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Home My WebLink AboutOPERA HOUSE BLOCK BUILDING PUD - Filed OA-OTHER AGREEMENTS - 2004-01-12SECOND AMENDMENT TO PARKING AGREEMENT THIS SECOND AMENDMENT TO PARKING AGREEMENT is executed this day of %%'Ibn�'tar � , 1990, by and between THE CITY OF FORT COLLINS, COLORADO, a midnicipal corporation (City), the HISTORICAL OPERA HOUSE PROPERTIES, LTD., a Colorado limited partnership (Developer), and WALTER F. BROWN (Brown). W I T N E S S E T H: WHEREAS, on the 6th day of July, 1987, the City, Brown and the Developer entered into a Parking Agreement for the purpose of providing parking spaces for the Opera House Block Building P.U.D. (the Development), which is more particularly described as follows, to wit: Lot 1 of the Plat of Opera House Block Building P.U.D., being a replat of Lots 5, 6, 7 and a portion of Lot 8, all in Block 21, City of Fort Collins, located in the Northeast Quarter of the Southeast Quarter of Section 11, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins, Larimer County, Colorado; and WHEREAS, by amendment dated November 18, 1988, Section 11 of the Parking Agreement was amended; and WHEREAS, the City and the Developer, as a part of the City planning process, have identified 40 parking spaces as the parking requirement for the development; and WHEREAS, separately and in addition, the Developer has identified certain parking needs for the project as a whole, that project including Lots 5 through 13 and the south 6 inches of Lot 14, Block 21, City of Fort Collins, Colorado (the Opera Galleria); and WHEREAS, the Developer has, therefore, through the Parking Agreement, made arrangements for the City to lease to the Developer certain additional parking spaces in order to both satisfy the parking requirements for the development as well as to meet the parking needs of the Opera Galleria; and WHEREAS, as a part of the Parking Agreement, the Developer and Brown, in cooperation with Mountain Avenue Properties, a Development Corporation, had provided 16 parking spaces toward the ultimate aggregation of 185 parking spaces as provided under the Parking Agreement, all as set forth in paragraph 2.2 of the Parking Agreement; and _Y I RCPTN # P901895R 04/28/89 14:2R:13 it OF PACES - 2 FEE - S6.no M. RODENRERCER, RECORDER - LARIMER COUNTY CO STATE DOC FEE- S.00 RESOLUTION NO. PZ89-2 OF THE PLANNING AND ZONING BOARD OF THE CITY OF FORT COLLINS VACATING A PORTION OF A UTILITY EASEMENT ON LOT 1, OF THE PLAT OF OPERA HOUSE BLOCK BUILDING P.U.D. WHEREAS, Section 2-353(4) of the Code of the City of Fort Collins authorizes the Planning and Zoning Board to vacate certain easements and rights -of -way, by resolution or by approval of replats containing notation of such vacation; and WHEREAS, the owner of Lot 1, of Opera House Block Building P.U.D., City of Fort Collins, Larimcr County, Colorado, has requested the vacation of a portion of a utility casement on said Lot 1; and WHEREAS, the City utilities and private utilities have been contacted and express no objection to the proposed vacation. NOW, THEREFORE, be it resolved by the Planning and Zoning Board of the City of Fort Collins that the portion of the utility easement, more particularly described on the attached Exhibit "A," is hereby vacated. Passed and adopted at a regular meeting of the Planning and Zoning Board of the City of Fort Collins held this 24th day of April, A.D. 1989. EXHIBIT "A" UTILITY EASEMENT TO BE VACATED Description of two (2) non-contiguous portions of an existing 10.00 feet wide Utility Easement located in Lot 1 of the "Plat of Opera House Block Building P.U.D.", in the City of Fort Collins, Colorado, and as filed with the Clerk and Recorder of Larimer County, Colorado, to be vacated, being more particularly described as follows, Commencing at the northwest corner of said Lot 1, thence along the west line of said Lot 1 South 00000'36"West 24.98 feet to the northwest corner of the said easement and to the TRUE POINT OF BEGINNING of this portion of the description; thence continuing along the said west lot line, and along the west line of the said easement, South 00000'36" West 18.00 feet; thence leaving said west line North 89059'52"East 8.50 feet; thence South 00000'36" West 32.CO feet to the south line of the said easement; thence along the said south line, North 891159'58" East 1.50 feet to the east line of the said easement; thence along said east line, North 00°00'36" East 50.00 feet to the north line of the said easement; thence along the said north line, South 89059'42 West 10.00 feet to the point of beginning. TOGETHER WITH: that portion of the above described existing easement to be vacated; Commencing at the said northwest corner of Lot 1; thence along the said west line of Lot 1, South 00000'36" West 63.98 feet to the TRUE POINT OF BEGINNING of this portion of the description; thence continuing along the said west lot line, South 00000'36" West 3.00 feet; thence leaving the said west lot line, North 89o59 59" East 3.00 feet; thence North OOo00'36" East 3.00 feet; thence South 89059'59" West 3.00 feet to the point of beginning. The total area of the existing easement to be vacated contains 237 square feet. April 17, 1989 Wallace C. Muscott LS 17497 ENGINEERING PROFESSIONALS INC. PARKING AGREEMENT THIS PARKING AGREEMENT is executed this (!F day of )itily 198'1, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, the ("City") and HISTORICAL OPERA HOUSE P RO P h'R'ClES, LTD., a Colorado Limited Partnership, the ("Developer"), and WALTER F. BROWN. WITNESSETH: WHEREAS, Walter F. Brown is the current owner of that certain property commonly known as the Opera House Block Building P.U.D., the ("Development"), as approved by the City of Fort Collins Planning and 'Zoning Board on April 28, 1986, which property 1s more particularly described as follows, to wit: Lot 1 of the Plat of Opera House Block Building Y.U.U., being a replat of Lots 5, 6, % and a portion of Lot 8, all in Block 21, City of Fort Collins, located in the Northeast Quarter of the Southeast Quarter of Section 11, 'Township 7 North, Range 69 West of the bth PM, City of Fort Collins, Larimer County, Colorado; and WHEREAS, the Developer shall purchase the Development from Walter F. Brown at some time in the future; and WHEREAS, the City and the Developer, as a part of the City of Fort Collins Planning and Zoning Board approval process, have identified forty (40) parking spaces as the parking requirement fox• the Development; and separately, and in addition, the Developer has; identified certain parking needs for the project as a whole, that project including Lots h thru 13, and the So 6 inches of Lot 14, block 21, City of Fort Collins, Colorado, the ("opera Galleria"); the Developer has, therefore, requested that the City lease to the Developer certain parking spaces in order to satisfy the parking requirements for the Development, and in order to meet the parking needs of the Opera Galleria; and WHEREAS, the City plans to establish a parking management plan and policy to be adopted by the Fort Collins City Council, the ("City Council"), as part of a larger downtown planning and revitalization eftort; and WHEREAS, said plan is for the purpose of satisfying parking needs in the downtown area, whose boundaries are herein defined as the same as those for the Downtown Development Authority, the ("Downtown Area"); and Page 1 WHEREAS, said plan may result in the relocation of parking spaces through joint public and private participation in providing parking to satisfy present and future. parking needs in the Downtown Area; and WHEREAS, in satisfaction of the parking requirements for the Development and to meet the parking needs of the Opera Galleria, the Developer and the City desire to execute this Parking Agreement. NOW, THEREFORE, in consideration of the mutual promises of the parties and other good and valuable consideration the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: Section 1. In satisfaction of the parking requirements as imposed upon the Development, as a part of the City of Fort Collins Planning and "Zoning Board approval process for the Development, and to meet the parking needs of the Opera Galleria, the City does hereby agree to provide, in phases as hereinafter described, and upon the conditions as contained herein, one hundred and eighty-five (185) parking spaces. Section 2. Parking spaces: Phases and Location 2.1 The phasing of the provision of the aforesaid parking spaces shallbe as follows: (a) The initial fifty-five (55) spaces shall be leased to the Developer commencing February 1, 1988, or seven (7) months after a building permit for the Development is obtained from the City , whichever .is later, with said spaces to be located in the following parking lots, which lots are more particularly described on Exhibit A attached hereto and incorporated herein by reterence. Twenty-four (24) spaces in LaPorte Avenue Parking Lot; Nineteen (19) spaces in Block 31 Parking Lot; Twelve (12) spaces in Jefferson Street Parking Lot. (b) Thirty seven (37) additional spaces shall be leased to the Developer for a total of ninety- two (92) spaces commencing June 1, 1988 (or four (4) months from the date initial parking spaces are leased Page 2 as provided in subsection 2.1(a) of this Lease Agreement), with said spaces to be located as follows: Forty (40) spaces in LaPorte Avenue Parking Lot; Thirty-two (32) spaces in Block 31 Parking Lot; Twenty (20) spaces in Jefferson Street Parking Lot. (c) Forty-six (46) additional spaces shall be leased to the Developer for a total of one hundred and thirty-eight (138) spaces commencing November 1, 1988 (or nine (9) months from the date initial parking spaces are leased as provided in subsection 2.1(a) of this Lease Agreement), with said spaces to be located as follows: Sixty (60) spaces in LaPorte Avenue Parking Lot; Forty-eight (48) spaces in Block 31 Parking Lot; Thirty (30) spaces in Jefferson Street Parking Lot. (d) Forty-seven (47) additional spaces shall be leased to the Developer for a total of one hundred and eighty-tive (185) spaces commencing April 1, 1989 (or fourteen (14) months from the initial date parking spaces are leased in subsection 2.1(a) of this Lease Agreement), with said spaces to be located as follows: Eighty (80) spaces in LaPorte Avenue Parking Lot; Sixty-five (65) spaces in Block 31 Parking Lot; Forty (40) spaces in Jefferson Street Parking Lot; 2.2 Mountain Avenue Properties - a Development Corporation, presently owns a portion of the property known as the LaPorte Avenue Parking Lot, (that portion being Lot 37, Block 21, City of Fort Collins. State of Colorado), which property, pursuant to a Lease Agreement Page 3 dated February 1, 1985 between Walter F. Brown, individually, as Lessor and the City as Lessee, is presently leased to the City. (Said Lease Agreement was simultaneously assigned to Mountain Avenue Properties - a Development Corporation.) The parties hereto agree that, the eighty (80) total parking spaces in the LaPorte Avenue Parking Lot to be leased to "tie Developer pursuant to subsection 2.1 of this section shall include, and not be in addition to, the sixteen (16) parking spaces provided to the Developer under the February 1, 1985 Lease Agreement, provided however, that the Developer shall not be required to make any lease payment for said sixteen (16) tree parking spaces. 2.3 In the event that the Developer has not obtained a building permit for the Development from the City by October 1, 1987, then the leasehold term for the .initial fifty-five (55) spaces referenced in subsection 2.1(a) of this Section shall commence seven (7) months after said permit is obtained; and each phase of this Parking Agreement shall adjust accordingly. Section 3. This Parking Agreement shall commence upon the execution hereof and shall continue until the anniversary of twenty-tive (25) years from the date of such execution, the ("Term"), at which time this Parking Agreement shall terminate, and shall be null, void and at no turther effect, except as provided in section 11 of this Parking Agreement. Upon expiration of the Term or this Parking Agreement, it is understood and agreed that the Developer shall promptly acquire, by lease or purchase, the number of parking spaces which are necessary to satisfy the parking requirements for the Development; or, in lieu thereof and at the DeveJoper's option, pay to the City that lease rate equivalent to the then existing market lease rate for the same number of parking spaces, and in comparably located substitute parking areas, as are required to satisfy the parking requirements for the Development, so long as that existing market lease rate does not exceed the preceding year lease rate of this Parking Agreement, plus six (6%) percent. of that preceding year's -ease rate. It is expressly understood that termination of this Parking Agreement, or any part hereof, except as provided in Section 11 of this Agreement, does not relieve the Developer of its obligation to satisfy the parking requirements for the Development. Comparably located substitute parking areas shall mean such parking areas as are located within a distance not in excess of eighteen hundred (1800) feet from the geographic center of the Development and shall be defined by "ComparabJy Located". Section 4. In consideration of the provision of the aforesaid parking spaces, in the phases as provided, the Developer does hereby agree to pay to the City, in advance, the total amount Page 4 due for all spaces leased for any given phase, on the commencement date as provided in Section 2 hereof until April 7., 1989, or fourteen (141 months from the initial date narking spaces are leased according to subsection 2.1(a), whichever shall come later. By that date all one hundred and eighty --live (185) spaces shall be leased to the Developer. Commencing on that date, and upon the anniversary date of each year thereafter, the Developer shall pay to the City, in advance, for one hundred and eighty-five (185) spaces (lass the s;):teer, (IE') free spaces as described in subsection 2.2, rot the remaining 'Perm of this Parking Agreement, except as may be subsequently modified by :Sections 5, 8 and/or 11. The lease rate shall be calculated to compensate the City at a base rate of 'ten ($10.00) dollars per month per leased parking space, the ('Base Rate"), (except that no rental payment shall be paid for the sixteen (16) free spaces as described in subsection 2.2) plus or minus such additional sum as shall be necessary to equal the then existing market lease rate for Comparably Located parking spaces in City owned Downtown Area surface parking lots, or, in the event that there are no City owned Downtown Area surface parking lots, the then existing market rate for Comparably Located Downtown Area off-street surface parking spaces; however, in no event shall the lease rate, in either case, exceed the previous year's lease rate of this Parking Agreement plus s:i.x (6%) percent of that previous year's lease rate. All such payments, shall be fully due and payable in advance of each phase, or upon the anniversary date of the commencement of the Developer's paying for the toll number of parking spaces and each year thereafter. A payment schedule illustrating the aforesaid payment mechanism is set forth on Exhibit B attached hereto and by this reference incorporated herein. Section 5. substitute Parking Spaces 5.1 It is understood that the parking spaces specified in Section 2 hereof, cannot be guaranteed by the City for the full Term of this Parking Agreement. In the event that the City council establishes additional policies or plans for satisfying Downtown Area parking needs, and such plans result in relocation, or, in the event of circumstances beyond the legal control of the City, which should result in the unavailability of said parking spaces for the Development, except as provided in Sections 5, 8, and/or 11, the City shall provide the Developer with Comparably Located substitute parking spaces in order to afford the Developer the same member of comparably Located spaces as are provided in this Parking Agreement. The City will consult with the Developer for the purpose of taking into consideration the Developer's recommendation regarding the location of such Comparably Located substitute parking spaces. Page 5 5.2 In the event that it shall become necessary for the City to provide Comparably Located substitute parking spaces as referenced in subsection 5.1, the lease rate shall be the then existing market lease rate for Comparably Located Downtown Area surface parking spaces, not to exceed the previous year's lease rate of this Parking Agreement plus six percent (6%) or that previous year's lease rate. It the Gity is not reasonably able to provide comparably l.,ocated substitute parking spaces at a cost which will make the City as financially whole as it is currently made financially whole in leasing parking spaces in the Downtown Area, at the above lease rate, the City staff shall present to the Fort_ Collins City Council the issue of acquisition of such spaces at a cost in excess of that cost which is equally recoverable at the above lease rate. It the Fort Collins City Council should determine to acquire such spaces, and make appropriation therefor, then this Parking Agreement shall continue in effect at the above lease rate. it the City Council should determine not to authorize such appropriation, and the Developer should not agree to an amended, increased lease rate which would. make the City as financially whole as it is currently made financially whole in leasing parking spaces in the Downtown Area, then the start shall investigate and propose the creation or a special improvement district tar the purpose or providing such spaces, together with all other spaces in the Downtown Area, and it the Fort Got[ -ins City Council should create such special improvement district for the Downtown Area, the Developer agrees to share equitably in the assessment levied by such special improvement district, so long as such assessment would he equally and proportionately levied on all other property owners within sucn special improvement district. It all of the foregoing alternatives should fait, then the City's obligation to provide Comparably ;located substitute parking spaces shall terminate. 5.3 Any obligation of the City to provide Comparably Located substitute parking spaces pursuant to this Parking Agreement shall automatically terminate to the extent that such parking is provided by the City using the resources of other, entities such as the Downtown Development Autnority, a separately const.tuted narking authority, or other similar entities so long as the lease rate does not exceed the previous, year's lease rate or this Parking Agreement plus six (6%) percent of that previous year's lease rate. Section 6. In the event that the City purchases Lot 37, Block 21, City or Fort Collins, State of Colorado, which is a portion of the LaPorte Avenue Parking Lot, for parking purposes only, the Developer shall have a right of first refusal to use Page 6 such property for the parking requirements of the Development provided that the Developer shall pay a fee for such use at the Base Rate set forth in Section 4 of this Parking Agreement (being $10. per month) plus the rate adjustment factor as set forth in Section 4. Se_ction_._7. It shall be the obligation of the City at its sole cost to maintain and repair all parking spaces leased pursuant to this Parking Agreement in accordance with the city's standards for such maintenance and repair and customary maintenance practices. Section. 8. In the event that the Developer should provide, utilizing its own resources, or by marshalling resources or others, parking spaces to satisfy parking requirements for the Development or the parking needs of the opera Galleria, then Developer shall have the option to terminate the leasing of all or a part of the parking spaces as provided for in Section 2, hereof, provided that such termination shall not become effective until such alternative parking spaces are fully constructed and ready for occupancy and provided that such parking spaces are Comparably Located. Sectio_n,_9. Subject to the subletting provisions of this Section, the allocation of the parking spaces as provided herein shall be made available to the tenants of the Development and their employees, and to the tenants of the opera Galleria and their employees only, and not to customers of the Development or of the opera Galleria. The Developer may sublease any of the parking spaces which are the subject of this Parking Agreement, to individuals or companies who are tenants of the Development, or their employees, or who are tenants of the opera Galleria or their employees. The Developer shall obtain verbal acknowledgement from the City's Director of Development Services prior to subleasing any of the parking spaces which are the subject of this Parking Agreement, to individuals or companies who are not tenants of the Development, or their employees, or who are not tenants of the Opera Galleria or their employees. in either case, any sublease shall be at a rate not in excess of the lease rate as established pursuant hereto. Se_ction_10. This Parking Agreement shall inure to the benefit of the City and the Developer, and their successors, assigns, representatives and agents. This Parking Agreement shall be fully assignable by the parties hereto. If this Parking Agreement is assigned, it shall become an obligation of any and all assignees. This Parking Agreement shall be deemed to run with the land known as the Development. At such time as Walter F. Brown assigns this Parking Agreement to the Developer, Walter F. Brown shall be relieved of all obligations under this Parking Agreement. Page 7 WHEREAS, W.F.B. Enterprises Management Co. (present owner of Lot 37) now desires to convey the aforesaid 16 parking spaces (Lot 37, Block 21, City of Fort Collins, State of Colorado) , to the Glacier Park Company (Glacier) in exchange for Glacier's conveyance of Lot 39, Block 21, City of Fort Collins, State of Colorado, to third parties; and WHEREAS, said conveyance would result in the diminution of available parking spaces in the LaPorte Avenue parking lot by 16 spaces and would render it impossible for the Developer to strictly comply with paragraph 2.2 of the Parking Agreement; and WHEREAS, the purpose of this Agreement is to acknowledge the conveyance of said Lot 37, Block 21, City of Fort Collins, and the corresponding diminution in the number of parking spaces available under the Parking Agreement in the LaPorte Avenue parking lot, all upon the terms and conditions as are hereafter provided, which terms and conditions are designed to protect and preserve the original intention of the parties to the Parking Agreement. NOW, THEREFORE, in consideration of the mutual promises of the parties and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. Upon the conditions as are hereafter provided, the City agrees that it shall not raise any objection to the conveyance of Lot 37, Block 21 in the City of Fort Collins, State of Colorado, to a third party or parties with the resultant diminution in the number of available spaces in the LaPorte Avenue parking lot by 16 spaces. In pursuance thereof, the City agrees to execute the letter to Alden T. and Alden V. Hill, attached. 2. It is understood that, because of :he conveyance of Lot 37, Block 21 as aforesaid, the Developer will be unable to comply with the provisions of Section 2.2 of the Parking Agreement and that, as an express condition of the City's assent to the conveyance of said Lot, the Developer agrees to acquire, by purchase, lease or otherwise, an additional 16 "Comparably Located" parking spaces, as said term is defined in Section 3 of the Parking Agreement, in order to assure that a total of 185 parking spaces are provided under the Parking Agreement, as amended, upon the completion of the ultimate phase as is set forth in Section 2.1(d) of the Parking Agreement. 3. In the event that the Developer should fail to provide a total of 185 parking spaces at the time of the final phase as specified in Section 2.1(d) of the Parking Agreement, the City may declare the Parking Agreement to be in default pursuant to Section 12.02 and may avail itself of all remedies as are provided in the event of default and as are set forth in Sections 12 and 13 of the Parking Agreement. Upon any such termination, the City may, but is 2 Section 11. This Parking Agreement is expressly contingent upon the Developer obtaining a building permit for the Development, and it the Developer should failto obtain such building permit by October 1, 1988, then this Parking Agreement shall be null and void and of no further force and effect. Section 12. Events of Default and Remedies 12.01 In the event the Developer should fail to make any payment required to be made pursuant to the terms and conditions of this Parking Agreement within forty-five (45) days after written notice thereof, then the Developer shall he deemed to be indefault of this Parking Agreement. 'Then the City may, at its option, elect to immediately terminate the Parking Agreement or treat the Parking Agreement as continuing and require specific performance of the Parking Agreement. 12.02 In the event that either the Developer, its successors or assigns, or the City, its successors or assigns, defaults in the performance of any of the non -monetary terms and conditions of this Parking Agreement; and in the event that the defaulting party hereof fails to correct such default within thirty (30) days after written notice thereof to the defaulting party, except that it such default cannot be reasonably cured within said thirty (30) day period, the defaulting party shall not be deemed to be in default of this Parking Agreement so long as it has commenced all reasonable action necessary to cure such default within said thirty (30) day peri.od and thereafter actively and diligently proceeds to effect such cure, then that defaulting party shall be deemed to be in default of this Parking Agreement. Then the non -defaulting party may, at its option, elect to immediately terminate this Parking Agreement or may require specific performance of the Parking Agreement. Section 13. In the event of default of any of the terms and conditions herein contained by either party which shall require the non -defaulting party to commence legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non --defaulting party for the non -defaulting party's reasonable tees and reasonable costs incurred because of the default. Section 14. As time is of the essence hereof, each and every term and condition of this Parking Agreement shall be deemed a material element of this Parking Agreement. Section 15. All notices under this Parking Agreement shall be deemed to be properly served only if personally delivered, or it sent postage prepaid by registered or certitied mail, return receipt requested to the City or the Developer, as the case may Page 8 be, at the address set forth in this Section, or to such other address as either party may designate by notice given in compliance with this Section. Such notice shall be deemed to have been given on the date upon which it is personally delivered, or three (3) days after it is deposited in the mail. CITY: City of Fort Collins 300 Laporte Avenue P.O. Box 580 Fort Collins, Colorado 80522 DEVELOPER: Historical Opera House Properties, Ltd. c/o Mountain Avenue Properties - A Development Corporation 117 East Mountain Avenue, Suite 205 Fort Collins, Colorado 80524 Section 16. The laws of the State of Colorado shall govern the validity, performance and enforcement of this Parking Agreement and City and Developer submit to the jurisdiction of the appropriate federal or state court in Colorado. This Parking Agreement shall be construed not for or against City or Developer, no matter which party prepared it, but rather, this Parking Agreement shall be interpreted in accordance with general tenor of the language in an effort to reach an equitable result. Section 17. The sections, subsections and paragraph and their entitlements are inserted for convenience of reference only and shall in no way effect, modify or define, or be used in construing, the text of such sections, subsections and paragraphs. IN WITNESS WHEREOF, the parties hereto have executed this Parking Agreement the day and year first above written. CITY OF' FORT COLLINS, COLORADO A Municipal Corporation By CiC - - ty Manager Page 9 ATTEST: I _ - City Clerk STATE OF COLORADO ) ss. COUNTY OF LARIMER ) Subscribed and sworn to before me this(_k day of 1987, by Steven C. Burkett, City Manager. Witness my hand and official seal. My commission expires: Notary Public APPROVED AS TO®FORM: Assistant City Attorney HISTORICAL OPERA HOUSE PROPERTIES, LTD. Walter F. Brown General Partner STATE OF COLORADO ) ss. COUNTY OF LARIMER ) Subscribed and sworn to before me 1987, by Walter F. Brown, General Partner. Page 10 this i '_ day of Witness my hand and official seal. My commission expires:,1r. Notary Public 1 WALTER F. BROWN -'Walter-IF. Brown STATE OF COLORADO ss. COUNTY OF LAR.IMER ) Subscribed and sworn to before me this day of 1987, by Walter F. Brown. Witness my hand and official seal. My commission expires:' 1' Notar Publi�c7 , -- _ ..t_ Y Page 11 EXHIBIT A OF THE PARKING AGREEMENT LOCATION OF THE FOLLOWING CITY PARKING LOTS: A - LaPorte Avenue Parking Lot B - Block 31 Parking Lot C - Jefferson Street Parking Lot THE LETTERS A, B, AND C INDICATE THE LOCATIONS OF THE PARKING LOTS. AREAS ARE NOT TO SCALE. EXHIBIT B PAYMENT SCHEDULE NUMBER* OF LEASED DUE DATE PARKING SPACES PAYMENT 1. February 1, 1988** 39*** $ 1,,560.00 (39 spaces x $10.00 x 4 months) 2. June 1, 1988 76 $ 3,800.00 (76 spaces x $10.00 x 5 months) 3. November 1, 1988 122 S 6,100.00 (122 spaces x $10.00 x 5 months) 4. April 1, 1989 169 $20,280.00 (169 spaces x $10.00 x 12 months) 5. Commencing therearter, the annual payment shall be due, during the Term of the Parking Agreement, on April 1 or each year, or on the anniversary date of rourteen (14) months from the initial date parking spaces are leased, whichever shall come later. *This column represents a cumulative total or leased parking spaces. **or seven (7) months after Developer has obtained a building permit for the Development from the City or Fort Collins Building Inspection Office, whichever is later. ***The number thirty-nine (39) is derived from subtracting the 16 tree parking spaces From the number fifty-five (55) in subsection 2.1(a). The result is the number of spaces for which the Developer actually pays. RCPTN # 86040324-7/25/86 12:07:28 # OF "GES - 1 FEE - $3.00 J. ULVANG, RECORDEI. - LARIMER COUNTY, CO. STA , DOC. FEE- $.00 NO`1' I CE Please take notice that on April 28, 1986, the Planninq and Zoninq hoard of the City of Fort Collins, Colorado, approved the E'inal PUD Plan known as 01pxe,a House PUD, which development was suhmit_ted and processed in accordance with section 118-83 of the Cooe of the City of Fort Collins. J)(, L'ina] PUD Plan of the suljcc'• proterty together with the develope�,--nt ncrc•emcrnt oatoi April �4, 1986 L�tween the City of Fort Collins and the de,vojopor, out of which <3ocuments accrue certain rights and obligations 0i the develojx,r and/or subsequent o�,qners of the subject property, are on file n the office of the Clerk of the City of Fort Collins. rho subject property is r�ore particularly described as follows: Beirnq a Pcplat of Lots 5,6, & 7 and a portion of Lot 8, all in Block. 21, City of Port Collins, locate,: in the NF 1/4 of the SE 1/4 of Section 11 Township 7 North Pange r,9 West of the 6th P.M. City of Fort Collins, Lar.imer County, Colorado. City Clcr , .,ecrcl-.ar Pl. �nn:nc and Zoninq -iojr6 City of 'prt Collins Dated: DEVELOPMENT AGREEMENT THIS AGREEMENT, made and entered into this i day of A.D. 192, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as "the City," and W.ALTER BROWN, owner, hereinafter referred to as "the Developer," IJTTKICCCCT4 WHEREAS, the Developer is the owner of certain property situate in the County of Larimer, State of Colorado, and legally described as follows, to -wit: Opera House Block Building P.U.D., being a replat of Lots 5, 6, 7 and a portion of Lot 8, all in Block 21, of the City of Fort Collins, located in the Northeast Quarter of the Southeast Quarter of Section 11, Township 7 North, Range 69 West of the Sixth P.M., City of Fort Collins, Larimer County, Colorado. WHEREAS, the developer desires to develop said property and has submitted to the City a subdivision plat and/or a site plan, a copy of which is on file in the Office of the City Engineer and made a part hereof by reference: and WHEREAS, the Developer has further submitted to the City a utility plan for said lands, a copy of which is on file in the office of the City Engineer and made a part hereof by reference; and WHEREAS, the parties hereto have agreed that the development of said lands will require increased municipal services from the City in order to serve such area and will further require the installation of certain improvements primarily of benefit to the lands to he developed and not to the City of Fort Collins as a whole; and WHEREAS, the City has approved the subdivision plat and/or site plan submitted by the Developer subject to certain requirements and conditions which involve the installation of and construction of utilities and other municipal improvements in connection with said lands. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, it is agreed as follows: 1. General Conditions. A. All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs, gutters, sidewalks, and bikepaths shall be installed as shown on the approved utility plans and in full compliance with the Council -approved standards and specifications of the City on file in the Office of the City Engineer at the time of approval of the utility plans relating to the specific utility, subject to a two (2) year time limitation from the date of execution of this agreement. In the event that the Developer commences or performs any construction pursuant hereto after two (2) years from the date of execution of this agreement, the Developer shall resubmit the project utility plans to the City Engineer for reexamination. The City may require the Developer to comply with approved standards and specifications of the City on file in the Office of the City Engineer at the time of resubmittal. B. No building permit for the construction of any structure within the development shall be issued by the City until the water lines, fire hydrants, sanitary sewer and streets (with at least the base course completed) serving such structure -2- have seen completed and accepted by the City. No building permits shall be issued for any structure located in excess of six hundred sixty feet (660') from a single point of access. C. Any water lines, sanitary sewer lines, storm drainage lines, and/or streets described on Exhibit "A", attached hereto, shall be installed within the time and/or sequence required on Exhibit "A". If the City Engineer has determined that any water lines, sanitary sewer lines, storm sewer facilities and/or streets are required to provide service or access to other areas of the City, those facilities shall be shown on the utility plans and shall be installed by the Developer within the time as established under "Special Conditions" in this document. D. Except as otherwise herein specifically agreed, the Developer agrees to install and pay for all water, sanitary sewer and storm sewer facilities and appurtenances, and all streets, curbing, gutter, sidewalks, bikeways and other municipal facilities necessary to serve the lands within the development. E. Street improvements (except curbing, gutter and walks) shall not be installed until all utility lines to be placed therein have been completely installed, including all individual lot service lines leading in and from the main to the property line. F. The installation of all utilities shown on the utility -3- not obligated to, enter into a new parking agreement for the purpose of providing the 40 parking spaces as have been determined by the Planning and Zoning Board to be necessary for the completion of the Development. 4. The City shall not be responsible for providing said 16 substitute parking spaces. 5. The Lease Agreement dated February 1, 1985, between Brown and the City shall be terminated upon receipt by the City of thirty (30) days advance written notice of such termination. 6. Upon conveyance of said Lot 37, Block 21 of the City of Fort Collins as above provided, the Developer shall no longer be entitled to the 1116 free spaces" as is set forth in Section 4 of the Parking Agreement; and Exhibit "B" of the Parking Agreement, which constitutes the payment schedule, shall be amended accordingly. The amended Exhibit "B" is attached hereto and incorporated herein by this reference. 7. This Agreement shall inure to the benefit of the City and the Developer and their successors, assigns, representatives and agents. This Agreement shall be deemed to run with the land known as the Development. Except as Section 2.2, Section 4 and Exhibit B of the Parking Agreement are amended hereby, all other sections and provisions of the Parking Agreement shall be deemed to apply to this Amendment Agreement and shall continue in full force and effect, provided, however, that all such provisions of the Parking Agreement shall be interpreted to give effect to the intentions of the parties as is set forth in this Amendment Agreement. Q drawings shall be inspected by the Engineering Division of the City and shall be subjected to such department's approval. The Developer agrees to correct any deficiencies in such installations in order to meet the requirements of the plans and/or specifications applicable to such installation. In case of conflict, the utility drawings shall supersede the standard specifications. G. All storm drainage facilities shall be so designed and constructed by the Developer as to protect downstream and adjacent properties against injury and to adequately serve the property to be developed (and other lands as may be required, if any). The Developer has met or exceeded minimum requirements for storm drainage facilities as have been established by the City in its Drainage Master Plans and Design Criteria. The Developer does hereby indemnify and hold harmless the City from any and all claims that might arise, directly or indirectly, as a result of the discharge of injurious storm drainage or seepage waters from the development in a manner or quantity different from that which was historically discharged and caused by the design or construction of the storm drainage facilities, except for (1) such claims and damages as are caused by the acts or omissions of the City in maintenance of such facilities as have been accepted by the City for maintenance; (2) errors, if any, in the general concept of the City's master plans (but not to include any details of such plans, which details shall be the responsibility of the Developer); and (3) -4- specific directives as may be given to the Developer by the City. Approval of and acceptance by the City of any storm drainage facility design or construction shall in no manner be deemed to constitute a waiver or relinquishment by the City of the aforesaid indemnification. The Developer shall engage a licensed professional engineer to design the storm drainage facilities as aforesaid and it is expressly affirmed hereby that such engagement shall be intended for the benefit of the City, subsequent purchasers of property in the development and downstream and adjacent property owners all of whom shall be third party beneficiaries of said agreement between the Developer and Engineer. H. The Developer shall pay storm drainage basin fees in accordance with Chapter 93 of the City Code. Storm drainage improvements eligible for credit or City repayment under provisions of Chapter 93 are described together with the estimated cost of the improvements on the attached Exhibit "B", which improvements shall include right of way, design and construction costs. The basin fee payable by the Developer shall be reduced by the estimated cost of said eligible improvements. Upon completion of such eligible improvements, the amount of such reduction shall be adjusted to reflect the actual cost. If the cost of the eligible improvements constructed by the Developer and described in the above mentioned exhibit exceeds the amount of the storm drainage fees payable for the development, the City shall -5- reimburse the excess cost out of the Storm Drainage fund upon completion of the improvements and approval of the construction by the City. I. The Developer shall provide the City Engineer with certified Record Utility Drawing Transparencies on Black Image Diazo Reverse Mylars upon completion of any phase of the construction. 2. Special Conditions. It is acknowledged by the parties hereto that the development is in fact a downtown redevelopment project utilizing existing structures with existing municipal services. The developer's only requirements with regard to public improvements for this development are the underyrounding of electrical lines, the abandonment and installation of certain water and sewer taps, and the installation of certain storm drainage lines, as more specifically set forth on the utility plans for the development. Such requirements will necessitate the repair of the adjacent alley and removal and reinstallation of certain portions of curb, gutter and sidewalk by the Developer and the Developer will be responsible for performing such according to City specifications. No water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curb and gutters, sidewalks or bikepaths are required to be installed for this development other than those described within this paragraph. Therefore, notwithstanding the provisions of Sections I.A. through I.I., inclusive, the developer shall not be required, as a condition of plan approval, permit issuance or otherwise, to install any other public, improvements referenced therein, nor does the Developer make any representations, warranties or indemnifications with regard to the existing public improvements and facilities servicing the development and the developer does hereby expressly disclaim the same. 3. Miscellaneous A. The Developer agrees to provide and install, at his expense, adequate barricades, warning signs and similar safety devices at all construction sites within the public right-of-way and/or other areas as deemed necessary by the City Engineer in accordance with the City's "Work Area Traffic Control M Handbook" and shall not remove said safety devices until the construction has been approved by the City Engineer. B. The Developer shall, at all times, keep the public right - of --way free from accumulation of waste material or rubbish caused by his operation, shall remove such rubbish no less than weekly and, at the completion of the work, shall remove all such waste materials, rubbish, tools, construction equipment, machinery, and surplus materials from the public right-of-way. He further agrees to maintain the finished street surfaces free from dirt caused by his operation. Any excessive accumulation of dirt and/or construction materials shall be considered sufficient cause for the City to withhold building permits and/or certificates of occupancy until corrected to the satisfaction of the City Engineer. If the Developer fails to adequately clean such streets within two (2) days after receipt of written notice, the City may have the streets cleaned at his expense and he shall be respon- sible for prompt payment of all such costs. C. The Developer hereby insures that his subcontractors shall cooperate with the City's construction inspectors by ceasing operations when winds are of sufficient velocity to create blowing dust which, in the inspector's opinion, is hazardous to the public health and welfare. D. When the inspector determines that erosion (either by wind or water) is likely to be a problem, the surface area of erodable earth material exposed at any one time shall not exceed 200,000 square feet for earthworks operations. -7- Temporary or permanent erosion control shall be incorporated into the subdivision at the earliest practicable time. By way of explanation and without limitation, said control may consist of seeding of approved grasses, temporary dikes, gabions, and/or other devices. E. 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 original plat, or on any replat subsequently filed by the Developer, and the City may withhold such building permits and certificates of occupancy as it deems necessary to ensure performance hereof. In addition, it is agreed and understood between the developer and the City that the City shall have the right to refuse issuance of building permits and certificates of occupancy in the subject development as the City, in its sole discretion, shall deem necessary in order to insure performance by the Developer of any other obligation the Developer may have to the City, whether pursuant to other development agreements, or otherwise. F. Nothing herein contained shall be construed as a waiver of any requirements of the City Code, and the Developer agrees to comply with all requirements of the same. G. 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. to H. Financial obligations of the City of Fort Collins payable after the current fiscal year and/or not appropriated or budgeted are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. I. This Agreement shall run with the real property hereinabove described and shall be binding upon the parties hereto, their personal representatives, heirs, successors, grantees and assigns. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, assignment of any portion of the Developer's proprietary interest in the real property hereinabove described, as well as any assignment of the Developer's rights to develop such property under the terms and conditions of this Agreement. J. In the event the Developer hereafter transfers title to such real property and is thereby divested of all equitable and legal interest in said property, the City hereby agrees to release said Developer 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. K. Each and every term and condition of this Agreement shall be deemed to be a material element thereof. In the event either party shall fail or refuse to perform according to the terms of this Agreement, such party may be declared in default. In the event a party has been declared in default hereof, such defaulting party shall be allowed a period of five (5) days within which to cure said default. In the event the default MOZ 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. In the event of 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 attorneys' fees and costs incurred by reason of default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph 3 E of this Agreement. ATTEST: City Clerk APPROVED AS TO FORM: THE CITY OF FORT COLLINS, COLORADO A Mun'cipal Corporation By C _ City Mana er OWNER �- I WaAt6r Brown -10- EXHIBIT "A" 1. Schedule of water lines to be installed out of sequence. Not Applicable. 2. Schedule of sanitary sewer lines to be installed out of sequence. Not Applicable. 3. Schedule of street improvements to be installed out of sequence. Not applicable. 4. Storm drainaye improvements to be installed out of sequence. Not applicable. -11- r WIITnTT ..D 11 The Development Agreement for opera House Block Building P.U.D. This exhibit does not apply to this development. COST ESTIMATE FOR MAJOR DRAINAGE IMPROVEMENTS Include only those major storm drainage basin improvements required by an adopted basin master plan. ITEM DESCRIPTION I. Storm sewer, manholes, end sections, etc- 2 Sub -Total Channel excavation, detention pond excavation and riprap Sub -Total TY UNIT COST TOTAL COST L.f. /L.f. $ L.f. /L.f. $ Ea. Ea. $ Ea. Ea. $ t C.Y. $ /C.Y. $ C.Y. $ /C.Y. $ C.Y. $ /C.Y. $ S EXHIBIT B - Page 2 ITEM DESCRIPTION 3. Right-of-way & easement acquisition ( a) (b) Sub -Total 4 ( a) Professional Design Other NTITY _ UNIT COST. __ TO-TAL COST S.F. $ /S.F. $ Ac. $ /Ac. $ Lump Sum $ Total estimated cost of Storm Drainage improvements eligible for credit or City repayment Prepared by: Title: Address: IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. THE CITY OF FORT COLLINS A Municipal Corporation By: C &� City Manager WOOL- 1tI�Mw APPROj AS TO FORM: puty City Attorney STATE OF COLORADO ) ss. County of Larimer ) Subscribed and sworn to before mP� this day of (21j j'1XVQ ]990, b�' :-5kIo4-i-) ('• / tc-i-Pe� , City Manager a (t,ic,�tJrc 1)�- /'/� 11cee- , City Clerk of the City of Fort Collins, Colorado. Witness my hand and official seal. Notary Public My Commission Expires: 4 PARKING AGREEMENT THIS PARKING AGREEMENT is executed this (' day of 1987, by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, the ("City") and HISTORICAL OPERA HOUSE PROPERTIES, LTD., a Colorado Limited Partnership, the ("Developer"), and WALTER F. BROWN. WITNESSETH: WHEREAS, Walter F. Brown is the current owner of that certain property commonly known as the opera House Block Building P.U.D., the ("Development"), as approved by the City of Fort Collins Planning and Zoning Board on April 28, 1986, which property is more particularly described as follows, to wit: Lot 1 of the Plat of Opera House Block Building P.U.D., being a replat of Lots 5, 6, 7 and a portion of Lot 8, all in Block 21, City of Fort Collins, located in the Northeast Quarter of the Southeast Quarter of Section 11, Township 7 North, Range 69 West of the 6th PM, City of Fort Collins, Larimer County, Colorado; and WHEREAS, the Developer shall purchase the Development from Walter F. Brown at some time in the future; and WHEREAS, the City and the Developer, as a part of the City of Fort Collins Planning and Zoning Board approval process, have identified forty (40) parking spaces as the parking requirement for the Development; and separately, and in addition, the Developer has identified certain parking needs for the project as a whole, that project including Lots 5 thru 13, and the So 6 inches of Lot 14, Block 21, City of Fort Collins, Colorado, the ("Opera Galleria"); the Developer has, therefore, requested that the City lease to the Developer certain parking spaces in order to satisfy the parking requirements for the Development, and in order to meet the parking needs of the opera Galleria; and WHEREAS,, the City plans to establish a parking management plan and policy to be adopted by the Fort Collins City Council, the ("City Council"), as part of a larger downtown planning and revitalization effort; and WHEREAS, said plan is for the purpose of satisfying parking needs in the downtown area, whose boundaries are herein defined as the same as those for the Downtown Development Authority, the ("Downtown Area"); and Page 1 WHEREAS, said plan may result in the relocation of parking spaces through joint public and private participation in providing parking to satisfy present and future parking needs in the Downtown Area; and WHEREAS, in satisfaction of the parking requirements for the Development and to meet the parking needs of the Opera Galleria, the Developer and the City desire to execute this Parking Agreement. NOW, THEREFORE, in consideration of the mutual promises of the parties and other good and valuable consideration the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: Section_1. In satisfaction of the parking requirements as imposed upon the Development, as a part of the City of Fort Collins Planning and Zoning Board approval process for the Development, and to meet the parking needs of the opera Galleria, the City does hereby agree to provide, in phases as hereinafter described, .and upon the conditions as contained herein, one hundred and eighty-five (185) parking spaces. Section 2. Parking Spaces: Phases and Location 2.1 The phasing of the provision of the aforesaid parking spaces shall be as follows: (a) The initial fifty-five (55) spaces shall be leased to the Developer commencing February 1, 19B8, or seven (7) months after a building permit for the Development is obtained from the City , whichever is later, with said spaces to be located in the following parking lots, which lots are more particularly described on Exhibit A attached hereto and incorporated herein by reference. Twenty-four (24) spaces in LaPorte Avenue Parking Lot; Nineteen (19) spaces in Block 31 Parking Lot; Twelve (12) spaces in Jefferson Street Parking Lot. (b) Thirty seven (37) additional spaces shall be leased to the Developer for a total of ninety- two (92) spaces commencing June 1, 1988 (or four (4) months from the date initial parking spaces are leased Page 2 as provided in subsection 2.1(a) of this Lease Agreement), with said spaces to be located as follows: Forty (40) spaces in LaPorte Avenue Parking Lot; Thirty-two (32) spaces in Block 31 Parking Lot; Twenty (20) spaces in Jefferson Street Parking Lot. (c) Forty-six (46) additional spaces shall be leased to the Developer for a total of one hundred and thirty-eight (138) spaces commencing November 1, 1988 (or nine (9) months from the date initial parking spaces are leased as provided in subsection 2.1(a) of this Lease Agreement), with said spaces to be located as follows: Sixty (60) spaces in LaPorte Avenue Parking Lot; Forty-eight (48) spaces in Block 31 Parking Lot; Thirty (30) spaces in Jefferson Street Parking Lot. (d) Forty-seven (47) additional spaces shall be leased to the Developer for a total of one hundred and eighty-five (185) spaces commencing April 1, 1969 (or fourteen (14) months from the initial date parking spaces are leased in subsection 2.1(a) of this Lease Agreement), with said spaces to be located as follows: Eighty (80) spaces in LaPorte Avenue Parking Lot; Sixty-five (65) spaces in Block 31 Parking Lot; Forty (40) spaces in Jefferson Street Parking Lot; 2.2 Mountain Avenue Properties - a Development Corporation, presently owns a portion of the property known as the LaPorte Avenue Parking Lot, (that portion being Lot 37, Block 21, City of Fort Collins, State of Colorado), which property, pursuant to a Lease Agreement Page 3 dated February 1, 1985 between Walter F. Brown, individually, as Lessor and the City as Lessee, is presently leased to the City. (Said Lease Agreement was simultaneously assigned to Mountain Avenue Properties - a Development Corporation.) The parties hereto agree that, the eighty (80) total parking spaces in the LaPorte Avenue Parking Lot to be leased to the Developer pursuant to subsection 2.1 of this Section shall include, and not be in addition to, the sixteen (16) parking spaces provided to the Developer under the February 1, 1985 Lease Agreement, provided however, that the Developer shall not be required to make any lease payment for said sixteen (16) free parking spaces. 2.3 In the event that the Developer has not obtained a building permit for the Development from the City by October 1, 1987, then the leasehold term for the initial fifty-five (55) spaces referenced in subsection 2.1(a) of this Section shall commence seven (7) months after said permit is obtained; and each phase of this Parking Agreement shall adjust accordingly. Section 3. This Parking Agreement shall commence upon the execution hereof and shall continue until the anniversary of twenty-five (25) years from the date of such execution, the ("Term"), at which time this Parking Agreement shall terminate, and shall be null, void and of no further effect, except as provided in Section 11 of this Parking Agreement. Upon expiration of the Term of this Parking Agreement, it is understood and agreed that the Developer shall promptly acquire, by lease or purchase, the number of parking spaces which are necessary to satisfy the parking requirements for the Development; or, in lieu thereof and at the Developer's option, pay to the City that lease rate equivalent to the then existing market lease rate for the same number of parking spaces, and in comparably located substitute parking areas, as are required to satisfy the parking requirements for the Development, so long as that existing market lease rate does not exceed the preceding year lease rate of this Parking Agreement, plus six (6%) percent of that preceding year's lease rate. It is expressly understood that termination of this Parking Agreement, or any part hereof, except as provided in Section 11 of this Agreement, does not relieve the Developer of its obligation to satisfy the parking requirements for the Development. Comparably located substitute parking areas shall mean such parking areas as are located within a distance not in excess of eighteen hundred (1800) feet from the geographic center of the Development and shall be defined by "Comparably Located". Section 4. In consideration of the provision of the aforesaid parking spaces, in the phases as provided, the Developer does hereby agree to pay to the City, in advance, the total amount Page 4 due for all spaces leased for any given phase, on the commencement date as provided in Section 2 hereof until April 1, 1989, or fourteen (14) months from the initial date parking spaces are leased according to subsection 2.1(a), whichever shall come later. By that date all one hundred and eighty-five (185) spaces shall be leased to the Developer. Commencing on that date, and upon the anniversary date of each year thereafter, the Developer shall pay to the City, in advance, for one hundred and eighty-five (185) spaces (less the sixteen (16) free spaces as described in subsection 2.2, for the remaining Term of this Parking Agreement, except as may be subsequently modified by Sections 5, 8 and/or 11. The lease rate shall be calculated to compensate the City at a base rate of Ten ($10.00) dollars per month per leased parking space, the ("Base Rate"), (except that no rental payment shall be paid for the sixteen (16) free spaces as described in subsection 2.2) plus or minus such additional sum as shall be necessary to equal the then existing market lease rate for Comparably Located parking spaces in City owned Downtown Area surface parking lots, or, in the event that there are no City owned Downtown Area surface parking lots, the then existing market rate for Comparably Located Downtown Area off-street surface parking spaces; however, in no event shall the lease rate, in either case, exceed the previous year's lease rate of this Parking Agreement plus six (6%) percent of that previous year's lease rate. All such payments, shall be fully due and payable in advance of each phase, or upon the anniversary date of the commencement of the Developer's paying for the full number of parking spaces and each year thereafter. A payment schedule illustrating the aforesaid payment mechanism is set forth on Exhibit B attached hereto and by this reference incorporated herein. Section 5. Substitute Parking Spaces 5.1 It is understood that the parking spaces specified in Section 2 hereof, cannot be guaranteed by the City for the full Term of this Parking Agreement. In the event that the City Council establishes additional policies or plans for satisfying Downtown Area parking needs, and such plans result in relocation, or, in the event of circumstances beyond the legal control of the City, which should result in the unavailability of said parking spaces for the Development, except as provided in Sections 5, 8, and/or 11, the City shall provide the Developer with Comparably Located substitute parking spaces in order to afford the Developer the same number of Comparably Located spaces as are provided in this Parking Agreement. The City will consult with the Developer for the purpose of taking into consideration the Developer's recommendation regarding the location of such Comparably Located substitute parking spaces. Page 5 5.2 In the event that it shall become necessary for the City to provide Comparably Located substitute parking spaces as referenced in subsection 5.1, the lease rate shall be the then existing market lease rate for Comparably Located Downtown Area surface parking spaces, not to exceed the previous year's lease rate of this Parking Agreement plus six percent (6%) of that previous year's lease rate. If the City is not reasonably able to provide Comparably Located substitute parking spaces at a cost which will make the City as financially whole as it is currently made financially whole in leasing parking spaces in the Downtown Area, at the above lease rate, the City staff shall present to the Fort Collins City Council the issue of acquisition of such spaces at a cost in excess of that cost which is equally recoverable at the above lease rate. If the Fort Collins City Council should determine to acquire such spaces, and make appropriation therefor, then this Parking Agreement shall continue in effect at the above lease rate. If the City Council should determine not to authorize such appropriation, and the Developer should not agree to an amended, increased lease rate which would make the City as financially whole as it is currently made financially whole in leasing parking spaces in the Downtown Area, then the staff shall investigate and propose the creation of a special improvement district for the purpose of providing such spaces, together with all other spaces in the Downtown Area, and if the Fort Collins City Council should create such special improvement district for the Downtown Area, the Developer agrees to share equitably in the assessment levied by such special improvement district, so long as such assessment would be equally and proportionately levied on all other property owners within such special improvement district. If all of the foregoing alternatives should fail, then the City's obligation to provide Comparably Located substitute parking spaces shall terminate. 5.3 Any obligation of the City to provide Comparably Located substitute parking spaces pursuant to this Parking Agreement shall automatically terminate to the extent that such parking is provided by the City using the resources of other entities such as the Downtown Development Authority, a separately constituted parking authority, or other similar entities so long as the lease rate does not exceed the previous year's lease rate of this Parking Agreement plus six (6%) percent of that previous year's lease rate. Section 6. In the event that the City purchases Lot 37, Block 21, City of Fort Collins, State of Colorado, which is a portion of the LaPorte Avenue Parking Lot, for parking purposes only, the Developer shall have a right of first refusal to use Page 6 such property for the parking requirements of the Development provided that the Developer shall pay a fee for such use at the Base Rate set forth in Section 4 of this Parking Agreement (being $10. per month) plus the rate adjustment factor as set forth in Section 4. Section_7. It shall be the obligation of the City at its sole cost to maintain and repair all parking spaces leased pursuant to this Parking Agreement in accordance with the City's standards for such maintenance and repair and customary maintenance practices. Section-B. In the event that the Developer should provide, utilizing its own resources, or by marshalling resources or others, parking spaces to satisfy parking requirements for the Development or the parking needs of the Opera Galleria, then Developer shall have the option to terminate the leasing of all or a part of the parking spaces as provided for in Section 2, hereof, provided that such termination shall not become effective until such alternative parking spaces are fully constructed and ready for occupancy and provided that such parking spaces are Comparably Located. Sectio_n_9. Subject to the subletting provisions of this Section, the allocation of the parking spaces as provided herein shall be made available to the tenants of the Development and their employees, and to the tenants of the Opera Galleria and their employees only, and not to customers of the Development or of the opera Galleria. The Developer may sublease any of the parking spaces which are the subject of this Parking Agreement, to individuals or companies who are tenants of the Development, or their employees, or who are tenants of the Opera Galleria or their employees. The Developer shall obtain verbal acknowledgement from the City's Director of Development Services prior to subleasing any of the parking spaces which are the subject of this Parking Agreement, to individuals or companies who are not tenants of the Development„ or their employees, or who are not tenants of the Opera Galleria or their employees. In either case, any sublease shall be at a rate not in excess of the lease rate as established pursuant hereto. section _10. This Parking Agreement shall inure to the benefit of the City and the Developer, and their successors, assigns, representatives and agents. This Parking Agreement shall be fully assignable by the parties hereto. If this Parking Agreement is assigned, it shall become an obligation of any and all assignees. This Parking Agreement shall be deemed to run with the land known as the Development. At such time as Walter F. Brown assigns this Parking Agreement to the Developer, Walter F. Brown shall be relieved of all obligations under this Parking Agreement. Page 7 Section 11. This Parking Agreement is expressly contingent upon the Developer obtaining a building permit for the Development, and if the Developer should fail to obtain such building permit by October 1, 1988, then this Parking Agreement shall be null and void and of no further force and effect. Section_12. Events of Default and Remedies 12.01 In the event the Developer should fail to make any payment required to be made pursuant to the terms and conditions of this Parking Agreement within forty-five (45) days after written notice thereof, then the Developer shall be deemed to be in default of this Parking Agreement. Then the City may, at its; option, elect to immediately terminate the Parking Agreement or treat the Parking Agreement as continuing and require specific performance of the Parking Agreement. 12.02 In the event that either the Developer, :its successors or assigns, or the City, its successors or assigns, defaults in the performance of any of the non -monetary terms and conditions of this Parking Agreement; and in the event that the defaulting party hereof fails to correct such default within thirty (30) days after written notice thereof to the defaulting party, except that if such default cannot be reasonably cured within said thirty (30) day period, the defaulting party shall not be deemed to be in default of this Parking Agreement so long as it has commenced all reasonable action necessary to cure such default within said thirty (30) day period and thereafter actively and diligently proceeds to effect such cure, then that defaulting party shall be deemed to be in default of this Parking Agreement. Then the non -defaulting party may, at its option, elect to immediately terminate this Parking Agreement or may require specific performance of the Parking Agreement. section 13. In the event of default of any of the terms and conditions herein contained by either party which shall require the non -defaulting party to commence legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable fees and reasonable costs incurred because of the default. Section 14. As time is of the essence hereof, each and every term and condition of this Parking Agreement shall be deemed a material element of this Parking Agreement. Section_15. All notices under this Parking Agreement shall be deemed to be properly served only if personally delivered, or if sent postage prepaid by registered or certified mail, return receipt requested to the City or the Developer, as the case may Page 8 be, at the address set forth in this Section, or to such other address as either party may designate by notice given in compliance with this Section. Such notice shall be deemed to have been given on the date upon which it is personally delivered, or three (3) days after it is deposited in the mail. CITY: City of Fort Collins 300 Laporte Avenue P.O. Box 580 Fort Collins, Colorado 80522 DEVELOPER: Historical Opera House Properties, Ltd. c/o Mountain Avenue Properties - A Development Corporation 117 East Mountain Avenue, Suite 205 Fort Collins, Colorado 80524 Section 16. The laws of the State of Colorado shall govern the validity, performance and enforcement of this Parking Agreement and City and Developer submit to the jurisdiction of the appropriate federal or state court in Colorado. This Parking Agreement shall be construed not for or against City or Developer, no matter which party prepared it, but rather, this Parking Agreement shall be interpreted in accordance with general tenor of the language in an effort to reach an equitable result. Section 17. The sections, subsections and paragraph and their entitlements are inserted for convenience of reference only and shall in no way effect, modify or define, or be used in construing, the text of such sections, subsections and paragraphs. IN WITNESS WHEREOF, the parties hereto have executed this Parking Agreement the day and year first above written. CITY OF FORT COLLINS, COLORADO A Municipal Corporation By: C ity Manager 4VO Page 9 ATTEST: 1 � 'r t STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) Subscribed and sworn to before me this day of �1y 1987, by Steven C. Burkett, City Manager. /Witness my hand and official seal. My commission expires: 1�1(9.t Notary Public APPROVED AS TO FORM: Assistant City Attorney HISTORICAL OPERA HOUSE PROPERTIES, LTD. By: //i Wa ter FBrowP—Y� General Partner STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) Subscribed and sworn to before me / 1987, by Walter F. Brown, General Partner. Page 10 17y. thisi day of HISTORICAL OPERA HOUSE PROPERTIES, LTD. B / Walter Brown Genera Partner STATE OF COLORADO ) ss. County of Larimer ) Subscribed and sworn to before me this day of 1990, by Walter F. Brown, General Partner. r Witness my hand and official seal,. Notary Public My Commission Expires: STATE OF COLORADO ) ss. County of Larimer ) Subscribed and sworn to before me this day of 1990, by Walter F. Brown. Witness my hand and official seal. Notary Publd My Commission Expires: 5 Witness my hand and official seal. My commission expires: Notary Public WALTER F. BROWN Walter F. Brown STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) Subscribed and sworn to before me this __day of 1987, by Walter F. Brown. Witness my hand and official seal. My commission expires:��,t2'll<< Notary Publict Page 11 EXHIBIT A OF THE PARKING AGREEMENT LOCATION OF THE FOLLOWING CITY PARKING LOTS: A - LaPorte Avenue Parking Lot B - Block 31 Parking Lot C - Jefferson Street Parking Lot THE LETTERS A, B, AND C INDICATE THE LOCATIONS OF THE PARKING LOTS. AREAS ARE NOT TO SCALE. EXHIBIT B PAYMENT SCHEDULE NUMBER* OF LEASED DUE DATE PARKING SPACES PAYMENT 1. February 1, 1988** 39*** $ 1,560.00 (39 spaces x $10.00 X 4 months) 2. June 1, 1988 76 $ 3,800.00 (76 spaces x $10.00 x 5 months) 3. November 1, 1988 122 $ 6,100.00 (122 spaces x $10.00 x 5 months) 4. April 1, 1989 169 $20,280.00 (169 spaces x $10.00 x 12 months) 5. Commencing thereafter, the annual payment shall be due, during the Term of the Parking Agreement, on April 1 of each year, or on the anniversary date of fourteen (14) months from the initial date! parking spaces are leased, whichever shall come later. *This column represents a cumulative total of leased parking spaces. **or seven (7) months after Developer has obtained a building permit for the Development from the City of Fort Collins Building Inspection Office, whichever is later. ***The number thirty-nine (39) is derived from subtracting the 16 free parking spaces from the number fifty-five (55) in subsection 2.1(a). The result is the number of spaces for which the Developer actually pays. RCPTN # 86040324 "7"25/86 12:07:28 # OF "S - 1 FEE - $3.00 J. ULVANG, RECORDEI. - ,ARIMER COUNTY, CO. STA JC. FEE- $.00 NOTICE Please take notice that on April 28, 1986, the Planning and Zoning Board of the City of Fort Collins, Colorado, approved the Final PUD Plan known as Opera House PUD, which development was submitted and processed in accordance with Section 118-83 of the Code of the City of Fort Collins. The Final PUD Plan of the subject property together with the development agreement dated April 24, 1986 between the City of Fort Collins and the developer, out of which documents accrue certain rights and obligations of the developer and/or subsequent owners of the subject property, are on file in the office of the Clerk of the City of Fort Collins. The subject property is more particularly described as follows: Being a Replat of Lots 5,6, & 7 and City of Fort Collins, located in the Township 7 North Range 69 west of Larimer County, Colorado. a portion of Lot 8, all in Block 21, NE 1/4 of the SE 1/4 of Section 11 the 6th P.M. City of Fort Collins, ' City Clerk ecretar Planning and Zoning City of rt Collins v Dated: OPERA HOUSE BLOCK BUILDING P.U.D. FIRST AMENDMENT AGREEMENT THIS AGREEMENT, made and entered into this 215t day of J , ew �Pr, 19�f, by and between THE CITY OF FORT COLLINS, COLO- RADO, a municipal corporation (City), and HISTORICAL OPERA PROP- ERTIES, LTD. (Developer) and MOUNTAIN AVENUE PROPERTIES A DEVEL- OPMENT CORPORATION, a Colorado corporation (Agent Developer), is an amendment to that certain Development Agreement dated the 24th day of April, 1986, by and between the City and the Developer, ("Development Agreement"). W I T N E S S E T H: WHEREAS, Walter Brown and the City previously executed the Development Agreement; and WHEREAS, the Opera House P.U.D. (which includes the Opera House Block Building P.U.D.) which is the subject of the Develop- ment Agreement has been conveyed to Developer; and WHEREAS, the Developer has entered into an agreement with the Agent Developer pursuant to which the Agent Developer acts as the developer of the property on behalf of the Developer; and WHEREAS, the parties are presently desirous of modifying the Development Agreement; and WHEREAS, it is anticipated that the Agent Developer will act as developer under the terms of the Development Agreement and this Amendment Agreement as agent for the Developer. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good ,d valuable consideration, the receipt and adequacy of which is h reby acknowledged, the parties agree as follows: 1. Subheading 2, Special Conditions, of the Development Agreement, shall be modified to a^a the following: (a) It shall be the obligation of the Developer to, at its sole expense, reconstruct those portions of the alley between Mountain Avenue and LaPorte Avenue which are immediately adjacent to the development, as shown on Exhibit A, in single and double cross hatch- ing, in accordance with, and as shown on, the approved utility plans. In full and complete satis- faction of that obligation, the Developer tenders herewith the sum of $11,021.00. By execution of this Agreement, the City gives its receipt of said funds and acknowledges the adequacy of said funds to cover the Developer's obligation as aforesaid. (b) It is understood that the City has a general municipal need to reconstruct storm drainage and sanitary sewer facilities in the alley between Moun- tain Avenue and LaPorte Avenue adjacent to the devel- opment and that said facilities could not be timely constructed as an integrated part of the reconstruc- tion of said alley by the Developer. Accordingly, in order to avoid the waste of public resources which would result if the Developer fulfilled its duty of reconstruction of said alley prior to the City's reconstruction of storm drainage and sanitary sewer facilities, it is agreed by the parties hereto that the City shall dedicate the funds hereby remitted by the Developer to the City for the purpose of recon- structing the pavement of said alley following the City's completion of its storm drainage and sanitary sewer improvement project. The City shall complete both the storm drainage and sanitary sewer recon- struction project and the alley resurfacing on or before December 31, 1990. The alley shall be resur- faced per the design plans and specifications indi- cated in the construction documents prepared by Engi- neering Professionals, Inc. The cost of reconnecting laterals from the development to the new storm drain- age and sanitary sewer facilities shall be included in the City's project and shall not be the financial responsibility of the Developer. (c) As a temporary measure and in order to provide usage of said alley to serve the development and the public generally, the City agrees to patch and pave, as needed (except as provided for on Exhibit A, in double cross hatching, which shall be completely overlayed), said alley with hot -mix asphaltic con- crete to provide a reasonable temporary surface with said patching and temporary paving to be completed on or about the time of issuance of the certificate of occupancy for the development. (d) The City agrees to jointly reimburse the Devel- oper and Engineering Professionals, Inc., the Devel- oper's engineer, for the design of the new storm draLinage and sanitary sewer facilities in the alley, in the amount of $3,522.01. 2. Except as herein amended or modified, or to the extent it may be inconsistent with the terms hereof, the Development Agree- ment shall continue in full force and effect. This First - 2 - Amendment Agreement and the Development Agreement constitute the entire understanding of the parties. IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first above written. THE CITY OF FORT COLLINS A Municipal Corporation By: Jam, c & � City Manager ATTEST: City C - APPRO,V AS TO FORM: Deputy City Attorney DEPARTMENT HEAD: HISTORICAL OPERA HOUSE PROPERTIES, 11 ; LTD. Gary D'3ede Director of Engineering By: alter rown, GeneraI Partner MOUNTAIN AVENUE PROPERTIES A DEVELOPMENT CORPORATION A Colorado Corporation gy d a ter rown, President - 3 - z a'� �I o' o' H ^-' ,-, u� 1. 2. 3 4. EXHIBIT B PAYMENT SCHEDULE DUE DATE February 1, 1988** (55 spaces x $10.00 x 4 months) June 1, 1988 (92 spaces x $10.00 x 5 months) November 1, 1988 (138 spaces x $10.00 x 5 months) April 1, 1989 (169 spaces x $10.00 x 12 months) NUMBER* OF LEASED PARKING SPACES 55 92 138 169*** PAYMENT $ 2,200.00 $ 4,600.00 $ 6,900.00 $20,280.00 5. Commencing thereafter, the annual payment shall be due, during the Term of the Parking Agreement, on April 1 of each year, or on the anniversary date of fourteen (14) months from the initial date parking spaces are leased, whichever shall come later. *This column represents a cumulative total of leased parking spaces. **or seven (7) months after Developer has obtained a building permit for the Development from the City of Fort Collins Building Inspection Office, whichever is later. ***The number one hundred sixty-nine (169) is derived from subtracting the 16 parking spaces to be subsequently provided by the Developer from the number one hundred eighty-five (185) in subsection 2„1(d). The result is the number of spaces for which the Developer actually pays. OPERA HOUSE BLOCK BUILDING P.U.D. FIRST AMENDMENT AGREEMENT THIS AGREEMENT, made and entered into this 2I:�t day of I '<C CCWi -KK r , 19�, by and between THE CITY OF FORT COLLINS, COLO- RADO, a municipal corporation (City), and HISTORICAL OPERA PROP- ERTIES, LTD. (Developer) and MOUNTAIN AVENUE PROPERTIES A DEVEL- OPMENT CORPORATION, a Colorado corporation (Agent Developer), is an amendment to that certain Development Agreement dated the 24th day of April, 1986, by and between the City and the Developer, ("Development Agreement"). W I T N E S S E T H: WHEREAS, Walter Brown and the City previously executed the Development Agreement; and WHEREAS, the Opera House P.U.D. (which includes the Opera House Block Building P.U.D.) which is the subject of the Develop- ment Agreement has been conveyed to Developer; and WHEREAS, the Developer has entered into an agreement with the Agent Developer pursuant to which the Agent Developer acts as the developer of the property on behalf of the Developer; and WHEREAS, the parties are presently desirous of modifying the Development Agreement; and WHEREAS, it is anticipated that the Agent Developer will act as developer under the terms of the Development Agreement and this Amendment Agreement as agent for the Developer. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good --�d valuable consideration, the receipt and adequacy of which is h reby acknowledged, the parties agree as follows: 1. Subheading 2, Special Conditions, of the Development Agreement, shall be modified to aa' the following: (a) It shall be the obligation of the Developer to, at its sole expense, reconstruct those portions of the alley between Mountain Avenue and LaPorte Avenue which are immediately adjacent to the development, as shown on Exhibit A, in single and double cross hatch- ing, in accordance with, and as shown on, the approved utility plans. In full and complete satis- faction of that obligation, the Developer tenders herewith the sum of $11,021.00. By execution of this Agreement, the City gives its receipt of said funds and acknowledges the adequacy of said funds to cover the Developer's obligation as aforesaid. (b) it is understood that the City has a general municipal need to reconstruct storm drainage and sanitary sewer facilities in the alley between Moun- tain Avenue and LaPorte Avenue adjacent to the devel- opment and that said facilities could not be timely constructed as an integrated part of the reconstruc- tion of said alley by the Developer. Accordingly, in order to avoid the waste of public resources which would result if the Developer fulfilled its duty of reconstruction of said alley prior to the City's reconstruction of storm drainage and sanitary sewer facilities, it is agreed by the parties hereto that the City shall dedicate the funds hereby remitted by the Developer to the City for the purpose of recon- structing the pavement of said alley following the City's completion of its storm drainage and sanitary sewer improvement project. The City shall complete both the storm drainage and sanitary sewer recon- struction project and the alley resurfacing on or before December 31, 1990. The alley shall be resur- faced per the design plans and specifications indi- cated in the construction documents prepared by Engi- neering Professionals, Inc. The cost of reconnecting laterals from the development to the new storm drain- ageand sanitary sewer facilities shall be included in the City's project and shall not be the financial responsibility of the Developer. (c) As a temporary measure and in order to provide usage of said alley to serve the development and the public generally, the City agrees to patch and pave, as needed (except as provided for on Exhibit A, in double cross hatching, which shall be completely overlayed), said alley with hot -mix asphaltic con- crete to provide a reasonable temporary surface with said patching and temporary paving to be completed on or about the time of issuance of the certificate of occupancy for the development. (d) The City agrees to jointly reimburse the Devel- oper and Engineering Professionals, Inc., the Devel- oper's engineer, for the design of the new storm drainage and sanitary sewer facilities in the alley, in the amount of $3,522.01. 2. Except as herein amended or modified, or to the extent it may be inconsistent with the terms hereof, the Development Agree- ment shall continue in full force and effect. This First - 2 - Amendment Agreement and the Development Agreement constitute the entire understanding of the parties. IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first above written. ATTEST: I? PL �� uQ city Cr t# APPROV AS TO FORM: Deputy City Attorney DEPARTMENT HEAD:) l Gary i de Director of Engineering THE CITY OF FORT COLLINS A Municipal Corporation By: jCtiv� City Manager HISTORICAL OPERA HOUSE PROPERTIES, LTD. By: alter rown, Genera Partner MOUNTAIN AVENUE PROPERTIES A DEVELOPMENT CORPORATION A Colorado Co oration By d a ter rown, President - 3 -