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Home My WebLink About2021-099-10/19/2021-APPROVING FIRST ADDENDUM TO AGREEMENT TO SECURE PUBLIC BENEFITS FOR THE NORTHFIELD DEVELOPMENT (2)1 2165.4700; 1155190 FIRST ADDENDUM TO AGREEMENT TO SECURE PUBLIC BENEFITS FOR THE NORTHFIELD DEVELOPMENT THIS FIRST ADDENDUM TO AGREEMENT TO SECURE PUBLIC BENEFITS FOR THE NORTHFIELD DEVELOPMENT (this “Addendum”) is made and entered into this ____ day of ______________, 2021, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation (the “City”) and DFC NORTHFIELD, LLC, a Florida limited liability company (the “Developer”), and affiliate Northfield Land, LLC, a Colorado Limited liability company (the “Affordable Developer”). WITNESSETH: WHEREAS, the City and Developer previously entered into that certain Agreement to Secure Public Benefits for the Northfield Development (the “Public Benefits Agreement”) dated June 2, 2020, and recorded on October 20, 2020, at Reception No. 20200085794 in the real property records of Larimer County, Colorado with respect to that 55.263 acre property legally described in the Northfield Final Plat, City of Fort Collins, recorded on April 28, 2020, at Reception No. 20200029164 (the “Property”); and WHEREAS, the Affordable Developer has purchased Tracts U and V from within the Property from the Developer, and the Affordable Developer is under contract to sell Tracts U and Tract V to Mercy Housing Mountain Plains, a Colorado nonprofit corporation (“Mercy Housing”); and WHEREAS Tracts U and V are part of a replat that is pending City development-review approval, and pursuant to the replat Tracts U and V will be renamed Tracts A and B of Northfield Commons (“Tracts A and B”); and WHEREAS, the Affordable Developer and Mercy Housing intend that Tracts A and B be developed to include at least 65 dwelling units that will be offered at rents not exceeding 30% of the adjusted income of a household whose annual income equals 80% of Area Median Income (“AMI”) for the Fort Collins/Loveland Metropolitan Statistical Area, as determined by the Secretary of Housing and Urban Development, with adjustments for the number of bedrooms in the unit, and which shall be made available for occupancy by individuals or families whose income is 80% or less of AMI, with adjustments for family size, provided that the average of all rents in at least 65 dwelling units on Tracts A and B must be at or below 60% AMI, using the averaging methodology adopted by the Colorado Housing and Finance Authority (collectively, the “Mercy Housing Affordable Units”); and WHEREAS, attempts by Mercy to finance the Mercy Housing Affordable Units have identified the need for new terms to be added to the Public Benefits Agreement to address lender protections in the unlikely event of a foreclosure or deed in lieu of foreclosure of the Mercy Housing Affordable Units; and WHEREAS, to accommodate the financing and planned development of the Mercy Housing Affordable Units, the City, the Developer, and the Affordable Developer hereby agree to the supplementation of the Public Benefits Agreement as described in this Addendum. EXHIBIT A 2 2165.4700; 1155190 NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is agreed as follows: 1. Supplementation of Section I.C.1. The following language shall supplement Section I.C.1 of the Public Benefits Agreement: If there is an event of foreclosure (or deed in lieu thereof) of a first priority deed of trust or similar security instrument lien encumbering title to Tracts A and B, which instrument secures a loan made to Developer or its successor by an unrelated third party lender (such unrelated third party lender and its successors or assigns, whether as assignee of the lien or successor in title to Tracts A and/or B through foreclosure or deed in lieu of foreclosure, a “Lender”), and such loan was made for the purpose of constructing and/or operating some or all of the Required Affordable Units, then such event shall be referred to herein as a “First Priority Lender Foreclosure”. In the event of a First Priority Lender Foreclosure, the average of all rents in at least 65 dwelling units on Tracts A and B may be adjusted upward, but must remain at or below 80% AMI, using the averaging methodology adopted by the Colorado Housing and Finance Authority. Each such Lender is an intended third-party beneficiary hereunder with regard to this provision. 2. 30-Year Covenant. Section I.C.3 of the Public Benefits Agreement requires the Developer to execute and record a “20-Year Covenant” in the real property records of Larimer County, as defined in the Public Benefits Agreement. In consideration for the Supplementation of Section I.C.1. contained above, the Affordable Developer agrees to extend the term of the “20- Year Covenant” to 30 years as set forth more fully below. a. Commitment of Affordable Developer. Affordable Developer hereby agrees (i) to develop or cause to be developed the Mercy Housing Affordable Units on Tracts A and B, and (ii) that, for 30 years following the date of issuance of the first certificate of occupancy for the building(s) containing the Mercy Housing Affordable Units, Tracts A and B may only be used to provide the Mercy Housing Affordable Units and related ancillary or accessory uses (“Affordable Developer’s Commitment”). b. Affordable Developer’s Commitment to Run with Title. Affordable Developer’s Commitment shall constitute a covenant running with title to the Tracts A and B as a burden thereon, for the benefit of, and enforceable by the City, and Affordable Developer’s Commitment shall bind Affordable Developer and all subsequent owners of the Mercy Housing Affordable Units. Each and every conveyance of Tracts A and B, for all purposes, shall be deemed to include and incorporate by this reference, the Affordable Developer’s Commitment, even absent specific reference thereto in any subsequent document of conveyance of the Mercy Affordable Units. c. City Acknowledgement. The City agrees that execution and recordation of this Addendum satisfies the Developer’s obligation under Section I.C.3 of the Public Benefits Agreement to record a 20-Year Covenant. The Parties agree that nothing in this Section 2 is intended to conflict with or supersede the provisions of Section 1 above. EXHIBIT A 3 2165.4700; 1155190 3. Prior Provisions Effective. As supplemented herein, the terms of the Public Benefits Agreement shall remain in full force and effect without limitation. [Remainder of page left intentionally blank. Signature pages follow.] EXHIBIT A 4 2165.4700; 1155190 IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of the day and year first written above. CITY: CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: _______________________________ Kelly DiMartino, Interim City Manager ATTEST: ____________________________ Tammi Pusheck, Interim City Clerk APPROVED AS TO CONTENT: ___________________________ City Engineer APPROVED AS TO FORM: _____________________________ John R. Duval, Deputy City Attorney EXHIBIT A 5 2165.4700; 1155190 DEVELOPER: DFC NORTHFIELD LLC, a Florida limited liability company, by DF Capital Management Direct, LLC, a Florida limited liability company, its manager By: _____________________________ Christopher Butler, Manager STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing First Addendum to Agreement to Secure Public Benefits for the Northfield Development was acknowledged before me this ___ day of ___________, 2021, by Christopher Butler, as manager of DF Capital Management Direct, LLC, as manager of DFC Northfield, LLC. WITNESS my hand and official seal. _____________________________ Notary Public My commission expires: ______________ EXHIBIT A 6 2165.4700; 1155190 AFFORDABLE DEVELOPER: NORTHFIELD LAND LLC, a Colorado limited liability company By: _____________________________ Jason Sherrill, Manager STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing First Addendum to Agreement to Secure Public Benefits for the Northfield Development was acknowledged before me this ___ day of ___________, 2021, by Jason Sherrill, as manager of Northfield Land, LLC. WITNESS my hand and official seal. _____________________________ Notary Public My commission expires: ______________ EXHIBIT A