HomeMy WebLinkAboutKENWOOD HEIGHTS BLOCK 4 LOTS 10 AND 11 1124 WEST MULBERRY STREET - Filed DA-DEVELOPMENT AGREEMENT - 2011-05-25RECEPTION#: 20110028815, 05/16/2011 at
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Scoff Doyle, Larimer County, CO
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement"), is made and entered
into this 2$ day of 201 t , by and between the CITY OF FORT
COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City";
and Jason D. Hanson and Nicole R. Hanson, individuals, 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:
KENWOOD HEIGHTS, Block 4, Lots 10 and 11, located in Section 11, Township
7 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer,
State of Colorado.
WHEREAS, the Developer desires to develop the Property (change of use and
remodel) 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 made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and
will further require the installation of certain improvements primarily of benefit to the
Property and not to the City of Fort Collins as a whole; 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 utilities and other municipal improvements
in connection with the development of 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:
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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 appearance of the Property caused by, or on behalf of, the Developer
with the intent to construct improvements thereon.
II. Special Conditions
A. Streets.
1. in accordance with Section 24-95 of the City Code the Developer is
responsible for improving the alley adjacent to the Property prior to the issuance of the
first building permit. However, the parties agree that the construction of this alley can be
delayed until such time as the City deems the improvements necessary. The need for
the Developer to either construct the improvements or 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 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/or redevelopment of the Property. At such
time as a change is proposed to the Property, the City can, at its discretion, reevaluate
the need for the improvements required by the City Code and the Developer and City
shall enter into a new Development Agreement describing such requirements as may
be necessary.
2. In accordance with the Section 3.6.1(B) of the Land Use Code
("LUC") and Sec 24-95 of the City Code, the local street portion of right-of-way shall be
dedicated by the Developer to the City along Mulberry Street and Shields Street
frontages to meet the City's constrained Arterial Street right-of-way section for the future
installation of bike -lanes and sidewalk improvements as identified in the City's adopted
Capital Improvement Plan. The Developer is not required to build any of these
improvements, but is required to provide said dedication of the local street portion of
right-of-way prior to the issuance of a certificate of occupancy, whether temporary or
permanent for the Property. In recognition of the Developer's inability to provide
dedication of right-of-way in accordance with the requirements set forth in Section
2.2.3(C)(3)(d) of the LUC, the following procedure shall apply to the Developer's
obligation for the dedication of the local street portion of right-of-way and shall be
complied with prior to the issuance of a certificate of occupancy:
a. The City shall issue to the Developer a temporary
certificate of occupancy ("TCO"). The TCO shall be valid
for a period of eighteen (18) months and no longer, unless
otherwise agreed to in writing by the City. Unless
extended, the TCO shall expire automatically at the end of
its term and any occupation of the Property thereafter shall
be unlawful; and the TCO may so expressly provide.
b. Upon the Developer delivering to the City the deed of
dedication for the local street portion of right-of-way along
Mulberry Street and Shields Street to meet the City's
constrained Arterial Street right-of-way in conformance with
the requirements set forth in Section 2.2.3(C)(3), the City
shall issue a full certificate of occupancy ("CO").
C. In the event the Developer fails to deliver to the City the
deed of dedication during the time period in which the TCO
is valid, the City shall have the right to order the Developer
to cease occupation of the property, and the Developer
hereby agrees to, upon receipt of such order, promptly
vacate the Property.
d. The Developer acknowledges that the City will include
conditions in the TCO that outline the requirements set
forth in this paragraph II.A.2. In addition, the obligations of
the City contained in this paragraph II.A.2 are not intended
to supersede the rights of the City under its purview
pertaining to building permit review. The City reserves the
right to withhold a TCO or CO (as applicable) due to non-
performance of other items contained in this Agreement.
e. The Developer's fulfillment of the obligations contained in
this paragraph are considered in full satisfaction of Sec.
24-95 of the City Code pertaining to the Developer's
obligations towards Mulberry Street and Shields Street and
no financial or performance obligations pertaining to street
improvements on Mulberry Street or Shields Street is
required in conjunction with this Development. Any future
need for the Developer to either construct these
improvements or to provide the City with funds for future
improvements shall be evaluated in connection with any
changes to the Property, such as, but not limited to, the
expansion of the existing use 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/or redevelopment of the Property. If a change
is proposed to the Property, then the City can, at its
discretion, reevaluate the need for these improvements
and the Developer and the City shall enter into a new
Development Agreement describing such requirements as
may be necessary.
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
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 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 or the Land Use Code 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, including any subsequent
replatting of all, or a portion of the Property. This Agreement shall also 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 everyterm 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.
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: Jason and Nicole Hanson
217 Rattlesnake Road
Livermore, CO 80536
With a copy to: Tim Goddard
125 S. Howes St. #600
Fort Collins, CO 80521
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 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.
THE CITY OF FORT P(PLLINS, COLORADO,
a Municipal Corporati n,
1-32
uny manager
1
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City Clerk pp4
APPROVED AS TO CONTENT:
�,, Cit ngin r
n
APPROVED TO COW:-,
Deputy City Attorney
DEVEL ER:
By:�..._-.�—
Ja on D. Hanson, an individual
By:
Nicole R. Hanson, an individual
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of
2011, by Jason D. Hanson and by Nicole R. Hanson.
Notary Public
My Commission Expires:
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