HomeMy WebLinkAboutFAIRWAY ESTATES MOOSE LODGE 4820 SOUTH COLLEGE AVENUE - Filed DA-DEVELOPMENT AGREEMENT - 2009-03-30RECEPTION#: 20090017903, 03/24/2009 at
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Scott Doyle, Larimer County, CO
DEVELOPMENT AGREEMENT
THIS AGREEMENT, is made and entered into this day of 2009,
by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation,
hereinafter referred to as the "City"; and Fort Collins Lodge No. 275, Loyal Order of Moose, a
Colorado Nonprofit Corporation, hereinafter referred to as the "Developer."
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the County
of Larimer, State of Colorado, (hereafter sometimes referred to as the "Property" or
"Development") and legally described as follows, to wit:
A tract of land (aka 4820 S. College Ave) situate in the Northwest Quarter of Section 1,
Township 6 North, Range 69 West of the 6"' P.M., Larimer County, Colorado, being
more particularly described as follows: Considering the West line of Lot 1, Fairway
Estates, a subdivision recorded in the said Larimer County as bearing South 00 51'
West with all bearings contained herin relative thereto. Commencing at the Northwest
comer of Lot 1, thence South 0 51' West a distance 505.03 feet to the true point of
beginning; thence continuing South 00 51' West a distance of 100.00 feet, thence
North 90 08' West a distance of 250.00 feet; thence North 00 51' 00" East a distance
of 100.00 feet; thence South 89 08' East 250.00 feet to the point of beginning.
WHEREAS, the Developer desires to develop the Property (change of use) and has
submitted to the City all plans, reports and other documents required for the approval of a
final plan according to the City's development application submittal requirements master list
(the "Final Development Plan Documents") copies of which are on file in the office of the City
Engineer and Zoning Administrator made a part hereof by reference; and
WHEREAS, the City has approved the Final Development Plan Documents submitted
by the Developer subject to certain requirements and conditions, which involve the
installation of and construction of municipal improvements in connection with the Property.
NOW, THEREFORE, in consideration of the promises of the parties hereto and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
General Conditions
A. The terms of this Agreement shall govern all development activities of the
Developer pertaining to the Property. For the purposes of this Agreement, "development
activities" shall include, but not be limited to, the following: (1) the actual construction of
improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or
city Clerk`s Office, Fort Collins, Coloradr
appearance of the Property caused by, or on behalf of, the Developer with the intent to
construct improvements thereon.
B. The Developer specifically represents that to the best of its knowledge all
property dedicated (both in fee simple and as easements) to the City associated with this
Development (whether on or off -site) is in compliance with all environmental protection and
anti -pollution laws, rules, regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40
C.F.R., Part 261, and that such property as is dedicated to the City pursuant to this
Development, is in compliance with all such requirements pertaining to the disposal or
existence in or on such dedicated property of any hazardous substances, pollutants or
contaminants, as defined by the Comprehensive Environmental Response Compensation
and Liability Act of 1980, as amended, and regulations promulgated thereunder. The
Developer, for itself and its successor(s) in interest, does hereby indemnify and hold
harmless the City from any liability whatsoever that may be imposed upon the City by any
governmental authority or any third party, pertaining to the disposal of hazardous substances,
pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks,
excavation and/or backfill of hazardous substances, pollutants or contaminants, or
environmental cleanup responsibilities of any nature whatsoever on, of, or related to any
property dedicated to the City in connection with this Development, provided that such
damages or liability are not caused by circumstances arising entirely after the date of
acceptance by the City of the public improvements constructed on the dedicated property,
except to the extent that such circumstances are the result of acts or omissions of the
Developer. Said indemnification shall not extend to claims, actions or other liability arising as
a result of any hazardous substance, pollutant or contaminant generated or deposited by the
City, its agents or representatives, upon the property dedicated to the City in connection with
this Development. The City agrees to give notice to the Developer of any claim made against
it to which this indemnity and hold harmless agreement by the Developer could apply, and
the Developer shall have the right to defend any lawsuit based on such claim and to settle
any such claim provided the Developer must obtain a complete discharge of all City liability
through such settlement. Failure of the City to give notice of any such claim to the Developer
within ninety (90) days after the City first receives a notice of such claim under the Colorado
Governmental Immunity Act for the same, shall cause this indemnity and hold harmless
agreement by the Developer to not apply to such claim and such failure shall constitute a
release of this indemnity and hold harmless agreement as to such claim.
II. Special Conditions
A. Streets.
1. In accordance with Section 24-95 of the City Code the Developer is
responsible for widening the portion of South College Avenue adjacent to the Property prior
to the issuance of the first building permit. However, the parties agree that the construction of
this street can be delayed.
The Developer's obligation for these improvements to College Avenue will still remain, but
shall be delayed until such time as the City deems the improvements necessary. In addition
the need for the Developer to construct the improvements or the need for the Developer to
provide the City with funds for future improvements to meet this obligation shall be evaluated
in connection with any changes to the Property, such as but not limited to - the expansion of
the existing use (a Moose Lodge)to a tenant in the same use category that will generate a
greater impact or higher traffic impact, change of use of the Property, expansion of the use(s)
on the Property, a remodel or expansion of the building, and redevelopment of the Property.
At such time as a change is proposed to the Property the City can reevaluate the need for the
improvements required by the code and the Developer and City shall enter into a new
Development Agreement if necessary.
2. The Developer acknowledges that it is aware of the "South College
Avenue (US287) Access Control Plan" and the improvements and access changes that have
been identified that will impact the Property in the future and understands that these changes
and improvements will impact access to the Property.
3. In accordance with the "South College Avenue (US287) Access Control
Plan" a shared access drive is to be provided along the eastern portion of the Property.
Since this access drive is not needed at this time the Developer is not required to build the
access drive in connection with this change of use, but is only required to provide a 20 public
access easement for the future installation of the access drive. The fully signed deed of
dedication and associated processing and filing fees shall be provided to the City prior to the
issuance of any Certificate of Occupancy for the Property. The City shall hold said completed
easement document and not process it for final signature and recording until the Developer
requests a Certificate of Occupancy. In addition to the granting of an access easement the
Developer shall have the responsibility for paying the cost of construction of the portion of this
drive that is located on the Property at such time the drive is constructed. In order to
construct said access drive, grading and other work will likely occur outside of the granted
easement, and the Developer hereby grants permission for the City, Colorado Department of
Transportation and/or any contractor authorized to construct the access drive to be on the
Property adjacent to the easement to perform grading work, install forms and other work
associated with installing the access drive.
4. The Developer shall not object to, or take legal action to oppose, the
formation of a Special Improvement District or other financing method for constructing such
College Avenue and access drive improvements if such method is proposed or put in place.
5. No street oversizing reimbursement from the City is due the Developer
for this Development.
III. Miscellaneous
A. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such improvements or
obligations may be shown on the Final Development Plan Documents, or any documents
executed in the future that are required by the City for the approval of an amendment to a
development plan, and the City may withhold (or to the extent permitted by law, revoke) such
building permits and certificates of occupancy as it deems necessary to ensure performance
in accordance with the terms of this Development Agreement. The processing and "routing
for approval" of the various development plan documents may. result in certain of said
documents carrying dates of approval and/or execution that are later than the date of
execution of this Development Agreement or the Memorandum Of Agreement (if any)
recorded to give record notice of this Agreement. The Developer hereby waives any right to
object to any such discrepancy in dates.
B. Nothing herein contained shall be construed as a waiver of any requirements of
the City Code, land Use Code, or Transitional Land Use Regulations (as applicable) and the
Developer agrees to comply with all requirements of the same.
C. In the event the City waives any breach of this Agreement, no such waiver shall
be held or construed to be a waiver of any subsequent breach hereof.
D. All financial obligations of the City arising under this Agreement that are
payable after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins City
Council, in its discretion.
E. This Agreement shall run with the Property and shall be binding upon and inure
to the benefit of the parties hereto, their respective personal representatives, heirs,
successors, grantees and assigns. It is agreed that all improvements required pursuant to
this Agreement touch and concern the Property regardless of whether such improvements
are located on the Property. Assignment of interest within the meaning of this paragraph
shall specifically include, but not be limited to, a conveyance or assignment of any portion of
the Developer's legal or equitable interest in the Property, as well as any assignment of the
Developer's rights to develop the Property under the terms and conditions of this Agreement.
F. In the event the Developer transfers title to the Property and is thereby divested
of all equitable and legal interest in the Property, the Developer shall be released from liability
under this Agreement with respect to any breach of the terms and conditions of this
Agreement occurring after the date of any such transfer of interest. In such event, the
succeeding property owner shall be bound by the terms of this Agreement.
G. Each and every term of this Agreement shall be deemed to be a material
element hereof. In the event that either party shall fail to perform according to the terms of
this Agreement, such party may be declared in default. In the event that a party has been
declared in default hereof, such defaulting party shall be given written notice specifying such
default and shall be allowed a period of ten (10) days within which to cure said default. In the
event the default remains uncorrected, the party declaring default may elect to: (a) terminate
the Agreement and seek damages; (b) treat the Agreement as continuing and require specific
performance or; (c) avail itself of any other remedy at law or equity.
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H. In the event of the default of any of the provisions hereof by either party which
shall require the party not in default to commence legal or equitable action against said
defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -
defaulting party's reasonable attorney's fees and costs incurred by reason of the default.
Nothing herein shall be construed to prevent or interfere with the City's rights and remedies
specified in Paragraph III.D of this Agreement.
I. Except as may be otherwise expressly provided herein, this Agreement shall
not be construed as or deemed to be an agreement for the benefit of any third party or
parties, and no third party or parties shall have any right of action hereunder for any cause
whatsoever.
J. It is expressly understood and agreed by and between the parties hereto that
this Agreement shall be governed by and its terms construed under the laws of the State of
Colorado and the City of Fort Collins, Colorado.
K. Any notice or other communication given by any party hereto to any other party
relating to this Agreement shall be hand -delivered or sent by certified mail, return receipt
requested, addressed to such other party at their respective addresses as set forth below;
and such notice or other communication shall be deemed given when so hand -delivered or
three (3) days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to: City Attorney's Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
If to the Developer: Charles H. Irwin
Fort Collins Lodge # 275
4820 South College Ave.
Fort Collins, CO 80525
Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees or
assigns, wishes to change the person, entity or address to which notices under this
Agreement are to be sent as provided above, such party shall do so by giving the other
parties to this Agreement written notice of such change.
L. When used in this Agreement, words of the masculine gender shall include the
feminine and neuter gender, and when the sentence so indicates, words of the neuter gender
shall refer to any gender; and words in the singular shall include the plural and vice versa.
This Agreement shall be construed according to its fair meaning, and as if prepared by all
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parties hereto, and shall be deemed to be and contain the entire understanding and
agreement between the parties hereto pertaining to the matters addressed in this Agreement.
There shall be deemed to be no other terms, conditions, promises, understandings,
statements, representations, expressed or implied, concerning this Agreement, unless set
forth in writing signed by all of the parties hereto. Further, paragraph headings used herein
are for convenience of reference and shall in no way define, limit, or prescribe the scope or
intent of any provision under this Agreement.
A.ID AS MFORM:
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THE CITY OF FORT COLLINS, COLORADO,
a Municipal Cor oration
B1--� at I
ity Manage/
DEVELOPER:
Fort Collins Lodge #275, Loyal Order of Moose
By: (1":
Charles H. Irwin, A ministrator/Manager