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HomeMy WebLinkAbout5817 SOUTH COLLEGE AVENUE - Filed DA-DEVELOPMENT AGREEMENT - 2011-04-29RECEPTION#: 20110023469, 04/20/2011 at 01:54:08 PM, 1 OF 6, R $36.00 TD Pgs: 0 Scott Doyle, Larimer County, CO DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement"), is made and entered into this 7,9 day of M�-,rOL 2011, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and SSTM Investments, LLC, a Colorado limited liability company, hereinafter referred to as the "Developer." WITNESSETH: WHEREAS, the Developer is the owner of certain real property situated in the County of Larimer, State of Colorado (hereafter sometimes referred to as the "Property" or "Development") and legally described as follows, to wit: A tract of land beginning at a point which bears N 89013' W 42.8 feet, N 00 18' W 189.41 feet, S 89' 42' W 319.93 feet, N 0° 18" E 86 4.52 feet from the E % Corner; then N 00 18' W 150 feet; then N 89°42' E 319.93 ft; then S 0" 18' E 150 ft; then S 89042' W 319.93 ft to the point of beginning, located in Section 11, Township 6 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. (5817 South College Ave) WHEREAS, the Developer desires to develop the Property (building expansion) and has submitted to the City all plans reports and other documents required for the approval of a building permit according to the City's Land Use Code and application submittal; and WHEREAS, the City has approved the building permit application (61005847) submitted by the Developer, subject to certain requirements and conditions. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is agreed as follows: General Conditions A. The terms of this Agreement shall govern all development activities of the Developer pertaining to the Property. For the purposes of this Agreement, "development activities" shall include, but not be limited to, the following: (1) the actual construction of improvements, (2) obtaining a permit therefor, or (3) any change in Cib rlarkc s Offica; P r' r' fins; Cvoracc grade, contour or appearance of the Property caused by, or on behalf of, the Developer with the intent to construct improvements thereon. B. The Developer specifically represents that to its knowledge all property dedicated (both in fee simple and as easements) to the City associated with this Development (whether on or off -site) is in compliance with all environmental protection and anti -pollution laws, rules, regulations, orders or requirements, including solid waste requirements, as defined by the U. S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, and that such property as is dedicated to the City pursuant to this Development, is in compliance with all such requirements pertaining to the disposal or existence in or on such dedicated property of any hazardous substances, pollutants or contaminants, as defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder. The Developer, for itself and its successor(s) in interest, does hereby indemnify and hold harmless the City from any liability whatsoever that may be imposed upon the City by any governmental authority or any third party, pertaining to the disposal of hazardous substances, pollutants or contaminants, and cleanup necessitated by leaking underground storage tanks, excavation and/or backfill of hazardous substances, pollutants or contaminants, or environmental cleanup responsibilities of any nature whatsoever on, of, or related to any property dedicated to the City in connection with this Development, provided that such damages or liability are not caused by circumstances arising entirely after the date of acceptance by the City of the public improvements constructed on the dedicated property, except to the extent that such circumstances are the result of acts or omissions of the Developer. Said indemnification shall not extend to claims, actions or other liability arising as a result of any hazardous substance, pollutant or contaminant generated or deposited by the City, its agents or representatives, upon the property dedicated to the City in connection with this Development. The City agrees to give notice to the Developer of any claim made against it to which this indemnity and hold harmless agreement by the Developer could apply, and the Developer shall have the right to defend any lawsuit based on such claim and to settle any such claim provided the Developer must obtain a complete discharge of all City liability through such settlement. Failure of the City to give notice of any such claim to the Developer within ninety (90) days after the City first receives a notice of such claim under the Colorado Governmental Immunity Act for the same, shall cause this indemnity and hold harmless agreement by the Developer to not apply to such claim and such failure shall constitute a release of this indemnity and hold harmless agreement as to such claim. II. Special Conditions A. Streets. 1. In accordance with Section 24-95 of the City Code the Developer is responsible for dedicating 25 feet (in width) of right-of-way and constructing a sidewalk on the portion of College Ave adjacent to the site prior to the issuance of the first building permit. However, the parties agree that the dedication of right-of-way and construction of this street sidewalk can be delayed as identified below: The Developer's obligation for the dedication of the right-of-way shall continue in existance, but shall be delayed until such time as the property brings the nonconforming existing pole sign into compliance with City regulations. At such time that the pole sign is brought into compliance 25 feet of right-of-way shall be dedicated along the frontage of the property and the new sign shall be placed outside of the right-of-way. The Developer shall provide an approved and signed dedication document to the City, including all applicable fees, prior to the issuance of the permit for the sign. The Developer's obligation for the sidewalk installation shall continue in existence, but shall be delayed until such time as the City deems the improvements necessary. In addition, the need for the Developer to construct the sidewalk improvements or the need for the Developer to provide the City with funds for future improvements to meet this obligation shall be evaluated with any changes to the Property, such as but not limited to: the expansion of the existing uses to a tenant or use in the same use category that will generate a higher traffic impact, change of use of the Property, expansion of the Property use(s) on the Property, a remodel or expansion of the building(s), or redevelopment of the site. The existing and proposed uses approved for this site with this development plan are: vehicle minor repair, vehicle major repair, and retail store with vehicle servicing. At such time as a change is proposed to the Property the City can reevaluate the need for the improvements required by the code and the Developer and City shall enter into a new Development Agreement, as necessary. Miscellaneous A. The Developer shall, pursuant to the terms of this Agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the Final Development Plan Documents, or any documents executed in the future that are required by the City for the approval of an amendment to a development plan, and the City may withhold (or to the extent permitted by law, revoke) such building permits and certificates of occupancy as it deems necessary to ensure performance in accordance with the terms of this Agreement. The processing and "routing for approval" of the various development plan documents may result in certain of said documents carrying dates of approval and/or execution that are later than the date of execution of this Agreement. The Developer hereby waives any right to object to any such discrepancy in dates. B. Nothing herein contained shall be construed as a waiver of any requirements of the City Code or the Land Use Code and the Developer agrees to comply with all requirements of the same. C. In the event the City waives any breach of this Agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. D. This Agreement shall run with the Property, including any subsequent replatting of all, or a portion of the Property. This Agreement shall also be binding upon and inure to the benefit of the parties hereto, their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. E. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the Developer shall be released from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. F. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. G. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney's fees and costs incurred by reason of the default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph III.D of this Agreement. H. Except as may be otherwise expressly provided herein, this Agreement shall not be construed as or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever. I. It is expressly understood and agreed by and between the parties hereto that this Agreement shall be governed by and its terms construed under the laws of the State of Colorado and the City of Fort Collins, Colorado. 4 J. Any notice or other communication given by any party hereto to any other party relating to this Agreement shall be hand -delivered or sent by certified mail, return receipt requested, addressed to such other party at their respective addresses as set forth below; and such notice or other communication shall be deemed given when so hand -delivered or three (3) days after so mailed: If to the City: Engineering Development Review City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 With a copy to: City Attorney's Office City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 If to the Developer: SSTM Investments 1018 Battsford Circle Fort Collins, Co 80525 Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees or assigns, wishes to change the person, entity or address to which notices under this Agreement are to be sent as provided above, such party shall do so by giving the other parties to this Agreement written notice of such change. K. When used in this Agreement, words of the masculine gender shall include the feminine and neuter gender, and when the sentence so indicates, words of the neuter gender shall refer to any gender; and words in the singular shall include the plural and vice versa. This Agreement shall be construed according to its fair meaning, and as if prepared by all parties hereto, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto pertaining to the matters addressed in this Agreement. There shall be deemed to be no other terms, conditions, promises, understandings, statements, representations, expressed or implied, concerning this Agreement, unless set forth in writing signed by all of the parties hereto. Further, paragraph headings used herein are for convenience of reference and shall in no way define, limit, or prescribe the scope or intent of any provision under this Agreement. THE CITY OF FORT COI, ONS, Cl7LORADO, a Municipal Corporation In City Manager J M EST: . SEAL , City Clerk APPROVED AS TO CONTE rty Enginee - APPROV" TO FORM: Deputy City Attorney DEVELOPER: SSTM 77ns, LLC By:, 0� � Scott Butters, STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) he foregoing instrument vias acknowledged before me this day of 14, 2011, by 4caTf [name of person] as,� [title of person] of-/�,� Tr, t!K�,-/Tname of business entity]. My Commission Expires: % �Z',�