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HomeMy WebLinkAboutLOT 1, HARMONY COMMONS - FDP - FDP170028 - SUBMITTAL DOCUMENTS - ROUND 2 - LETTER OF INTENTPUBLIC IMPROVEMENT COST SHARING AGREEMENT This PUBLIC IMPROVEMENT COST SHARING AGREEMENT (this "Agreement") is made and entered into as of May 8, 2017 by HARMONY COMMONS, LLC, a Colorado limited liability company, and/or its assigns ("HC") and HARMONY TECHNOLOGY PARK, LLC, a Colorado limited liability company, and/or its assigns ("HTP''). RECITALS A. HC is the current owner of the property legally described as follows: Lot 1, HARMONY COMMONS, CityofFort Collins, CountyofLarimer, State of Colorado hereinafter referred to as "Lot 1 "; and Lot 6, HARMONY COMMONS, City ofFort Collins, County of Larimer, State of Colorado hereinafter referred to as "Lot 6". B. HTP is the current owner of the property legally described as follows: Lot 7, HARMONY COMMONS, City ofFort Collins, County of Larimer, State of Colorado hereinafter referred to as the "Lot 7". C. Lot 1, Lot 6 and Lot 7 are collectively referred to as the "Lots". D. There is a twenty (20) foot wide access easement where Lot 7 meets Lot 1 and Lot 6 that runs north-south for the entire north-south length of the Lots as more fully shown on the Plat of Harmony Commons recorded with the Larimer County Clerk and Recorder at Reception No. 20160035279 (the "Access Easement"); and E. The City of Fort Collins requires improvements on the Access Easement in the form of an eight (8) foot wide bike/pedestrian path that connects Harmony Road to Timberwood Drive as shown in the Harmony Technology Park 7th Amendment ODP (the "Public Improvement"); and F. The City of Fort Collins requires the Public Improvement to be constructed and completed on the Access Easement prior to the issuance of a certificate of occupancy for future 1 improvements on Lot 7 (the "Condition"); and G. HTP, owner of Lot 7, has agreed to take responsibility for initial construction of the Public Improvement in satisfaction of the Condition at such time as the Condition must be satisfied, subject to agreement with HC regarding sharing in the costs of the initial construction of the Public Improvement; and H. HC and HTP desire to set forth the sharing of costs concerning the design and construction of the Public Improvement. AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, HC and HTP agree as follows: 1. Recitals. The recitals set forth above are hereby incorporated as substantive provisions of this Agreement. 2. Payment. HC and HTP have agreed to share the costs associated with the initial design and construction ofthe Public Improvement as set forth in this Section 3. For the purposes of this agreement, the parties agree that the anticipated cost of the Public Improvement will be the sum of Twenty-Two Thousand Dollars ($22,000.00) (the "Total Cost"), whether it be more or less at the time that HTP constructs the Public Improvement. Thus, HC hereby agrees to pay to HTP, and HTP hereby agrees to accept from HC, the sum of Eleven Thousand Dollars ($11,000.00), which represents HC's share of the Total Cost (as the owner of Lot 1 and Lot 6). Therefore, the Total Cost is split between each lot as follows: a. HTP as the owner of Lot 7 shall be responsible for the sum of Eleven Thousand Dollars ($11,000.00), or fifty percent (50%) of Total Cost; b. HC as the owner of Lot 1 shall be responsible for the sum of Five Thousand, Five Hundred Dollars ($5,500.00), or twenty-five percent (25%) of the Total Cost; and c. HC as the owner of Lot 6 shall be responsible for the sum of Five Thousand, Five Hundred Dollars ($5,500.00), or twenty-five percent (25%) of the Total Cost. The above sums will be due to HTP within thirty (30) days of this Agreement. Notwithstanding anything to the contrary herein, if the actual costs to construct the Public Improvement exceed the Total Cost HC shall have no obligation to reimburse HTP for such overages and HTP shall pay the same at its sole costs and expense, and if the actual costs to construct the Public Improvement are less than the Total Cost, HTP shall have no obligation to refund any overpayments to HC, it being acknowledged and agreed that the amount being paid by HC 2 hereunder is final, and not subject to reconciliation once the actual Total Cost of the Public Improvement is ascertained. 3. Release, Indemnification and Liens. By accepting the sums outlined in Paragraph 3 above, HTP specifically agrees that the current and/or future owner(s) of Lot 1 and Lot 6 have fulfilled any and all obligations including, but not limited to, financial obligations, that relate or are in any way connected to the initial construction of the Public Improvement on the Access Easement; provided, however, that nothing contained in the foregoing shall be construed to relieve HC and/or the future owner(s) of Lot 1 and/or Lot 6 from any ongoing maintenance and/or repair obligations that may be such owner(s)' responsibility once the Public Improvement is initially installed. HTP hereby releases HC from any responsibilities relating to the initial construction of the Public Improvement. HTP shall indemnify and hold HC and/or the owners of Lot 1 and Lot 6 free and harmless from any cost, expense, claim, liability, or damages (including, without limitation, reasonable attorney fees) that HC or the owner of Lot 1 or Lot 6 may incur as a result of any claim that HC and/or the owners of Lot 1 or Lot 6 are responsible for the initial construction of the Public Improvement. In the event a mechanic's lien is filed against Lot 1 or Lot 6 as a result of the initial construction of the Public Improvement being undertaken by HTP hereunder, HTP shall promptly cause such lien to be released by promptly paying the same or posting or depositing any necessary cash or bond to release such lien pending final resolution of the dispute. 4. Notices. All notices provided for under this Agreement shall be in writing, signed by the party giving the same and shall be deemed properly given and received when actually delivered and received or three business days after mailed, if sent by registered or certified mail, postage prepaid, addressed to the party to receive the notice, at the address set forth below, or at such other address as either party may notify the other of in writing: HC: Harmony Commons, LLC 3528 Precision Drive, Suite 100 Fort Collins, CO 80528 Attn: Kevin Brinkman Email: kevin. brinkman@brinkmanpatiners.com with a copy to: Gast Johnson & Muffly, PC 323 S. College Avenue, Suite 1 Fort Collins, CO 80524 Attn: Ryan S. Thorson Email: rthorson@gjmlawfinn.com 3 HTP: Hannony Technology Park, LLC c/o MA VDevelopment Company South State Commons I 2723 South State Street, Suite 250 Ann Arbor, MI 48104 Attn: Robert A. Aldrich Email: raldri ch@m?-vd. com with a copy to: Robinson Waters & O'Dorisio, P .C. 1099 - 18th Street, Suite 2600 Denver, CO 80202 Attn: Louise Betcher Staab Email: lstaab@rwolaw.com 5. Term. This Agreement shall remain in effect for a period of four (4) months after the Public Improvement has been constructed and completed as required by the City of Fort Collins. 6. Assignment. This Agreement, and all rights and obligations thereto, may be assigned to any person or entity which owns a Lot, and the parties will cause their respective rights and obligations hereunder to be transferred to and assumed by any future owner of a Lot. 7. Counterparts. This Agreement may be executed in one or more counterparts with the same effect as if all signatories had signed the same document. All counterparts must be construed together to constitute one document. 8. Choice of Law and Venue. Each and every tenn, provision or condition in this Agreement is subject to and shall be construed in accordance with the provisions of Colorado law. Venue for any action or proceeding arising out of, or relating in any way to this Agreement, or the breach thereof, shall be in the Colorado District Court for County of Larimer, Colorado. 9. Integration. This Agreement is intended as the complete integration of all understandings between the parties hereto with respect to the costs associated with the Public Improvement, and no improvements outside of the Access Easement. No prior or contemporaneous addition, deletion or other amendment shall have any force or effect, unless embodied herein in writing. No subsequent novation, renewal, addition, deletion or other amendment hereto shall have any force or effect, unless embodied in a written amendment or other agreement executed by the parties and signed by the signatories to the original Agreement. 1 0. Successors and Assigns. This Agreement and any amendments shall be binding upon the parties, their successors and permitted assigns. 4 11 . Invalidity. If any provision, term or part of this Agreement is held to be invalid, illegal, unenforceable or in conflict with any law of the State of Colorado, the validity, legality and enforceability of the remaining portions or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provision held to be invalid IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date set forth above. HC: Date: _:5---'--/8_,__/!-+-J __ _ HTP: Date: .t(1 /17 HARMONY COMMONS, LLC, a Colorado limited liability company By: Brinkman Entity Management, LLC, a Colorado limited liability company !::.~·~ Kevin Brinkman, Manager HARMONY TECHNOLOGY PARK, LLC, a Colorado limited liability company By: Vlasic Properties, L.L.C., 5 a Michigan limited liability company Its Sole Member By: Vlasic Development, L.L.C., a Michigan limited liability company, successor by conversion to M.A.V. Development Company, a Michigan corporation, ItsM~e: . . By: ~ 0 .a/otj__ Robert A. Aldrich, President