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HomeMy WebLinkAboutCOBURN DEVELOPMENT - CONTRACT - RFP - P955 BLOCK 33 A MIXED USE RESIDENTIAL DEVELOPMENTEXCLUSIVE NEGOTIATING AGREEMENT FOR DEVELOPMENT OF BLOCK 33 THIS AGREEMENT, is entered into this W `i day of ir)Pr,, 2005, by and between the City of Fort Collins, Colorado, a municipal corporation ("City") and Coburn Development, Inc., a Colorado corporation, ("Coburn"). WITNESSETH: 35 WHEREAS, the City is the owner of Block -in the City of Fort Collins; and WHEREAS, the City desires to facilitate the development of a portion of Block 33 in accordance with adopted City plans; and WHEREAS, the City has heretofore conducted a Request for Proposal ("RFP") process requesting proposals for the development of a portion of Block 33 in accordance with adopted City plans which portion is presently not precisely defined and described but which is anticipated to constitute approximately 75% of Block 33 and shall hereafter be referred to as the "Property"; and WHEREAS, Coburn has been selected by the City, as a result of the aforementioned request for proposal process, to enter into this Agreement as an "exclusive negotiating agreement" for the aforesaid purposes. NOW, THEREFORE, in consideration of the mutual promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. Coburn shall conduct a market analysis/feasibility study for the development of the Property in accordance with adopted City plans and the RFP and shall present the same to the City for its consideration on or before the 28th day of February, 2005. Upon receipt of said market analysis/feasibility study, the City shall consider the same, conduct discussions with Coburn and determine whether or not to move forward with a design for the development of the Property. The City's determination shall be made within seven (7) working days of receipt of the market analysis from Coburn, and shall be at the City's sole discretion. 2. If the City determines to move forward with the project, then Coburn shall prepare conceptual designs for the development of the Property, including site plans, elevations, and a scale massing model, but not including detailed engineering drawings. Said design shall be completed within forty-five (45) days of the City's decision to move forward into the design stage and, upon completion, shall be submitted to the City for its review. 3. Upon receipt of the design from Coburn, the City shall conduct a special conceptual review of the same, coordinate discussions with Coburn pertaining to the design details and, within seven (7) working days of receipt of the same, determine whether or not to move forward with the project beyond the design stage. Such determination shall be at the City's reasonable discretion. 4. If the City determines to move beyond the design stage, then Coburn shall prepare all plans and submittals necessary to present a complete PDP application to the City's Current Planning Department for development review and shall diligently pursue development approval of the project to completion. All development applications and related fees shall be paid to the City by Coburn as a part of the development review process and no fees shall be waived by the City unless such waiver is authorized by City Code. The City shall cooperate with Coburn in its pursuit of any necessary governmental approvals and permits, including without limitation, the granting of all easements and encroachment permits necessary for the completion of the development, provided that Coburn complies with all governmental, legislative and administrative requirements pertaining thereto. 5. If during the course of the market analysis, design and development review process the city determines that any aspect of Coburn's market analysis, designs or development plan for the Property is unacceptable, the City shall provide Coburn with written notice of and an itemized list or description of such unacceptable items or conditions. Upon receipt of such notice, Coburn shall have a reasonable time and opportunity to correct such items; provided that Coburn shall diligently pursue correction of such items in an expeditious manner. 6. During the course of market analysis, design and development review, the City agrees that it shall not negotiate with any other developer, person or entity for the development of the Property, it being the intention of the parties that Coburn shall have the exclusive right to work toward the development of the Property during the aforesaid stages of planning and development. 7. All drawings, plans, specifications, schematic designs, site plans, elevations, scale models, engineering drawings, studies, feasibility reports, assessments, marketing and trending research, marketing techniques, pricing policies, financial information, sales processes, bidding processes, costs, profits, sales, markets, patents, intellectual property, trademarks, service marks, patent applications, development plans and all other data delivered in any form including, but not limited to, writings, drawings, surveys, architectural renderings, graphs, charts, photographs, phonographic records, tape recordings, discs, and data compilations in whatever form recorded or stored shall be and remain at all times the sole property of Coburn. 8. If the development application is manifested in the approval of a Project Development Plan, then the City and Cobum shall promptly negotiate in good faith toward a mechanism for transferring ownership of the Property to Coburn for subsequent development and marketing. Elements to be determined between the City and Coburn as a part of said negotiations include the purchase price, and, if applicable, any deed restrictions or future interests necessary to ensure that the property will be developed in accordance with the City's intended purposes. 9. It is expressly understood between the parties that any transfer of ownership of the property, must first be approved by the Council of the City of Fort Collins in accordance with Chapter 23, Article IV of the City Code, and that such approval is at the Council's sole discretion, provided however, that the Council of the City of Fort Collins shall provide Coburn with its reasons for any disapproval of the sale of the Property and an opportunity for Coburn to address the reasons for the City Council's disapproval. 10. Preliminary to the negotiations contemplated in 4ki6. Paragraph 8, Coburn shall provide the City with information regarding any public financial participation (such as participation by the Downtown Development Authority) that Coburn anticipates will be forthcoming in the development of the Project, and shall also demonstrate to the City Coburn's financial commitment to perform the Project to completion by demonstrating to the City that it has a satisfactory financial reputation to obtain construction financing and take-out financing to construct the Project according to the approved Project Development Plan. 11. Coburn shall be solely responsible for all expenses incurred in the performance of this Agreement, including but not limited to preparing the market analysis/feasibility study and the designs, any environmental reviews, vibration studies, noise analyses, etc., and/or costs incurred in the development review process. The City shall have no obligation to reimburse, share in or support Coburn in covering any costs incurred by it as may be necessary to perform its obligations under this Agreement. 12. Coburn may terminate this Agreement, with or without cause, at any time, upon the giving of fifteen (15) days written notice to the City. The City may terminate this Agreement upon the giving of fifteen (15) days written notice to Coburn, if Coburn has failed to perform its obligations under this Agreement in a timely, professional, comprehensive and workmanlike manner. All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to the following addresses: If to the City: Fort Collins City Manager P.O. Box 580 Fort Collins, CO 80522-0580 If to Coburn: John A. Koval, Vice President Coburn Development, Inc. 1811 Pearl Street Boulder, CO 80302 Any costs incurred by either party in the performance of this Agreement shall be the obligation of such party upon termination. 13. Coburn, its agents, employees, contractors and representatives may enter upon the Property at any time for the purpose of surveying, testing or conducting any other reasonable activity thereon in pursuance of performing its duties under this Agreement. 14. Coburn shall indemnify, save and hold harmless the City, its officers and employees, from all damages whatsoever claimed by third parties against the City and arising from Coburn's acts or omissions relating to the development of the Property; and for the City's costs and reasonable attorneys fees, arising directly or indirectly out of Coburn's negligent performance of any of the work under to this Agreement. Coburn shall maintain commercial general liability insurance in the amount of $1,000,000 per occurrence. To the extent authorized by law, the City shall indemnify, save and hold harmless Coburn from damages arising directly or indirectly out of the City's negligent performance of any of the work under this Agreement. Nothing herein shall be construed as a waiver of the provisions of the Colorado Governmental Immunity Act, Sec. 24-10- 101 et seq. C.R.S. 15. The parties expect that there may be unforeseen delays and complications that will arise during the course of performance of this Agreement and, accordingly, they agree to reasonably consider requests for extensions of the deadlines as set out in this Agreement, as long as the requesting party is diligently and conscientiously pursuing its obligations under this Agreement. Any such agreed upon extension shall be set out in writing signed by the parties. 16. This Agreement constitutes the entire understandings of the parties hereto with regard to the subject matter hereof and may be amended only by written amendment of the parties. This Agreement shall be binding upon the parties, their successors, representatives and assigns. This Agreement shall be construed as though drafted mutually by both parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: City Clerk APPROVE S TO FORM: eputy City Attorney A'P=70T. CITY OF FORT COLLINS, COLD DO, a municipal corporation By: Darin A. Atteberry, City Manager COBURN DEVELOPM a lorad//o,corporation By: k ., John A. Koval, Vice C. Aq pEc._ , INC.