Loading...
HomeMy WebLinkAboutPENNY FLATS - Filed OA-OTHER AGREEMENTS - 2007-04-20RECEIVED Upon recordation return to `/�� y Ingrid Decker W 1 City Attorney's Office City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 OPTION AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY THIS AGREEMENT is made and entered into thisday of �2006, by and between THE CITY OF FORT COLLINS, a Colorado municipal corporation, a address is 300 LaPorte Avenue, For Collins, Colorado, 80521 ("Seller"), and PENNY FLATS, LLC, a Colorado limited liability company, whose address is 1811 Pearl Street, Boulder, Colorado 80302 ("Purchaser"). WITNESSETH: For and in consideration of the promise of the Purchaser to purchase and of the Seller to sell the real estate described in paragraph 1 hereinafter, and other good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, the parties agree to be legally bound whereby the Seller agrees to sell and the Purchaser agrees to purchase the said real estate on the terms and conditions hereinafter set forth. 1. Description of Real Property. The real estate which is the subject matter of this Agreement, is that certain parcel of real property located in the County of Larimer, State of Colorado, constituting approximately 2.802 acres of land and more particularly described as Lots 1-8, the eastern 10 feet of Lots 9-12 currently dedicated for use as a public alleyway, and Lots 13-16, Block 33, Fort Collins, which parcel is depicted as the land to be developed on the Penny Flats Concept Plan which is attached hereto as Exhibit "A" and incorporated herein by this reference. Said real property shall be hereinafter referred to as "the Property", and shall be subject to verification upon receipt and approval of the Survey (described below) and the Title Documents (described below). The Property shall include any fences, buildings, landscaping, irrigation systems, and other improvements now located thereon, including all fixtures of a permanent nature. The Property shall also include all water taps, gas taps and sewer taps belonging or in any way appertaining thereto. In addition, the Property shall include all of the Seller's right, title and interest in and to easements, rights -of -way, future interests and rights to the same belonging and inuring to the benefit of the Property, and in and to all strips and gores of land lying between the Property and adjoining property or streets, roads or highways, open or proposed. Seller agrees to convey portions of the Property to Purchaser and to grant to Purchaser an Option to purchase the remaining portions of the Property in accordance herewith, and also agrees to grant a temporary construction easement over said remaining portions of the Property to Purchaser in accordance with the easement agreement attached hereto as Exhibit "B" and identified as the "Easement Agreement" in the terms and conditions set forth in this Agreement. Final 2121106 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 both parties hereto, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto. There shall be deemed to be no other terms, conditions, promises, understandings, statements or representation, expressed or implied, concerning this Agreement unless set forth in writing and signed by both parties hereto. 23. Time is of the Essence. It is agreed that time shall be of the essence of this Agreement and each and every provision hereof. 24. Inspection. The Purchaser or any designee shall have the right to make inspections of the physical condition of the Property and the improvements located thereon, and any other matters which Purchaser determines in its discretion may affect the Property or Purchaser's intended use thereof, at the Purchaser's expense. Such inspections may include, but shall not be limited to, inspections regarding compliance with any environmental protection, pollution or land use laws, rules or regulations, and verification of appropriate access to the Property. If written notice of any unsatisfactory condition, as determined at Purchaser's sole discretion, signed by Purchaser, is not received by the Sellers on or before twenty (20) days prior to the Initial Closing as described in paragraph 11, above, the physical condition of the Property and the improvements located thereon shall be deemed to be satisfactory to the Purchaser. If written notice of any unsatisfactory condition, signed by the Purchaser, is given to the Seller on or before twenty (20) days prior to the Initial Closing as described in paragraph 11, above, Sellers shall either cure such conditions or this Agreement may be terminated at the option of the Purchaser. Upon such termination, all payments and things of value received hereunder by the Sellers shall be returned to the Purchaser. The Purchaser is responsible and shall pay for any material damage which occurs to the Property and the improvements located thereon as a result of such inspections. 25. "AS -IS" Nature of Sale. The Purchaser acknowledges and agrees that the Seller has not made, does not make and specifically negates and disclaims any representations, warranties, promises, covenants, agreements or guarantees of any kind or character whatsoever, whether express or implied, oral or written, past, present or future, of, as to, concerning or with respect to the Property and: (a) the value, nature, quality or condition of the Property, including, without limitation, the water, soil and geology of the Property; (b) the income to be derived from the Property; (c) the suitability of the Property for any and all activities and uses which Purchaser may conduct thereon; (d) compliance by the Property, or of its operation and use, with all applicable statutes, laws, ordinances, rules or regulations of any governmental authority or body having jurisdiction; (e) the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Property; (f) the manner or quality of the construction or materials, if any, incorporated into the Property; (g) the manner, quality, state of repair or lack of repair of the Property; (h) the amount of land that constitutes the Property (i.e., the number of square feet or acres being conveyed); or (i) any other matter with respect to the Property, and specifically, that Seller has not made, does not make and specifically disclaims any representations regarding compliance with any environmental protection, pollution or land use laws, rules, regulations, orders or requirements, including solid waste, as defined by the U.S. Environmental Protection m MON Final 2121106 Agency regulations at 40 C.F.R., Part 261, or the disposal or existence, in or on the Property, of any hazardous substance, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. Purchaser further acknowledges and agrees that having been given the opportunity to inspect the Property, the Purchaser is relying solely on its own investigation of the Property and not on any information provided or to be provided by the Seller. The Purchaser further acknowledges and agrees that any information provided or to be provided with respect to the Property was obtained from a variety of sources and that the Seller has not made any independent investigation or verification of such information and makes no representations as to the accuracy or completeness of such information. The Purchaser agrees that the Seller is not liable or bound in any manner by any verbal or written statements, representations or information pertaining to the Property, or the operation thereof, furnished by any real estate broker, agent, employee, servant, or other person representing or claiming to represent the Seller. The Purchaser further acknowledges and agrees that to the maximum extent permitted by law, the sale of the Property as provided for herein is made on an "AS IS" condition and basis with all faults. It is understood and agreed that the purchase price has been adjusted by the Purchaser to reflect that all of the Property is sold by the Seller and purchased by the Purchaser subject to the foregoing. Notwithstanding the foregoing, Seller represents that it has no actual knowledge of any adverse material defects or facts which would be reasonably material to Purchaser in determining whether to purchase or construct upon the Property in the manner intended by Purchaser. 26. Declaration of Covenants. A. In order to ensure that the Property shall be developed in the manner agreed to by the parties, at the time of each closing under this Agreement, Seller and Purchaser shall execute a Declaration of Covenants for the Parcel or Parcels purchased and sold. The Declaration of Covenants shall be in substantially the form attached as Exhibit D hereto, and shall contain the following restrictions: i. The Subject Parcel must be developed as a multi -tenant, mixed -use project with a residential component constituting at least 50% of the total square footage of floor space in the project. The percentage of residential use required shall vary with the Parcel purchased as follows: Parcel A, 50%; Parcel B, 50%, Parcel C, 75%. ii. Any development of the Subject Parcel must form a gradual transition between the well -established residential neighborhoods to the west and north and the Civic Center/Downtown to the east and south in terms of use, building height and architectural materials, in order to create a community that demonstrates commercial utility during business hours and residential vitality at all times. Final 2121106 iii. Any development on the Subject Parcel shall be in accordance with the 1996 Civic Center Master Plan and Downtown Strategic Plan, including organization around a substantial, mid -block, north -south pedestrian spine, as the same may be amended from time -to -time. iv. The historic significance of the brick Trolley Bam on the northwest comer of Block 33 shall guide the choice of building materials and architectural detailing of any development on the rest of the Block 33 including the Subject Parcel. V. Issuance of a construction building permit for a given Parcel hereunder shall be deemed compliance with the foregoing covenants so long as construction is completed materially consistent with the final approved plans submitted to the City for obtaining such permit(s). B. Such Declaration of Covenants shall further contain a provision that shall require Purchaser, upon receipt of any bona fide offer of purchase or trade of all or any portion of the Property in its undeveloped condition by any third party, to notify the Seller of such offer and afford Seller sixty (60) days from the date of such notification to elect to purchase or trade for the same portion of the Property on the same terms as stated in the third party offer ("Right of First Refusal'). Such Right of First Refusal shall be waived if Seller does not elect to exercise the same within the stated sixty (60) day period. C. Purchaser shall record the Declaration of Covenants and Right of First Refusal for each Parcel in the records of the Larimer County Clerk and Recorder. Such Declarations and Right of First Refusal shall run with the land, and each such Declaration of Covenants and Right of First Refusal shall automatically expire with respect to each Parcel, unless sooner terminated by agreement of the Seller, upon the issuance of the first Certificate of Occupancy, Temporary Certificate of Occupancy, or the equivalent, for any residential or commercial unit in the respective Parcel. Seller shall execute any documents reasonably requested by Purchaser to memorialize or confirm such release of the Declaration of Covenants and Right of First Refusal, including such documents as may be requested for recording to remove the same as an exception to title. 27. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, administrators, successors and assigns. 28. Assignment. This Agreement shall not be assigned by either of the parties hereto without the prior written consent of the other party, which consent shall not be unreasonably withheld. 29. Brokers. The Seller and the Purchaser each represent and warrant to the other that neither has employed, retained or consulted any broker, agent or other finder with respect to the Property, and, to the extent permitted by law, the Seller and the Purchaser shall each indemnify 12 IN Final 2121106 and hold the other harmless from and against all claims, demands, causes or action, debts, liabilities, judgments and damages, including, without limitation, costs and attorney's fees incurred in connection with the foregoing, which may be asserted or recovered against the other on account of any brokerage fee, commission or other compensation arising in breach of this representation and warranty. The parties acknowledge that John Koval, a principal in Purchaser, is a licensed Colorado real estate broker, but is not receiving any commission related to this transaction. 30. Authority. The persons who have executed this Agreement represent and warrant that they are duly authorized to execute this Agreement in their individual or representative capacity as indicated. 31. Facsimile Signatures The parties agree that facsimile signatures shall be an acceptable means of executing this Agreement; however, Agreements executed with original signatures shall be provided to each party at closing. 32. Counterpart Signatures This Agreement may be executed in as many counterparts as may be deemed necessary and convenient, and by the different parties hereto on separate counterparts, each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute one and the same instrument. In addition, this Agreement may be executed initially by facsimile counterpart copies, and upon receipt of the same, shall be deemed legally enforceable. Thereafter, original signatures shall be obtained and substituted for facsimiles. 33. Cooperation. The parties acknowledge that, due to the complexity of the transaction, certain necessary conveyances, easements, documents and other accommodations required to fulfill the intent hereof may have been omitted, overlooked, or may otherwise become necessary, and the parties agree to cooperate in good faith in executing such additional documentation or modifications of existing documentation to fulfill the parties' mutual intent hereunder. 13 Final 2121106 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. SELLER: THE CVT-j )F FORT COLLINS APPRO ED AS TO FORM: Assisdirit CWf Attorney STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this � day of�4y 2006, by Douglas P. Hutchinson and Wanda Krajicek, as and City Clerk, respectively, of TH CITY OF FORT COLLINS, COLORADO, a Municipal Corporation. WITNESS my hand and official seal. My commission expires: NOTARY — w — PUBLIC Notary Public 14 Final 2/21/06 PURCHASER: PENN FLATS,LLC By: t A. Koval, Member STATE OF COLORADO) ) ss. COUNTY OF Vjqt ej. } offThe foregoing instrument was acknowledged before me this day g,)� , 2006, by John A. Koval, Member, of PENNY FLATS, LLC, a Colorado limited liability cc pany. WITNESS my hand and official seal. = �'A: ° d Y. My commission expires: 5 2G-V08 Y�• -- — `ems Notary Public 15 Final 2121106 EXHIBIT A Penny Flats Concept Plan 16 Exhibit A Conceptual Site Plan Penny Flats: Block 33, Fort Collins, CO North — -- February 21, 2006 CHERRY STREET I Final 2121106 Exhibit B Temporary Construction Easement Form of Agreement TEMPORARY CONSTRUCTION EASEMENT AGREEMENT THIS TEMPORARY CONSTRUCTION EASEMENT AGREEMENT ("Agreement") is made and entered into this day of 2006 by and between THE CITY OF FORT COLLINS, a Colorado municipal corporation ("Grantor"), 300 LaPorte Avenue, Fort Collins, Colorado, 80521, and PENNY FLATS, LLC, a Colorado limited liability company, ("Grantee"). RECITALS AND PURPOSES A. Grantor and Grantee have previously entered into an Option Agreement for Purchase and Sale of Real Property dated ("Option Agreement") for the property described as Lots 1-8, the eastern 10 feet of Lots 9-12, and Lots 13-16, Block 33, Fort Collins, County of Larimer, State of Colorado (the "Property'), whereby Grantor agreed to convey a portion of the Property to Grantee and gave Grantee an option to purchase the remaining portions of the Property. B. Grantee desires to use certain portions of the Property that Grantee has not yet purchased for the purpose of construction staging and activities while Grantee develops those parts of the Property Grantee has already purchased, and Grantor is willing to grant Grantee a Temporary Construction Easement over those portions of the Property to facilitate Grantee's development of the Property. NOW, THEREFORE, by and in consideration of the above stated recitals and purposes, the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and adequacy of which is hereby confessed and acknowledged, the parties hereto agree as follows: 1. Temporary Construction Easement. 1.1 Grant of Temporary Construction Easement to Grantee. The Grantor hereby grants to the Grantee a Temporary Construction Easement (the "Construction Easement") over and through Lots 1-8 inclusive, Lots 13 and 14, and the eastern 20 feet of Lots 9-12 and Lots 15 and 16 (the "Construction Easement Area"). The Construction Easement Area may be used for construction access, staging and activities during Grantee's construction of the Penny Flats project, with the exception of that portion of the Construction Easement Area located on Lots 9- 12, which may not be used for construction staging. 1.2 Effective Date of Construction Easement. This Construction Easement shall be effective upon the submission of this Agreement to the Larimer County Clerk and Recorder for M N Final 2121106 recording. If this Agreement has not been submitted to the Latimer County Clerk and Recorder for recording within one (1) year of the execution of this Agreement, this Construction Easement shall be null and void and have no force and effect whatsoever. 1.3 Protection of Structures. Grantee shall take reasonable steps to protect any existing structures on the Property during the term of this Construction Easement, and not to unreasonably interfere with the quiet enjoyment by the tenant of the residence located on Lot 15, Block 33, also known as 304 North Howes Street (it being understood that reasonable and foreseeable construction activities by Purchaser shall not be deemed unreasonable interference by Purchaser with such tenant's quiet enjoyment). 1.4 Assi nment. The Grantee may not assign its rights and obligations under this Construction Easement to a third party without the consent of the Grantor, which shall not he unreasonably withheld or delayed. 1.5 Duration of Easement. No construction activities shall be permitted hereunder until this Agreement has been fully executed and submitted to the Latimer County Clerk and Recorder for recordation. As Grantee purchases parcels of the Property pursuant to the Option Agreement, this Construction Easement shall automatically terminate as to those parcels, but shall continue for the remainder of the Property. Unless sooner terminated as described herein, this Construction Easement shall terminate August 1, 2009, unless an extension of time is agreed to in writing by the parties and recorded. 2. Recordation. The Grantee shall be responsible for the submission of this Agreement to the Latimer County Clerk and Recorder for recording in the real property records thereof, and the Grantee shall promptly fumish evidence of such recording to the Grantor. 3. Indemnification. The Grantee agrees to indemnify the Grantor, its officers, agents, employees, representatives, successors and assigns from all claims and liability, including without limitation the Grantor's reasonable legal fees and costs, for claims made by third persons for personal injury, death and properly damage resulting from or arising out of Grantee's use of the Construction Easement, including the construction, installation, operation, repair, maintenance or removal of improvements within the Construction Easement Area, and for any actions or omissions by Grantee in violation of this Easement Agreement. To the extent permitted by law, Grantor agrees to hold Grantee, its officers, agents, employees, representatives, successors and assigns harmless from all claims and liability for claims made by third persons for personal injury, death and property damage resulting from or arising out of Grantor's ownership of the Property and unrelated to Grantee's use of the Construction Easement, and for any actions or omissions by Grantor in violation of this Easement Agreement. 4. Insurance. Grantee shall, at all times of utilization of the Construction Easement, at no cost to Grantor, procure and keep in full force and effect a commercial general liability insurance policy in an amount not less than One Million Dollars ($1,000,000) per occurrence with a Two Million Dollar ($2,000,000) aggregate covering the Construction Easement Area and insuring 11M Final 2121106 2. Sale and Option Terms. Seller and Purchaser agree to the following: A. Subject to the terms and conditions of this Agreement, Seller hereby agrees to sell and Purchaser agrees to purchase Lots 1-4 ("Parcel A"), and Seller grants to the Purchaser two options (the "Options") to purchase additional parcels: (i) Lots 5-8 plus the eastern 10 feet of Lots 9-12 currently dedicated as a public alleyway (subject to City Council approval as described in paragraph 5 below) ("Parcel B"), and (ii) Lots 13-16 ("Parcel C") in accordance with the terms of this Agreement. B. The term of the Options shall be from the date of closing on Parcel A ("Initial Closing") until the following dates: Parcel B: December 31, 2007 Parcel C: December 31, 2008 C. Each Option may be exercised by Purchaser at any time up to September 30, 2007, for Parcel B and September 30, 2008, for Parcel C, (the "Option Deadlines") by delivery to Seller or representative of Seller, at the address set forth hereafter, a statement in writing signed by or on behalf of Purchaser exercising said Option (the "Notice of Exercise"). Upon delivery of a Notice of Exercise, this Agreement shall become an agreement of purchase and sale between Seller and Purchaser as to the Parcel or Parcels for which the Purchaser has exercised its option to purchase (referred to as the "Optioned Parcels"). If Seller or representative of Seller does not receive Notice of Exercise for any of the Optioned Parcels by the Option Deadline for such Parcels, Seller may terminate the remaining option or options hereunder by giving written notice of such termination to Purchaser; provided, however, that Purchaser may extend the date of the respective Notice of Exercise by up to ninety (90) days from the September 30 dates by providing written notice of its intent to do so to Seller at least ten (10) days in advance of the respective deadline for the Notice of Exercise, and in such event, the required closing date for such exercise (the "Option Closing") shall be extended by the same amount of time. 3. Method of Conveyance. The Seller agrees to sell to the Purchaser and the Purchaser agrees to purchase from the Seller, subject to the terms and conditions as set forth herein. each Optioned Parcel upon Purchaser's exercise of its Option therefor. Each Parcel shall be conveyed to the Purchaser by the Seller at the time of closing therefor (the "Closing") by special warranty deed, free and clear of all liens and encumbrances, except and subject to the following: A_ All easements, covenants, reservations, restrictions, rights -of -way and other matters of record as of the date of this Agreement as reflected on Schedule B-2 to the Title Commitment and accepted hereunder as permitted exceptions by the Purchaser (such exceptions, with recording information, to be appended to the Special Warranty Final 2121106 the Grantee covering bodily injury, including death to persons, personal injury, and property damage liability arising out of a single occurrence. Such coverage shall include, without limitation, the insured's liability for property damage, bodily injuries, and death of persons in connection with the operation, maintenance, or use of the Construction Easement Area (including acts or omissions of the Grantee or of its officers, employees, or agents), liability arising out of lawsuits related to employment contracts of the Grantee, and protection against liability for non -owned and hired automobiles. Such coverage shall also include comprehensive automobile liability insurance and coverage for such other risks as shall customarily be required by private institutional mortgage lenders with regard to property similar in construction, location, and use as the Property under the Construction Easement. All policies of insurance carried by the Grantee pursuant hereto shall name the Grantee as an insured and shall name the Grantor as an additional insured on the policy. The policy or policies shall contain a provision that the policy or policies cannot be canceled or materially altered either by the insured or the insurance company until fifteen (15) days prior written notice thereof is given to the Grantor. Any such policy shall contain waivers of subrogation and waivers of any defense based on invalidity arising from any act or omission of any assignees of the Grantee. 5. Default/Legal Fees. If any party to this Agreement is in default in performance of its respective obligations hereunder, the non -defaulting party shall have the right to an action for specific performance or damages or both. Prior to commencing any action, the party not in default shall first send written notice to the defaulting party specifying the default and affording such party a reasonable period to cure the default. In the event that one party breaches any of the terms of this Agreement after execution, the substantially non -breaching party shall be entitled to its reasonable legal fees and costs incurred to enforce the terms. 6. Notices. All notices required herein shall be in writing and shall be complete five (5) days after posted in the United States mail, addressed to the party at the following address or at such other address as is supplied to the other party in writing. For the City of Fort Collins: For Penny Flats, LLC With a copy to: City of Fort Collins Real Estate Services P.O. Box 580 Fort Collins, Colorado 80522 Penny Flats, LLC Attention: John Koval 1811 Pearl Street Boulder, CO 80302 J. Marcus Painter Holland & Hart, LLP 1800 Broadway, Suite 300 Boulder, CO 80302 20 pis Final 2121106 7. Colorado Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of Colorado. 8. Binding Effect. This Agreement and all terns and conditions hereof shall extend to and be binding upon the parties hereto, their trustees, heirs, personal representatives, successors and assigns. IN WITNESS WHEREOF, the parties hereto execute this Temporary Construction Easement Agreement the day and year first written above. ATTEST: City Clerk STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) GRANTOR: THE CITY OF FORT COLLINS, a Colorado municipal corporation By: Douglas P. Hutchinson, Mayor APPROVED AS TO FORM: Assistant City Attorney The foregoing instrument was acknowledged before me this day of 2006, by Mayor, and as City Clerk, of the City of For Collins, a Colorado municipal corporation. Witness my hand and official seal. My Commission Expires: 21 Notary Public Final 2121106 GRANTEE: PENNY FLATS, LLC, a Colorado limited liability company M. STATE OF COLORADO ) ss. COUNTY OF John a. Koval, Member The foregoing instrument was acknowledged before me this day of 2006, by John A. Koval, as Member of Penny Flats, LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission Expires: 22 Notary Public Exhibit C Easement Exhibit (Page 1 of 2) Penny Flats: Block 33, Fort Collins, CO February 21, 2006 PVBLK IGCF55-1 6 �? WIUIYANK OI MDI PUSLP .,�• PRPIr C! AN A. P B C JE MpF NOT ENO" ACCESS A..,ENA.M VIRiV 5Cf Mpr NpIF � NJ NNxI[xAMCF FASEYC 1 ----� --- � in Cry $ouIxERE IINED' DL lOr I} y BLDCN JJ !oR U$[ o! mF PEWJI Lu[Drs sDeoMxvSA PARCEL B m (rD az corvvne. IrvSrRuuwr) � _ �I---` W. I.TO ..Cucs MNT. o! CYCFCENCY ACCESS EAS[YCNi AWRE MRN C. WD PEDEV. DSWC LNCP�E<XYENIS SIYIt RC FEPMPLD lit i I s[F Pliv rvor[ z F SEE PLAT NOTE J E P 111111 /' !ON 3N15 GERYr1ED A9Mi WDNS P 7� CDrvNENs CI a CJ o � i PARCEL C I I PARCEL A i I6 - f ]0 H 1i 23 Mom Exhibit C Easement Exhibit (Page 2 of 2) Penny Flats: Block 33, Fort Collins, CO February 21, 2006 PUT NOTES REGARDING EMERGENCY ACCESS EASEMENT k 10' PUBLIC ACCESS EASEMENT 1, 30WIDE EMERGENCY ACCESS EASEMENT LOCATED AT ACTUAL AS BUILT SURFACE LEVEL OF PRIVATE DRIVE AND ABOVE. 2, HATCHING 0 INDICATES PORTION OF EMERGENCY ACCESS EASEMENT WHERE OVERHEAD BALCONY AND PEDESTRIAN BRIDGE ENCROACHMENTS SHALL BE PERMITTED SUBJECT TO THE FOLLOWING LIMITATIONS: - ENCROACHMENTS SHALL BE LIMITED TO UNCONDITIONED SPACES AT THE SECOND FLOOR LEVEL AND ABOVE WITH THE COMBINED TOTAL AREA OF ENCROACHMENT OF BALCONIES AND PEDESTRIAN BRIDGE. PER FLOOR. NOT TO EXCEED 2000 SO. FT. - MAXIMUM PROJECTION OF ENCROACHING BALCONIES INTO EASEMENT SHALL BE IF - MAXIMUM SIZE OF ENCROACHING BALCONIES SHALL BE 96 S T. EACH - MINIMUM SPACE SEPARATING ADJACENT BALCONIES SHALL BE 10' - MAXIMUM TOTAL BALCONIES PER FLOOR SHALL NOT EXCEED 18 - BALCONIES ON THE 3RD FLOOR AND ABOVE SHALL BE LOCATED TO STACK DIRECTLY ABOVE 2NO FLOOR BALCONIES - MAXIMUM WIDTH OF PEDESTRIAN BRIDGE SHALL NOT EXCEED 6' - MAXIMUM AREA OF PEDESTRIAN BRIDGE ENCROACHMENT. SHALL BE LIMITED TO 200 SO, FT. FOOTPRINT - MINIMUM OVERHEAD CLEARANCE SHALL BE 14' CLEAR ABOVE DRIVE SURFACE 3. HATCHING ® INDICATES AREA OF BUILDING OVERHANG PERMITTED AT RADIUS CORNERS OF ORNE INTERSECTION. ADDITIONAL BALCONY OVERHANGS SHALL NOT BE PERMITTED ABOVE RADIUS CORNERS CI It C2. MINIMUM OVERHEAD CLEARANCE SHALL BE 14' CLEAR ABOVE DRIVE SURFACE A. FINAL CONFIGURATION OF EMERGENCY ACCESS EASEMENT AND PERMITTED ENCROACHMENTS SUBJECT TO FIRE DEPARTMENT REVIEW AND APPROVAL AT TIME OF BUILDING PERMIT APPLICATION. 5. 10' PUBLIC ACCESS EASEMENT LOCATED AT ACTUAL AS BUILT SURFACE LEVEL OF WALKWAY AND ABOVE. PEDESTRIAN BRIDGE ENCROACHMENTS SHALL BE PERMITTED SUBJECT TO THE FOLLOWING LIMITATIONS: - MAXIMUM WIDTH OF PEDESTRIAN BRIDGE SHALL NOT EXCEED 6' - TOTAL QUANTITY OF ENCROACHING BRIDGES SHALL BE LIMITED TO 2 - MINIMUM OVERHEAD CLEARANCE SHALL BE 14' CLEAR ABOVE WALKWAY SURFACE 01 Final 2121106 Exhibit D Declaration of Covenants Form of Agreement DECLARATION OF COVENANTS AND RIGHT OF FIRST REFUSAL This Declaration of Covenants and Right of First Refusal is made and entered into this _ day of , 200, by and between THE CITY OF FORT COLLINS, COLOR -ADO, a municipal corporation, whose address is 300 LaPorte Avenue, Fort Collins, Colorado, 80521, ("City" or "Seller"), and PENNY FLATS, LLC, a Colorado limited liability company ("Penny Flats" or "Purchaser"). WITNESSETH: WHEREAS, the City and Penny Flats previously entered Agreement for Purchase and Sale of Real Property" dated (hereinafter referred to as the "Agreement"); and into that certain "Option WHEREAS, the Agreement originally provided that the City would sell to Penny Flats and Penny Flats would purchase from the City certain real property described in the Agreement, and that the City would grant Penny Flats an option on certain other real property described in the Agreement; and WHEREAS, Penny Flats has, under the Agreement, purchased that certain parcel of real property legally described on Exhibit "A" attached hereto and incorporated by reference (which parcel shall be hereinafter referred to as the "Subject Parcel"); and WHEREAS, pursuant to the terms of the Agreement, the City conveyed the Subject Parcel to Penny Flats on or before_ ; and WHEREAS, paragraph 26 of the Agreement provides that at every closing of a transaction under the Option Agreement, the City and Penny Flats shall execute for recording in the records of the Latimer County Clerk and Recorder a Declaration of Covenants and Right of First Refusal concerning the real property conveyed in such transaction, which shall evidence Penny Flat's continuing covenants under the Agreement, specifically those covenants described in paragraph 26 of the Agreement, which covenants survive the closing and the delivery of any deed under the Agreement and which covenants are deemed to run with the real property conveyed in any transaction under the Agreement; and WHEREAS, the purpose of this Declaration of Covenants and Right of First Refusal is to burden the Subject Parcel with said continuing covenants and right (subject to termination as set 25 Final 2121106 forth herein), it being the intent of the parties that such covenants and continuing obligations shall be deemed to run with the land. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the City and Penny Flats agree that the following covenants shall be burdens on the Subject Parcel, shall run with the Subject Parcel and shall be binding upon and inure to the benefit of the City and Penny Flats, and their successors and assigns: Covenants a. The Subject Parcel must be developed as a multi -tenant, mixed -use project with a residential component constituting at least 50% of the total square footage of floor space in the project. The percentage of residential use required shall vary with the Parcel purchased as follows: Parcel A, 50%; Parcel B, 50%, Parcel C, 75%. b. Any development of the Subject Parcel must form a gradual transition between the well -established residential neighborhoods to the west and north and the Civic Center/Downtown to the east and south in terms of use, building height and architectural materials, in order to create a community that demonstrates commercial utility during business hours and residential vitality at all times. C. Any development on the Subject Parcel shall be in accordance with the 1996 Civic Center Master Plan and Downtown Strategic Plan (as the same may be amended from time -to -time), including organization around a substantial, mid -block, north -south pedestrian spine. d. The historic significance of the brick Trolley Barn on the northwest comer of Block 33 shall guide the choice of building materials and architectural detailing of any development on the rest of the Block 33 including the Subject Parcel. e. Issuance of a construction building permit for a given Parcel hereunder shall be deemed compliance with the foregoing covenants so long as construction is completed materially consistent with the final approved plans submitted to the City for obtaining such permit(s). 2. Ripht of First Refusal. Purchaser hereby agrees that, in the event Purchaser receives and accepts an offer to purchase or trade for all or a portion of the Property in its undeveloped condition, Purchaser's acceptance of the same shall be subject to the right of Seller, upon sixty (60) days written notice from Purchaser of such offer, to purchase or trade for the same portion of the Property 26 Final 2121106 on the same terms and conditions. If Seller elects to exercise such option, Seller shall provide earnest money in the same amount as under the third party contract on or before the expiration of the sixty (60) day period and shall close on such purchase within thirty (30) days of exercising such option_ If Seller does not exercise such option within said sixty (60) days, this option shall be deemed waived as to such offer and all subsequent offers and Purchaser shall be free to sell such portion of the Property without further obligations hereunder. 3. Termination. This Declaration of Covenants and Right of First Refusal shall run with the land, and shall automatically expire unless sooner terminated by agreement of the Seller, upon the issuance of the first Temporary Certificate of Occupancy or Certificate of Occupancy for any residential or commercial unit in the Property. Seller shall execute any documents reasonably requested by Purchaser to memorialize or confirm such release of the Declaration of Covenants and Right of First Refusal, including such documents as may be requested for recording to remove the same as an exception to title. IN WITNESS WHEREOF, the parties hereto have executed this Declaration of Covenants as of the day and year first above written. 27 M 0 Final 2121/06 SELLER: THE CITY OF FORT COLLINS By Douglas P. Hutchinson, Mayor ATTEST: City Clerk APPROVED AS TO FORM: Assistant City Attorney STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of 20_, by Douglas P. Hutchinson and Wanda Krajicek, as Mayor and City Clerk, respectively, of THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation. WITNESS my hand and official seal. My commission expires: ATTEST: Corporate Secretary Notary Public PURCHASER: PENNY FLATS, LLC By: 28 Final 2121106 STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 20 . by and , as President and Corporate Secretary, respectively, of PENNY FLATS, LLC, a Colorado limited liability company. WITNESS my hand and official seal. My commission expires: 3959238 13.DOC Notary Public 29 IN" Final 2121106 Deed conveying the Property), and except for the alley on the r ropeny, if said alley is vacated as per paragraph 5, below; B. Any restrictions, reservations or exceptions contained in any United States or State of Colora4o patents of record and specifically listed on Schedule B-2 to the Title Commitment andAccepted by Purchaser hereunder as permitted exceptions; C. All zoning and"wher governmental rules and regulations; D. Statutory lien righo\�resulting from the inclusion of the Property in any special taxing district or improvemerk districts; E. All oil, gas or other mineral reservations or exceptions of record specifically listed on Schedule B-2 to the Title Commitment and accepted by Purchaser hereunder as permitted exceptions; F. General property taxes, assessr._ its and charges for the tax year of the subject closing (which shall be prorated as of the date of Closing) and shall be Purchaser's responsibility following the date of said Closing for any taxes assessments and charges arising or assessed for periods on and after the Closing) and said taxes, assessments and charges for all subsequent years; and G. The reservation of easements ano rights -of -way described in paragraph 4 below. 4. Reservation of Easements. The Seller may reserve and except unto itself, and to its successors and assigns, from the Property or any portion of the Property, the following easements and rights -of -way, which are more particularly described on Exhibit "C" hereto. Should the plans for Purchaser's proposed development be modified after the date of this Agreement necessitating a change in the location or description of a proposed easement or right- of-way, or should the Seller conclude it does not in fact need one of the easements or rights -of - way described herein, the parties agree to cooperate in good faith to amend this Agreement to correctly reflect the easements and rights -of -way to be reserved by the Seller upon conveyance of the Property or any portion thereof. A. A 45 ide Drainage, Utility and Public Access Easement on, under and across that portio4 Block 33 defined as the Pedestrian Spine in accordance with the Civic Center Plan. Is shown on Exhibit C; B. A Public Access Easement 10' wide by 164' 1 1" long running from the east edge of Block 33 to the Pedestrian Spine, midblock, on and across the surface of Block 33, as shown on Exhibit C; and C. An Emergency Access Easement over and upon those portions of Block 33 shown on Exhibit C. CERTIFICATE The undersigned hereby agree, acknowledge, and certify that this Agreement constitutes the Amended and Restated Operating Agreement of Penny Flats, LLC adopted by the Equity Owners effective as of August F, 2nn3, M" SIzooS. 3143004_4, DOC Penny Flats, LLC By: ), �L �-' Name: ilHam E. Coburn, II Its: Manager By: A. Koval By: e Name: Ja es C. Its: paper MEMBERS: William E. Coburn, TT 39 Final 2121/06 5. Vacation of Alley. To facilitate construction by the Purchaser of a pedestrian walkway running north and south through the Property (the "Pedestrian Spine"), Seller has agreed to commence the necessary process for vacation of the alley that presently exists on the Property, and for consent of the Fort Collins City Council to convey to Purchaser that portion of Lots 9-12, Block 33, presently dedicated as part of the alley. Such vacation and consent to convey are entirely in the discretion of the Fort Collins City Council. Should the City Council decline to vacate the alley or to consent to the conveyance of that portion of Lots 9-12 presently dedicated as part of the alley, the Purchaser shall have the right to terminate this Agreement, and any earnest money deposit shall be returned to Purchaser. 6. Pedestrian Spine. Should the City Council approve the alley vacation, Seller shall retain from the sale of the Property, or Purchaser agrees to grant back to Seller, a pedestrian easement and a utility easement over and across that portion of the Property that shall be occupied by the Pedestrian Spine. 7. Assurances RUarding Construction of Pedestrian Sine. As part of the Development Agreement between Purchaser and the City of Fort Collins to be entered into as part of the City's development review process, Purchaser shall provide an estimate of the cost of construction of the Pedestrian Spine, and shall provide, in a form acceptable to the City, financial assurance that the spine will be constructed. S. Purchase Price. A. The purchase price for the Property shall be as follows: i. The purchase price for Parcel A is FIVE HUNDRED FORTY TWO THOUSAND DOLLARS ($542,000). ii. The purchase price for Parcel B is FIVE HUNDRED FORTY ONE THOUSAND DOLLARS ($541,000). iii. The purchase price for Parcel C is FIVE HUNDRED FORTY ONE THOUSAND DOLLARS ($541,000). iv. The total purchase amount payable to Seller by Purchaser for the Property in the event that each Option is fully exercised will total $1,624,000. The purchase price for the Option Properties shall also accrue interest at the rate of seven percent (7%) from the date of closing on Parcel A until the date of closing on each Option Property; provided, however, such interest shall only accrue and be charged with regard to a respective Parcel if the Option to purchase the same is exercised. �j� Final 2121106 B. The purchase price for Parcel A shall be payable by the Purchaser to the Seller as follows: i. The sum $1,000.00, representing an earnest money deposit shall be paid by the Purchaser upon the execution of this Agreement by check to the Seller. ii. The balance of the purchase price for Parcel A in the amount of $541,000.00 will be due at the closing on Parcel A ("Initial Closing"), subject to closing costs and customary pro -rations, as hereinafter provided, and shall be payable by check from the Purchaser to the Seller at the time of the Initial Closing, as hereinafter set forth. C. The purchase price for each Optioned Parcel shall be payable by the Purchaser to the Seller as follows: The sum of $1,000.00, representing an earnest money deposit shall be paid by the Purchaser upon the exercise of each Option. ii. The balance of the purchase price plus interest accrued per subparagraph A(iv), above, less the earnest money deposit for each Optioned Parcel, shall be paid at the Option Closing, subject to closing costs and customary prorations, as hereinafter provided, and shall be payable by check from the Purchaser to the Seller at the time of the Option Closing, as hereinafter set forth. 9. Title Insurance. A. On or before 20 days following mutual execution of this Agreement, the Seller, at its sole expense, shall provide to the Purchaser a title insurance commitment for the entire Property, in an amount equal to the purchase price, and shall provide copies of all documents of record related to exceptions described in said title insurance commitment ("Title Documents"). Purchaser shall have the right to inspect and object in its sole discretion to the Title Documents. The title insurance commitment obtained by the Seller shall show marketable title to the Property in the Seller, subject only to those items set forth in paragraph 3 hereinabove. In the event said title insurance commitment discloses title defects subject to which the Purchaser need not take title to any portion of the Property, or to which Purchaser objects hereunder, written notice by Purchaser shall be given to the Seller within thirty (30) days after delivery of the Title Documents (or any subsequent update or modification to the Title Documents). The Seller shall cure such defect or objection within a reasonable amount of time, at its expense, without in any other manner affecting the terms of this Agreement. If any instrument or deposit is necessary in order to obviate a defect in or objection to title, the following shall apply: (a) any such instrument shall be in such form and shall contain such terms and conditions 5 0 Final 2121106 as may be reasonably required by the title insurance company so as to satisfy said company sufficiently for it to omit such defect or objection; (b) any such deposit shall be made with the said title insurance company; and (c) the Seller agrees to execute, acknowledge and deliver any such instrument and to make any such deposit. In the event said tide insurance company refuses to omit any title defect or objection prior to the Initial Closing, or in the event the Seller is unable through reasonable good faith efforts to cure any title objection by the Purchaser, then the Purchaser shall, at its election, have the right to accept such title as the Seller is able to convey, without any reduction of the purchase price; or the Purchaser shall have the right to rescind this Agreement and, upon such rescission pursuant to this paragraph, the Purchaser shall be entitled to the return of the amount of money theretofore paid to the Seller or its agent; and upon such payment, this Agreement shall be null and void and of no further effect, and all parties to this Agreement shall be released from all obligations hereunder. Upon resolution of all title objections by Seller and acceptance thereof by Purchaser, the resulting exceptions to title as listed in the revised Schedule B-2 to the title insurance commitment shall be deemed the "Permitted Exceptions" hereunder. Notwithstanding the foregoing, in the event the inability of the Seller to convey marketable title to the Purchaser is due to an act or omission of the Seller, the Seller shall be in default and shall continue to be liable hereunder. Seller, at its sole expense, shall cause the title insurance policy to be delivered to Purchaser as soon as practicable at or after the Initial Closing. B. On or before the fifteenth (15'h) day following any Notice of Exercise of any Option, as provided in paragraph 2, above, the Seller at its sole expense, shall provide to the Purchaser a new title insurance commitment for the Option Parcel(s), in an amount equal to the Option price of the Parcel or Parcels to be conveyed, and shall provide copies of all Title Documents of record related to exceptions described in said new title insurance commitment ("Title Documents"). In the event said new title insurance commitment identifies new title defects, liens or encumbrances not previously identified that are unsatisfactory to the Purchaser, written notice by Purchaser shall be given to the Seller within fifteen (15) calendar days after receipt by Purchaser of the new title insurance commitment or any title changes. The Seller shall cure such defect within a reasonable amount of time, at its expense, without in any other manner affecting the terms of this Agreement_ If any instrument or deposit is necessary in order to obviate a defect in or objection to title, the following shall apply: (a) Any such instrument shall be in such form and shall contain such terms and conditions as may be reasonably required by the title insurance company so as to satisfy said company sufficiently for it to omit such defect or objection; (b) Any such deposit shall be made with said title insurance company; and (c) the Seller agrees to execute, acknowledge and deliver any such instrument and to make any such deposit. In the event said title insurance company refuses to omit any title defect or objection prior to the Closing of an Option, or in the event the Seller is unable through reasonable good faith efforts to cure any title objection by the Purchaser, then the Purchaser shall, at its election, have the right to accept such title as the Seller is able to convey, without any reduction of the purchase price; or the Purchaser shall have the right to rescind this Agreement and, upon such rescission i3 Final 2121106 pursuant to this paragraph, the Purchaser shall be entitled to the return of the amount of money theretofore paid to the Seller or its agent; and upon such payment, this Agreement shall be null and void and of no further effect, and all parties to this Agreement shall be released from all obligations hereunder. Notwithstanding the foregoing, in the event the inability of the Seller to convey marketable title to the Purchaser is due to an act or omission of the Seller, the Seller shall be in default and shall continue to be liable hereunder. Seller, at its sole expense, shall cause the title insurance policy to be delivered to Purchaser as soon as practicable at or after Closing of any Option. C. With respect to any title insurance commitment under this paragraph 9, Purchaser shall have an additional ten (10) business days after receipt by Purchaser of any change or update to the title insurance commitment, the Title Documents, any survey or other matter affecting title to any Parcel being purchased hereunder. 10. Property Survey. The Purchaser, at its expense, shall obtain a survey of the Property certified by a licensed Colorado surveyor which shall legally describe the Property as a whole and each Parcel of the Property that will potentially be conveyed by the Seller to the Purchaser pursuant to this Agreement (the "Survey"). Purchaser shall deliver a copy of such Survey to Seller not later than thirty (30) days prior to the Initial Closing. Seller shall have fifteen (15) days following delivery to Seller of any Survey or amendment to Survey indicating or modifying the legal description for the Property, to review and approve such legal description for purposes of use in the special warranty deed, such approval not to be unreasonably withheld. In the event that the Seller and the Purchaser cannot agree upon a legal description of the Property or any Parcel thereof potentially to he conveyed under this Agreement on or before the date of the Initial Closing as provided in paragraph 11 below, this Agreement shall be automatically terminated, and all parties shall be released from all obligations hereunder, and any monies theretofore paid to the Seller by the Purchaser shall be refunded in full to the Purchaser. 11. Closing. The Initial Closing shall be held on the later of (i) August 15, 2006, or (ii) thirty (30) days following final approval of the PDP process for the Property with the City of Fort Collins, at 2:00 p.m. at Land Title Company, 772 Whalers Way, Fort Collins, Colorado 80525, or at such other reasonable time, date or location as the parties may mutually agree upon. Each Option Closing shall be held on or before the expiration date of each such Option at 2:00 p.m., at Land Title Company, 772 Whalers Way, Fort Collins, Colorado 80525, or at such other reasonable time, date or location as the parties may mutually agree upon. 12. Possession. Possession of each portion of the Property conveyed to Purchaser shall be delivered to Purchaser immediately following the closing on such portion. 13. Proration. Because Seller is a public entity and not subject to taxation, any real property taxes, assessments and similar expenses imposed or accruing subsequent to the date of closing on any Parcel shall be Purchaser's sole obligation. Closing fees shall be apportioned in accordance with local practice. 7 rs Final 2121106 14. Remedies on Default. If any note or check received as earnest money hereunder or any other payment due hereunder is not paid, honored or tendered when due, or if any other obligation hereunder is not performed as herein provided, there shall be the following remedies: A. If the Purchaser is in default, then the earnest money deposit shall be forfeited by the Purchaser and retained on behalf of the Seller, and both parties shall thereafter be released from all obligations hereunder. It is agreed that the eamest money deposit is liquidated damages and is the Seller's sole and only remedy for the Purchaser's failure to perform the obligations of this Agreement. The Seller expressly waives the remedies of specific performance and additional damages. B. If the Seller is in default, the Purchaser may elect to treat this Agreement as terminated, in which case all payments and things of value received hereunder shall be returned to the Purchaser, and the Purchaser may recover such damages as may be proper, or the Purchaser may elect to treat this Agreement as being in full force and effect, and the Purchaser shall have the right to an action for specific performance or damages, or both. 15. Leeal Fees and Costs. In the event either of the respective parties hereto shall default in any of their covenants or obligations herein provided and the party not in default commences and prevails in any legal or equitable action against the substantially defaulting party, the defaulting party expressly agrees to pay all reasonable expenses of said litigation, including a reasonable sum for legal fees including attorneys' fees. 16. Governing Law. It is expressly understood and agreed by and between the parties hereto that this Agreement is made in and shall be construed and interpreted in accordance with the laws of the State of Colorado. 17. Notices. Any notice or other communication given by either party hereto to the other relating to this Agreement shall be hand delivered or sent by registered or certified mail, return receipt requested, addressed to such other party at their respective address as set forth below; and such notice or other communication shall be deemed given when so hand delivered or on the third business day after when so mailed; If to Seller: Real Estate Services Manager City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 a Final 2121106 With a copy to: City Attorney City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 If to Purchaser: Penny Flats, LLC Attention: John Koval 1811 Pearl Street Boulder, CO 80302 With a copy to: J. Marcus Painter Holland & Hart LLP 1800 Broadway, Suite 300 Boulder, CO 80302 18. Maintenance of the Property. Except for easements, licenses or similar interests from Seller to Purchaser, the Seller shall not cause or allow the creation of new encumbrances to title for the Property and shall maintain any portion of the Property as remains in Seller's ownership in its condition as of the date hereof until the closing of this transaction, subject to normal wear - and -tear and seasonal changes, and agrees not to commit or permit waste thereon. 19. Casual . In the event that a particular Parcel is substantially damaged by fire, flood, drought or casualty between the date of this Agreement and the date of closing for conveyance of the same, this Agreement may, at the option of the Purchaser, be declared null and void and of no further force or effect as to such Parcel; and all the parties to this Agreement shall be released from all obligations hereunder; and the Purchaser shall be entitled to a refund of the amount of money, if any, theretofore paid to the Seller or its agent with respect to such Parcel. 20. Headings. 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. 21. Terms Survive Closin . To the extent necessary to carry out all of the terms and provisions hereof, the said terms, obligations and rights set forth herein shall be deemed not terminated at the time of closing; nor shall they be necessarily merged with the various documents executed and delivered at such time. 22. Construction. 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. 0 , I