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HomeMy WebLinkAbout 19-62 Holiday Inn Express FDP Assgnment of Dev AgrmntRESOLUTION 19-62 A RESOLUTION AUTHORIZING THE APPROPRIATE TOWN OFFICIAL TO SIGN THE ASSIGNMENT OF DEVELOPMENT AGREEMENT, HOLIDAY INN EXPRESS FINAL DEVELOPMENT PLAN WHEREAS, on September 9, 2014, M & H Investment, Inc., ("M & H"), a Colorado corporation, entered into a Development Agreement ("Agreement") for Holiday Inn Express Final Development Plan with the Town of Firestone ("Town") and such agreement was recorded in the records of the Cleric and Recorder of Weld County, Colorado at Reception No. 4047490 on September 22, 2014; and WHEREAS, on August 7, 2018, M & H entered into a First Amendment to Development Agreement for Holiday Inn Express Final Development Plan ("First Amended Agreement") with the Town and such agreement was recorded in the records of the Clerk and Recorder of Weld County, Colorado at Reception No. 4431236 on September 17, 2018; and WHEREAS, Section 9 of the Agreement pet�nits the assignment of the agreement to other parties upon written approval of the Town; and WHEREAS, M & H provided notice to the Town of its intent to convey Lot 8, Block 1, Del Camino Junction Business Park Minor Plat to Firestone Express, LLC ("Firestone"), and assign the rights and obligations of the Agreement and First Amended Agreement to Firestone; and WHEREAS, M &Hand Firestone request approval of the Assignment of Development Agreement by the Town, and WHEREAS, the Board of Trustees of the Town of Firestone, Colorado, considered the Assignment of Development Agreement, Holiday Inn Express Final Development an, attached here to as Exhibit A, on July 24, 2019; and NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FH2ESTONE, COLORADO: Section 1. The Board of Trustees of the Town of Firestone hereby approves the Assignment of Development Agreement, Holiday Inn Express Final Development Plan, and authorizes the appropriate Town Official to sign and bind the Town to the Agreement. INTRODUCED, READ AND ADOPTED this 24th day of July, 2019. TOWN OF FIIZESTONE, COLORADO 1 eST r TOWN mb �� 10 ATTEST: �© �� ' 0 r�(lNT4,464*4 Ytoo , C,��' Town Clerk Leah Vanarsdall, �a ASSIGNMENT OF DEVELOPMENT AGREEMENT (Holiday Inn Express FDP) THIS ASSIGNMENT OF DEVELOPMENT AGREEMENT ("Assignment") is made and entered into this. day of J VU`( , 2019 ("Effective Date"), by and between the TOWN OF FIRESTONE, a Colorado municipal corporation ("Town"), M & H INVESTMENT, INC., a Colorado corporation ("M & H" or "Assignor"), and FIRESTONE EXPRESS, LLC, a Colorado limited liability company ("Firestone" or "Assignee"). WHEREAS, on September 9, 2014, M &Hand the Town entered into that certain DEVELOPMENT AGREEMENT (the "Agreement") relating to certain real property located in the Town of Firestone, Colorado, commonly known as 11256 Business Park (the "Property"), whereby M & H would provide for certain public improvements required to be constructed under an approved Final Development Plan ("FDP") and to serve a Holiday Inn Express hotel situated upon the Property, and which are more particularly described in Exhibit B to the Agreement, WHEREAS, M & H desires to assign to Firestone all of its rights, title, interest, and obligations under the Agreement, and Firestone desires to fulfill the Agreement's obligations; and WHEREAS, Section 9 of the Agreement requires M & H to provide to the Town written notice of any proposed transfer, assignment or delegation of all or any portion of M & H's rights and obligations under the Agreement to any successor; and WHEREAS, Section 9 of the Agreement further provides that any of the rights and obligations of M & H under the Agreement may not be assigned without the written consent of the Town; and WHEREAS, the Town consents to the proposed Assignment of the Agreement fiom M & H to Firestone upon the terms and conditions set forth herein. AGREEMENT NOW THEREFORE, in consideration of the mutual promises, covenants, terns, conditions, restrictions and requirements set forth herein, the parties agree as follows: 1. Incorporation of Recitals. The Parties hereby incorporate the recitals above as part of their agreement as if fully set forth herein• 2. Assignment. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, M & H hereby assigns, sets over and tl•ansfers to Assignee all of Assignor's right, title, interest, duties and obligations set forth in the Agreement ("Assigned Rights and Obligations"), 4517059 Pages: 1 of 5 08/22/2019 0435 PM R Fee;$33.00 Carly Koppes, Clerk and Reoordar, Weld Counly, CO III ���WrIllArl 11RI"IZX11111i AF111111114 a�1rh I ill 4517059 Pages: 2 of 5 08/22/2019 04:39 PM R F•ee:$33.00 Carly Koppes, Clerk and Reoorder, Weld County, CO III���aQ�1 ���141104'�,r ��'�1P.+rar�,lti; M��'ti ��h IIII 3. Assumption of Obligations. Assignee hereby assumes and agrees to perform all of the commitments, obligations, terms, provisions, conditions and covenants of the Assigned Rights and Obligations. 4. Replacement Guarantee. Concurrently with the execution of this Assignment, Assignee shall furnish to the Town an improvement guarantee pursuant to, and in accordance with, Section 3 of the Agreement to replace the [cash guarantee] provided by Assignor (the "Replacement Guarantee") to ensure completion of the public improvements. 5. Release of Guarantee. To obtain from the Town a release of the improvement guarantee provided by Assignor, Assignor shall submit a written request for release of the guarantee (the "Release Letter"). The Release Letter shall provide: (a) confirmation of the Assignment; and (b) if the guarantee is in the form of cash, written authorization by Assignor or other person who provided the cash guarantee on behalf of Assignor to release the cash funds held by the Town to Assignor or an entity that is legally authorized to receive such funds on behalf of Assignor, along with wiring instructions, if any; or (c) if the guarantee is in the form of an irrevocable letter of credit or surety bond, a draft release of such irrevocable letter of credit or surety bond to be submitted to the entity or banking institution that issued such irrevocable letter of credit or surety bond. Provided the Town is in receipt of the Replacement Guarantee, the Town shall release the cash funds in accordance with Assignor's Release Letter, or shall execute and deliver the draft release to the appropriate banking or financial institution. 6. Entire Agreement. This Assignment embodies the entire understanding of the parties hereto and there are no other agreements or understandings written or oral in effect between the parties relating to the subject matter hereof unless expressly referred to by reference herein. This Assignment may be amended or modified only by an instrument of equal formality signed by the parties or their duly authorized agents. 7. Section Headings. The section of headings is inserted herein onlyfor convenience or reference, and in no way shall be defrned to limit or describe the scope or intent of any of the provisions in this Assignment. 8. Successors and Assigns This Assignment shall be binding upon the parties and the successor entity of any party and will be deemed a covenant running with land included within the FDP and will be binding upon all successors in ownership of the land within the FDP. 9. Counterparts. This Assignment maybe executed in any number of counterparts, and, when so executed, shall constitute a single, binding agreement between those parsons who have executed such counterparts. IN WITNESS WHEREOF, the parties hereto have executed this Assignment of Developrxrent Agreement as of the day and year first above set forth. [signature page follows] 4517059 Pages: 3 of 5 08/22/2019 04:39 PM R Fee:$33.00 Carly IKoppess, Clerk M1and nRecorder, Weld County, {C�O` III IN fa 7 h, iw fyIM I®I'I �1� �� 7Y iYI�I �Afillr I�fl 11111 FIRESTbNE EXPRESS, LLC a Colorado limited liability company By: Printed Name: � Title; ACKNOWLEDGMENT STATE OF COLORAUO ) ss. COUNTY OF ) The foregoi instru�,m, ennt was acknowledged before me this A day of (�S 2019, byk.r r �—� as ' C- ofFIRESTON ' EXPRESS, LLC, a Coldrado limited liability company. Witness my hand and official seal. My commission expires:��_� .2' (SEAL) K3 Public 1517059 Pages: 4 of 5 08/22/2019 04:39 PM R Fee:$33.00 Carly Koppes, Clerk and Reoorder, Weld County, CO III WFlAlkr l � W,N M 6,1KiilN, IV I�q1 1114, 11111 M & H INVEESTMENT, INC. a Colorado corporation By; Printed Name; 6 C 1?.q:l r i t Title; ACKNOWLEDGMENT STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was aclmowledged before me this Q day of im , Wl% by �Ho n Ki►n , as C (1)qK of M & H INVESTMENT, INC., a Colorado corpooation, Witness my hand and official seal, My commission expires; �OTI ACKNOWLEDGEMENT OF NOTICE AND CONSENT TO ASSIGNMENT The Town oeStone acknowledges receipt of notice of this Assignment, and acknowledges to Assignor and Assignee that the foregoing Assignment is consented to by: TOWN OF I�'IRESTONE, COLOItADO 08%22�/2019 04;39 PM R Fee;$33.00 Carly Koppes, Clerk and Reoorder, Weld County, CO ®III N FMAM,t(AIM111 Gul1w FITMIX IIllu 4 k1l), ®ill l s