improvement Agreement. That certain Master Subdivision Improvement Agreement Containing Restriction on Development Relating to the Development of Dove Valley Business Park Master Development Plan, Arapahoe County Case

9 # Z00-021, dated effective the 18 th day of February, 2004, and recorded at Reception No. B in the real property records of the County Clerk and Recorder, together with approved amendments thereto. (u) Master Traffic Study. That certain Master Traffic Impact Analysis, Dove Valley Business Park, Arapahoe County, Colorado, prepared by LSC Transportation, Inc. (LSC #000380), dated October 22, 2002, which study was approved by the Board in connection with its approval of the Project MDP, as graphically depicted on sheets 13 and 15 of the Project MDP, together with approved amendments thereto (v) Office Park Development. As defined in Exhibit J, an office park development is a zone category consisting of an integrated commercial development existing or planned for professional office uses and uses that are accessory or appurtenant to Professional Office uses, in a campus setting with mostly internal access points and high-quality architectural and landscaping standards. All buildings shall be integrated into the overall development scheme through architecture, site layout and other development standards. (w) Original Development Agreement. That certain Development Agreement for Dove Valley Business Park made and entered into as of January 7, 2003, by and between Developer and the Board, which Original Development Agreement affected the Original Property. (x) Original Property. The real property described in Exhibit A of the Original Development Agreement and which was comprised of the Property and the Conveyed Parcels. (y) Plat. Collectively, each of the subdivision approvals listed in Section 1.1(m)iv, together with approved amendments thereto. (z) Project. The MDP-PUD Business Park Development project to be developed on the Property as generally described in Recital F and more particularly described in the Development Plan. (aa) Project ASP. Each ASP approved by the Board for any Site, together with approved amendments thereto, that is incorporated into and made a part of the Project MDP and the Development Plan. (bb) Project MDP. The 16 page plan document approved by the Board in Case No. Z00-021, together with approved amendments thereto (specifically including, but not limited to, the 3 rd amendment approved in case No. Z13-002). (cc) Project USR. Each Use By Special Review (USR) approved by the Board for any Site, together with approved amendments thereto, that is incorporated into and made a part of the Project MDP and the Development Plan. (dd) Property. The real property described in Exhibit A

10 (ee) Public Improvements. Any and all infrastructure as required by the Master Subdivision Improvements Agreement, whether publicly or privately owned, including without limitation roads, drainage systems, utilities, and traffic control devices. (ff) Site. A Lot or Lots within the Project, the development of which is governed by the Project MDP and/or a Project ASP and/or a Project USR. (gg) Supporting Documentation. Those plans, studies, analyses and certifications provided and to be provided by others, including engineers and consultants hired by Developer, in connection with development of the Project. (hh) Term. As defined in Section 1.3. (ii) Use By Special Review (USR). As defined in Exhibit J, a use which must have approval of the Board before being allowed within the Project. Each USR approved for the Project pursuant to the procedures set forth in Exhibit G shall be a Project USR and shall be incorporated within the Project MDP. the Code. (jj) Vested Property Rights Regulations. Sections and of (kk) Vested Property Rights Statute. Sections , et seq., Colorado Revised Statues in effect as of the Effective Date. 1.2 Covenants. The provisions of this Agreement shall constitute covenants or servitudes which shall touch, attach to and run with the land comprising the Property, and the burdens and benefits of this Agreement shall bind and inure to the benefit of Developer, the Board, the County and (except as otherwise provided in Section 5.1) their respective assigns and successors in interest to the full extent permitted by law. 1.3 Term. In recognition of the size of the development contemplated under this Agreement and the Development Plan, the substantial investment and time required to complete the development of the Project, the potential for phased development of the Project, and the possible impact of economic cycles and varying market conditions during the course of development, Developer and the Board agree that the term of this Agreement and the vested property rights established under this Agreement (the Term ) commenced on the date of the Original Development Agreement (January 7, 2003) and shall continue through and including May, 2029, unless extended by mutual agreement of Developer and the Board pursuant to the amendment procedure set forth in Section 5.1, or unless terminated prior to the expiration of the Term, by agreement or by default of a party. After the expiration of the Term, this Agreement shall be deemed terminated and of no further force or effect; provided, however, that such termination shall have no effect on (a) any common-law vested rights obtained prior to such termination, or (b) any right, vested or otherwise, arising from permits, approvals or other entitlements for the Property or the Project which were granted or approved by the Board prior to, concurrently with, or subsequent to the approval of this Agreement and the Development Plan

11 1.4 Inclusion of Additional Property. The parties may subject additional property to the Development Plan and to this Agreement. In order to subject additional property to the Development Plan and this Agreement, Developer must have requested and the Board must have approved rezoning of the additional property to MDP-PUD, under the Code in effect at the time the rezoning application is submitted. In a separate process, which may occur after or concurrently with the rezoning, the Board, upon Developer s request, must have considered and approved an amendment to the Project MDP and the Master Subdivision Improvements Agreement in order to include such additional property. Such amendment, if approved, shall not constitute a self executing amendment to this Agreement and, concurrently with taking final action on such amendment, the Board shall be entitled to determine whether it is appropriate to approve a conforming amendment to this Agreement pursuant to Section 5.1, to incorporate the Project MDP amendment and such additional property. Any such actions with respect to any additional property shall have effect only with respect to such additional property and, without Developer s prior written consent, shall not have or be construed as having the effect of impairing or diminishing any vested property rights or other rights of Developer that exist with respect to the Property pursuant to this Agreement and the Development Plan. 1.5 Cooperation in Defending Legal Challenges. If any legal or equitable action or other proceeding is commenced by a third party challenging the validity of any provision of this Agreement or the Development Plan, Developer and the Board agree to cooperate in defending such action or proceeding and to bear their own expenses in connection therewith. Unless the Board and Developer otherwise agree, each party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. ARTICLE 2 - VESTED RIGHTS 2.1 Vesting of Property Rights. Developer and the Board agree that certain rights set forth in this Agreement shall be vested property rights as and to the extent provided in this Agreement. The Board shall not enact any moratorium which affects development within the Project MDP, shall act in a manner consistent with the rights set forth below, and shall refrain from taking any action which adversely affects the rights set forth below. 2.2 Property Rights Vested. Notwithstanding the effect of Sections 2.5 and 2.7 and/or any conflicting provision of the Code or other County regulations of general applicability adopted or enacted after the Effective Date, the rights identified in this Section 2.2 shall constitute the vested property rights under this Agreement: (a) The right to develop, plan and engage in land uses within the Property and the Project to the extent set forth in, and in accordance with the densities, physical development standards, existing and contemplated locations of curb cuts and points of access to public rights-of-way, existing and contemplated stormwater drainage and detention pond locations and designs, and other physical parameters set forth, depicted and/or contemplated in or by this Agreement and/or the Development Plan (including but not limited to the provisions of Section 2.11 regarding access points and stormwater drainage)

12 (b) The right to develop Sites within the Project in the order, at the rate and at the time as market conditions dictate, subject to the terms and conditions of this Agreement and the Development Plan. (c) The right to have the Board process Development Applications pursuant to the procedures set forth in Exhibits B, C, D, E, F, G and H. (d) The right to have the Board process Building Permits pursuant to the process outlined in Exhibit I. Approval of this Agreement constitutes approval of a site specific development plan that creates vested property rights for a period of more than three years pursuant to the Vested Property Rights Statute and the Vested Property Rights Regulations. 2.3 No Obligation to Develop Sites. This Agreement shall not be construed to create an implied obligation upon Developer to develop Sites within the Project. Developer shall not have any liability to the County or any other party, arising out of this Agreement, for its failure to develop all or any of the Sites. This paragraph shall not be construed as relieving Developer of any express obligation imposed by any component of the Development Plan, this Agreement, or the Code. The parties intend that each component of the Development Plan, and this Agreement, shall be fully enforceable in accordance with the terms of each. 2.4 Conflict. The terms, conditions and criteria set forth in the Development Plan and this Agreement shall prevail and govern the development of the Project and the Property. Where the Development Plan does not address a specific subject the applicable provisions of the Code shall control the development of the Project. 2.5 Applicability of Other Regulations. Except to the extent precluded by this Agreement or the Development Plan, the establishment of vested property rights under this Agreement shall not restrict the application on a reasonably uniform and non-discriminatory basis of County regulations of general applicability (including, but not limited to, building, fire, plumbing, electrical and mechanical codes, the Code, and other County rules and regulations) or the application of state or federal regulations, as all of such regulations exist on the Effective Date or may be enacted or amended after the Effective Date. Developer does not waive any rights it has to oppose the enactment or amendment of any such regulations, or to challenge through proper legal means the validity of regulations enacted after the Effective Date. 2.6 No Implied Restrictions; No Vested Rights Obtained Through Fraud or Misrepresentation. This Agreement shall not be construed as a limitation on the exercise of any power or authority of the Board except to the extent expressly stated in this Agreement, and then only to the extent so stated. The Board shall not be in default for failing to honor any provision of the Development Plan or this Agreement to the extent such provision is derived from or based upon error, misrepresentation or fraud contained within the Supporting Documentation or in this Agreement. 2.7 Reserved Board Police Powers. Except as set forth in Section 2.2 (and expressly excluding any such regulations, standards or permit requirements that would impair or negate existing or contemplated locations of curb cuts, points of access to public rights-of-way or

13 stormwater drainage and detention pond locations and designs set forth and or contemplated in or by this Agreement and/or the Development Plan, including but not limited to the provisions of Section 2.11), the Board retains full power and authority to enact and enforce public health, safety and welfare regulations in connection with development of the Project, and the exercise of such power and authority shall not constitute a default under this Agreement. By way of example and not limitation, the parties intend that this Agreement shall not affect the Board s power to adopt, enact and enforce against the Property new or revised regulations of general applicability relating to the following matters: (a) Infrastructure and improvement exactions and land dedications calculated or levied at the time of development of a Site provided that such exactions and land dedications are consistent with the Development Plan and Master Subdivision Improvements Agreement for the Project. (b) Public health, safety and welfare regulations and standards affecting the Project, including, without limitation, line of sight/sight triangle standards, drainage, water quality and flood control regulations, lighting standards, setbacks and separation requirements related to winter shadowing, and other regulations and standards of a similar nature. (c) Public Improvement construction standards and materials. (d) Content and certification requirements applicable to drainage and traffic analyses required in connection with Development Application submittals. The Board also reserves the right to regulate development to account for natural or man-made hazards on or in the immediate vicinity of the Property, which hazards could not reasonably have been discovered at the time of approval of the Development Plan, and which hazards, if uncorrected, pose a serious threat to the public health, safety and welfare. 2.8 No County Responsibility for Outside Causes. The County (excluding any successor governmental entity) shall not be responsible for and there shall be no remedy against the County if development within the Project is prevented, hindered, delayed or otherwise interfered with for reasons beyond the control of the Board (excluding the governing body of any successor governmental entity), including land use controls, other regulations, or changes in law imposed on the Project by governmental bodies or agencies other than the Board having independent jurisdiction and authority over the Project. In the event of annexation of all or any portion of the Project by a municipality, this provision shall not apply to relieve the municipality or its governing body for liability for land use controls or other regulations that are imposed on the Project by the municipality. Against such municipality and its governing body, Developer shall have all of the remedies provided by law and this Agreement in the event of the imposition of any such land use control or regulation by any such municipality. 2.9 Waiver of Existing Claims. Developer, for itself and its successors and assigns, hereby waives any right it has to challenge or contest the validity, enforceability or application of the terms of the Code, to the extent set forth in the Development Plan as of the Effective Date, including without limitation, the exaction and dedication standards and requirements described in

14 Article III of the Subdivision Regulations portion of the Code as they are used to determine exactions and dedications in the Development Plan Processing ASP and Plat Applications. Developer acknowledges that no ASP or Plat application shall be approved by County unless and until Developer has provided County with assurance of completion of the Public Improvements as required by the Master Subdivision Improvements Agreement approved for the Project. County agrees to prepare and process any required update or amendment to the Master Subdivision Improvements Agreement in a timely manner so as to not delay any ASP or other subsequent approval required for construction contemplated by such ASP Required Updates to Traffic and Drainage Projections; Applicable Site Development Regulations. As provided in the Code, all ASP applications must comply with the assumptions and limitations of the Master Drainage Plan and the Master Traffic Study, and the periodic updates to such documents. In the case of the Project MDP, since certain conceptual access point locations were designated for certain Sites (and Developer is entitled to rely on the vested property right to utilize such conceptual locations) and precise access point locations were designated for certain Sites (and Developer is entitled to rely on the vested property right to utilize such designated locations), each ASP application must also include a statement that the Site access point(s) proposed to be utilized for such Site comply(ies) with the assumptions and limitations of the Project MDP and the Master Traffic Study. Except to the extent such requirements are suspended in writing by the County s Engineering Division, the updates shall contain the following information. Failure to include the required documentation with content conforming to this requirement may result in the rejection of the application. (a) Master Traffic Study Updates and ASP Traffic Submittal Requirements. This language shall replace the language set forth in Section of the Code (notwithstanding that Section is incorporated into Exhibit C). With each ASP application, the Applicant shall submit an update to the Master Traffic Study documenting that the traffic conditions within the MDP have developed in a pattern consistent with the Master Traffic Study, and showing that the traffic impacts of the ASP will conform to the assumptions and limitations of the Master Traffic Study. The update shall rely upon data collected within four (4) months of the date of the submittal. Each update must provide an analysis prepared and sealed by a Colorado professional engineer which states that traffic conditions, volumes and movements and intersection levels of service existing as of the date of the update (i) reconfirm whether the proposed ultimate Project MDP traffic improvements remain valid given the current traffic conditions, and (ii) confirm whether warrants for traffic volume-dependent improvements (such as traffic signals) have been met with current traffic conditions. The update shall include data and analysis conforming to the Arapahoe County Guidelines for Traffic Impact Studies then in effect. The Applicant may review the necessary content of the traffic update with the County engineer prior to initiating the traffic analysis to determine if any of the Code requirements or any of the following specific requirements for a particular update may be waived. Unless items are specifically waived in writing by the County Engineer, the items required in the analysis include, but are not limited to: (i) roadway and access level of service analysis; (ii) new 24-hour bi-directional traffic counts for all roadways in and adjacent to the MDP; (iii) Progression Analyses; (iv) graphical and tabular comparative analyses of the traffic generation within the Project MDP that was analyzed (and predicted) by the Master Traffic Study and the current

15 traffic generation within the Project MDP; (v) graphical and tabular comparative analyses of the projected increase in background traffic analyzed by the Master Traffic Study and the actual increase in background traffic; and (vi) formal warrant studies (as set forth in the code or the latest edition of the Manual of Uniform Traffic Control Devices) for all traffic control devices, including but not limited to signalization, acceleration and deceleration lanes. If the Code requirements relating to traffic studies are amended after the approval of the Master Traffic Study, the updates must analyze the infrastructure requirements and restrictions required by the Code and propose a means acceptable to the Board for complying with such new requirements. Notwithstanding the foregoing, such amended Code requirements shall not be applied to the Project in a manner which negates or impairs Developer s right to any access point, street or intersection (whether characterized as fixed, existing, committed, non-committed, potential, proposed, conceptual or similar designation) depicted in or contemplated by the Project MDP (and specifically sheets 13 and 15 of the 3 rd amendment approved pursuant to Case No. Z13-002, as the same may be amended from time to time) or any other component of the Development Agreement, it being the parties intent and mutual understanding that such streets and access point locations are necessary and desirable in order to provide reasonable access to the Sites adjacent to and/or to be accessed from such streets and access points in accordance with the requirements set forth in the Project MDP. Accordingly, final approval of the streets and the number and location of the access points depicted in the Project MDP (specifically sheets 13 and 15 of the 3 rd amendment approved pursuant to Case No. Z13-002, as the same may be amended from time to time) shall not be withheld or made subject to conditions or permitting requirements that are inconsistent with the intent of the Project MDP or the Master Traffic Study or which negate or impair Developer s rights with respect thereto. (b) Drainage Plan ASP Submittal Requirement. With each ASP application, the Applicant must submit a drainage update, complying with the Board s content and certification requirements for Phase III drainage reports, that demonstrates (i) that the site plan drainage and infrastructure will comply with the Master Drainage Plan, (ii) that all proposed on-site and off-site drainage conveyance facilities required to serve the development described in the application have been designed according to current Arapahoe County storm drainage criteria, (iii) that the existing regional detention pond volumes will not be decreased, or adversely affected due to the ASP proposed grading development or development activities, and (iv) that the existing conveyance facilities and capacities based on anticipated flows as depicted in the Master Drainage Plan will not be decreased, or adversely affected due to the ASP proposed grading, development or development activities. It is the parties intent and mutual understanding that the drainage plans and detention facilities (including regional facilities) depicted in or contemplated by the Master Drainage Plan and the Project MDP (and specifically sheet 8 of the 3 rd amendment approved pursuant to Case No. Z13-002, as the same may be amended from time to time) are necessary and desirable in order to provide technically appropriate stormwater drainage solutions in accordance with the requirements set forth in the Project MDP and the Master Drainage Plan. Accordingly, final approval of the stormwater drainage solution, the detention facilities, and the conveyance and discharge of stormwater into such facilities as depicted in and contemplated by the Master Drainage Plan and Project MDP (specifically sheet 8 of the 3 rd amendment approved pursuant to Case No. Z13-002, as the same may be amended from time to time) shall not be withheld or

16 made subject to conditions or permitting requirements that are inconsistent with the intent of the Project MDP or the Master Drainage Plan or which negate or impair Developer s rights with respect thereto. (c) Site and Related Infrastructure Design. All Site development and accompanying infrastructure within the Property shall be designed to, and shall comply with the provisions of, as in effect at the time the related Development Application is submitted: the Arapahoe County Infrastructure Design and Construction Standards; the Arapahoe County Stormwater Management Manual; the Arapahoe County Grading, Erosion and Sediment Control Manual; the Arapahoe County Guidelines for Traffic Impact Studies; and any other criteria or guidelines required pursuant to the Code. (d) Design Standards. Development of each Site is subject to: (i) the Design Standards attached as Exhibit H; (ii) the Dove Valley Business Park Architectural and Design Guidelines in effect on the Effective Date (dated as of June 10, 2002) established and administered by the Dove Valley Business Park Architectural Control Committee; and (iii) any standards set forth in the Project MDP, a Project ASP, or a Project USR. If two or more of the documents referenced in the foregoing clauses (i), (ii) or (iii) contain provisions or standards addressing the same subject, the more specific provision or standard shall control and govern over the less specific provision or standard unless the County Planning Division Manager determines in writing that the less specific provision or standard will produce a result of equal or greater quality than the more specific provision or standard, in which case the less specific provision or standard shall govern Other Restrictions on Approval of ASP Applications. A Site may have only one approved site plan in effect at any given time. The Board shall have the power to deny an ASP application which, if approved, would result in the violation of approved development parameters for an existing approved and constructed final development plan or ASP. Approval of an ASP application shall constitute rescission of any previously approved but unbuilt ASP or final development plan which includes property also included within the later approved application, unless otherwise stated in such approval. If development or use of the Site as contemplated by the ASP submittal requires the use of property, facilities or infrastructure owned or controlled by others (such as encroachments into easements, access across other Sites or offsite, or use of drainage outfalls or infrastructure), the submittal is not eligible for processing unless it includes evidence demonstrating that each owner of such property, facilities or infrastructure has granted permission, either in the form of the Board s standard easement or other document acceptable to the County Attorney, to use such property, facilities or infrastructure in the manner contemplated by the ASP or otherwise required by the Code. ARTICLE 3 - SUBDIVISION, FEES, BOARD SERVICES 3.1 Subdivision. The Developer or its authorized agent may subdivide all or any portion of the Property by way of the Administrative Replat process as described in Exhibit D. The Administrative Replat process may redistribute Lot areas, combine or eliminate Lots, or create additional Lots at the discretion of the subdividing party. All of the new Lots created by such Subdivision shall be subject to the terms and conditions of this Agreement

17 3.2 Fees. The fees imposed by the County for any Administrative Site Plan, Administrative Replat, or other action allowable under this Agreement shall be the standard fees due the County based on the Board approved fees schedule in affect at the time the Administrative Site Plan, Administrative Replat, or other action allowable under this Agreement is submitted unless the Board has approved an adjustment to those fees. 3.3 Board Services. The Board shall not be obligated to provide services other than those services the Board is required to provide to any party seeking to develop or subdivide property within the County. The Board may however, at the Board s sole discretion, provide whatever services it deems appropriate to the Developer or its authorized agent. ARTICLE 4 - DEFAULT; REMEDIES; TERMINATION 4.1 Default by Board. A breach or default by the Board under this Agreement shall be defined as the Board s failure to fulfill or perform any express material obligation of the Board stated in this Agreement. Board shall not be deemed in default of this Agreement due to actions of others that have or will have the effect of altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting Developer s vested property rights granted by this Agreement. 4.2 Default by Developer. A breach or default by Developer shall be defined as Developer s failure to fulfill or perform any express material obligation of Developer stated in this Agreement. 4.3 Notices of Default. In the event of a default by either party under this Agreement, the non-defaulting party shall deliver written notice to the defaulting party of the default, at the address specified in Section 5.12, and the defaulting party shall have sixty (60) days from and after receipt of the notice to cure the default without liability for the default. If the default is not of a type which can be cured within such sixty (60) day period and the defaulting party gives written notice to the non-defaulting party within such sixty (60) day period that it is actively and diligently pursuing a cure, the defaulting party shall have a reasonable period of time given the nature of the default following the end of the sixty (60) day period to cure the default, provided that the defaulting party is at all times within the additional time period actively and diligently pursuing the cure. Notwithstanding the foregoing sixty (60) day cure period, Developer shall have the right to include a claim for breach of this Agreement in any claim brought under C.R.C.P. Rule 106 if Developer believes that the failure to include such claim may jeopardize Developer s ability to exercise its remedies under this Agreement at a later date. Developer agrees that any claim for breach of this Agreement brought before the expiration of the applicable cure period shall not be prosecuted by Developer until the expiration of the applicable cure period, and shall be dismissed by Developer if the default is cured in accordance with this Section Limitation on Actions. Any action brought to enforce the terms of this Agreement shall be commenced, if at all, within one (1) year of the occurrence of the condition of default or shall forever be barred

18 4.5 Remedies. Although the Vested Property Rights Statute allows for monetary damages in the event of a violation of vested property rights, and notwithstanding any provision of the Vested Property Rights Regulations to the contrary, the parties expressly intend that the sole remedy for a violation of vested property rights granted by this Agreement shall be the equitable remedies of specific performance or mandatory or prohibitory injunction, and/or termination of this Agreement. To the extent the Board may legally do so, the Board waives, for itself and its successors and assigns, any right it may have to pay money damages under the Vested Property Rights Statute or the Vested Property Rights Regulations upon a deprivation or impairment of the vested property rights. To the extent Developer may legally do so, Developer waives, for itself and for any of its successors and assigns, any right it or they may have to receive money damages under the Vested Property Rights Statute or the Vested Property Rights Regulations upon a deprivation or impairment of the vested property rights. If it is judicially determined (notwithstanding the parties express mutual intent that the foregoing mutual waivers are to be legally effective and binding on the parties and their respective successors and that the remedy of specific performance shall be enforced and granted as the sole and exclusive remedy for a violation or impairment of the vested property rights) that specific performance is not available as a remedy for deprivation or impairment of the vested property rights, then Developer shall be entitled to pursue and to be awarded just compensation pursuant to the Vested Property Rights Regulations and pursuant to Section 105(1)(c) of the Vested Property Rights Statute to the extent the deprivation or impairment otherwise is compensable under the Vested Property Rights Statute. If any default under this Agreement is not cured as described above, the non-defaulting party shall have the right to enforce the defaulting party s obligations hereunder by an action for injunction or specific performance pursuant to the provisions of the foregoing paragraph. Each remedy provided for in this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by statute. 5.1 Amendment of this Agreement. ARTICLE 5 - MISCELLANEOUS (a) Written Amendment Required. Except as otherwise set forth in this Agreement, this Agreement may be amended, terminated or superseded only by mutual consent in writing of the Board and Developer or any party or parties to whom Developer has specifically granted in writing, such writing having been provided in advance to the Board, the power to enter into such amendment, following the public notice and public hearing procedures required for approval of this Agreement. (b) Effectiveness and Recordation. Any such written amendment shall be effective upon the later to occur of (i) execution by both parties or (ii) the effective date of the ordinance or resolution approving such amendment. Promptly after any amendment to this Agreement becomes effective, the Board shall cause it to be recorded in the real property records of the Arapahoe County Clerk and Recorder. As between the parties, the validity or enforceability of such an amendment shall not be affected by any delay in or failure to record the amendment as provided herein

19 5.2 Authorization of Project MDP Amendments. As provided in the Code, Project MDP amendments changing criteria or standards applicable to less than all of the Property may be processed by the County upon the written authorization of all Lot Owners of the Sites subject to the amendments. Amendments which change criteria or standards applicable to the entire Property may be processed by the County upon the written authorization of all Lot Owners and upon the written authorization of the Developer or any party or parties to whom Developer has specifically granted, in writing, the power to approve such amendment, variance or rezoning. 5.3 Recordation of Agreement. This Agreement shall be recorded in the real property records of the Arapahoe County Clerk and Recorder. 5.4 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. 5.5 Attorneys Fees. If any action is filed or maintained by either party against another party in relation to this Agreement, neither party shall be entitled to seek or be awarded its respective costs and attorneys fees from the other party, and each such party shall bear and be solely responsible for its respective costs and attorneys fees; provided, however, in any such action with respect to which a successor governmental entity to the County (whether by operation of law or otherwise) or by a successor or assign of the Board (whether by operation of law or otherwise) is a party, the prevailing party in such an action shall be entitled to its costs and reasonable attorneys fees. All rights concerning remedies or attorneys fees shall survive termination of this Agreement. 5.6 No Joint Venture or Partnership. No form of joint venture or partnership exists between the Board and Developer and nothing contained in this Agreement shall be construed as making the Board and Developer joint venturers or partners. 5.7 Waiver. No waiver of one or more of the terms of this Agreement shall constitute a waiver of other terms. No waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. 5.8 Board Findings. The Board hereby finds and determines that execution of this Agreement is in the best interests of the public health, safety, and general welfare and the provisions of this Agreement are consistent with the Comprehensive Plan and development laws, regulations and policies of the Board. The Board intends that a court of competent jurisdiction shall treat this Agreement and each component of the Development Plan, including but not limited to the Project MDP, as a site specific development plan to the extent necessary to determine that the vested rights granted pursuant to this Agreement are legal and enforceable. 5.9 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect so long as enforcement of the remaining provisions would not be inequitable to the party against whom they are being enforced under the facts and circumstances then pertaining, or substantially deprive such party of the benefit of its bargain

20 5.10 Further Assurances. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out this Agreement in order to provide and secure to the other party the full and complete enjoyment of its rights and privileges under this Agreement Authorization. The signatories to this Agreement affirm and warrant that they are fully authorized to enter into and execute this Agreement, and all necessary actions, notices, meetings and/or hearings pursuant to any law required to authorize their execution of this Agreement have been made. To the extent that consent to this Agreement is required by any party holding an interest in the Property, Developer represents and warrants that it has obtained such consent by signature to this Agreement or otherwise Notices. Any notice or communication required under this Agreement between the Board and Developer must be in writing, and may be given either personally or by registered or certified mail, return receipt requested. If given by registered or certified mail, the same shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five days after the registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving written notice to the other party hereto as provided in this Section, designate additional persons to whom notices or communications shall be given, and designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to the Board: County of Arapahoe Board of County Commissioners 5334 South Prince Street Littleton, Colorado Attention: Chairman With a required copy to: County Attorney 5334 South Prince Street Littleton, Colorado Attention: Ron Carl, County Attorney If to Developer: Dove Valley Business Park Associates, Ltd South Clarkson Street Denver, Colorado Attention: Angelo Mariani

21 5.13 Assignment; Binding Effect. This Agreement shall be binding upon and except as otherwise provided in this Agreement, shall inure to the benefit of the successors in interest or the legal representatives of the parties hereto. Developer shall have the right to assign or transfer all or any portion of its interests, rights, or obligations under this Agreement to third parties acquiring an interest or estate in the Property, including, but not limited to, joint venture partners, purchasers or long term ground lessees of individual lots, parcels, or of any improvements now or hereafter located within the Property, provided that to the extent Developer assigns any of its obligations under this Agreement, the assignee of such obligations shall expressly assume such obligations. The express assumption of any of Developer s obligations under this Agreement by its assignee or transferee shall thereby relieve Developer of any further obligations under this Agreement, and shall release the Board from further obligation to Developer, with respect to the matter so assumed Venue and Choice of Law; Construction. This Agreement shall be construed according to the laws of the State of Colorado, and venue shall be in the District Court, Arapahoe County, Colorado. To reduce the cost of and to expedite the resolution of disputes under this Agreement, the parties hereby waive any and all right either may have to request a jury trial in any civil action relating primarily to the enforcement of this Agreement. In the event of ambiguity in this Agreement both parties agree that neither shall be subject to any rule of construction which favors one party s interpretation as a non-drafting party, and agree that the ambiguous provision shall be interpreted as though neither party was the drafter 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

22 IN WITNESS WHEREOF, Developer and the Board have executed this Agreement as of the date first written above. DEVELOPER: DOVE VALLEY BUSINESS PARK ASSOCIATES, LTD., a Colorado Limited Partnership By: Angelo Mariani, General Partner STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER) The foregoing instrument was acknowledged before me this day of, 2014, by Angelo Mariani, as General Partner, Dove Valley Business Park Associates, Ltd., a Colorado limited partnership. Witness my hand and official seal My Commission expires: Notary Public

23 THE BOARD: Board of County Commissioners of Arapahoe County, Colorado, a body corporate and politic By: Nancy A. Doty, Chair of the Board of County Commissioners, County of Arapahoe, State of Colorado STATE OF COLORADO ) ) ss. COUNTY OF ARAPAHOE ) The foregoing instrument was acknowledged before me this day of, 2014, by Nancy A. Doty, as Chair of the Board of County Commissioners of the County of Arapahoe, State of Colorado. Witness my hand and official seal My Commission expires: Notary Public

24 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY THE FOLLOWING PROPERTIES, LOCATED IN SECTIONS 29, 30, 31 AND 32, TOWNSHIP 5 SOUTH, RANGE 66 WEST OF THE 6th PRINCIPAL MERIDIAN AND IN SECTION 36, TOWNSHIP 5 SOUTH, RANGE 67 WEST OF THE 6th PRINCIPAL MERIDIAN, COUNTY OF ARAPAHOE, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: LOT BLOCK SUBDIVISION AREA (AC.) 2 - Dove Valley Business Park Subdivision Filing No Dove Valley Business Park Subdivision Filing No Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V A-1

25 LOT BLOCK SUBDIVISION AREA (AC.) 1 12 Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Dove Valley V Filing No Dove Valley V Filing No Dove Valley V Filing No Dove Valley V Filing No Dove Valley V Filing No Dove Valley V Filing No Dove Valley V Filing No Dove Valley V Filing No Dove Valley V Filing No TRACT SUBDIVISION AREA (AC.) A Dove Valley V B Dove Valley V C Dove Valley V D Dove Valley V G Dove Valley V H Dove Valley V I Dove Valley V K Dove Valley V L Dove Valley V TOTAL PROPERTY AREA: A-2

26 TOGETHER WITH (WHETHER OR NOT INCLUDED ABOVE) ALL PORTIONS OF THE FOLLOWING EXISTING OR PROPOSED PUBLIC RIGHTS-OF-WAY, TRACTS AND PUBLIC OR PRIVATE ROADWAY IMPROVEMENTS LOCATED WITHIN AND/OR ADJACENT AND/OR PROVIDING AND/OR PLANNED TO PROVIDE ACCESS TO, FROM AND WITHIN THE FOREGOING DESCRIBED PROPERTIES TO THE EXTENT THE SAME ARE, AS OF THE EFFECTIVE DATE, LOCATED WITHIN AND SUBJECT TO THE JURISDICTION OF ARAPAHOE COUNTY: East Broncos Parkway South Jordan Road South Potomac Street South Chambers Road East Otero Avenue South Blackhawk Street South Fairplay Street East Mineral Avenue South Hannibal Street Digicomm Drive East Jamison Place East Adam Aircraft Circle South Vaughn Court A-3

27 EXHIBIT B MASTER DEVELOPMENT PLAN PROCESS [Follows this Page] B-1

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