HomeMy WebLinkAboutVINE DRIVE PROPERTIES 2ND FILING - Filed DA-DEVELOPMENT AGREEMENT - 2013-03-20RECEPTION#: 20130026007, 04/05/2013 at
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Scott Doyle, Larimer County, CO
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement"), is made and entered
into this � U �k day of tv! ; C 4 2011, by and between the CITY OF FORT
COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City";
and OLD TOWN OPPORTUNITIES, LLC, a Colorado limited liability company,
hereinafter referred to as the "Developer."
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property situated in the
County of Larimer, State of Colorado (hereafter sometimes referred to as the "Property"
or "Development") and legally described as follows, to wit:
Vine Drive Properties 1st Filing Lots 1 & 2, and Vine Drive Properties 2"d Filing
Lot 2, located in the northwest quarter of Section 12 and the southwest quarter of
Section 1, all in 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
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.
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,
'CRY Clerk's Office, Fort Collins, Colorado
"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. The Developer acknowledges and agrees that the City, as the owner of
any adjacent property (the "City Property") on which off -site improvements may be
constructed, or that may be damaged by the Developer's activities hereunder, expressly
retains (and does not by this Agreement waive) its rights as property owner. The City's
rights as owner may include without limitation those rights associated with the
protection of the City Property from damage, and/or the enforcement of restrictions,
limitations and requirements associated with activities on the City Property by the
Developer as an easement recipient.
II. Special Conditions
A. Water Lines
Not Applicable
B. Sewer Lines
Not Applicable
C. Storm Drainage Lines and Appurtenances
1. The Developer acknowledges that it has been advised that the
Property is subject to flooding risk from the Poudre River that has not been mapped on
the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map. The
applicant further acknowledges that FEMA has started a remapping process called
RiskMAP for the Poudre River. This remapping will likely show this property to be in the
100-year floodplain in the future. Developer understands that the Development and use
of the Property is at Developer's own risk.
2. As conditioned in the Development's associated minor amendment
(MA 130013), the Development is considered a temporary use and may continue for no
more than thirty-six months. All floodplain requirements, if any, that are applicable at the
end of this period, or at the time the approved temporary use is converted to a
permanent use, must be met for continued use, and under no circumstances will the
uses being temporarily permitted be considered grandfathered uses for the purpose of
the floodplain requirements of Chapter 10 of the City Code. At the expiration of the
thirty-six month time period, if the applicant seeks to apply for additional development of
this site and if the preliminary or final floodplain mapping produced by RiskMAP shows
this property to be mapped in the 100-year floodplain, the applicant agrees to comply
with the floodplain regulations of Chapter 10 of City Code.
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D. Streets.
1. In accordance with Section 24-95 of the City Code, the Developer
is responsible for widening the portion of Vine Drive adjacent to the Property with the
development or redevelopment of the Property. However, due to the temporary nature
of the proposed use the parties agree that the construction of this street should be
delayed. The Developer's obligation for these improvements to Vine Drive shall remain,
and shall be required in connection with any changes to the Property such as, but not
limited to, the expansion of the existing use (Solix Biofuels) to a tenant(s) in the same
use category, a change of use of part or all of the Property, expansion of the building,
any request for a building permit, and any redevelopment of the Property. At such time
that one or more of such events occur, the Developer shall construct the widening of
Vine Drive, and shall also submit plans for review and approval that include the design
of Vine Drive along the frontage of the Property. Plans shall be designed in accordance
with the applicable City standards and codes. At such time as any such event occurs,
the Developer and City shall enter into a new Development Agreement.
E. Natural Resources
1. In accordance with Section 3.4.1 of the Land Use Code, the
Developer is responsible for establishing a 50' buffer from the Lake Canal and its
associated riparian forest, or for otherwise establishing a buffer that meets the intent of
Section 3.4.1 as required by the Decision maker. However, due to the temporary nature
of the proposed use the parties agree that the improvements associated with the use
are limited to not placing any new materials into the 50' buffer zone. The Developer's
obligation for compliance with Section 3.4.1 shall remain, and shall be required in
connection with any changes to the Property such as, but not limited to, the expansion
of the existing use (Solix Biofuels) to a tenant(s) in the same use category, a change of
use of part or all of the Property, expansion of the building, any request for a building
permit, and any redevelopment of the Property. At such time that one or more such
events occur, the Developer shall submit plans for review and approval that illustrate
how Section 3.4.1 of the Land Use Code is met, including but not limited to, the
restoration of the 50' buffer zone in compliance with Section 3.4.1(E)(1) of the Land Use
Code. Plans shall be designed in accordance with the applicable City standards and
codes. At such time as any such event occurs, the Developer and City shall enter into a
new Development Agreement.
F. Soil Amendment
Not Applicable
G. Ground Water, Subdrains and Water Rights
1. The City shall not be responsible for, and the Developer (for itself
and its successor(s) in interest) hereby agrees to indemnify and hold harmless the City
against any damages or injuries sustained in the Development as a result of ground
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water seepage or flooding, structural damage, or other damage unless such damages
or injuries are proximately caused by the City's negligent operation or maintenance of
the City's storm drainage facilities in the Development. However, nothing herein shall
be deemed a waiver by the City of its immunities, defenses, and limitations to liability
under the Colorado Governmental Immunity Act (Section 24-20-101 CRS, et. seq.) or
under any other law.
2. If the Development includes a subdrain system, any such subdrain
system, whether located within private property or within public property such as street
rights -of -way or utility or other easements, shall not be owned, operated, maintained,
repaired or reconstructed by the City and it is agreed that all ownership, operation,
maintenance, repair and reconstruction obligations shall be those of the Developer or
the Developer's successor(s) in interest. Such subdrain system is likely to be located
both upon private and public property and, to the extent that it is located on public
property, all maintenance, operation, repair or reconstruction shall be conducted in such
a manner that such public property shall not be damaged, or if damaged, shall, upon
completion of any such project, be repaired in accordance with then existing City
standards. The City shall not be responsible for, and the Developer, for itself and its
successor(s) in interest, hereby agrees to indemnify and hold harmless the City against
any damages or injuries sustained in the Development as the result of groundwater
seepage or flooding, structural damage or other damage resulting from failure of any
such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees to indemnify and
hold harmless the City against any damages or injuries to water rights caused, directly
or indirectly by the construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless agreements by the
Developer could apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided the Developer must obtain a
complete discharge of all City liability through such settlement. Failure of the City to
give notice of any such claim to the Developer within ninety (90) days after the City first
receives notice of such claim under the Colorado Governmental Immunity Act for the
same, shall cause the forgoing indemnities and hold harmless agreements by the
Developer to not apply to such claim and such failure shall constitute a release of the
foregoing indemnities and hold harmless agreements as to such claim.
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
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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. As required pursuant to Chapter 20, Article IV of the City Code, the
Developer shall, at all times, keep the public right-of-way free from accumulation of
waste material, rubbish, or building materials caused by the Developer's operation, or
the activities of individual builders and/or subcontractors; shall remove such rubbish as
often as necessary, but no less than daily 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. The Developer further agrees to
maintain the finished street surfaces so that they are free from dirt caused by the
Developer's operation or as a result of building activity. 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 the problem is 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 the Developer's expense and the Developer shall be responsible for prompt
payment of all such costs. The Developer also agrees to require all contractors within
the Development to keep the public right-of-way clean and free from accumulation of
dirt, rubbish, and building materials.
C. The Developer hereby agrees that it will require its contractors and
subcontractors to 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. 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.
E. 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.
F. 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.
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G. 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.
H. This Agreement shall run with the Property,
uent
replatting of all, or a portion of the Property. This Agreement Ishall dal o be binding ing any qupon
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.
1. 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.
J. 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.
K. 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.
L. 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.
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M. 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.
N. 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: c/o Michael Jensen
Old Town Opportunities, LLC
141 S. College Avenue #200
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.
O. 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:
;� Manager
ATTEST:
i
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City Clerk
APPROVED AS TO CONTENT: f�Aoo
r,rcity ngi r
APPROV AS TO FORM:
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Deputy City Attorney
DEVELOPER:
O�Q TOW OPPORTU IT S, LLC
a, oloradq�li ited liabilb c v
MichaekL. Jensen , wager
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this --) O day of
20_0, by Michael L. Jensen as Manager of Old Town Opportunities, LLC.
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