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HomeMy WebLinkAboutKENWOOD HEIGHTS BLOCK 4 LOTS 10 AND 11 1124 WEST MULBERRY STREET - Filed DA-DEVELOPMENT AGREEMENT - 2011-05-25RECEPTION#: 20110028815, 05/16/2011 at 11:51:54 AM, 1 OF 7, R $41.00 TD Pgs: 0 Scoff Doyle, Larimer County, CO DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement"), is made and entered into this 2$ day of 201 t , by and between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City"; and Jason D. Hanson and Nicole R. Hanson, individuals, hereinafter referred to as the "Developer." WITNESSETH: WHEREAS, the Developer is the owner of certain real property situated in the County of Larimer, State of Colorado (hereafter sometimes referred to as the "Property" or "Development") and legally described as follows, to wit: KENWOOD HEIGHTS, Block 4, Lots 10 and 11, located in Section 11, Township 7 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the Developer desires to develop the Property (change of use and remodel) and has submitted to the City all plans, reports and other documents required for the approval of a final plan according to the City's development application submittal requirements master list (the "Final Development Plan Documents') copies of which are 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 the Property 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 Property and not to the City of Fort Collins as a whole; and WHEREAS, the City has approved the Final Development Plan Documents 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 the development of the Property. NOW, THEREFORE, in consideration of the promises of the parties hereto and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, _it is agreed as follows: J,j C 1er1<S 0%1(, pn C'o0in�s, C010ra6c General Conditions A. The terms of this Agreement shall govern all development activities of the Developer pertaining to the Property. For the purposes of this Agreement, "development activities" shall include, but not be limited to, the following: (1) the actual construction of improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or appearance of the Property caused by, or on behalf of, the Developer with the intent to construct improvements thereon. II. Special Conditions A. Streets. 1. in accordance with Section 24-95 of the City Code the Developer is responsible for improving the alley adjacent to the Property prior to the issuance of the first building permit. However, the parties agree that the construction of this alley can be delayed until such time as the City deems the improvements necessary. The need for the Developer to either construct the improvements or to provide the City with funds for future improvements to meet this obligation shall be evaluated in connection with any changes to the Property, such as, but not limited to, the expansion of the existing use to a tenant in the same use category that will generate a greater impact or higher traffic impact, change of use of the Property, expansion of the use(s) on the Property, a remodel or expansion of the building, and/or redevelopment of the Property. At such time as a change is proposed to the Property, the City can, at its discretion, reevaluate the need for the improvements required by the City Code and the Developer and City shall enter into a new Development Agreement describing such requirements as may be necessary. 2. In accordance with the Section 3.6.1(B) of the Land Use Code ("LUC") and Sec 24-95 of the City Code, the local street portion of right-of-way shall be dedicated by the Developer to the City along Mulberry Street and Shields Street frontages to meet the City's constrained Arterial Street right-of-way section for the future installation of bike -lanes and sidewalk improvements as identified in the City's adopted Capital Improvement Plan. The Developer is not required to build any of these improvements, but is required to provide said dedication of the local street portion of right-of-way prior to the issuance of a certificate of occupancy, whether temporary or permanent for the Property. In recognition of the Developer's inability to provide dedication of right-of-way in accordance with the requirements set forth in Section 2.2.3(C)(3)(d) of the LUC, the following procedure shall apply to the Developer's obligation for the dedication of the local street portion of right-of-way and shall be complied with prior to the issuance of a certificate of occupancy: a. The City shall issue to the Developer a temporary certificate of occupancy ("TCO"). The TCO shall be valid for a period of eighteen (18) months and no longer, unless otherwise agreed to in writing by the City. Unless extended, the TCO shall expire automatically at the end of its term and any occupation of the Property thereafter shall be unlawful; and the TCO may so expressly provide. b. Upon the Developer delivering to the City the deed of dedication for the local street portion of right-of-way along Mulberry Street and Shields Street to meet the City's constrained Arterial Street right-of-way in conformance with the requirements set forth in Section 2.2.3(C)(3), the City shall issue a full certificate of occupancy ("CO"). C. In the event the Developer fails to deliver to the City the deed of dedication during the time period in which the TCO is valid, the City shall have the right to order the Developer to cease occupation of the property, and the Developer hereby agrees to, upon receipt of such order, promptly vacate the Property. d. The Developer acknowledges that the City will include conditions in the TCO that outline the requirements set forth in this paragraph II.A.2. In addition, the obligations of the City contained in this paragraph II.A.2 are not intended to supersede the rights of the City under its purview pertaining to building permit review. The City reserves the right to withhold a TCO or CO (as applicable) due to non- performance of other items contained in this Agreement. e. The Developer's fulfillment of the obligations contained in this paragraph are considered in full satisfaction of Sec. 24-95 of the City Code pertaining to the Developer's obligations towards Mulberry Street and Shields Street and no financial or performance obligations pertaining to street improvements on Mulberry Street or Shields Street is required in conjunction with this Development. Any future need for the Developer to either construct these improvements or to provide the City with funds for future improvements shall be evaluated in connection with any changes to the Property, such as, but not limited to, the expansion of the existing use to a tenant in the same use category that will generate a greater impact or higher traffic impact, change of use of the Property, expansion of the use(s) on the Property, a remodel or expansion of the building, and/or redevelopment of the Property. If a change is proposed to the Property, then the City can, at its discretion, reevaluate the need for these improvements and the Developer and the City shall enter into a new Development Agreement describing such requirements as may be necessary. Miscellaneous A. The Developer shall, pursuant to the terms of this Agreement, complete all improvements and perform all other obligations required herein, as such improvements or obligations may be shown on the Final Development Plan Documents, or any documents executed in the future that are required by the City for the approval of an amendment to a development plan, and the City may withhold (or to the extent permitted by law, revoke) such building permits and certificates of occupancy as it deems necessary to ensure performance in accordance with the terms of this Agreement. The processing and "routing for approval" of the various development plan documents may result in certain of said documents carrying dates of approval and/or execution that are later than the date of execution of this Agreement. The Developer hereby waives any right to object to any such discrepancy in dates. B. Nothing herein contained shall be construed as a waiver of any requirements of the City Code or the Land Use Code and the Developer agrees to comply with all requirements of the same. C. In the event the City waives any breach of this Agreement, no such waiver shall be held or construed to be a waiver of any subsequent breach hereof. D. All financial obligations of the City arising under this Agreement that are payable after the current fiscal year are contingent upon funds for that purpose being annually appropriated, budgeted and otherwise made available by the Fort Collins City Council, in its discretion. E. This Agreement shall run with the Property, including any subsequent replatting of all, or a portion of the Property. This Agreement shall also be binding upon and inure to the benefit of the parties hereto, their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. F. In the event the Developer transfers title to the Property and is thereby divested of all equitable and legal interest in the Property, the Developer shall be released from liability under this Agreement with respect to any breach of the terms and conditions of this Agreement occurring after the date of any such transfer of interest. In such event, the succeeding property owner shall be bound by the terms of this Agreement. G. Each and everyterm of this Agreement shall be deemed to be a material element hereof. In the event that either party shall fail to perform according to the terms of this Agreement, such party may be declared in default. In the event that a party has been declared in default hereof, such defaulting party shall be given written notice specifying such default and shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to: (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance or; (c) avail itself of any other remedy at law or equity. H. In the event of the default of any of the provisions hereof by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney's fees and costs incurred by reason of the default. Nothing herein shall be construed to prevent or interfere with the City's rights and remedies specified in Paragraph III.D of this Agreement. I. Except as may be otherwise expressly provided herein, this Agreement shall not be construed as or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever. J. It is expressly understood and agreed by and between the parties hereto that this Agreement shall be governed by and its terms construed under the laws of the State of Colorado and the City of Fort Collins, Colorado. K. Any notice or other communication given by any party hereto to any other party relating to this Agreement shall be hand -delivered or sent by certified mail, return receipt requested, addressed to such other party at their respective addresses as set forth below; and such notice or other communication shall be deemed given when so hand -delivered or three (3) days after so mailed: If to the City: Engineering Development Review City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 With a copy to: City Attorney's Office City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 If to the Developer: Jason and Nicole Hanson 217 Rattlesnake Road Livermore, CO 80536 With a copy to: Tim Goddard 125 S. Howes St. #600 Fort Collins, CO 80521 Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees or assigns, wishes to change the person, entity or address to which notices under this Agreement are to be sent as provided above, such party shall do so by giving the other parties to this Agreement written notice of such change. L. When used in this Agreement, words of the masculine gender shall include the feminine and neuter gender, and when the sentence so indicates, words of the neuter gender shall refer to any gender; and words in the singular shall include the plural and vice versa. This Agreement shall be construed according to its fair meaning, and as if prepared by all parties hereto, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto pertaining to the matters addressed in this Agreement. There shall be deemed to be no other terms, conditions, promises, understandings, statements, representations, expressed or implied, concerning this Agreement, unless set forth in writing signed by all of the parties hereto. Further, paragraph headings used herein are for convenience of reference and shall in no way define, limit, or prescribe the scope or intent of any provision under this Agreement. THE CITY OF FORT P(PLLINS, COLORADO, a Municipal Corporati n, 1-32 uny manager 1 a City Clerk pp4 APPROVED AS TO CONTENT: �,, Cit ngin r n APPROVED TO COW:-, Deputy City Attorney DEVEL ER: By:�..._-.�— Ja on D. Hanson, an individual By: Nicole R. Hanson, an individual STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of 2011, by Jason D. Hanson and by Nicole R. Hanson. Notary Public My Commission Expires: f