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Home My WebLink AboutCOUNCIL - AGENDA ITEM - 04/05/2022 - FIRST READING OF ORDINANCE NO. 041, 2022, ADOPTING Agenda Item 12 Item # 12 Page 1 AGENDA ITEM SUMMARY April 5, 2022 CDNS-Planning STAFF Pete Wray, Senior City Planner Brad Yatabe, Legal SUBJECT First Reading of Ordinance No. 041, 2022, Adopting a Development Agreement Extending the Term of Vested Rights for the Mulberry & Greenfields Planned Unit Development Master Plan. EXECUTIVE SUMMARY The purpose of this item is to consider the development agreement regarding the Mulberry & Greenfields Planned Unit Development (PUD) Master Plan to extend the term of vested rights from three years to fifteen years. If this item is pulled off the Consent Calendar, the process for considering the Ordinance will be as follows: • City Staff presentation • Applicant presentation (suggested time: 10 minutes) • Public comment • Council deliberation STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION A. Mulberry & Greenfields Planned Unit Development Master Plan and Overlay The Mulberry & Greenfields Planned Unit Development Master Plan (“Mulberry PUD Master Plan”), ODP210002, was approved by the Planning and Zoning Commission on December 16, 2021, to create the associated planned unit development overlay (“PUD Overlay”) pursuant to Land Use Code Division 4.29. Because the property to which the PUD Overlay applies was less than 640 acres in size, the Planning and Zoning Commission was the decision maker pursuant to the Land Use Code but Council remains the decision maker regarding whether to grant extended vested rights. A copy of the Mulberry PUD Master Plan is attached to the proposed Development Agreement. The Mulberry PUD Master Plan substitutes for the requirements of an Overall Development Plan for real property within the approved Overlay to existing zoning. Within the Overlay, existing zoning and applicable Land Use Code requirements continue to apply, except to the extent modified by or inconsistent with the Mulberry PUD Master Plan. The Mulberry PUD Master Plan document consists of sheets 1-18 and the approved modified land uses, densities, and development standards that are part of the associated Overlay are included in sheets 7-16. At the time of the Mulberry PUD Master Plan approval, the branding of the future development project was not finalized. The name for the development moving forward is “Bloom”. B. Vested Rights Agenda Item 12 Item # 12 Page 2 Land Use Code (LUC) Divisions 2.15 and 4.29 provide for the establishment of a planned unit development (PUD) overlay that is superimposed upon existing zoning and allows additional uses and modif ied densities and development standards not otherwise available in the underlying zoning. LUC Section 2.2.11(C) states that in connection with an approved PUD overlay and its associated PUD master plan, additional uses, modified densities and development s tandards, Engineering Standards granted variances pursuant to LUC Section 4.29 (L), and development standards that have not been modified are eligible for a vested property right. Vested property rights are governed by state law and the LUC. A vested prop erty right is the right to “undertake and complete the development and use of property under the terms and conditions of a site - specific development plan.” (§ 24-68-102, C.R.S.) A PUD overlay is a site-specific development plan for purposes of acquiring vested property rights, and during the period for which a vested property right is valid, the holder of the right is able to develop with the assurance that the uses, densities, and standards that have been accorded vested property rights cannot be changed by the City except in limited circumstances. B. Extended Vested Rights Period Vested property rights associated with a PUD overlay are not valid for more than three years unless the City and developer enter into a development agreement extending the vest ing. In order for the City to enter into such a development agreement, the Director of the Community Development and Neighborhood Services Department (“Director”) must first determine, “that it will likely take more than three (3) years to complete all phases of the development and the associated engineering improvements for the development, and only if warranted in light of all relevant circumstances, including, but not limited to, the overall size of the development and economic cycles and market conditions.” (LUC Section 2.2.11(C)(2)) If the Director determines that extended vesting is justified, then Council may approve a development agreement regarding extended vested rights by means of an ordinance. The Mulberry PUD Master Plan developer, Mulberry De velopment, LLC, (“Developer”) has requested extended vesting for a period of fifteen years for additional uses, modified densities and development standards, and development standards that have not been modified. The letter requesting extended vesting is attached and contains the Developer’s justification why Council should grant extended vesting including: (A) the size and complexity of the project; (B) multiple phases; (C) economic fluctuation; (D) significant up-front investment for the land and entitlements to develop property; and (E) the significant public benefits of the proposed development. The Director has determined that extended vesting is justified as stated in the written determination dated February 23, 2022. The Development Agreement sets forth the additional uses, modified densities and development standards, and development standards that have not been modified for which the Developer is seeking extended vested rights for fifteen years and additional terms to clarify the City’s and Developer’s respective obligations regarding such extended vested rights. Council’s decision whether to approve the Development Agreement is legislative. In deciding whether to approve the Development Agreement and grant the extended vesting request, Cou ncil may wish to consider whether it will take fifteen years to complete all phases of the development and the associated public infrastructure considering the size and complexity of the development, the future economic cycles and market conditions that may impact the development, and other issues Council believes are relevant for consideration. BOARD / COMMISSION RECOMMENDATION No board or commission recommendation regarding the Development Agreement was made or required. On December 16, 2021, the Planning and Zoning Commission approved by a vote of (5 -0) the Mulberry & Greenfields PUD Master Plan and Overlay. The Planning and Zoning Commission approval created a three - year term of vested rights for certain uses, densities, and development standards wi thin the Mulberry PUD Master Plan and the Developer is requesting that period to be extended to fifteen years. Agenda Item 12 Item # 12 Page 3 PUBLIC OUTREACH No public outreach regarding the Development Agreement was conducted. Public outreach regarding the Mulberry PUD Master Plan and Overlay was conducted. ATTACHMENTS 1. Bloom Vesting Request (PDF) 2. Powerpoint Presentation (PDF) February 15, 2022 Paul Sizemore Community Development and Neighborhood Services 281 N. College Avenue Fort Collins, CO 80521 c/o Caryn Champine Director of Planning, Development, and Transportation 281 N. College Avenue Fort Collins, CO 80521 c/o Brad Yatabe Assistant City Attorney 281 N. College Avenue Fort Collins, CO 80521 c/o Pete Wray AICP, Senior City Planner 281 N. College Avenue Fort Collins, CO 80521 Re: UPDATED Request for Vested Property Rights Mulberry PUD Master Plan Mulberry Development, LLC, the developer of the proposed Bloom project (“Developer”) has submitted to the City an application for approval of the Mulberry Planned Unit Development Master Plan for the Property (“Mulberry PUD Master Plan”) pursuant to Land Use Code Division 4.29. The Mulberry PUD Master Plan encompasses 226-acres of undeveloped, vacant land off East Mulberry Street in northeast Fort Collins (the “Property”). A depiction of the Property is attached to hereto as Attachment A. Current zoning of the Property is a combination of (CG) General Commercial, (E) Employment, (NC) Neighborhood Commercial, (MMN) Medium Density Mixed Use Neighborhood and (LMN) Low Density Mixed-Use Neighborhood. Based on all relevant circumstances, detailed below, including the size and phasing of the Mulberry PUD Master Plan and expected fluctuation of market conditions and economic cycles during the expected fifteen (15) year build out, the Developer requests: 1.A determination by Caryn Champine, Director of Planning, Development, and Transportation, that: (i) it will likely take more than three (3) years to complete all phases of the Mulberry PUD Master Plan and the associated engineering ATTACHMENT 1 improvements; and (ii) vested property rights in excess of three (3) years for the Mulberry PUD Master Plan are warranted in light of all relevant circumstances. 2. Any additional action required by Planning & Zoning Board, City Council or Staff to fully approve and vest the Mulberry PUD Master Plan and the Development Agreement as site specific development plans establishing vested property rights for a term of Fifteen (15) years, in accordance with the Colorado Vested Property Rights Statute (C.R.S. §24-68-102), Ordinance No. 091, 2018 of the Council of the City of Fort Collins (“PUD Overlay Ordinance”) and the provisions of the Development Agreement concerning vested property rights. This letter represents a revised vesting request, updating the requested term to fifteen (15) years from the originally requested twenty-five (25) years, which was included in the original request sent to the City of Fort Collins on December 3, 2021. Circumstances Which Warrant Extended Vested Property Rights A. Size and Complexity of Project The Mulberry PUD Master Plan, at 1,600+ residential units and 35+ acres of commercial/mixed-use development, is one of the largest remaining planned development areas in the City. Not only is the Mulberry PUD Master Plan large, it is also complex. The Developer’s overall vision is for development of the Property, over time, as a New Urbanist community of true traditional neighborhoods with an integrated mix of uses including housing, employment, retail, parks, and natural areas. B. Multiple Phases The Development Phasing Plan submitted with the Mulberry PUD Master Plan depicts the Developer’s estimate of the scope and order of the phases of development. Please see a copy of the Development Phasing Plan in Attachment B. The residential product absorption is targeted at approximately 150 units per year. Each development phase within the Mulberry PUD Master Plan will require Preliminary Development Plan and Final Plan review and approval of the design of appropriate infrastructure suitable for each phase. C. Economic Fluctuation Economic downturns will occur during the long build-out period which, in turn, will reduce the number of years in which active development will occur during the vesting period. D. Significant Up Front Investment 1. Land Purchase: There will be a significant cost for the purchase of the 226+ acre property. 2. Raw Water: There has been significant investment in the ~400 Acre-Feet (AF) of raw water to meet indoor water use. There will be additional significant investment in raw water to satisfy the non-potable system for outdoor use. 3. Land Entitlement: Land entitlement costs which are expected to reach approximately $2 million just through the Mulberry PUD Master Plan stage. Further entitlement costs will be incurred with entitlement of each phase. 4. Public Improvements: (a) Overall, the public improvements associated with the Mulberry PUD Master Plan include, but are not limited to: arterial and collector roadways; trail networks; multi-modal facilities (pedestrian, bicycle and transit); storm drainage systems; non-potable water system; potable water, sanitary sewer, electric and broadband; and parks and recreation. (b) Although the public improvements will be installed as required by each development phase of the Mulberry PUD Master Plan, given the lack of infrastructure in this area, it is expected that a significant amount of public improvements will need to be installed in the early phases of development. (c) The cost, scope, and definition of such public improvements may vary over time. The total estimated cost of public improvements, as set forth on Attachment C, is approximately One-Hundred and Four Million Dollars ($104,000,000) in 2019 dollars. This total estimated cost does not include costs for some local public improvements. E. Public Benefits There are significant public benefits resulting from this project. See Attachment D taken from the Mulberry Metropolitan Districts Service Plan. Given the size of the Mulberry PUD Master Plan, the scope of the associated public improvements and the anticipated fluctuation in market conditions and economic cycles, the Developer and its consultants estimate build out of all phases to take fifteen (15) years. Without legal assurance that the Mulberry PUD Master Plan will not be subject to unilateral changes by the City, the very significant investment in this project is neither reasonable nor feasible. Thank you for your consideration of this request. Sincerely, Landon Hoover CEO / Owner Mulberry Development, LLC / Hartford Homes, LLC. Attachment A: Property Map Attachment B Development Phasing Map Attachment C: Development Cost Estimate Date January 8, 2019 Acreage: 229.43 Units: 1608 Group Activity Unit Unit Cost Qty Total Per Unit Qty Total Per Unit Earthwork Clear and Grub Acre 200.00$ 229.43 45,887$ 29$ Earthwork Strip Topsoil and Stockpile - 6" Cubic Yard 2.85$ 185,076 527,467$ 328$ Earthwork Overlot Grading Cubic Yard 3.15$ 525,000 1,653,750$ 1,028$ Earthwork Finish Grading Square Yard 1.25$ 1,110,457 1,388,071$ 863$ Earthwork Replace Topsoil Cubic Yard 2.85$ 185,076 527,467$ 328$ Earthwork Remove Concrete Lined Irrigation Ditch Linear Feet 7.75$ 10,650 82,538$ 51$ Earthwork Remove Tree Each 615.00$ 30 18,450$ 11$ Earthwork Earthwork Subtotal 4,243,630$ 2,639$ Sanitary Connect to Existing Each 5,400.00$ 5 27,000$ 17$ Sanitary Sanitary Sewer Dewatering Day 850.00$ 60 51,000$ 32$ Sanitary 8" Sanitary Sewer Linear Feet 70.20$ 41,044 2,881,302$ 1,792$ Sanitary 12" Sanitary Sewer Linear Feet 83.70$ 7,901 661,338$ 411$ Sanitary 4' DIA Sanitary Sewer Manhole Each 3,786.67$ 370 1,401,067$ 871$ Sanitary 4" Sanitary Service Each 1,852.50$ 1,009 1,869,173$ 1,162$ Sanitary Jetting / Camera Linear Feet 2.50$ 48,945 122,364$ 76$ Sanitary Off Site 12" Sanitary Sewer Linear Feet 83.70$ 1,139 95,361$ 59$ Sanitary Offsite 4' DIA Sanitary Sewer Manhole Each 3,786.67$ 11 41,653$ 26$ Sanitary Sanitary Subtotal 7,150,257$ 4,446.68$ Water Connect to Existing Each 3,200.00$ 18 57,600$ 36$ Water 8" Water Main Linear Feet 44.35$ 43,705 1,938,315$ 1,205$ Water 8" x 8" Water Main Tee Each 465.00$ 85 39,690$ 25$ Water 8" Water Main Gate Valve Each 1,240.00$ 263 326,720$ 203$ Water 8" x 8" Water Main Cross Each 692.00$ 7 5,136$ 3$ Water 8" Water Main Air Release Valve Each 3,310.00$ 22 73,701$ 46$ Water 8" Water Main - Bend Each 300.00$ 130 38,966$ 24$ Water 8" Waterline Lowering Each 2,230.00$ 59 132,410$ 82$ Water 12" Water Main Linear Feet 59.00$ 9,687 571,541$ 355$ Water 12" x 8" Water Main Cross Each 1,520.00$ 12 17,884$ 11$ Water 12" x 8" Water Main Tee Each 940.00$ 12 11,060$ 7$ Water 12" Water Main Gate Valve Each 2,630.00$ 67 175,349$ 109$ Water 12" Water Main - Bend Each 750.00$ 31 23,531$ 15$ Water 12" Waterline Lowering Each 4,000.00$ 12 47,063$ 29$ Water 3/4" Water Service Each 2,900.00$ 777 2,253,300$ 1,401$ Water 1.5" Water Service Each 5,000.00$ 232 1,160,000$ 721$ Water Fire Hydrant Assembly Each 5,000.00$ 189 946,316$ 589$ Water Water Main Testing Linear Feet 1.10$ 53,392 58,731$ 37$ Water Offsite 12" Water Main Linear Feet 59.00$ 1,118 65,933$ 41$ Water Offsite 12" Water Main - Bend Each 750.00$ 12 9,000$ 6$ Water Offsite 20" Water Main Linear Feet 100.00$ 2,008 200,755$ 125$ Water Water Subtotal 7,306,574$ 4,544$ 846,428$ 526$ Non-Pot Water Non-Potable Water Pumphouse Each 450,000.00$ -$ -$ 2 900,000$ 560$ Non-Pot Water Non-Potable Water Main Linear Feet 60.00$ -$ -$ 62,370 3,742,200$ 2,327$ Non-Pot Water Non-Potable Water Subtotal -$ -$ 4,642,200$ 2,887$ Storm 18" RCP Linear Feet 55.80$ 1,317 73,476$ 46$ Storm 24" RCP Linear Feet 73.00$ 1,352 98,686$ 61$ Storm 30" RCP Linear Feet 91.00$ 4,893 445,272$ 277$ Storm 36" RCP Linear Feet 124.00$ 9,765 1,210,891$ 753$ Storm 42" RCP Linear Feet 160.00$ 1,226 196,117$ 122$ Storm 48" RCP Linear Feet 195.00$ 5,271 1,027,896$ 639$ Storm 54" RCP Linear Feet 230.00$ 1,261 290,014$ 180$ Storm 60" RCP Linear Feet 265.00$ 850 225,372$ 140$ Storm 66" RCP Linear Feet 300.00$ 629 188,625$ 117$ Storm 72" RCP Linear Feet 330.00$ 766 252,925$ 157$ Storm 42" RCP FES Each 1,500.00$ 2 3,000$ 2$ Storm 48" RCP FES Each 2,000.00$ 3 6,000$ 4$ Storm 66" RCP FES Each 3,500.00$ 2 7,000$ 4$ Storm 72" RCP FES Each 4,000.00$ 1 4,000$ 2$ Storm 6' DIA Storm Manhole Each 4,573.33$ 97 443,613$ 276$ Storm 7' DIA Storm Manhole Each 9,600.00$ 42 403,200$ 251$ Storm 8' DIA Storm Manhole Each 10,500.00$ 17 178,500$ 111$ Storm 5' Type R Inlet Each 5,265.00$ 54 286,581$ 178$ Storm 10' Type R Inlet Each 7,920.00$ 66 522,144$ 325$ Storm 15' Type R Inlet Each 10,600.00$ 4 38,824$ 24$ Storm Type C Inlet Each 3,340.00$ 18 60,600$ 38$ Storm Outlet Structure Each 10,800.00$ 5 54,000$ 34$ Storm Offsite Box Culvert Liner Feet 500.00$ 142 70,865$ 44$ Storm Storm Subtotal 6,087,601$ 3,786$ Concrete Fine Grade Curb And Gutter Linear Feet 2.10$ 79,847 167,678$ 104$ Concrete Fine Grade Concrete Sidewalks and Trails Square Feet 0.68$ 530,476 358,071$ 223$ Concrete Subgrade Prep Square Yard 1.30$ 81,121 105,458$ 66$ Concrete Roadbase for underneath Curb and Gutter and Flatwork Ton 22.60$ 18,773 424,269$ 264$ Concrete 6" Depth Concrete Trail Square Feet 5.00$ 160,265 801,326$ 498$ Concrete 6" Depth Detached Sidewalk Square Feet 5.50$ 370,211 2,036,161$ 1,266$ Concrete Curb And Gutter Linear Feet 21.50$ 79,847 1,716,704$ 1,068$ Concrete Handicap Ramps Each 1,622.50$ 295 479,105$ 298$ Concrete Flyash Mobilization Each 3,510.00$ 5 17,550$ 11$ Concrete Flyash Treated Subgrade 12", 12% Square Yard 9.85$ 81,121 799,046$ 497$ Concrete Concrete Subtotal 6,905,368$ 4,294$ Asphalt Mobilization - Streets Each 6,210.00$ 6 37,260$ 23$ Asphalt Subgrade Prep Square Yard 1.30$ 218,055 283,472$ 176$ Asphalt Alley - 4" Asphalt / 6" Class 5 Agg Base Square Yard 28.50$ -$ -$ 61,712 1,758,792$ 1,094$ Asphalt Alley - 5.5" Asphalt / 8" Class 5 Agg Base Square Yard 36.35$ -$ -$ 61,712 2,243,231$ 1,395$ Asphalt Local Street - 5" Asphalt / 7" Class 5 Agg Base Square Yard 30.80$ 102,826 3,167,044$ 1,970$ Asphalt Local Street - 5.5" Asphalt / 8" Class 5 Agg Base Square Yard 36.35$ 102,826 3,737,729$ 2,324$ Asphalt Collector Street - 6" Asphalt / 8" Class 5 Agg Base Square Yard 37.50$ 53,517 2,006,885$ 1,248$ Asphalt Collector Street - 6.5" Asphalt / 10" Class 5 Agg Base Square Yard 41.65$ 53,517 2,228,981$ 1,386$ Asphalt Flyash Mobilization Each 3,510.00$ 5 17,550$ 11$ Asphalt Flyash Treated Subgrade 12", 12% Square Yard 9.85$ 218,055 2,147,842$ 1,336$ Asphalt Signing Acre of Total Dev. 925.63$ 229 212,370$ 132$ Asphalt Pavement Marking Acre of Total Dev. 362.99$ 229 83,282$ 52$ Total Project Basic Public Improvements Non-Basic Public Improvements Springer-Fisher-Whitham Metro District Cost Estimate Date January 8, 2019 Acreage: 229.43 Units: 1608 Group Activity Unit Unit Cost Qty Total Per Unit Qty Total Per Unit Total Project Basic Public Improvements Non-Basic Public Improvements Springer-Fisher-Whitham Metro District Cost Estimate Asphalt Adjust Sanitary Manhole In Asphalt Pavement Each 560.00$ 370 207,200$ 129$ Asphalt Adjust Storm Manhole In Asphalt Pavement Each 560.00$ 156 87,360$ 54$ Asphalt Adjust Valve Box In Asphalt Pavement Each 450.00$ 352 158,590$ 99$ Asphalt Asphalt Subtotal 14,375,566$ 8,940$ 4,002,023$ 2,489$ Erosion Erosion Control Mobilization Each 2,700.00$ 6 15,911$ 10$ Erosion Erosion Control BMPs Acre 4,352.10$ 229.43 998,517$ 621$ Erosion SWMP Inspections and Permits Acre 172.42$ 229.43 39,559$ 25$ Erosion Erosion Control Maintenance Month 2,700.00$ 24 64,800$ 40$ Misc. Ongoing SWMP Management Month 3,780.00$ 24 90,720$ 56$ Erosion Erosion Control, Maint. Subtotal 1,209,508$ 752$ Landscaping Landscaping / Neighborhood Park Development Acre of Total Dev. 32,712.17$ 129.43 4,233,936$ 2,633$ 100.00 3,271,217$ 2,034$ Landscaping Pollinator Corridors Lump Sum 160,800.00$ 1 160,800$ 100$ Landscaping Cooper Slough Improvements Lump Sum 500,000.00$ 1 500,000$ 311$ Landscaping Lake Canal Improvements Lump Sum 150,000.00$ 1 150,000$ 93$ Landscaping Mulberry Frontage Lanscape Improvements Acres 500,000.00$ 1 500,000$ 311$ Landscaping Fencing Linear Feet 20.00$ 8,252 165,031$ 103$ Landscaping / OS Landscaping and Fence Subtotal 4,398,967$ 2,735.68$ 4,582,017$ 2,850$ Misc. / Amenity Dry Utility Conduit Crossings Lot 550.00$ 1,607 883,850$ 550$ Misc. / Amenity Dry Utility Coordination Lot 165.00$ 1,607 265,155$ 165$ Misc. / Amenity Neighborhood Pool Lump Sum 3,000,000.00$ 1 3,000,000$ 1,866$ Misc. / Amenity Commercial Promenade Lump Sum 3,000,000.00$ 1 3,000,000$ 1,866$ Misc. / Amenity Enhanced Pedestrian Crossings Each 12,500.00$ 6 75,000$ 47$ Misc. / Amenity Gateway / Monumentation and ROW Lump Sum 1,250,000.00$ 1 1,250,000$ 777$ Misc. / Amenity Greenfields Rail Crossing Lump Sum 500,000.00$ 1 500,000$ 311$ Misc. / Amenity Adjust existing sewer manhole to grade Each 920.00$ 7 6,440$ 4$ Misc. / Amenity Pothole Existing Utilities Hour 210.00$ 350 73,455$ 46$ Misc. / Amenity Greenfield Offsite Cost Including RAB (Earth, Concrete, & Asphalt) Lump Sum 524,453.00$ -$ 1 524,453$ 326$ Misc. / Amenity Mulberry Instersection and Median Improvements Lump Sum 300,000.00$ -$ -$ 1 300,000$ 187$ Testing Testing And Observation Acre 3,366.70$ 229.43 772,433$ 480$ Misc. Overall Mobilization & General Conditions Acre 8,024.74$ 229.43 1,841,142$ 1,145$ Misc. Engineering/Survey/Construction Management (15% of Constuction Costs) Lump Sum 34,589.38$ 229.43 7,935,956$ 4,935$ 3,408,318$ 2,120$ Contingency Contingency (20% of Construction Costs) Lump Sum 46,119.17$ 229.43 10,581,274$ 6,580$ 4,544,424$ 2,826$ Misc. / Amenity Miscellaneous Subtotal 22,359,704$ 13,905$ 16,602,195$ 10,325$ Springer Fisher Metro District Development Costs 74,037,174$ 46,043$ 30,674,863$ 19,076$ Attachment D: Public Benefits Agreement City Council Hearing - 4/5/2022Mulberry PUD Master Plan – Extended Vesting RequestPete Wray, Senior City PlannerATTACHMENT 2 Subject2First Reading of Ordinance Adopting a Development Agreement Extending the Term of Vested Rights for the Mulberry & Greenfields Planned Unit Development Master Plan Overlay. Mulberry PUD Master Plan3PUD Master Plan - AreaPUD Master Plan - Phasing Plan Vested Rights4Land Use Code (LUC) Divisions 2.15 and 4.29: Provide for the establishment of a planned unit development (PUD) overlay and Master Plan.Additional uses, modified densities and development standards are eligible for a vested property right.A vested property right is the right to “undertake and complete thedevelopment and use of property under the terms and conditions of asite-specific development plan. Extended Vested Rights5•PUD Overlay vested rights are valid for three years unless the Cityand developer enter into a development agreement extending thevesting.•Required Director determination that extended vesting is justified.•Council may approve a development agreement regarding extended vested rights by means of an ordinance Extended Vested Rights6• Bloom developer has requested extended vesting for aperiod of fifteen (15) years• Vested Rights for:• Additional uses• Modified densities and development standards•Development standards that have not been modified Development Agreement Provisions7DevelopmentAgreement includes provisions regarding:• Vested Rights•Additional terms to clarify the City’s and Developer’s respective obligations regarding such extended vested rights Subject8First Reading of Ordinance Adopting a Development Agreement Extending the Term of Vested Rights for the Mulberry & Greenfields Planned Unit Development Master Plan Overlay. -1- ORDINANCE NO. 041, 2022 OF THE COUNCIL OF THE CITY OF FORT COLLINS ADOPTING A DEVELOPMENT AGREEMENT EXTENDING THE TERM OF VESTED RIGHTS FOR THE MULBERRY & GREENFIELDS PLANNED UNIT DEVELOPMENT MASTER PLAN WHEREAS, pursuant to Land Use Code Division 2.15, the Fort Collins Planning and Zoning Commission is the decision maker regarding planned unit development overlay applications for properties between fifty and six hundred and forty acres, and the property subject to the Mulberry & Greenfields Planned Unit Development Master Plan consists of approximately 229.2 acres; and WHEREAS, on December 16, 2021, the Fort Collins Planning and Zoning Commission approved the Mulberry & Greenfields Planned Unit Development Master Plan (“PUD Master Plan”), ODP210002, creating the associated planned unit development overlay as described in Land Use Code Division 4.29; and WHEREAS, pursuant to Land Use Code Section 2.2.11(C), the PUD Master Plan is eligible to apply for vested property rights in excess of three years solely with respect to Land Use Code uses, densities, and development standards, including those for which modifications have been granted, and engineering standards for which variances have been granted; and WHEREAS, vested property rights are normally valid for up to three years under Land Use Code Section 2.2.11(C)(2) unless an extended period of vested rights is granted as memorialized in a development agreement City Council adopts by ordinance; and WHEREAS, the developer of the property subject to the PUD Master Plan, Mulberry Development, LLC, (“Developer”) has requested extended vesting for certain PUD Master Plan uses, densities, and development standards of the Land Use Code for a period of fifteen (15) years; and WHEREAS, pursuant to Land Use Code Section 2.2.11(C)(3), in order for City Council to enter into a development agreement that extends vesting for a period of greater than three (3) years, the Director of Community Development and Neighborhood Services must determine that it will likely take more than three years to complete all phases of the development and the associated engineering improvements for the development, and only if warranted in light of all relevant circumstances, including, but not limited to, the overall size of the development and economic cycles and market conditions; and WHEREAS, the Director of Community Development and Neighborhood Services has determined that it will likely take more than three (3) years to complete all phases within the Mulberry & Greenfields PUD Overlay and the associated engineering improvements and that the granting of extended vesting for fifteen (15) years is warranted in light of all relevant circumstances and such determination is attached as Exhibit “A” and incorporated herein; and -2- WHEREAS, a development agreement (“Development Agreement”) setting forth the uses, densities, development standards of the Land Use Code, and the terms of the extended vesting for fifteen (15) years upon the effective date of this Ordinance is attached as Exhibit “B” and incorporated herein; and WHEREAS, City Council finds that the extended vesting for a period of fifteen (15) years, including tolling of the vested rights period during any moratorium and the obligation to participate in the defense of legal challenges, is warranted because of : (1) the large size of the PUD Property; (2) the significant investment in public infrastructure improvements which will be required to be made by the Developer; (3) the mixed-use nature, housing variety, new urbanist design principles, unique design standards, and infrastructure improvements of the PUD Master Plan; (4) the anticipated fifteen (15)-year build-out of the PUD Master Plan in multiple phases; and (5) expected changes in economic cycles and varying market conditions over such build-out period; and WHEREAS, City Council finds that approval of the Development Agreement is consistent with the Land Use Code and the PUD Master Plan and PUD overlay and is in the best interests of the citizens of Fort Collins. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That the Development Agreement is hereby approved by the City Council. Section 3. That the Mayor is authorized to execute the Development Agreement on behalf of the City. Section 4. That a copy of this Ordinance with all attachments shall be recorded in the Office of the Larimer County Clerk and Recorder promptly after the effective date of this Ordinance with all recording fees paid by the Developer. Introduced, considered favorably on first reading, and ordered published this 5th day of April, A.D. 2022, and to be presented for final passage on the 19th day of April, A.D. 2022. __________________________________ Mayor ATTEST: _______________________________ City Clerk -3- Passed and adopted on final reading on the 19th day of April, A.D. 2022. __________________________________ Mayor ATTEST: _______________________________ City Clerk Community Development & Neighborhood Services 281 North College Avenue P.O. Box 580 Fort Collins, CO 80522.0580 970.416.2740 970.224.6134- fax fcgov.com Planning, Development & Transportation Services MEMORANDUM Date: March 3, 2022 To: Mayor Arndt and City Councilmembers Thru: Kelly DiMartino, Interim City Manager Kyle Stannert, Deputy City Manager Caryn Champine, Planning, Development and Transportation Director From: Paul Sizemore, Community Development & Neighborhood Services Director Re: Bloom Extended Vesting Determination The purpose of this memo is to provide City Council with a written determination finding that a vesting period of fifteen years is justified for the Bloom Planned Unit Development (PUD), which was approved by the Planning and Zoning Commission on December 16, 2021. Background: The Land Use Code provides that development rights for an approved development are typically valid for a period of three (3) years. Pursuant to Land Use Code Section 2.2.11(C), a PUD Master Plan is eligible to apply for a vested property right with respect to uses, densities, development standards, and engineering standards for which variances have been granted for a period of greater than three (3) years. If granted, this extension of development rights is memorialized by the City and the developer entering into a development agreement which vests the property right for a specified period of time. Such agreement may be entered into by the City if the Director of Community Development & Neighborhood Services determines that it will likely take more than three (3) years to complete all phases of the development and the associated engineering improvements for the development, and only if warranted in light of all relevant circumstances, including, but not limited to, the overall size of the development and economic cycles and market conditions. The Bloom PUD represents one of the largest greenfield development opportunities remaining in the city. At 226 acres, the project is expected to result in 1,600 dwelling units and more than 35 acres of commercial and mixed-use development. EXHIBIT A The project is proposed to develop in multiple phases over the course of 15 years with a planned residential unit absorption of approximately 150 units per year. Each phase of development will require a project plan and final plan to ensure compliance with the PUD Master Plan and provision of public benefits and infrastructure. Bloom’s proposed mix of uses, variety of housing, system of open space, new urbanist design principles, unique design standards, and infrastructure improvements will take many years to be realized. The developer’s upfront investments in the project and the uncertainty of economic fluctuations during this time necessitates assurance from the City that the approved PUD Master Plan will continue to serve as the approved plan for all phases of development for the anticipated duration of buildout. Given the scale of the project, I have determined that it will take more than three (3) years to complete all phases of the development and the associated engineering improvements, that extended vesting beyond three years is warranted in light of the large size of the development and potential market cycles and changes in market conditions. Based on the approved PUD Master Plan and development phasing plan, I find that the request for a 15-year vesting period is reasonable. Next Steps In order to extend the vested property rights from three years to fifteen years, a development agreement must be adopted by ordinance by City Council. EXHIBIT A PURSUANT TO TITLE 24, ARTICLE 68, C.R.S. AND FORT COLLINS LAND USE CODE 2.2.11(C), THIS AGREEMENT IS A SITE SPECIFIC DEVELOPMENT PLAN, THE APPROVAL OF WHICH CREATES A VESTED PROPERTY RIGHT, VALID FROM THE EFFECTIVE DATE OF THE ADOPTING ORDINANCE PUD MASTER PLAN DEVELOPMENT AGREEMENT FOR THE MULBERRY & GREENFIELDS PLANNED UNIT DEVELOPMENT OVERLAY AND MASTER PLAN DATED , 2022 TABLE OF CONTENTS RECITALS ........................................................................................................................ 3 SECTION I. DEVELOPMENT DOCUMENTS ........................................................... 5 SECTION II. VESTED PROPERTY RIGHT. ..............................................................7 SECTION III. FEES ...................................................................................................... 10 SECTION IV. MISCELLANEOUS ............................................................................. 10 EXHIBITS Exhibit A – Definitions Exhibit B – PUD Master Plan Exhibit C – Legal Description Exhibit D – Depiction of PUD Property Exhibit E – Vested Property Rights Determination PURSUANT TO TITLE 24, ARTICLE 68, C.R.S. AND FORT COLLINS LAND USE CODE 2.2.11(C), THIS AGREEMENT IS A SITE SPECIFIC DEVELOPMENT PLAN, THE APPROVAL OF WHICH CREATES A VESTED PROPERTY RIGHT UNDER TITLE 24, ARTICLE 68, C.R.S., VALID FROM THE EFFECTIVE DATE OF THE ADOPTING ORDINANCE PUD MASTER PLAN DEVELOPMENT AGREEMENT FOR THE MULBERRY & GREENFIELDS PLANNED UNIT DEVELOPMENT OVERLAY AND MASTER PLAN THIS PUD MASTER PLAN DEVELOPMENT AGREEMENT FOR THE MULBERRY & GREENFIELDS PLANNED UNIT DEVELOPMENT OVERLAY AND MASTER PLAN (the "Agreement") is made and entered into this _____ day of _____________, 2022, by and between the CITY OF FORT COLLINS, COLORADO, a municipal corporation of the State of Colorado ("City") and Mulberry Development, LLC, a Colorado Limited Liability Company ("Developer"); Springer-Fisher, Inc., a Colorado corporation; and Whitham Farms LLC, a Colorado Limited Liability Company; Springer-Fisher, Inc., and Whitham Farms LLC being collectively referred to herein as “Owners.” For and in consideration of the mutual promises and covenants herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, the parties agree as follows: RECITALS This Agreement is made with respect to the following facts: A.Capitalized terms have the meanings set forth in Exhibit A attached hereto and incorporated herein by reference. B.The Developer desires to develop the PUD Property and on December 16, 2021, the Fort Collins Planning and Zoning Commission approved the PUD Master Plan, ODP210002, and the associated PUD Overlay. C.The legislature of the State adopted the Vested Property Rights Statute to provide for the establishment of vested property rights in order to ensure reasonable certainty, stability and fairness in the land use planning process and in order to stimulate economic growth, secure the reasonable investment-backed expectations of landowners and foster cooperation between the public and private sectors in the area of land use planning. The Vested Property Rights Statute authorizes the City to enter into development agreements with landowners providing for a period of vesting of property rights exceeding three (3) years. D.Pursuant to the PUD Overlay Regulations, the PUD Master Plan is eligible for a vested property right with respect to the Vested Master Plan Components. E.The PUD Overlay Regulations allow for a term of a vested property right to exceed a three (3) year period if the City and the Developer enter into a development agreement which vests the property right for a period exceeding three (3)years, and further provides that such an agreement may be entered into by the City if the Director determines that (i) it will likely take more than three (3) years to complete all phases of the Project and the associated engineering improvements pursuant to the PUD Master Plan; and (ii) if warranted in light of all relevant circumstances including, but not limited to, the overall size of the PUD Property, and economic cycles and market conditions (the "Vested Property Rights Determination"). F.A vested property rights request was submitted by the Developer to the City requesting vested property rights for a fifteen (15)-year period in connection with the PUD Master Plan for the Vested Master Plan Components. G.The granting of a vested property right in connection with the PUD Master Plan for a period of fifteen (15) years is warranted in view of the following factors: (1) the large size of the PUD Property; (2) the significant investment in public infrastructure improvements which will be required to be made by the Developer; (3) the mixed-use nature, housing variety, new urbanist design principles, unique design standards, and infrastructure improvements of the PUD Master Plan; (4) the anticipated fifteen (15)-year build-out of the PUD Master Plan in multiple phases; and (5) expected changes in economic cycles and varying market conditions over such build-out period. H.On February 23, 2022, the Director made the Vested Property Rights Determination, attached hereto as Exhibit E, that extended vesting for fifteen (15) years is appropriate. I.Development of the PUD Property as proposed will provide substantial benefits for the City including large-scale comprehensive master- planning, implementation of certain New Urbanism principles in the PUD Master Plan, a non-potable irrigation system, attainable and affordable housing, energy and water conservation, natural areas, housing variety, as well as other benefits detailed in the Public Benefits Agreement for the Mulberry Metropolitan District (Nos. 1-6), all of which promote the general welfare of the citizens of the City and others. J.In addition to the benefits described above, development of the PUD Property will require substantial Developer investments in public facilities, including, but not limited to, multi-modal transportation improvements, roads, utilities, storm water facilities, parks, trails, and open spaces, which will serve the needs of the Project and the City. Completion of these facilities and provision of the public benefits will require substantial investments by the Developer. The Developer is willing to make such investments only if the vested property rights as set forth in this Agreement are provided. K.Development of the PUD Property in accordance with the Development Documents will provide for orderly growth, ensure reasonable certainty in the land use planning process and otherwise achieve the goals and purposes for which the Vested Property Rights Statute and the PUD Overlay Regulations were enacted. In exchange for these benefits and the other benefits to the City contemplated by this Agreement, together with the public benefits served by the orderly development of the PUD Property, the Developer desires to receive the assurance that it may undertake and complete development of the Project pursuant to the Development Documents within the Vesting Term. L.The Parties intend to identify in this Agreement the Vested Master Plan Components all as specified in the approved PUD Master Plan, for which extended vesting is granted; and (2) the rights and obligations of the Developer and its successors and assigns, the City and the Owners appropriate for identification at the master planning level with respect to development of the PUD Property. NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein, such consideration being acknowledged as sufficient and of significant value to the Parties, the Parties agree as follows: I.DEVELOPMENT DOCUMENTS A.Relationship to City Regulations. The Parties intend that this Agreement, the PUD Master Plan, the City Regulations, and any State or federal laws the City must comply with, collectively, shall govern development of the PUD Property. Except as otherwise stated in this Agreement, if any provision or requirement of the City Regulations that conflict with or otherwise materially impair or abnegate any matters that are specifically addressed in this Agreement, the applicable terms and conditions of this Agreement shall control and govern. In the case of any express or implied conflict between this Agreement and the PUD Master Plan, the provisions of this Agreement shall control. B.Compliance with PUD Master Plan. All future development of the Development Property shall require an approved Basic Development Review, Project Development Plan, and/or Final Plan in accordance with the requirements of the Land Use Code and/or the PUD and such development shall be in compliance with the PUD Master Plan and any applicable State or federal laws the City must comply with. Prior to the development of any portion of the Development Property, Developer acknowledges that it will be required to submit the applicable plans for that phase of development and enter into a development agreement with the City for, among other obligations imposed therein, the construction and maintenance of public improvements for such phase, including regional improvements as required by applicable provisions of the PUD Master Plan or the City Regulations, or both. C.Amendment or Termination. 1.Amendments to, or the termination of, the PUD Master Plan shall be governed by the applicable provisions of the PUD Overlay Regulations and this Section I.C. 2.The Developer is acknowledged by the Parties to be authorized to request amendments to the PUD Master Plan pursuant to Section 4.29(I)(2) of the PUD Overlay Regulations, provided the conditions set forth therein are met. 3.Subject to Section 4.29(I)(2)(a)2.b. of the PUD Overlay Regulations regarding ownership or control of PUD Property, the Developer and its successors and assigns to whom the Developer has granted such right in writing, may initiate and process an amendment to the PUD Master Plan without the consent of other owners of property within the PUD Property. 4.The provisions of this Section I.C. shall be a binding covenant upon the Developer and their respective successors, heirs, legal representatives and assigns, and shall constitute covenants and/or servitudes which touch, attach to and run with the title to the PUD Property or any portion thereof and, upon recordation of this Agreement, shall be deemed to have met the requirements of Section 4.29(I)(2)(a)2.c. of the PUD Overlay Regulations. 5.An amendment to the PUD Master Plan, to any approved Final Plan or to a condition of approval of any such amendment shall not constitute or require an amendment to this Agreement. Nothing in this Agreement shall limit the ability of the City, in accordance with applicable City Regulations, to approve or deny any such amendment, or to attach conditions to an approval of any such amendment based on applicable City Regulations, provided, however, that no amendment to the PUD Master Plan, or to any condition of approval thereto, shall have the effect of terminating or materially changing the vested property right afforded the Vested Master Plan Components as set forth in Section II below. D.Incorporation of Recitals. The recitals A-L above are hereby incorporated into the body of this Agreement. II.VESTED PROPERTY RIGHT A.Acknowledgements. The Developer and the City acknowledge the following: 1.The Development Property, in its entirety, is estimated to have a build-out period of fifteen (15) years or more. 2.The Project will require substantial financial commitments and the design and installation of major public infrastructure improvements in the early phases of and throughout the development of the Development Property. 3.A material consideration of the Developer's development of the Development Property under the PUD Master Plan is the City's agreement that the Developer has the right to undertake and complete development of the Development Property in accordance with the terms and conditions of the Development Documents. 4.The Developer has requested a vested property right for a period of fifteen (15) years from the Effective Date solely with respect to existing permitted uses, densities and Development Standards of the Land Use Code and to the approved modifications of such uses, densities and Development Standards of the Land Use Code, all of which are attached hereto at Exhibit B and incorporated herein by reference (the "Vested Master Plan Components"). 5.For the sole purpose of acquiring a vested property right for the Vested Master Plan Components, the City finds that the PUD Master Plan and this Agreement are each a Site Specific Development Plan eligible for a vested right pursuant to the PUD Overlay Regulations and the Vested Property Rights Statute. B.Vested Property Right Granted. To the extent consistent with the provisions of this Agreement, the parties intend that the Development Property be granted a vested property right to the fullest extent available under the Vested Property Rights Statute and the PUD Overlay Regulations. The rights identified below shall constitute the vested property right under this Agreement: 1.The right to develop the land uses that are included within the Vested Master Plan Components. 2.The right to develop such land uses in accordance with the Vested Master Plan Components, to the extent set forth in and pursuant to the Development Documents. 3.The right to develop the Development Property in accordance with the Vested Master Plan Components in the order, at the rate and at the time as market conditions dictate, subject to the terms and conditions of the Development Documents. 4.In consideration of the acknowledgements described above in Section II.A., the public benefit to be derived from the development of the Development Property and the obligations and commitments of the Developer pursuant to this Agreement and to the extent permitted by law and not inconsistent with the Vested Property Rights Statute, the City shall be precluded from taking any zoning or land use action by the City, or pursuant to an initiative (including but not limited to any zoning law of general applicability adopted by the City or pursuant to an initiative as well as any zoning or development regulations that have previously been adopted by the City and applicable to the Development Property), that would alter, impair, prevent, diminish, impose a moratorium on development, or otherwise delay the development or use of the Development Property as set forth in this Agreement, except as otherwise provided in Section 24-68-104 of the Vested Property Rights Statute. Accordingly, and notwithstanding any provision of the Land Use Code to the contrary, the Development Documents shall not lapse, expire or be subject to any form of "staleness" review during the Vesting Term. To the extent that any moratorium or other delay in development or use of the Development Property that is permitted under the Vested Property Rights Statute is imposed on development of the PUD Property, the Vesting Term shall be extended one day for each day that such moratorium is in effect. C.Term of Vested Property Right. 1.The term of the vested property right granted in the above- referenced Section II.B. shall commence on the Effective Date and shall continue for a period of fifteen (15) years from the Effective Date ("Vesting Term"). 2.The Vesting Term is granted pursuant to the PUD Overlay Regulations and Section 24-68-104 of the Vested Property Rights Statute which authorizes local governments to enter into development agreements granting vested property rights for a period exceeding three (3) years where warranted in light of all relevant circumstances. 3.Individual Site Specific Development Plans within the PUD Overlay shall be afforded vested property rights in accordance with the Vested Property Rights Statute and the Land Use Code, including the PUD Overlay Regulations, at the time such plans are approved by the City. Vested rights for such approved Site Specific Development Plans shall be for a period of up to three (3) years unless otherwise extended pursuant to the Land Use Code and the PUD Overlay Regulations. 4.The expiration of the vested property right granted herein shall not affect (1) the PUD Master Plan; (2) any common-law vested rights obtained prior to such termination; or (3) any right arising from City permits or approved Final Plans within the Development Property or other entitlements for the Development Property which were granted or approved concurrently with or subsequent to the approval of the Development Documents. D.Subsequent Review and Approvals. Nothing in this Section II shall exempt the PUD Master Plan or Project Development Plans or Final Plans or plans subject to Basic Development Review within the Development Property from subsequent reviews and approvals by the City to ensure compliance with the terms and conditions of the approved PUD Master Plan, such Project Development Plans or Final Plans or plans subject to Basic Development Review and this Agreement, provided that such subsequent reviews and approvals are not inconsistent with the original approvals of the PUD Master Plan, such Project Development Plans or Final Plans or plans subject to Basic Development Review and this Agreement. E.No Obligation to Develop. The Developer shall have no obligation to develop all or any portion of the PUD Property and shall have no liability under this Agreement to the City or to any other party for its failure to develop all or any part of the PUD Property. The Developer and the City contemplate that the Development Property will be developed in phases and that the Developer shall have the right to determine the timing of the various phases of development within the Development Property. The Developer shall have no obligation to develop all or any portion of any phase, notwithstanding the development or non-development of any other phase, and the Developer shall have no liability under this Agreement to the City for its failure to develop all or any portion of any phase of the Development Property. Notwithstanding the foregoing, if the Developer commences development of all or any portion or phase of the Development Property, the Developer shall be required to construct the public improvements required to support such development in accordance with the terms and conditions of any development agreement(s) which the Developer and the City may execute in connection with any subsequently approved Final Plan or plan subject to Basic Development Review. Nothing in this Agreement shall be construed as relieving the Developer of any obligation or liability for completion of any public improvements required by any development agreement(s) hereafter executed by the Developer. F.Exceptions to Vested Property Right. The Developer acknowledges that the Vested Property Rights Statute contains certain exceptions which are set forth in C.R.S. 24-68-105 thereof and agrees that such exceptions shall apply to the vested property right granted herein which is based on the Vested Property Rights Statute. III.FEES Notwithstanding any language to the contrary in this Agreement, Developer agrees that each Final Plan and plan subject to Basic Development Review within the Development Property shall be required to pay in full all applicable fees pursuant to applicable City Regulations in connection with such project. IV. MISCELLANEOUS A.Attorneys' Fees. In the event of any litigation between the Parties concerning the subject matter or enforcement of the terms of this Agreement, the prevailing Party in such litigation shall be entitled to receive from the non-prevailing Party, and shall be awarded, in addition to the amount of any judgment or other award entered therein, all reasonable costs and expenses, including reasonable attorneys' fees, incurred by the prevailing Party in such litigation. B.City Findings. The City hereby finds and determines that the approval and execution of this Agreement are in the best interest of the public health, safety and general welfare of the City. C.Cooperation in Defending Legal Actions. If any Legal Challenge occurs, the Developer shall have the option, in its sole discretion, to defend such Legal Challenge. In the event that the Developer elects to defend any such Legal Challenge, the Developer, with the consent of the City, shall take the lead role in defending any such Legal Challenge, including, but not limited to, preparing all pleadings and other required documents, accomplishing any necessary service of process, generating necessary correspondence among the Parties and paying one hundred percent (100%) of both court filing fees and the costs of any expert witnesses, depositions, interrogatories, transcripts or other similar costs. The City and the Developer shall each pay its own attorney fees. Unless the City at its option decides to take a more active role in defending any such Legal Challenge, the Parties agree that the role of the City and the Developer therein shall be limited to the following: 1.In the event of any Legal Challenge, the City agrees to cooperate in the review and signing of pleadings and other documents reasonably required to defend such Legal Challenge and in forms reasonably acceptable to the City Attorney of the City; and 2.In the event the Developer decides to appeal any negative judicial decision in connection with any Legal Challenge, the City agrees to be named as an appellant along with the Developer and to cooperate in the review and signing of pleadings and other documents reasonably required in connection with such appeal and in forms reasonably acceptable to the City Attorney of the City. 3.Although it is the intent of this provision that, consistent with its commitments given to the Developer in this Agreement, the City shall cooperate with the Developer in defending any Legal Challenge as long as the Developer determines to continue such defense, it is expressly agreed by the City and the Developer that in the event there is controlling legal precedent established by either the Colorado Court of Appeals or Supreme Court or the United States Court of Appeals or Supreme Court supporting one or more of the positions taken by a party or parties challenging any of the items described herein above, then to the extent of such precedent as it applies to those positions, the City shall not be obligated to defend or continue the defense of any such positions. D.Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. E.Covenants/Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors, heirs, legal representatives and assigns, and shall constitute covenants and/or servitudes, which touch, attach to and run with title to the PUD Property. F.Default. 1.Notice; Cure. If any Party defaults under this Agreement, the non-defaulting Party shall deliver written notice to the defaulting Party of such default in accordance with Section IV.N., and the defaulting Party shall have thirty (30) days from and after receipt of such notice to cure such default. If such default is not of a type which can be cured within such thirty (30)day period and the defaulting Party gives written notice to the non- defaulting Party within such thirty (30) day period that it is actively and diligently pursuing such cure, the defaulting Party shall have a reasonable period of time given the nature of the default following the end of such thirty (30)day period to cure such default, provided that such defaulting Party is at all times within such additional time period actively and diligently pursuing such cure and provided further that in no event shall such cure period exceed a total of six (6) months. Notwithstanding the cure period set forth in this Section IV.F.1., Developer, its successors and assigns, shall have the right to include a claim for breach of this Agreement in any action brought under C.R.C.P. Rule 106 if Developer, its successors and assigns, believes that the failure to include such claim may jeopardize its ability to exercise its remedies with respect to this Agreement at a later date. Any claim for breach of this Agreement brought before the expiration of the applicable cure period set forth in this Section IV.F.1. shall not be prosecuted by Developer, its successors and assigns, until the expiration of such cure period except as set forth in this Agreement, and shall be dismissed by Developer, its successors and assigns, if the default is cured in accordance with this Section IV.F.1. In the event of a default by the Developer, the City reserves the right to withhold approval of any pending development application for the Project to the extent that the subject matter of such default is directly related to such pending application. 2.Remedies. If any default under this Agreement is not cured as described above, the non-defaulting Party shall have the right to enforce the defaulting Party's obligation hereunder by an action at law or in equity, including, without limitation, injunction and/or specific performance, and shall be entitled to an award of any damages available at law or in equity. In the event of a default by the Developer, the City reserves the right to withhold approval of any pending development application for the Project to the extent that the subject matter of such default is directly related to such pending application. G.Governing Law. This Agreement shall be construed under and governed by the laws of the State of Colorado. H.Governmental Immunity Act. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act, CRS § 24-10-101 et seq., or under any other law. I.Integration; Amendment. This Agreement represents the entire agreement between the Parties with respect to the subject matter hereof and there are no oral or collateral agreements or understandings. The Parties agree that this Agreement may be amended only by an instrument in writing signed by the City and the Developer, or any successor or assign of the Developer to whom the Developer has granted in writing the right to consent to any such amendment, it being expressly acknowledged by the parties that consent of Developer's successors or assigns to an amendment of this Agreement shall not be required unless such right is granted in writing by the Developer. J.Jurisdiction and Venue. The City and the Developer, its successors and assigns, stipulate and agree that in the event of any dispute arising out of this Agreement, the courts of the State of Colorado shall have exclusive jurisdiction over such dispute and venue shall be proper in Larimer County, Colorado. All Parties hereby submit themselves to jurisdiction of the State District Court, 8th Judicial District, County of Larimer, State of Colorado. K.Multi-Fiscal Year Obligations. To the extent that any of the obligations of the City contained in this Agreement are or should be considered multi-fiscal year obligations, such obligations shall be subject to annual appropriation by the City Council, in its sole discretion, and the Developer shall not be entitled to rely on a future appropriation in furtherance of any such obligation. L.No Joint Venture or Partnership. No form of joint venture or partnership exists between the Developer, the Owners and the City, and nothing contained in this Agreement shall be construed as making the Developer, the Owners and the City joint venturers or partners. M.No Third Party Beneficiaries. Except as otherwise provided in this Agreement, enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the City, the Developer, its successors and assigns, and the Owners and nothing contained in this Agreement shall give or allow any such claim or right of action by any third party. Except as otherwise provided in this Agreement, it is the express intention of the City, the Developer, its successors and assigns, and the Owners that any other person receiving services or benefits under this Agreement shall be deemed to be an incidental beneficiary only. N.Notices. Any notice or communication required under this Agreement between the City, the Developer, and the Owners must be in writing and may be given either personally, by registered or certified mail, return receipt requested, by Federal Express or other reliable courier service that guarantees next day delivery or by email (if followed by an identical hard copy via registered or certified mail). If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. If given by any other method, a notice shall be deemed to have been given and received on the first to occur of: (a) actual receipt by any of the addressees designated below as the party to whom notices are to be sent; or (b) as applicable: (i) three (3) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail; (ii) the following business day after being sent via Federal Express or other reliable courier service that guarantees next day delivery; or (iii) the following business day after being sent by email (provided that such email is promptly followed by an identical hard copy sent via registered or certified mail, return receipt requested). Any party hereto may at any time, by giving written notice to the other party hereto as provided in this Section IV.N., designate additional persons to whom notices or communications shall be given and designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to City: City of Fort Collins ATTN: City Manager 301 Laporte Avenue Fort Collins, CO 80521 Email: cmo@fcgov.com With a copy to: City of Fort Collins ATTN: City Attorney 301 Laporte Avenue Fort Collins, CO 80521 Email: CAOSeniorStaff@fcgov.com If to Developer: Mulberry Development, LLC, a Colorado Limited Liability company ATTN: Landon Hoover 4801 Goodman Rd. Timnath, CO 80547 Email: landon@hartfordco.com With copies to: Coan, Payton & Payne, LLC ATTN: G. Brent Coan 103 W. Mountain Ave. Suite 200 Fort Collins, CO 80524 Email: gbcoan@cp2law.com If to Owners: Springer-Fisher, Inc., a Colorado corporation ATTN: David B. Hill P.O. Box 86 Timnath, CO 80547 Email: david_b_hill1@msn.com Whitham Farms LLC, a Colorado Limited Liability Company ATTN: Mary L. Whitham 816 Ptarmigan Run Loveland, CO 80538 Email: mdwhitham1@gmail.com O.Paragraph Captions. The captions of the paragraphs are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit or describe the scope or intent of this Agreement. P.Recordation. The City shall record this Agreement in the Larimer County Records, and the Developer shall pay the cost of the same. Q.Representations and Warranties. 1.Representations and Warranties by the City. The City represents and warrants that: a.The City is a home rule municipality and has the power to enter into and has taken all actions to date required to authorize this Agreement and to carry out its obligations hereunder including, but not limited to (i) all actions necessary to adopt and approve the land use regulations and other provisions set forth in the Development Documents in a manner that such regulations shall legally govern the development of the PUD Property; and (ii) all actions necessary to grant the vested property rights described in this Agreement; b.The City knows of no litigation, proceeding, initiative, referendum, investigation or threat of any of the same contesting the powers of the City or its officials with respect to this Agreement that has not been disclosed in writing to the Developer; c.The execution and delivery of this Agreement and the documents required hereunder and the consummation of the transactions contemplated by this Agreement will not: (a) conflict with or contravene any law, order, rule or regulation applicable to the City or to the City's governing documents, or (b) result in the breach of any of the terms or provisions or constitute a default under any agreement or other instrument to which the City is a party or by which it may be bound or affected; d.This Agreement constitutes a valid and binding obligation of the City, enforceable according to its terms. Pursuant to Section IV.C., the City will cooperate in defending the validity of this Agreement in the event of any litigation arising hereunder that names the City as a party or challenges the authority of the City to enter into or perform its obligations hereunder; and e.Subject to Section IV.F. of this Agreement relating to default and remedies, should the foregoing representations and warranties of the City prove to be materially inaccurate, in whole or in part, such inaccuracy shall constitute a default by the City under this Agreement. The City recognizes that the Developer intends to expend substantial monies to undertake and complete development of the Project in accordance with the Development Documents in reliance upon the accuracy of the representations and warranties of the City as set forth in this Section IV.Q.1. 2.Representations and Warranties by the Developer. The Developer represents and warrants that: a.The Developer is a corporation duly organized, validly existing and in good standing under the laws of the State of Colorado and qualified to do business in the State; has the legal capacity and the authority to enter into and perform its obligations under this Agreement and the documents to be executed in connection herewith; b.The execution and delivery of this Agreement and the documents required hereunder and the performance and observance of their terms, conditions and obligations have been duly and validly authorized by all necessary action on its part to make this Agreement and such documents valid and binding upon the Developer; c.The execution and delivery of this Agreement and the documents required hereunder and the consummation of the transactions contemplated by this Agreement will not: (a) conflict with or contravene any law, order, rule or regulation applicable to the Developer or to the Developer's governing documents, or (b) result in the breach of any of the terms or provisions or constitute a default under any agreement or other instrument to which the Developer is a party or by which it may be bound or affected; d.The Developer knows of no litigation, proceeding, initiative, referendum, or investigation or threat or any of the same contesting the powers of the City, the Developer or any of its principals or officials with respect to this Agreement that has not been disclosed in writing to the City; e.The Developer has the necessary legal ability to perform its obligations under this Agreement. This Agreement constitutes a valid and binding obligation of the Developer, enforceable according to its terms; and f.Subject to Section IV.F. of this Agreement relating to default and remedies, should the foregoing representations and warranties of the Developer prove to be materially inaccurate, in whole or in part, such inaccuracy shall constitute a default by the Developer under this Agreement. R.Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, all remaining terms, provisions, covenants and conditions of this Agreement shall continue in full force and effect. S.Waiver. No waiver of one or more of the terms of this Agreement shall constitute a waiver of other terms. No waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. T.Waiver of Defects. In executing this Agreement, the Developer and Owners waive all rights they may have concerning defects, if any, of the form or substance of this Agreement and the formalities whereby it is executed, concerning the power of the City to impose conditions as set forth herein and concerning the procedure, substance and form of the ordinance adopting this Agreement contemplated herein. Similarly, the City, to the extent legally permissible, waives all rights it may have concerning defects, if any, of the form or substance of this Agreement and the formalities whereby it is executed as well as defects, if any, concerning the procedure, substance and form of the ordinance adopting this Agreement. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and year first written above. CITY: CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: Jeni Arndt, Mayor Date: , 2022 APPROVED AS TO FORM: Brad Yatabe, Assistant City Attorney ATTEST: Delynn Coldiron, City Clerk DEVELOPER: Mulberry Development, LLC By: Hartford Homes, LLC, a Colorado limited liability company, Manager By: Landon Hoover, Manager STATE OF ) ) ss. COUNTY OF ) The foregoing Agreement was acknowledged before me this day of , 2022, Landon Hoover, as Manager of Hartford Homes, LLC, a Colorado limited liability company, the Manager of Mulberry Development, LLC. WITNESS my hand and official seal. Notary Public My commission expires: OWNERS: Springer-Fisher, Inc., a Colorado corporation By: David B. Hill, President STATE OF ) ) ss. COUNTY OF ) The foregoing Agreement was acknowledged before me this day of , 2022, David B. Hill, President of Springer-Fisher, Inc., a Colorado corporation. WITNESS my hand and official seal. Notary Public My commission expires: OWNERS: Whitham Farms LLC, a Colorado Limited Liability Company By: Mary L. Whitham, Manager STATE OF ) ) ss. COUNTY OF ) The foregoing Agreement was acknowledged before me this day of , 2022, Mary L. Whitham, Manager of Whitham Farms LLC, a Colorado Limited Liability Company. WITNESS my hand and official seal. Notary Public My commission expires: EXHIBIT A DEFINITIONS Initialized capitalized terms used in this Agreement have the meanings set forth below: Agreement: as defined in the introductory paragraph of this Agreement. Basic Development Review: means a basic development review as described in the Land Use Code as such description may be amended from time to time, to the extent any such amendment is consistent with the terms of this Agreement including, but not limited to, the vested property right granted in this Agreement. City: as defined in the introductory paragraph of this Agreement. City Council: means the elected governing body of the City as established in the City's Charter. City Regulations: mean the Municipal Code, the Land Use Code and other general ordinances, resolutions, regulations, policies and plans of the City, as the same may be amended from time to time, to the extent any such amendment is consistent with the terms of this Agreement including, but not limited to, the vested property right granted in this Agreement. Developer: as defined in the introductory paragraph of this Agreement. Development Documents: means this Agreement and the PUD Master Plan. Development Property: means the PUD Property. The Development Property is an approximately 229.2-acre parcel, more particularly described on Exhibit C attached hereto and incorporated by reference and graphically depicted on Exhibit D attached hereto and incorporated herein by reference. Development Standards: means the development standards set forth in Article 3 of the Land Use Code and the development standards of Article 4 of the Land Use Code. Director: means the Director of the Community Development and Neighborhood Services Department of the City. Effective Date: means the effective date of the ordinance of the City Council approving this Agreement. Final Plan: means a final plan as described in the Land Use Code as such description may be amended from time to time, to the extent any such amendment is consistent with the terms of this Agreement including, but not limited to, the vested property right granted in this Agreement. Land Use Code: means the Land Use Code of the City, as the same may be amended from time to time, to the extent any such amendment is consistent with the terms of this Agreement including, but not limited to, the vested property right granted in this Agreement. Larimer County Records: means the real estate records of the Clerk and Recorder of Larimer County, Colorado. Legal Challenge: means any third party commencement of any legal proceeding or other action that directly or indirectly challenges this Agreement, the PUD Overlay, the PUD Master Plan or the City's ordinance approving this Agreement, the PUD Overlay and the PUD Master Plan. Municipal Code: means the Municipal Code of the City, as the same may be amended from time to time, to the extent any such amendment is consistent with the terms of this Agreement including, but not limited to, the vested property right granted in this Agreement. Owners: means the Springer-Fisher, Inc. and Whitham Farms LLC, collectively. Party(ies): means each and collectively, the Developer and its successors and assigns, the Owners, and the City. Project: means the development pursuant to the PUD Master Plan of the PUD Property. Project Development Plan: means a project development plan as described in the Land Use Code as such description may be amended from time to time, to the extent any such amendment is consistent with the terms of this Agreement including, but not limited to, the vested property right granted in this Agreement. PUD Master Plan: means the planned unit development master plan for development of the PUD Property entitled the "Mulberry & Greenfields - PUD Master Plan," as the same may from time to time be amended, the components of which are set forth on Exhibit B, attached hereto and incorporated herein by reference. PUD Overlay: means the overlay of the approved PUD Master Plan entitlements and restrictions upon the underlying zone district requirements. PUD Overlay Regulations: means the planned unit development overlay regulations adopted by City Council on July 17, 2018, by Ordinance No. 091, 2018, and codified as Division 4.49 of the Land Use Code, as such regulations have and may be amended from time to time to the extent any such amendment is consistent with the terms of this Agreement including, but not limited to, the vested property right granted in this Agreement. PUD Property: means the approximately 229.2 acres of real property upon which the PUD Overlay pursuant to the PUD Master Plan has been imposed and comprised, and described on Exhibit C attached hereto and incorporated herein by this reference, and generally depicted on Exhibit D attached hereto and incorporated herein by this reference. Shall, Will or Must: means that compliance is mandatory, unless the context requires otherwise. Site Specific Development Plan: means a site specific development plan as defined in the Land Use Code as such definition may be amended from time to time but only to the extent that any such amendment is consistent with the terms of this Agreement including, but not limited to, the vested property right granted in this Agreement. State: means the State of Colorado. Vested Master Plan Components: as defined in Section II.A.4. of this Agreement. Vested Property Rights Determination: as defined in Recital E of this Agreement. Vested Property Rights Statute: means Section 24-68-101, et seq., of the Colorado Revised Statutes, in effect on the Effective Date. Vesting Term: as defined in Section II.C.1. of this Agreement. EXHIBIT B PUD MASTER PLAN The PUD Master Plan consists of Sheets 1 through 18, attached hereto, which includes the technical corrections required by the Planning and Zoning Commission as part of its decision to approve the PUD Master Plan. Pursuant to Land Use Code Section 4.29(H), the PUD Master Plan shall not expire. The following sheets of the PUD Master Plan shall be vested for 15 years: Sheets 7 through 16 of the Mulberry & Greenfields PUD Master Plan: Sheet 7 District Standards Sheet 8 District Standards Sheet 9 Development Standards Sheet 10 Development Standards Sheet 11 Development Standards Sheet 12 Setback Standards / Development Standards Sheet 13 Land Use Table Sheet 14 Housing Type – Lot Typicals Sheet 15 Housing Type – Lot Typicals Sheet 16 Housing Type – Lot Typicals RI&29(56+((708/%(55< *5((1),(/'638'0$67(53/$11766,7(,17(567$7((9,1('5,9(&29(56+((7(;,67,1*&21',7,216 352326(''5$,1$*(0$3 (;,67,1*=21,1*0$3',675,&70$67(53/$13$5.675$163257$7,21$1'23(163$&( ',675,&767$1'$5'6',675,&767$1'$5'6'(9(/230(1767$1'$5'6 '(9(/230(1767$1'$5'6 '(9(/230(1767$1'$5'6 '(9(/230(1767$1'$5'6 /$1'86(7$%/(+286,1*7<3(/277<3,&$/6 +286,1*7<3(/277<3,&$/6 +286,1*7<3(/277<3,&$/6 3+$6,1*3/$1&21&(37%8%%/(3/$17+,63/$11('81,7'(9(/230(1772%(.12:1$608/%(55< 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81'(56,*1(' '2(6'2 +(5(%< &(57,)< 7+$7 ,:( $5( 7+( /$:)8/2:1(56 2) 5($/ 3523(57< '(6&5,%(' 21 7+,6 38' 0$67(5 3/$1 $1' '2+(5(%<&(57,)<7+$7,:($&&(377+(&21',7,216$1'5(675,&7,2166(7 )257+ 21 6$,' 352-(&7 '(9(/230(17 3/$1 :,7+,1 7+( /,0,7 2)'(9(/230(17%281'$5<BBBBBBBBBB BBBBBBBBBBBBBBBBBBBBBBBB2ZQHU6LJQHG'DWH7+()25(*2,1*,167580(17:$6$&.12:/('*('%()25(0(7+,6BBBBBBBBBBBBB'$<2)BBBBBBBBBBBBB$'BBBBBB%<BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB3ULQW1DPH$6BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB0<&200,66,21(;3,5(6BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB:,71(660<+$1'$1'2)),&,$/6($/BBBBBBBBBB BBBBBBBBBBBBBBBBBBBBBBBB1RWDU\3XEOLF$GGUHVV$33/,&$17+$57)25'$48,6,7,216*22'0$15'7,01$7+&2 NOTE: POND OUTFALL MAY BERE-ROUTED TO OUTFALLDIRECTLY TO COOPER SLOUGH,IF NECESSARY EASEMENTSARE OBTAINED, AT TIME OFLATER FILING. EXHIBIT C LEGAL DESCRIPTION THE NW1/4 OF SECTION 9, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE 6TH P.M., EXCEPT RIGHT OF WAY FOR COUNTY ROAD 48 AND EXCEPT RIGHT OF WAY IN BOOK 245 AT PAGE 77, COUNTY OF LARIMER, STATE OF COLORADO. AND ALSO, THE W1/2 SW1/4 OF SECTION 9, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE 6TH P.M.,EXCEPT THAT PORTION THEREOF CONVEYED IN DEED RECORDED JULY 3, 1959 IN BOOK 1097 AT PAGE 148 AND CORRECTED IN DEED RECORDED MAY 20, 1965 IN BOOK 1290 AT PAGE 520; ALSO EXCEPT THAT PORTION THEREOF CONVEYED IN DEED RECORDED DECEMBER 3, 1984 IN BOOK 2300 AT PAGE 1701, ALSO EXCEPT THAT PORTION CONVEYED TO LARIMER COUNTY BY SPECIAL WARRANTY DEED RECORDED JULY 10, 2017, AT RECEPTION NUMBER 20170044766, COUNTY OF LARIMER, STATE OF COLORADO. EXHIBIT D DEPICTION OF PUD PROPERTY See Exhibit B, Sheets 1 through 6 of the PUD Master Plan. Community Development & Neighborhood Services 281 North College Avenue P.O. Box 580 Fort Collins, CO 80522.0580 970.416.2740 970.224.6134- fax fcgov.com Planning, Development & Transportation Services MEMORANDUM Date: March 3, 2022 To: Mayor Arndt and City Councilmembers Thru: Kelly DiMartino, Interim City Manager Kyle Stannert, Deputy City Manager Caryn Champine, Planning, Development and Transportation Director From: Paul Sizemore, Community Development & Neighborhood Services Director Re: Bloom Extended Vesting Determination The purpose of this memo is to provide City Council with a written determination finding that a vesting period of fifteen years is justified for the Bloom Planned Unit Development (PUD), which was approved by the Planning and Zoning Commission on December 16, 2021. Background: The Land Use Code provides that development rights for an approved development are typically valid for a period of three (3) years. Pursuant to Land Use Code Section 2.2.11(C), a PUD Master Plan is eligible to apply for a vested property right with respect to uses, densities, development standards, and engineering standards for which variances have been granted for a period of greater than three (3) years. If granted, this extension of development rights is memorialized by the City and the developer entering into a development agreement which vests the property right for a specified period of time. Such agreement may be entered into by the City if the Director of Community Development & Neighborhood Services determines that it will likely take more than three (3) years to complete all phases of the development and the associated engineering improvements for the development, and only if warranted in light of all relevant circumstances, including, but not limited to, the overall size of the development and economic cycles and market conditions. The Bloom PUD represents one of the largest greenfield development opportunities remaining in the city. At 226 acres, the project is expected to result in 1,600 dwelling units and more than 35 acres of commercial and mixed-use development. DocuSign Envelope ID: E9993460-DE2F-46F7-B593-754A588A0271 The project is proposed to develop in multiple phases over the course of 15 years with a planned residential unit absorption of approximately 150 units per year. Each phase of development will require a project plan and final plan to ensure compliance with the PUD Master Plan and provision of public benefits and infrastructure. Bloom’s proposed mix of uses, variety of housing, system of open space, new urbanist design principles, unique design standards, and infrastructure improvements will take many years to be realized. The developer’s upfront investments in the project and the uncertainty of economic fluctuations during this time necessitates assurance from the City that the approved PUD Master Plan will continue to serve as the approved plan for all phases of development for the anticipated duration of buildout. Given the scale of the project, I have determined that it will take more than three (3) years to complete all phases of the development and the associated engineering improvements, that extended vesting beyond three years is warranted in light of the large size of the development and potential market cycles and changes in market conditions. Based on the approved PUD Master Plan and development phasing plan, I find that the request for a 15-year vesting period is reasonable. Next Steps In order to extend the vested property rights from three years to fifteen years, a development agreement must be adopted by ordinance by City Council. DocuSign Envelope ID: E9993460-DE2F-46F7-B593-754A588A0271