HomeMy WebLinkAboutFAIRWAY ESTATES REPLAT 4708 AND 4710 SOUTH COLLEGE AVENUE - Filed DA-DEVELOPMENT AGREEMENT - 2011-11-03RECEPTION#: 20110065028, 10/25/2011 at
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Scott Doyle, Larimer County, CO
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement"), is made and entered
into this 'L3 ``''day of1 2011, by and between the CITY OF FORT
COLLINS, COLORADO, a Mnicipal Corporation, hereinafter referred to as the "City";
and Red Hot Investments, LLC, a Colorado limited liability company, and 4710 SOCO,
LLC, a Colorado limited liability company hereinafter collective) referred to as the
"Developer." y
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer, State of Colorado (hereafter sometimes referred to as the "Property"
or "Development") and legally described as follows, to wit:
A tract of land (aka 4708 and 4710 S. College Ave) situate in the Northwest
Quarter of Section 1, Township 6 North, Range 69 West of the 6th P.M., City of
Fort Collins, County of Larimer, State of Colorado, being more particularly
described as follows: Considering the West line of Lott, Fairway Estates, a
subdivision recorded in the said Larimer County as bearing South 00 51' West
with all bearings contained herein relative thereto. Commencing at the
Northwest corner of Lot 1, Fairway Estates, thence South 00 51' West a distance
of 100.01 feet to the true point of beginning; thence South 00 51' West a distance
of 142.00 feet; thence North 89 08' West a distance of 249.93 feet; thence North
00 52' East a distance of 142.00 feet; thence South 89 08' East a distance of
249.90 feet to the true point of beginning.
WHEREAS, the Developer desires to develop the Property (change of use) 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 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.
City Clerk's Office, Fort Collins, Colorado
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:
I. 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.
B. All sidewalks shall be installed as shown on the Final Development Plan
Documents and in full compliance with the standards and specifications of the City on
file in the office of the City Engineer at the time of construction and shall be installed
prior to the issuance of a certificate of occupancy.
C. The Developer specifically represents that to its knowledge all property
dedicated (both in fee simple and as easements) to the City associated with this
Development (whether on or off -site) is in compliance with all environmental protection
and anti -pollution laws, rules, regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection Agency Regulations at
40 C.F.R., Part 261, and that such property as is dedicated to the City pursuant to this
Development, is in compliance with all such requirements pertaining to the disposal or
existence in or on such dedicated property of any hazardous substances, pollutants or
contaminants, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer, for itself and its successor(s) in interest, does hereby
indemnify and hold harmless the City from any liability whatsoever that may be imposed
upon the City by any governmental authority or any third party, pertaining to the
disposal of hazardous substances, pollutants or contaminants, and cleanup
necessitated by leaking underground storage tanks, excavation and/or backfill of
hazardous substances, pollutants or contaminants, or environmental cleanup
responsibilities of any nature whatsoever on, of, or related to any property dedicated to
the City in connection with this Development, provided that such damages or liability are
not caused by circumstances arising entirely after the date of acceptance by the City of
the public improvements constructed on the dedicated property, except to the extent
that such circumstances are the result of acts or omissions of the Developer. Said
indemnification shall not extend to claims, actions or other liability arising as a result of
any hazardous substance, pollutant or contaminant generated or deposited by the City,
its agents or representatives, upon the property dedicated to the City in connection with
this Development. The City agrees to give notice to the Developer of any claim made
against it to which this indemnity and hold harmless agreement by the Developer could
apply, and the Developer shall have the right to defend any lawsuit based on such claim
2
and to settle any such claim provided the Developer must obtain a complete discharge
of all City liability through such settlement. Failure of the City to give notice of any such
claim to the Developer within ninety (90) days after the City first receives a notice of
such claim under the Colorado Governmental Immunity Act for the same, shall cause
this indemnity and hold harmless agreement by the Developer to not apply to such
claim and such failure shall constitute a release of this indemnity and hold harmless
agreement as to such claim.
Special Conditions
A. Streets.
1. In accordance with Section 24-95 of the City Code the Developer is
responsible for widening the portion of South College Avenue adjacent to the Property
prior to the issuance of the first building permit. However, the parties agree that the
construction of this street can be delayed.
The Developer's obligation for these improvements to College Avenue will still remain,
but shall be delayed until such time as the City or Colorado Department of
Transportation (CDOT) deems the improvements necessary. In addition the need for
the Developer to construct the improvements or the need for the Developer 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
the of the existing uses (vet clinic for 4708 South College and office for 4710 South
College) to a tenant(s) in the same use category that will generate a greater impact or
higher traffic impact, change of use of part or all of the Property, expansion of the use(s)
on the Property, a remodel or expansion of the building(s), and redevelopment of the
Property. At such time as a change is proposed to the Property the City can reevaluate
the need for the improvements required by the code and the Developer and City shall
enter into a new Development Agreement.
2. The Developer acknowledges that it is aware of the "South College
Avenue (US287) Access Control Plan" and the improvements and access changes that
have been identified that will impact the Property in the future and understands that
these changes and improvements will impact access to the Property.
3. In accordance with the "South College Avenue (US287) Access
Control Plan" a shared access drive is to be provided along the eastern portion of the
Property. Since this access drive is not needed at this time the Developer is not
required to build the access drive in connection with this change of use, but is only
required to provide a 20 foot public access easement for the future installation of the
access drive. The fully signed deed of dedication and associated processing and filing
fees has been provided to the City. In addition to the granting of an access easement
the Developer shall have the responsibility for paying the cost of construction of the
portion of this drive that is located on the Property at such time the drive is constructed.
In order to construct said access drive, grading and other work will likely occur outside
of the granted easement, and the Developer hereby grants permission for the City,
CDOT and/ or any contractor authorized to construct the access drive to be on the
Property adjacent to the easement to perform grading work, install forms and other work
associated with installing the access drive.
4. The Developer shall not object to, or take legal action to oppose the
formation of a Special Improvement District or other financing method for constructing
such College Avenue and access drive improvements if such method is proposed or put
in place.
5. No street oversizing reimbursement from the City is due the
Developer for this Development.
III. Miscellaneous
A. The Developer agrees to provide and install, at its 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 and
Traffic Engineer in accordance with the City's "Work Area Traffic Control Handbook"
and shall not remove said safety devices until the construction has been completed.
B. 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.
C. 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.
D. 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.
E. 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.
F. 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.
G. 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.
H. Each and every term of this Agreement shall be deemed to be a material
element hereof. In the event that either party shall fail to perform according to the terms
of this Agreement, such party may be declared in default. In the event that a party has
been declared in default hereof, such defaulting party shall be given written notice
specifying such default and shall be allowed a period of ten (10) days within which to
cure said default. In the event the default remains uncorrected, the party declaring
default may elect to: (a) terminate the Agreement and seek damages; (b) treat the
Agreement as continuing and require specific performance or; (c) avail itself of any
other remedy at law or equity.
I. 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.
J. 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.
K. 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.
L. 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:
4708/ 4710 Condominium Assoc'n
4710 South College Ave
For t Collins, Co 80525
With a copy to:
Mike Maxwell
8010 South C. R. 5, Ste 207
Windsor, Co 80528
With a copy to:
Verus Bank of Commerce
3700 South College Ave, Ste 102
Fort Collins, Co 80525
With a copy to:
Minamar, LLC
2029 South View Circle
Fort Collins, Co 80524
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.
M. 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 COLLINS, COLORADO,
a Municipal Corporation
By:
City Manager
ATTEST:
City Clerk
1
r
. r.
APPROVED AS TO CONTENT:
City En"gineer ;%
APPROVE TO FORM:
[Yel5tfyCity- ttorney
0
DEVELOPER:
Red Hot Investments, LLC, a Colorado limited
liability company
Brenda McClelland; �1ti��
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
kJ -
The foregoing instrument was acknowledged before me this,2 day of
IMP m; 2011, by Brenda McClelland as M4epa r Red Hot Investments, LLC.
e My Commission Expires
I
STATE OF COLORADO
COUNTY OF LARIMER
Notary Public
CA I
1 1-1 6'AD l
) ss.
4710 SOCO, LLC, a Colorado limited liability
company f?-)
as
nbicker, �Mamew
The foregoing instrument was acknowledged before me this o% ( day of
2011, by Stephen J. Steinbicker as f 4710 SOCO„9LC.
My Commission Expires: IlS- I -
Notary Public
KIMBERLY D RYAN
Notary Public
State of Colorado