HomeMy WebLinkAboutOLD TOWN NORTH - Filed DA-DEVELOPMENT AGREEMENT - 2013-08-15RECEPTION#: 20130064617, 08/21/2013 at
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Angela Myers, Clerk & Recorder, Larimer
AGREEMENT County, CO
THIS AGREEMENT is made and entered into this Ilday of August, 2013, by and
between the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation (the "City")
and FR OTN, LLC, a Colorado limited liability company, Bruce Douthit an Individual, Rocky
Mountain High, LLC a Colorado limited liability company, OTN88, LLC a Colorado limited
liability company, Crystal Equities Corporation, a Colorado corporation, Phase Three, LLC, a
Colorado limited liability company, Dana McBride Homes, Inc., a Colorado corporation, and
Bacana, LLC, a Colorado limited liability company (collectively the "Owners").
1. Purpose of Agreement. The City previously entered into a Development
Agreement with Old Town North LLC ("Developer") dated June 10, 2004 (including subsequent
amendments, the "Development Agreement") which governs development activities pertaining
to the Old Town North subdivision in the County of Larimer, State of Colorado (the "Property").
Owners are successors in interest of Developer with respect to the portions of the Property
described more particularly on Exhibit A attached hereto ("Owners' Lots"). The Development
Agreement requires that a portion of the cost of certain future road construction be paid to the
City as a condition to issuance of more than a designated number of building permits. Some of
the several current owners of the Property are not willing to pay a proportionate share of such
costs at this time, but Owners desire to do so. In consideration of such payment by Owners, the
promises of the parties contained herein and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, Owners and the City have executed this
Agreement to set forth the agreement between themselves regarding the amounts payable to the
City for this purpose with respect to Owners' Lots under the Development Agreement.
2. Payment for Road Construction Costs. Subsequent to the execution of this
Agreement, and upon issuance of each Building Permit, Owners will pay to the City the sum of
$2,201.10 per lot (the "Roads Payment"). This payment represents the proportionate share
attributed to Owners' Lots (based on the 140 lots remaining as of December 1, 2012 in Phase 1
of the Development Plan for the Property which has been approved by the City), of the total
costs (including inflation factor to January 2013) allocated to the entire remaining Property for
construction of Vine Drive by Paragraph D.7 of Subheading II (Special Conditions) of the
Development Agreement and for construction of Redwood Street by Paragraph D.8 of
Subheading II (Special Conditions) of the Development Agreement (collectively, the "Vine and
Redwood Costs").
If any portion of this fee is paid after the year 2013, the inflation factor will be calculated, as
described below, and multiplied by the lot payment amount ($1,866.31) to determine the current
amount due for the next fiscal year, with said amount to be increased each year until payment is
completed in full. Upon payment of each fee required under this Subsection, the Developer's
obligation to pay its share of the costs for constructing relocated Vine Drive in conjunction with
the Development shall be satisfied.
The inflation factor (Inf. Fac.) for each year's increase in the amount of the fee shall be
calculated using the construction cost index for Denver as published in the Engineering News
Record (ENR) for January 2013, as the base index (1-base) and the same index published in the
I /City Clerk's Office, Fort Collins, Colorado
PHASE THREE, LLC
a Colorado limited liability company
Owner of Lots 14-19, Block 5 and Lots 18-21,
Block 8 and Lots 9-12, Block 9 (Total 14)
By -( C AA/ �1A ai���t S ) `7V� �� f
L��+' a JJ
Cleve Schenck, ber rW P-W*s ue ►2
v".--
STATE OF COLORADO )
) ss.
COUNTY OF-i] ' )
The foregoing was acknowledged before me this 30 day of ,
2013, by Cleve Schenck, Manager of Phase Three, LLC, p1plorado, limited liability co any.
r
Notary Public
My Commission Expires:
.Iff/�N /&Pots
CHRISTI ZOSERST
NOTARY PUBLIC
STATE OF COLORADO
My Ow nission Evk" I ira 4015
10
DANA MCBRIDE HOMES, INC
a Colorado corporation
Owner of Lots 11, 32, and 35 Block 5 (Total 3)
B
Dana McBride, P ent
STATE OF COLORADO )
) ss.
COUNTY OF LARIlVIER )
The foregoing instrument was acknowledged before me this -1 day of N
2013, by Dana McBride as President of Dana McBride Homes, Inc., a Colorado corpo on.
My Commission Expires: 11-I LP-11
LAURA MALAN
NOTARY PUSUC
STATE OF COLORADO
NOTARY ID 20104OW 94
My COrnmMM M MOW N&Mr*W 10, 2014
11
.BACANA, LLC
A Colorado limited liability company
Own�of��4 ,Block 8 (Total 2)
B
Michael C-"r, Managing Member
r�
STATE OF COLORADO
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this =— day of
2013, by Michael Gcsetr,' as Managing Member of Bacana, LLC a Colorado limited ili
company.
of
My Commission Expires:r'''
LOOAN B. LAY
F
OTARY PUBLIC
TE OF COLORADO
RY 10 2013400Z�6soN E 9%W JAN,18, 2017
12
EXHIBIT A: OWNERS' LOTS
62 TOTAL LOTS IN OLD TOWN NORTH SUBDIVISION
Bruce Douthit
Lot 1, Block 3 (Total 1)
Rocky Mountain High, LLC
Lots 2-3, Block 3, and Lots 1-3, and Lot 16, Block 8 (Total 6)
Phase Three, LLC
Lots 14-19, Block 5, and Lots 18-21, Block 8, and Lots 9-12, Block 9 (Total 14)
Crystal Equities Corporation
Lots 33 and 35, Block 5 (Total 2)
FR OTN, LLC
Lots 18-26, Block 3, and Lots 26-35, Block 7, and Lots 10, 30 and 34, Block 5 (Total 22)
OTN 88, LLC
Lots 7-17, Block 7 and Lots 8, 31 and 34, Block 5 (Total 14)
Dana McBride Homes, Inc.
Lots 11, 32, and 35 Block 5 (Total 3)
Bacana, LLC
Lots 4 and 5, Block 8 (Total 2)
*Lot 34, Block 5 is listed under FR OTN, LLC and OTN 88, LLC as it is a 50-50 ownership
*Lot 35, Block 5 is listed under Crystal Equities Corporation and Dana McBride Homes, Inc. as
it is a 50-50 ownership
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OWNERS' LOTS CERTIFICATION
BRUCE DOUTHIT
An Individual
Lots .Owned:
Lot I, Block 3 (Total 1)
BY SIGNING THE AGREEMENT CONTAINED HEREIN, THE SIGNER CERTIFIES THAT
THEY ARE THE AUTHORIZED SIGNATORIES FOR THEMSELVES AND/OR THEIR
REPSECTIVE LEGAL ENTITY AND THAT THEY OR THEIR LEGAL JrY Or THE
L(AS AS ABOVE SET FORTH. Executed under penalty of perjury this day
2013.
Print Name:r Z�h c;
Title: CW N -
SIGNED:
14
OWNERS' LOTS CERTIFICATION
ROCKY MOUNTAIN HIGH, LLC
a Colorado limited liability company
Lot(s) Owned:
Lots 2-3, Block 3, and Lots 1-3, and Lot 16, Block 8 (Total 6)
BY SIGNING THE AGREEMENT CONTAINED HEREIN, THE SIGNER CERTIFIES THAT
THEY ARE THE AUTHORIZED SIGNATORIES FOR THEMSELVES AND/OR THEIR
REPSECTIVE LEGAL ENTITY AND THAT THEY OR THEIR LEGAL ENTITY OWN THE
L TS AStkBOVE SET FORTH. Executed under penalty of perjury this ,-4- day of
S .2013.
Print Name --
Title:
SI1
15
OWNERS' LOTS CERTIFICATION
PHASE THREE, LLC
a Colorado limited liability company
Los Owned:
Lots 14-19, Block 5, and Lots 18-21, Block 8, and Lots 9-12, Block 9 (Total 14)
BY SIGNING THE AGREEMENT CONTAINED HEREIN, THE SIGNER CERTIFIES THAT
THEY ARE THE AUTHORIZED SIGNATORIES FOR THEMSELVES AND/OR THEIR
REPSECTIVE LEGAL ENTITY AND THAT THEY OR THEIR LEGAL ENTITY OWN THE
LOTS AS ABOVE SET FORTH. Executed under penalty of perjury this 6k4% day of
Av_r2 v s.T- 2013.
Print Name: C. t F V F S cHEfu c 4-
Title: v%_
SIGNED:
.- . 60e S::�� ";;z
16
OWNERS' LOTS CERTIFICATION
CRYSTAL EQUITIES CORPORATION
a Colorado corporation
Lot(s) Owned:
Lots 33 and 35, Block 5 (Total 2)
*Title to Lot 35, Block 5 is vested in Crystal Equities Corporation and Dana McBride Homes,
Inc. as a 50-50 ownership
BY SIGNING THE AGREEMENT CONTAINED HEREIN, THE SIGNER CERTIFIES THAT
THEY ARE THE AUTHORIZED SIGNATORIES FOR THEMSELVES AND/OR THEIR
REPSECTIVE LEGAL ENTITY AND THAT THEY OR THEIR LEGAL ENTITY OWN THE
LOTS AS ABOVE SET FORTH. Executed under penalty of perjury this %4v _ day of
t�eu;5.ate_, 2013.
Print Name: C. L.E V E S G ti 6 rA L tt
Title: e czV% t 'DE m
SIGNED: 4�&2
17
OWNERS' LOTS CERTIFICATION
FR OTN, LLC
a Colorado limited liability company
Lot(s) Owned:
Lots 18-26, Block 3, and Lots 26-35, Block 7, and Lots 10, 30 and 34, Block 5 (Total 22)
*Title to Lot 34, Block 5 is vested in FR OTN, LLC and OTN 88, LLC as a 50-50 ownership
BY SIGNING THE AGREEMENT CONTAINED HEREIN, THE SIGNER CERTIFIES THAT
THEY ARE THE AUTHORIZED SIGNATORIES FOR THEMSELVES AND/OR THEIR
REPSECTIVE LEGAL ENTITY AND THAT THEY OR THEIR LEGAL ENTITY OWN THE
LOTS AS ABOVE SET FORTH. Executed under penalty of perjury this % day of
&L-nj 5r , 2013.
Print Name: �)c
Title: AA "AC ZR
SIGNED:
.z
18
OWNERS' LOTS CERTIFICATION
OTN88, LLC
a Colorado limited liability company
Lot(s) Owned:
Lots 7-17, Block 7 and Lots 8, 31 and 34, Block 5 (Total 14)
*Title to Lot 34, Block 5 is vested in FR OTN, LLC and OTN 88, LLC as a 50-50 ownership
BY SIGNING THE AGREEMENT CONTAINED HEREIN, THE SIGNER CERTIFIES THAT
THEY ARE THE AUTHORIZED SIGNATORIES FOR THEMSELVES AND/OR THEIR
REPSECTIVE LEGAL ENTITY AND THAT THEY OR THEIR LEGAL ENTITY OWN THE
LOJ,S AS ABOVE SET FORTH. Executed under penalty of perjury this / day of
1j yr !2 2013.
Print Name:
Title:
SIGNET✓
G� Ileot4,4
19
ENR for the January in each succeeding year immediately preceding payment (I -year of
payment). The formula for calculating said inflation factors shall be as follows:
Inf. Fac. = (I -year of payment) — (I -base)
(I -base)
The amount to be added to the fee to compensate for inflation shall be equal to the
amount of the fee times the inflation factor. Said amounts added to compensate for inflation
shall not reduce the total (principal) amount due.
3. Effect of Payment. The City agrees that notwithstanding anything to the contrary
contained in the Development Agreement, Owners, their successors and assigns shall have no
obligation to pay any additional amount of the Vine and Redwood Costs pursuant to the
Development Agreement or otherwise, and that the conditions on issuance of building permits
imposed by Paragraphs D.7 and D.8 of the Development Agreement shall not apply to any of
Owners' Lots regardless of whether or in what amount the other owners of the Property pay the
Vine and Redwood Costs. All other obligations and restrictions of the Development Agreement
shall be applicable to Owners' Lots, as will the fees and procedures for issuance of building
permits for the particular Owners' Lots by the City which are generally applicable to other
applicants.
4. Effect of Agreement. The City and Owners intend that this Agreement shall be
fully binding on them to the extent of the matters set forth herein, but agree that this Agreement
does not amend the Development Agreement and is not intended to alter the obligations of the
other owners of the Property to the City (or among themselves, if applicable) as set forth in the
Development Agreement except that the Roads Payment shall be applied against the Property's
obligation for the Vine and Redwoods Costs as of the date of payment.
5. Potential Future Amendment of Development Agreement. Owners and the City
hereby agree that they will join in the execution of any future amendment of the Development
Agreement which incorporates provisions consistent with this Agreement, provided that any
other provisions of such an amendment are reasonably satisfactory to Owners and the City.
6. Indemnification and Liability Obligation.
(a) Owners agree that in the event a court of competent jurisdiction enters a
final unappealable order adjudging that the City must issue building permits without
receipt of any unpaid portion of the payments required under Paragraphs I I (D)(7) and (8)
of the Development Agreement, as a result of this agreement , Owners shall reimburse
the City for any such lost payments.
(b) Owners shall indemnify and defend the City and its employees, agents and
representatives (the "City Indemnitees") against any claim, action, suit or proceeding
brought against the City or any City Indemnitee by Old Town North LLC or any related
party or successor ("Developer") or by any other owner of any portion of or interest in
the Property, including without limitation, any encumbrance holder, which are based
Iq
OWNERS' LOTS CERTIFICATION
DANA MCBRIDE HOMES, INC.
a Colorado corporation
Lot(s) Owned:
Lots 11, 32, and 35 Block 5 (Total 3)
*Title to Lot 35, Block 5 is vested in Crystal Equities Corporation and Dana McBride Homes,
Inc. as a 50-50 ownership
BY SIGNING THE AGREEMENT CONTAINED HEREIN, THE SIGNER CERTIFIES THAT
THEY ARE THE AUTHORIZED SIGNATORIES FOR THEMSELVES AND/OR THEIR
REPSECTIVE LEGAL ENTITY AND THAT THEY OR THEIR LEGAL ENTITY OWN THE
LOTS I ABOVE SET FORTH. Executed under penalty of perjury this day of
v 2013.
N�WpM-16
20
OWNERS' LOTS CERTIFICATION
BACANA,LLC
a Colorado limited liability company
Lot(s) Owned:
Lots 4 and 5, Block 8 (Total 2)
BY SIGNING THE AGREEMENT CONTAINED HEREIN, THE SIGNER CERTIFIES THAT
THEY ARE THE AUTHORIZED SIGNATORIES FOR THEMSELVES AND/OR THEIR
REPSECTIVE LEGAL ENTITY AND THAT THEY OR THEIR LEGAL ENTITY OWN THE
LOTS AS ABOVE SET FORTH. Executed under penalty of perjury this ttt-_ day of
2013.
'1
Print Name:` c�-a►ti �+� cSU"
Title: G•�•� c r - a n
SIGNED:
21
ATTORNEY'S CERTIFICATION
I hereby certify that the forgoing Instrument has been duly executed in accordance with
Section 2.2.3 (C)(3)(a) through (e) inclusive of the Land Use Code of the City of Fort Collins
and that all persons signing this Instrument on behalf of a corporation or other entity are duly
authorized signatories under the laws of the State of Colorado. This Certification is based upon
an examination of the records of the Clerk and Recorder of Larimer County, Colorado as of the
date of execution of the deed and other information discovered by me through reasonable inquiry
and is limited as authorized by Section 2.2.3(C)(3)(f) of the Land Use Code.
This certification covers ownership of 62 lots, which are affected hereby and listed
Owner's Lots in the attached Exhibit A. This certification applies to no other lots, blocks, or
tracts in Old Town North, not presently the subject of this particular Supplement to the City
Development Agreement.
Dated: August 9, 2013.
Attorney, Bruce M. Douthit
Address: 2076 Ebers Street
San Diego, CA 92107
CA State Bar No. 85048
WY-J
upon or arising from the City's execution and implementation of this Agreement
("Claims") and which are Proven against a City Indemnitee. "Proven" shall mean that
a court of competent jurisdiction has entered a final unappealable judgment on a
Claim adjudging a City Indemnitee liable for a monetary judgment.
(c) The City must provide written notice to Owners within 10 days after
obtaining knowledge of any Claim; provided that the failure to provide such notice
will not limit the rights of a City Indemnitee to indemnification hereunder except to
the extent that such failure materially increases the dollar amount of any such claim
for indemnification or materially prejudices the ability of Owners to defend
such claim. Owners shall, upon the commencement of any proceeding based on a Claim,
assume City's defense, in addition to its own, at Owner's expense in a manner and with
counsel reasonably acceptable to the City. The City shall cooperate as requested by
Owners or their counsel with respect to defense of such proceeding, and shall not charge
Owners for the time, travel and incidental expenses of the City employees, agents or
representatives which may result from cooperating in the defense of such proceeding.
Owners or their counsel shall reasonably limit the time, travel and incidental expenses of
the City employees, agents or representatives which may result from cooperating in the
defense of such proceeding. Owners shall determine the course and nature of the defense
of any Claim, except that Owners may not settle any claim, action, suit or proceeding for
which it has assumed the City's defense without the prior written consent of the City, said
approval not to be unreasonably withheld or delayed. The City shall not be required to
approve any settlement that involves an admission of liability or wrongful conduct on
the part of the City or restricts its ability to conduct its business in any material respect.
No approval by the City is required of any settlement, where the City and the City
Indemnitees are released from, or absolved of, all liability asserted against them in the
Action.
(d) Owners further agree to provide the City with a cash deposit in the amount of
$2,000 per lot, for the Owners' Lots as described in "Exhibit A," upon Owner's
application for Building Permits to secure the performance of Owner's indemnity and
other obligations under this Paragraph 6. The cash deposit(s) will be returned to Owner
upon the occurrence any one of the following events (a "Discharge Event"): (i) the
Developer, Owners and all other owners of vacant lots in phase one of the development
for which a building permit has not been issued and who have not signed an agreement
similar to this, and the City execute an amendment to the Development Agreement as
described in Paragraph 5 above, (ii) a court of competent jurisdiction has entered a final
unappealable judgment dismissing or otherwise resolving all Claims in favor of the City
Indemnitees, including any action for declaratory relief that may brought by the owner, or
other owners of vacant lot/s within Old Town North subdivision, or (iii) seven (7) years
after the date of issuance, if no Claim has been made against any City Indemnitee by
Developer.
(e) Owners' indemnity and other obligations under this Agreement shall likewise
automatically terminate upon the occurrence of any Discharge Event.
(f) Except as expressly set forth herein, this paragraph 6 is intended solely to
3
benefit the parties executing this Agreement, and is not intended to provide or create,
either directly or indirectly, any right or benefit for any person or other entity that is not
a party to this Agreement. However, each of the City Indemnitees, as defined above, is a
beneficiary of this paragraph 6, and each of them is authorized and entitled to seek
enforcement of all of the rights and benefits provided to them pursuant to this
paragraph 6. However, none of the City Indemnities other than the City itself is
required to approve, consent to, or execute any amendment to this Agreement before such
amendment will become effective.
7. Agreement to include additional non -developer lot owners. The city hereby
agrees to make a similar agreement available to all other non -developer vacant lot owners in
phase one of the development on the same terms, conditions and proportions as contained in
this agreement.
8. Execution of Agreement. This Agreement may be signed in counterpart and shall
be effective upon signing by Owners and the City, provided, however, that unless such
signatures are affixed to this Agreement on or before L 4& r 3o 20 r _I, this Agreement shall
be void and shall have no force or effect.
IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and
year first above written.
THE CITY OF FORT 0
a Municipal Corporation
By: —�
City Manager
A
ATTEST: O� FORT•C�`!
hiy
CITY C RK •
QV A L•
CQL0Rp►a0
APPR D AS„TO FORM:
Deputy City Attorney
.19
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
FR OTN, LLC
a Colorado limited liability company
Owner of Lots 18-26, Block 3, and Lots 26-35,
Block 7, and Lots 10, 30 and 34, Block 5 (Total 22)
By: ` M�►+k v�.
Devin Ferrey, Manager
The foregoing instrument was acknowledged before me this 7 day of
2013, by Devin Ferrey as Manager of FR OTN, LLC, a Colorado limited liability compdny.
My Commission Expires: _, tz h -'-A1_
myCMV*ft E*msatir018
5
BRUCE DOUTHIT
An Individual
Owner of Lot 1, Block 3 (Total 1)
By.
Bruce Douthit, Lot Owner
``-• d r l 0
STATE OF C-6Eft-A- Q )
5' )
COUNTY �� ) ss.
The foregoing instrument was acknowledged before me this 4il day ofyG✓3
2013, by Bruce Douthit an Individual. '
My Commission Expires: ?'Qi Notary Public
wwuw---w-wwwe
OFFICIAL SEAL.
QUINLIN R. HOLMES
NOTARY PU9UC,CAUFORNIApt
COMM. NO.1923M
SAN DIEGO COUNTY
MY COMM. EM JAN. A 2016
n.
Rocky Moutain High LLC, a Colorado limited liability
company
STATE OF COLORADO )
) ss.
COUNTY OF BBR }
The foregoing instrument was acknowledged
2013, by Spencer Douthit as Managing Member of �
Douthit, Managing Member
this I -tin day of S
n High, LLC. &
SARA
s SUTHERLAND: *
o
My Commission Expires: o , ) b Eu)�
7
OTN88, LLC
a Colorado limited liability company
Owner of Lots 7-17, Block 7 and Lots 8, 31 and 34,
Block 5 (Total 14)
By:
Glenn Herman, Managing Member
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this I day of
2013, by Glenn Herman as Managing Member of OTN88 LLC, a Colorado limited
company. I , „ e--X-N /
/�
My Commission Expires: '� l ,�Z02 Notary
CO
Alp
8
CRYSTAL EQUITIES CORPORATION
a Colorado corporation
Owner of Lots 33 and 35, Block 5 (Total 2)
Bye/:y� ",� 2l-:s , o `-,Z�- -i -3 0- --o j 3
Cleve Schenck, President
STATE OF COLORADO )
) ss.
COUNTY OFaM£';� )
U
The foregoing instrument was acknowledged before me this day of ,
2013, by Cleve Schenck as President of Crystal Equitie oration, a Colorado corporadon.
/ otary Public
My Commission Expires: // 91.�5'
r CHRISTI ZOSERST
NOTARY PUBLIC
STATE OF COLORADO
My commission Evkn iirA o15