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HomeMy WebLinkAbout06642Reception 1369625 02/14/2001 ORDINANCE NO. 6642 AN ORDINANCE APPROVING THE PLAT OF PUEBLO METRO - CENTER MALL, FILING NO. 4, SUBDIVISION BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The final plat of Pueblo Metro- Center Mall, Filing No. 4, Subdivision being a subdivision of land legally described as: Pueblo Metro Center Mall, Filing No. 3, A Special Area Plan, together with Lots 1 and 4, Block 1 and Parcel F, Block 2 of Pueblo Metro - Center Mall, Filing No. 2, A special Area Plan, containing 3,370,394 square feet or 31.4599 acres more less, is hereby approved, and all dedicated streets, utility and drainage easements, rights -of -way and land set aside for public sites, parks and open spaces shown and dedicated on said plat are hereby accepted for public use. SECTION 2. The acceptance of such dedicated streets, rights -of -way, utility and drainage easements, public sites, parks and open spaces by the City does not obligate the City to maintain or repair same until such streets, rights -of -way, utility and drainage easements, public sites, parks and open spaces have been constructed and installed in compliance and in accordance with the requirements and provisions of Chapter 4, Title XII of the Pueblo Municipal Code, as amended and any agreement entered into pursuant thereto. SECTION 3. Neither the adoption of this ordinance and the requirements imposed hereby shall create any duty or obligation of any person, firm, corporation or other entity with regard to the enforce- ment or nonenforcement of this ordinance or the City's Subdivision Ordinances and regulations. No person, firm, corporation or other entity shall have any private right of action, claim or demand against the City or its officers, employees or agents, for any injury, damage or liability arising out of or in any way connected with the adoption, enforcement, or nonenforcement of this ordinance or the Subdivision Ordinance and Regulations of the City, or the engineering, surveying, drainage improvement or other work or improvements required thereby. Nothing in this ordinance or in the City's subdivision ordinances and regulations shall create or be construed to create any claim, demand or liability against the City or its officers, employees or agents, or to waive any of the immunities, limitations on liability, or other provisions of the Colorado Governmental Immunity Act, Section 24 -10 -101, et seq. Colorado Revised Statutes, or to waive any immunities or limitations on liability otherwise available to the City or its officers, employees or agents. 1 1 SECTION 4. 1369625 02/14/2001 08:04A ORD Chris C. Munoz 2 of 2 R 10.00 D 0.00 Pueblo Cty Clerk & Ree This ordinance shall be approved upon final passage but shall not become effective until (a) all information, documents, drawings, profiles, and plat required by Chapter 4 of Title XII of the Pueblo Municipal Code meeting and complying with the subdivision require- ments of the City have been filed with and approved by the Director of Public Works, and (b) the final subdivision plat is recorded in the office of the Pueblo County Clerk and Recorder. If any such filings and approvals have been deferred pursuant to Section 12 -4 -5 (B) (2) of the 1971 Code of Ordinances, and are not for any reason filed and approved within one (1) year after final passage of this Ordinance, or within any extended period granted by Resolution of the City Council, this Ordinance shall automatically be rescinded and repealed thirty (30) days after written notice of such rescission and repeal is given to the Subdivider. No vested rights shall accrue to the subdivision or be acquired until this Ordinance or the final subdivision plat becomes effective. INTRODUCED December 26 2000 B Patrick Avalos �r A 'T T `} F City Clerk APPROVED of the City Council PASSED AND APPROVED January 8, 2001 11/30/00 Reception 1369633 02/14/2001 SUBDIVISION IMPROVEMENTS AGREEMENT THIS AGREEMENT is made on , , between the CITY OF PUEBLO, a Municipal Co oration ( "City ") , and PUEBLO/ROS, INC., a Washington corporation, ( "Ros "), COLUMBIA PROPERTIES LLC, a Colorado limited liability company ( "Columbia ") and WAL -MART REAL ESTATE BUSINESS TRUST, a Delaware business trust ( "Wal- Mart") (collectively the "Subdivider "). RECITALS WHEREAS, Subdivider has subdivided or is about to subdivide a certain tract of land located in the City and legally described in attached Exhibit "A "; and WHEREAS, the Subdivider, as a condition of approval of the final plat of Pueblo Metro - Center Mall, Filing No. 4 ( "Subdivision "), wishes to enter into this Subdivision Improvements Agreement as authorized by Chapter 4, Title XII of the 1971 Code of Ordinances; and WHEREAS, Subdivider is required by Section 12 -4 -7 (1) of the 1971 Code of Ordinances of the City to construct and install certain public improvements generally described in attached Exhibit "B" and shown on approved construction plans and documents on file at the office of the City's Director of Public Works ( "Required Public Improvements "); and WHEREAS, by Chapter 4, Tide XII of the 1971 Code of Ordinances, Subdivider is obligated to provide security or collateral sufficient in the judgement of the City Council to make reasonable provisions to construct and complete the Required Public improvements. NOW, THEREFORE, in consideration of the following mutual covenants and agreements, the City and Subdivider agree as follows: 1. Subdivider agrees within one hundred and eighty (180) days after applying for a building permit to construct any building or structure on any building site within the Subdivision, or upon the issuance of a certificate of occupancy for any such building or structure, whichever occurs first, to construct and install at its sole cost all of the Required Public Improvements. 2. In lieu of installing the Required Public Improvements within the time period prescribed in Paragraph 1, Subdivider or any subsequent owner of the land or any portion thereof shall deposit cash or other collateral with the City Director of Finance, or with any bank or trust company licensed in the State of Colorado, subject to an escrow agreement approved by the City Attorney. The holder of such cash or collateral shall pay all or any portion thereof to the City upon demand after the time to complete all Required Public Improvements by Subdivider or subsequent owner expires. Such deposit or escrow agreement shall be referred to as the "deposit ". 3. The amount of the deposit shall be computed by the City's Director of Public Works by estimating the total cost of all uncompleted Required Public Improvements within the block at the time application for building permit is made. The amount of the deposit required by this alternative shall not be less than 25% of such estimate plus the costs of extending all TEH:maw 377777.01 02/06/2001 1 111111 1111111111 1111111 1111 IN HIM 111111111111 IN 1369633 02/14/2001 08:04A SUED AG Chris C. Munoz 2 of 8 R 40.00 D 0.00 Pueblo Cty Clerk 8 Rae required sewer and water lines from nearest existing sewer and water lines to the proposed building site for which a building permit is sought, plus the costs of extending curb, gutter, sidewalk and paving from the edge of the Subdivision or existing improvements of a like nature, whichever is closer, to the proposed building site. In any case where the block, as later defined, exceeds one thousand (1000P feet in length between intersecting streets, the estimate of the City Director of Public Works under this paragraph may be reduced to the total costs of all 7� uncompleted Required Public improvements in at least one half (1/2) of such block, and the required deposit shall be based upon such decreased estimate. The Subdivider, however, shall provide a turnaround of at least sixty (60') feet in diameter at the mid -block point and barricade such street so that no through traffic shall be permitted beyond the point to which the estimate of Director of Public Works is based. 4. Within one hundred eighty (180) days after subsequent application for a building permit to construct any building or structure upon any building site within the block, or upon the issuance of a certificate of occupancy for any such building or structure, whichever occurs first, Subdivider shall also deposit an amount not less than the estimate of the Director of Public Works for all Required Public Improvements from existing improvements to the proposed building site, less any previous deposits made under this agreement upon building sites lying between the most recently proposed site and existing improvements. 5. In the event the Subdivider or any subsequent owner of the land fails to complete the Required Public Improvements or to make such deposit within the required time, no additional building permits shall be issued to the Subdivider or the subsequent owner or to any other person to build or construct any building or structure in the Subdivision until such default is remedied. In addition, the City may treat the amount of such deposit as a debt due the City from the Subdivider or subsequent owner, which debt shall be a lien upon all the land in the Subdivision and notice of lien may be filed for record in the office of the County Clerk and Recorder at any time after such default. Action upon such debt may be instituted by the City within six (6) years from the date of filing such lien for record. All remedies provided for in this agreement are cumulative and the use of one shall not prohibit the use of another. 6. Upon paying such deposit, the City Director of Public Works shall release the proposed building site from the terms of the Agreement except the terms of Paragraph 7 below. 7. As a condition of approval of this Subdivision, and to meet the requirements of Section 12 -4 -7 (J) of the 1971 Code of Ordinances, Subdivider specifically agrees that no certificate of occupancy shall be issued by the Pueblo Regional Building Department until the Required Public Improvements, or those improvements necessary as determined by the City Director of Public Works, to totally serve specific lot(s) or block(s) for which certificates of occupancy are sought have been properly designed, engineered, constructed and accepted as meeting the specifications and standards of the City. The restrictions on issuing certificates of occupancy contained in this Paragraph 7 and the restriction on the issuance of building permits contained in Paragraph 5 shall run with the land and shall extend to and be binding upon the heirs, legal representatives, successors and assigns of Subdivider and may be specifically enforced by the City. TEH:maw 377777.01 02/06/2001 2 1111 HIM 111111111111 IN 1369633 02/14/2001 08:04A SUBD AG Chris C. Munoz 3 of 8 R 40.00 D 0.00 Pueblo Cty Clerk 8 Roo 8. Acceptance of this Subdivision by the City does not constitute an acceptance of the roads, parks and other public improvements for maintenance by the City. Until such roads, parks and other public improvements have been installed and meet the requirements, standards, and specifications of the City, its Subdivision ordinances, and any applicable Parks Department specifications, and such are specifically approved and accepted in writing by the City Director of Public Works, and, if appropriate, the City Director of Parks and Recreation, the maintenance, construction, and all other matters pertaining to or affecting said roads, parks and other public improvements and rights -of -way are the sole responsibility of the Subdivider or any subsequent owner(s) of the land within the Subdivision. 9. The required time to complete all Required Public Improvements by Subdivider within such block shall be one (1) year from the date of application for the first building permit issued within such block. Upon completion and written approval and acceptance of the Required Public improvements within the required time and the payment of all inspection costs by Subdivider, the Director of Public Works shall cause all obligations of the Subdivider relating to the required Public Improvements within such block to be released. If such Required Public Improvements are not completed within the required time, the City Director of Public Works may cause the proceeds of all deposits or other collateral or monies in escrow to be used to complete the same. If insufficient monies are available at the end of the required time to complete all Required Public Improvements for -Me entire length of such block, the Director of Public Works shall cause all collateral or monies in escrow to be reduced to cash and shall deposit the same with the Director of Finance. Such cash shall be used to complete that portion of the Required Public Improvements as the Director of Public Works, in the Director's sole discretion, shall determine. Until all the Required Public Improvements are completed and approved by the Director of Public Works, Subdivider and the subdivided land shall remain liable and responsible for all the Required Public Improvements. 10. For purposes of this Agreement, the "block" shall mean bothers of lots fronting or abutting upon the street which the proposed building or structure shall front, to the rear property line of such lots, or the center line of the alley, if there is an alley, enclosed at either end by a street which intersects both tiers of lots, and shall include the full width of all streets upon which such lots abut. 11. If the Required Public Improvements are for a commercial subdivision and include stormwater drainage facilities, stormwater detention facilities, or maintenance and restoration of adjacent drainage channels, and/or associated improvements and revegetation (the "facilities "), located either within or outside of the Subdivision, Subdivider shall install the facilities m accordance with plans and specifications therefor approved by, and on file with the City, and thereafter, the facilities shall be repaired, replaced and maintained in good working order and condition by the owners of the land within the Subdivision. The City is granted the right (but not the obligation) to inspect, control, repair, replace and maintain the facilities and to recover all costs and expenses therefor including an administrative charge of 15% from the owners of the land within the Subdivision. All such City's costs and administrative charge shall become a perpetual lien on all the land within the Subdivision upon recording in the office of the Pueblo County Clerk and Recorder a statement of lien setting forth the City's costs and describing the land signed by the City's Director of Public Works. Failure of the City to inspect, control, repair, maintain or replace the facilities shall not subject the City to any liability for such failure. LL TEH:maw 377777.01 02/06/2001 3 111111 HIM 111111111111 IN 1111 HIM 111111111111 IN 1369633 02/14/2001 08:04A SUBD AG Chris C. Munoz 4 of 8 R 40.00 D 0.00 Pueblo C!y Clerk & Ree 12. Subdivider agrees to provide the City with a current title insurance commitment at the time of final platting evidencing that fee simple title of all lands in the Subdivision is totally vested with the Subdivider free and clear of all liens and encumbrances. If such land is not free and clear, the holder of such indebtedness shall subordinate its interest or encumbrance to this Agreement and all its terms, conditions and restrictions. 13. The City or the purchaser of any lot(s) within this Subdivision shall have the authority to bring an action in any Court of competent jurisdiction to compel the enforcement of this Agreement or any amendment hereto. Such authority shall include the right to compel rescission of any sale, conveyance or transfer of any lot(s) or tract(s) contrary to the provisions of the Ordinances of the City or this Agreement. In the event of any litigation concerning this Agreement, the Court shall award the prevailing party its costs and expenses, including reasonable expert witness and attorneys' fees. 14. The parties agree this Agreement may be periodically amended by mutual consent provided such amendment is in writing and be signed by all parties. 15. This Agreement shall extend to and be binding upon the successors and assigns of the City and upon the heirs, successors, assigns and legal representatives of Subdivider, and shall be recorded in the office of the County Clerk and Recorder of Pueblo County, Colorado, and shall constitute an agreement running with the land until released as described above. The parties have caused actin this Agreement to be executed and attested by its duly authorized and C] Is City k APPROVED AS TO FORM: City Attorne TEH:maw 377777.01 02/06/2001 4 1 1111111111111111111111111 IN 11111111111111111111111 IN 1369633 02/14/200'_ 08 :04A SUBD AG Chris C. Munoz 5 of 8 R 40.00 D 0.00 Pueblo Ct.y Clerk 8 Roc Assistant Secretary STATE OF COLORADO ) ss. COUNTY OF COLORADO ) The foregoing instrurr}ent was acknowle , by o itl ,, Council, and 1r4 A tx }c_y e f City of Pueblo, Colorado. My commission expires: ySTARy. TEH:maw 377777.01 02/06/2001 PUEBLO/ROS, INC., a Washington corporation By Its COLUMBIA PROPERTIES LLC, a Colorado limited liability company Its WAL -MART REAL ESTATE BUSINESS TRUST, a Delaware business trust Robert M Bpdar Its Assistant Vice rest ent "Subdivider" before me ozr z 6 Do l President of City as City Clerk of the (v jai /a-oo3 4Not Public A vah a le i b s Wal -Mart Legal Team r ate! Data: -�� 1111111111111111111111111111111111 IM 111111111111 IN State of LAAAJ A - 1369633 02/14/2001 08:04A SURD AS Chris C. Munos 6 of S R 40.00 D 0.00 Pueblo C!y Clerk & Rec County of � �_ '' nn tt The foregoing inst e ( � nt was owledged before e this �° day of 2 2001, by �U.l� � . the of Pueblo/Ros, Inc., a Washington corporation, on behalf o e corporation. (S i;; p 126817.1 avps txu * NyCORMEOesM1Q.=4 Notary Public State • _►mot►► !►_ ►_� C ounty • faO! ` ,j The foregoing instrument was acknow eddg �b me t us �� day of 2001 by +"X)"M. _ g of Columbia F limited liability company, on behalf of the limited li bility company. Ij -q -o3 e �� "6 M Notary Public The foregoing instrument was acknowledged before me this QlLdav of , 2000, by Robert M . Bedard ^ , the Assistant Vice President of Wal -Mart ea s to Business Trust, a Delaware business trust, on behalf of the trust. (Seal and Expiration Date) EDe OTARY SEAL " e L. Cawood, Notary Public County, State of Arkansas mission Bxpires 11/30/2009 n4o M VA • . TEH:maw 377777.01 02/06/2001 County of 1369633 02/14/2001 08:04A SUED AG Chris C. Munoz 7 of 8 R 40.00 D 0.00 Pueblo Ct.y Clerk A Roc SUBDIVISION IMPROVEMENT AGREEMENT EXHIBIT "A" LEGAL DESCRIPTION PUEBLO METRO - CENTER MALL, FILING NO. 3, A SPECIAL AREA PLAN, TOGETHER WITH LOTS 1 AND 4, BLOCK 1 AND PARCEL F, BLOCK 2 OF PUEBLO METRO - CENTER MALL, FILING NO. 2, A SPECIAL AREA PLAN, CONTAINING 1,370,394 SQUARE FEET OR 31.4599 ACRES, MORE OR LESS. SUBDIVISION IMPROVEMENTS AGREEMENT EXHIBIT "B" SUBDIVISION NAME: Pueblo Metro - Center Mall, Filing No. 4 DEVELOPER: Wal -Mart Stores, Inc., Columbia Properties LLC ENGINEER: CLC Associates, Inc. ITEMIZATION OF PUBLIC IMPROVEMENTS ITEM DESCRIPTION QUANTITY UNIT UNIT PRICE TOTAL 1. Wal -Mart Stores, Inc. A. Tract A Detention Facility & Storm Sewer 15" Pipe 320 LF $30.00 $9,600.00 18" Pipe 190 LF $36.00 $6,840.00 24" Pipe 455 LF j $48.00 $21,840.00 Inlets 3 EA $3,600.00 $10,800.00 30" Pipe 75 LF $60.00 $4,500.00 36" Pipe 380 LF $72.00 $27,360.00 54" Pipe 392 LF $118.00 $46,256.00 Manholes 60" dia. 8 EA $2,000.00 $16,000.00 Flared End Section 5 EA $1,200.00 $6,000.00 Concrete Channel Lining 480 LF $20.00 $9,600.00 Outlet Structure (4'x4') 1 EA $3,000.00 $3,000.00 Grading 3.37 AC $16,000.00 $53,920.00 Planting and Vegetation 3.37 AC $12,000.00 $40,440.00 Riprap (incl. Filter Blanket) 200 CY $50.00 $10,000.00 B. Water System 48" Water Main 620 LF $358.00 $221,960.00 SUBTOTAL $488,116.00 10% CONTINGENCY $48,811.60 TOTAL $536,927.60 2. Columbia Properties LLC A. Sanitary Sewer System 8" Main (0 -12' depth)(Public) 710 LF $29.00 $20,590.00 8" Main (0 -12' depth)(Private) 1,015 LF $29.00 $29,435.00 48" Dia. Manholes (Public) 4 EA $2,170.00 $8,680.00 48" Dia. Manholes (Private) 4 EA $2,170.00 $8,680.00 Building Services (40' R.O.W.)(Private) 31 EA $500.00 $15,500.00 B. Water System 8" Water Main (incl. Valves) 1,800 LF $35.00 $63,000.00 Fire Hydrant Assembly 7 EA $2,500.00 $17,500.00 Service Lines 29 EA $850.00 $24,650.00 C. Storm Sewer System 15" Pipe 160 LF $30.00 $4,800.00 18" Pipe 98 LF $36.00 $3,528.00 24" Pipe 120 LF $48.00 $5,760.00 30" Pipe 10 LF $60.00 $600.00 Inlets 6 EA $4,000.00 $24,000.00 Flared End Section 24" 1 EA $675.00 $675.00 Manholes 48" dia. 4 EA $2,170.00 $8,680.00 SUBTOTAL $236,078.00 10% CONTINGENCY $23,607.80 TOTAL I 1 $259,685.80 GRAND TOTAL 1 AND 2 1 1 $796,613.40 N O C ea _ rY �l r U -+ � �a a � m V 9, O � 4 � cc -W m o_ Co m to CD � V 4m � m0 - � c m � OR o r. CO This is an estimate only. Actual construction costs may vary. PREPARED BY: Charles R. Davis FIRM: CLC Associates, Inc. REVIEWED BY: ��/ 2-/0 City of Pueblo Reception 1369635 02/14/2001 DECLARATION OF COVENANTS CONCERNING Ingres /Egress and Utilities EASEMENTS FOR (type of easement) Pueblo Metro Center Mall, Filing No. 4, A Special Area Plan (name of subdivision) THIS DECLARATION OF COVENANTS is made as of 4��F BRq A/ 7. tkbI by Columbia Properties LLC, a Colorado Limited Liability Company ' herein the "Declarant ". DEFINITIONS "Easement " means and includes the land shown and dedicated on the plat of the Subdivision, or otherwise granted or dedicated in or outside of the Subdivision, for drainage, detention, streets, sidewalks, and utility purposes that serve or benefit the Subdivision. Easements granted or dedicated outside of the Subdivision are described in the attached Exhibits ( "B ", "C"). " Facilities" means and includes Private Road, Private Sanitary Sewer and Priv Water Lines located in an Easement. "Lot" means a lot or other designated parcel of land within the Subdivision other than Easements. "Lot Owner" means and includes all persons and entities having any right, title or interest in and to a Lot, or any part thereof. "Subdivision" means the Pueblo Metro Center Mall, Filing No. 4, A Special Area Plan "Subject Property" means the real property located in Pueblo County, Colorado Pueblo Metro Center Mall, Filing #4, A Special Area Plan, except Lot 1, Block 1 and Tract A. RECITALS A. Declarant is the record owner of, and has fee simple title to the Subject Property. ' insert name and address of property owners 2 describe all improvements, the repair, maintenance and replacement of which are not the obligation of the City nor any provider of utility services s insert name of subdivision DPW 105 -1- B. Declarant intends to or has subdivided the Subject Property and platted the Subject Property as the Subdivision. C. Declarant desires to provide for the orderly development of the Subdivision and to insure the proper installation, maintenance and repair of the Easements and Facilities. NOW, THEREFORE, Declarant declares that the Subject Property and all Lots within the Subdivision shall be held, transferred, sold, conveyed, occupied and used subject to the following covenants, conditions and restrictions: 1. Purpose The purpose of the covenants and provisions of this Declaration of Covenants is to insure the proper and orderly development of the Subject Property and to provide a reasonable method to maintain and repair the Easements and Facilities to the benefit of all the Lots within the Subdivision. 2. Covenants (a) Declarant shall install the Easements and Facilities in accordance with plans and specifications therefor approved by, and on file with the City of Pueblo. Declarant shall record this Declaration of Covenants in the office of the Pueblo County Clerk and Recorder contemporaneously with but immediately after the recording of the plat of the Subdivision. (b) Each Lot Owner shall be primarily responsible for maintaining the Facilities in good working order and condition and for the repair and replacement of the Facilities located in an Easement on or adjacent to such Lot Owner's Lot; provided, however, that all Lot Owners shall be jointly and severally liable for maintaining the Facilities in good working order and condition and for the repair and replacement of the Facilities. (c) The City of Pueblo is granted the right at its option (but not the obligation) to inspect, control, repair, maintain and replace the Facilities and to recover all cost and expenses thereof plus an administrative charge of 15% from the Lot Owners. All such City's cost and administrative charge shall become a perpetual lien on all the Lots within the Subdivision upon recording in the office of the Pueblo County Clerk and Recorder a statement of lien setting forth City's cost and describing the Lots signed by the City's Director of Public Works. Failure of the City to inspect, control, repair, maintain or replace the Facilities shall not subject the City of Pueblo to any liability for such failure. 3. Binding Effect Each of the covenants and provisions of this Declaration of Covenants shall run with the Subject Property and Lots within the Subdivision, and shall forever be binding upon and inure to the benefit of all Lot Owners and their respective heirs, personal representatives, successors and assigns. 4. Enforcement (a) The covenants and provisions of this Declaration of Covenants shall be -2- enforceable at law or in equity by any Lot uwner or the City of Pueblo against any person or entity violating, attempting to violate, or not complying with any of the covenants and provisions of this Declaration of Covenants. (b) Failure of any Lot Owner or the City of Pueblo to enforce any of the covenants or provisions of this Declaration of Covenants shall in no event constitute or be deemed to constitute a waiver of the right to do so thereafter, and shall not subject any Lot Owner or the City of Pueblo to any liability for failure to enforce. (c) The enforcing party may seek and recover damages or injunctive relief, or both. In the event of any action or litigation arising out of or to enforce this Declaration of Covenants, the Court shall award the prevailing party its costs and expenses including reasonable attorney fees. Venue for any such action shall be in the District Court In And For The County of Pueblo, State of Colorado and, for purposes thereof, Declarant and all Lot Owners agree to submit to the jurisdiction of that Court. 5. Survival Invalidation of any one of the covenants or provisions of this Declaration of Covenants whether by final judgment or court order shall not affect any of the remaining covenants or provisions, which shall remain in full force and effect. 6. Modification Neither this Declaration of Covenants nor any of the provisions hereof may be cancelled, terminated, amended or modified without the prior written consent of all the Lot Owners and the City of Pueblo. 7. Applicable Law This Declaration of Covenants shall be construed, interpreted and enforced in accordance with the laws of the State of Colorado. Executed the day and year first above written. COLUMBIA PROPERTIES LLC, a Colorado Limited Liability Company by: T -E -H Developers, Inc., a Colorado Corporation, as na er Declarant Thomas E. Hausman, President COUNTY OF PUEBLO STATE OF COLORADO � ss. as Manager of Columbia Properties LLC, a Colorado Limited Liability Company Witness my hand and official seal. -�� by Thomas E. Hausman, President of •T -E -H Developers, Inc,, a Colorado Corporation 2001 The foregoing instrument was acknowledged before me this 6th day of February mmission expires: 11 -4 -03 %4 0 r1 [PEAL] .< <Z Cl) OLORP�0 -3- • � � `Iii] !1.1 � _ 1►.�� oNtary Public Reception 1369634 02/14/2001 ADDENDUM TO SUBDIVISION IMPROVEMENTS AGREEMENT This Addendum is entered into this day of , 2 00 , by and between the CITY OF PUEBLO, a municipal corporation ( "City ") and PUEBLO/ROS, INC., a Washington corporation ( "Ros "), COLUMBIA PROPERTIES LLC, a Colorado limited liability company ( "Columbia ") and WAL -MART REAL ESTATE BUSINESS TRUST, a Delaware business trust ( "Wal- Mart"), and shall be incorporated in and become a part of the Subdivision Improvements Agreement for the PUEBLO METRO - CENTER MALL, Filing No. 4 (herein the "Subdivision ") and enforceable as provided in said Subdivision Improvements Agreement. 1. In the event of any inconsistency between the terms of the Subdivision Improvements Agreement and this Addendum, the terms of this Addendum shall control. 2. Wal -Mart, Ros and Columbia are collectively referred to as "Subdivider ". 3. Wal -Mart shall be solely responsible for the construction of that portion of the Required Public Improvements located on Lot 1 and Tract A of Block 1 (the "Wal -Mart Property "). Columbia shall be solely responsible for the construction of that portion of the Required Public Improvements located on the balance of the property located in the Subdivision (the "Columbia Property ") . Ros shall have no responsibility for the construction of any portion of the Required Public Improvements in the Wal -Mart Property. The City agrees that all of the Required Public Improvements located on property owned by Ros in the Wal -Mart Property shall be constructed by Wal -Mart, and the City shall have no recourse against Ros related to the same. Wal -Mart hereby indemnifies and holds Ros harmless from and against any and all costs, liabilities, expenses (including reasonable attorney's fees), damages, or claims arising out of the Subdivision Improvements Agreement and this Addendum. 4. The City agrees that so long as Wal -Mart performs its obligations hereunder, no default by Columbia under the terms of the Subdivision Improvements Agreement or this Addendum shall constitute or be deemed to constitute a default by Wal -Mart. The City agrees that so long a Columbia performs its obligation hereunder, no default by Wal -Mart under the terms of the Subdivision Improvements Agreement or this Addendum shall constitute or be deemed to constitute a default by Columbia. 5. The City's recourse against Columbia for a default under the terms of the Subdivision Improvements Agreement or this Addendum shall be limited to Columbia and the Columbia Property, and in such event, the City shall have no recourse against Wal -Mart, Ros or the Wal -Mart Property or delay the issuance of a certificate of occupancy for improvements constructed on the Wal -Mart Property. The City's recourse against Wal -Mart for a default under the terms of the Subdivision Improvements Agreement or this Addendum shall be limited to Wal -Mart and the Wal -Mart Property, and in such event, the City shall have no recourse against Columbia or the Columbia Property or delay the issuance of a certificate of occupancy for improvements constructed on the Columbia Property. 6. Notwithstanding anything in the Subdivision Improvements Agreement to the contrary, the City agrees that Wal -Mart shall have until that date which is 180 days from the date it applies for a building permit to commence construction of the Required Public Improvements on the Wal -Mart Property. Notwithstanding anything in the Subdivision Improvements Agreement (including without limitation, Section 9 thereof) to the contrary TEH:maw 377280.03 02/06/2001 1 1369634 02/14/2001 08:04A ADD AG Chris C. Munoz 2 of 3 R 23.00 D 0.00 Pueblo Cty Clerk 8 Roe Wal -Mart shall complete the construction of the Required Public Improvements on the Wal =Mart Property on or before the earlier of (i) the issuance of a certificate of occupancy for any building or structure on the Wal -Mart Property or (ii) that date which is 24 months from the date that construction of the same is commenced. 7. The Construction Plans applicable to the Required Public Improvements prepared by CLC Associates, Inc. and signed by the Director of Public Works for the City or his authorized representative and referenced as Job No. 31817 are hereby approved for general conformance to City standards by the City. 8. Wal -Mart shall be fully responsible for any all amounts owed to the City resulting from obligations associated with the Required Public Improvements to be constructed on the Wal -Mart Property. 9. The City agrees that prior to taking any action to enforce Wal -Mart's obligations pursuant to the terms of the Subdivision Improvements Agreement and this Addendum, the City shall provide Wal -Mart written notice and 30 days to cure any alleged deficiency or default. The City shall exercise such rights of entry in a manner that does not materially disturb Wal -Mart's ongoing business operations on Lot 1 Block 1. 10. This Addendum may be executed in one or more counterparts, each of which in the aggregate constitutes one and the same instrument. 11. The covenants of this Addendum shall run with the land within the Subdivision and shall extend to, be binding upon, and inure to the benefit of the City of Pueblo and Subdivider and their respective heirs, personal representatives, successors and assigns. This Addendum may be specifically enforced against the Subdivider and subsequent owners of lots within the Subdivision. 12. This Agreement shall or may be executed in one or more counterparts, all of which in the aggregate shall constitute one and the same instrument. Executed at Pueblo, Colorado as of the date and year stated above. • TEH:maw 377280.03 02/06/2001 2 CITY OF PUEBLO, a municipal corporation i• 11111111111111111111111111111111111111111111111111 IN 1369634 02/14/2001 08:04A ADD AG Chris C. Mu 3 of 5 R 25.00 D 0.00 Pueblo C1,y Clark & Roe Attest: risti Philli Assistant Secrttary TEH:maw 377280.03 02/06/2001 PLANNING COMMISSION FOR THE CITY OF PUEBLO By I Its Chairperson DEPARTMENT OF PUBLIC WORKS FOR THE CITY OF PUEBLO By r&,1 &, Its Director of Public Works PUEBLO/ROS, INC., a Washington corporation By A .. Its COLUMBIA PROPERTIES LLC, a Colorado limited liability company � • ft Its WAL -MART REAL ESTATE BUSINESS TRUST, a Delaware business trust By ao_ - Z' R o b ert Be Its Assistant Vice Pre ' e as I a b Wal -Mart Legal To Date :c� : '. IIIIIII IN IN 11111111111111 IN IN Munoz State of Colorado 1369634 02/14/2001 08:04A ADD AG Chris C. 4 of 5 R 25.00 D 0.00 Pueblo Cty Clerk & Rea County, of rc, 'Thee foregoing ins ent wa ackn (wledged befor me this day of � 2 01 by Zu , the . 6T. j eUty of Pubbl , a municipal corporation, on behalf of the municipal corporation. ( eai and Expiration Date) Notary Public State of Colorado County of The foregoing instrument was acknowledged before me this day of , 2001, by , the Chairperson of the Planning Commission for the City of Pueblo. (Seal and Expiration Date) State of Colorado County of Rjea Notary Public The foregoin instrument was acknowledged before me this la''' day of Rbf`'Up , 2001, by Ua r- , the Director of Public Works for the Department of Public Works for the City of Pueblo. (Seal and-,apirat t ate) Notary Public 4 TEH:maw 377280.03 02/06/2001 4 'A' C 4er a do RU , a State of Celararla 11111111111111111111111111111111111111111111 IN 1369634 02/14/2001 08:04A ADD AG Chris C. Munos County of 5 of 9 R 23.00 D 0.00 Pueblo Cty Clerk & Ree The foregoing instrument wad acknowledged before e this 6 day of 2001, by k . k,:X , the of Pueblo/Ro , Inc., a Washington corporation, on beh f of the corporation. (Seal and Expiration Date) L I GALLUP commission i 1268125 Wotray P jbk - Ccf bMb orange Courtly 4 1 & My Cantu. � 1ut 1M 21704 State of Colorado County of J• Notary Pu is The foregoing instrument was acknowledged before me this �O_ day of p)bt L r. , 2001, by - fGlWb s�. f�ous,,n�, to T d�uei'dn�rs nr. QA rnaaa�'p� of Columb Properties, LLC, a Colorado limited liability company, on behalf of the limited liability c P (Se State o "11+0 County of Benton JJ -q_ 1 r � l �_ Z x• m 11 ► � ►► N o t ary , The foregoing instrument was acknowledged before me this � day of 2001, by � Robert M . Bedard ' an Assistant Vice President of Wal -Mart R state Business Trust, a Delaware business trust, on behalf of the business trust. (Seal and Expiration Date) "NOTARY SEAL " awood, Notary Public ty, State of Arkansas on Expires 11130J2009 TEH:m aw 377280.03 02/06/2001 L wnv� F_, eave. � 5