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HomeMy WebLinkAboutAFFINITY SUBDIVISION - Filed OA-OTHER AGREEMENTS - 2016-09-13WHEN RECORDED RETURN TO: City of Fort Collins Community Development and Neighborhood Services Department P.O. Box 580 Fort Collins, CO 80522-0580 AGREEMENT AND RESTRICTIVE COVENANTS AFFECTING REAL PROPERTY THIS AGREEMENT AND RESTRICTIVE COVENANTS AFFECTING REAL PROPERTY ("Agreement") is entered into this A" day of ',TyuE , 2016, by and between the CITY OF FORT COLLINS, COLORADO, a municipal corporation ("City"), and AFFINITY AT FORT COLLINS, LLC, a Washington limited liability company ("Owner"). RECITALS: A. The Owner owns certain real property located in the City of Fort Collins, County of Larimer, State of Colorado, more particularly described on Exhibit "A" attached and incorporated herein by reference (the "Property"); B. The Owner proposes constructing Affinity at Fort Collins, an age -restricted apartment community (the "Project"), on the Property; C. The City and Poudre School District (the "District") entered into an intergovernmental agreement effective April 21, 1998, (the "IGA") and still in effect at the time this Agreement is entered into and recorded, attached and incorporated herein by reference as Exhibit "B"; D. The IGA sets forth terms regarding the coordination between the City and the District with regards to, among other issues, exemptions to in lieu payments for development projects subject to recorded covenants permanently restricting the age of all residents of dwelling units such that the dwelling units may be classified as housing for older persons pursuant to Title VIH of the Civil Rights Act of 1968 (the Federal Fair Housing Act), as amended by the Fair Housing Amendments Act of 1988 (the Fair Housing Act) and The Housing For Older Persons Act; and E. The Owner desires to impose perpetual age restriction covenants on the Project dwelling units in order to qualify for the exemption to in lieu payments, and the City will realize a benefit to its older citizens who qualify for dwelling units in the Project. Methodology for Assessing In -Lieu Pavments a. The parties agree that the Methodology has been developed in a manner so as to fairly apportion the cost of acquiring school sites made necessary by residential development, and to ensure that any in -lieu payments will be used for the purposes of school site acquisition, expansion and development and capital facilities planning within the senior high school feeder attendance area boundaries that include the Land Development Project for which the payment is being made. All dedication requirements and in -lieu payments shall be based upon the School Planning Standards and the Methodology, as the same may be amended from time to time in accordance with subparagraph (b) below. b. The Standards and Methodology adopted pursuant to the provisions of this Agreement shall be updated annually from the date of its submission to the City. A copy of updated versions of Exhibits A and B, reflecting such changes, shall be furnished to the City within 30 days after its adoption by the School District, The City shall hold a public hearing before revising the in -lieu payments based upon any revisions to the Standards andlor the Methodology for Calculations (Exhibit B). 6. Collection Deposit. and Expenditure of in -Lieu Payments. a. All in -lieu payments collected by the City shall be properly identified and promptly deposited into a separate account held by the City for the benefit of the School District. The City shall remit to the School District, no less than quarterly, all funds it has collected and deposited into the account, less a two percent (2%) administrative fee. b. The School District shall deposit the funds remitted by the City into an interest - bearing account authorized by sections 24-75-601 to -605, C.R.S. The School District shall be the owner of the funds in the account. c The funds deposited into the account shall be earmarked and expended solely for the purposes of school site acquisition, expansion or development, or for capital facilities planning. When expenditures from the account are made for the acquisition, expansion or development of elementary or junior high school sites, or for capital facilities planning related to such sites, such expenditures shall be made only for sites located within the senior high school feeder attendance area boundaries that include the Land Development Project for which the payment was made. When expenditures from the account are made for the acquisition, expansion or development of high school sites, or for capital facilities planning related to such sites, the expenditures may be made for sites located anywhere within the city. Subject to the limitations contained in this Agreement, the time for, nature, method, and extent of such planning or development shall be within the sole discretion of the School District d Except as otherwise provided in this Agreement, any in -lieu payments which have not been used for the purposes of school site acquisition, expansion or development, or for Annual ReportAccounting. and Audit. a. The School District shall establish and maintain an accounting system to ensure that all in -lieu payments are expended in accordance with Section 6.c. above. b. The School District and the City shall cause an audit to be performed annually of the in -lieu payments collected and expended in accordance with this Agreement. The audit shall be conducted in accordance with generally accepted accounting principles for governmental entities and maybe part of any general audit annually conducted by the School District. A copy of said audit shall be furnished to the City. The cost of the audit shall be paid from the School District's general fund. c. At any time deemed necessary, the City may request an accounting from the chief financial officer of the School District concerning the expenditure of the in -lieu payments made to the School District. 9. Term. The term of this Agreement shall commence on the effective date hereof and continue for a period of ten years thereafter unless the City repeals the implementing ordinance adopted by the City concurrent with this Agreement. This Agreement shall automatically renew for an additional ten years unless one party notifies the other of intent to non -renew at least 30 days prior to expiration. Should the Agreement expire, the provisions of Section 64 pertaining to refunds shall remain in effect until fully implemented. 10. Miscellaneous. a. Faith and Credit. Neither party shall extend the faith or credit of the other to any third person or entity. b. Amendments. This Agreement may be amended only by mutual agreement of the parties and shall be evidenced by a written instrument authorized and executed with the same formality as accorded this Agreement. c. Notice. Any notice required by this Agreement shall be in writing. If such notice is hand delivered or personally served, it shall be effective immediately upon such delivery or service. If given by mail, it shall be certified with return receipt requested and addressed to the following addresses: City of Fort Collins P.O. Box 580 300 LaPorte Avenue Fort Collins, Colorado 80522-0580 Attention: City Manager V] IN WITNESS WHEREOF. the parties hereto have executed this Agreement wa .ich shall be in full farce and effect the day and year first above written_ THE CITY OF FORT COLLINS, COLORADO A Municipal Coj,7tj4n and Home R ayor ATTEST: City Clerk Date: Date: � - I-?? ;A4ppred as to foDate:ity . tt me� POUDRE SCHW"IS BY: 2f i' z Board of Educatio Ff - Date: 6hl(?A ATTEST �� Date:_ .__ . Secre Approved as to forrn. _ Date: School District Attorney Exhibit B METHODOLOGY FOR CALCULATING LAND DEDICATION REQUIREMENTS AND IN -LIEU PAYMENTS Based on the School District Planning Standards contained in Exhibit A, calculation of land dedication or in -lieu fees use the following procedures: Elementary School Procedure: The elementary student yield per dwelling unit is .2549. The amount of land required per student (based on a 10 acre school site) is .018 acre. The acreage required per dwelling unit is .2549 times .018, or .004588 acre. To convert the land dedication requirement into in -lieu fees, the acreage is multiplied by the average developed land value of $44,000 per acre, or $201.87, Calculation: .2549 X .018 = .004588 acres X $44,000 = $201.87 Junior High School Procedure: The junior high school student yield per dwelling unit is .1066. The amount of land required per student (based on a 30 acre school site) is .033 acre. The acreage required per dwelling unit is .1066 times .033, or .003518 acre. To convert the land dedication requirement into in -lieu fees, the acreage is multiplied by the average developed land value of $44,000 per acre, or $154.79. Calculation: .1066 X .033 = .003518 acres X S44,000 = S154.79 High School Procedure: The high school student yield per dwelling unit is .0934. The amount of land required per student (based on a 55 acre school site) is .031 acre. The acreage required per dwelling unit is .0934 times .031, or .0029 acre. To convert the land dedication requirement into in -lieu fees, the acreage is multiplied by the average developed land value of $44,000 per acre, or $127.60. Calculation: .0934 X .031 = .0029 acres X $44,000 = $127.60 Total: The total land dedication or in -lieu fees required per dwelling unit is: EEIemnent,ary e or Land Dedication Per DwellingUnit Land In -Lieu Fees School 004588 acre or $201, 87 School 003518 acre or $154.79 l .00290 acre or $127.60 Total .011 acre OR $484.26 NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which the Owner hereby acknowledges. City and Owner hereby agree as follows: 1. Definitions 1.1 Eligible Adult Person. The term "Eligible Adult Person" shall mean a person who is fifty-five (55) years of age or older residing in a Unit, spouses/companions of Eligible Adult Persons who are over forty (40) years of age, or any individual over the age of eighteen (18) years of age employed by the Owner for the purpose of managing or staffing the Project. 1.2 Owner. The term "Owner" shall mean Affinity at Fort Collins, LLC. a Washington limited liability company, or its legal representatives, successors and permitted assigns. 1.3 Unit. The term "Unit" shall mean a residential unit to be occupied by an Eligible Adult Person residing in the Project. 2. Restrictive Covenants 2.1 Use of Project. The Project is intended to be and shall be operated as an age -restricted apartment community for persons fifty-five (55) years of age or older consistent with applicable federal and state laws, including the Federal Fair Housing Act and Housing for Older Persons Act. 2.2 Project Residents. Except as expressly authorized in this Article 2, only Eligible Adult Persons and spouses/companions of Eligible Adult Persons who are forty (40) years of age or older shall be allowed to reside in any Unit. 2.3 Temporary Guests. Visits by nonresidents who are less than fifty-five (55) years of age as guests of an Eligible Adult Person shall not exceed seven (7) nights in any three (3) month period without prior written permission by the Owner. 3. Term 3.1 Perpetual Covenants. Unless terminated earlier pursuant to Section 3.2 below, the covenants set forth in Article 2 shall be perpetually binding. 3.2 Early Termination. This ,agreement and the covenants contained herein may be terminated by the Owner at any time by a payment in lieu v, hich shall be paid to the Poudre School District in the manner and the amount specified by the IGA or other agreement or methodology in effect at the time the Owner desires to terminate this Agreement and the covenants. The City and/or school district agree to execute a Release of this Agreement and the covenants at such time as the applicable payment in lieu required for the Project is paid in full. 4. Miscellaneous. 5.1 Covenants Running With the Land. This Agreement and the covenants contained herein shall run with the Property. 5.2 Binding Effect. This Agreement and the covenants contained herein shall apply to, inure to the benefit of, and be binding upon, the Owner and its heirs, legal representatives, successors and permitted assigns. 5.3 Effect of Covenants. The City is deemed the beneficiary of the terms and provisions of this Agreement and of the restrictions and covenants running with the land for and in its own right and for the purpose of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit such covenants have been provided. The covenants in favor of the City shall run without regard to whether the City has been, remains, or is an owner of any land or interest therein in the Project. 5.4 Verification of Compliance. The City shall have the right to verify Owner's compliance with the terms of this Agreement. The Owner agrees to cooperate with the City in verifying Owner's compliance by providing the City reasonable access to the Project and all records pertinent to the age of residents in each Unit during normal working hours upon no less than twenty-four (24) hours written notice from the City 5.5 Default; Enforcement. Failure or delay by the Owner to perform any term or provision of this Agreement constitutes a default under this Agreement. The Owner shall not be deemed to be in default if the Owner cures, corrects or remedies such default within sixty (60) days after receipt of a written default notice from the City. The City may not institute proceedings against the Owner in default until such time for cure, correction, or remedy of a default has expired. In the event of a default, the City may seek specific performance of this Agreement, in addition to other remedies as provided by law, and shall be entitled to collect its reasonable costs of enforcement. 5.6 Concurrent Remedy. No right or remedy herein conferred on or reserved to City is exclusive of any other right or remedy herein or by law or equity provided or permitted; but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing by law or in equity or by statute or otherwise, and may be enforced concurrently therewith or from time to time. 3 D. I Waiver. No covenant or condition of this Agrccmcnt can be waived except by the written consent of the City, signed by the appropriate authorities of the City. Forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of the covenant or condition to be performed by the Owner. A waiver of one covenant or condition does not grant• or imply a waiver of any other covenant or condition. Each party shall be entitled to invoke any remedy available to it under this Agreement or by law or in equity despite said forbearance or indulgence. 5.8 Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of enmpetent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. In the event that all or any portion of this Agreement is found to be unenforceable, this Agreement or that portion which is found to be unenforceable shall be deemed to be a statement of intention by the parties, and the parties further agree that in such event, and to the maximum extent permitted by law, they shall take all steps necessary to comply with such procedures or requirements as may be necessary in order to make valid this Agreement or that portion which is found to be unenforceable. 5.9 Notices and Demands Between the Parties. All notices and demands between the City and the Owner shall be in writing and shall be given either by personal service, delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, or mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to the City and the Owner as follows: To City: ATTN: Director Planning and Zoning Department City of Fort Collins PO Box 580 Fort. Collins, CO 80522-0580 With a copy to: ATTN.: City Attorney City of Fort Collins PO Box 580 Fort Collins. CO 80522-0580 To Owner: Affinity at Fort Collins 120 W. Cataldo Ave.. Suite 100 Spokane, WA 99201 4 Notices personally delivered or delivered by document delivery service shall be deemed effective upon receipt. Notices mailed shall be deemed effective on the fifth business day following deposit in the United States mail. Such written notices and demands shall be sent in the same manner to such other addresses as either party may from time to time designate by mail. 5.9 Captions. The captions inserted in this Agreement are for convenience only, and they in no way define, limit or otherwise describe the scope or intent of this Agreement, and shall not be used to interpret or construe this Agreement. 5.4 Governing Law. This Agreement shall be governed by the laws of the State of Colorado. 5.5 Venue. If either party to this Agreement initiates any legal or equitable action to enforce the terms of this Agreement, to declare the rights of the parties under this Agreement, or which relates to this Agreement in any manner, the proper venue for any such action is the Larimer County, Colorado District Court. 5.6 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 5.7 Entire Agreement and Amendments. This Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties with respect to all or any part of the subject matter hereof. All amendments and modifications hereto must be in writing and signed by the appropriate authorities of the City and the Owner. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date of the most recent signatory. OWNER: Date: AFFINITY AT FORT COLLINS, LLC a Washington limited liability company Name: Pvb' .IG 6 S i-V Title: µp,j A4ek 9 ATTEs'r: Title: GC STATE OF k1 MS A%,JLTO J COUNTY OF S(3�ht�iG +°tJBLtG � 0 )Ss. fr'"'...p... e Subscribed and sworn to before me this 'T-t day of `�,,��. , 2016, by I.JI LV— UC ELU , as LA A Lt AA "- of Owner. WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: C O - h CITY: Date: (4.21. 1(0 ATTEST: fm z City Clerk ia,z;0C APPROVED AS TO FORM: Assistant ity Attorney Notary Public THE CITY OF FORT COLLINS, COLORADO a Municipal Co ration By: Darin A. Atteberry City Manager SEAL EXHIBIT A LEGAL DESCRIPTION J R ENGINEERING PROPERTY LEGAL DESCRIPTION A PARCEL OF LAND LOCATED IN THE SOUTHEAST QUARTER OF SECTION 32. TONVNSHIP 7 NORTH. RANGE 68 NVEST OF THE 6TH PRINCIPAL NIFRIDI.aN, CITY OF FORT COLLINS. COUNTY OF LARIMER. STATE OF COLORaDO. BEING MORE PARTICULARLY" DESCRIBED AS FOLLOWS: BASIS OF BEARINGS: THE NORTHERLY LINE OF THE SOUTHEAST QUARTER OF SECTION 32, TOWNSHIP 7 NORTH, RANGE 68 `VEST OF THE 6M PRINC'IP.AL. MERIDIAN BEARS S 89` 21'46" E: BEGINNING AT THE NORTHWEST CORNER OF SAID SOUTHEAST QUARTER OF SECTION 32: THENCE S 8V 21'46" E, ALONG THE NORTHERLY LINE OF SAID SOUTHEAST QUARTER OF SECTION 32, A DISTANCE OF 854.57 FEET. - THENCE S 0Y 33'57"' W. A DISTANCE OF 421.60 FEET: THENCE S 891 56'27'' W. A DISTANCE OF 851.76 FEET TO A POINT ON THE WESTERLY LINE OF SAID SOUTHEAST QUARTER OF SECTION 32: THENCE N 00 11'l1" E.. ALONG SAID'NISTERLY LINE. A DIST.ANC'E OF 431.97 FEET TO THE POINT OF BEGINNING. WHICH ABOVE DESCRIBED LOT CONTAINS AN OVERALL CALCULATEDAREA OF 364.084 SQUARE FEET OR 8.3582 ACRES. MORE OR LESS. w EXHIBIT B INTERGOVERNMENTAL AGREEMENT CONCERNING LAND DEDICATIONS OR PAYMENTS IN LIEU FOR SCHOOL PURPOSES THIS AGREEMENT is entered into by and between the Poudre School District ("School District"), a political subdivision of the State of Colorado, and the City of Fort Collins, Colorado ("City"), a municipal corporation and home rule city of the State of Colorado, to be effective as of the 21 st day of April, 1998 ("Effective Date"). RECITALS A. Pursuant to Article XX, Section G ofthe Colorado Constitution and Colorado Revised Statute Section 31-23-202, as amended, the Council of the City, upon recommendation of the Planning and Zoning Board has adopted the goals, policies, and supporting data of the Fort Collins Comprehensive Plan in order to plan for the orderly growth of the City. B. Local governments are encouraged and authorized to cooperate or contract with other units ofgovernment, pursuant to section 29-20-105, C.R.S., for the purpose of planning or regulating the development of land, including, but not limited to, the joint exercise of planning, zoning, subdivision, building, and related regulations. C Section 22-54-102(3)(a), C.R.S., authorizes local governments to cooperate with school districts through intergovernmental agreements to fund, construct, maintain, or manage capital construction projects, provided that funding is provided by a source of local government revenue that is otherwise authorized by law. D. The growth in residential land development in the City necessitates the building of additional school facilities and/or improvements to existing school facilities in order to accommodate the corresponding increases in the student population. Requiring, in connection with new construction within the City, the dedication of sites and land areas for schools, or payments in lieu thereof ("in -lieu payments") will help to meet such demand. E. The City is authorized to adopt appropriate ordinances and regulations for the purpose of promoting and preserving the public health, safety, and welfare of the citizens of the City. F. Cooperating with the School District to require the dedication of school sites or in lieu payments will promote and preserve the public health, safety, and welfare of the citizens of the City. G. In order to provide adequate school facilities to serve new residential land developments, it is imperative that the School District be consulted regarding land dedication or in -lieu payments for school sites in order to achieve rational and cost-effective planning. H. School land dedication or in -lieu payments serve to implement the Fort Collins Comprehensive Plan, by making provisions for public improvements in a manner appropriate for a Determination of Land Dedication or In -Lieu Payment Requirements. a. Beginning on the effective date of the implementing ordinance adopted by the City concurrent with the approval of the Agreement, the City agrees to require its chief building official to issue residential building permits in accordance with the conditions set forth in this section, with respect to any Land Development Project taking place on any building lot located within the City. b. The City agrees that as a condition of issuing any residential building permit for the construction of one or more dwelling units within a Land Development Project, it will: (i) require proof that the appropriate reservation of land for future dedication to the School District has been made in accordance with Section 3 below, or (ii) collect on behalf of the School District, an in -lieu payment, in accordance with Section 4 below. This requirement shall apply to each residential building permit within a Land Development Project for which application is made on or after the effective date of this Agreement, subject only to the exemptions contained in Section 7 below. C. Prior to or at the time that any proposed plans are submitted to the City for any Land Development Project , the Superintendent of the School District or a designee will meet with the party responsible for land dedication or in -lieu payments ("Developer"), for the purpose of determining whether the School District desires the dedication of any land for schools within the Project, consistent with the School Planning Standards. In the event the School District requests a dedication of land that, based upon the application of the Standards and Methodology, results in a parcel that in itselfwouid be of insufficient size for a school site, the School District agrees to discuss with the Developer: i. the potential reservation by the Developer or acquisition by the School District of the balance of the property needed to provide an adequate site; or ii. an in -lieu payment as provided in this Agreement in the event the dedication of sites and land areas is not deemed feasible or in the best interests of the School District. d. Upon formal submission of a proposed Land Development Project to the City, the City shall submit the Developer's proposal to the School District for its review, comments, and recommendations concerning the adequacy of school sites and facilities, within the context of the proposed Land Development Project. The School District shall promptly review the proposal and shall promptly submit its comments and recommendations to the City. e. The School District shall make a determination concerning the impact of the Project upon the adequacy of school sites and facilities based upon the School Planning Standards.