HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 10/05/1999 - CONSIDERATION OF THE APPEAL OF THE AUGUST 5, 1999, AGENDA ITEM SUMMARY ITEM NUMBER: 18
DATE: October 5, 1999
FORT COLLINS CITY COUNCIL STAFF:
Stephen Olt
SUBJECT:
Consideration of the Appeal ofthe August 5, 1999,Determination of the Planning and Zoning Board
to Approve the Provincetowne PUD, Filing Two- Preliminary.
RECOMMENDATION:
Council should consider the appeal based upon the record and relevant provisions of the Code and
Charter,and after consideration,either: (1)remand the matter to the Planning and Zoning Board or
(2)uphold, overturn, or modify the Board's decision.
- E
EXECUTIVE SUMMARY:
On August 5, 1999,the Planning and Zoning Board approved the Provincetowne PUD,Filing Two- i
Preliminary for 331 residential dwelling units (190 single family lots and 141 multi-family
townhomes) on 70.00 acres.
i
The property is zoned LMN - Low Density Mixed Use Neighborhood (as of the effective date of
March 28, 1997 for the new Land Use Code). The property is located on the south side of Trilby
Road at Brittany Drive,west of South Lemay Avenue, east of South College Avenue, and north of
County Road 32.
s
On August 16, 1999, a Notice of Appeal was received by the City Clerk's office regarding the
decision of the Planning and Zoning Board.An AmendedNotice of Appeal was received by the City
Clerk's office on September 3, 1999. In the Notice of Appeal from the Appellants David G. Evans,
Doug Sparks, and Mark Menke,it is alleged that: j
i
I. No hearing jurisdiction conferred on Planning and Zoning Board.in that,execution by the j
City Manager ofthe Agreement of Purchase and Sale of Real Property(hereinafter"Purchase
Agreement")by and between the City ofFort Collins and Pridemark Development Company,
LLC.dated April 2, 1996,was specifically reserved by Section 4 of Ordinance No.41, 1996,
to the Mayor and not the City Manager. The execution of said Purchase Agreement by the
City Manager violated the specific requirements of Section 4 of Ordinance No. 41, 1996 as
well as the requirements of Section 23-111(a)of the Code of the City of Fort Collins which
vests sole authority to sell real property upon the City Council pursuant to a duly enacted
ordinance.
II. No hearing jurisdiction conferred on Planning and Zoning Board. in that, execution by the
City Manager, on or about April 12, 1995, of an agreement on behalf of the City of Fort
Collins entitled "First Addendum to Agreement of Purchase and Sale of Property"
(hereinafter "First Addendum") by and between the City of Fort Collins and Pridemark
DATE: October 5, 1999 2 ITEM NUMBER: 18
Development Company,LLC, adding Paragraph 27 to the Agreement of Purchase and Sale
of Real Property dated April 2, 1996, was void, in that the First Addendum could not, as a
matter of law, modify an executory agreement.
III. No hearing jurisdiction conferred on Planning and Zoning Board, in that, delegation to City
Manager of the power to sell the real property pursuant to Section 5 of Ordinance No. 41,
1996, was an improper delegation of legislative discretion which violated the requirements
of Section 23-111(a)of the Code of the City of Fort Collins which vests sole authority to sell
real property upon the City Council pursuant to a duly enacted ordinance.
IV. No hearing jurisdiction conferred on Planning and Zoning Board, in that, delegation to
Pridemark Development Company, LLC of the power to restructure the sale of the real
property from a purchase to an option to purchase pursuant to the First Addendum to
Agreement of Purchase and Sale of Real Property,was an improper delegation of legislative
discretion which violated the requirements of Section 23-111(a) of the Code of the City of
Fort Collins which vests sole authority to sell real property upon the City Council pursuant
to a duly enacted ordinance.
V. No hearing jurisdiction conferred on Planning and Zoning Board,in that, Applicant nor its
predecessor in interest,as a matter of law and pursuant to filing requirements of Section 29-
526-Land Development Guidance System for Planned Unit Developments and Ordinance
No. 161, 1996 was the owner of the subject parcel of real property at the time of the filing
on March 27, 1997, of the Application with the Current Planning Department requesting
Planned Unit Development - Preliminary Plan approval and approval for a Preliminary
Subdivision Plat nor was Applicant given legal authority to execute the Application as filed
nor prosecute such Application on behalf of the record owner, the City of Fort Collins.
VI. No hearing jurisdiction conferred on Planning and Zoning Board, in that,Applicant nor its
predecessor in interest, filed, in a timely manner, a complete application as required by
Section 29-526 et seq. - Land Development Guidance System for Planned Unit
Developments and Ordinance No. 161, 1996.
VII. No hearing jurisdiction conferred on Planning and Zoning Board,in that. Applicant nor its
predecessor in interest,as a matter of law and pursuant to filing requirements of Section 29-
526-Land Development Guidance System for Planned Unit Developments and Ordinance
No. 161, 1996 was the owner of the subject parcel of real property at the time of the filing
on March 27, 1997, of the Application with the Current Planning Department requesting
Planned Unit Development - Preliminary Plan approval and approval for a Preliminary
Subdivision Plat nor was Applicant given legal authority to execute the Application as filed
nor prosecute such Application on behalf of the record owner,the City of Fort Collins.
VIII. No hearing jurisdiction conferred on Planning and Zoning Board, in that.the Planning and
Zoning Board failed to give timely notice of August 5, 1999, hearing.
IX. No hearing jurisdiction conferred on Planning and Zoning Board, in that, the notice of the
Planning and Zoning Board dated July 19, 1999, for the hearing of August 5, 1999, was
insufficient to confer jurisdiction upon the Planning and Zoning Board.
.r.7777i^P'.,7'g--
DATE: October 5, 1999 3 ITEM NUMBER: 18
X. Planning and Zoning Board failed to make required findings,in that.Section 29-526K of the
Land Development Guidance System for Planned Unit Developments requires."The decision
of the Planning and Zoning Board on any application for a variance shall be set forth in
writing in the minutes of the meeting of the Board".
Xl. Applicant failed to sustain the burden of proof in seeking the variance to the City of Fort
Collins Solar Orientation Ordinance, in that,Applicant presented no evidence which would
demonstrate that the granting of the variance would neither be detrimental to the public good
nor impair the intent and purposes of Section 29-526(2)A-1/A-1.1 or that Applicant was
entitled to the variance by reason of exceptional conditions or difficulties with regard to solar
orientation or access,and that undue hardship would be caused to the Applicant by the strict
application of the provisions of Section 29-526(2)A-1/A-1.1.
XII. The Planning and Zoning Board considered evidence which was substantially false or grossly
misleading& Planning and Zoning Board failed to receive all relevant evidence offered by
the Appellants.
The attached documents include:
* Amended Appeal (dated and received September 3, 1999)
* Staff response to the appeal
* Staff Report-with recommendation,to the Planning and Zoning Board for its August 5, 1999
public hearing
* Handouts pertaining to the Provincetowne PUD,Filing Two development proposal that were
presented to the Planning and Zoning Board at the August 5, 1999 public hearing
* Minutes of the Meeting Before the Planning and Zoning Board, held Thursday, August 5,
1999
The procedures for deciding the appeals are described in Chapter 2,Article II,Division 3 of the City
Code.
September 3, 1999
EP - 3 1'�-
rS - D
CITY CLERK
Ms.Wanda M. Krajicek
City Clerk
City of Fort Collins
300 LaPorte Avenue
Fort Collins, Colorado 80522
NOTICE OF APPEAL
TO THE HONORABLE CITY COUNCIL:
NOTICE IS HEREBY GIVEN that pursuant to the provisions of Section 2-48 of the Code of the City of
Fort Collins the undersigned parties-in-interest (hereinafter "Appellants') appeal the decision of the
Planning and Zoning Board of August 5, 1999, to approve the Planned Unit Development - Preliminary
. Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to the granting
of a variance to the City of Fort Collins Solar Orientation Ordinance.
Parties-In-Interest
The undersigned herein acquire their standing to prosecute this Appeal as parties-in-interest pursuant to
Section 2-46(3)and(5)of the Code of the City of Fort Collins. The parties-in-interest are identified for the
purposes of this Appeal as follows:
David G. Evans Doug Sparks Mark Menke
6806 Deerhurst Court 900 Deerhurst Circle 901 Deerhurst Circle
Fort Collins, CO 80525 Fort Collins, CO 80525 Fort Collins, CO 80525
(970)223-7957 (970)223-9863 (970)204-1027
Pursuant to the requirements of Section 2-49(5) of the Code of the City of Fort Collins, all mailing of
notices subject to that Section by the City shall be sent to:
David G. Evans
6806 Deerhurst Court
Fort Collins, CO 80525
(970)223-7957
cc. C A
�O�
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD,Filing Two-Preliminary,#73-82T
September 3, 1999
Page 2
Grounds Of Anneal
The following grounds of appeal set forth allegations of error in accordance with the provisions of Section
2-48 (b) (1), Section 2-48(b)(2)a. and Section 2-48(b)(2)b. of the Code of the City of Fort Collins.
I. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City
Manager of the Agreement of Purchase and Sale of Real Property (hereinafter"Purchase Agreement') by
and between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996,
was specifically reserved by Section 4 of Ordinance No. 41, 1996,to the Mayor and not the,City Manager.
The execution of said Purchase Agreement by the City Manager violated the specific requirements of
Section 4 of Ordinance No. 41, 1996 as well as the requirements of Section 23-111(a) of the Code of the
City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a
duly enacted ordinance.
a. On or about April 16, 1996,the City Council of the City of Fort Collins enacted Ordinance No.
41, 1996, which authorized the sale of a portion of the Provincetowne Portner Special Improvement
District #81 and the Fort Collins South Lemay Avenue Special Improvement District #86 to PrideMark
Development Company, LLC. Section 2 of Ordinance 41, 1996, specifically approved the provisions of an
Agreement of Purchase and Sale of Real Property by and between the City of Fort Collins and Pridemark
Development Company, LLC, dated April 2, 1996. Section 4 of Ordinance No. 41, 1996, provides, 'That
the Mayor be, and hereby is, authorized to execute the instruments of conveyance and other documents
necessary for the City to sell and convey the property to PrideMark pursuant to the terms and conditions of
the Agreement." To be valid, it was specifically required by Section 4 that the Purchase Agreement be
executed by the Mayor. The Purchase Agreement was executed by the City Manager. Section 4, nor any
other provision of law empowered the City Manager to execute such an agreement on behalf of the City of
Fort Collins,therefore,the Purchase Agreement is void. The full of Ordinance No. 41, 1996 is incorporated
by this reference as though fully set forth herein
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor
it's predecessor in interest, as a matter of law, or otherwise, had, nor presently has, any legal interest in the
real property which is the subject of this Appeal as the contract purporting to vest such an interest in the
Applicant was void. Contracts executed by municipal corporations in which there is a failure to comply
with mandatory provisions of applicable statutes or charters are void. Swedlund v. Denver Joint Stock
Land Bank of Denver, 118 P. 2d 460; Town of Durango v. Pennington 8 Colo. 257; Cherry Creek
Aviation, Inc. v. City of Steamboat Springs, 958 P. 2d 515. Also,there can be no ratification of an invalid
contract. Where an express contract is necessary to bind a municipal corporation in the first instance, and
where the contract is required to be made in a specified manner,the observance of the same formalities and
provisions necessary to be complied with in the making of a valid contract are required. Town of Durango
V. Pennington 8 Colo. 257.
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD,Filing Two-Preliminary,473-82T
September 3, 1999
Page 3
II. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City
Manager, on or about April 12, 1996, of an agreement on behalf of the City of Fort Collins entitled "First
Addendum To Agreement Of Purchase And Sale Of Property" (hereinafter "First Addendum') by and
between the City of Fort Collins and Pridemark Development Company, LLC, adding Paragraph 27 to the
Agreement of Purchase and Sale of Real Property dated April 2, 1996, was void, in that the First
Addendum could not,as a matter of law,modify an executory agreement.
a. On or about April 16, 1996,the City Council of the City of Fort Collins enacted Ordinance No.
41, 1996, which authorized the sale of a portion of the Provincetowne Portner Special Improvement
District #81 and the Fort Collins South Lamy Avenue Special Improvement District #86 to PrideMark
Development Company,LLC. Section 2 of Ordinance 41, 1996, specifically approved the provisions of an
Agreement of Purchase and Sale of Real Property(hereinafter "Purchase Agreement") by and between the
City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996. Pursuant to
Paragraph 21A. the Purchase Agreement was made expressly contingent upon the City Council approving
the Purchase Agreement by Ordinance No. 41, 1996, which ordinance must be passed by the City Council
on second reading on or before April 16, 1996, and must become law ten (10) days thereafter as provided
in the City Charter. At the time of the execution of the First Addendum, the Purchase Agreement was
executory and therefore could not be modified as set forth in the First Addendum. As provided in the
Charter of the City of Fort Collins, Ordinance No. 41, 1996 was not legally effective until ten (10) days
after its adoption by the City Council after the second reading, therefore, the act of the City Manager of
executing the First Addendum was invalid and any modification to the Purchase Agreement was void. The
full text of the foregoing summary of Paragraph 21A of the Purchase Agreement as well as the Purchase
Agreement is incorporated by this reference as though fully set forth herein.
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor
it's predecessor in interest, as a matter of law, or otherwise, had, nor presently has, any legal interest in the
real property which is the subject of this Appeal as the contract purporting to vest such an interest in the
Applicant was void. Contracts executed by municipal corporations in which there is a failure to comply
with mandatory provisions of applicable statutes or charters are void. Swedlund v. Denver Joint Stock
Land Bank of Denver 118 P. 2d 460; Town of Durango v. Pennington 8 Colo. 257; Cherry Creek
Aviation. Inc. v. City of Steamboat Springs, 958 P. 2d 515. Also,there can be no ratification of an invalid
contract. Where an express contract is necessary to bind a municipal corporation in the first instance, and
where the contract is required to be made in a specified manner,the observance of the same formalities and
provisions necessary to be complied with in the making of a valid contract are required. Town of Durango
v. Pennington 8 Colo. 257.
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD,Filing Two-Preliminary,#73-82T
September 3, 1999
Page 4
III. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to City
Manager of the power to sell the real property pursuant to Section 5 of Ordinance No. 41, 1996, was an
improper delegation of legislative discretion which violated the requirements of Section 23-I11(a) of the
Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council
pursuant to a duly enacted ordinance.
a. On or about April 16, 1996,the City Council of the City of Fort Collins enacted Ordinance No.
41, 1996, which authorized the sale of a portion of the Provincetowne Portner Special Improvement
District #81 and the Fort Collins South Lemay Avenue Special Improvement District #86 to PrideMark
Development Company, LLC. Section 2 of Ordinance No. 41, 1996, specifically approved the provisions
of an Agreement of Purchase and Sale of Real Property (hereinafter "Purchase Agreement') by and
between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996. The
pertinent terms and conditions of said sale were set forth in the recitals of Ordinance No. 41, 1996, which,
in summary provided that, Pridemark Development Company, LLC, would purchase the subject property
for a total purchase price of One Million Eight Hundred Thousand Dollars ($1,800,000) to be paid over
five years as follows: (1) $300,000 down payment, (2) $300,000 installment payment due one year after
the date of closing, and (3) eight installment payments of$192,935.34 due semi-annually thereafter. The
full text of the foregoing summary of the pertinent sale terms and conditions is found in Paragraph 4 A,
4B, 4C and 4D of the Purchase Agreement which said Purchase Agreement is incorporated by this
reference as though fully set forth herein.
Prior to the official enactment of Ordinance No. 41, 1996 by the City Council of the City of Fort
Collins, the City Manager executed , on or about April 12, 1996, an agreement on behalf of the City of
Fort Collins entitled "First Addendum To Agreement Of Purchase And Sale Of Property" (hereinafter
"First Addendum')by and between the City of Fort Collins and Pridemark Development Company, LLC,
which purported to add Paragraph 27 to the Agreement of Purchase and Sale of Real Property dated April
2, 1996. In summary,Paragraph 27 gave to Pridemark Development Company,LLC the unilateral right to
restructure the Purchase Agreement as an option rather than as a purchase. The fiill text of the foregoing
summary of Paragraph 27 is set forth in Paragraph 1 of the First Addendum which said First Addendum is
incorporated by this reference as though fully set forth herein.
Thereafter, on or about August 26, 1996,the City Manager executed an agreement on behalf of the
City of Fort Collins entitled "Second Addendum To Agreement Of Purchase And Sale Of Real Property"
(hereinafter "Second Addendum') by and between the City of Fort Collins and Pridemark Development
Company, LLC, which purported to amend the Agreement of Purchase and Sale of Real Property dated
April 2, 1996, by abrogating the terms and conditions of sale as set forth in said Purchase Agreement and
approved in Ordinance No. 41, 1996,by the City Council of the City of Fort Collins granting to Pridemark
Development Company, LLC an option to purchase, which, by its terms, did not obligate Pridemark
Development Company, LLC to purchase any of the real property described therein. The full text of the
foregoing summary of the option to purchase is set forth in Paragraph 1 of the Second Addendum which
said Second Addendum is incorporated by this reference as though fully set forth herein.
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999,to approve the Planned Unit Development-
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary,#73-82T
September 3, 1999
Page 5
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor
it's predecessor in interest, as a matter of law, or otherwise,had, nor presently has, any legal interest in the
real property which is the subject of this Appeal as the contract purporting to vest such an interest in the
Applicant was void. .Appellants assert that the City of Fort Collins improperly delegated its legislative
discretion to the City Manager wherein it allowed the City Manager to abrogate the Purchase Agreement
and thereafter execute the First Addendum and Second Addendum which created an entirely new
arrangement for the sale of said real property embodied in an option to purchase. It is Appellants position
that the City Council can only effectuate a transaction for the sale of real property as hereinabove described
pursuant to Section 23-111(a) of the Code of the City of Fort Collins through a duly enacted ordinance.
The City Council having failed to enact an ordinance restructuring the sale of real property from an
outright purchase to an option to purchase as required in Section 23-111(a) of the Code rendered the
contract void and vested no legal rights in Pridemark Development Company, LLC nor its successor in
interest Kaufman and Broad of Colorado, Inc. It is well settled in the State of Colorado that a city cannot
commit the exercise of its legislative discretion to the caprice of its officers nor can it commit the exercise
of its legislative discretion to others. Curran Bill Posting Co. v. Denver. 47 Colo. 221; Fellows v. La
Tronica 151 Colo. 300. In addition, it is well settled that contracts executed by municipal corporations in
which there is a failure to comply with mandatory provisions of applicable statutes or charters are void.
Swedlund v. Denver Joint Stock Land Bank of Denver. 118 P. 2d 460; Town of Durango v. Pennington. 8
Colo. 257; Cherry Creek Aviation. Inc. v. City of Steamboat Springs, 958 P. 2d 515. Also,there can be no
ratification of an invalid contract. Where an express contract is necessary to bind a municipal corporation
in the first instance, and where the contract is required to be made in a specified manner, the observance of
the same formalities and provisions necessary to be complied with in the making of a valid contract are
required. Town of Durango v. Pennington 8 Colo. 257.
W. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to
PrideMark Development Company, LLC of the power to restructure the sale of the real property from a
purchase to an option to purchase pursuant to the First Addendum To Agreement Of Purchase And Sale Of
Real Property, was an improper delegation of legislative discretion which violated the requirements of
Section 23-111(a) of the Code of the City of Fort Collins which vests sole authority to sell real property
upon the City Council pursuant to a duly enacted ordinance.
a. On or about April 16, 1996,the City Council of the City of Fort Collins enacted Ordinance No.
41, 1996, which authorized the sale of a portion of the Provincetowne Portrier Special Improvement
District #81 and the Fort Collins South Lemay Avenue Special Improvement District #86 to PrideMark
Development Company, LLC. Section 2 of Ordinance No. 41, 1996, specifically approved the provisions
of an Agreement of Purchase and Sale of Real Property (hereinafter "Purchase Agreement') by and
• between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996. The
pertinent terms and conditions of said sale were set forth in the recitals of Ordinance No. 41, 1996,which,
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary,#73-82T
September 3, 1999
Page 6
in summary provided that, Pridemark Development Company, LLC, would purchase the subject property
for a total purchase price of One Million Eight Hundred Thousand Dollars ($1,800,000) to be paid over
five years as follows: (1) $300,000 down payment, (2) $300,000 installment payment due one year after
the date of closing, and (3) eight installment payments of$192,935.34 due semi-annually thereafter. The
full text of the foregoing summary of the pertinent sale terms and conditions is found in Paragraph 4 A,
4B, 4C and 4D of the Purchase Agreement which said Purchase Agreement is incorporated by this
reference as though fully set forth herein.
Prior to the official enactment of Ordinance No. 41, 1996 by the City Council of the City of Fort
Collins, the City Manager executed , on or about April 12, 1996, an agreement on behalf of the City of
Fort Collins entitled `First Addendum To Agreement Of Purchase And Sale Of Property" (hereinafter
"First Addendum') by and between the City of Fort Collins and Pridemark Development Company, LLC,
which purported to add Paragraph 27 to the Agreement of Purchase and Sale of Real Property dated April
2, 1996. In summary, Paragraph 27 gave to Pridemark Development Company, LLC the unilateral right to
restructure the Purchase Agreement as an option rather than as a purchase. The full text of the foregoing
summary of Paragraph 27 is set forth in Paragraph 1 of the First Addendum which said First Addendum is
incorporated by this reference as though fully set forth herein.
Thereafter,on or about August 26, 1996,the City Manager executed an agreement on behalf of the
City of Fort Collins entitled "Second Addendum To Agreement Of Purchase And Sale Of Real Property"
(hereinafter "Second Addendum') by and between the City of Fort Collins and Pridemark Development
Company, LLC, which purported to amend the Agreement of Purchase and Sale of Real Property dated
April 2, 1996, by abrogating the terms and conditions of sale as set forth in said Purchase Agreement and
approved in Ordinance No. 41, 1996,by the City Council of the City of Fort Collins granting to Pridenwk
Development Company, LLC an option to purchase, which, by its terms, did not obligate Pridemark
Development Company, LLC to purchase any of the real property described therein. The full text of the
foregoing summary of the option to purchase is set forth in Paragraph 1 of the Second Addendum which
said Second Addendum is incorporated by this reference as though fully set forth herein.
.It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor
it's predecessor in interest, as a matter of law, or otherwise, had, nor presently has, any legal interest in the
real property which is the subject of this Appeal as the contract purporting to vest such an interest in the
Applicant was void. Appellants assert that the City of Fort Collins improperly delegated its legislative
discretion to PrideMark Development Company, LLC when it entered into the First Addendum which gave
to Pridemark Development Company, LLC the unilateral right to restructure the Purchase Agreement as an
option rather than as a purchase as set forth in the Purchase Agreement. It is Appellants position that the
City Council can only effectuate a transaction for the sale of real property as hereinabove described
pursuant to Section 23-11 l(a) of the Code of the City of Fort Collins through a duly enacted ordinance.
The City Council having failed to enact an ordinance restructuring the sale of real property from an
outright purchase to an option to purchase as required in Section 23-111(a) of the Code rendered the
contract void and vested no legal rights in Pridemark Development Company, LLC nor its successor in
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary, #73-82T
September 3, 1999
Page 7
interest Kaufman and Broad of Colorado, Inc. It is well settled in the State of Colorado that a city cannot
commit the exercise of its legislative discretion to the caprice of its officers nor can it commit the exercise
of its legislative discretion to others. Curran Bill Posting Co. v. Denver. 47 Colo. 221; Fellows v. La
Tronica 151 Colo. 300. In addition, it is well settled that contracts executed by municipal corporations in
which there is a failure to comply with mandatory provisions of applicable statutes or charters are void.
Swedlund v. Denver Joint Stock Land Bank of Denver, 118 P. 2d 460; Town of Durango v. Pennington, 8
Colo. 257; Cherry Creek Aviation.Inc. v. City of Steamboat Springs, 958 P. 2d 515. Also,there can be no
ratification of an invalid contract. Where an express contract is necessary to bind a municipal corporation
in the first instance, and where the contract is required to be made in a specified manner, the observance of
the same formalities and provisions necessary to be complied with in the making of a valid contract are
required. Town of Durango v. Pennington, 8 Colo. 257.
V. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's
predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land
Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 was the
owner of the subject parcel of real property at the time of the filing on March 27, 1997, of the Application
with the Current Planning Department requesting Planned Unit Development - Preliminary Plan approval
and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the
Application as filed nor prosecute such Application on behalf of the record owner,the City of Fort Collins.
a. On March 27, 1997, an application was submitted to the Current Planning Department of the
City of Fort Collins on behalf of PrideMark Development Company by Downing, Thorpe, James Inc. The
type of request indicated on the application was for Planned Unit Development-Preliminary Plan and
Preliminary Subdivision Plat. The Application Form stated that the Certification on the reverse side must
be signed. The Certification states that, "I certify the information and exhibits submitted are true and
" correct to the best of my knowledge and that in filing this application I am acting with the knowledge,
consent,and authority of the owners of the property . . . without whose consent and authority the requested
action could not lawfully be accomplished. . . . ." It appears that the foregoing Certification was executed
by James J. Weigel, Manager for PrideMark Development Company, LLC. As clearly set forth in the
Certification requirements, the Applicant must have the express consent and authority from the owners of
the property, without which the request for Planned Unit Development-Preliminary Plan and Preliminary
Subdivision Plat approval could not be lawfiilly accomplished.
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor
it's predecessor in interest, as a matter of law, or otherwise, had, nor presently has, any legal interest in the
real property which is the subject of this Appeal as set forth in filing requirements of Section 29-526 -Land
• Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 at the time
of the filing on March 27, 1997, of the Application with the Current Planning Department requesting
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD,Filing Two-Preliminary,473-82T
September 3, 1999
Page 8
Planned Unit Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat
nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application
on behalf of the record owner, the City of Fort Collins. The Certification as executed by the Applicant on
the Application Form is not supported by any official action by the City Council of the City of Fort Collins
as required by Section 6, Article II of the Charter of the City of Fort Collins, Section 8-110 et seq., of
Article IV of the Code of the City of Fort Collins nor as required by Section 38-10-106 of Colorado
Revised Statutes. Appellants assert that Applicant executed the Certification on the Application Form with
full knowledge that Applicant did not have any ownership interest in nor the requisite legal authority to
execute the Application/Certification from the City of Fort Collins at the time of filing the Application. It
is Appellants position that the City of Fort Collins undertook no legal actions to empower Applicant's
representative to execute the aforesaid Application and/or Certification on behalf of the City of Fort Collins
as the fee owner. Therefore,pursuant to the provisions of Section 29-526 et seq. of the Land Development
Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 no proper Application
was before the Planning and Zoning Board as a result of Applicant's action of fraudulently executing the
Certification and no jurisdiction was conferred upon the Planning and Zoning Board to undertake any
action and/or decision relative to the parcel of real property which was the subject of the August 5, 1999,
hearing. The City of Fort Collins is required by the Section 29-526 et seq. of the Land Development
Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 to have filed a planned
unit development application that specifically meets all the standards, procedures, and conditions of the
zoning regulations. Anulebaugh v. Board of County Com'rs, 837 P. 2d 304. In addition, the City of Fort
Collins is required to comply with its own zoning ordinance. Clark v. Town of Estes Park 686 P. 2d 777.
Failing to comply with the foregoing requirements, the Planning and Zoning Board was without proper
jurisdiction in this matter.
VI. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's
predecessor in interest, filed, in a timely manner, a complete application as required by Section 29-526 et
seq. -Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996.
a. On March 27, 1997, an application was submitted to the Current Planning Department of the
City of Fort Collins on behalf of PrideMark Development Company by Downing, Thorpe, James Inc. The
type of request indicated on the application was for Planned Unit Development-Preliminary Plan and
Preliminary Subdivision Plat approval. Section 7 of Ordinance No. 161, 1996 provides, "That all
applications for approval of. . .,preliminary PUD plans, or preliminary subdivision plats. . . . accepted for
filing before March 28, 1997 . . ., shall be processed and reviewed by City staff and/or the City's Planning
and Zoning Board under the currently existing applicable provisions of the City Code, provided that the
Director has determined that all relevant submittal requirements for such applications have been satisfied
prior to said date. Such applications, once filed, shall not be modified or supplemented by the applicant
without the written approval of the Director . . . ."The record in this matter indicates that the Director did
not make the determination prior to March 28, 1997, as required in Section 7 and as required by Section 9
of Ordinance No. 161, in that, the Applicant did not submit evidence of successful completion of the
applicable criteria, specifically the All Development Criteria and Community Wide Criteria as required by --
. Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary, #73-82T
September 3, 1999
Page 9
the provisions of Section 29-5261)(1)(c) and Section 29-526D(2) respectively, which are mandatory
prerequisites to the determination of the filing of a complete application pursuant to Section 7 of Ordinance
No. 161, 1996 and prior to March 28, 1997 as specified. Additionally, Applicant's request for a variance
to the Solar Orientation Ordinance was not included in the March 27, 1997 filing as required by Section 9
of Ordinance No. 161, 1996. Said Section 9 requires that the Director's determination shall be inclusive of
all items as shown on Exhibit B which specifically requires under Preliminary Planned Unit Development,
Paragraph Le. " . . . . Any variance from the criteria shall be described. In addition, Paragraph 3.
provides that the site plan drawings contain a statement of variances to City design criteria and standards.
Applicants filing failed to meet these required elements for a complete application. In addition, Section 7 of
Ordinance No. 161, 1996 provides that, " . . . . Such applications, once filed, shall not be modified or
supplemented by the applicant without the written approval of the Director . . . ." There are no records of
written approval by the Director permitting the Applicant to modify or supplement the Application as
required in Section 7.
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
• the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor
it's predecessor in interest, filed, in a timely manner, a complete application as required by Section 29-526
et seq. - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161,
1996. The Planning and Zoning Board cannot exercise jurisdiction over applications which do not meet the
requirements of Section 29-526 et seq. of the Land Development Guidance System For Planned Unit
Developments and Ordinance No. 161. The Planning and Zoning Board is permitted to process only those
applications for a planned unit development that specifically meet all the standards, procedures, and
conditions of the zoning regulations. Anplebaugh v. Board of County Com'rs. 837 P. 2d 304.
VH. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's
predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land
Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 was the
owner of the subject parcel of real property at the time of the filing on March 27, 1997, of the Application
with the Current Planning Department requesting Planned Unit Development - Preliminary Plan approval
and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the
Application as filed nor prosecute such Application on behalf of the record owner,the City of Fort Collins.
a. The City of Fort Collins and Pridemark Development Company, LLC, entered into a Fourth
Addendum To Agreement Of Purchase And Sale Of Real Property (hereinafter "Fourth Addendum') on
November 25, 1997. Pursuant to the terms and conditions of said Agreement, Purchaser, in accordance
with Paragraph 2.A. thereof, was required to exercise the option to purchase by giving Seller as least ninety
(90) days prior written notice of Purchaser's intent to purchase all or any portion of the Property. In
addition, Paragraph 2.A. provides that, "If the Purchaser fails to so exercise this option for any of these
required purchases,the Agreement shall be automatically terminated and both parties shall be released from
all further obligations hereunder." On December 18, 1997,the City of Fort Collins transferred a 28.33
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD,Filing Two-Preliminary,#73-82T
September 3, 1999
Page 10
acre parcel to Pridemark Development Company, LLC. Thereafter, on June 2, 1998, the City of Fort
Collins transferred a 28.33 acre parcel to Pridemark Development Company, LLC. With respect to the
transfer of real property which occurred on December 18, 1997, Purchaser was required by said Paragraph
2.A.to provide written notice of exercise on or before September 19, 1997. A response to a formal request
for the production of public records by the City Clerk revealed that no such exercise of option was received
by the City of Fort Collins. Pursuant to the provisions of Paragraph 2.A. which provides that, "If the
Purchaser fails to so exercise this option for any of these required purchases, the Agreement shall be
automatically terminated and both parties shall be released from all further obligations hereunder" the
Fourth Addendum was terminated. In regard to the transfer of real property which occurred on June 2,
1998, Purchaser was required by said Paragraph 2.A. to provide written notice of exercise on or before
March 3, 1998. A response to a formal request for the production of public records by the City clerk
revealed that a correspondence dated March 14, 1998, was received from Purchaser purporting to exercise
the option on the second parcel. With respect to the foregoing chronology of events, it appears that the
failure of Purchaser to deliver notice of exercise of option as required by Paragraph 2.A. on or before
September 19, 1997,automatically terminated the Fourth Addendum agreement and extinguished the power
of the City of Fort Collins to transfer the 28.33 acre parcel on December 18, 1997. In the event that the
option to exercised survived this failure for the transfer of the first parcel, then, Purchaser's failure to
deliver notice of exercise of option until March 14, 1998, extinguished all rights to the transfer of the
second parcel which required that said notice be delivered on or before March 3, 1998, and extinguished
the right to acquire any further parcels at any subsequent date as the Fourth Addendum was automatically
terminated pursuant to the provisions of Paragraph 2.A. The full text of the foregoing Paragraph 2.A, of
the Fourth Addendum and said Fourth Addendum is incorporated by this reference as though fully set forth
herein.
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor
it's predecessor in interest, as a matter of law,or otherwise,had, nor presently has, any legal interest in the
real property which is the subject of this Appeal as set forth in filing requirements of Section 29-526 -Land
Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 at the time
of the filing on March 27, 1997, of the Application with the Current Planning Department requesting
Planned Unit Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat
nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application
on behalf of the record owner, the City of Fort Collins. As stated previously, the Certification as executed
by the Applicant on the Application Form is not supported by any official action by the City Council of the
City of Fort Collins as required by Section 6, Article II of the Charter of the City of Fort Collins, Section
8-110 et seq.,of Article IV of the Code of the City of Fort Collins nor as required by Section 38-10-106 of
Colorado Revised Statutes. Finally,the Fourth Addendum requirements for exercise of option pursuant to
Paragraph 2.A. and the automatic termination as provided therein are clear and not ambiguous. It is well
settled that if the meaning of a contract may be determined by the written instrument, parties are bound by
what it says, rather than by what the parties may say. Also, when evidence of an agreement consists of
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary,#73-82T
September 3, 1999
Page 11
documents, as here,the determination of their effect is a matter of law. Colowvo Coal v. City of Colorado
Springs, 879 P. 2d 438 (Colo. App. 1994); Gardner v. Ermlewood 131 Colo. 210. It is Appellants
position that the City of Fort Collins is currently the sole owner of the fee interest in the subject parcel of
real property and that Applicant has no legal interest in the subject of the Application as to give Applicant
standing before the Planning and Zoning Board.
VM. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the Planning and
Zoning Board failed to give timely notice of August 5, 1999,hearing.
a. Section 7 of Ordinance No. 161, 1996 provides, "Tbat all applications for approval of . . .,
preliminary PUD plans, or preliminary subdivision plats. . . . accepted for filing before March 28, 1997 . .
, shall be processed and reviewed by City staff and/or the City's Planning and Zoning Board under the
currently existing applicable provisions of the City Code, . . ." Further, Section 10 of Ordinance 161, 1996
provides, "I'hat, for the purpose of reviewing any PUD applications under the currently existing, applicable
provisions of the City Code, the amendments to the City's Land Development Guidance System contained
in Ordinance 161, 1995, shall remain in full force and effect until all such applications have received final
approval by the City or have been denied by the City and all appeal rights pertaining thereto have been
exhausted." As for the requirements for notice Section 29-526F(4)(b) of the Land Development Guidance
System For Planned Unit Developments provides, "The Planning and Zoning Board shall give written
notice to the owners of record of all real property within five hundred (500) feet (exclusive of public right-
of-way, public facilities, parks, or open space) of the property lines of the parcel of land for which the
planned unit development is proposed. . . . Such written notice shall be delivered at least twenty-eight (28)
days prior to the Planning and Zoning Board hearing date." The hearing date set for this matter before the
Planning and Zoning Board was August 5, 1999. Appellants' notice was mailed on July 20, 1999. The
written notice was delivered only sixteen (16) days prior to the Planning and Zoning Board hearing date.
A copy of the envelope hearing the postmark of July 20, 1999, is attached hereto and submitted herewith
and marked as Exhibit"A".
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, the Planning and
Zoning Board failed to give timely notice as required in the aforementioned Sections. Strict compliance
with provisions for notice of public hearing is required. Holly Development, Inc. v. Board of County
Commissioners. 342 p. 2d 1032.
IX No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the notice of the
Planning and Zoning Board dated July 19, 1999, for the hearing of August 5, 1999, was insufficient to
• confer jurisdiction upon the Planning and Zoning Board.
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary, #73-82T
September 3, 1999
Page 12
a. The notice of hearing dated July 19, 1999, failed to set forth, with specificity, the nature of the
project and requested approvals nor did it specifically set forth that the Applicant was seeking a variance to
Section 29-526(2)A-I/A-1.1 Community-Wide Criteria/Solar Orientation of the Land Development
Guidance System For Planned Unit Developments. A copy of the hearing notice dated July 19, 1999, is
attached hereto and submitted herewith and marked as Exhibit"B".
It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to
hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development -
Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to
the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, the notice of the
Planning and Zoning Board dated July 19, 1999, for the hearing of August 5, 1999, was insufficient as a
matter of law to confer jurisdiction upon the Planning and Zoning Board. To confer jurisdiction on an
agency, a public notice must be clear, definite, explicit and not ambiguous. A notice is not clear unless its
meaning can be apprehended without explanation. In addition, the notice must set forth all information
reasonably necessary to provide adequate warning to all persons whose rights might be affected by the
proposed action. In order to accomplish this purpose, the notice, at a minimum, must give the date, time,
and place of the hearing and apprise the public of the subject matter of the hearing and nature of the
proposed action. The failure to specifically mention the variance request rendered the notice insufficient.
Fedder v. McCurdy, 768 P. 2d 711 (Colo. App. 1988); Hallmark Builders v. City of Gunnison 650 P. 2d
556; Sundance Hills Homeowners Association v. Board of County Commissioners. 534 P. 2d 1212;
Reaeanitter v. Fowler. 290 P. 2d 223. Also, such failure to specifically notice the variance request of
Applicant was a denial of the constitutional principle of procedural due process which requires notice and
opportunity to be heard. The effect of such failure to give constitutionally adequate notice requires that the
hearing decision be vacated and that the matter be set for a hearing de novo. Fourteenth Amendment,
Constitution of the United States.
X. Planning And Zoning Board Failed To Make Required Variance Findings, in that, Section 29-
526K of the Land Development Guidance System For Planned Unit Developments requires, "The decision
of the Planning and Zoning Board on any application for a variance shall be set forth in writing in the
minutes of the meeting of the Board."
a. The record of the proceedings clearly are devoid of any statements or explanations setting forth
the substantive elements of the Planning and Zoning Boards decision to grant the Applicant's request for a
variance to the City of Fort Collins Solar Orientation Ordinance. In the motion to grant Applicant's
request for a variance to the solar orientation requirements of Section 29-526(2)A-1/A-1.1 no findings were
discussed by the members of the Planning and Zoning Board nor did the Planning and Zoning Board set
forth in the text of the motion any findings which support the granting of said variance. The failure to
make the required findings on the record renders the decision of the Planning and Zoning Board granting
the variance void.
Xl. Applicant Failed To Sustain The Burden Of Proof In Seeking The Variance To The City Of Fort
Collins Solar Orientation Ordinance, in that, Applicant presented no evidence which would demonstrate
. Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary,#73-82T
September 3, 1999
Page 13
that the granting of the variance would neither be detrimental to the public good nor impair the intent and
purposes of Section 29-526(2)A-1/A-1.1 or that Applicant was entitled to the variance by reason of
exceptional conditions or difficulties with regard to solar orientation or access, and that undue hardship
would be caused to Applicant by the strict application of the provisions of Section 29-526(2)A-1/A-1.1.
a. On or about March 23, 1999, Applicant's representative submitted to the Fort Collins Current
Planning Department a correspondence "requesting a variance from the City's LOGS All-Development
Criteria A-1.1 'Solar Orientation'." In the Section designated "Justification for Variance Request" the
Applicant set forth the following justification,
"Me site plan,which originally achieved 65%solar oriented lots, lost several solar-
oriented lots in the redesign of the Cottage Home Area(Parcel G).
This area was redesigned primarily to improve and simplify the lotting layout by
eliminating several inefficient flag lots used to achieve solar orientation while still taking access of
the public alley. (The City's Narrow Residential Street and Alley Standard limits driveway access
to the public alley only.) As a result,several of the north-south(solar)oriented lots along the east-
- west streets (of Benson lane and Battsford Lane)were changed/reoriented to east west."
Section 29-526(2)All Development and Specific Use Review Criteria,provides, The information above the
bold line on the following pages constitutes the 'criterion,' which are mandatory standards for preliminary
and final plans. . . ." Section 29-526(2)A-1/A-1.1 provides the provisions for the mandatory criterion for
solar orientation as follows, "Do at least sixty-five (65) percent of the lots less than fifteen thousand
(15,000) square feet in area in single-and two-family residential developments conform to the definition of
a'solar-oriented lot' in order to preserve the potential for solar energy usage?"Further, Section 29-526 K
provides, "The Planning and Zoning Board is empowered to grant variances to the provisions of this
section. The decision of the Planning and Zoning Board on any application for a variance shall be set forth
in writing in the minutes of the meeting of the Board. Variance requests may be granted if the Board
determines that the granting of the variance would neither be detrimental to the public nor impair the intent
and purposes of this section, and if the applicant demonstrates: . . . . (2) That by reason of exceptional
conditions or difficulties with regard to solar orientation or access, undue hardship would be caused to a
subdivider by the strict application of any provisions of this section, or . . . ."
It is Appellants contention that the Applicant failed to sustain the burden of proof in seeking the
variance to the City of Fort Collins Solar Orientation Ordinance and that the Planning and Zoning Board
failed to make required findings to support the granting of a variance to the City of Fort Collins Solar
Orientation Ordinance pursuant to Section 29-526K of the Land Development Guidance System For
Planned Unit Developments. Under Section 29-526K of the Land Development Guidance System For
Planned Unit Developments, the Planning and Zoning Board has no authority arbitrarily to grant variances
to the Solar Orientation Ordinance, and while the pertinent provisions of Section 29-526K state that the
Planning and Zoning Board can grant variances, such variances may be made only in certain enumerated
cases. The power of the Planning and Zoning Board is limited by the provisions of Section 29-526K, and
any variance made without compliance with those provisions is beyond the authority of the Planning and
. Zoning Board, and void. Cross v. Bilett. 122 Colo. 278. The record of the proceedings clearly are devoid
of any statements or explanations setting forth the substantive elements of the Planning and Zoning Boards
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD,Filing Two-Preliminary,#73-82T
September 3, 1999
Page 14
decision to grant the Applicant's request for a variance to the City of Fort Collins Solar Orientation
Ordinance. In the motion to grant Applicant's request for a variance to the solar orientation requirements of
Section 29-526(2)A-1/A-1.1 no findings were discussed by the members of the Planning and Zoning Board
nor did the Planning and Zoning Board set forth in the text of the motion any findings which support the
granting of said variance. The failure to make the required findings on the record renders the decision of
'the Planning and Zoning Board granting the variance void. It has been held repeatedly by courts of last
resort that the record and findings of administrative boards must disclose the basis of the conclusions
reached by them. Linder v. Copeland 137 Colo. 53; deKoevend v. Board of Education of West End
School, 688 P. 2d 219; Murray v. Bd. of Adjust.. Larimer County, 594 P. 2d 596 (Colo. App. 1979).
Appellants also assert that the Applicant failed to sustain the burden of proof in seeking the variance to the
City of Fort Collins Solar Orientation Ordinance. The burden of proof is on the Applicant seeking a
variance from a zoning ordinance. La Plata County Com'rs v. Bd of Adi, 768 P. 2d 1250 (Colo. App.
1988). Applicant's stated justification of the variance was that, "The site plan, which originally achieved
65% solar oriented lots, lost several solar-oriented lots in the redesign of the Cottage Home Area (Parcel
G). This area was redesigned primarily to improve and simplify the lotting layout by eliminating several
inefficient flag lots used to achieve solar orientation while still taking access of the public alley." It appears
from the text of the Application for the variance that Applicant's voluntary redesign of the Cottage Home
Area (Parcel G) is a self-inflicted condition which does not meet the criteria set forth in Section 29-526K
and Section 29-526K(2) entitling the granting of a variance to the mandatory requirements of Section 29-
526(2)A-1/A-1.1. It is well settled that the hardship or practical difficulty upon which the need for a
variance is premised should not be self-created and it must be of a type particular to this property owner
and not shared by others. Murray v. Bd. of Adjust., Larimer County, 594 P. 2d 596 (Colo. App. 1979). In
Lew v. Board of Adjustment of Aravahoe Coumv, 369 P. 2d 991,the court stated that, "Without deciding
whether 'self-inflicted hardship' is in and of itself an absolute bar to the granting of a variance, it is at the
very least a highly significant fact which, according to the Ardolmo case, is a'material element bearing on
the issue and weighs heavily against the owner seeking the variance."' In this instance Applicant
voluntarily made design changes which modified a previously submitted plan which was in compliance with
the provisions of Section 29-526(2)A-1/A-1.1 the solar orientation ordinance criteria thereby reducing the
number of required solar oriented lots which they now seek the granting of a variance. It goes without
saying that the required test is not met solely by a showing of inconvenience or a greater economic benefit
that could be gained if the variance was granted. Baum v. City and County of Denver, 147 Colo. 104. In
addition,in their presentation at the hearing the Applicant did not provide any additional evidence which by
reason of exceptional conditions or difficulties with regard to solar orientation or access, undue hardship
would be caused to Applicant by the strict application of any provisions of this Section 29-526(2)A-1/A-
1.1 thereby failing to sustain the burden of proof in seeking the variance to the City of Fort Collins Solar
Orientation Ordinance. The Planning and Zoning Board abused its discretion and exceeded its jurisdiction
in granting the variance.
The following grounds of appeal set forth allegations of error in accordance with the provisions of Section
2-48(b)(2)c. and Section 248(b)(2)d. of the Code of the City of Fort Collins.
Notice of Appeal
Planning and Zoning Board Decision
Provincetowne PUD, Filing Two-Preliminary,#73-82T
September 3, 1999
Page 15
)M Planning And Zoning Board Considered Evidence Relevant Which Was Substantially False Or
Grossly Misleading & Planning And Zoning Board Failed To Receive All Relevant Evidence Offered By
The Appellants
a. The Planning and Zoning Board received evidence at the hearing that no water would flow from
the proposed development into the drainage system situated on the adjacent property owned by Eagle Tree
at Provincetowne Community Association, Inc.. Applicant's representative, Brock Chapman,testified that
the design incorporated into the existing Preliminary Plan, which was the subject of the approval request,
had included elements which provided that no water would flow from their development onto and/or
through the property and/or drainage system of Eagle Tree at Provincetowne Community Association, Inc..
Subsequent to the closure of the public hearing portion of the meeting, the Planning and Zoning Board
received evidence from staff that water accumulating within the proposed development would in fact flow
upon the property and/or into the drainage system of Eagle Tree at Provincetowne Community Association,
Inc.. The members of the Eagle Tree community were not afforded an opportunity to address this issue and
submit into evidence before the Planning and Zoning Board that the Eagle Tree at Provincetowne
Community Association, Inc. owns in fee the drainage system situated upon it's real property and has not
given to the Applicant an easement for drainage across it's property. Appellants were precluded from
presenting to the Planning and Zoning Board a copy of Applicant's Overall Drainage Plan which clearly
identifies areas of drainage which will in fact cross and/or enter the drainage system of Eagle Tree at
Provincetowne Community Association, Inc..
Official/Ouasi-Judicial/Administrative Notice
Appellants hereby request that the City Council take OfficiaVQuasi-Judicial/Administrarive Notice
of the Constitution of the United States, the Constitution of the State of Colorado, Colorado Revised
Statutes,the Charter of the City of Fort Collins,the Code of the City of Fort Collins,and the Ordinances of
the City of Fort Collins.
No Waiver
Appellants hereby submit the foregoing and reserve the right to present further argument and
materials at the hearing. The Notice of Appeal by Appellants is not intended to be construed as a
submission to or a waiver of any jurisdictional or such other legally cognizable procedural or substantive
defect occurring during the processing of the Application for Planned Unit Development- Preliminary Plan
approval nor of any determinations and/or actions taken by the City of Fort Collins prior to and subsequent
to the filing of said Application.
Respectfully submitted,
D G. � o Sp Le
City Attorney
City of Fort Collins
MEMORANDUM
TO: Mayor and Members of City Council
FROM: Stephen Olt, City Planner4
Paul Eckman, Deputy City Attorne
John Duval, Deputy City Atto ney
THRU: Greg Byrne, Director C.P.E.S.
Bob Blanchard, Current Planning irecto
Steve Roy, City Attorney/fj�
DATE: September 27, 1999
RE: PROVINCETOWNE PUD, SECOND FILING - PRELIMINARY —
Appeal to City Council
The purpose of this memorandum is to respond to an appeal regarding the
August 5, 1999 decision of the Planning and Zoning Board to approve the
Provincetowne PUD, Second Filing - Preliminary.
Section 2-48 of the City Code states:
"Except for appeals by members of the City Council, for which no grounds need be
stated, the permissible grounds for appeal shall be limited to allegations that the board
or commission committed one or more of the following errors:
(1) Failure to properly interpret and apply relevant provisions of the Code and
Charter;
(2) Failure to conduct a fair hearing in that:
a. The board or commission exceeded its authority or jurisdiction as
contained in the Code and Charter;
b. The board or commission substantially ignored its previously
established rules of procedure;
300 LaPorte Avenue - P.O. Box 580 - Fort Collins,CO 80522-0580 - (970)221-6520 - FAX(970)221-6327
C. The board or commission considered evidence relevant to its ~-
findings which was substantially false or grossly misleading; or
d. The board or commission improperly failed to receive all relevant
evidence offered by the appellant."
Appellants David G. Evans
6806 Deerhurst Court
Fort Collins, CO. 80525
Doug Sparks
900 Deerhurst Circle
Fort Collins, CO. 80525
Mark Menke
901 Deerhurst Circle
Fort Collins, CO. 80525
Grounds for Appeal:
(Note: Bold text represents excerpts from the appeal document)
The following grounds of appeal set forth allegations of error in accordance with
the provisions of Section 2-48(b)(1), Section 2-48(b)(2)a and Section 2-48(b)(2)b of
the Code of the City of Fort Collins. (Note that the Roman numerals used in this
response correspond to the numbering used in the Appellants'Notice of Appeal.]
I. No hearing jurisdiction conferred on Planning and Zoning Board, in that,
execution by the City Manager of the Agreement of Purchase and Sale of
Real Property (hereinafter "Purchase Agreement") by and between the City
of Fort Collins and Pridemark Development Company, LLC, dated April 2,
1996, was specifically reserved by Section 4 of Ordinance No. 41, 1996, to
the Mayor and not the City Manager. The execution of said Purchase
Agreement by the City Manager violated the specific requirements of
Section 4 of Ordinance No. 41, 1996 as well as the requirements of Section
23-111(a) of the Code of the City of Fort Collins which vests sole authority
to sell real property upon the City Council pursuant to a duly enacted
ordinance.
2
Staff Response:
The Appellants' first ground of appeal challenges the jurisdiction of the Planning
and Zoning Board ("the Board") in considering the application of Kaufman and Broad of
Colorado, Inc. ("the Developer") for preliminary PUD approval of its proposed
development of the Provincetowne property ("the Property'). The Appellants argue, in
essence, that the Board was without such jurisdiction because the Developer has no
legal or ownership interest in the Property sufficient to seek development of the
Property. To better understand the Appellants' argument for this ground of appeal, as
well as the arguments for their grounds'of appeal discussed below in sections II., III,
IV., V. and VI I., a review of some of the relevant facts is needed. '
On April 2, 1996, the City and PrdeMark Development Company ("Pridemark")
entered into an Agreement of Purchase and Sale of Real Property ("the Purchase
Agreement"). (A copy of the Purchase Agreement is attached as Exhibit "A".) Under the
Purchase Agreement, the City agreed to sell the Property to Pridemark. (On March 20,
1998, Pridemark assigned all its interest in the Purchase Agreement, and all
amendments of it, to the Developer.) When the City and Pridemark entered into the
Purchase Agreement, it was signed by the City Manager on behalf of the City. When
the Purchase Agreement was signed, it was understood by the parties that the City
Manager could not, on his own authority, sell the Property to Pridemark because City
Code Section 23-111(a) required any such sale to be authorized by an ordinance of
Council. Therefore, paragraph 21.A. of the Purchase Agreement provided that the
City's obligations under the Agreement to sell the Property to Pridemark were
conditioned upon the Council approving the Agreement by the adoption of an ordinance
on or before April 16, 1996.
On April 16, 1996, the Council adopted Ordinance No. 41, 1996 ("the
Ordinance") which approved the Agreement in Section 1. of the Ordinance and
authorized the Mayor in Section 2. to sign the documents needed by the City to convey
the Property to Pridemark in accordance with the terms of the Purchase Agreement and
of any future amendments to the Purchase Agreement. (A copy of the Ordinance is
'Please note, that almost all the facts discussed and all the exhibits referred to in the Staffs responses in
sections I., II., III., IV., V. and VII. of this memorandum, are "new evidence" which cannot be relied upon by the
Council in this appeal unless, pursuant to City Code Section 2-56(b)(2), they are presented to Council during the
appeal hearing in response to a question from a Councilmember. It has been necessary to present these new facts
and exhibits in this memorandum because of the nature of the Appellants' grounds of appeal being responded to in
these sections. Except for brief references by the Appellants at the hearing before the Board that the Developer did
not own the Property, these grounds of appeal were not argued to the Board and the facts and exhibits relating to
them were not offered as evidence at the hearing so as to become part of the record that is now before the Council.
Nonetheless, many of these facts and most of these exhibits are discussed and referred to in the Appellants' Notice
of Appeal dated September 3, 1999. Therefore, in order for Staff to be able to present responses in this
memorandum that make sense,these new facts and exhibits have been included in this memorandum.
3
attached as Exhibit "B".) .In addition, Section 5. of the Ordinance authorized the City
Manager to agree, on behalf of the City, to future amendments to the Purchase
Agreement if, in his judgment, the amendments were necessary to: (1) consummate the
sale of the Property in accordance with the terms and conditions approved in the
Ordinance; (2) preserve . the tax-free character of the bonds issued for the
Provincetowne and the Lemay SIDS (the City acquired the Property as a result of these
SIDs going into default); or (3) facilitate the development of the Property as a
demonstration project in which at least 30% of all residential units built on the Property
would be affordable housing.
From these facts the Appellants argue that the Purchase Agreement was not a
valid agreement because Section 4. of the Ordinance required the Mayor to sign the
Purchase Agreement for it to be valid. Thus, the Appellants argue, the Developer has
no legal or ownership interest in the Property sufficient to have allowed the Board to
exercise its jurisdiction in considering the Developer's application for preliminary PUD
approval of the Property. This argument, however, ignores the legal effect of the
Ordinance.
As discussed above, the City Manager signed the Purchase Agreement on April
2, 1996, on behalf of the City subject to the condition in paragraph 21.A. of the
Agreement that the Agreement be approved by an ordinance of Council adopted on or
before April 16, 1996. This approval was required by City Code Section 23-111(a).
Then, on April 16, 1996, the Council adopted the Ordinance which approved the
Purchase Agreement. The effect of the Ordinance was to create a legally binding
agreement between the City and Pridemark authorizing the City to sell the Property to
Pridemark and its successor, the Developer. Therefore, the Purchase Agreement is a
valid agreement that provides the Developer with the legal and ownership interests in
the Property sufficient to have given the Board the jurisdiction to consider the
Developer's application which is the subject of this appeal.
Il. No hearing jurisdiction conferred on Planning and Zoning Board, in that,
execution by the City Manager, on or about April 12, 1995, of an agreement
on behalf of the City of Fort Collins entitled "First Addendum to Agreement
of Purchase and Sale of Property" (hereinafter "First Addendum") by and
between the City of Fort Collins and Pridemark Development Company,
LLC, adding Paragraph 27 to the Agreement of Purchase and Sale of Real
Property dated April 2, 1996, was void, in that the First Addendum could
not, as a matter of law, modify an executory agreement.
Staff Response:
The Appellants' second ground of appeal is similar to their first ground as the
4
• Appellants again argue that the Board did not have jurisdiction to consider the
Developer's application because of the Developer's insufficient legal and ownership
interests in the Property. However, it differs from the first ground because the
Appellants do not challenge the validity of the Purchase Agreement, instead they
challenge the validity of the first agreement the City and Pridemark entered into to
amend the Purchase Agreement.
On April 12, 1996, the City and Pridemark entered into a First Addendum to
Agreement of Purchase and Sale of Real Property ("the First Addendum"). (A copy of
the First Addendum is attached as Exhibit "C".) The First Addendum amended the
Purchase Agreement by adding a new paragraph 27. to the Purchase Agreement.
Paragraph 27. was added to allow the City to elect in the future to restructure the
parties' transaction from an outright sale and purchase of the Property to an option
agreement. This was done because the City was concerned about preserving the tax-
free character of the bonds issued for the Provincetowne and Lemay SIDs. The City
acquired the Property as the result of these SIDs failing and the Property represents the
collateral for these bonds.
Except for the addition of paragraph 27, all other provisions of the Purchase
Agreement remained unchanged by the First Addendum, including paragraph 21.A. that
made the City's obligations under the Purchase Agreement conditioned upon the
Council approving the Purchase Agreement on or before April 16, 1996, which it did by
the adoption of the Ordinance. On August 26, 1996, the City and Pridemark, at the
City's election, restructured their transaction as an option by entering into a Second
Addendum to Agreement of Purchase and Sale of Real Property ("the Second
Addendum"). ( A copy of the Second Addendum is attached as Exhibit "D".)
The Appellants argue, in effect, that the Board was without jurisdiction to
consider the Developer's application because the Developer has no legal or ownership
interest in the Property because, they contend, the First Addendum, and presumably
the Second Addendum, is not a valid agreement. The Appellants offer two reasons
why the First Addendum is not a valid agreement: (1) because the City Manager signed
it on behalf of the City; and (2) because the Purchase Agreement is an "executory
agreement" that legally could not be amended by the First Addendum.
Concerning the City Manager signing the First Addendum, once again, as with
the Purchase Agreement, the First Addendum did not become for the City a binding
agreement until the Council approved it as required by City Code Section 23-111(a). In
Section 2. of the Ordinance the Council expressly approved the First Addendum. And,
in Section 4. the Mayor was authorized to sign on behalf of the City the documents
needed to convey the Property pursuant to the terms of not just the Purchase
Agreement, but also pursuant to the terms of the First Addendum. Since the Council
• approved the First Addendum in the Ordinance, the First Addendum was a valid and
5
binding agreement which, together with the Purchase Agreement, conferred upon the
Developer sufficient legal and ownership interests in the Property to justify the Board
exercising its jurisdiction in considering the Developer's application.
The Appellants' claim that the Purchase Agreement is an "executory agreement"
which legally could not be amended by the First Addendum, is without merit. An
executory agreement is nothing more than an agreement whose obligations have yet to
be performed. Therefore, agreements to sell and option agreements to purchase real
property are executory agreements until they are closed by the deeding of the property.
These kinds of agreements are universally, routinely and frequently amended before
property is deeded. The law places no limitations on parties to an executory agreement
amending their agreement prior to all obligations under the agreement being performed.
Consequently, the First Addendum is a valid agreement which legally amended the
Purchase Agreement.
Ill. No hearing jurisdiction conferred on Planning and Zoning Board, in that,
delegation to City Manager of the power to sell the real property pursuant
to Section 5 of Ordinance No. 41, 1996, was an improper delegation of
legislative discretion which violated the requirements of Section 23-111(a)
of the Code of the City of Fort Collins which vests sole authority to sell real
property upon the City Council pursuant to a duly enacted ordinance.
Staff Response:
The Appellants contend in their third ground of appeal that the City Manager was
not authorized to sign the Second Addendum on behalf of the City. So again, the
Appellants argue the Developer had no legal or ownership interest in the Property that
would give the Board jurisdiction to consider the Developer's preliminary PUD
application for the Property.
The Second Addendum, as discussed above, was entered into at the election of
the City pursuant to the First Addendum in order to restructure the transaction under
the Purchase Agreement from an outright sale and purchase of the Property to an
option agreement because of the City's concerns about preserving the tax-free
character of the bonds of the Provincetowne and Lemay SIDs. Paragraph 27. was
added to the Purchase Agreement by the First Addendum to specifically provide that
the City could elect to so restructure the transaction by presenting an addendum to
Pridemark which granted to Pridemark "the option to purchase any or all of the Property
beginning on December 31, 1996, and for a five (5) year period thereafter, on financial
terms and conditions substantially similar to those set forth in paragraph 4. [of the
Purchase Agreement], and upon such other terms and conditions as the [City)
determines are reasonably necessary to preserve the tax-free character of the bonds
that were issued for the . . . Provincetowne . . . and . . . Lemay" SIDs. The Second
6
Addendum is the agreement that resulted from paragraph 27.
The Appellants do not dispute that the Second Addendum complies with
paragraph 27. Instead, they contend the City Manager could not enter into the Second
Addendum on behalf of the City. They argue that under Code Section 23-111(a) only
the Council could authorize the City to enter into the Second Addendum and to allow
the City Manager to do so was an improper delegation of the Council's legislative
discretion.
The Appellants' arguments on this point fall short for two reasons. First, when
the Council approved the First Addendum in the Ordinance, they also approved the
Second Addendum in accordance with Code Section 23-111(a). The Council did this
because paragraph 27., as added to the Purchase Agreement by the First Addendum,
describes what the material terms and conditions of the Second Addendum must be. A
careful and fair reading of the Second Addendum clearly shows that the Second
Addendum satisfies the requirements of paragraph 27., a fact the Appellants do not
challenge in this appeal. The City Manager's signing of the Second Addendum was,
therefore, merely an administrative act, as opposed to a legislative act, which the City
Manager, as the chief administrative officer of the City, was authorized to perform.
The second reason why the City Manager's signing of the Second Addendum
was not an improper delegation of the Council's legislative discretion, is that the Council
expressly authorized the City Manager to do so in Section 5. of the Ordinance. Under
Colorado law, a city council can delegate its legislative authority by ordinance to its city
manager when it gives clear criteria for the city manager to follow in exercising that
authority. As previously discussed, Section 5. authorized the City Manager to execute
addenda to the Purchase Agreement and the First Addendum if amending them was
reasonably necessary to satisfy one or more of the following criteria: (1) to consummate
the sale of the Property in accordance with the terms and conditions approved in the
Ordinance; (2) to preserve the tax-free character of the bonds issued for the
Provincetowne and Lemay SIDs; or (3) to facilitate development of the Property as a
demonstration project with at least 30% of all residential units built as affordable
housing. Again, a careful and fair review of the Second Addendum, when read together
with the First Addendum, the Purchase Agreement and the Ordinance, reveals that
each of these criteria is satisfied in the Second Addendum. Therefore, the Council's
delegation of authority to the City Manager in Section 5. of the Ordinance to sign the
Second Addendum was proper and the City Manager exercised his authority in
accordance with the criteria of Section 5.
IV. No hearing jurisdiction conferred on Planning and Zoning Board, in that,
delegation to Pridemark Development Company, LLC of the power to
restructure the sale of the real property from a purchase to an option to
purchase pursuant to the First Addendum to Agreement of Purchase and
7
Sale of Real Property, was an improper delegation of legislative discretion
which violated the requirements of Section 23-111(a) of the Code of the
City of Fort Collins which vests sole authority to sell real property upon the
City Council pursuant to a duly enacted ordinance.
Staff Response:
The Appellants' fourth ground of appeal also argues an improper delegation by
the Council of its legislative discretion to restructure the transaction under the Purchase
Agreement from on outright sale of the Property to an option agreement. This time,
however, they do not claim that such discretion was improperly delegated to the City
Manager, but rather improperly delegated to Pridemark.
The Appellants state twice on page 6 of their Notice of Appeal dated September
3, 1999, that this improper delegation occurs in the First Addendum in which Pridemark
is given "the unilateral right to restructure the Purchase Agreement as an option rather
than as a purchase." These statements are not accurate.
The first sentence of paragraph 27., as added to the Purchase Agreement by the
First Addendum, states: "the Seller may elect to restructure this transaction as an option
rather than as a purchase." In the opening paragraph of the First Addendum the City is
clearly identified as "the Seller." Paragraph 27. goes on to describe how the City, as
the Seller, can elect to exercise its right to so restructure the transaction. Therefore,
there can be no doubt that Pridemark was not given in the First Addendum "the
unilateral right to restructure" the transaction. It was the City that was given this right
because, as already explained, it wanted the ability to restructure the transaction to
preserve the tax-free character of the bonds issued for the Provincetowne and Lemay
SIDs.
There was, therefore, no improper delegation to Pridemark by the Council of its
legislative discretion to restructure the transaction from a purchase to an option.
V. No hearing jurisdiction conferred on Planning and Zoning Board, in that,
Applicant nor its predecessor in interest, as a matter of law and pursuant
to filing requirements of Section 29-526 — Land Development Guidance
System for Planned Unit Developments and Ordinance No. 161, 1996 was
the owner of the subject parcel of real property at the time of the filing on
March 27, 1997, of the Application with the Current Planning Department
requesting Planned Unit Development - Preliminary Plan approval and
approval for a Preliminary Subdivision Plat nor was Applicant given legal
authority to execute the Application as filed nor prosecute such
Application on behalf of the record owner, the City of Fort Collins.
8
Staff Response:
The Appellants allege that no hearing jurisdiction was conferred on the Board
because the Developer was not the "owner" of the Property, nor was the Developer
given legal authority to execute the application as filed nor prosecute such application
on behalf of the record owner, the City of Fort Collins. It is true, as the Appellants state,
that the certification on the City's application form requires the Applicant for a
development project to certify to the City that the applicant is acting with the knowledge,
consent and authority of the owners of the property, without whose consent and
authority the requested action could not be lawfully accomplished. The Appellants
allege that the application was fraudulent because the Developer was neither the owner
of the Property nor acting with the consent of the owner (the City). First, the City did
consent to the filing of the application, even though not in writing. Written consent is
not required. Perhaps more importantly, the Developer was an "owner" of the property
because the Developer had a contract interest in the Property under the Purchase
Agreement and its subsequent amendments. Contract purchasers of real property are
considered "owners of an equitable interest" in the property, while owners of the fee title
are considered "owners of the legal interest" in the property. Both equitable owners and
legal owners are, for purposes of the City's certification, owners.
• VI. No hearing jurisdiction conferred on Planning and Zoning Board, in that,
Applicant nor its predecessor in interest, filed, in a timely manner, a
complete application as required by Section 29-526 et seq. — Land
Development Guidance System for Planned Unit Developments and
Ordinance No. 161, 1996.
Staff Response:
The Appellants allege that the Director did not make the determination prior to
March 28, 1997 that the Developer had submitted evidence of successful completion of
the applicable criteria, specifically the All Development Criteria and Community Wide
Criteria as required by the provisions of section 29-526D(1)(c) and Section 29-526D(2)
respectively, which are mandatory prerequisites to the determination of the filing of a
complete application pursuant to Section 7 of Ordinance No. 161,1996 and prior to
March 28, 1997, as specified. The records in the City's Current Planning Department
project file (#73-82T) for the Provincetowne PUD, Filing Two — Preliminary indicate that
the Developer had sufficiently met and addressed the required items on the Preliminary
PUD Plan SUBMITTAL CHECKLIST that was filled out by City staff at time of submittal
on March 27, 1997. A document titled "Preliminary Plan and Subdivision Plat Request
for the Provincetowne PUD — Filing Two" was submitted with the required plans and
• documentation on March 27, 1997. Contained in this document is the completed
9
Activity A: ALL DEVELOPMENT CRITERIA Chart that the Developer has indicated
satisfies Sections 29-526D(1)(c) and 29-526D(2) of the Land Development Guidance
System.
The Appellants also allege that the Developer's request for a variance to the
Solar Orientation Ordinance was not included in the March 27, 1997 filing as required
by Section 9 of Ordinance No. 161, 1996. Section 9 states 'That, for the purposes of
the Director's determination as to whether all relevant submittal requirements have
been met under the provisions of Section 2 and 6 above, the submittal requirements for
various land use applications shall be shown on Exhibit '13% attached hereto and
incorporated herein by this reference". As cited by the Appellants, Paragraph 3 under
Preliminary Planned Unit Development in Exhibit 'B' does require a "Statement of
variances to City design criteria and standards". However, the Provincetowne PUD,
Filing Two — Preliminary development plans that were submitted to the City on March
27, 1997 met or exceeded the requirement that a minimum of 65% of the lots under
15,000 square feet in size comply with the Solar Orientation Ordinance. Therefore, a
variance to the ordinance was not needed with the original PUD submittal.
VII. No hearing jurisdiction conferred on Planning and Zoning Board, in that,
Applicant nor its predecessor in interest, as a matter of law and pursuant
to filing requirements of Section 29-526 — Land Development Guidance
System for Planned Unit Developments and Ordinance No. 161, 1996 was
the owner of the subject parcel of real property at the time of the filing on
March 27, 1997, of the Application with the Current Planning Department
requesting Planned Unit Development - Preliminary Plan approval and
approval for a Preliminary Subdivision Plat nor was Applicant given legal
authority to execute the Application as filed nor prosecute such
Application on behalf of the record owner, the City of Fort Collins.
Staff Response:
In their seventh ground of appeal, the Appellants challenge the Board's
jurisdiction to hear the Developer's application for the Property, contending once again
that the Developer has no legal or ownership interest in the Property. The Appellants
essentially allege that the Developer, and its predecessor Pridemark, failed to give the
City timely written notice when they exercised their option to buy portions of the
Property and, therefore, the Developer lost the right to purchase from the City, and the
City lost the right to sell to them, any or all of the Property.
Under the Second Addendum, Pridemark was granted the option to purchase
any or all of the Property, with the option terminating on January 1, 2002. However, in
order to keep this option in effect, the Second Addendum required the Developer to
exercise the option by purchasing at least 28.33 acres of the Property by certain dates.
10
For example, the first 28.33 acres were required to be purchased on or before January
31, 1997. This date for the first purchase was, however, subsequently extended to
December 18, 1997, by the parties when they entered into their Fourth Addendum to
Agreement for Purchase and Sale of Real Property ("the Fourth Addendum"). (A copy
of the Fourth Addendum is attached as Exhibit "E".)
The Appellants allege that under paragraph 2.A. of the Fourth Addendum,
Pridemark was required to give the City written notice by September 19, 1997, of what
28.33 acres of the Property Pridemark intended to purchase by December 18, 1997.
They further allege that the City never received any such notice from Pridemark, but the
City nevertheless conveyed 28.33 acres of the Property to Pridemark on December 18,
1997. The Appellants argue that because the City never received the required notice,
Pridemark's and the Developer's option to purchase the Property terminated.
The Appellants' argument on this point fails for two reasons. First, the
Appellants ignore paragraph 2.6. of the Fourth Addendum. Paragraph 2.6. specifically
establishes the controlling deadline by which Pridemark was required to give its written
notice to the City concerning the 28.33 acres it intended to purchase by December 18,
1997. The deadline required by paragraph 2.6. was November 30, 1997, not
September 19, 1997. Second, Pridemark did, in fact, give the City the required written
notice in a timely manner. On October 13, 1997, the City received a Fax Coversheet
from Pridemark to which was attached the legal descriptions and survey maps of the
parcels of the Property Pridemark intended to purchase from the City on December 18,
1997. (A copy of Pridemark's Fax Coversheet with attachments is attached as Exhibit
"F„ )
So, with respect to the first 28.33 acres of the Property purchased by Pridemark
on December 18, 1997, the option was exercised completely in accordance with the
requirements of the Fourth Addendum.
As to the second 28.33 acres purchased by the Developer, the Appellants allege
that paragraph 2.A. of the Fourth Addendum required the Developer to give the City 90-
days prior written notice of its intent to make the second purchase. They allege that
such notice was given by the Developer on March 14, 1998, and that the City conveyed
the second 28.33 acres to the Developer on June 2, 1998. The Appellants argue that
since this was only 81-days prior written notice, the Developers option to purchase the
Property terminated under the Fourth Addendum and, consequently, the Developer has
no legal or ownership interest in the Property.
In responding to this argument, several facts need to be understood. First, the
City did not convey the second 28.33 acres of the Property to the Developer on June 2,
1998, as alleged by the Appellants. The conveyance occurred when the City delivered
its deed at the closing for this transaction which was held on June 4, 1998. Therefore,
the City was given 83-days prior written notice of the Developer's intent to exercise its
option to make its second purchase.
Second, on June 1, 1998, the City and the Developer entered into their Fifth
Addendum to Agreement of Purchase and Sale of Real Property ("the Fifth Addendum")
which amended paragraph 2.A. of the Fourth Addendum to extend the closing date by
which the Developer was required to purchase the second 28.33 acres from June 1,
1998, to June 5, 1998. (A copy of the Fifth Addendum is attached as Exhibit "G".)
Third, paragraph 2.A. in both the Fourth and Fifth Addendums states that while
the Developer is required to give 90-days prior written notice, the closing for the parcel
of the Property described in the notice could occur anytime not "less than sixty (60)
days nor more than ninety (90) days after the date such notice is given." The parties,
therefore, clearly agreed they could close the Developer's proposed purchase earlier
than the 90-day notice period. So, failure of the Developer to strictly comply with the
90-day notice requirement was not fatal to the continued validity of the Fourth and Fifth
Addendums.
This provision in paragraph 2.A. highlights and supports the fourth fact which is
the 90-day notice requirement was not intended by the parties to be a provision that
would necessarily terminate the parties' entire transaction. Rather, it was intended to
benefit the City so it would have enough time to review the legal descriptions of the
portions' of the Property to be conveyed to make sure they satisfied the contiguity
requirements established in paragraph 2.A. These contiguity requirements protected
the City from ending up owning stranded or undevelopable portions of the Property if
the Developer did not eventually purchase all the Property. In the particular case of the
second purchase, the 83 days of notice the City received was more than sufficient time
for the City to make this determination. And, by conveying the second 28.33 acres on
June 4, 1998, the City waived any objection to the 83-day notice and implicitly
reaffirmed the parties' agreements under the Fourth and Fifth Addendums.
In addition, the City waived any objection to the 83-day notice and explicitly
reaffirmed the parties' agreements under the Fourth Addendum when the parties
entered into the Fifth Addendum. The Fifth Addendum was entered into by the parties
on June 1, 1998, a time when the City knew it had been given less than the 90-day
notice by the Developer for the second 28.33 acres. If the City considered such notice
to be a breach of the Fourth Addendum on June 1, 1998, it waived any such breach
when it entered into the Fifth Addendum. Further, paragraph 2. of the Fifth Addendum
provides that, except as amended by the Fifth Addendum, all other terms and
conditions of the parties option agreement remain unchanged and "in full force and
effect." This paragraph 2. explicitly reaffirmed the parties' agreements in their
transaction, and thereby excused any breach by the Developer in failing to give the 90-
day prior written notice.
12
• For all of these reasons, the 83-day notice for the second 28.33 acres did not
deprive the Board of its jurisdiction to consider the Developer's application for
preliminary PUD approval of the Properly.
Vill. No hearing jurisdiction conferred on Planning and Zoning Board, in that,
the Planning and Zoning Board failed to give timely notice of August 5,
1999, hearing.
Staff Response:
The Appellants allege that no hearing jurisdiction was conferred on the Board in
that the Board failed to give timely notice of the August 5, 1999 hearing. Specifically,
the Appellants allege, that among the notice requirements of the Land Development
Guidance System, the Board is required to give notice to the owners of record of all real
property within 500 feet of the properly lines of the parcel of land for which the Planned
Unit Development is proposed, which notice must be delivered at least twenty-eight (28)
days prior to the hearing date. The Appellants attach a copy of the notice delivered,
which notice was dated July 19, 1999 and postmarked July 20, 1999. The hearing was
. held on August 5, 1999, allowing only sixteen (16) days of advance notice. Section 29-
526(F)(4)(d) of the Land Development Guidance System does provide for several types
of notice to be given. In the context of a quasi-judicial hearing, constitutional due
process requires that notice be given, and an opportunity be afforded for persons to be
heard at the hearing. The Land Development Guidance System requires that notice of
the time, date and place of the Planning and Zoning Board be published in a
newspaper of general circulation within the City at least seven (7) days prior to such
hearing. It also requires that a sign be posted on the property giving notice to the
general public of the proposed development. Furthermore, it requires that, for owners
of record within 500 feet of the property lines, written notice be delivered at least
twenty-eight (28) days prior to the hearing. However, with respect to the written notice,
the Code states that:
Failure to deliver such notice shall not affect the validity of
any hearing or determination by the Planning and Zoning
Board.
The reason that the above-quoted sentence is included in the Land Development
Guidance System is that the constitutional due process requirement is met by the
posting of the property and by the publication of notice in the newspaper of general
circulation. The mailing notice is essentially gratuitous, as far as the constitutional due
. process requirement is required. It was devised by the City to supplement the posting
13
of the publication but, knowing that errors can occur in the mailing of notices such as
that, the sentence was included to indicate that failure to deliver the notice was not fatal
to the hearing.
Furthermore, the failure to deliver the notice twenty-eight (28) days in advance
was not prejudicial to the Appellants because they did receive the notice sixteen (16)
days prior to the hearing, they were prepared for the hearing and attended the hearing
and spoke to the Board. Due process is satisfied by reason of the Appellants' full
participation in the hearing, and failure to object to lack of notice.
Finally, it is impossible for the Current Planning Department to comply with the
twenty-eight (28) day requirement as established in the Land Development Guidance
System because Staff does not establish the Planning and Zoning Board agenda until
approximately one (1) month prior to the hearing. Official notification is not sent until
the Board's agenda has been finalized.
For the reasons stated in the preceding paragraph, the Land Use Code was
amended to require a fourteen (14) day advance notice. It is the fourteen (14) day
advance notice that the City utilizes in all of its applications under the Land Use Code,
and since the adoption of the Land Use Code, also its applications under the Land
Development Guidance System.
IX. No hearing jurisdiction conferred on Planning and Zoning Board, in that,
the notice of the Planning and Zoning Board dated July 19, 1999, for the
hearing of August 5, 1999, was insufficient to confer jurisdiction upon the
Planning and Zoning Board.
Staff Response:
The Appellants allege that the letter of notification they received regarding the
Board's public hearing on the Provincetowne PUD, Filing Two — Preliminary
development plan was insufficient in that it failed to specifically mention the request for
a variance to the Solar Orientation Ordinance. The Appellants stated that a public
notice must be clear, definite, explicit, and not ambiguous. At a minimum, it must give
the date, time, and place of the hearing and apprise the public of the subject matter of
the hearing and nature of the proposed action.
Section 29-526F(4)(b) of the Land Development Guidance System requires that
the Planning and Zoning Board give written notice to the owners of record of all real
property within (a minimum of) 500 feet of the property lines of the parcel of land for
which the planned unit development is proposed. The Current Planning Department
mailed letters of written notice to Affected Property Owners beyond the required
notification area on July 20, 1999 (see attached notification area map that extends
14
beyond 500 feet and notification letter). The letters stated that the Planning and Zoning
Board, on Thursday, August 5, 1999 (date), at 6:30 p.m. (time) in the Council
Chambers, City Hall West, 300 LaPorte Avenue (place), will hold a public hearing on a
proposed project in the affected neighborhood (nature of proposed action). The
proposed project is commonly known as Provincetowne PUD, Filing Two — Preliminary,
#73-82T. The letter goes on to state that the request is for 331 residential dwelling units
(190 single family lots and 141 multi-family townhomes) on 70.0 acres, located on the
south side of Trilby Road at Brittany Drive, west of South Lemay Avenue, north of
County Road 32, and zoned LMN — Low Density Mixed Use Neighborhood (subject
matter). Attached to the letter is a vicinity map showing the property being proposed for
development and the surrounding area for a distance of 2,000 feet to 3,000 feet in all
directions.
The content of notification letters is not established in the Land Development
Guidance System. As noted, notification includes a specific explanation of the
proposed project, its location and the action requested. Typically, variance requests
are not included since the level of detail is limited and these issues can be identified
through review of the file, conversation with staff and attendance at the hearing.
X. Planning and Zoning Board failed to make required findings, in that,
Section 29-526K of the Land Development Guidance System for Planned
Unit Developments requires, "The decision of the Planning and Zoning
Board on any application for a variance shall be set forth in writing in the
minutes of the meeting of the Board".
Staff Response:
The Appellants allege that the Board failed to make required variance findings.
Section 29-526(K) of the Land Development Guidance System requires the decision of
the Board on any application for a variance to be set forth in writing in the minutes of
the meeting of the Board. The Appellants argue that no findings were discussed by the
Board nor did the Board set forth in the text of the motion any findings. Findings were
set forth in the staff report and are not required to be formalized in the motion of the
Board according to Section 29-526(K). That Section only requires that the minutes
include the decision of the Board regarding the variance. The minutes do include the
decision of the Board.
XI. Applicant failed to sustain the burden of proof in seeking the variance to
the City of Fort Collins Solar Orientation Ordinance, in that, Applicant
presented no evidence which would demonstrate that the granting of the
variance would neither be detrimental to the public good nor impair the
intent and purposes of Section 29-526(2)A-1/A-1.1 or that Applicant was
entitled to the variance by reason of exceptional conditions or difficulties
�5
with regard to solar orientation or access, and that undue hardship would
be caused to the Applicant by the strict application of the provisions of
Section 29-526(2)A-1/A-1.1.
Staff Response:
The Appellants allege that the Developer failed to sustain the burden of proof in
seeking the variance to the City of Fort Collins solar orientation ordinance and that the
Board failed to make required findings to support the granting of a variance to the
ordinance. The Appellants contend that the Board abused its discretion and exceeded
its jurisdiction in granting the variance.
The Developer did, on March 24, 1999, submit a Variance Request for
Provincetowne Preliminary PUD — Minimum "Solar Orientation" Lot Requirement that
contained the Variance Request and Justification for Variance Request. This was
submitted with revised development plans reflecting minor layout changes that did
require a variance to the Solar Orientation Ordinance. The variance request was
evaluated by City staff during development review. The Developer's request for a
variance was included in the Solar Orientation Ordinance section of the Staff Report to
the Board for the August 5, 1999 public hearing along with Staffs determination that the
ability to provide public alley access in a portion of the development took precedence
over the need to satisfy the requirements of the ordinance in that area. Also, it was
determined that the granting of the variance would not be detrimental to the public good
or impair the intent and purposes of the ordinance.
The Board took action specific to the request for a variance to the solar
orientation ordinance based on the Staffs finding and recommendation.
The following grounds of appeal set forth allegations of error in accordance with
the provisions of Section 2-48(b)(2)c and Section 2-48(b)(2)d of the Code of the
City of Fort Collins.
XII. The Planning and Zoning Board considered evidence which was
substantially false or grossly misleading & Planning and Zoning Board
failed to receive all relevant evidence offered by the Appellants.
Staff Response:
As noted by the Appellants, City Stormwater staff did testify at the hearing
subsequent to the Developer's statement to the Board that no drainage would be
discharged from the Developers Property onto property owned by the Eagle Tree at
Provincetowne Community Association, Inc. ("the Association"). City staffs response
made it clear to the Board, prior to any Board action, that although the Developer had
16
. considerably reduced the volume and rate of discharge of stormwater runoff through
the Association's property (previously known as Provincetowne PUD, Filing 1, and now
known as Eagle Tree), a relatively small amount of runoff would still flow from the
Property onto and through the Association's property and drainage, system. This is due
to the fact that the Developer's Property lies west of the Association's property and the
topography of the site dictates that runoff would generally flow west to east, as it has
historically drained. The drainage system for the Association's property was originally
designed and built to accommodate and pass through flows that would be coming from
anticipated future development from the west (i.e., the Developer's Property) and thus
currently has adequate capacity to handle such future flows.
Although the Association owns in fee the drainage channel that parallels Lemay
Avenue, this drainage system is in an easement dedicated to the public. As such, that
easement allows drainage from upstream basin areas and off of City streets to drain
onto and through this channel on the Association's property.
17
EXHIBIT A TO CITY STAFF'S PPDVINCFTORE APPEAL MEU
AGREEMENT OF PURCHASE SALE OF REAL PROPERTY
THIS AGREEMENT is made and entered into this - day of �' I , 1996,
by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, whose
address is 300 LaPorte Avenue, Fort Collins, Colorado 80521, (hereinafter referred to as "the
Seller"), and PRIDEMARK DEVELOPMENT COMPANY, LLC, whose address is 8791 Wolff
Court, Westminster, Colorado 80030, (hereinafter referred to as "the Purchaser").
WITNESSETH :
For and in consideration of the promises of the Purchaser to purchase and of the Seller to
sell the real property hereinafter described, and other good and valuable consideration, the receipt
and adequacy of which are hereby confessed and acknowledged, the parties hereto agree to be
legally bound whereby the Seller agrees to sell and the Purchaser agrees to purchase the said real
property on the terms and conditions hereinafter set forth.
1. Description of Real Prop. The real estate which is the subject matter of this
Agreement, is that certain parcel of real property located in the County of Larimer, State of
Colorado, constituting approximately one hundred seventy (170) acres of land located in a part
of Section 13, Township 6 North, Range 69 West of the Sixth P.M., which parcel is depicted as
the land to be developed on the Provincetowne Concept Plan which is attached hereto as Exhibit
"A" and incorporated herein by this reference, but does not include the approximately one hundred
sixty (160) acres of land designated as the "Public Open Space" on the said Plan. Said real
property shall be hereinafter referred to as "the Property." The legal description of the Property
that shall be used in the special warranty deed described in paragraph 2. below, shall be the legal
description agreed upon by the Seller and the Purchaser as verified by the survey to be conducted
pursuant to paragraph 5.A. below. The Property shall include any fences, buildings, landscaping,
irrigation systems, and other improvements now located thereon, including all fixtures of a
permanent nature. The Property shall also include all water taps, gas taps and sewer taps
belonging or in any way appertaining thereto. In addition, the Property shall include all of the
Seller's right, title and interest in and to easements, rights-of-way, future interests and rights to
the same belonging and inuring to the benefit of the Property, and in and to all strips and gores
of land lying between the Property and adjoining property or streets, roads or highways, open or
proposed. However, sale of the Property does not include any adjudicated water, ditch or
reservoir rights that the Seller may own.
2. Method of Conveyance. The Seller agrees to sell to the Purchaser and the
Purchaser agrees to purchase from the Seller, subject to the terms and conditions as set forth
herein, the Property. The Property shall be conveyed by the Seller at the time of closing to the,
Purchaser by special warranty deed, free and clear of all liens and encumbrances, except and
subject to the following:
A. All easements and rights-of-way in place as of the date of this Agreement;
B. All easements, covenants, reservations, restrictions, rights-of-way, and agreements
of record as of the date of this Agreement;
C. Any restrictions, reservations or exceptions contained in any United States or State
of Colorado patents of record;
D. All zoning and other governmental rules and regulations;
E. Statutory lien rights resulting from the inclusion of the Property in any special
taxing district or improvement district;
F. All oil, gas or other mineral reservations or exceptions of record as of the date of
this Agreement;
G. General property taxes and assessments for 1996 and all subsequent years; and
H. The reservation of easements and rights-of-way described in paragraph 3. below.
3. Reservation of Easements.
A. The Seller may reserve and except unto itself, and to its successors and assigns,
from the Property, all those easements and rights-of--way to the City of Fort Collins
affecting the Property that are currently of record.
B. The Seller may also reserve and except unto itself, and to its successors and
assigns, from the Property, a storm-drainage and spillway-flow easement over and
across the Property, which easement shall be of such area and in such location as
is determined by the Seller, after consideration of the study described in paragraph
3.B.(i) below, to be reasonably necessary in order to discharge stormwater and
spillway overflow from the Robert Benson Reservoir ("the Reservoir") across the
Property for a 100-year storm and in order to direct such drainage and overflow
away from the Property as much as is reasonably possible under accepted
engineering standards ("the Easement"). With respect to the Easement, the parties
hereto agree as follows:
(i) The Purchaser agrees to commission and pay for, in an amount not to
exceed Ten Thousand Dollars ($10,000.00), the cost of an engineering
study to be conducted to determine the various options available to the
Seller to bring the Reservoir's dam into conformance with any requirements
of the State Engineer and State law, to determine the improvements needed.
for the Easement under each option, and to establish the needed area and
location of the Easement for each option ("the Study"). The Study shall be
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conducted by a qualified engineer or engineering firm first approved by the
Seller, such approval not to be unreasonably withheld.
(ii) The Study shall be completed and made available to the Seller on or before
July 1, 1996.
(iii) On or before August 1, 1996, after having had the opportunity to review
the Study, the Seller shall submit in writing to the Purchaser, the option
chosen from the Study by the Seller for the improvements needed for the
Reservoir dam and the Easement, and the resulting proposed area and
location of the Easement.
(iv) If the Easement, as proposed by the Seller, is to be located upon any
portion of the Property on which the Purchaser intends to build residential
structures, the Purchaser shall have the right to delete from the legal
description of the Property, as established pursuant to paragraph S.A.
below, such portion of the Property. In addition, the total purchase price
of the Property under this Agreement shall be decreased accordingly
pursuant to the provisions of paragraph 4.1). below.
(v) In the event that the Seller chooses any option under the Study that calls for
the Reservoir's dam to be improved to standards other than those required
under State law for a jurisdictional dam, the Purchaser agrees to
commission and pay for the cost of the construction needed for the dam and
the Easement under such option chosen by the Seller, in an amount not to
exceed Fifty Thousand Dollars ($50,000.00). In such event, the Purchaser,
or its contractor, shall have reasonable access to any real property owned
by the Seller as is reasonably needed by the Purchaser, or by its contractor,
to make such improvements. If, however, the Seller chooses an option
under the Study that calls for the Reservoir's dam to be improved to the
State standards for a jurisdictional dam, the Purchaser shall have no
responsibility or obligation to commission or pay for the cost of the needed
improvements under such option.
4. Purchase Pri . The total purchase price of the Property shall be One Million Eight
Hundred Thousand U.S. Dollars ($1,800,000.00), and shall be payable by the Purchaser to the
Seller as follows:
A. The sum of Sixty Thousand U.S. Dollars ($60,000.00), in the form of the
Purchaser's fully executed earnest money promissory note, payable to the Seller,
shall be delivered to the Seller by the Purchaser upon the execution of this
Agreement. The promissory note shall bear no interest and shall be due and
payable in full by the Purchaser to the Seller at the time of closing as provided in
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paragraph 6. below. The form of the earnest money promissory note shall be that
of the Colorado Real Estate Commission approved Bradford Publishing Form No. _
EMP80-2-81.
B. The sum of Two Hundred Forty Thousand U.S. Dollars ($240,000.00), subject to
closing costs and customary prorations, as hereinafter provided, shall be payable
in cash certified funds by the Purchaser to the Seller at the time of closing as
provided in paragraph 6. below.
C. The balance of the purchase price in the amount of One Million Five Hundred
Thousand U.S. Dollars ($1,500,000.00), subject to closing costs and customary
proration, as hereinafter provided, shall be payable by the Purchaser executing
and delivering to the Seller at the time of closing its good and sufficient promissory
note in said amount (hereinafter referred to as "the Promissory Note"). The
Promissory Note shall be non-recourse and shall bear interest at the rate of seven
and one/half percent (71/2%)per annum from the date of closing until paid in full.
Said principal and interest shall be payable as follows: in one (1) installment
payment of principal and interest of Three Hundred Thousand Dollars
($300,000.00) due one(1) year from the date of closing and thereafter in eight (8)
semi-annual payments of principal and interest of One Hundred Ninety-two
Thousand Nine Hundred Thirty-five and 39/100 Dollars ($192,935.39), with the
first semi-annual payment due six (6) months after the date of the first installment
payment, and like payments shall be made every six (6) months thereafter until the
fifth anniversary date of the closing of this transaction, at which time all unpaid
principal and interest shall be due and payable in full, if not sooner paid.
The Promissory Note shall expressly reserve to the Purchaser the privilege of
prepayment in whole or part at any time without penalty. Any prepayments shall
be deemed to have been made on account of the next-maturing installment payment
of principal and interest, with such prepayment first credited against any accrued
interest.
The Promissory Note shall provide for fifteen percent (15%) defaulting interest,
for payment of court costs and attorneys fees in the event of default, and for
acceleration of principal and interest in the event of any default which is not cured
by the Purchaser within ten (10) days after payment is due.
The Promissory Note shall be secured by'a deed of trust ("the Deed of Trust").
The Deed of Trust shall represent a first lien against the Property, less that portion
of the Property which will be dedicated for public use by the Purchaser in
connection with its development of the Property and less that portion of the
Property which the Purchaser shall be entitled to request at closing not be
encumbered by the Deed of Trust in consideration of the Purchaser's $300,000.00
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down payment. The number of acres of the Property that the Purchaser shall be
entitled to purchase at closing free and clear of the Deed of Trust for the $300,000
down payment shall be based upon the per acre partial release provisions of the
Deed of Trust as described below. For example, if at closing the Property
conveyed to the Purchaser totals 170 acres, the Purchaser shall be entitled to
receive title to 25.76 acres of the Property, free and clear of the lien of the Deed
of Trust in consideration of the $300,000 down payment. Such acreage is
calculated as follows: (1) $1,800,000 - 170 = $10,588.24; (2) $10,588.24 x
110% = $11,647.06; and (3) $300,000 _ $11,647.06 = 25.76 acres.
The Deed of Trust shall contain the terms and conditions that are set out in
Colorado Real Estate Commission approved Form TD 72-11-83 ("Deed of Trust-
Due on Transfer-Strict"), except for the provisions of paragraph 23. of Form TD
72-11-83. In addition, the Dead of Trust shall contain the following partial release
provisions:
The Grantee shall partially release the lien created by the Deed of Trust at
the rate of one (1) acre for an amount paid on the principal of the above-
described Promissory Note determined by dividing the then outstanding
principal balance of the Promissory Note by the number of acres then
subject to the lien of the Deed of Trust times one hundred ten percent
(110%). Provided, however, releases shall be limited to parcels which are
. contiguous to that parcel of real property which the Grantee sold to the
Grantor on December 31, 1996, but which was not encumbered by this
Deed of Trust; which are contiguous to previously released parcels; or
which are contiguous to one of the main roads adjacent to the Property,
(such main roads are Province Avenue, Brittany Drive, Trilby Road, and
Lemay Avenue); and by the release at such time, will not result in the value
of the Property which remains encumbered by the Deed of Trust to be less
than one hundred ten percent (110%) of the then outstanding principal
balance of the aforesaid Promissory Note. In the event of a dispute
concerning the value of the Property, the value shall be determined by an
MAI appraiser hired by the Grantee provided, however, that the Grantor
shall reimburse the Grantee the cost of such appraisal. All payments made
to obtain partial releases shall be applied to the next payment of principal
and interest due.
In addition to the foregoing, the Promissory Note and the Deed of Trust shall be in a form
acceptable to the Seller.
D. The Seller and the Purchaser agree that the total purchase price as provided in this
paragraph 4. has been based upon the price of Ten Thousand Five Hundred Eighty-
eight and 24/100 Dollars ($10,588.24)per acre for 170 acres. Said purchase price
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and the sum evidenced and secured by the Promissory Note and the Deed of Trust
described in paragraph 4.C. above, shall be increased or decreased, as the case
may be, according to the total number of acres actually conveyed at closing by the
Seller to the Purchaser, multiplied by the sum of$10,588.24 per acre. The total
number of acres shall be established pursuant to the survey to be conducted
pursuant to paragraph S.A. below and pursuant to the parties' agreement
concerning the legal description of the Property.
5. S,ry y and Tile IngurancP.
A. The Purchaser, at its expense, shall obtain a survey of the Property certified by a
licensed Colorado surveyor which shall legally describe the approximately 170 acres of the
Property to be conveyed by the Seller to the Purchaser pursuant to this Agreement. On or before
May 31, 1996, the Purchaser shall provide to the Seller a copy of such survey and the Seller shall
have fifteen (15) days thereafter in which to approve the legal description to be used in the said
special warranty deed. In the event that the Seller and the Purchaser cannot agree upon a legal
description of the Property to be conveyed under this Agreement, this Agreement shall be
automatically terminated and all parties shall be released from all obligations hereunder and any
monies theretofore paid to the Seller by the Purchaser shall be refunded in full to the Purchaser
and any original promissory notes theretofore delivered to the Seller by the Purchaser shall be
returned to the Purchaser.
B. The Purchaser, at its own expanse, shall provide its own title insurance. The Seller
shall be under no obligation to provide title insurance in this transaction. The title insurance
commitment obtained by the Purchaser shall show marketable title to the Property in the Seller,
subject only to those items described in paragraph 2. above. In the event said title insurance
commitment discloses title defects subject to which the Purchaser need not take title, the Seller
may, at its option, cure such defect within a reasonable period of time, at its expense, without in
any other manner affecting the terms of this Agreement. The Seller also agrees to cooperate with
the Purchaser in requesting the title company to remove any mechanic's lien exceptions that may
be contained in the title commitment. In the event said title insurance company refuses to omit
any title defect or objection prior to closing, then the Purchaser shall, at its election, have the right
to accept such title as the Seller is willing to convey, without any reduction of the purchase price;
or the Purchaser shall have the right to rescind this Agreement and, upon such rescission pursuant
to this paragraph, the Purchaser shall be entitled to the return of the amount of money theretofore
paid or of the originals of promissory notes theretofore delivered to the Seller or its agent; and
upon such payment, this Agreement shall be null and void and of no further effect, and all parties
to this Agreement shall be released from all obligations hereunder.
C. On or before the date of closing of this transaction, the Purchaser shall deliver to
the Seller, at the Purchaser's sole expense, a mortgagee's title commitment in the amount of the
Promissory Note and issued by the title insurance company which issues the owner's title
insurance commitment described in paragraph S.B. above. Said title insurance commitment shall
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• show marketable title in the Seller to that portion of the Property to be secured by the Deed of
Trust, subject only to those items set forth in paragraph 2. above. At closing, the cost of the
mortgagee's title policy to be issued under said mortgagee's title commitment shall be paid by the
Purchaser.
6. Closing.
A. The closing of this transaction shall be held on or before December 31, 1996, at
2:00 p.m. in the Fort Collins City Attorney's Office located at 300 LaPorte
Avenue, Fort Collins, Colorado, or at such other time, date or location as the
parties may agree upon.
B. The following shall occur at closing, each being a condition precedent to the others
and all being considered as occurring simultaneously:
(i) The Seller shall execute, have notarized, and have delivered to the
Purchaser a special warranty deed, conveying title to the Property to the
Purchaser in accordance with the provisions of this Agreement;
(ii) The Seller shall execute and deliver to the Purchaser an affidavit stating that
the Seller is not a foreign person, a foreign corporation, a foreign
partnership, a foreign trust, or foreign estate, (as those terms are defined
• in the Internal Revenue Code and Income Tax Regulations);
(iii) The Seller shall execute Certificates as to Taxpayer Identification Number
as required by law;
(iv) The Purchaser shall deliver to the Seller the certified funds required by
paragraph 4. above;
(v) The Seller and the Purchaser shall each execute and deliver Settlement
Statements, showing adjustments in the payment of the costs of the closing;
(vi) The Purchaser shall execute a Real Property Transfer Declaration as
required by Colorado law; and
(vii) Each party shall deliver to the other such other documents, certificates, and
the like as may be required herein or as may be necessary or helpful to
carry out each parry's obligations under this Agreement.
7. Possession. Possession of the Property shall be delivered to the Purchaser
immediately following the closing.
• - 7of15 -
8. Pik. Real property taxes and assessments and similar expenses, in
accordance with local practice, shall be prorated as of the date of closing.
9. Remedies on Default. If any payment due hereunder is not paid, honored or
tendered when due, or if any other obligation hereunder is not performed as herein provided, there
shall be the following remedies:
A. If the Purchaser is in default, then the Seller may elect to.treat this Agreement as
terminated, in which case all payments and things of value received hereunder from the Purchaser
shall be forfeited by the Purchaser and retained by the Seller, and the Seller may recover such
damages as may be proper, or the Seller may elect to treat this Agreement as being in full force
and effect, and the Seller shall have the right to an action for specific performance or damages,
or both.
B. If the Seller is in default, the Purchaser may elect to treat this Agreement as
terminated, in which case all payments and things of value received hereunder by the Seller shall
be returned to the Purchaser, and the Purchaser may recover such damages as may be proper, or
the Purchaser may elect to treat this Agreement as being in full force and effect and the Purchaser
shall have the right to an action for specific performance or damages, or both.
10. Attorn,y's Fees and Costs. In the event either of the respective parties hereto shall
default in any of their covenants or obligations herein provided.and the party not in default
commences legal or equitable action against the defaulting party, the defaulting party expressly
agrees to pay all of the non-defaulting parry's reasonable expenses of said litigation, including a
reasonable sum for attorney's fees.
11. Governing Iaw. It is expressly understood and agreed by and between the parties
hereto that this Agreement is made in and shall be construed and interpreted in accordance with
the laws of the State of Colorado.
12. Notices. Any notice or other communication given by either party hereto to the
other relating to this Agreement shall be hand delivered or sent by registered or certified mail,
return receipt requested, addressed to such other party at their respective addresses as set forth
below; and such notice or other communication shall be deemed given when so hand delivered or
when so mailed:
If to Seller:
Alan Krcmank, Finance Director
Finance Department
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
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With a copy to:
John Duval, Assistant City Attorney
City Attorney's Office
City of Fort Collins
P. O. Box 580
Fort Collins, CO 80522
If to Purchaser:
James W. Harmon
PrideMark Development Company
8791 Wolff Court
Westminster, CO 80030
With a copy to:.
Ronald A. Milzer, Esq.
Gelt, Fleishman & Sterling, P.C.
1600 Broadway, Suite 2600
Denver, CO 80202-4926
13. Assignment. This Agreement shall not be assigned by either of the parties hereto
without the prior written consent of the other party, except that the Purchaser may assign this
Agreement to an entity related to the Purchaser upon prior written notice to the Seller.
14. Maintenance of the Property. The Seller shall keep, or cause to be kept, the
Property in its condition as of the date hereof until the closing of this transaction, subject to
normal wear-and-tear and seasonal changes, and agrees not to commit or permit waste thereon.
15. CasiWty. In the event that the Property is substantially damaged by fire, flood or
casualty between the date of this Agreement and the date of closing of title, this Agreement may,
at the option of the Purchaser, be declared null and void and of no further force or effect; and all
the parties to this Agreement shall be released from all obligations hereunder; and the Purchaser
shall be entitled to a refund of the amount of money, if any, theretofore paid to the Seller.
16. Headings. . Paragraph headings used herein are for convenience of reference and
shall in no way define, limit or prescribe the scope or intent of any provision under this
Agreement.
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17. Terms Survive Closing: To the extent necessary to carry out all of the terms and
provisions hereof, the said terms, obligations and rights set forth herein shall be deemed not
terminated at the time of closing, nor shall they be merged with the various documents executed
and delivered at such time.
18. Construction. Words of the masculine gender shall include the feminine and neuter
gender and when the sentence so indicates, words of the neuter gender shall refer to any gender.
Words in the singular shall include the plural and vice versa. This Agreement shall be construed
according to its fair meaning, and as if prepared by both parties hereto, and shall be deemed to
be and contain the entire understanding and agreement between the parties hereto. There shall be
deemed to be no other terms, conditions, promises, understandings, statements or representations,
express or implied, concerning this Agreement unless set forth in writing and signed by both
parties hereto.
19. Time is of the Essence. It is agreed that time shall be of the essence to this
Agreement and each and every provision hereof.
20. Right In . The Purchaser shall be permitted to fully inspect the Property at
any time up to and including the date of closing, as provided in paragraph 6. above ("the
Inspection Period"). The Seller agrees that the Purchaser and its agents may have reasonable
access to the Property to conduct tests and/or inspections, at the Purchaser's expense, concerning
the presence of environmental hazardous waste, underground storage tanks, or other
environmental conditions which could expose the Purchaser to future liability for damages or
clean-up expenses. In the event the Purchaser's exposure to such damages or expenses is certified
by a qualified environmental engineer to be reasonably likely and such damages or expenses are
reasonably estimated by the engineer to exceed Five Thousand Dollars ($5,000.00), the Purchaser
may, upon written notice to the Seller specifying such hazard and cost, terminate this Agreement.
In the event of such termination, the Purchaser's earnest money deposit paid pursuant to paragraph
4.A. above shall be returned to it.
Notwithstanding anything contained herein to the contrary, the Purchaser shall have the
term of the Inspection Period within which to review the Property and any and all matters related
to the purchase, development, sale, and/or financing of the Property or homes or other
improvements thereon, including without limitation, survey, title matters, governmental
requirements, and other matters which might affect the feasibility of the Property for the
Purchaser's anticipated development thereof, to determine whether or not the Purchaser desires
to proceed with the purchase of the Property from the Seller. In the event that the Purchaser
shall, within the Inspection Period, give written notice to the Seller of the Purchaser's decision
not to purchase the Property for any reason, then this Agreement shall be null and void and of no
effect and any deposits shall be returned to the Purchaser, and all parties shall be released from
any further obligations hereunder.
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. 21. Contingencies.
A. This Agreement is hereby made expressly contingent upon the City Council of the
City of Fort Collins (hereinafter referred to as "the Council") approving this Agreement by
ordinance, which ordinance must be passed by the Council on second reading on or before April
16, 1996, and must become law ten (10) days thereafter as provided in the City Charter. If the
Council does not pass such an ordinance on second reading on or before April 16, 1996, or for
any reason it does not become law ten (10) days thereafter as provided in the City Charter, this
Agreement shall be automatically terminated and all parties shall be released from all obligations
hereunder and any monies theretofore paid shall be refunded in full to the Purchaser and original
promissory notes theretofore delivered to the Seller by the Purchaser shall be returned to the
Purchaser.
B. This Agreement is hereby made expressly contingent upon the Purchaser obtaining
third-party financing for any initial or subsequent purchase of any part of the Property on terms
and conditions prevailing for similar transactions at the time of closing. The Purchaser shall use
due diligence and act in good faith in applying for, obtaining, and accepting such financing. If
financing is unavailable at the time of closing, this Agreement shall be automatically terminated
and all parties shall be released from all obligations hereunder and any monies theretofore paid
to the Seller by the Purchaser shall be refunded in full to the Purchaser.
22. Binding Fff t. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
23. "AS-IS" Nature of Sale. The Purchaser acknowledges and agrees that the Seller
has not made, does not make and specifically negates and disclaims any representations,
warranties, promises, covenants, agreements or guarantees of any kind or character whatsoever,
whether express or implied, oral or written, past, present or future, of, as to, concerning or with
respect to the Property and: (a) the value, nature, quality or condition of the Property, including,
without limitation, the water, soil and geology of the Property; (b) the income to be derived from
the Property; (c) the suitability of the Property for any and all activities and uses which Purchaser
may conduct thereon; (d) compliance by the Property, or of its operation and use, with all
applicable statutes, laws, ordinances, rules or regulations of any governmental authority or body
having jurisdiction; (e) the habitability, merchantability, marketability, profitability or fitness for
a particular purpose of the Property; (f) the manner or quality of the construction or materials,
if any, incorporated into the Property; (g) the manner, quality, state of repair or lack of repair of
the Property; (h) the amount of land that constitutes the Property (i.e., the number of square feet
or acres being conveyed); or (i) any other matter with respect to the Property, and specifically,
that Seller has not made, does not make and specifically disclaims any representations regarding
compliance with any environmental protection, pollution or land use laws, rules, regulations,
orders or requirements, including solid waste, as defined by the U.S. Environmental Protection
Agency regulations at 40 C.F.R., Part 261, or the disposal or existence, in or on the Property,
of any hazardous substance, as defined by the Comprehensive Environmental Response
11 of 15 -
Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder.
Purchaser further acknowledges and agrees that having been given the opportunity to inspect the
Property, the Purchaser is relying solely on its own investigation of the Property and not on any
information provided or to be provided by the Seller. The Purchaser further acknowledges and
agrees that any information provided or to be provided with respect to the Property was obtained
from a variety of sources and that the Seller has not made any independent investigation or
verification of such information and makes no representations as to the accuracy or completeness
of such information. The Purchaser agrees that the Seller is not liable or bound in any manner
by any verbal or written statements, representations or information pertaining to the Property, or
the operation thereof, furnished by any real estate broker, agent, employee, servant, or other
person representing or claiming to represent the Seller. The Purchaser further acknowledges and
agrees that to the maximum extent permitted by law, the sale of the Property as provided for
herein is made on an "AS IS" condition and basis with all faults. It is understood and agreed that
the purchase price has been adjusted by the Purchaser to reflect that all of the Property is sold by
the Seller and purchased by the Purchaser subject to the foregoing.
24. Affordable HousinE Oblivations. The Purchaser agrees that when it applies to the
City of Fort Collins for approval of the Purchaser's intended development of the Property, that
its application for development shall contain a proposal to build as affordable housing units at least
thirty percent (30%) of all residential units proposed to be constructed under the Purchaser's
development proposal. For purposes of this Agreement, an affordable housing unit shall be
deemed to mean residential units which are available for rent or purchase on terms which would
be affordable to individuals earning eighty percent (80%) or less of the median family income,
as adjusted for family size, of residents in the City of Fort Collins, so that they can either
purchase or rent a residential unit and not pay more than thirty percent (30%) of their gross
income for housing costs (including utilities).
The Purchaser agrees that in the development agreement that it enters into with the City
of Fort Collins conceming the development of the Property ("the Development Agreement"), that
it will obligate itself to build such percentage of affordable housing units. The Purchaser shall
also agree in the Development Agreement that not less than two-thirds (2/3) of all the affordable
housing units it builds in the development shall be restricted by covenant, deed, or contract to
remain affordable housing for at least twenty-five (25) years from the date each such unit is
certified by the City of Fort Collins for occupancy. With respect to the remaining one-third (1/3)
of the affordable housing units to be built, the Purchaser shall also agree in the Development
Agreement that such units shall be restricted by covenant, deed, or contract to remain affordable
housing for at least twenty-five (25) years from the date each such unit is certified by the City of
Fort Collins for occupancy, provided, however, that some reasonable form of third-party
financing is available for such affordable housing units. If such third-party financing is not
available, the remaining one-third (1/3) of affordable housing units to be built shall be restricted
by covenant, deed, or contract to remain affordable housing for at least five (5) years. In the
Development Agreement, the Purchaser shall further agree that the City of Fort Collins shall not
be obligated to issue more than two (2) certificates of occupancy for non-affordable housing units
- 12of15 -
that have been constructed for every one (1) certificate of occupancy issued for an affordable
housing unit constructed. For example, if two certificates of occupancy have been issued for two
affordable housing units that have been built, the Purchaser shall be entitled to receive up to four
(4) certificates of occupancy for non-affordable housing units that have been built. Also, if the
Purchaser receives one certificate of occupancy for one multi-family unit of affordable housing,
the Purchaser shall be deemed under the development agreement to have received one certificate
of occupancy for an affordable housing unit for each separate, residential unit contained in such
multi-family unit. For example, if one multi-family unit includes ten apartments and only one
certificate of occupancy has been issued for the one multi-family unit, the Purchaser shall be
deemed to have received ten separate certificates of occupancy for affordable housing units for
purposes of calculating the number of certificates of occupancy the Purchaser is entitled to receive
under the development agreement for non-affordable housing units.
Notwithstanding the foregoing, the Purchaser acknowledges and agrees that it shall not be
entitled to receive any.certificate of occupancy for either a non-affordable housing unit or an
affordable housing unit except to the extent that all the requirements under the Fort Collins City
Code regarding the issuance of a certificate of occupancy have been complied with by the
Purchaser for the housing unit constructed for which the specific certificate of occupancy is being
requested.
In order to guarantee that the affordable housing units to be built in accordance with this
paragraph 24. are initially sold or rented as affordable units and remain affordable for the
applicable time periods required above, the Development Agreement shall provide that before the
Seller will be required to issue a certificate of occupancy for any affordable housing unit built on
the Property, that the Seller must have first approved the type and the terms of the covenant, deed
or contract restrictions used or to be used for such affordable housing unit, which approval shall
not be unreasonably withheld. Provided, however, that the Seller may withhold its approval of
a covenant, deed or contract restriction and not issue the requested certificate of occupancy if such
restriction does not reasonably guarantee that the particular affordable housing unit will remain
affordable for the time period required by this paragraph 24.
25. RRgxmr ng_of Development Data and Information. The Purchaser acknowledges that
one of the Seller's primary goals in selling the Property is to sell it to a purchaser that will develop
the Property as an affordable housing demonstration project so that the Seller can use the project
to collect various data and information that the Seller can then use to evaluate many of its current
development policies and standards, particularly those that relate to development of affordable
housing. To accomplish this, the Purchaser agrees to provide the Seller with a separate report
with respect to each phase of the development of the Property, which report shall contain the
hereinafter described data and information. Each report shall be provided to the Seller by the
Purchaser at the time of the Purchaser's final PUD submittal to the Seller for each phase of the
Property's development. Each report shall contain the following data and information in
reasonably sufficient detail to enable the Seller to conduct its intended evaluation: (1) itemized
breakdown of the Purchaser's estimated infrastructure and engineering costs associated with
- 13of15 -
developing buildable lots so that the cost impacts of alternative development standards can be
evaluated; (2)itemized breakdown of the Purchaser's estimated dwelling unit costs so that the cost -
impacts of alternative building code requirements can be evaluated; (3) itemized breakdown of the
Purchaser's legal, planning and other consulting costs associated with that particular phase of the
project so that the cost impacts of the Seller's various development review requirements can be
evaluated; (4)itemized breakdown of the Purchaser's plan review fees, plant investment fees, and
all other development impact fees for that particular phase of the development that are charged
by the Seller, other governmental entities, and private utilities so that their impact on development
can be evaluated; (5) describe the terms and conditions of any development financing that has been
obtained or will be obtained in connection with the particular development phase so that the cost
impacts of various financing methods concerning the proposed housing can be evaluated; and (6)
such other data and information as the Seller may reasonably request and reasonably need in
connection with its evaluation of its applicable development policies and standards.
26. Memorandum for Recordine. At closing, the Seller and the Purchaser shall execute
for recording in the records of the Larimer County Clerk and Recorder, a memorandum of this
Agreement. Such memorandum shall evidence the Purchaser's continuing covenants and
obligations to the Seller under this Agreement, all of which covenants and obligations shall survive
the closing and the delivery of the deed under this Agreement, and shall be deemed to run with
the Property. In lieu of such memorandum, this Agreement may be recorded by the Seller to
evidence such covenants and obligations.
27. No Brokers. Each party represents to the other that it has not authorized any broker
or finder to act on its behalf in connection with the sale and purchase of the Property and that such
party has not dealt with any broker or finder purporting to act on behalf of any such party. Each
party hereto agrees to indemnify and hold harmless the other party from and against any and all
losses, liens, claims, judgments, liabilities, costs, expenses, or damages (including reasonable
attorneys fees and court costs) of any kind or character arising out of or resulting from, any
agreement, arrangement, or understanding alleged to have been made by such party or on its
behalf with any broker or finder in connection with this Agreement or the transaction
contemplated hereby. Notwithstanding anything to the contrary contained herein, the provisions
of this paragraph shall survive the closing of this transaction or any termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first above written.
SELLER:
THE CITY OF FORT COLLINS, COLORADO
A Municipal Corporation
By: Ot 4
City#nager
- 14 of 15 -
. ATTEST:
V v City Clerk
V APPROVED AS TO FORM:
�1 ' Lk
As tant City Attorney
PURCHASER:
PRIDEMARK DEVELOPMENT CO., LLC
Michael A. Messina, Manager
• - 15of15 -
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71
C 0 N C E P T P L A N
2'ROVINCETOWNE
EXHIBIT B TO CITY STAFF'S PROVINCETOWNE APPEAL NEDU
• ORDINANCE NO.41, 1996
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE SALE OF A PORTION OF THE PROVINCETOWNE
SID PROPERTY TO PRIDEMARK DEVELOPMENT COMPANY,L.L.0
WITH AN AFFORDABLE HOUSING COMPONENT
WHEREAS,in 1984,the Council of the City of Fort Collins ("the Council") authorized the
creation of the Provincetowne Portner Special Improvement District#81 ("Provincetowne SID")for
the purpose of acquiring,constructing and installing of improvements within the Provincetowne SID;
and
WHEREAS,in 1985,the Council authorized the creation of the Fort Collins South Lemay
Avenue Special Improvement District #86 ("the Lemay SID") also for the purpose of acquiring,
constructing and installing improvements within the Lemay SID; and
WHEREAS,located within the Provincetowne SID and the Lemay SID is approximately 170
acres of land which constitutes a portion of the real property known as the Provincetowne Property
which is located south of Trilby Road,west of Lemay Avenue,north of County Road 32, and east
of College Avenue, and which is within Section 13 of Township 6 North, Range 69 West of the
Sixth P.M. ("the Property"); and
WHEREAS, the owner of the Property failed to pay the special improvements due on the
Property; and
WHEREAS, in accordance with Section 22-97 of the Code of the City of Fort Collins, the
Property was advertised and sold by the Larimer County Treasurer at a 1990 tax sale and a Tax
Certificate of Purchase was issued to the City; and
WHEREAS,the City subsequently obtained a Treasurer's Deed to the Property; and
WHEREAS, Section 22-97(d) of the Code provides that, if the City is the owner of the
Property acquired in satisfaction of discharge of liens represented by Certificates of Purchase,it may
sell such property for the best price obtainable at public sale or auction or by sealed bids or by such
other method of sale which may be approved by the City Council; and
WHEREAS, the City has received an offer from the PrideMark Development Company,
L.L.C. ("PrideMark"), to purchase the Property for a total purchase price of One Million Eight
Hundred Thousand Dollars ($1,800,000)to be paid over five years as follows: (1) $300,000 down
payment, (2) $300,000 installment payment due one year after the date of closing, and (3) eight
installment payments of$192,935.34 due semi-annually thereafter; and
WHEREAS, the City and PrideMark have entered into an Agreement of Purchase and Sale
. of Real Property dated April 2, 1996 ("the Agreement")setting forth PrideMark's offer to purchase
the Property for the total purchase price of One Million Eight Thousand Dollars ($1,800,000), with
the purchase contingent upon the Council approving the Agreement by an ordinance adopted by
Council on second reading on or before April 16, 1996; and
WHEREAS,the Agreement also provides that PrideMark will obligate itself to develop the
Property as a demonstration project in which at least thirty percent(30%)of all residential units built
in the development will be affordable housing units; and
WHEREAS,the City and PrideMark have entered into a"First Addendum to Agreement of
Purchase and Sale of Real Property"dated April 12, 1996 ("the First Addendum") which amends
the Agreement to provide that the City may elect to restructure the transaction described in the
Agreement from a straight purchase of all the Property by PrideMark to an agreement granting to
PrideMark an option to purchase all or any part of the Property over a five (5) year period upon
financial terms and conditions substantially similar to those described above; and
WHEREAS, it may be necessary for the City to restructure the transaction described in the
Agreement as an option in order to preserve the tax-free character of the bonds issued for the
Provincetowne SID and the Lemay SID; and
WHEREAS, under Section 23-111(a) of the Code, the Council is authorized to sell real
property owned in the name of the City,provided it first finds the sale is in the best interest of the
City; and
WHEREAS, Section 22-97(e)of the Code describes the manner in which the proceeds of the
sale of real properties should be allocated when real property is acquired through the foreclosure of
a special assessment lien is sold.
NOW,THEREFORE,BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS, as follows:
Section 1. That the sale of the Property to PrideMark pursuant to the terms of the
Agreement and the First Addendum is in the best interests of the City.
Section 2. That the Agreement and the First Addendum are hereby approved.
Section 3. That the proceeds derived by the City from the sale of the Property under the
Agreement and the First Addendum shall be allocated according to the provisions of Section 22-
97(e) of the Code.
Section 4. That the Mayor be,and hereby is, authorized to execute such instruments of
conveyance and other documents as are necessary for the City to sell and convey the Property to
PrideMark pursuant to the terms and conditions of the Agreement, the First Addendum, and any
future addenda entered into by the City Manager as provided in Section 5.below.
Section 5. That the City Manager be, and hereby is, authorized is to execute future
addenda to the Agreement and the First Addendum to amend any of their provisions if such
amendment is, in the judgment of the City Manager,reasonably necessary to consummate the sale
of the Property in accordance with the terms and conditions contained herein,preserve the tax-free
character of the bonds issued for the Provincetowne SID and the Lemay SID, or to facilitate the
development of the Property as a demonstration project in which at least thirty percent(30%) of all
residential units built in the development will be affordable housing.
Introduced, considered favorably on first reading, and ord ublished this of
April, A.D. 1996, and to be presented for final passage on the of April, . 19
r
ATTEST:
1 6.�
City Clerk
Passed and adopted on final reading thlayor
day of A.D. 996.
ATTEST:
City Clerk v
EXHIBIT C TO CITY STAFF'S PFDVINCETOWNE APPEAL MEZID
Rpr'EIVED
• FIRST ADDENDUM TO AGREEMENT_EMENT OF APR 1 `, 19%
PURCHASE ND SALE OF RFAIL PROPERTY
i1 =V
THIS FIRST ADDENDUM is made and entered into this 12th day of April, 1996, by and
between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, whose address
is 300 LaPorte Avenue, Fort Collins, Colorado 80521 (hereinafter referred to as "the Seller"), and
PRIDEMARK DEVELOPMENT COMPANY, LLC, whose address is 8791 Wolff Court,
Westminster, Colorado 80030 (hereinafter referred to as "the Purchaser").
WITNESSETH :
WHEREAS, the Seller and the Purchaser have previously entered into that certain
"Agreement of Purchase and Sale of Real Property" dated April 2, 1996 (hereinafter referred to
as "the Agreement"); and
VaMREAS, it has been determined that the transaction described in the Agreement as it
is now structured may jeopardize the tax-free character of the bonds that were issued in connection
with the Provincetowne Portner Special Improvement District#81 and for the Fort Collins-South
Lemay Avenue Special Improvement District #86, in which districts the Property has been and
is now located; and
• WHEREAS, the transaction described in the Agreement currently provides that the
Purchaser shall buy all of the Property at closing in consideration for a cash down payment of
$300,000.00 and the Purchaser's promissory note payable to the Seller in the amount of
$1,500,000.00; and
WHEREAS, in order to preserve the tax-free character of the said special improvement
district bonds, the Seller and the Purchaser now desire to amend the Agreement to allow the Seller
to elect to restructure the Agreement as an option.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree to amend the terms and conditions of the Agreement as
follows:
1. That a paragraph 27. be added to the Agreement to read in full as follows:
27. Restructure of Transaction. Notwithstanding any provision in this
Agreement to the contrary, the Seller may elect to restructure this transaction as
an option rather than as a purchase. If the Sellar so elects, instead of the Purchaser
buying all of the Property at closing, the Seller will grant to the Purchaser the
option to purchase any or all of the Property beginning December 31, 1996, and
for a five(5) year period thereafter, on financial terms and conditions substantially
similar to those set forth in paragraph 4. above, and upon such other terms and
conditions as the Seller determines are reasonably necessary to preserve the tax-free
character of the bonds that were issued for the Provincetowne Portner Special
Improvement District k81 and for the Fort Collins-South Lemay Avenue Special
Improvement District #86. To make this election, the Seller shall present to the
Purchaser on or before May 17, 1996, an addendum which amends this Agreement
so that the transaction now described herein is restructured as an option. If the
Seller and the Purchaser for any reason fail to enter into such addendum on or
before the date of closing, this Agreement shall be automatically terminated and
all parties shall be released from all obligations hereunder and any monies
theretofore paid to the Seller by the Purchaser shall be refunded in full to the
Purchaser and any original promissory notes theretofore delivered to the Seller by
the Purchaser shall be returned to the Purchaser.
2. All other terms and conditions of the Agreement shall remain unchanged and in full
force and effect, except as expressly amended in this First Addendum.
IN WITNESS WHEREOF, the parties hereto have caused this First Addendum to
Agreement of Purchase and Sale of Real Property to be executed as of the day and year first above
written.
SELLER:
THE CITY OF FORT COLLINS, COLORADO
A Municipal Corporation
City Wnager
ATTEST:
City Clerk
APPROVED AS TO FORM:
VLJ�
L
Ass tant City Attorney
- 2of3 -
PURCHASER:
pRIDEMARK DEVELOPMENT CO., LLC
Michael A. Messina, Manager
- 3of3 -
EXHMIT D TO CITY STAFF'S PPOVINCETUt E APPEAL MEW
SECOND ADDENDUM TO AGREEMENT OF
PURCHASE AND SALE OF REAL PROPERTY
THIS SECOND ADDENDUM is made and entered into this J& day of August, 1996,
by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, whose
address is 300 LaPorte Avenue, Fort Collins, Colorado 80521 (hereinafter referred to as "the
Seller"), and PRIDEMARK DEVELOPMENT COMPANY, LLC, whose address is 10701
Melody Drive, Suite 406, Northglenn, Colorado 80234 (hereinafter referred to as "the
Purchaser").
WITNESSETH :
WHEREAS, the Seller and the Purchaser have previously entered into that certain
"Agreement of Purchase and Sale of Real Property" dated April 2, 1996 (hereinafter referred to
as "the Agreement"); and
WHEREAS, the Seller and the Purchaser have also previously entered into that certain
"First Addendum to Agreement of Purchase and Sale of Real Property" dated April 12, 1996
(hereinafter referred to as "the First Addendum"); and
WHEREAS, the First Addendum was entered into in order to add a paragraph 27. to the
Agreement, which paragraph provides that the Seller may elect to restructure this transaction as
an option rather than as a purchase; and
WHEREAS, the City has elected to restructure this transaction pursuant to the First
Addendum; and
WHEREAS, this Second Addendum represents the agreement of the parties concerning
such restructuring of this transaction.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree to amend the terms and conditions of the Agreement as
follows:
1. The Agreement is hereby amended as shown on the "Option Agreement of
Purchase and Sale of Real Property" attached hereto as Exhibit "A" and incorporated herein by
reference (hereinafter referred to as "the Option Agreement"). The Option Agreement reflects
the amendments to the Agreement by striking out those provisions of the Agreement which the
parties hereby agree are deleted from the Agreement and by red-lining or shading those provisions
of the Option Agreement which the parties hereby agree are added to the Agreement.
. 2. All other terms and conditions of the Agreement shall remain unchanged and in full
force and effect, except as expressly amended in this Second Addendum.
IN WITNESS WHEREOF, the parties hereto have caused this Second Addendum to Agreement
of Purchase and Sale of Real Property to be executed as of the day and year first above written.
THE CITY OF FORT COLLINS, COLORADO,
A Municipal Corporation
By: t• iht�
City anger
ATTEST:
City Clerk
APPROVED AS TO FORM:
AA A-A � I �'Lo
A istant City Attorney
PRIDEMARK DEVELOPMENT CO., LLC
C ,
By: 2?
Michael A. Messina, Manager
- 2of2 -
EXHIBIT "A" TO SECOND ADDENDUM
OPTION'AGRF_.EMENT OF PURCHASE AND SALE OF REAL PROPERTY
THIS AGREEMENT is made and entered into ,
by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, whose
address is 300 LaPorte Avenue, Fort Collins, Colorado 80521, (hereinafter referred to as "the
Seller"), and PRIDEMARK DEVELOPMENT COMPANY, LLC, whose address is 1070I
Me-1 d Dnye"Sutfe 4063Northglenn .Colorado 80234 8791 Wolff^-..- *.Tesftninster, ^-'---'-
89939, (hereinafter referred to as "the Purchaser").
WITNESSETH :
For and in consideration of the promises of the Purchaser to purchase and of the Seller to
sell the real property hereinafter described, and other good and valuable consideration, the receipt
and adequacy of which are hereby confessed and acknowledged, the parties hereto agree to be
legally bound whereby the Seller agrees to sell and the Purchaser agrees to purchase the said real
property on the terms and conditions hereinafter set forth.
1. Description of Real Propem. The real estate which is the subject matter of this
Agreement, is that certain parcel of real property located in the County of Larimer, State of
Colorado, constituting approximately one hundred seventy (170) acres of land located in a part
of Section 13, Township 6 North, Range 69 West of the Sixth P.M., which parcel is depicted as
the land to be developed on the Provincetowne Concept Plan which is attached hereto as Exhibit
"A" and incorporated herein by this reference and does not include the approximately one
hundred sixty (160) acres of land designated as the "Public Open Space" on the said Plan. Said
real property shall be hereinafter referred to as "the Property." The legal description of the
Property , shall be
the legal description agreed upon by the Seller and the Purchaser as verified by the survey to be
conducted pursuant to paragraph 5.A. below. The Property shall include any fences, buildings,
landscaping, irrigation systems, and other improvements now located thereon, including all
fixtures of a permanent nature. The Property shall also include all water taps, gas taps and sewer
taps belonging or in any way appertaining thereto. In addition, the Property shall include all of
the Seller's right, title and interest in and to easements, rights-of-way, future interests and rights
to the same belonging and inuring to the benefit of the Property, and in and to all strips and gores
of land lying between the Property and adjoining property or streets, roads or highways, open or
proposed. However, sale of the Property does not include any adjudicated water, ditch or
reservoir rights that the Seller may own.
2. Onti6ri and Method of Conveyance.
A. The Seller hereby grants o the Purchaser,"afoi a term-b6girming at 12:01'a.m.""on
_. .
June'1,1996;and ending at 12 01 a m on"January 1;2002, the option to purchase
any or fail of theProperty.' This option may be exercised by the Purchaser at one
time for all of the Property or it"may,be exercised as a series of options for only
specified portions or me'Propeerty To
'exercise this optionz the"Porch
giv:a�o the Seller a't leastiitietyy'�ljpnor wnften notice ofthe)'uichaser..s
uitentto pur""chase alldor any portionnfthe PropeiRySuch notice sfiall contain a
sued epal�yT"descrip if n of thel'Provei`fy'�or�,ofy:�the s ecifi3. orGon of the
Pro o""-hich�he�°' tio"ts m xercised an3:shall sf to bYhe`aate o"nhicti
e=transacftonco suc o e s o, a 1"o's3 w "c'h' c7o`sing�s �n'3t
beJles"sr ah nstxt60) days o _ or_�fhan�" nme�tY 90v`cia;rafter eda a _,c
nocP�� Diveriiowever; c "speciifed ortion of the Prope -
be""liinid. o, ar�ce��wiv5tc , . _ gu thawMo
isn'of thefiePopewhi the
Gee"�aLt,conye o' tie�Grarirariti "�Jr on> anuar3997piiisuant" o;
2B��be owe or„w ch" atenttguou�oothei,�paicels luch'�weie:; ceviously
co:nvbye2i underins. e , o hthichvareparagry
:c'on—tigu""o ii s'to oneof"the main r ads
a_djaceiif fo the;Pr�per��such IIiatn"so'ads"ace Pro�vm lvenue,�"Bnttany Dnve
TrilbyRoad clS ema" `A`venue� In a3di6onti odeito keep this ophori m frill
fo=ceand"effecthePurc--haler must"ezercise his option to purchase at least 833
acres'of the Prirly at7east once more during'1997 and at least once duruig each
of'the;fo�llowmgy_ears'=1,��998;1999"2°2000 ,and"2001:�If fhe Purchaser,fails to so
exercise this option-for an' of theser uired nrchases, this A { ementshall lie
automatically terminated th parties shall bea released from all hfurther
obligations hereunder
B. Notwithstanding"the provisions'of"paragraph 2 A above, the'Purchaser shall
_..
purchase from the Seller on January 31; 1997; subject to the terns and conditions
of this Agreement, 28.33 acres of the Property for a total purchase price-of Three
Hundredx Thousand Dollars ($300,000.00), which purchase price shall be paid to
the Sellerrin accordance with the provisions:of paragraphs 4 B. and 4.C. below.
The specific 28 33 acres which the Purchaser shall purchase"on January 31, 1997,
shall'be specified by the Purchaser in.a written notice to the Seller on or before
December 1,'1996;
Ci: At] closing for all or any portion of the Property; such property,,
agrees to sell to the Purehaser and the Ptirel trehase-ft"n-the
Prepertrshall be conveyed by the Seller at the time of eles the Purchaser by
A-special warranty deed, free and clear of all liens and encumbrances, except and
subject to the following:
A-.Q) All easements and rights-of-way in place as of the date of this Agreement;
B-(ii) All easements, covenants, reservations, restrictions, rights-of-way, and
agreements of record as of the date of this Agreement;
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• E(iii) Any restrictions, reservations or exceptions contained in any United States
or State of Colorado patents of record;
iv All zoning and other governmental rules and regulations;
E7'M Statutory lien rights resulting from the inclusion of the Property in any
special taxing district or improvement district;
(vi) All oil, gas or other mineral reservations or exceptions of record as of the
date of this Agreement;
C7-(Vll) General property taxes and assessments for 1996 and all subsequent years;
and
1-1-.(viii) The reservation of easements and rights-of-way described in paragraph 3.
below,'if the porugri of theP;;operty being conveyed is encumbered'by_wthe
easements described m paragraph 3 A"- Blow or;will be encumbered by the
easement described in paragraph 3 B.ybelow.
3. Reservation of Easements.
• A. The Seller may reserve and except unto itself, and to its successors and assigns,
from the Property, or from any portion of the Property, all those easements and
rights-of-way to the City of Fort Collins affecting the Property, or any portion
thereof, that are currently of record.
B. The Seller may also reserve and except unto itself, and to its successors and
assigns, from the Property,or any portion thereof; a storm-drainage and spillway-
flow easement over and across the Property, or any portion thereof, which
easement shall be of such area and in such location as is determined by the Seller,
after consideration of the study described in paragraph 3.B.(i) below, to be
reasonably necessary in order to discharge stormwater and spillway overflow from
the Robert Benson Reservoir ("the Reservoir") across the Property, or any portion
thereof; for a 100-year storm and in order to direct such drainage and overflow
away from the Property,;oc�any,portion thereof, as much as is reasonably possible
under accepted engineering standards ("the Easement"). With respect to the
Easement, the parties hereto agree as follows:
(i) The Purchaser agrees to commission and pay for, in an amount not to
exceed Ten Thousand Dollars ($10,000.00), the cost of an engineering
study to be conducted to determine the various options available to .the
Seller to bring the Reservoir's dam into conformance with any requirements
. of the State Engineer and State law, to determine the improvements needed
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for the Easement under each option, and to establish the needed area and
location of the Easement for each option("the Study"). The Study shall be
conducted by a qualified engineer or engineering firm first approved by the
Seller, such approval not to be unreasonably withheld.
(ii) The Study shall be completed and made available to the Seller on or before
July 1, 1996.
(iii) On or before Septenm3er 1, 1996, after having had the
opportunity to review the Study, the Seller shall submit in writing to the
Purchaser, the option chosen from the Study by the Seller for the
improvements needed for the Reservoir dam and the Easement, and the
resulting proposed area and location of the Easement.
portion of the Property on whieh the Purehmer irftMs to build reside
desetiptien of the Property, as estftblished purseant to paragraph
of the Property undet this Agreement shaH be deeteased ateerdingly
purstiant to the pievisiers of paragraph 4.D. below.
(iv) In the event that the Seller chooses any option under the Study that calls for
the Reservoir's dam to be improved to standards other than those required
under State law for a jurisdictional dam, the Purchaser agrees to
commission and pay for the cost of the construction needed for the dam and
the Easement under such option chosen by the Seller, in an amount not to
exceed Fifty Thousand Dollars ($50,000.00). In such event, the Purchaser,
or its contractor, shall have reasonable access to any real property owned
by the Seller as is reasonably needed by the Purchaser, or by its contractor,
to make such improvements. If, however, the Seller chooses an option
under the Study that calls for the Reservoir's dam to be improved to the
State standards for a jurisdictional dam, the Purchaser shall have no
responsibility or obligation to commission or pay for the cost of the needed
improvements under such option.
4. Purchase Price.
Hundred Thousand U.S. Dal4ars 6$11809"W9.09), an.d shall be payable by ehe-,Nrehftser 'to
Seller as follows:
A: The_Seller and the Purchaser agree that the purchase'pric11-1-1 1e'ofrthe Property, or of
_ .1 �. 11 _,
any,portion thereof;shall be; on date of"closing of the:purchase of such
Property or any portion thereof, Ten Thousand Five Hundred Eighty-eight and
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24/100 U.S*
Dollar_ s.($10 588 24)per�acre, However begmniiig on Fetiivary l
1997, th>s per acre`pncershall increase a3 the rate of seven and,orie half percent"(7
annum' As:ezampldsthe per=acre;price'-shall°be"as follows on the
foll wing posse) le clo"sing,da es: •(1)TAugusl 1; 1997 10,985 30 per a 22
1vIarch '°1998 $11 382 36 per acre' T( ngusf1 1998 "$11 779:42 er.. crw
an�)741azch�. 999-- 12;1�6"_48 per"""=acie'"
AB. The sum of Sixty Thousand U.S. Dollars ($60,000.00), in the form of the
Purchaser's fully executed earnest money promissory note, payable to the Seller,
shall be delivered to the Seller by the Purchaser upon the execution of this
Agreement. The promissory note shall bear no interest and shall be due and
payable in full by the Purchaser to the Seller at the time of closing as provided in
paragraph 2 Bvabov&4.-belew. The form of the earnest money promissory note
shall be that of the Colorado Real Estate Commission approved Bradford
Publishing Form No. EMP80-2-81.
$C. The sum of Two Hundred Forty Thousand U.S. Dollars ($240,000.00), subject to
closing costs and customary prorations, as hereinafter provided, shall be payable
in cash oCcertified funds by the Purchaser to the Seller at the time of closing as
provided in paragraph 2.B.—abbvd-6 4vIew.
G. The balanee of the r
pietatierts, as hereinafter provided, shall be payable by the Purehaser exeeuting
and delivering to the Seller at the firne of elosing its geed and suffleient pren-Assary
note in said amount ftreirftfter refened to as uthe Premissary l
Said prii�al and irftrest shall be payable as follows! in one (1) instaliffle
payment of prin�&I mid ifftrest of Three Hundred Thettswid Doilars
($300,990.09) dee one (1) year from the daft of mid thereafter in eight (8)
Promissory Note shall be non reeatitse and shaR bear interest at the rate of severi.
paid.�fbeusand Nine Hundred Thirty five and 39490 DeHars ($192,935.39), with the
first semi armua4 payment &w six (6) months aRer the date of fiff Q t -i"-q O-A I I-M P fl-t.
payment, and like payments shali be made every six (6) menths thereaker untH the
fifth anniversary date of the elesing of hhis tramnetion, at whieh tifne all unpaid
1 mtd interest Aftil be due and payable in fn4l, if not sooner
The Promissory Note shall expressly reserve to the Nrehaser the privilege a
prepayment in whole or part at wky th-ne witheet penalty. Amy prepayments shall
be deerned to have been made on aeecent of the next meming insWhmenf paynte
of prineipal and interest, with sueh p.epayment first eredited against any aeerded
. interest.
- Sof17 -
\ _ AA •••
n• • • I
•• •I•
\ ••
_ _ I
. . .. ...- ..._
• MM appraiser hired by hhe GfarAee provided, however, 01W the Grantor
and interest dite.
Rt addition to the foregoing, A L00WL.Y NW.e ..j the Deed of Trust shall be in a fe
• to obtain partial releases sM! be applied to the next payment of prineipti
D.
O 11er d the TL.-..Las. that
the
t ♦ 1 eh provided
in this
and the sum evideneed and seemed by the Promissory Nete and the Deed of Trus
deseribed in paragiaph 4.G. above, shall be inereased or deerettsed, as the ease
nember of aeres sM! be established putsuant to the survey to be eendueted
ptnsuant to paragraph S.A. below and ptwstiant to the parties' agreeme
eeneetning the legal deseription of the Property.
5. Survey and Title Insurance.
A. The Purchaser, at its expense, shall obtain a survey of the Property certified by a
licensed Colorado surveyor which shall legally describe the approximately 170 acres of the
Property tfiat will potentially„be te-be-conveyed by the Seller to the Purchaser pursuant to this
Agreement. On or before October 15 May 31, 1996, the Purchaser shall provide to the Seller a
copy of such survey and the Seller shall have fifteen (15) days thereafter in which to approve the
legal description to be used in the said special warranty deed. In the event that the Seller and the
Purchaser cannot agree upon a legal description of the Property potentially to be conveyed under
this Agreement, this Agreement shall be automatically terminated and all parties shall be released
from all obligations hereunder and any monies theretofore paid to the Seller by the Purchaser shall
be refunded in full to the Purchaser and any original promissory notes theretofore delivered to the
Seller by the Purchaser shall be returned to the Purchaser.
B. The Purchaser, at its own expense, shall provide its own title insurance'for each
transaction�"under this Agreement. The Seller shall be under no obligation to provide title
a .- _
insurance in s"ucfiM`dtit-transactions. The title insurance commitments obtained by the Purchaser
shall show marketable title ih7the Selldf to the Property, or to the portion of,the-Property to be
conveyed - `L�subject only to those items described in paragraph 2.0 above. In the
event any sncksaid-title insurance commitment discloses any,title defects subject to which the
Purchaser need not take title, the Seller may, at its option, cure such defect within a reasonable
period of time, at its expense, without in any other manner affecting the teams of this Agreement.
The Seller also agrees to cooperate with the Purchaser in requesting the title company to remove
• any mechanic's lien exceptions that may be contained in the title commitment. In the event said
- 7of17 -
1
title insurance company refuses to omit any title defect or objection prior to the closing' fany
potential"transach6ri under this"�Agreeinent tlxerthe Purchaser shall, at its election, have the right
to accept such title as the Seller is willing to convey, without any reduction of the purchase price;
or the Purchaser shall have the right to rescind this Agreement and, upon such rescission pursuant
to this paragraph, the Purehmer shaH be erAided ._ the __ _ of the antourh of fneney theretofore
paid or of the originMs of prefrAssery wtes theretefere delivered to the Seller or its agent; Mr-4
upen se+rpayn ter*-this Agreement shall be null and void and of no further effect, and all parties
to this Agreement shall be released from all obligations hereunder F"In addition�f suchres"cin3ed
t ansac�ion is the uuttal tr'an`s'action con e"latedTund r patagraph 2_B Hof this'Agrq ept e
Purchase s�11"be a itled o the iirnro-f its eaz s �money�promtssory,note delivered fo the
Sellerp-? urs-ti 'to aragra "4`B'ab,�,61
G. On or befm the date of elasing of thig transaetion, the NLehaser shall deliver to
dhe n ll n. +- + sole expense, -..ort
,
a _ibed in _ ______h5 n above. oft:_ title
:__ sans eenuniftnent shall
Trust,show rmrketable title in the Seller to thm portion of the Pieperty to be seettred by the De
stibjeet erAy to these item set forth in paragraph 2. above. At elesing, the eest a
mortgagee's tide peliey to be isseed tinder said mortgagee's title eenunienteW sMI be paid by the
n..__tiaser.
I�[ILT133C�
6. Closine.
A The closing;of all transactions under this"Agreement shall ybe held in the Fort
Collins City-Attorney'syOffice located at 300 LaPorte Avenue, Fort Collins,
Colorado, or at such"other location as the parties may agree upon. The date of
such closmgsshall be'pursuant to the applicable provisions of paragraphs 2.A. and
2 i. be above or"on such other date'as the parties may agree upon. 'The time of such
closins s ghall 'at 2.00 p m on the applicable closing date for that transaction or
at such other time as the parties may agree upon.
A. The elasing of this ffamaefien shall be held on or before Deeember 3 1, 1996, at
parties may agree upon.
B. The following shall occur at each closing-under this-Agreement, each being a
condition precedent to the others and all being considered as occurring
simultaneously:
(i) The Seller shall execute, have notarized, and have delivered to the
Purchaser a special warranty deed, conveying title to the Property,`or
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specified';-portion`,thereof; to the Purchaser in accordance with the
provisions of this Agreement;
(ii) The Seller shall execute and deliver to the Purchaser an affidavit stating
that the Seller is not a foreign person, a foreign corporation, a foreign
partnership, a foreign trust, or foreign estate, (as those terms are defined
in the Internal Revenue Code and Income Tax Regulations);
(iii) The Seller shall execute Certificates as to Taxpayer Identification Number
as required by law;
(iv) The Purchaser shall deliver to the Seller the certified funds required by
paragraph 4. above;
(v) The Seller and the Purchaser shall each execute and deliver Settlement
Statements, showing adjustments in the payment of the costs of the closing;
(vi) The Purchaser shall execute a Real Property Transfer Declaration as
required by Colorado law; and
(vii) Each parry shall deliver to the other such other documents, certificates, and
the like as may be required herein or as may be necessary or helpful to
carry out each parry's obligations under this Agreement.
7. Possession. With respect to'-each portion of the Property conveyed to the Purchaser
under this;Agreement; Pooseession of siich �P-property shall be delivered to the Purchaser
immediately following the closing.
8. Proration. Real property taxes and assessments and similar expenses, in
accordance with local practice, shall be prorated as of the date of closing for'each transaction
under this Agreement.
9. Remedies on Default. If any payment due hereunder is not paid, honored or
tendered when due, or if any other obligation hereunder is not performed as herein provided, there
shall be the following remedies:
A. If the Purchaser is in default, then the Seller may elect to treat this Agreement as
terminated, in which case all payments and things of value received hereunder
from the Purchaser shall be forfeited by the Purchaser and retained by the Seller,
and the Seller may recover such damages as may be proper, or the Seller may elect
to treat this Agreement as being in full force and effect, and the Seller shall have
the right to an action for specific performance or damages, or both.
9of17 -
B. If the Seller is in default, the Purchaser may elect to treat this Agreement as
terminated, in which case all payments and things of value received hereunder by
the Seller shall be returned to the Purchaser, and the Purchaser may recover such
damages as may be proper, or the Purchaser may elect to treat this Agreement as
being in full force and effect and the Purchaser shall have the right to an action for
specific performance or damages, or both.
10. A or='s Fees and Costs. In the event either of the respective parties hereto shall
default in any of their covenants or obligations herein provided and the party not in default
commences legal or equitable action against the defaulting party, the defaulting party expressly
agrees to pay all of the non-defaulting party's reasonable expenses of said litigation, including a
reasonable sum for aorney's fees.
11. Governing La It is expressly understood and agreed by and between the parties
hereto that this Agreement is made in and shall be construed and interpreted in accordance with
the laws of the State of Colorado.
12. Notices. Any notice or other communication given by either party hereto to the
other relating to this Agreement shall be hand delivered or sent by registered or certified mail,
return receipt requested, addressed to such other parry at their respective addresses as set forth
below; and such notice or other communication shall be deemed given when so hand delivered
or when so mailed:
If to Seller:
Alan Krcmarik, Finance Director
Finance Department
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to:
John Duval, Assistant City Attorney
City Attorney's Office
City of Fort Collins
P. O. Box 580
Fort Collins, CO 80522
10 of 17 -
. If to Purchaser:
James W. Harmon
PrideMark Development Company
10701;Melodp Dnve Siufe 406
Northglenn O 80234
8791 Wolff L�&wt
gym=
With a copy to:
Ronald A. Milzer, Esq.
Gelt, Fleishman& Sterling, P.C.
1600 Broadway, Suite 2600
Denver, CO 80202-4926
13. AS ienment. This Agreement shall not be assigned by either of the parties hereto
without the prior written consent of the other party, except that the Purchaser may assign this
Agreement to an entity related to the Purchaser upon prior written notice to the Seller.
. 14. Maintenance of the Property. The Seller shall keep, or cause to be kept, the
Property, or any portion thereof, in its condition as of the date hereof until the closing date of its
conveyance under,this Agreement-04tirattsttetien, subject to normal wear-and-tear and seasonal
changes, and agrees not to commit or permit waste thereon.
15. Casualty. In the event that the Property is substantially damaged by fire, flood or
casualty between the date of this Agreement and the date of closing of title, this Agreement may,
at the option of the Purchaser, be declared null and void and of no further force or effect; and all
the parties to this Agreement shall be released from all obligations hereunder; and the Purchaser
shall be entitled to a refund of the amount of money, if any, theretofore paid to the Seller.
16. Headings. Paragraph headings used herein are for convenience of reference and
shall in no way define, limit or prescribe the scope or intent of any provision under this
Agreement.
17. Terms Survive Closing. To the extent necessary to carry out all of the terms and
provisions hereof, the said terms, obligations and rights set forth herein shall be deemed not
terminated at the time of closing, nor shall they be merged with the various documents executed
and delivered at such time.
18. Construction. Words of the masculine gender shall include the feminine and neuter
• gender and when the sentence so indicates, words of the neuter gender shall refer to any gender.
11 of 17 -
Words in the singular shall include the plural and vice versa. This Agreement shall be construed
according to its fair meaning, and as if prepared by both parties hereto, and shall be deemed to
be and contain the entire understanding and agreement between the parties hereto. There shall
be deemed to be no other terms, conditions, promises, understandings, statements or
representations, express or implied, concerning this Agreement unless set forth in writing and
signed by both parties hereto.
19. Time is of the Essence. It is agreed that time shall be of the essence to this
Agreement and each and every provision hereof.
20. Right to Inspect. The Purchaser shall be permitted to fully inspect the Property at
any time up to and including"January 31' 1997
above ("the Inspection Period"). The Seller agrees that the Purchaser and its agents may have
reasonable access to the Property to conduct tests and/or inspections, at the Purchaser's expense,
concerning the presence of environmental hazardous waste, underground storage tanks, or other
environmental conditions which could expose the Purchaser to future liability for damages or
clean-up expenses. In the event the Purchaser's exposure to such damages or expenses is certified
by a qualified environmental engineer to be reasonably likely and such damages or expenses are
reasonably estimated by the engineer to exceed Five Thousand Dollars ($5,000.00), the Purchaser
may, upon written notice to the Seller specifying such hazard and cost, terminate this Agreement.
In the event of such termination, the Purchaser's earnest money promissory note delivered to the
Seller depesit-paid-pursuant to paragraph 4.-AB. above shall be returned to the Purchaser4t.
Notwithstanding anything contained herein to the contrary, the Purchaser shall have the
term of the Inspection Period within which to review the Property and any and all matters related
to the purchase, development, sale, and/or financing of the Property or homes or other
improvements thereon, including without limitation, survey, title matters, governmental
requirements, and other matters which might affect the feasibility of the Property for the
Purchaser's anticipated development thereof, to determine whether or not the Purchaser desires
to proceed with the purchase of the Property from the Seller. In the event that the Purchaser
shall, within the Inspection Period, give written notice to the Seller of the Purchaser's decision
not to purchase the Property for any reason, then this Agreement shall be null and void and of no
effect and the earnest money(promrssory'iiote delivered to-the Seller pursuant to paragraph 4.3.'
w
above any-depesits-shall be returned to the Purchaser, and all parties shall be released from any
further obligations hereunder.
21. Contingencies.
A. This Agreement is hereby made expressly contingent upon the City Council of the
City of Fort Collins (hereinafter referred to as "the Council") approving this Agreement by
ordinance, which ordinance must be passed by the Council on second reading on or before April
16, 1996, and must become law ten (10) days thereafter as provided in the City Charter. If the
Council does not pass such an ordinance on second reading on or before April 16, 1996, or for
- 12of17 -
any reason it does not become law ten (10) days thereafter as provided in the City Charter, this
Agreement shall be automatically terminated and both;ali--parties shall be released from all
obligations hereunder and any monies theretofore paid shall be refunded in full to the Purchaser
and original promissory notes theretofore delivered to the Seller by the Purchaser shall be returned
to the Purchaser.
B. This Agreement is hereby made expressly contingent upon the Purchaser obtaining
third-party financing; for my initial or subsequent purehase of any part of the Preperef n terms
and conditions prevailing for similar transactions at the time of closing;foralie t„ nitial; use
of tha�rtioh of the:Pione yrt to be: pursuant to paaza t�ap7f M;3 above. The Purchaser
shall use due diligence and act in good faith in applying for, obtaining, and accepting such
financing. If such financing is unavailable at the time of closing;fo"r,"%such portion of tfieroper ,
this Agreement shall be automatically terminated and both,all-parties shall be released from all
obligations hereunder and the earnest money*pronussorynote deh5ered
paid to the Seller by the Purchaser',"--pursuant to paragr -ih 4;B above shall be returned refueled
in-€al-to the Purchaser.
22. Binding Effec . This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
23. "AS-IS" Nature of Sale. The Purchaser acknowledges and agrees that the Seller
has not made, does not make and specifically negates and disclaims any representations,
warranties, promises, covenants, agreements or guarantees of any kind or character whatsoever,
whether express or implied, oral or written, past, present or future, of, as to, concerning or with
respect to the Property and: (a) the value, nature, quality or condition of the Property, including,
without limitation, the water, soil and geology of the Property; (b) the income to be derived from
the Property; (c) the suitability of the Property for any and all activities and uses which Purchaser
may conduct thereon; (d) compliance by the Property, or of its operation and use, with all
applicable statutes, laws, ordinances, rules or regulations of any governmental authority or body
having jurisdiction; (e) the habitability, merchantability, marketability, profitability or fitness for
a particular purpose of the Property; (f) the manner or quality of the construction or materials,
if any, incorporated into the Property; (g) the manner, quality, state of repair or lack of repair of
the Property; (h) the amount of land that constitutes the Property (i.e., the number of square feet
or acres being conveyed); or (i) any other matter with respect to the Property, and specifically,
that Seller has not made, does not make and specifically disclaims any representations regarding
compliance with any environmental protection, pollution or land use laws, rules, regulations,
orders or requirements, including solid waste, as defined by the U.S. Environmental Protection
Agency regulations at 40 C.F.R., Part 261, or the disposal or existence, in or on the Property,
of any hazardous substance, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder.
Purchaser further acknowledges and agrees that having been given the opportunity to inspect the
Property, the Purchaser is relying solely on its own investigation of the Property and not on any
information provided or to be provided by the Seller. The Purchaser further acknowledges and
- 13of17 -
agrees that any information provided or to be provided with respect to the Property was obtained
from a variety of sources and that the Seller has not made any independent investigation or
verification of such information and makes no representations as to the accuracy or completeness
of such information. The Purchaser agrees that the Seller is not liable or bound in any manner
by any verbal or written statements, representations or information pertaining to the Property, or
the operation thereof, furnished by any real estate broker, agent, employee, servant, or other
person representing or claiming to represent the Seller. The Purchaser further acknowledges and
agrees that to the maximum extent permitted by law, the sale of the Property as provided for
herein is made on an "AS IS" condition and basis with all faults. It is understood and agreed that
the purchase price has been adjusted by the Purchaser to reflect that all of the Property is sold by
the Seller and purchased by the Purchaser subject to the foregoing.
24. Affordable Housing ObligatiorL. The Purchaser agrees that when it applies to the
City of Fort Collins for approval of the Purchaser's intended development of the Property,'or any
portron3heceof that its application or applications-for development shall contain a proposal to
build as affordable housing units at least thirty percent (30%) of all residential units proposed to
be constructed under the Purchaser's development proposal. For purposes of this Agreement, an
affordable housing unit shall be deemed to mean residential units which are available for rent or
purchase on terms which would be affordable to individuals earning eighty percent (80%) or less
of the median family income, as adjusted for family size, of residents in the City of Fort Collins,
so that they can either purchase or rent a residential unit and not pay more than thirty percent
(30%) of their gross income for housing costs (including utilities).
The Purchaser agrees that in any the-development agreement that it enters into with the
City of Fort Collins concerning the development of the Property, or.any portion thereof ("the
Development Agreement"), that it will obligate itself to build such percentage of affordable
housing units. The Purchaser shall also agree in the Development Agreement that not less than
two-thirds (2/3) of all the affordable housing units it builds in the development shall be restricted
by covenant, deed, or contract to remain affordable housing for at least twenty-five (25) years
from the date each such unit is certified by the City of Fort Collins for occupancy. With respect
to the remaining one-third (1/3) of the affordable housing units to be built, the Purchaser shall also
agree in the Development Agreement that such units shall be restricted by covenant, deed, or
contract to remain affordable housing for at least twenty-five (25) years from the date each such
unit is certified by the City of Fort Collins for occupancy, provided, however, that some
reasonable form of third-party financing is available for such affordable housing units. If such
third-parry financing is not available, the remaining one-third (1/3) of affordable housing units to
be built shall be restricted by covenant, deed, or contract to remain affordable housing for at least
five (5) years. In the Development Agreement, the Purchaser shall further agree that the City of
Fort Collins shall not be obligated to issue more than two (2) certificates of occupancy for non-
affordable housing units that have been constructed for every one (1) certificate of occupancy
issued for an affordable housing unit constructed. For example, if two certificates of occupancy
have been issued for two affordable housing units that have been built, the Purchaser shall be
entitled to receive up to four (4) certificates of occupancy for non-affordable housing units that
- 14 of 17 -
have been built. Also, if the Purchaser receives one certificate of occupancy for one multi-family
unit of affordable housing, the Purchaser shall be deemed under the dDevelopment aAgreement
to have received one certificate of occupancy for an affordable housing unit for each separate,
residential unit contained in such multi-family unit. For example, if one multi-family unit includes
ten apartments and only one certificate of occupancy has been issued for the one multi-family unit,
the Purchaser shall be deemed to have received ten separate certificates of occupancy for
affordable housing units for purposes of calculating the number of certificates of occupancy the
Purchaser is entitled to receive under the dDevelopment aAgreement for non-affordable housing
units.
Notwithstanding the foregoing, the Purchaser acknowledges and agrees that it shall not be
entitled to receive any certificate of occupancy for either a non-affordable housing unit or an
affordable housing unit except to the extent that all the requirements under the Fort Collins City
Code regarding the issuance of a certificate of occupancy have been complied with by the
Purchaser for the housing unit constructed for which the specific certificate of occupancy is being
requested.
In order to guarantee that the affordable housing units to be built in accordance with this
paragraph 24. are initially sold or rented as affordable units and remain affordable for the
applicable time periods required above, the Development Agreement shall provide that before the
Seller will be required to issue a certificate of occupancy for any affordable housing unit built on
. the Property, that the Seller must have first approved the type and the terms of the covenant, deed
or contract restrictions used or to be used for such affordable housing unit, which approval shall
not be unreasonably withheld. Provided, however, that the Seller may withhold its approval of
a covenant, deed or contract restriction and not issue the requested certificate of occupancy if such
restriction does not reasonably guarantee that the particular affordable housing unit will remain
affordable for the time period required by this paragraph 24.
25. ftorting of Development Data and Information. The Purchaser acknowledges that
one of the Seller's primary goals in selling the Property is to sell it to a purchaser that will
develop the Property as an affordable housing demonstration project so that the Seller can use the
project to collect various data and information that the Seller can then use to evaluate many of its
current development policies and standards, particularly those that relate to development of
affordable housing. To accomplish this, the Purchaser agrees to provide the Seller with a separate
report with respect to each phase of the development of the Property, which report shall contain
the hereinafter described data and information. Each report shall be provided to the Seller by the
Purchaser at the time of the Purchaser's final PUD submittal of-submittals-to the Seller for each
phase of the Property's development. Each report shall contain the following data and information
in reasonably sufficient detail to enable the Seller to conduct its intended evaluation: (1) itemized
breakdown of the Purchaser's estimated infrastructure and engineering costs associated with
developing buildable lots so that the cost impacts of alternative development standards can be
evaluated; (2) itemized breakdown of the Purchaser's estimated dwelling unit costs so that the cost
impacts of alternative building code requirements can be evaluated; (3) itemized breakdown of the
• - 15of17 -
Purchaser's legal, planning and other consulting costs associated with that particular phase of the
project so that the cost impacts of the Seller's various development review requirements can be
evaluated; (4) itemized breakdown of the Purchaser's plan review fees, plant investment fees, and
all other development impact fees for that particular phase of the development that are charged
by the Seller, other governmental entities, and private utilities so that their impact on development
can be evaluated; (5)describe the terms and conditions of any development financing that has been
obtained or will be obtained in connection with the particular development phase so that the cost
impacts of various financing methods concerning the proposed housing can be evaluated; and (6)
such other data and information as the Seller may reasonably request and reasonably need in
connection with its evaluation of its applicable development policies and standards.
26. Memorandum for Recording. At ry closing o a trarisactton=under�thi§
Amen n, the Seller and the Purchaser shall execute for recording in the records of the Larimer
County Clerk and Recorder, a memorandum of this Agreementconcein_mg the Properry'or portion
of tlfd j op—rpy cohveyed in such transaction. Such memorandum shall evidence the Purchaser's
continuing covenants and obligations to the Seller under this Agreement, all of which covenants
and obligations shall survive the closing and the delivery of the deed under this Agreement, and
shall be deemed to run with the Property or portion of the Propei y conveyed in the particular
transaction. In lieu of such memorandum or memoranda, this Agreement may be recorded by the
Seller to evidence such covenants and obligations.
27. No Brokers. Each parry represents to the other that it has not authorized any
broker or finder to act on its behalf in connection with the sale and purchase of the Property, or
any portion:athereof and that such parry has not dealt with any broker or finder purporting to act
on behalf of any such parry. Each party hereto agrees to indemnify and hold harmless the other
party from and against any and all losses, liens, claims, judgments, liabilities, costs, expenses,
or damages (including reasonable attorneys fees and court costs) of any kind or character arising
out of or resulting from, any agreement, arrangement, or understanding alleged to have been made
by such parry or on its behalf with any broker or finder in connection with this Agreement or the
transaction contemplated hereby. Notwithstanding anything to the contrary contained herein, the
provisions of this paragraph shall survive the closing of this transaction or any termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first above written.
SELLER:
THE CITY OF FORT COLLINS, COLORADO
A Municipal Corporation
By:
City Manager
- 16of17 -
ATTEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
PURCHASER:
PRIDEMARK DEVELOPMENT CO., LLC
By:
Michael A. Messina, Manager
- 17of17 -
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EXHIBIT E TO CITY STAFF'S PR9VINCEP0WE APPEAL MEMO
FOURTH ADDENDUM TO AGREEMENT OF
PURCHASE AND SALE OF REAL PROPERTY
THIS FOURTH ADDENDUM is made and entered into this 2j day of November,
1997, by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation,
whose address is 300 LaPorte Avenue, Fort Collins, Colorado 80521 (hereinafter referred to as
"the Seller"), and PRIDEMARK DEVELOPMENT COMPANY, LLC, whose address is 10701
Melody Drive, Suite 406, Northglenn, Colorado 80234 (hereinafter referred to as "the
Purchaser").
WITNESSETH :
WHEREAS, the Seller and the Purchaser have previously entered into that certain
"Agreement of Purchase and Sale of Real Property" dated April 2, 1996 (hereinafter referred to
as "the Agreement"); and
WHEREAS, the Seller and the Purchaser have also previously entered into that certain
"First Addendum to Agreement of Purchase and Sale of Real Property" dated April 12, 1996
(hereinafter referred to as "the First Addendum"); and
WHEREAS, the First Addendum was entered into in order to add a paragraph 27. to the
Agreement which paragraph provides that the Seller could elect to restructure this transaction as
an option rather than as a purchase; and
WHEREAS, pursuant to the First Addendum, the Seller elected to restructure this
transaction as an option rather than as a purchase and, as a result, entered into Purchaser
the Second Addendum to Agreement of Purchase and Sale of Real Property" dated August 26,
1996 (hereinafter referred to as "the Second Addendum"); and
WHEREAS, the Second Addendum restructured this transaction as an option agreement
by the parties amending the Agreement and renaming it the "Option Agreement of Purchase and
Sale of Real Property," which is attached as Exhibit "A" to the Second Addendurn., ;hereinafter
referred to as "the Option Agreement"); and
WHEREAS, subsequent to entering into the Second Addendum, the Purch<:-�r requested
Seller to extend the closing date of purchase of the first parcel property in this transaction as
provided in paragraph 2.13. of the Option Agreement from January 31, 1997 to November 30,
1997, in order to give the Purchaser additional time to obtain the necessary third party fnai:cing
for this transaction, which is a contingency in paragraph 21.13. of the Option Agreemei,r; and
WHEREAS, the Seller and the Purchaser entered into that certain "Third Addendum to
Agreement of Purchase and Sale of Real Property" dated January 30, 1997 (the "Third
Addendum") which extended from January 31, 1997, to November 30, 1997, the closing date for
the Purchaser's purchase of the first parcel of the Property in this transaction as provided in
Paragraph 2.B. of the Option Agreement; and
WHEREAS, this transaction was approved by the Fort Collins City Council in Ordinance
No. 41, 1996, and in Section 5 of said Ordinance the Council specifically provides that the City
Manager is authorized to execute future addenda to the Agreement to amend any of its provisions
if such amendments are, in the judgment of the City Manager, reasonably necessary to
consummate the transaction in accordance with the terms and conditions contained in the
Ordinance or to facilitate the development of the Property which is the subject of the Option
Agreement as a demonstration project in which at least thirty percent(30%) of all residential units
built in the development will be affordable housing; and
WHEREAS, the Purchaser has advised the Seller that for various reasons, including its
inability to obtain necessary third-parry financing, which is a contingency in paragraph 21.B. of
the Option Agreement, that the Purchaser desires a second extension of time for the closing on
the purchase of the first parcel of Property in this transaction as provided in paragraph 2.B. of the
Option Agreement; and
WHEREAS, the Purchaser has therefore requested the Seller to enter into this Fourth
Addendum to amend the Option Agreement by extending the closing date for the purchase of the
first parcel of the Property under paragraph 2.B. of the Option Agreement from November 30,
1997 to December 18, 1997, and to make such other changes to the Option Agreement as may be
necessary to take into account the extension of this closing date; and
WHEREAS, the City Manager has reviewed the Purchaser's requested changes and finds
them to be reasonably necessary to consummate the sale of the Property in accordance with
Section 5. of Ordinance No. 41, 1996; and
WHEREAS, this Fourth Addendum represents the agreement of the parties concerning
these requested amendments to the Option Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree to amend the terms and conditions of the Option
Agreement as follows:
1. The Option Agreement is hereby amended as shown on the Option Agreement
attached hereto as Exhibit "A" and incorporated herein by reference. The Option Agreement
reflects these amendments by striking out those provisions of the Option Agreement which the
parties hereby agree are deleted from the Option Agreement and by red-lining (or shading) those
provisions of the Option Agreement which the parties hereby agree are added to the Option
Agreement.
- 2of3 -
2. All other terms and conditions of the Option Agreement shall remain unchanged
• and in full force and effect, except as expressly amended in this Fourth Addendum.
IN WITNESS WHEREOF, the parties hereto have executed this Fourth Addendum to
Agreement of Purchase and Sale of Real Property as of the day and year first above written.
THE CITY OF FORT COLLINS, COLORADO,
A Municipal Corporation
By: 0-0- -
Cit anager
ATTEST:
City Clerk
APPROVED AS TO FORM:
Vw
• Assi tant City Attorney
PRIDEMARK DEVELOPMENT CO., LLC
By:
Jafs J. Peigel, Manager
- 3of3 -
EXHIBIT "A" TO FOURTH ADDENDUM
OPTION AGREEMENT OF PURCHASE AND SALE OF REAL PROPERTY
THIS AGREEMENT is made and entered into by and between THE CITY OF FORT
COLLINS, COLORADO, a municipal corporation, whose address is 300 LaPorte Avenue, Fort
Collins, Colorado 80521 (hereinafter referred to as "the Seller"), and PRIDEMARK
DEVELOPMENT COMPANY, LLC, whose address is 10701 Melody Drive, Suite 406,
Northglenn, Colorado 80234 (hereinafter referred to as "the Purchaser").
WITNESSETH :
For and in consideration of the promises of the Purchaser to purchase and of the Seller to
sell the real property hereinafter described, and other good and valuable consideration, the receipt
and adequacy of which are hereby confessed and acknowledged, the parties hereto agree to be
legally bound whereby the Seller agrees to sell and the Purchaser agrees to purchase the said real
property on the terms and conditions hereinafter set forth.
1. Description of Real Pronertv. The real estate which is the subject matter of this
Agreement, is that certain parcel of real property located in the County of Larimer, State of
Colorado, constituting approximately one hundred seventy (170) acres of land located in a part of
Section 13, Township 6 North, Range 69 West of the Sixth P.M., which parcel is depicted as the
land to be developed on the Provincetowne Concept Plan which is attached hereto as Exhibit "A"
and incorporated herein by this reference and does not include the approximately one hundred
sixty (160) acres of land designated as the "Public Open Space" on the said Plan. Said real
property shall be hereinafter referred to as "the Property." The legal description of the Property
shall be the legal description agreed upon by the Seller and the Purchaser as verified by the survey
to be conducted pursuant to paragraph S.A. below. The Property shall include any fences,
buildings, landscaping, irrigation systems, and other improvements now located thereon, including
all fixtures of a permanent nature. The Property shall also include all water taps, gas taps and
sewer taps belonging or in any way appertaining thereto. In addition, the Property shall include
all of the Seller's right, title and interest in and to easements, rights-of-way, future interests and
rights to the same belonging and inuring to the benefit of the Property, and in and to all strips and
gores of land lying between the Property and adjoining property or streets, roads or highways,
open or proposed. However, sale of the Property does not include any adjudicated water, ditch
or reservoir rights that the Seller may own.
2. Option and Method of Conveyance.
A. The Seller hereby grants to the Purchaser, for a term beginning at 12:01 a.m. on
June 1, 1996, and ending at 12:01 a.m. on November 1. 2002, the option to
purchase any or all of the Property. This option may be exercised by the Purchaser
at one time for all of the Property or it may be exercised as a series of options for
. only specified portions of the Property. To exercise this option, the Purchaser shall
give to the Seller at least ninety (90) days prior written notice of the Purchaser's
intent to purchase all or any portion of the Property. Such notice shall contain a
surveyed legal description of the Property, or of the specified portion of the
Property, for which the option is being exercised, and shall state the date on which
the transaction concerning such Property is to be closed, which closing shall not
be less than sixty (60) days nor more than ninety (90) days after the date such
notice is given. Provided, however, such specified portion of the Property shall
be limited to parcels which are contiguous to that portion of the Property which the
Grantee will convey to the Grantor on Novernb.T40December"f, '8, 1997, pursuant
to paragraph 2.B. below, or which are contiguous to other parcels which were
previously conveyed under this Agreement, or which are contiguous to one of the
main roads adjacent to the Property (such main roads are Province Avenue,
Brittany Drive, Trilby Road, and Lemay Avenue). In addition, in order to keep
this option in full force and effect, the Purchaser must exercise this option to
purchase at least 28.33 acres of the Property at least once between November
MDec'"ember 19., 1997, and June 1, 1998, and at least once during each of the
following years: 1999, 2000, 2001, and 2002. If the Purchaser fails to so exercise
this option for any of these required purchases, this Agreement shall be
automatically terminated and both parties shall be released from all further
obligations hereunder.
B. Notwithstanding the provisions of paragraph 2.A. above, the Purchaser shall
purchase from the Seller on November-301)e6etnber 18. 1997, subject to the terms
and conditions of this Agreement, at`least 28.33 acres of the Property for a total
purchase price of Three Hundred Thousand Dollars ($300,000.00), which purchase
price shall be paid to the Seller in accordance with the provisions of paragraphs
4.B. and 4.C. below. The specific 28.33 acres which the Purchaser shall purchase
on ?4ovember39D'6cFmbe ='18, 1997, shall be specified by the Purchaser in a
written notice to the Seller on or before 9eteber+Noyembei"30, 1997.
C. At any closing for all or any portion of the Property, such property shall be
conveyed by the Seller to the Purchaser by a special warranty deed, free and clear
of all liens and encumbrances, except and subject to the following:
(i) All easements and rights-of-way in place as of the date of this Agreement;
(ii) All easements, covenants, reservations, restrictions, rights-of-way, and
agreements of record as of the date of this Agreement;
(iii) Any restrictions, reservations or exceptions contained in any United States
or State of Colorado patents of record;
(iv) All zoning and other governmental rules and regulations;
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• (v) Statutory lien rights resulting from the inclusion of the Property in any
special taxing district or improvement district;
(vi) All oil, gas or other mineral reservations or exceptions of record as of the
date of this Agreement;
(vii) General property taxes and assessments for 1997 and all subsequent years;
and
(viii) The reservation of easements and rights-of-way described in paragraph 3.
below, if the portion of the Property being conveyed is encumbered by the
easements described in paragraph 3.A. below or will be encumbered by the
easement described in paragraph 3.B. below.
3. Reservation of Easements.
A. The Seller may reserve and except unto itself, and to its successors and assigns,
from the Property, or from any portion of the Property, all those easements and
rights-of-way to the City of Fort Collins affecting the Property, or any portion
thereof, that are currently of record.
B. The Seller may also reserve and except unto itself, and to its successors and
assigns, from the Property, or any portion thereof, a storm-drainage and spillway-
flow easement over and across the Property, or any portion thereof, which
easement shall be of such area and in such location as is determined by the Seller,
after consideration of the study described in paragraph 3.B.(i) below, to be
reasonably necessary in order to discharge stormwater and spillway overflow from
the Robert Benson Reservoir ("the Reservoir") across the Property, or any portion
thereof, for a 100-year storm and in order to direct such drainage and overflow
away from the Property, or any portion thereof, as much as is reasonably possible
under accepted engineering standards ("the Easement"). With respect to the
Easement, the parties hereto agree as follows:
(i) The Purchaser agrees to commission and pay for, in an amount not to
exceed Ten Thousand Dollars ($10,000.00), the cost of an engineering
study to be conducted to determine the various options available to the
Seller to bring the Reservoir's dam into conformance with any requirements
of the State Engineer and State law, to determine the improvements needed
for the Easement under each option, and to establish the needed area and
location of the Easement for each option ("the Study"). The Study shall be
conducted by a qualified engineer or engineering firm first approved by the
Seller, such approval not to be unreasonably withheld.
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(ii) The Study shall be completed and made available to the Seller on or before
July 1, 1996.
(iii) On or before Sepxmba 13, N96-�°'�e``t after having had the
opportunity to review the Study, the Seller shall submit in writing to the
Purchaser, the option chosen from the Study by the Seller for the
improvements needed for the Reservoir dam and the Easement, and the
resulting proposed area and location of the Easement.
(iv) The Purchaser agrees to partially reimburse the Seller for the costs of the
construction needed for the Reservoir dam and the Easement under the
option chosen by the Seller in the amount of Fifty Thousand Dollars
($50,000.00). The Purchaser shall pay said amount to the Seller within
thirty (30) days after the Seller begins construction of the improvements
needed for the option chosen by the Seller. If, however, the Purchaser has
not closed on the purchase of the first parcel of the Property as provided in
paragraph 2.B. above, such payment shall be made by the Purchaser to the
Seller at the time of closing as provided in paragraph 2.B. above. Further,
if the Seller chooses an option under the Study that calls for the Reservoir's
dam to be improved to a State standard for a jurisdictional dam that does
not permit the construction of residential units below the dam's flow-way,
the Purchaser shall have no responsibility or obligation to pay to the Seller
the Fifty Thousand Dollars ($50,000.00) provided for herein.
4. Purchase Price.
A. The Seller and the Purchaser agree that the purchase price of the Property, or of
any portion thereof, shall be, on the date of closing of the purchase of such
Property or any portion thereof, Ten Thousand Five Hundred Eighty-eight and
24/100 U.S. Dollars ($10,588.24) per acre. However, beginning on December 1%
1997, this per-acre price shall increase at the rate of seven and one-half percent
(7 1/z%) per annum. As examples, the per-acre price shall be as follows on the
following possible closing dates: (1) June 1% 1998 - $10,985.30 per acre; (2)
December 19, 1998 - $11,382.36 per acre; (3) June 19, 1999 - $11,779.42 per
acre; and (4) December 19, 1999 - $12,176.48 per acre.
B. The sum of Sixty Thousand U.S. Dollars ($60,000.00), in the form of the
Purchaser's fully executed earnest money promissory note, payable to the Seller,
shall be delivered to the Seller by the Purchaser upon the execution of this
Agreement. The promissory note shall bear no interest and shall be due and
payable in full by the Purchaser to the Seller in cash or certified funds at the time
of closing as provided in paragraph 2.B. above. The form of the earnest money
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promissory note shall be that of the Colorado Real Estate Commission approved
Bradford Publishing Form No. EMP80-2-81.
C. The additional sum of Two Hundred Forty Thousand U.S. Dollars ($240,000.00),
subject to closing costs and customary prorations, as hereinafter provided, shall be
payable in cash or certified funds by the Purchaser to the Seller at the time of
closing as provided in paragraph 2.B. above.
5. Sury y and Title Insurance.
A. ,
Agiceinent. en ot before August 31, i997, die Purchaser shall piuvide to the sell= a copy u
such =,vey mid the Sell= shaft have fiftcett (i5) days thereafter in Mlitch to approve die-legal
description to be meti in the said special wwranty deed. In the event that the Sell= aw
PMCha= CM1110t agree UPOLI a legal description of the Property potentially to be conveyed ander
this ftieement on or before die date of closing aS PIOVidCd ilL pwagraph: 2.B. above,--thim
*Veenzent shall be automatically teTminatrd mid all parties shall be released from all obligations
to the Pmehaser mid wry Urigillaf PTOMi330TY notes thmetofore delivered to die Sell= by-the
Purchaser sitalf be eturnod to die Purchaser.
B. The Purchaser, at its own expense, shall provide its own title insurance for each
transaction under this Agreement. The Seller shall be under no obligation to provide title
insurance in such transactions. The title insurance commitments obtained by the Purchaser shall
show marketable title in the Seller to the Property, or to the portion of the Property to be
conveyed, subject only to those items described in paragraph 2.C. above. In the event any such
title insurance commitment discloses any titre defect subject to which the Purchaser need not take
title, the Seller may, at its option, cure such defect within a reasonable period of time, at its
expense, without in any other manner affecting the terms of this Agreement. The Seller also
agrees to cooperate with the Purchaser in requesting the title company to remove any mechanic's
- 5of14 -
lien exceptions that may be contained in the title commitment. In the event said title insurance
company refuses to omit any title defect or objection prior to the closing of any potential
transaction under this Agreement, the Purchaser shall, at its election, have the right to accept such
title as the Seller is willing to convey, without any reduction of the purchase price; or the
Purchaser shall have the right to rescind this Agreement and, upon such rescission pursuant to this
paragraph, this Agreement shall be null and void and of no further effect, and all parties to this
Agreement shall be released from all obligations hereunder. In addition, if such rescinded
transaction is the initial transaction contemplated under paragraph 2.11. of this Agreement, the
Purchaser shall be entitled to the return of its earnest money promissory note delivered to the
Seller pursuant to paragraph 4.B. above.
6. Closin .
A. The closing of all transactions under this Agreement shall be held in the Fort
Collins City Attorney's Office located at 300 LaPorte Avenue, Fort Collins,
Colorado, or at such other location as the parties may agree upon. The date of
such closings shall be pursuant to the applicable provisions of paragraphs 2.A. and
2.B. above or on such other date as the parties may agree upon. The time of such
closings shall be at 2:00 p.m. on the applicable closing date for that transaction or
at such other time as the parties may agree upon.
B. The following shall occur at each closing under this Agreement, each being a
condition precedent to the others and all being considered as occurring
simultaneously:
(i) The Seller shall execute, have notarized, and have delivered to the
Purchaser a special warranty deed, conveying title to the Property, or
specified portion thereof, to the.Purchaser in accordance with the provisions
of this Agreement;
(ii) The Seller shall execute and deliver to the Purchaser an affidavit stating that
the Seller is not a foreign person, a foreign corporation, a foreign
partnership, a foreign trust, or foreign estate, (as those terms are defined
in the Internal Revenue Code and Income Tax Regulations);
(iii) The Seller shall execute Certificates as to Taxpayer Identification Number
as required by law;
(iv) The Purchaser shall deliver to the Seller the certified funds required by
paragraph 4. above;
(v) The Seller and the Purchaser shall each execute and deliver Settlement
Statements, showing adjustments in the payment of the costs of the closing;
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• (vi) The Purchaser shall execute a Real Property Transfer Declaration as
required by Colorado law; and
(vii) Each party shall deliver to the other such other documents, certificates, and
the like as may be required herein or as may be necessary or helpful to
carry out each parry's obligations under this Agreement.
7. Possession. With respect to each portion of the Property conveyed to the Purchaser
under this Agreement, possession of such property shall be delivered to the Purchaser immediately
following the closing.
8. Prorations. Real property taxes and assessments and similar expenses, in
accordance with local practice, shall be prorated as of the date of closing for each transaction
under this Agreement.
9. Remedies on Default. If any payment due hereunder is not paid, honored or
tendered when due, or if any other obligation hereunder is not performed as herein provided, there
shall be the following remedies:
A. If the Purchaser is in default, then the Seller may elect to treat this Agreement as
terminated, in which case all payments and things of value received hereunder from
. the Purchaser shall be forfeited by the Purchaser and retained by the Seller, and the
Seller may recover such damages as may be proper, or the Seller may elect to treat
this Agreement as being in full force and effect, and the Seller shall have the right
to an action for specific performance or damages, or both.
B. If the Seller is in default, the Purchaser may elect to treat this Agreement as
terminated, in which case all payments and things of value received hereunder by
the Seller shall be returned to the Purchaser, and the Purchaser may recover such
damages as may be proper, or the Purchaser may elect to treat this Agreement as
being in full force and effect and the Purchaser shall have the right to an action for
specific performance or damages, or both.
10. Attorney's Fees and Costs. In the event either of the respective parties hereto shall
default in any of their covenants or obligations herein provided and the party not in default
commences legal or equitable action against the defaulting party, the defaulting party expressly
agrees to pay all of the non-defaulting parry's reasonable expenses of said litigation, including a
reasonable sum for attorney's fees.
11. Governing Law. It is expressly understood and agreed by and between the parties
hereto that this Agreement is made in and shall be construed and interpreted in accordance with
the laws of the State of Colorado.
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12. Notices. Any notice or other communication given by either party hereto to the
other relating to this Agreement shall be hand delivered or sent by registered or certified mail,
return receipt requested, addressed to such other party at their respective addresses as set forth
below; and such notice or other communication shall be deemed given when so hand delivered or
when so mailed:
If to Seller:
Alan Krcmarik, Finance Director
Finance Department
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to:
John Duval, Assistant City Attorney
City Attorney's Office
City of Fort Collins
P. O. Box 580
Fort Collins, CO 80522
If to Purchaser:
James W. Harmon
PrideMark Development Company
10701 Melody Drive, Suite 406
Northglenn, CO 80234
13. Assignmen . This Agreement shall not be assigned by either of the parties hereto
without the prior written consent of the other party, except that the Purchaser may assign this
Agreement to an entity related to the Purchaser upon prior written notice to the Seller.
14. Maintenance of the Property. The Seller shall keep, or cause to be kept, the
Property, or any portion thereof, in its condition as of the date hereof until the closing date of its
conveyance under this Agreement, subject to normal wear-and-tear and seasonal changes, and
agrees not to commit or permit waste thereon.
15. Casualty. In the event that the Property is substantially damaged by fire, flood or
casualty between the date of this Agreement and the date of closing of title, this Agreement may,
at the option of the Purchaser, be declared null and void and of no further force or effect; and all
8of14 -
the parties to this Agreement shall be released from all obligations hereunder; and the Purchaser
shall be entitled to a refund of the amount of money, if any, theretofore paid to the Seller.
16. Headings. Paragraph headings used herein are for convenience of reference and
shall in no way define, limit or prescribe the scope or intent of any provision under this
Agreement.
17. Terms Survive ClQsing. To the extent necessary to carry out all of the terms and
provisions hereof, the said terms, obligations and rights set forth herein shall be deemed not
terminated at the time of closing, nor shall they be merged with the various documents executed
and delivered at such time.
18. Construction. Words of the masculine gender shall include the feminine and neuter
gender and when the sentence so indicates, words of the neuter gender shall refer to any gender.
Words in the singular shall include the plural and vice versa. This Agreement shall be construed
according to its fair meaning, and as if prepared by both parties hereto, and shall be deemed to
be and contain the entire understanding and agreement between the parties hereto. There shall be
deemed to be no other terms, conditions, promises, understandings, statements or representations,
express or implied, concerning this Agreement unless set forth in writing and signed by both
parties hereto.
19. Time is of the Essen It is agreed that time shall be of the essence to this
Agreement and each and every provision hereof.
20. Rigbt to Inj. The Purchaser shall be permitted to fully inspect the Property at
any time up to and including Noy ncmber3@ bei g, 1997 ("the Inspection Period"). The
Seller agrees that the Purchaser and its agents may have reasonable access to the Property to
conduct tests and/or inspections, at the Purchaser's expense, concerning the presence of
environmental hazardous waste, underground storage tanks, or other environmental conditions
which could expose the Purchaser to future liability for damages or clean-up expenses. In the
event the Purchaser's exposure to such damages or expenses is certified by a qualified
environmental engineer to be reasonably likely and such damages or expenses are reasonably
estimated by the engineer to exceed Five Thousand Dollars ($5,000.00), the Purchaser may, upon
written notice to the Seller specifying such hazard and cost, terminate this Agreement. In the
event of such termination, the Purchaser's earnest money promissory note delivered to the Seller
pursuant to paragraph 4.B. above shall be returned to the Purchaser.
Notwithstanding anything contained herein to the contrary, the Purchaser shall have the
term of the Inspection Period within which to review the Property and any and all matters related
to the purchase, development, sale, and/or financing of the Property or homes or other
improvements thereon, including without limitation, survey, title matters, governmental
requirements, and other matters which might affect the feasibility of the Property for the
• Purchaser's anticipated development thereof, to determine whether or not the Purchaser desires
- 9of14 -
to proceed with the purchase of the Property from the Seller. In the event that the Purchaser
shall, within the Inspection Period, give written notice to the Seller of the Purchaser's decision
not to purchase the Property for any reason, then this Agreement shall be null and void and of no
effect and the earnest money promissory note delivered to the Seller pursuant to paragraph 4.B.
above shall be returned to the Purchaser, and all parties shall be released from any further
obligations hereunder.
21. Continpenciec.
A. This Agreement is hereby made expressly contingent upon the City Council of the
City of Fort Collins (hereinafter referred to as "the Council") approving this Agreement by
ordinance, which ordinance must be passed by the Council on second reading on or before April
16, 1996, and must become law ten (10) days thereafter as provided in the City Charter. If the
Council does not pass such an ordinance on second reading on or before April 16, 1996, or for
any reason it does not become law ten (10) days thereafter as provided in the City Charter, this
Agreement shall be automatically terminated and both parties shall be released from all obligations
hereunder and any monies theretofore paid shall be refunded in full to the Purchaser and original
promissory notes theretofore delivered to the Seller by the Purchaser shall be returned to the
Purchaser.
B. This Agreement is hereby made expressly contingent upon the Purchaser obtaining
third-party financing, on terms and conditions prevailing for similar transactions at the time of
closing, for the initial purchase of that portion of the Property to be conveyed pursuant to
paragraph 2.B. above. The Purchaser shall use due diligence and act in good faith in applying
for, obtaining, and accepting such financing. If such financing is unavailable at the time of
closing for such portion of the Property, this Agreement shall be automatically terminated and
both parties shall be released from all obligations hereunder and the earnest money promissory
note delivered to the Seller by the Purchaser pursuant to paragraph 4.B. above shall be returned
to the Purchaser.
22. Binding This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
23. "AS-IS" Nature of Sale. The Purchaser acknowledges and agrees that the Seller
has not made, does not make and specifically negates and disclaims any representations,
warranties, promises, covenants, agreements or guarantees of any kind or character whatsoever,
whether express or implied, oral or written, past, present or future, of, as to, concerning or with
respect to the Property and: (a) the value, nature, quality or condition of the Property, including,
without limitation, the water, soil and geology of the Property; (b) the income to be derived from
the Property; (c) the suitability of the Property for any and all activities and uses which Purchaser
may conduct thcrcon; (d) compliance by the Property, or of its operation and use, with all
applicable statutes, laws, ordinances, rules or regulations of any governmental authority or body
having jurisdiction; (e) the habitability, merchantability, marketability, profitability or fitness for
- 10 of 14 -
• a particular purpose of the Property; (f) the manner or quality of the construction or materials,
if any, incorporated into the Property; (g) the manner, quality, state of repair or lack of repair of
the Property; (h) the amount of land that constitutes the Property (i.e., the number of square feet
or acres being conveyed); or (i) any other matter with respect to the Property, and specifically,
that Seller has not made, does not make and specifically disclaims any representations regarding
compliance with any environmental protection, pollution or land use laws, rules, regulations,
orders or requirements, including solid waste, as defined by the U.S. Environmental Protection
Agency regulations at 40 C.F.R., Part 261, or the disposal or existence, in or on the Property,
of any hazardous substance, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and regulations promulgated thereunder.
Purchaser further acknowledges and agrees that having been given the opportunity to inspect the
Property, the Purchaser is relying solely on its own investigation of the Property and not on any
information provided or to be provided by the Seller. The Purchaser further acknowledges and
agrees that any information provided or to be provided with respect to the Property was obtained
from a variety of sources and that the Seller has not made any independent investigation or
verification of such information and makes no representations as to the accuracy or completeness
of such information. The Purchaser agrees that the Seller is not liable or bound in any manner
by any verbal or written statements, representations or information pertaining to the Property, or
the operation thereof, furnished by any real estate broker, agent, employee, servant, or other
person representing or claiming to represent the Seller. The Purchaser further acknowledges and
agrees that to the maximum extent permitted by law, the sale of the Property as provided for
. herein is made on an "AS IS" condition and basis with all faults. It is understood and agreed that
the purchase price has been adjusted by the Purchaser to reflect that all of the Property is sold by
the Seller and purchased by the Purchaser subject to the foregoing.
24. Affordable HousingObligations. The Purchaser agrees that when it applies to the
City of Fort Collins for approval of the Purchaser's intended development of the Property, or any
portion thereof, that its application or applications for development shall contain a proposal to
build as affordable housing units at least thirty percent (30%) of all residential units proposed to
be constructed under the Purchaser's development proposal. For purposes of this Agreement, an
affordable housing unit shall be deemed to mean residential units which are available for rent or
purchase on terns which would be affordable to individuals earning eighty percent (80%) or less
of the median family income, as adjusted for family size, of residents in the City of Fort Collins,
so that they can either purchase or rent a residential unit and not pay more than thirty percent
(30%) of their gross income for housing costs (including utilities).
The Purchaser agrees that in any development agreement that it enters into with the City
of Fort Collins concerning the development of the Property or any portion thereof ("the
Development Agreement"), that it will obligate itself to build such percentage of affordable
housing units. The Purchaser shall also agree in the Development Agreement that not less than
two-thirds (2/3) of all the affordable housing units it builds in the development shall be restricted
by covenant, deed, or contract to remain affordable housing for at least twenty-five (25) years
• from the date each such unit is certified by the City of Fort Collins for occupancy. With respect
11 of 14 -
to the remaining one-third (1/3) of the affordable housing units to be built, the Purchaser shall also
agree in the Development Agreement that such units shall be restricted by covenant, deed, or
contract to remain affordable housing for at least twenty-five (25) years from the date each such
unit is certified by the City of Fort Collins for occupancy, provided, however, that some
reasonable form of third-party financing is available for such affordable housing units. If such
third-party financing is not available, the remaining one-third (1/3) of affordable housing units to
be built shall be restricted by covenant, deed, or contract to remain affordable housing for at least
five(5) years. In the Development Agreement, the Purchaser shall further agree that the City of
Fort Collins shall not be obligated to issue more than two (2) certificates of occupancy for non-
affordable housing units that have been constructed for every one (1) certificate of occupancy
issued for an affordable housing unit constructed. For example, if two (2) certificates of
occupancy have been issued for two (2) affordable housing units that have been built, the
Purchaser shall be entitled to receive up to four (4) certificates of occupancy for non-affordable
housing units that have been built. Also, if the Purchaser receives one certificate of occupancy
for one multi-family unit of affordable housing, the Purchaser shall be deemed under the
Development Agreement to have received one certificate of occupancy for an affordable housing
unit for each separate, residential unit contained in such multi-family unit. For example, if one
multi-family unit includes ten apartments and only one certificate of occupancy has been issued
for the one multi-family unit, the Purchaser shall be deemed to have received ten separate
certificates of occupancy for affordable housing units for purposes of calculating the number of
certificates of occupancy the Purchaser is entitled to receive under the Development Agreement
for non-affordable housing units.
Notwithstanding the foregoing, the Purchaser acknowledges and agrees that it shall not be
entitled to receive any certificate of occupancy for either a non-affordable housing unit or an
affordable housing unit except to the extent that all the requirements under the Fort Collins City
Code regarding the issuance of a certificate of occupancy have been complied with by the
Purchaser for the housing unit constructed for which the specific certificate of occupancy is being
requested.
In order to guarantee that the affordable housing units to be built in accordance with this
paragraph 24. are initially sold or rented as affordable units and remain affordable for the
applicable time periods required above, the Development Agreement shall provide that before the
Seller will be required to issue a certificate of occupancy for any affordable housing unit built on
the Property, that the Seller must have first approved the type and the terms of the covenant, deed
or contract restrictions used or to be used for such affordable housing unit, which approval shall
not be unreasonably withheld. Provided, however, that the Seller may withhold its approval of
a covenant, deed or contract restriction and not issue the requested certificate of occupancy if such
restriction does not reasonably guarantee that the particular affordable housing unit will remain
affordable for the time period required by this paragraph 24.
25. Reporting of Development Data and information. The Purchaser acknowledges that
one of the Seller's primary goals in selling the Property is to sell it to a purchaser that will develop
- 12 of 14 -
the Property as an affordable housing demonstration project so that the Seller can use the project
to collect various data and information that the Seller can then use to evaluate many of its current
development policies and standards, particularly those that relate to development of affordable
housing. To accomplish this, the Purchaser agrees to provide the Seller with a separate report
with respect to each phase of the development of the Property, which report shall contain the
hereinafter described data and information. Each report shall be provided to the Seller by the
Purchaser at the time of the Purchaser's final PUA submittal or submittals to the Seller for each
phase of the Property's development. Each report shall contain the following data and information
in reasonably sufficient detail to enable the Seller to conduct its intended evaluation: (1) itemized
breakdown of the Purchaser's estimated infrastructure and engineering costs associated with
developing buildable lots so that the cost impacts of alternative development standards can be
evaluated; (2) itemized breakdown of the Purchaser's estimated dwelling unit costs so that the cost
impacts of alternative building code requirements can be evaluated; (3) itemized breakdown of the
Purchaser's legal, planning and other consulting costs associated with that particular phase of the
project so that the cost impacts of the Seller's various development review requirements can be
evaluated; (4) itemized breakdown of the Purchaser's plan review fees, plant investment fees, and
all other development impact fees for that particular phase of the development that are charged
by the Seller, other governmental entities, and private utilities so that their impact on development
can be evaluated; (5) describe the terms and conditions of any development financing that has been
obtained or will be obtained in connection with the particular development phase so that the cost
impacts of various financing methods concerning the proposed housing can be evaluated; and (6)
such other data and information as the Seller may reasonably request and reasonably need in
connection with its evaluation of its applicable development policies and standards.
26. Memorandum for Recording. At every closing of a transaction under this
Agreement, the Seller and the Purchaser shall execute for recording in the records of the Latimer
County Clerk and Recorder, a memorandum of this Agreement concerning the Property or portion
of the Property conveyed in such transaction. Such memorandum shall evidence the Purchaser's
continuing covenants and obligations to the Seller under this Agreement, all of which covenants
and obligations shall survive the closing and the delivery of the deed under this Agreement, and
shall be deemed to run with the Property or portion of the Property conveyed in the particular
transaction. In lieu of such memorandum or memoranda, this Agreement may be recorded by the
Seller to evidence such covenants and obligations.
27. No Brokers. Each party represents to the other that it has not authorized any broker
or finder to act on its behalf in connection with the sale and purchase of the Property, or any
portion thereof, and that such party has not dealt with any broker or finder purporting to act on
behalf of any such party. Each party hereto agrees to indemnify and hold harmless the other party
from and against any and all losses, liens, claims, judgments, liabilities, costs, expenses, or
damages (including reasonable attorneys fees and court costs) of any kind or character arising out
of or resulting from, any agreement, arrangement, or understanding alleged to have been made
by such party or on its behalf with any broker or finder in connection with this Agreement or the
transaction contemplated hereby. Notwithstanding anything to the contrary contained herein, the
- 13of14 -
provisions of this paragraph shall survive the closing of this transaction or any termination of this
Agreement.
IN WffNFSS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first above written.
SELLER:
THE CITY OF FORT COLLINS, COLORADO
A Municipal Corporation
By:
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
PURCHASER:
PRIDEMARK DEVELOPMENT CO., LLC
By:
Michael A. Messina, Manager
- 14 of 14 -
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EXFIIBTT F TO
STAFF IS PRMM CETORE APP V
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8791 Wolff Court,Suite 306 Far (303)650-S417
Westmimter, Colorado 800�0
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FAX COVEFL IHE£T
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Twa NEDaAOC I$ IMff�iOED Felt TiE EXCLWIVff USE TiC INDIVIDUA}On cIfIITY 70 MOM M IS AODRCEDEO, AND
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RECffIVED T s INRORI�ATION IN fARgR. YOU ARC N Y NOTFlap Tier ANY WSfEW TON, DISTIIEUIION OR
COFKINO OF'R115 CATKNI IS jPROF116ITE0. P E NOTF7 US WNCDIATPL7 YV ONR µD RlTURN TiG
ORIODUL MEW AC US A7 TtE ADDRCSS No=BE VIA Tiff U.S;PWTAL S 1 WK You FOR YOUR
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10/13/199T 13:50 3036505417
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NORTH PERTX ACQUISITION
That portion of Section 13.Townsh i 16 Range West of the P , LarimerrCo�rado,
,
being more particularly d as follows: I I
,
Considering the North line of the N er of Section 13 as ortb 88017 23"
Wef and with all beatings contained
Begio t at the Northeast corner of said n 13; along the North ling of Paid Section 13,
No#h 88'1723"West 2103.422 feet thegca ' said line, South 00.16' 8"East 30.01 feet
totl}e West Jim of the Tract of land d at Reception No. 87068133;they=along said West
linos South 00'15'37" East 20.01 feet to South line pf said Tract deseribeo at.Reception No.
870(8133 and the TRUE POINT OF BF,Cr G;thence along said South linp South 88017'23"
Easj 444.17 feet;thence South 01*4X..37' est 100.00 l et;thence 152.47 feet along the arc of a
currvp to the left heaving a ca tral angle ofp ' 15",a rax4 of 357.00 feet,the long;chord of which
beW South 10'3l'31"East a distanoof 51.32 feet tgpnce South 22*45'38'East 154.83 feet;
thence 68.17 feet along-the arc of a cutp+o the right ha ' a central angle of 6'Q4'28', a radius
of 63.00 feet,the long chord ofwhir�f byes 19' 434"East a distance of 68.14 feet;thence
416.46 feet along the arc of a curve to right having 4 central angle of 36950' 390, a radius of
647.64 feet,the long chord of which bears th 02.06'3y"West a distance of 409.33 feet;thence
North 70027 53'"West 131.76 feet;thence 34.64 feet along the arc of a curve to the right having
a ccutral angle of 72'13'00", a radius of .50 feet,the long cbord of whihj)bears North 34.21'
23" West a distance of 312.93 feet;thence 3.07 fear alopg the arc of a curve to the left having a
central angle of 78"48' 02',a radius of 9.5 het,the long chord of which bears North 37'38' 54"
West a distance of 12.06 feek thence North 02'55'Wesq 171.54 feet;thence 59.23 feet along the
are,of a curve to the left having a central angi of 11"191511,a radius o£299.50 feet,the long chord
of wjrich bears North 82042' 51"West a of 59. 3 feet to the Fast line of the Northwest
Quarter of said Section 13; thence along i dine North 10 28"W720.07.&4 to the TRUE
POT OF BEGINNING.
Contains 8.02 acres more or less. ;
Subject to all existing easements and rigghts. -way of
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10/13/1997 13:50 3836505417 PRIDEMARK DEVELOPbNT PAGE 04
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SO PR07TX ACQUISITION
That portion of Section 13,Township 6 North }}Range 69 West of the 6th P.M, Larimer County,
Colorado, being more particularly deagribed az f011ows:
Considering the North line of the Northpast Quarts of did Section 13 as bearing North 88"17, 23"
West r with all bearings contained lgffin r \th
BeV'mv'ng at the Northeast corner of said Secti11 thmp along the North line of said Section 13,
North 88"17'23"West 2103.42 feet thppw leavntg Old North tin, South 00916'28" East 30.01 feet
to the West line of the Tract of land d%cribed at lkscept1pn No. 97068133;thence along said West
line South 00°15'37" East 20.01 feetto the Soth HWof said Tract described at Reception No.
87068133;thence along said South be South 88017 23"East 1077.69 feet;thence 31.42 feet along
the arc of a curve to the right having a,cenhal Aug of 90"0(y 00", a radius of 20.00 feet, the long
chord of which bears South 43"17 23"Hest a distary of V.28 feet to a point on the Westerly right-
of-way line of Lances:ttany Road;thence s�ng said e tight-of-way line the following seven(7)
courses and distances;
1) South 0104T 3 r West 46a00 feet;
2) Thence 84.04 ferf along the arc o;a curve to the right having a central angle
of 05"00'001, a"ditts of 903.00ifeet,the long chord of which bears South
04"12'37"West a distance pf 84,p1 feet;
3) South 06"42'371 West 25Q�W fcpt;
4) Thence 90.50 feet along 4hewc of curve to the left having a central angle
Of 0500(y 000,a?Aku of 1Q37.00 fact,the long chord of which bears South
04012'37"West a distance pf 9047 feet;
5) South 01"42'37Y West 34743 feo;
6) Thence 108.10 fOFt along the arc yf a curve to the left having a central angle
of 05°58'22",a radius of 1037.00liect, the long chord of which bears South
01"16'34"East 8 distance of 108 5 feet;
7) South 04°15'45 East 991feet;
Thence leaving said Westerly right-of-way tine and slonarovincetowne P.U.D. 1st Filings North,
West and Southerly lines the following I've(5) COMP s a4d distanm:
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1) North 88017 231 West 718.46
2) South 16023'29'�East 67.3Tfeet;
3) South 0104T 37'1 West 54.00 feet;
4) South 19"19' 11tiEast 997.49 feet;
5) North 80"16, 10"yMast 190 09 feet
Thence leaving said P.U.D. South 09641' 50"East 4 distance of 80.00 feet to a point on the South
right-of-way line of Province Road said'point being the TRUES POINT OF BEGROTING; thence
along said South right-of-way line the fgi MAS"(5) a distan es and oes:
t t T
PRIDEMAW DEIELOPMdT PAGE 05
.. 10/13l1997 13:50 3036505417 _
1) North 80"16' 10"East 511.00 feet;
2) Thence 181.79 feet algnH the arc of a save to the right having a central angle
of 09"49 34",a radiuf of 1060A0 feet,the long 0hord of which bears North
95'10'57'East a di". of 181.57 feet;
3) South 89'S4' 16"Eatt 256.94 feet;
4) South 88"30'05"bast 40.84 fbz4
5) South 89"54' le bast 110.00£ed;
Thence leaving said Southerly right-of-way line South 00"05'44"Went a distance of 585.26 feet;
thence North 89"54' 16"West 157.64 fad thence South 86"40'22"West 08.68 feet; thence South
71"38' 03"West 181.73 feet;thence Soutb 6l'46'05"West 74.53 feet;jthence South 50'20' 56"
West 51.00 feet;thence 49.55 feet along the am of a curve to the right ha ' a central angle of 6049'
57",a radius of 415.50 feet,the long chord of which boars North 36'14'066 eat a distance of 49.52
feet;thence South 55"2(Y 30"West 107.29 feet;thence South 66.31'06°West 194.21 fect;thence
South 7902V 50%West 177.36 feet;thmmNorth 34'10'25"West 457.84 feet;thence North 12'54'
03' East 138.58 feet; thence North.00"55'28"West 33.58 feet;thencrt North 09043' 50" West
167.15 feet;thence Nortb 80'16' 10"East 270.25 feet;thence South 09043150"East 8.50 feet to the
TRUE POINT OF BEGINNING.
Contains 19.74 acres more or less.
Subject to all easements and rots-of-way of record
,
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10/13/1997 13:50 3036505417 PRIDEM W DEVELOPMHT PAGE 06
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EXHIBIT G TO CITY STAFF'S PROV MUM APPEAL IEM
. FIFTH ADDENDUM TO AGREEMENT OF
PURCHASE AND SALE OF REAL PROPERTY
THIS FIFTH ADDENDUM is made and entered into this ? day of June, 1998, by and
between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation,whose address
is 300 LaPorte Avenue, Fort Collins, Colorado 80521 (hereinafter referred to as "the Seller"), and
KAUFMAN AND BROAD OF COLORADO,INC.,a Colorado corporation,whose address is 8401
East Belleview Avenue Suite 200, Denver, Colorado 80237 (hereinafter referred to as "the
Purchaser").
WITNESSETH :
WHEREAS,the Seller and PRIDEMARK DEVELOPMENT COMPANY,LLC,(hereinafter
referred to as "Pridemark'� have previously entered into that certain"Agreement of Purchase and
Sale of Real Property"dated April 2, 1996 (hereinafter referred to as "the Agreement'); and
WHEREAS,the Seller and Pridemark have also previously entered into that certain"First
Addendum to Agreement of Purchase and Sale of Real Property"dated April 12, 1996 (hereinafter
referred to as "the First Addendum"); and
WHEREAS, the First Addendum was entered into in order to add a paragraph 27. to the
Agreement which paragraph provides that the Seller could elect to restructure this transaction as an
option rather than as a purchase; and
WHEREAS,pursuantto the First Addendum,the Seller elected to restructure this transaction
as an option rather than as a purchase and, as a result, entered into with Pridemark the "Second
Addendum to Agreement of Purchase and Sale of Real Property"dated August 26, 1996(hereinafter
referred to as "the Second Addendum"); and
WHEREAS,the Second Addendum restructured this transaction as an option agreement by
the parties amending the Agreement and renaming it the"Option Agreement of Purchase and Sale
of Real Property,"which is attached as Exhibit"A"to the Second Addendum, (hereinafter referred
to as "the Option Agreement"); and
WHEREAS, the City and Pridemark subsequently entered into that certain "Third
Addendum to Agreement ofPurchase and Sale ofReal Property"dated January 30, 1997(hereinafter
referred to as the"Third Addendum")and that certain"Fourth Addendum to Agreement of Purchase
and Sale of Real Property" dated November 25, 1997 (hereinafter referred as the "Fourth
Addendum"),which addendums extended the closing date forPridemark's purchase ofits first parcel
of real property under the Option Agreement; and
• 1
• I
WHEREAS, on March 20, 1998, Pridemark conveyed its entire interest in the Option
Agreement, as amended,to the Purchaser, and
WHEREAS, the Purchaser has therefore acquired all the rights of Pridemark and assumed
all of the obligations of Pridemark under the Option Agreement, as amended; and
WHEREAS,the Option Agreement,as amended,currently provides in paragraph 2.A.that
the Purchaser must exercise its option to purchase at least 28.33 acres of the Property described in
the Option Agreement on or before June 1, 1998; and
WHEREAS, the Purchaser desires to exercise its option under the Option Agreement, as
amended,to so purchase at least 28.33 acres of the Property,but the parties are unable to finalize the
necessary paperwork to complete the closing of such transaction on or before June 1, 1998; and
WHEREAS, the Seller and the Purchaser both desire to amend the Option Agreement by
extending the closing date of June 1, 1998, as provided in the paragraph 2.A. of the Option
Agreement, as amended,to June 5, 1998; and
WHEREAS, the City Manager has reviewed this proposed amendment to the Option
Agreement and finds that it is reasonably necessary to consummate the sale of the Property in
accordance with Section 5. of City of Fort Collins Ordinance No. 41, 1996; and
WHEREAS, this Fifth Addendum represents the agreement of the parties concerning this
proposed amendment to the Option Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged,the parties hereto agree to amend the terms and conditions of the Option Agreement,
as amended, as follows:
1. That paragraph 2.A.of the Option Agreement,as amended,is hereby amended to read
as follows:
2. Option and Method of Conveyance.
A. The Seller hereby grants to the Purchaser,for a term beginning at 12:01 a.m.on June
1, 1996,and ending at 12:01 a.m. on November 1,2002,the option to purchase any
or all of the Property. This option may be exercised by the Purchaser at one time for
all of the Property or it may be exercised as a series of options for only specified
portions of the Property. To exercise this option, the Purchaser shall give to the
Seller at least ninety (90) days prior written notice of the Purchaser's intent to
purchase all or any portion of the Property. Such notice shall contain a surveyed
lcgal description ofthe Property,or of the specified portion of the Property,for which
2
the option is being exercised, and shall state the date on which the transaction
concerning such Property is to be closed, which closing shall not be less than sixty
(60) days nor more than ninety (90) days after the date such notice is given.
Provided,however,such specified portion of the Property shall be limited to parcels
which are contiguous to that portion of the Property which the Grantee will convey
to the Grantor on December 18, 1997,pursuant to paragraph 2.B.below,or which are
contiguous to other parcels which were previously conveyed under this Agreement,
or which are contiguous to one of the main roads adjacent to the Property(such main
roads are Province Avenue, Brittany Drive, Trilby Road, and Lemay Avenue). In
addition, in order to keep this option in full force and effect, the Purchaser must
exercise this option to purchase at least 28.33 acres of the Property at least once
between December 19, 1997, and June 5, 1998, and at least once during each of the
following years: 1999, 2000, 2001, and 2002. If the Purchaser fails to so exercise
this option for any of these required purchases,this Agreement shall be automatically
terminated and both parties shall be released from all further obligations hereunder.
2. All other terms and conditions of the Option Agreement, as amended, shall remain
unchanged and in full force and effect, except as expressly amended in this Fifth Addendum.
3. This Fifth Addendum may be executed in counterparts, each of which shall be
deemed an original, but all of which,taken together, shall constitute one and the same instrument.
Furthermore, this Fifth Addendum may be executed and delivered by the exchange of electronic
. facsimile copies or counterparts of the signed copies, which facsimile copies or counterparts shall
be binding on the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Fifth Addendum to
Agreement of Purchase and Sale of Real Property as of the day and year first above written.
THE CITY OF FORT COLLINS, COLORADO,
A Municipal Corporation
By: Q9 1,
City MaKager
,ATTEST:
City Clerk
A PROVED AS TOTIJ
M:
� � ' a ,
Dep ty City Attorney
3
JU -01-1998 16:12 K&B LE qL 303 770 9052 P.06/06
KAUFMAN AND BROAD OF COLORADO,INC.,
a Colo do corporation
By: '
Mlchacl O'Rourke,vice President
A r:
�tre
nce P. a, ' nt Sccretary
a
TOWL P.M
ITEM NO. 6
MEETING DATE 8/5/99
STAFF Steve Olt
City of Fort Collins PLANNING AND ZONING BOARD
STAFF REPORT
PROJECT: Provincetowne PUD, Filing Two - Preliminary -#73-82T
APPLICANT: Downing, Thorpe & James, Inc.
c/o Bill Reilly and Rick Volpe
1881 Ninth Street, Suite 103
Boulder, CO. 80302
OWNER: City of Fort Collins
P.O. Box 580
Fort Collins, CO. 80522-0580
PROJECT DESCRIPTION:
This is a request for preliminary planned unit development (PUD) approval for 331
residential dwelling units (190 single family lots and 141 multi-family townhomes) on 70.0
acres, located on the south side of Trilby Road at Brittany Drive, west of South Lemay
Avenue, east of South College Avenue, north of County Road 32, and zoned LMN - Low
Density Mixed Use Neighborhood. This is a qualified Affordable Housing project.
RECOMMENDATION: Approval
EXECUTIVE SUMMARY:
This request for preliminary planned unit development (PUD) approval:
* Is in conformance with the approved Provincetowne Overall Development Plan
(ODP);
* meets the All Development Criteria of the Land Development Guidance System
LL Dom;
* is supported by the Residential Uses Density Chart; and
* requires a variance to the City's Solar Orientation Ordinance.
COMMUNITY PLANNING AND ENVIRONMENTAL SERVICES 281 N.College Ave. P.O.Box 580 Fort Collins,CO 80522-0580 (970)221-6750
PLANNING DEPARTMENT
Provincetowne PUD, Filing Two - Preliminary - #73-82T
August 5, 1999 P & Z Meeting
Page 2
COMMENTS:
1. Background:
The surrounding zoning and land uses are as follows:
N: E, RL; existing City facility and single family residential (Transfort Service Center,
Brittany Knolls PUD)
S: POL; City-owned property
E: RL, LMN, UE; vacant land and existing single family and multi-family residential
(Stanton Creek) ,
W. LMN, POL, FA1 in Larimer County; vacant land and planned residential
(Provincetowne PUD)
The subject property was annexed into the City as part of the Halycon Annexation in
December, 1980.
The subject property was part of the original Provincetowne PUD Master Plan that was
approved by the Planning and Zoning Board in November, 1982 for single family and multi-
family residential, commercial, park, and industrial uses on 410 acres.
The subject property was part of the Amendment to the Provincetowne ODP that was
approved by the Planning and Zoning Board on October 26, 1987 for single family and
multi-family residential, church, business service, neighborhood and regional shopping,
and recreational uses on 426 acres.
The Planning and Zoning Board approved the Redeemer Lutheran PUD on April 27, 1992
for a church facility on 5.0 acres. This site, although part of the Amendment to the
Provincetowne ODP, is not part of the current development request.
The Planning and Zoning Board approved the Second Amendment to the Provincetowne
ODP on September 27, 1993 for the purpose of allowing multi-family residential on a
portion of Tract B, previously approved for single family residential. This approval changed
7.64 acres (located at the southwest corner of South Lemay Avenue and Trilby Road) of
the overall 30.14 acre Tract B from a single family to multi-family use.
The Planning and Zoning Board approved the Provincetowne PUD, Filing One on October
25, 1993 for 93 single family lots on 50.34 acres. This site, although part of the Second
Amendment to the Provincetowne ODP, is not part of the current development request.
. Provincetowne PUD, Filing Two - Preliminary - #73-82T
August 5, 1999 P & Z Meeting
Page 3
The Planning and Zoning Board approved the Eagle Tree Condominiums PUD on August
26, 1996 for 92 multi-family dwelling units on 7.64 acres. This site, although part of the
Second Amendment to the Provincetowne ODP, is not part of the current development
request.
The subject property is part of the Provincetowne Amended ODP that was approved by the
Planning and Zoning Board on December 16, 1996 for single family and multi-family
residential, neighborhood commercial, and neighborhood parks and open space uses on
160.0 acres. The Board placed a limit of 955 residential dwelling units on the 160 acres,
with a maximum residential density of 5.97 dwelling units per acre, on their approval. City
Council upheld this decision at their public hearing on February 25, 1997.
2. Land Use:
This is a request for preliminary planned unit development (PUD) approval for 331
residential dwelling units (190 single family lots and 141 multi-family townhomes) on 70.0
acres, located on the south side of Trilby Road at Brittany Drive, west of South Lemay
Avenue, east of South College Avenue, and north of County Road 32. The proposed gross
residential density is 4.73 dwelling units per acre. It is in conformance with the approved
Provincetowne ODP and was evaluated against the All Development Criteria and the
Residential Uses Density Chart in the LDGS. This is a qualified Affordable Housing project.
Residential Uses Density Chart:
This request was submitted to the City for development review on March 27, 1997 and is
subject to the Density Chart that was in effect at the time, and that chart requires a
minimum total score of 60% to support 6 or fewer dwelling units per acre. The applicable
Density Chart requires that a minimum of 40 points be earned from the Base Criteria.
The request scores 64.1% on the Density Chart (with 47% awarded from the Base Points),
earning points for: a) being within 3,500 feet of a publicly owned, but not developed,
community park (Fossil Creek); b) contiguity to existing urban development
(Provincetowne PUD, Filing One to the north and east, Redeemer Lutheran Church to the
east); c) a percentage of the development being set aside for Affordable Housing; d)
having greater than 50 acres included in the project; e) having acreage devoted to
recreational use; and f) pedestrian/bicycle connections to the nearest existing City
sidewalk and bicycle path/lane. The Density Chart supports the proposed gross residential
density of 4.73 dwelling units per acre.
Provincetowne PUD, Filing Two - Preliminary -#73-82T
August 5, 1999 P & Z Meeting
Page 4
3. Desk in:
Architecture:
The multi-family townhome buildings will be 4-plex and 6-plex structures up to 29' in height.
They will be constructed of a combination of wood lap siding and brick or stone as masonry
accent. The roofing will be dimensional asphalt shingles. The detailed design, materials,
and colors will be determined with the final PUD plans.
Landscaping:
Street trees are being provided at a 40' spacing throughout the development. There is a
mix of shade, ornamental, and evergreen trees in the common open areas and detention
areas.
Parking:
All single family lots in Parcels D, F2, F3, G1, and G2 will provide for their off-street parking
requirements in driveways and garages on each lot.
The multi-family townhomes in Parcel H will provide for their parking requirements with
small surface parking lots and parallel parking along the private drives, local, and
connector streets along and within this phase of development. A total of 270 parking
spaces are needed for the mix of 1-bedroom and 2-bedroom townhomes and the applicant
is providing 270 spaces.
Solar Orientation Ordinance:
All 1905 single family lots are subject to the City's adopted Solar Orientation Ordinance.
A total of 115 of the lots meet the intent of the Solar Orientation Ordinance (115 of 190 =
61%) that requires a minimum of 65% of all single family and two-family lots comply with
the ordinance. The Planning and Zoning Board is authorized to grant variances to this
ordinance upon finding that the following requirements in (1), (2), or (3) have been
satisfied:
(1) That by reason of exceptional topographical, soil or other subsurface conditions or
other conditions peculiar to the site, hardship would be caused to a subdivider by
the strict application of any provisions of this Article. Such variances shall not be
granted if it would be detrimental to the public good or impair the intent and
purposes of this Article.
Provincetowne PUD, Filing Two - Preliminary -#73-82T
August 5, 1999 P & Z Meeting
Page 5
(2) That by reason of exceptional conditions or difficulties with regard to solar
orientation or access, hardship would be caused to a subdivider by .the strict
application of any provisions of this Article. Such variance shall not be granted if the
same would be detrimental to the public good or impair the intent and purposes of
this Article.
(3) The applicant demonstrates that the plan as submitted is equal to or better than
such plan incorporating the provision for which a variance is requested.
The applicant has submitted a request for a variance to the Solar Orientation Ordinance
based on the following reason:
The Site Plan, which originally achieved 65% solar oriented lots, lost several solar-
oriented lots in the redesign of the Cottage Home Area (Parcel G).
This area was redesigned primarily to improve and simplify the lotting layout by
eliminating several inefficient flag lots used to achieve solar orientation while still
taking access off the public alley (the City's Narrow Residential Street and Alley
Standard limits driveway access to the public alley only). As a result, several of the
north — south (solar) oriented lots along the east — west streets (of Benson Lane
and Battsford Lane) were changed/reoriented to east—west.
The new Site Plan proposes a slight reduction in solar oriented lots to 61% of the
total single family lots for the Provincetowne PUD, Filing Two.
In evaluating the applicant's variance request, staff has determined that the ability to
provide the required number of solar oriented lots has been diminished due to the
applicant's need to satisfy the individual lot access requirement as set forth in the City's
new Narrow Residential Street and Alley Standards. Therefore, staff is recommending
approval of the request for a variance to the Solar Orientation Ordinance based on criterion
(2), that by reason of exceptional conditions or difficulties with regard to solar orientation
or access, hardship would be caused to a subdivider by the strict application of any
provisions of this Article. In this case the ability to provide the public alley access system
takes precedence over the need to absolutely satisfy the requirements of the Solar
Orientation Ordinance. It was also determined that by granting of the variance would not
be detrimental to the public good or impair the intent and purposes of this Article.
4. Neighborhood Compatibility:
iThere have been two neighborhood meetings held for this development proposal. The first
meeting was on March 17, 1997 at Preston Junior High School. There were 30 interested
citizens in attendance, as well as representatives of the developer and the City. The
second meeting was held on December 9, 1998 at Preston Junior High School. There were
Provincetowne PUD, Filing Two - Preliminary -#73-82T
August 5, 1999 P & Z Meeting
Page 6
38 interested citizens in attendance, as well as representatives of the developer and the
City. Copies of the minutes from these two meetings are attached to this staff report and
recommendation.
5. Transportation:
This development will gain its primary access from Trilby Road via Provincetowne Drive
(a proposed new street) and from South Lemay Avenue via the existing
Province Road. There will be 2 secondary access streets from the existing
Brittany Drive along the east boundary of this proposed development.
FINDINGS OF FACT/CONCLUSIONS:
In evaluating the request for the Provincetowne PUD, Second Filing - Preliminary, staff
makes the following findings of fact:
* It is in conformance with the approved Provincetowne Overall Development Plan
(ODP).
* It meets the All Development Criteria of the Land Development Guidance System
LDGS .
* It is supported by the Residential Uses Density Chart.
* It requires a variance to the City's Solar Orientation Ordinance.
staff has determined that the ability to provide the required number of solar oriented
lots has been diminished due to the applicant's need to satisfy the individual lot
access requirement as set forth in the City's new Narrow Residential Street and
Alley Standards.
RECOMMENDATION:
Staff is recommending approval of a request for a variance to the City's Solar Orientation
Ordinance.
Staff is recommending approval of Provincetowne PUD, Second Filing - Preliminary -#73-
82T.
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Submittal to the City of Fort Collins for:
PRELIMINARY PUD PLAN AND SUBDIVISION PLAT
REQUEST FOR THE PROVINCETOWNE PUD - FILING TWO
KAUFMAN & BROAD OF COLORADO
8401 E. Belleview Avenue, Suite 200
Denver, Colorado 80237
March 27, 1997
Revised/Resubmitted August, 1998
Second Revision/Resubmittal March 23, 1999
PRELIMINARY PUD PLAN AND SUBDIVISION PLAT
REQUEST FOR THE PROVINCETOWNE PUD - FILING TWO
SUBMITTED BY (CONSULTANT TEAM):
Planning & Engineering:
Downing, Thorpe & James, Inc.
1881 Ninth Street, Suite 103
Boulder, Colorado 80302
(303) 443-7533
Drainage & Utility Engineering:
Parsons & Associates, Inc.
432 Link Lane Plaza
Fort Collins, Colorado 80524
(970) 221-2400
Traffic/Transportation Planning:
Leigh, Scott & Cleary, Inc.
1889 York Street
Denver, Colorado 80206
(303) 333-1105
Surveying:
Landstar Surveying, Inc.
1327 North Lincoln Avenue
Loveland, Colorado 80537
(970) 607-3294
SUBMITTED FOR (APPLICANT):
Kaufman & Broad of Colorado
8401 E. Belleview Avenue, Suite 200
Denver, Colorado 80237
(303) 220 -
DATE SUBMITTED:
March 27, 1997
Revised/Resubmitted August, 1998
Second Revision/Resubmittal March 23, 1999
• TABLE OF CONTENTS
I. PROJECT DESCRIPTION AND INTENT
A. Residential Uses
B. Parks and Open Space
C. Streets
D. Neighborhood Compatibility
E. Compliance with the Overall Development Plan and City's Comprehensive Plan
F. Proposed Open Space Dedications and Ownership
G. General Development Phasing
H. Land Development Guidance System — Criteria, Conformance and Applicability
II. LAND USE CONFLICTS AND MITIGATION
III. ALL DEVELOPMENT CRITERIA
A. Community-Wide Criteria
B. Neighborhood Compatibility Criteria
• IV. RESIDENTIAL USE CRITERIA AND DENSITY CHART
A. Density Analysis/Calculation (Criteria 1)
B. Park Dedication Credit (Base Criteria D)
C. Development Contiguity Credit (Base Criteria J)
D. Affordable Housing Credit (Base Criteria K)
E. Project Area Credit (Bonus Criteria M)
F. Recreational Open Space Credit (Bonus Criteria N)
G. Affordable Housing Credit (Bonus Criteria R)
H. Pedestrian and Bicycle Connections Credit (Bonus Criteria W)
V. APPENDIX
I. PROJECT DESCRIPTION AND INTENT
1. PROJECT DESCRIPTION AND INTENT
This proposed Preliminary Plan and Subdivision Plat request for Provincetowne PUD Filing Two
consists of a 75.4-acre portion of the 130-acre Provincetowne Amended ODP approved on
December 16, 1996. This Phase of the planned residential community consists of a variety of
residential housing types and densities, including affordable townhomes, a neighborhood park site
and common open space areas, public streets, trails and bikeways (see attached Land Use
Summary).
A. RESIDENTIAL USES
Residential uses include a variety of residential housing types and densities formed by five
neighborhood enclaves or parcels consisting of standard single-family detached homes(at
densities of 2.2, 3.2 and 4.1 units/acre) cottage homes (at 4.9 units/acre) and affordable, for-
sale townhomes (at 9.7 units/acre).
As such, the plan consists of 331 homes, including 141 permanently affordable townhomes,
at an overall density of approximately 4.7 units/acre.
The proposed plan includes a reduction in the density and use of Parcel H, per the approved
ODP, from multi-family apartments(at 17-20 units/acre)to townhomes (at 9.7 units/acre). A
reduction of more than 10 units/acre and 60 homes overall. This density reduction has
significantly reduced the traffic impact and potential land use conflicts to the surrounding
neighborhood.
B. PARKS AND OPEN SPACE
The plan includes approximately 20.5 acres of parks and open space areas representing
approximately 27% of the site area, including a 5.4-acre Neighborhood Park Site, to be
dedicated to the City as part of the submittal request; 15.1 acres of common open space and
trail corridors, streetscape landscape buffers (including landscape buffers along Brittany Drive
and Province Road).
Of the 15.1 acres of common open space and trail corridors, 8.67 acres meets the City's
definition as"Recreation Open Space" used in calculating open space credit in the
Residential Use Criteria and Density Chart(attached).
At this time, the Parks Board has formally reviewed and approved the proposed park site for
parkland dedication. (Please see attached letter with this resubmittal).
C. STREETS
The plan includes a variety of residential street types based on the City's new Street Design
Standards which include 4Y'wide sidewalks. The proposed street classifications meet the
City's criteria and standard in order to handle the proposed traffic volumes generated by the
project. A Traffic Impact Analysis has been prepared as part of this submittal request. The
proposed street design includes one minor variance to the City Street Design Standard for
Provincetowne Drive,which has been approved by the Director of Engineering. This
Variance Request is included with this submittal.
M
1
D. NEIGHBORHOOD COMPATIBILITY
The following sections include detailed information with regard to project's conformance and
compliance with specific neighborhood compatibility issues and criteria. The project has
incorporated several significant site planning and site design principles to effectively reduce
and minimize potential land use conflicts, as well as provide adequate buffering and transition
with the adjacent existing neighborhood. In addition, many of the projects"traditional
neighborhood design" principles(as described in this submittal)will provide a positive
contribution to the neighborhood and its appearances, and become an asset to the larger
community in the future.
E. COMPLIANCE WITH THE OVERALL DEVELOPMENT PLAN AND CITY'S
COMPREHENSIVE PLAN
The proposed uses and densities of this Preliminary PUD are consistent with the approved
Provincetowne Amended ODP,which was found to be in significant compliance with the
goals and policies of the City's Comprehensive Plan. Specific elements of the
Comprehensive Plan, associated with this project are referenced in the attached sections.
F. PROPOSED OPEN SPACE DEDICATIONS AND OWNERSHIP
The applicant proposes to dedicate the Neighborhood Park site to the City for future park
development and maintenance. All other common open space areas, including greenbelts,
streetscape landscaping, trail corridors, and buffers and pocket parks within individual
residential parcels will be improved by the developer/builder and maintained by a
Homeowner's Association established for the project.
G. GENERAL DEVELOPMENT SCHEDULEIPHASING
(See attached Key Map for a General Development Schedule and Phasing Plan for the
project).
H. LAND DEVELOPMENT GUIDANCE SYSTEM-CRITERIA, CONFORMANCE,AND
APPLICABILITY
The following Sections 11, III, and IV, address the projects applicability and conformance with
the applicable criteria of the City's Land Development Guidance System. Specific
explanations are incorporated where necessary, which address specific criteria included in
the Land Use Conflicts Chart; All Development Criteria(including Community-Wide,
Neighborhood Compatibility, and Engineering Criteria); and the Residential Land Use
Criteria and Density Requirements.
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II. LAND USE CONFLICTS AND MITIGATION
II. LAND USE CONFLICTS AND MITIGATION
The Land Use Conflicts Chart(in the LOGS)was used to identify the kinds of potential conflicts that
may occur between the proposed project and adjacent neighborhood, as well as identify potential
mitigation techniques to consider. The types of potential conflicts which may occur between the
existing low density residential of Eagle Tree and the proposed moderate density residential of the
Provincetowne project are relatively minor and include privacy, aesthetics, and noise/light/shadow
conflicts.
These issues have been addressed through specific planning and design measures to help mitigate
these potential conflicts including:
• Open space buffers along the interior perimeter of the project;
• Additional landscaping and berming along existing collector streets(adjacent to Eagle Tree);
Additional setbacks for homes fronting the existing collector streets adjacent to Eagle Tree;
• Orienting homes with front architecture to the adjoining collector streets shared with Eagle
Tree (as opposed to rear-yards and privacy fencing lining the street); and
Special rear-loaded housing products which reduce the impact of garage-dominated
streetscenes.
In addition, the proposed modification in the use and resulting density of Parcel H, from Multi-Family
Apartments(at 20 du/ac)to Townhomes (at 13.3 du/ac) has significantly reduced the potential land
use conflicts with the surrounding neighborhood.
The above issues are described in greater detail as part of the Neighborhood Compatibility Criteria
(Section IIIB).
5
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Land Development Guidance System for Planned Unit Developments
The Ciry of Fort Collins,Colorrdo.Revised vfs� 1994 �-
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III. ALL DEVELOPMENT CRITERIA
The All Development Criteria cover a range of issues that can arise during the development review
process. One of the assumptions upon which the LDGS is based is that any land use likely to occur
in the community can, in most cases, be made compatible with any neighboring land use through
careful design and buffering. The LDGS is also based on the assumption that increasing the
opportunity for higher density residential development and mixed land uses is good for the
community. As such, the LDGS acknowledges that land use conflicts may arise between existing
and proposed uses, but that such conflicts, once identified, can be alleviated or mitigated through
various design techniques.
The following text provides a more detailed explanation and description of the Provincetowne Plan
relative to specific elements of the All Development Criteria (see attached chart).
A. COMMUNITY-WIDE CRITERIA(Criteria A-1)
The Community-Wide Criteria are based on community-wide and comprehensive planning
goals and policies which influence and impact the larger community. The Provincetowne
project has carefully reviewed and considered these Criteria in the continued planning and
design process, as summarized below.
1. Solar Orientation (Criteria A-1.1)
Approximately 61%of the total single-family lots within the Phase I (Filing Two) area
meet the City's definitions of"solar-oriented lots". The following chart summarizes the
total lots by parcel area which are solar-oriented:
Parcel #of Lots in Total#of Lots %Compliance
Compliance
D 38 65 58%
F3 16 19 84%
F2 24 32 75%
G1/G2 37 74 50%
TOTAL 115 190 61%
The Preliminary Site Plan designates those lots which are solar oriented.
The City's LDGS Criteria requires a minimum of 65%of a project's single-family tots to be
"solar-oriented". As such, a variance to this criteria is requested and has been provided
with this submittal. The variance is a result of a redesign/relotting within the Cottage
Home Neighborhood (Parcel G) in order to improve/simplify the street design, provide
interconnectivity and limit driveway access to the public alleys.
2. Comprehensive Plan (Criteria A-1.2)
The Provincetowne Amended ODP (as approved by the Planning and Zoning
Commission on 12/16/96)was carefully reviewed and evaluated on the basis of the City's
Comprehensive Plan and found to be in substantial conformance with its goals and
policies. This submittal's proposed land uses and mix of densities, which are consistent
with the approved ODP, are supported by the following elements of the Comprehensive
Plan:
8
• 1977 GOALS AND OBJECTIVES:
Housing
Housing Cost and Construction
Promote reduction in the cost of housing for all local residents.
• Encourage new residential construction within and adjacent to areas where adequate
facilities and services exist.
• Encourage attractive multi-family residences and clustering of single-family units.
Neighborhoods
Promote the continued availability of housing to all persons in the community, regardless
of income, which is safe, accessible to shopping, schools, employment, and social
services, and reflective of a broad range of needs for size and type of house.
• Encourage the diversity of housing types which allows a mixture of income levels in
all neighborhoods.
Special Needs
Provide for the special needs of low income residents.
• Utilize both state and federal housing programs when applicable.
Provide financial and other public incentives for low-income housing developments
• Encourage private initiatives to develop low-income housing on a local level.
• Disperse publicly assisted housing throughout the community so it is not
concentrated in a specific area.
• Encourage approaches to low-income housing programs which are attentive to a
sense of community and neighborhood identification.
Land Use
Peripheral Growth
Locate development in the urban fringe in a manner which will efficiently utilize public
services and facilities.
• Urban development in the urban service area should be consistent with the provision
of utilities, schools, parks, and other public services and preferably contiguous to
existing development.
Guiding Growth
. Guide the location of new residential growth so as to assure the maximum utilization of
the land and public facilities and services.
9
• Encourage urban density residential development to occur within the City, phased
urban density residential development in the urban service area, and rural
development beyond the urban service area.
Acquire open space as a tool for shaping and directing growth.
• Use open space as a buffer between conflicting land uses and to preserve
neighborhood identity of developed areas. Such open space need not be large or
wide. Linear strips often work well.
• Identify boundaries of urban service area with open space. Agricultural land can
serve the same open space purpose in this case as acquired public land.
• Encourage joint use of drainage facilities, such as open channels and detention
ponds, for open space purposes.
Land Use Compatibility
Promote better integration of land development and transportation facilities.
• Reduce street widths in new residential developments where appropriate.
Encourage more land-efficient street and highway systems.
• Establish interior movement system standards within residential developments that
meet safety and other needs of pedestrians.
Environmental Protection
Impacts of Development
Insure that future development will be accomplished so as to create the least degradation
of the environment.
• Insure that the type, design, and location of new development be compatible with
environmental considerations.
• Encourage developers to provide protection and maintenance of the environment.
• Encourage the development of a future land use plan which deals sensitively with the
relationships between the man-made and natural environments.
Open Space Preservation/Acquisition
Expand opportunities for the acquisition of parks and open space.
Public Facilities and Services
Utilities
Supply all utilities in adequate amounts, reliably, economically and in an environmentally
acceptable manner.
10
. LAND USE POLICIES PLAN (LUPP)
Policy 3a- The City shall promote maximum utilization of land within the City.
Policy 22- Preferential consideration shall be given to urban development proposals
which are contiguous to existing development within the city limits or
consistent with the phasing plan for the City's urban growth area. (See Pt.
Chart V).
Policy 74- Transitional land uses or areas(linear greenbelts or other urban design
elements) should be provided within walking distance of existing or planned
residential areas.
Policy 75- Residential areas should provide for a mix of housing densities.
Policy 76- Density bonuses should be provided to developers who provide low and
moderate income housing (a minimum 20% affordable housing is required as
part of the RFP).
Policy 79- Low-density residential uses should locate in areas:
a. Within walking distance to an existing or planned neighborhood park and
within easy access to a community park(proposed neighborhood park on
Parcel I will be dedicated to the City at no cost); and
b. In which a collector street affords the primary access.
. Policy 91 - The City should protect the scenic recreational value of the City's lakes,
rivers, and streams from encroachment by incompatible uses.
Policy 92- Adequate public access to the City's lakes, rivers, and streams should be
maintained.
Policy 95- Neighborhood Parks:
a. A neighborhood park(s)should be provided in every square mile section
of the City that is predominantly residential;
b. Neighborhood parks should be centrally located within the square mile
section with streets on at least two sides for access purposes:
c. Primary access to a neighborhood park should be by collector streets;
and
d. The size, number, and location of neighborhood parks should be directly
related to the population of the square mile section.
Policy 97- Parks should be designed for safe access by users.
AFFORDABLE HOUSING
In October 1992, the Fort Collins City Council adopted a new affordable housing policy
designed to define the City's roles and responsibilities and to strengthen the City's
commitment to affordable housing in the community.
11
Part of the City's affordable housing policy states that the City will:
"Support and encourage the private development of affordable housing in the
community
and,
"Stimulate the private sector in affordable housing development as a growth industry."
The Council has also adopted a Comprehensive Housing Affordability Strategy
(CHAS)which lists as a community priority to:
"Increase and preserve the supply of affordable housing units.'
The Community Development Block Grant Program Policies Plan (1987) contains the
following policy:
"Affordable housing opportunities must be expanded within the Fort Collins
Community offering low and moderate income families and individuals the option to
live in the neighborhood of their choice."
3. Wildlife Habitat(Criteria A-1.3)
Approximately 0.38 acres of a 21 acre cattail marsh is located on the northwestern edge
of Parcel H of the Provincetowne Development. This marsh provides habitat for red-
winged blackbirds and other wildlife potentially sensitive to the adjacent development.
A functions and values assessment was conducted to determine the necessary width of
buffer needed to protect the wildlife functions and values of the marsh. The assessment
concluded that a buffer of 66-82 feet would be appropriate provided human use of the
buffer was excluded, and dogs and cats were not permitted in either the buffer or marsh.
This buffer could be reduced to 50 feet or even less provided vegetation was used to
screen views to the cattail marsh. As such, the plan for Parcel H provides a 50 ft.
minimum buffer, with building setbacks ranging from 55 to 110 ft. This buffer includes
extensive landscaping, with native trees and shrubs,which help screen the wetland to
preserve the existing wildlife habitat.
A copy of the Functions&Value Assessment for this existing cattail marsh and wetland
buffer study was provided to Natural Resources. A copy is included with this resubmittal.
4. Water Conservation (Landscape and Irrigation)(Criteria A-1.11)
While the project incorporates a network of common open space areas and corridors, the
intent is on water conservation. A goal of the landscape design is to ensure that the
common open space areas and streetscapes, along with their associated irrigation
systems, are designed and installed in a water-conserving manner without sacrificing the
project's attractiveness. As such, the project will adhere to several key design principles:
Use of native, drought tolerant trees, shrubs, and grasses.
• Use of drip irrigation system for tree and shrub beds, where possible.
Use of natural mulches in shrub and planter beds to reduce water loss from soils.
Grouping of plants with similar water requirements on the same irrigation zones.
• Avoiding small and narrow landscape areas which are inefficient and difficult to
irrigate and maintain.
12
• The development of landscape and irrigation zones which are based on the functional
use of each area (for example, trail corridors will be treated as semi-natural areas,
while parks and streetscapes will appear more manicured and intensively irrigated
and landscaped).
• The use of grading and berming, to enhance the landscape design and assist in
water management
S. Residential Density (Criteria A-1.12)
The proposed Preliminary Plan incorporates a variety of residential housing types and
densities which are consistent with the approved ODP. The overall average density for
Phase 1 is approximately 4.7 units/acre, with individual product densities ranging from 2.2
to 9.7 units/acre. This is consistent with the City's density criteria while still providing
neighborhood compatibility.
The plan's diversity of uses and density is supported by the City's criteria which not only
sets a minimum overall density of development, but also specifically encourage variety
through a mix of housing types, including some high and low density uses. This criterion,
as stated in the LOGS, is also intended to help ensure that the City meets affordability
objectives; encourages transit ridership; encourages orderly economic provision of public
facilities and services; improve air quality; minimize urban sprawl; and enhance the social
aspects of neighborhood.
The proposed Preliminary Plan also incorporates a modification in the use of Parcel H
from Multi-Family Apartments to Townhomes, effectively reducing this areas density by
about 10 units/acre and the overall units by about 60 homes. This will also reduce
potential land use conflicts and neighborhood compatibility concerns.
B. NEIGHBORHOOD COMPATIBILITY CRITERIA (Criteria A-2)
"Compatibility", as defined by the LDGS, does not require that the proposed development be
"the same as", but that they must fit in with, be sensitive to, and complement their surrounding
environment and neighborhood. While the densities between Provincetowne and the existing
Eagle Tree subdivision are not the same, the proposed land uses and densities of the
approved ODP were found to be compatible with the existing neighborhood, and that
additional Neighborhood Compatibility Criteria would be addressed during the review of
Preliminary and Final PUD Plans.
Neighborhood Compatibility Criteria deals with the aspects of the development that directly
affect the immediate surroundings and neighborhood. The proposed Preliminary Plan has
attempted to address these criteria to ensure that the project is sensitive to and does not
negatively impact the character of the surrounding neighborhood. Key elements of the plan
include the following criteria:
1. Vehicular, Pedestrian, and Bicycle Transportation (Criteria A-2.1)
The proposed transportation system has been designed to mitigate potential problems
with surrounding development by:
Providing safe and adequate connections to surrounding streets which provide for the
. distribution of traffic and help avoid potential bottle-necks at entry points to the
neighborhood.
13
• Providing alternative transportation opportunities through on-street bike lanes,
sidewalks along all public streets and open space trails(unpaved), which connect to
the adjacent street and open space system.
• Designing all streets to meet the City's new Street Design Standards.
A detailed Transportation Impact Analysis has been prepared and submitted as part of
this request.
2. Building Placement and Orientation (Criteria A-2.2)
Residential buildings located along the perimeter of the project will be carefully oriented
and buffered,where necessary, to provide compatibility and transition to the surrounding
neighborhood, as well as visual privacy.
• Homes along existing collector streets adjacent to Eagle Tree will be oriented to
present attractive front architecture to the street and the adjacent neighborhood with
limited vehicle access. For example, Cottage Homes in Parcel G will incorporate
rear-loaded access thereby reducing the impact of garages and driveways on the
adjacent neighborhood and street. An additional setback and landscape buffer is
also provided along Brittany Drive.
• Standard single-family homes in Parcel D will incorporate an additional setback and
landscape buffering along Province Way.
• Interior homes adjacent to Eagle Tree in Parcel G, F2, and F3 will be set back and
buffered by a landscaped open space/trail corridor between the two neighborhoods.
3. Natural Features (Criteria A-2.3)
The physical elements of the proposed plan have been carefully planned to minimize
potential impacts to the site's natural features and characteristics, including the following:
• Natural Topography and Drainage-In general, the site's natural topography and
drainage system has been preserved through sensitive site planning and grading.
Buildings and roads have been designed to follow the natural contours to minimize
extensive cut and fill. Building foundations will conform and be"stepped"to fit the
natural grade. Drainage swales and detention ponds will have a smooth and natural
transition to the surrounding area, and off-site drainage flows will be limited to historic
flows.
• Existing Wildlife Habitat- One of the initial goals for development of the
Provincetowne property was to preserve a large natural area around and to the east
of Benson Reservoir due to its existing natural amenity and wildlife habitat. This goal
played an important role in the physical layout and organization of the Overall
Development Plan for the project.
A wildlife inventory, prepared by the Natural Resources Department for the South
Fort Collins Area, indicated that an existing prairie dog colony in the southeast portion
of the property is an important winter food source for rapture, such as hawks and
occasional eagles,which use the surrounding large trees to survey the area and
roost.
14
As a result, the proposed ODP has concentrated development in the northern half of
. the site, as much as possible, to preserve a large natural area on the southern half in
order to protect the existing wildlife habitat in this area. This area also provides a
significant public open space amenity for the larger community, as well as a natural
transition and buffer between the City and County boundary.
• Wetland Protection -In order to preserve the existing cattail marsh adjacent to the
townhomes site(Parcel H), a landscape buffer zone and building setback is
proposed,with extensive landscape screening along its eastern edge to protect the
wetland and its wildlife habitat. We understand from discussions with the Natural
Resources Department that 100 ft. is the City's normal buffer zone, but that they
would consider a shorter distance, if we could provide evidence that the wetiand
would not be impacted by the reduced distance. A reduced buffer setback was
considered necessary, given site constraints and density reductions for this parcel.
A study prepared by our ecological consultant has concluded that a setback or buffer
of at least 50 feet between the development and the marsh would be appropriate,
provided dense vegetation is used to screen views to the marsh, human use is
excluded from the buffer, and pets are not allowed in the buffer or marsh. A copy of
this report has been provided to Natural Resources and is included with this
submittal. (See also response to Wildlife Habitat on page 12).
4. Emergency Access(Criteria A-2.5)
All streets within the project are designed to ensure that emergency vehicles can safely
access homes and maneuver within the neighborhood in accordance with the Fire Code
Requirements (outlined in the LDGS).
5. Pedestrian Circulation (Criteria A-2.6)
The street and open space system within the project has been designed to accommodate
alternative modes of transportation which will encourage people to walk and bicycle to
and from the site. This system will include:
• On-street bike lanes along collector and local connector streets within the project;
• Detached sidewalks (with tree-lawn plantings)along all public streets;
• Walking trails within the common open space corridor; and
Safe and convenient sidewalk and bicycle connections to the adjacent neighborhood
and city street system.
When complete, this system will provide a comprehensive network of bikeways, trails,
and sidewalks which will link individual residential areas to the site's public facilities and
amenities, as well as to the surrounding neighborhood in a safe and efficient manner.
6. Architecture(Criteria A-2.7)
The proposed architecture for the Provincetowne neighborhood will reflect a "traditional"
architectural theme which is supported by the"traditional neighborhood design" or
"residential village" planning concept emphasized by the project's physical layout and
organization. This"traditional neighborhood design" concept for Provincetowne is
15
reflective of the City's new Master Plan and Land Development Guidelines. Key
elements of this"traditional"design theme will include:
• Simple building and roof forms-incorporating one and two-story building elements, to
break up building mass and provide human scale and proportion;
• Traditional materials, details, and windows-including wood siding with brick and
stone accents and foundation walls;
• Covered front porches; and
• Front architecture with reduced emphasis on garages and garage dominated
streetscenes-including rear-and side-loaded garages and garages recessed from
the main elevation of the house.
Architectural diversity and variety will be encouraged in Provincetowne by allowing
builders of individual residential parcels to provide different design solutions for their
products which represent compatible interpretations of this overall architectural theme.
While the scale and types of some of the homes proposed in Provincetowne will differ
from the adjacent Eagle Tree subdivision, a compatible and gradual transition will be
provided between these two neighborhoods by:
• Providing a compatible architectural style and character in adjacent parcels-
including similar materials, colors and building forms and details;
• Locating the projects largest single-family homes and lots along the projects
perimeter,
• Providing increased setbacks and enhanced landscape buffers; and
• Presenting "front" architecture to the adjacent collector streets and neighborhood (as
opposed to rear yards and privacy fencing lining the streetscape).
7. Solar Access(Criteria A-2.10)
As stated previously, approximately 61% (115 of 190) of the total single-family lots are
designed to be"solar-oriented" as defined by the City. In addition, the projects extensive
open space system and lotting layout, will help homes maximize the projects potential
access to sunlight and solar-gain. (See Solar Orientation on page 8).
8. Setbacks (Criteria A-2.12)
Homes within the Provincetowne project will incorporate appropriate setbacks based on
the proposed product type, density, and street classification.
While the development standards have established minimum building setbacks, the
lotting layout and design will encourage varied setbacks within the proposed building
envelope in order to add visual interest to and improve the appearance of the streetscene
(by breaking up long rows of homes).
Additional front and side yard setbacks have been provided for homes which front onto
collector streets adjacent to the Eagle Tree Subdivision, in order to provide consistent
setbacks with the adjacent neighborhood.
16
. 9. Landscape(Criteria A-2.13)
The landscape design for Provincetowne is designed to(1)enhance the aesthetic
appearance of the project and neighborhood; (2) provide visual screening and buffering of
adjacent residential areas and the surrounding neighborhood; and (3) provide a natural
transition and buffer between the development and existing natural areas(including the
wetland adjacent to Parcel H).
Additional landscape, buffers, including evergreen trees and berming, is proposed along
the existing collector streets and interior edge adjacent to Eagle Tree, in order to mitigate
potential conflicts and soften the transition between the adjoining neighborhoods.
The landscape design concept also incorporates water conserving principles as outlined
in the"Water Conservation" Section, including the use of efficient irrigation and drip
systems, limited turf areas, mulches, and low-water demanding plants.
10. Residential Neighborhood Signs (Criteria A-2.14)
The Preliminary Landscape Plan includes Entry Design Concepts which consist of entry
identification signs and supporting landscape treatments to be provided at key locations
within the project. This will include Project Identification Signs at both Trilby Road and
Province Way, as well as at least one Neighborhood Entry Sign into each residential
parcel (community wide H.O.A. to maintain all signages).
17
IV. RESIDENTIAL USE CRITERIA AND DENSITY CHART
ACTIVITY:
Residential Uses H
DEFINITION:
All.-esidential uses. Uses would include single family attached dwellings,townhomes, duplexes,
mobile homes, and multiple family dwellings; group homes; boarding and rooming houses,
fraternity and sorority houses; nursing homes;public and private schools; public and non-profit
quasi-public recreational uses as a principal use; uses providing meeting places and places for
public assembly with incidental office space; and child care centers.
CRITERIA:
The following applicable criteria must be answered`fes" and implemented within the
development plan.
Yes No N/A
1. DOES THE PROJECT EARN THE MIND"PERCENTAGE
POINTS AS CALCULATED ON THE FOLLOWING"DENSITY
CHART H"FOR THE PROPOSED DENSITY OF THE
RESIDENTIAL.PROJECT? The required earned credit for a
residential project shall be based on the following:
60 percentage points=6 or fewer dwelling units per acre
60- 70 percentage points=6-7 dwelling units per acre
70 - 80 percentage points=7-8 dwelling units per acre
80 - 90 percentage points=8-9 dwelling units per acre
90-100 percentage points=9-10 dwelling units per acre
100 or more percentage points= 10 or more dwelling units per acre
2. DOES THE PROJECT EARN AT LEAST 40 Yes No N/A
PERCENTAGE POINTS AS CALCULATED
ON THE FOLLOWING"DENSITY CHART H"
FROM BASE POINTS?
Land Development Guidance System for Planned Unit Developments. The City of Fort Collins,Colorado.
Revised as per Ordinance No.2,1996.
18
Firaed-
Criterion Clem Credit
a 2000feddaeesdoti; ill I I amvice°enteroramighbmboodgwviacedwtobooaeWucfedmapwt 20%
dthepsajet (Ifdw p%Od 6 pcopond to be memudod•ace moltipk phew,mcb neigbbabod service omtr
mot be aastroded u a part dtha phm fwvAim h approval is caught)
b 650 fad clan asking swp(applieabk oolyto pojaem having a density dad lest six[61 dwelling wells 20%
par sae on a you acreage bun)
4000 fed loan aeufieg°°®milyhegimal shopping err.or a musexmLLyh°poesl shappug oedarb be 10%
c C constructed as a pat dine project. Of the poled is ptyose'to be condnvrd in multiple phone,such
comet nMdrooimal shopping owner must be eructed as a put dthe phase for which approval is sougha.)
3500 fat davaoncgtrighboAoodarao®mby park or a cramay facility(DCCEFf GOLF COURSES); 20%
r
d 71c 3500 fed of a publicly owned,but Not davekpe4 aighbrtmd Or community Pak or community facility 10%
(DCCEFI•GOLF COURSES)r e
3500 fed daptNkly awned golfamse,whe*m developed runt 10%
: e 2500 feddat cadntmg seLool.mediog all agctimmmtsd the State ofCokadocompulwydumim laws 10%
f 3000 fad d an emtmg ma*employment terns.ra me*employment comer to be constructed as a pat of 20%
thepojact (Ifthe project ispmposedabeomuudad is tnssltiple Phrase.aurhmiyre�loymaYceatraasst
be constructed as a put ofthe phase for which approvall is sought) No building o9me or business park or
shopping mclrwhich has saved as the basis fr the ela®mg daedlt under any other base auais of this
Density Chart case also be used as the basis for claiming credit under this criterion.
g 1000 fed clan misting ch0d am actor r a cfi0d care oaaam be constructed as a part dihe project (Ifthe 5%
peojedopopmdmbec mumdinmb*lephur,wehehildaaecm wnriabeaomuctcduapataf&e
Piuufr which approval rscogbt)
"North Fat Collins" 20%
h
�....
The cemeal ahmw Diatrid 20X
A project whom boundary is contiguous to sainting urban develepmmt Credit may be earned as follow= 30%
O% Frpojedawbmpopatyboudayhu 0.10%coodiguity.
10.15% Frpojeds whaepopatybmxiwyhul0.20%ariguay; /L2%
1 -20% For •emwbm bm3duybu20.30%codi
1*1 0.25% For, j° I wboapop cry .40%oonshguay,
�„ � 23 3btIL—Fr pgeds'Gr6rq'�'hl—am�icy'�40=Sl)R�oomh�y.
Iftha poled mram.dwelling ad hide for individuals naming SO%rka dtb radian isecmedCity IS% o
=k- residents,as djumd for family siu,and paying Ica than 30%oftheir yen income fr housing,mdhd'mg 'S
.,. urOQb Affadabk admWethe Dwelling
k C D�g�. paampdAtfadalnk unitsbthe toW nsmbr
a7 M. ddwellingmmmthepojatand rmerthtpercemage,upmamasirmmd13% (Iftheprcimial 1
`9 r: mbe®mucted mnzlk le phases,the Affordable Dwallmg Units men be constructed as a pat dthe phase for
which approvals sought) In adrto maces that The ASadabk Dwaing Units remain affoedsbk for a ponied
dmtkuthm25 ynq the dehvbprahsll e®d suc3 protective oamaat as maybe aquud by the Citymdr
Sea 29-526(nc41
sue - i crm (( sL- crzrnr,)= 47%
�E. 0.t`adted �eK'r �'a>- �v�.s♦-h�tcu.T(e•. anct ��lculc�-[,r,•.
Df G✓P.d h�'•
jq
Fed _
criteria credit
fa®iKaa�aaaa�mapn�s.ai�a�a�,�a.�a>>te��aithwmt=a&+�aapplicaimcr.ranatiwmwv �
1 "Mus es thdmgle ounc issed energy avatim mauve a rap beyond then nmallY caed by City Code.a 5%boom may be
named for every 5%ee&wdm m ae energy nsa
t
M* CWcvhb a I%boom far every 50 aces mchded in the Project .5
II CalaWethe pemaYaQe ofthetact aera mthe project thatmdevotedbreaetioosl sue. Fla%ofthatpetariagenaboom.
If the appliont et am*to pevaving permanent of+ne open space that meets the Cky's vn" t req'irm,me,akvlata the
U pecntage esfibs open epee aerna¢bthabtsl deveopmsnt aoreruge a odentatbsperomuonabaaa
ffpaa ofthe total development budget is to be sped on mighbohood public traoaa faali is which are real requi ed by Cay Code,
p cow a2%boom far every$100 pa dwelling task invested
Ifpwafft WW de elopneotbuded s to be spemm neighborhood fse7ihes and services which are not otherwise,eegdved by City
Q Code,crier a 1%bens for every SI00 per dwelling unit mvebcd
ffthe pmjeotcontains dweL'mglmm ant aside for iodividmb earning 80%a leer oftbe madin hneme nfCay residues.a Auded 5
r SF` for family atra d PaYiog ern then 30%oftheir
Ames loceme far hon®g�g Mhnie CAfledeble D-4109 U�"?.
almal the percentage of Affordable DwditUnbs to de:total amber of dwelling units mthepaojatd emathat pemrriage
e aboov,uplo amsodmtm of 15% (Ifthepuoied is Proposed to be constructed in mukiplapkases,the Affadabs Dwelling Units
'.F nsmbecrosoeradnapaaaftwpbmfw%bicbsppovaasmughL) In order to bum thatthe Afadable Dwelling Units retain
afadabsfcrapenioddint hem than 25 yam,the developer shallraced such protective covenants n maybe requmd by the City
under Sec.29-526(Jx4}
a Ifaeotmax s being made to develop a specified percentage ti total to ttmba of maker for Type "H"
®
handicapped housing at defined by the City of Fat Collies alcvlate the boom as,follow=
S Type-A!' .5 xTvoe"A"Units
Torah Units
In no eon shall the combined berm be grata than 30%
Type'B" 1.0 x Tyre'B"Units
Total Units
.. '.. s If the site or adjacent Property cootain a historic build'mg or place,a homes may be mined fa the following:
t 3% For paevemiutg or mmi anon outside influence adverse bits preservation(a.g.mvimemw"L sod net aaahstie,
commie d=old fivtata}.
3% For aaaamgthanewatnranw will be in keeping with the character of the building orpsoe,while avoiding total units;
propashtg adgdw build'mi pace monies,•.,,.. preservation improvementin z; 3X Fa use of or that will ludbks nod• n
' appropriate manecr
V If a aa0 tithe mlhe s within the a io en elevated
Pesoon mgnseell 4' g nwhiple fiumflypaoyaR provide uodergomd, bssthdmC
prying structne n an aoceesay,use to the Primary sycctore,a berm may be earned as follows:
9% For providing 73%or more ofthe puking in a stroctom
6% For providing 50-74%ofthe parking in a stnmroes;
n :.T 3% For providing 25-49%ofthe puking in a tltuc4va
If co®kmeot'sbeiogmdeb provide approved smoussit'e fire extinguishing systems for the dwelling mar,enter a beam of 10%
Ifthe appliao chits to providing adequate,safe and estoveniem pedestrian and bicycle connections between the pmjea and any 5 /
y�Ffi. W ' of the deahnation points dumbed below,calculate the bonus n follow= e
'�':g 5% Fa omecamg m the nearest e9sting CaY sidewalk sod bicycle patbAme;
5% Facconeang to any ermnmgpubhic school,park and trank stop within the dist—n dead in this Density Chart;
5v� Fur eomueelin b m adaio¢Chry bicycle tnr7 which s b a traverse the 'at
.:.... .....
TOTAL 69 Z/v
See atl ached }etc} -Fe,• JKS h Ftcs.heevn and cr—[C- .f C- 7 r+, 0 f Cr-ed i t .
2a
IV. RESIDENTIAL USE CRITERIA AND DENSITY CHART
The following is a justification and analysis of the requested credit for the Residential Use Criteria
and Density Chart H (attached) based on the proposed Preliminary PUD submittal.
A. DENSITY ANALYSIS/CALCULATION(Criteria 1)
The project assumes that 60 percentage points are required based on the proposed project
density:
• Overall Residential Density (331 units/70.0 acres') =4.7 units/acre
'(excludes proposed neighborhood park and fire station sites)
B. PARK DEDICATION CREDIT(Base Criteria D)
As part of the Preliminary PUD request, the applicant proposes to dedicate a site to the City
as a future Neighborhood Park(see Preliminary Plan). The applicant has been working with
the City and Staff during the review process to evaluate the site, prepare a legal description
and boundary survey (as required by the City) and develop an Escrow Agreement for transfer
of the proposed site to the City contingent on the projects approval. The Park Board has
reviewed and approved the proposed park site for dedication at this time. (See attached
letter).
C. DEVELOPMENT CONTIGUITY CREDIT(Base Criteria J)
Credit for contiguity with existing urban development adjacent to the proposed project is
based on the following boundary analysis and attached Key Map:
• Total Project Boundary (Length) = 14,324 L.F.
• Portion of total project boundary
contiguous to existing development = 4,814 L.F. or 34%
• Credit(20-25%)for projects whose
boundary has 30-40%contiguity = 22%
D. AFFORDABLE HOUSING CREDIT(Base Criteria K)
As part of this PUD request, the Townhome Neighborhood (Parcel H) proposes 141 for-sale
units which will meet the City's Affordable Housing Criteria. This represents approximately
45% of the total residential dwellings proposed in the Filing Two area. Additional units may
be proposed in future filings to meet the conditions of the approved Provincetowne ODP. A
protective covenant shall be recorded by the developer/builder of these homes to ensure that
these dwelling units remain affordable as required by the City Code, Section 29-526(J)(4).
(See attached letter).
E. PROJECT AREA CREDIT(Bonus Criteria M)
• Project Area = 75.4 acres
• 1% bonus per 50 acres = 1.5%
21
F. RECREATIONAL OPEN SPACE CREDIT(Bonus Criteria N)
Recreational Open Space,within the project, which meets the recreational space
requirements of the LDGS, shall include pocket parks, common open space areas, and trail
corridors, based on the following area analysis and attached Key Map:
• Total Recreational Open Space Area = 8.67 acres
(excludes dedicated Park Site)
• Total Project Area = 75.4 acres
• Percent of total project area devoted to recreational use = 11.5%
• 1/2 credit allowance= 5.7%
G. AFFORDABLE HOUSING CREDIT(Bonus Criteria R)
See response to Criteria K above. An additional 5%was agreed to with City Staff for a total
credit of 20%.
H. PEDESTRIAN AND BICYCLE CONNECTIONS CREDIT(Bonus Criteria VIA
The proposed project includes a combination of on-street bike lanes(4.5 ft.-wide), sidewalks
(along all streets)and unimproved trails (within the Open Space/Trail Corridor)which will
connect to the City's existing sidewalks and bike lanes within the adjacent neighborhood and
arterial street system. As such, credit for connecting to the adjacent City sidewalk and bike
lane system is 5%. The proposed pedestrian and bicycle circulation system also provides
safe and convenient access to existing and proposed school bus stops and future transit
stops in this area.
S:%,SHAREIW PWISCPROJ.1•PIPROV INCEIODP.wPD
•
22
TRILBY ROAD
t P '• .�.�T
coop 6 v cuop ew t
t J�
Lit
UFJnBvi; L, orpo E ~r 1�—
t
1
LT- T
AIL�
PARCEL J
mvalsqao
lq &val-opmemt Coil JOUI GR {tEEfLIA
FOC-f(l A Of FIVJed- Sov Try ad jciceKl- -}a eXI4+iK urbaN• dc�e1
Gsurf'ictuovs Sou �y 4,Ys l4• �34%�
-- Novi $ov - r4 L,-
-tattt� SouFun�Y - tµ, z � t,.l= Cloc%)
SCALE 1 " = 500 '
MAR 22'99 17:50 FR DOWNING THORPE DAMES 303 443 7534 TO 19704162UeU r.ucluc
j07 77s 6as6 P.O�i�b�
MAR-11-1999 18:22 KALt=MAN.& BROAD
.. Community Planning and Environmental Services
'= '' Advance Plarudnt Departaarent
K
• City of Fort Collins mMO
TO: Priority Processing Distn'btw a List
MAmFRO A E.Watts,City Plaooer
SU=Cr Priority ProcessOg for Affordable,Housing
Ptovumetowa
DATE: September 10, 1998
Provincetown is a large PUD southwest ofYemay and Trilby. Its developer,KauSmatl and Broad,
is required to make at least 30%of its residential units affordable by its eoatraar with the City
(which currently owns the land). Most of those units will be townhouses for sale,wl&e some may
be single funnily homes for sale, All of those urats will have prices that are affordable to
households a mmS ST/s oftbe Area Medina Income Therefore it quabraft for?notify
Proeessiqg as an affordable housing project.
Please,mtplemeat Pnonty Processmg procedures for this projem s development review process.
The developer a*mi tod an application for Frelimooaty approval ofPhase I on March 27, 1997,
and revisions were submitted on August 27, 1998.
Ifyou have any questions.please call me at 221-6342. Thank you
poat-a`PSX Note 7671 Ow 3 11 =w ' I
,e el r~..
pl. yII W
s ZZo-<co t
m. 303 9 Z 73—I r13 O Fa
. 282 North College Avenue-P.O.Box a80• Fort CoUirs,CO 80522,M)• (970)221-6376
FAX(970)224-6111 • TOD(970)224.6002 • F njarfl:aolanainr*,4 ..+err: • ... TOTAL P.03
MAR 11 '99 19: 15 303 773 6436 PAGE•003
** TOTAL PAGE .002 **
NEIGHBORHOOD MEETING MINUTES
PROJECT: Provincetowne PUD 2nd Filing
DATE: March 17, 1997
APPLICANT: Jim Harmon, PrideMark Development
CONSULTANT: Rick Volpe, Downing Thorpe and James
STAFF: Michael Ludwig, City Planner
Oi estions/Concems/Comments
1. What is the density of Parcel H?
A. Parcel H on the CDP showed a range of 17-20 units per acre (170 to 200 apartment
units). This preliminary PUD proposes 140 townhome units on approximately 10.6
acres, a residential density of 13.3 dwelling units per acre. The proposed buildings
are one and two stories high.
2. What are the densities of Parcels G1 and G2?
A. Parcel G1 planned for approximately 57 cottage homes (approximately 5-6 dwelling
units per acre). Parcel G2 is planned for 12 standard single family lots
(approximately 4 dwelling units per acre).
3. Define cottage vs. single family.
A. Cottage typically means a home on a small lot(approximately 3,000 to 4,000 square
feet) with a side or rear garage. The price is about $110.00 per square foot in
Denver.
4. Are there any private drives?
A. It is a mixture of public streets, alleys and private drives.
5. I'm concerned about the rear lot (alley loaded) garages for safety situations like
people coming home at night.
A. Each garage will have a motion censored light.
. 6. What is the intent for guest parking?
A. Guest parking would be along the streets as is the case with almost all single-family
developments.
7. Will there be covenants on fifth wheels and campers?
A. They are not allowed anywhere except inside a covered garage.
8. What about the trails? Could you ask the city to do the trails? Then the kids
wouldn't have to ride on the street.
A. There will be a graded foot path (non-paved) in the natural area. Otherwise, City
standards require on-street bike lanes, as opposed to detached bike paths. The
sidewalks will be detached.
9. With so many car trips per day, you would think it would better than letting kids on
the streets.
A. The City's Street Standards require on-street bike lanes and detached sidewalks.
10. Are there streets that don't have bike lanes now?
A. Existing residential streets won't be widened. Some improvements to Trilby and
Lemay will be required. This would include the striping of bike lanes.
11. How are you anticipating being able to sell these properties when such larger
homes are nearby?
A. The price will be what market will bear. It is our experience that neighborhoods with
a mix of housing types, sizes and price ranges sell well.
12. What are the price ranges in the development?
A. It's early, I'm not sure yet. Likely 120,000 to 160,000 for the cottage homes and
standard single-family. The townhomes will be permanently affordable.
13. What does "permanently affordable" mean?
A. Housing that can be purchased by persons who earn no more than 80% of the Area
Median Income where they pay no more than 30% of their monthly income for
housing costs. The Area Median Income in Fort Collins for a four person family is
currently$50,600. (50,600 x 0.80 x 0.30=12,144 which is approximately$1,012 per
month for housing costs for a family of four). Housing must be affordable for a
period of not less than 25 years.
14. The average cost of Eagle Tree is $215,000 and Provincetowne $160,000. That is
a big gap.
A. It's not that big to me. At 128th and Sheridan(Denver) built$150's. Right next door
are houses in the high 220's.
15. In reference to area G1, there is an area just like that in Loveland. It scares me.
$215,000 homes with 4,000 square foot lots next to it.
A. The setbacks will be the standard single family home setbacks. The cost of housing
is not a development review criteria.
16. We're trying to figure out what will be built (cost range) so we can go out and look
at places comparable in the community. The term "affordable housing" doesn't help
me.
A. Basic features: 2 to 3 bedroom, 2 story or tri-level, brick or stone partial front facing
street. The product doesn't change with the sale price.
17. How are the townhomes going to be affordable?
A. The townhome area (Parcel H) is scheduled for the entire site to be permanently
affordable. The remaining affordable housing will be dispersed throughout the
remaining parcel.
18. 1 was told the 30% of affordable housing would be entirely dispersed, not
concentrated in one area.
A. The RFP only requires a total of 30% affordable housing.
19. On the west end of Huntington Hills, there are a lot of small houses. Do you have
any idea of the price range?
A. I have no idea.
20. The pond next to G1-- what is that?
A. Stormwater detention. Water collects there after a storm and is released at a
controlled rate. It is not permanently filled with water. It will most likely have native
grasses.
21. 5.3 dwelling units per acre is the average density?
A. Yes.
. 22. You're not reducing the density of most areas. Can you move the density and put
apartments?
A. We don't have the ability to increase the density on non-preliminary areas. At the
second appeal hearing some of the City Council members stated that they thought
the density could be a little lower. We have already eliminated 60 units on Parcel
H.
23. What is in the density?
A. The first phase Preliminary PUD calls for 323 dwelling units on 69.5 residential
acres is approximately 4.6 dwelling units per acre.
24. As large as this project is, what happens if the market goes sour and you pull out
with houses half done?
A. If we walked away with this development half done, we would go bankrupt. This will
be developed in smaller chunks, with smaller filings. We won't develop huge pods
at once. We're filing this entire preliminary with the intent to come back with smaller
"finals". There were no guarantees that your subdivision would build out.
25. How will you access the private lane on the SE comer?
• A. It lines up with the break in the median.
26. In regards to the southeast lots, is there anything you have built that you can
compare it to?
A. Sterling Hills--Aurora($140-170,000)
Fox Run--Northglenn($160-230,000)
Willow Park--Broomfield
27. What is comparable to G1 in Fort Collins?
A. Indian Hills-- sort of similar architecture, but Indian Hills is denser and tighter.
Eastbay--Denver, is similar. It is a new product type, different from most on the
market.
28. The rear loaded garage areas, like in area D, makes lots so small that it forces it to
the street. I see a lot of extra cars in front of the houses
29. On area D, are you in charge of drainage?
A. Yes.
•
30. We've had problems in Brittany Knolls.
A. I don't think we have any severe cross drainage issues on our development.
31. If area H is the main affordable area. How will you keep this area from becoming
run down?
A. Area H will still have the same covenants and the same controls as the rest of the
development. People will own homes. I believe this is an advantage over the
earlier proposal of rentals.
32. You said you expected building costs to max out at $110,000 in Denver. What
would section H be in Denver?
A. Section H would be about$85,000 for 1,000 square foot unit. Units in Parcel H will
be about 950 to 1,350 square feet. So approximately$80,000 to $115,000.
33. You don't think you will build any 1 story homes?
A. Mostly tri-levels. They look about the same as 1.
34. In G1, other than the town homes, is smaller lots. If you made lots consistent with
the larger ones, how many units would you lose, and could you?
A. I couldn't say how many lots I would lose.
35. Lots in Parcel G2 are still half the size of what is across the street.
36. For G1, did you do a market study on these?
A. The profile of the buyer we see... young couples with their first child, "empty
nesters", "move down" folks. They would be homes that back up to open space.
That would have a strong attraction to people with young children.
37. If you were coming in with no strings attached, what do you think the market is?
A. The mix is a bit more eclectic. We thought this is what the new City Plan would
require. I don't know that it would be hugely different.
38. On G1, are you as low as you can go?(on density) Why?
A. Yes, we really are. We have already eliminated a substantial number of units. I do
have to make some profit.
39. Can you show us where the ridge line is?
A. (Reference to the map).
40. On the next filing, are you planning any 3 story homes?
A. No..
41. On any filing?
A. No 3 story stacked homes. Maybe some homes with garages under (split level) but
no 3-story homes.
42. Are stop lights possible at exits?
A. We won't build a signal at Lemay and Trilby until the signal warrants are met. We
aren't even close right now. For an 8 hour period of time, we would need 800
vehicles per hour. A traffic study will be submitted with the development application.
43. Are on-street bike lanes normal on both sides of the street? I don't see how
someone could park there?
A. Yes. Where bike lanes are required, the streets are wide enough to accommodate
bike lanes and parking.
44. Is there parking on a collector or local street?
A. Parking will be on any street if there are fewer than "X" trips per day. Bike lanes will
be on the collector streets, not the local streets. There will be more striping and
signs on Brittany.
45. What I'm getting at is where will friends park? They can't park in the alleys or where
the bike lanes are?
A. Guest parking will be provided in the same manner as it is provided in Eagle Tree.
46. Can you control who does and doesn't mow their lawn? Who's job is it to see that
a neighborhood has a home owners association?
A. The City Code requires a homeowners association for the maintenance of all
common private areas. We (the developer) will help set up the homeowners
association with additional covenants. The homeowners will enforce that.
47. Are you saying that the people who live in D have to maintain H?
A. No. The homeowners association will all have to stand alone.
48. Homeowner's Associations require a monthly fee-- is this feasible for the people
with affordable housing?
A. Yes, it has to be.
49. Section D will have a nice green belt. Why not build the whole thing right here?
A. It was part of the trail system and is part of the irrigation system.
50. Are there any lots big enough for 3 car garages?
A. Yes. We have 60 foot wide lots, and those are big enough. Whether or not any of
the floor plans will include a three car garage is questionable at this time.
51. Does the city enforce if owners don't maintain their property?
A. The home owners association enforces that. We (the developer) manage the
association up until 75% of the owners can take over.
52. Has anyone in the city ever studied the number of vehicles per household?
A. We (the City) have parking standards and requirements based on national
averages. Please refer to All-Development Criteria A-2.4"Vehicular Circulation and
Parking" of the Land Development Guidance System.
53. Do covenants require sprinkler systems?
A. In most instances, no. But they are requirements for percentage of sod and
maintaining it.
54. Is there a city "way" for putting in landscaping?
A. Street trees are required at 40 foot spacing. We only review landscaping of
common areas and of multi-family and commercial areas, not individual single-
family lots.
55. When are the home owners associations set up?
A. As soon as the development begins.
56. If you were to start tomorrow, what is the order you'd build?
A. We would start with section H. The infrastructure for H, G1, and possibly D.
57. Based on the current plan, when will you start?
A. I would be lucky to break ground this fall (very lucky).
58. As a stand alone project, how does the amount of open space compare with the
amount the city normally requires?
• A. There is not a set requirement on the percentage of open space. But, if you look
at this ODP, I would say it's typical.
59. If you exclude the 160 acres, is the project in compliance?
A. Yes.
60. In the commercial development, what will be in there? Will it be like the Diamond
Shamrock on Lemay and Harmony?
A. It is 4 acres. 25% ratio of floor area to acreage would be about 40,000 to 50,000
square feet of commercial use. Things going in would be like a dry-cleaner,
insurance, etc. Probably not a gas station there.
61. In reference to the wetland on the west side, what buffering will there be between
section H and the wetlands?
A. Typically a 100 to 300 foot buffer. Depending on the ecological value of the
wetland, it could be more or less than this range. We propose 50 feet and intend
to limit stormwater outfall into the area, making the buffering effective. We must
work with the Natural Resources Department to insure that the wetland is protected.
• 62. What's the time line on the park?
A. The dedication will take place with this filing. The time line for development of the
park is unknown. It depends on the time for development and the fees raised.
63. This development (ODP) calls for 856 to 1,055 dwelling units. As density increases
there is a possibility of crime. Have any crime studies been done?
64. No. There is no direct way of determining an associated increase in crime. It is not
a development review criteria.
65. What is the total number of units in Fort Collins?
A. Over 40,000.
66. 1 am on the police force, and we don't know what it will do. The design of the
neighborhood has an effect on it. We don't have the experience here like in other
cities.
67. What are the guidelines for the fire station?
A. We have talked about access and the orientation of the site with Trilby to lessen
impact on the residences. The fire station site is being included for platting
purposes only. The Poudre Fire Authority will need to submit development plans
for the site.
68. Will they have a light?
A. That is unknown. It is up to the fire department.
Additional Written Comments/Questions:
69. Does the city review the transition between the proposed development and the
existing developments(ie: Provincetowne transition to the Eagle Tree subdivision)?
A. Yes. The PUD must satisfy the neighborhood compatibility criteria of the Land
Development Guidance System. Please refer to All-Development Criteria A-2.1 -
A-2.18.
70. Observation: Although the proposed development (Provincetowne) is being
planned under the LGDS, it represents many of the goals under the new City
Plan(2015). The developer continually relates the Provincetowne development as
a designation of future developments driven by the new City Plan. A "harsh"
transition exists between Provincetowne and Eagle Tree.
71. Can a smoother transition be made between Provincetowne and the west and south
areas of Eagle tree (ie: Transition between the City Plan development
(Provincetowne) and the LGDS development (Eagle Tree))? Lost units on the east
and north of Provincetown may be compensated for in areas west of
Provincetowne.
72. Observation: The PrideMark developer presented his preliminary PUD to the group
and had no intention of making more concessions.
Note: The Provincetowne PUD, Second Filing Preliminary PUD was submitted to the
City on March 27, 1997. City Staff Comments were sent to the applicant on
April 30, 1997. No plan revisions have been submitted as of May 29, 1997. No
Planning and Zoning Board Hearing has been scheduled for this development
application.
Notices of any future public hearings on this development application will be
mailed to affected property owners and will be published in the Coloradoan
legal notices section.
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Activity A: ALL DEVELOPMENT CRITERIA
ALL CRITERIA I APPUCASLE CR1rRIA ONLY
3 Me G+atltln I WIN the=86ar 7-
acOte�etel Of atmfieO
CRIiE=10N Yes INo If no, please ex_lain
Al. COMMUNITY-WIDE CRITERIA=.
1.1 Solar Onentadon I I I I
1.2 Ccmorehensive Plan
1.3 Wildlife Habitat I I I I I
1.4 Mineral Deposit I I Ki I I
1.6 ==elocically Sensitive Areas - I rz�erved I I I
1.6 Lands cf Aericlltural Imaoranee ( re-er.?ea I I I
1.7 Enercv Conservation I I I I I
1.8 Air Qualitv
1.9 Water Quality I I I I I
10 :-ewace and Wastes
1 11 Wzot rr- n I I I
1.12 Residential Density I I I I I
2. NE!GHEOP,HOOD COMPATIEILITY CRI T=RIA
=. Vehi--iar. Pedmeman. Bike Transooradw I I I I I I
2 2 ?-Aainc P!ac-=m=nt and Orientaticr, I I I I I
= Natural Fe=tures I I I i I
Venicular Circulation anc Parkinc_ I I I I
2.= Emergerc/ Access
2 = Fecasthan Circutation I I I
:2. Ar_aite--ure I I I I
2 22 Euilaing Heic_nt and Views I IrAI I
2.S : Shading I I 1>< I I
2.1 C Sclar Acc_ss I I I I
2.11 Historic Resourcas
2.12 Setbacks I I I
2.13 Landscace ! I I I I
2.1a Sicns I I I I I
2.15 Site Lighting I I I I
2.16 Ncise and Vibration
2.17 Glare or Heat I I I
2.18 Hazardous Materials I I ( I
A 3. ENGINEERING CRITERIA
3.1 Utility Capacity I I I
3.2 Design Standards I I ><j I
3.3 water Hazards
3.4 Geologic Hazards
Land Development Guidance System for Planned Unit Developments
The City of Fort Collins.Colorado.Revised 1 -�11994
U
-61 -
E
IVITY:ntial Uses
DEFINITION:
All residential uses. Uses would include single fiundy attached dwellings, townhomes, duplexes,
mobile homes, and multiple family dwellings; group homes; boarding and rooming houses;
fraternity and sorority houses;nursing homes; public and private schools; public and non-profit
quasi-public recreational uses as a principal use; uses providing meeting places and places far
public assembly with incidental office space; and child care centers.
CRITERIA:
The following applicable criteria must be answered`yes"and implemented within the .
development plan.
1. DOES THE PROJECT EARN THE UM PERCENTAGE
�0 N/A
MINIMUM
POINTS AS CALCULATED ON THE FOLLOWING"DENSITY
CHART H"FOR THE PROPOSED DENSITY OF THE
RESIDENTIAL PROJECT? The required earned credit for a
residential project shall be based on the following:
60 ercentage points=6 or fewer dwellin units per acre D /04.1 y — 4.111
60- 70 percentage points=6-7 dwelling units per acre dw�tG,
70- 80 percentage points=7-8 dwelling units per acre
80- 90 percentage points=8-9 dwelling units per acre
90-100 percentage points=9-10 dwelling units per acre
100 or more percentage points= 10 or more dwelling units per acre
2. DOES THE PROJECT EARN AT LEAST 40 Yes No N/A
PERCENTAGE POINTS AS CALCULATED L J
ON THE FOLLOWING"DENSITY CHART Ir
FROM BASE POINTS?
Land Development Guidance System for Planned Unit Developments. The City of Fort Collins,Colorado.
Revised as per Ordinance No.2.1996.
E1� I3'1''GIIA`R
Matdmam Ilsmed
CriterionCredit Credit
S 20W feet daoacacgunighiw600d rev oomter wannghbahaodurvh�ecwjuwtobcooastructedasapat 20%
dthapraja2 (Iftba peojat is Vgmodto be constructed in muhiple places,stub urillbhochood auvioe owt r
mat be constructed as a part dthe phase forwhidt approval is sought.)
t1 650 fed rimeddieg transit abp(applicable only to projects having ademLLy dat lent sis[6l dwelling mob 20%
per sae on a goes acrear bees) -
C 4000 feet of an existing mmmmdypsgi0oal shopping oenea. oo w a mm w*heOmd shopping mtarto be 10%
constructed as a part ofthe project. (If the project is proposed to be constructed in multiple phases,such
sI go* gocoWmudbeoomtruuadasapest*fdwphmfwvvhichapprovalissought)
350 "ofine3emft=yh6odaadormmvmdyFnh.aracommmayfu7LLy(ExMTT GOLF COURSES); 20%
or
d 3500 feet of a publicly owued,but not developed,mighbabood or community park,ar com rmaky facility 10%
(ECCEFT GOLY COURSES)or Q
3500 feet da publicly armed gohfccuse wMher developed crnot 10%
C 25M fed dmcotung;It0o4 meeting a requommta 0fthe StotedColaado compulsory oducaucc,laws - 10%
f 3000 fad d an exidin nm ar employmad oatw,or a major empbymrt cmcrto be constructed as a part of 20%
thoprojal. (fftheprojetispropoedta beoonmucted'm muhipk phasq auchmajcr employment crmcmnt
a be constructed as a pat of do phase for which approval is sought.) No buu7d'mg effort or bmmess park or
shopping ormerwhich has served as the basis for the claiming daodt coder any other base^criteria ofthis
Density Chat con also be used asthe basis furela®ing crod8,mdrrthis atlaim
g 1000 fed clan udtLg rbr7 mcmtQ aracWdmv--tobeoom ucW=apatdthepojat (Ifthe 5%
pojasiapoI 'to boazatruccof in multiple phum,such child con;comarmast be oonstrucual asa put aftbe
ph oss fcrvulikh approval ls magbs
L 'Nor"Fort Coll®' 20%
I The Central Huooes District 20%
ApojatwbmbomduyncomiVm=toc tmgmhandwdaPmraL Credit maybe eumed as follows 30%
0% Farr wbmpopertybamduyhn 0-10%mdiprhy,
10-0% Fwprciab bro ptoprrtybouodaryhasl0-20%cow4ahy,
15- For wboae has 20- cacti ' n
-25% Fcrpolectt property ho30-40%owni i
Q M
Ifthe project coaalm dwellinguomad aside for individuals caning 20%or lea offt median meanie ofCity 15%
residents,as sdjt far family size,and paying lees thm 30%dtheir goes income for homing,mdudir, 1
]� tmrmes rA&ads6leDweODgtJaa')0a4iu1retha penamaged AffmdaWe Dwellig Units to the fatal member
mbsimmarddam®'�ploorm,dw Allied"Dwelling Units must beumconstructedput ardwphase,for
vebkh approval it sought.) IoaWwtnhomue that the AffavLbhe Dwelling Umbt anal-affordable far a period
dsotlesthm25 yaes,fhadndaperabadttoadni h paectim mvenama m may be requbed by*e Cityundcr
Sac.29.526(l)(4).
41
Eamd
omits Crean
1 lrtmabedm:�mOyaledmep AeojedwMnA=nonquwwablaemvmage ekbwt rougbtbouppGatimotahaaativeenwv
ms syste rg,Oveugh co m0ed energy omsevuic a maaues beyond Woe sama0y mquhcd by City Code,a 3%boom may be
=red foraway 3%teAKtiao in margy use.
LI ColaYWsal%bmuforcmy30aarsmohxWmWepnjecL
II C!ImWaWepmueola ofdztmlal mffiepojedWa mdevatedtoro=do dud Eua%afthatpercesu erabamu
�r 1
Ifthe app6ant corms to peaavieg permment aff+ite opm span that meets fire City's mmi®rm n9 .dalate the
paaemage ofthu open space acreage to the total developmnt aeage and emathia pememaga m a bomu.
p Y entnt m pat ofths total development budget is to be spot neighborhood public 4amR Scrlitim which are not required by City Code,enter a 2%berm for every$100 per dwelling unit inva"
ffputoPOstetd dewJopeambodyetis to bespat an neighbohood MEW— whidaan net otherwise requited by City
q Code,adwat%bamsfarevery S100padwaliagrmitmwled.
ffdrepmjedontaodweftuutslet aside Joe im&viduds tuning 80%or l:afthe median income of City ce"res as adynered
T for family sirµ and prying lea than 30%ofdick grow iaeome&c housing mdudmg uhlitin CAffordabla Dwelling UeN").
a1 10 the percentage ofAffadaWe Dwelling Units to the tend--d—afdwdit units in the pojed and a morthat percentage
uabosquptoama>®md U% ffftpojed s pmpowdto be oomtruaw in muhiple phase4 d e Affor"e Dwelling lhas
mobeoommucWuapWdUpbmfavAichappovdissmght.) madertommrathatthe Affordable DwallmgUnitsremaio ,
affadablel'arapmWcfmt mothan 23 yeas,the developer shaft resod such pechdive wvmants as may be rapcdhylls City
under Sec 29-326(J)(4}
ffacommitment is being made to develop a specified percentage afthetand memberofdweumg units for Type"A7 and Typ"Ir
haoeticappedhaumg as deficed by the City ofFod Collins,olwlatathe boom;as follows
s. 7yIw .3 xTvw"A Urnts
TOW Units
In no east shill the ombmad boom be grruethan 30%
Type"B" 1.0 x Tvn"B"lhdb
Tend Units
Ifthe site or a4aorst papertyodarm a historic bmWmgapiace,it be=maybe tamed factbe following:
t 3% For preventing or mitipuimg outside mWrmoa adverse to its pesaval m(erg mvhcumemai,land use,acdbctia,
concerns;and social faders);
3% For aaQiogthrtmwumous wdfi be in keeping with the character ofthe bnildmg a piece,while avoidngtoud units
3% For,
apaWtgrhpgw use ofthe buHft or plane that wiU had to its contmsnce,preservation and improvemra<in an
Ifapatimaral ofWemgruedpddogmthenadti*5®ly project is provided undergrcuod,within the bu0dmg,or in an elevated
u packing structure man wouscryme,to thep®ay structure,abom nay be earned as fa0um:
9% Fapovid Mormonofthel lchegmasntienc :
6% Forpwid'mg30.74%dWopuidgmassrtsq
3% Ferprwld'mg25-49%ofthe poking is acturtna
Y ffaoom wined sbm*mmdempwideappwedanamstiefneaamguiaWngryu=fathedwdimguoi%aswabmmafl0%
W Ifthesp*maco®cstopovidmgadopWe,n& domvematpedantimadbiaydeomwctk abawemibeprojedmdmy
ofthe dedication perm dam'bedbelow,alouts ethe bamsu fdlowe
3% For Dome tuthanmau ' ' City"vesicand epdbllasr:
. ermamyew mgpu ma p can ntetatopw dietamouudefimedmthin Demity Qurt
3% Fa tom tru7 whidr6 anntmahaversatbe ML,,LL
TOTAL "
Neighborhood Meeting Minutes
Project: Provincetown PUD 2"d Filing
Date: 9%-ew,66
Applicant:
Consultant:
Staff: Michael Ludwig, City Planner
Questions/Concerns/Comments
1. What is the size of the trees? What is the mix of Grass?
A. (As shown on F3) Will use the City's list of recommended street trees.
Irrigated turf in that area, with native area along the trail. Use City's
mixture of drought-tolerant grass. City Forester, Tim Buchanan, and
Natural Resources Department are contacts for questions.
2. Along the drainage ditch, will it be reworked using the City's new drainage flows
and will you talk with Eagle Tree?
A. Drainage study was revised. Now there are more detention sites, more
diversion to other sites
3. Will water along Brittany be piped?
A. Water that leaves the property won't cross Brittany. There are inlets at
intersections to carry across the street. Will confirm this and let you know.
The overall drainage plan originally used with ODP was changed to new
standards. So, during the 2"d phase, the developer decided to regrade
accordingly, using new numbers, diverting as much runoff to the south as
possible...(end of pg. 2)
4. On Nov. 4`" meeting was told only 2-6 acres left. Now "56 acres" purchased?
Misunderstanding?
A. The bulk of this plan has been purchased. A little of G1 & G2 has not
been acquired.
Re: Drainage inlet/pipes (pointed out locations)
5. How much of this is written in stone and how much is not?
A. When ODP was originally submitted, was a minimum density of 3 du/acre.
Most of it was designated higher. Council has approved this ODP/density.
Project has to be in compliance with the ODP or it will be denied. If that
happened, would have to be resubmitted under new LUC, with a minimum
of 5-8 units per acre.
6. Sketch shows parking on Brittany?
A. Can't park on Brittany (it's a collector) so we've added capacity to park on
side streets. Will be posted no parking as appropriate.
Re: Houses facing Brittany
7. How do you distinguish between house and 30' setback?
A. We propose shrubs, but hope to not have distinct delineation. HOA
maintains buffer. Possibiv could maintain front yards as well — hasn't
been determined.
8. Will new collector street off of Trilby road be built 1 s`?
A. Yes. Will probably be phases starting in the north, as development fills in.
9. Will drainage also be taken care of up front?
A. Yes.
10. Where will the project start and what is the timeline?
A. Townhomes first as required by the City and will most likely progress north
to south.
11. What do you see as far as changes to grades (drainage)? What are the market
values of the homes?
A. Generally, there are not substantial grades and the city requires 80% ami
per household for affordable housing. $52,000 = current 80% ami.
Custom home prices expected on larger lot areas.
12. Collector traffic is based on...?
A. We based on entire build out of projects.
4
13. Cost of medians? Now that maintenance is shared, how to share the cost with
HOA's in Eagle Tree?
A. We'll work with you, look at in more detail, etc.
14. How much are you raising corner of G1 & G2?
A. Will check plans, probably 3-4 feet. Grade will be sloped-no retaining wall.
. 15. Timeline on the park?
A. Parks built as fees are generated as homes are built. With existing
development at Eagle Tree and approximately half of this development
done is when the park will be built. Janet Meisel-Burns is the contact.
16. Concerned as a taxpayer that $ lost on original project will be problematic for
affordable housing project. Can we be assured that the project will be
completed?
A. No assurances in the contract. No guarantee any project in the City will
be completed. Recommend Alan meet with HOA to discuss further.
17. We will address a letter to Scott.
_ 18. Construction vehicles allowed on Brittany?
A. Erosion control plan/fencing to prevent erosion. Trilby most logical access
for this phase.
19. Why access off of Trilby not Lemay?
A. Future connection on phase from Lemay—will be local, not collector.
20. Why wasn't the buffer zone around Eagle Tree continued?
A. Is a buffer (berm and landscape). Width minimum 50 feet wide/up to 150
feet.
21. Where will drainage go to the south?
A. Swale along south side of Provincetowne, then to detention pond.
22. Has the corner of Lemay and Trilby been designed to handle additional runoff?
A. Swale oversized, easements in place, designed to be within the capacity
of the design.
23. Buffer zones put in last?
A. They will be put in at the time of development of individual phases.
24. Is there a survey regarding marketability concerning the area of the small lots?
A. Yes — market analysis in Fort Collins. Also, example at Lowry AFB —
fastest selling.
25. When is the density of additional people addressed? le. Extra school kids
A. In the Thompson Valley School District — project included in their project
ions/plans routed to district for comment. Project is phased — considered
by school district: bond issue approved in '96 for school expansion/new
construction —affected schools under capacity. ,
26. Are schools planned for expansion/construction scheduled?
A. (There was no name in the minutes) Expected to remain under capacity.
27. Will there be signs to limit construction traffic?
A. Locations will be noted on construction plans, also use signage.
28. What commercial is proposed for the area bounded by Trilby and Brittany?
A. Neighborhood/convenience commercial — not a part of this filing. Video
store, offices-designated to serve neighborhood. Probably one of the last
phases. Uses will be restricted — no auto repair, no adult uses.
Photometric plan required limiting light impacts. Access will be from
interior streets.
29. Is sketch representative of type of house in G1/G2?
A. Generally yes —2-story, P&Z does not review single family homes.
30. Will homes be sold first or built first?
A. Homes must have buyers before construction starts.
31. What's proposed around Benson Lake (west and north side)?
A: Single family detached-probably one of the last phases.
32. Will Kaufman and Broad sell homes or sell to builders?
A. Will build and sell unless they designate an area for custom homes.
33. What can guarantee that personal property won't wick water from area to west?
A. No guarantee — would not expect that it would exceed existing conditions.
Minimum slopes required by the City — little water soaks in — it runs off. If
drainage ditch near existing home, review will ensure water does not go
onto development properties.
34. Commercial site — had been planned for fire station — no longer. Are there other
sites that PFA is considering?
A. PFA is not considering locating on this site. Need to contact them to find
out other sites and timing. Contact Gene Chandler.
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•
MEETING OF THE PLANNING AND ZONING COMMISSION
CITY OF FORT COLLINS, COLORADO
Held Thursday, August 5, 1999
At City Council Chambers
300 West Laporte Street
Fort Collins, Colorado
In the matter of a referred minor amendment
Concerning Province Towne 2ad Filing
Commission members present :
Sally Craig
Judy Meyer
Jennifer Carpenter
Dan Bernth
Mikal Torgerson
Jerry Gavaldon
Staff present :
Paul Eckman, City Attorney' s Office
Steve Olt, Planning Department
Sheri Wamhoff
Kim Kreimeyer
Ward Stanford
Jill Kuch
Meadors Court Reporting, LLC Phone: (970) 482-1506
140 W. Oak Street, Suite 266 Toll-free (800) 482-1506
Fort Collins, Colorado 80524 Fax: (970) 482-1230
e-mail: meadors@frii.com
2
1 MS. CRAIG: Good evening, everyone. Welcome to
2 the August 5th, 1999, Planning and Zoning Board
3 meeting. Can we have roll call, please?
r
4 MS. KUCH: Colton.
5 (Mr. Colton was not present. )
6 MS. KUCH: Carpenter.
7 MS. CARPENTER: Here.
8 MS. KUCH: Bernth.
9 MR. BERNTH: Here.
10 MS . KUCH: Torgerson.
11 MR. TORGERSON: Here.
12 MS . KUCH: Meyer.
13 MS. MEYER: Here.
14 MS . KUCH: Gavaldon.
15 MR. GAVALDON: Here.
16 MS. KUCH: Craig.
17 MS. CRAIG: Here.
18 Mr. Frank, would you please give us the agenda
19 for tonight?
20 MR. FRANK: There ' s two changes to tonight ' s
21 agenda. The first is the minutes of January 21st and
22 February 1st . They're not in your packet . They weren't
23 ready for tonight so they would be continued to the August
24 19th meeting or the next meeting, whichever it is.
25 And then the other change from the agenda that
3
• 1 was published in the newspapers, item 3 , modification of
2 the standard for Concord Capital Affordable Housing
3 project . That ' s been continued.
4 And those are the changes to the agenda.
5 MS . CRAIG: Okay. Is there anyone in the
6 audience, staff, or on the Board that would like to pull
7 any of the items on the consent agenda? Okay. I don' t
8 see any. Could I get a motion?
9 MR. GAVALDON: Madam Chairman, I move for
10 approval of items 1, noting only the March 5th and 19th
11 minutes, item 2, item 4, and item 5 of the consent agenda.
12 MS . CRAIG: Second?
13 MS. CARPENTER: I ' ll second.
14 MS. CRAIG: Are there any comments from the Board
15 that would like to be made before we vote on this?
16 Well, let ' s have a vote.
17 MR. ECKMAN: Are there any persons in the
18 audience that have any questions about the specific items
19 on the agenda, what items are on the consent agenda?
20 Thank you.
21 MS. KUCH: Roll call, okay. Carpenter.
22 MS . CARPENTER: Yes .
23 MS. KUCH: Bernth.
24 MR. BERNTH: Yes.
25 MS . KUCH: Torgerson.
4
1 MR. TORGERSON: Yes.
2 MS. KUCH: Meyer.
3 MS. MEYER: Yes.
4 MS. KUCH: Gavaldon.
5 MR. GAVALDON: Yes.
6 MS. KUCH: Craig.
7 MS. CRAIG: Yes.
8 Okay. The concent agenda has been approved 6 to
9 0 . Shall we move on to item number 6, Province Towne PUD
10 2nd Filing preliminary. And this will start with a staff
11 report that will go for -- until the staff has put
12 together what they like. And then the applicant has 20
13 minutes to do his presentation, and then we will open it
14 up to the public. And at that time, then I will find out
15 how many neighborhood groups and how many individuals
16 would like to present to the Board. And we ' ll decide the
17 time at that time, if that 's okay. So we ' ll start with
18 the staff report, please.
19 MR. OLT: My name is Steve Olt. I 'm with the
20 City of Fort Collins Planning Department, project planner
21 for Province Towne PUD Filing 2 . This is a preliminary
22 PUD plan.
23 This is a request for a preliminary plan unit
24 development approval for 331 residential dwelling
25 units . That includes 190 single-family lots and 141
5
• 1 multifamily townhomes on 70 acres.
2 This site is located -- go to the location map --
3 the site is located just to the south and west of the
4 intersection of Trilby Road to the north, and South Lemay
5 Avenue to the east. Contactually we have Brittany Knolls
6 single-family subdivision in this location (indicating) .
7 That is existing, Paragon Points several filings in this
8 location in the north and east of the project .
9 Stanton Creek development plan, which is ongoing
10 in its development, it ' s a combination of multifamily and
11 single family. On the corner is a multifamily affordable
. 12 housing project.
13 This is the Reedemer Lutheran Church
14 (indicating) . And then we have single-family residential
15 to the east of the site. The site as you see is in large
16 black letters, and in red is the 70-acre site that is up
17 for discussion this evening. This 70 acres is part of an
18 overall development plan -- a larger development plan of
19 160 acres.
20 If I could get to the site plan now, first . This
21 is the 70-acre site that we ' re discussing tonight .
22 Actually, it ' s 75 acres. Trilby Road is to the north.
. 23 This is Lemay Avenue again to the east (indicating) .
24 Eagle Tree Development is to the east of the project,
25 single family, multifamily, and the church.
6
1 The components of Province Towne 2nd Filing are
2 in this location adjacent to Trilby Road, north
3 (indicating) . And the northwest portion of the site is
4 the multifamily component, multifamily townhomes.
5 There is a wetland in this location (indicating)
6 that is being addressed according to City code. Then we
7 have several other components. This is a -- this is a
8 single-family component of the Province Towne 2nd
9 Filing. This is as well . This is a single family.' We ' re
10 looking at different size lots in these locations. This
11 is a single-family component, and then this as well,
12 single family.
13 This is Province Road (indicating) . That exists
14 from Lemay Avenue to approximately this location. That
15 would be continued into the site to the west . Another
16 existing street is Brittany Road -- or Brittany Drive
17 coming off of Trilby. That runs north/south from there to
18 Province Road.
19 There are -- on several streets off of --
20 cul-de-sacs off of that Brittany Drive. There would be
21 three points of connection into Province Towne of this
22 location, at this location, and that location
23 (indicating) .
24 The park site is approximately a five-acre park
25 site. That is part of this plan, not in terms of the
7
1 development plan. That, I believe, is a city owned park
2 or will be a city owned park. That will be designed and
3 developed by the City of Fort Collins at some time -- some
4 point in time in the future. But the five-acre parcel is,
5 from a land use standpoint, is part of this development
6 plan.
7 So we are looking at -- again, at park land,
8 single family, various size lots within the development,
9 and then a multifamily component. This property is in the
10 LMN zoning district. That district carries with it a
11 minimum density requirement of five dwelling units per
. 12 acre overall and a maximum density of eight dwelling units
13 per acre.
14 The preliminary plan that ' s before us this
15 evening, staff has determined it ' s in conformance with the
16 approved Province Towne overall development plan. There
17 has been sequentially many overall development plans since
18 the middle 1980s . The latest overall development plan was
19 approved in 1996 . It ' s a 160-acre overall development
20 plan that contains, again, mixed density residential and
21 neighborhood convenience center, neighborhood service
22 center component, the neighborhood park.
23 I would like to point out as I 'm --- before I
24 forget this, in the staff report under the solar
25 orientation ordinance section, there ' s a typo there. I 'd
8
1 indicated that all 1, 905 single-family lots are subject to
2 the ordinance. That ' s 190 lots. There aren't going to be
3 1, 905 lots in this entire development. So that ' s just a
4 typo.
5 What I 'd like to do is go to the overall
6 development plan -- the current overall development
7 plan. Did we get -- yeah, if we could just skip down to
8 that.
9 This is the current overall development plan --
10 excuse me -- approved in December of 1996. The area in
11 color is actually about 330 acres. That includes the
12 southerly portion of the property is to be the future
13 natural area, open space, perpetual natural area. So that
14 will not be developed in the future.
15 What we're looking at then, the development
16 portion of the Province Towne overall development plan
17 assumes this area (indicating) . That ' s the 160 acres that
18 is developable.
19 The current plan before you, the 2nd Filing,
20 constitutes this parcel (indicating) which is single
21 family. This parcel, which is single family -- or pardon
22 me -- with multifamily, that ' s the townhomes. This
23 parcel, single family. This parcel, single family, and
24 this parcel which is single family.
25 The Province Towne PUD 2nd Filing is in
9
• 1 conformance with that approved overall development plan.
2 Staff has evaluated against the all development
3 criteria in the land development guidance system. It
4 meets the criteria with the exception of the solar
5 orientation for single-family lots of less than 15, 000
6 square feet in size.
7 The applicant has submitted a request for a
8 very -- a variance to that based on topographic features
9 and reconfiguring the development plan to accommodate an
10 alley system and lots that can function with access off of
11 those alleyways . It has left this project about eight
12 lots short of -- of the 65 percent minimum requirement for
13 solar orientation. Staff is recommending approval of that
14 solar orientation variance request .
15 The project was also evaluated against the
16 residential density chart . It requires on the chart for
17 this type of use that the project score at least 60
18 percent for the overall gross residential density of 4 . 73
19 dwelling units per acre. This project does score 64 . 1
20 percent on that chart, and it earns 47 points on the base
21 criteria.
22 There is a requirement that it -- apparently 40
• 23 points from the base criteria. In all cases, it does meet
24 the residential density chart . And with that, I would end
25 my presentation unless the Board has any questions.
10
1 MS. CRAIG: Are there any board members that have
2 any questions of staff at this time? Okay. Let ' s move on
3 to the applicant, please. And please be sure and state
4 your name.
5 MR. CHAPMAN: Good evening. For the record my
6 name is Brock Chapman with Kaufman & Broad, 8401 East
7 Bellview, Denver, Colorado 80237.
8 Pleasure to be here tonight . I do have my entire
9 design team here to answer questions in detail, if
10 necessary. But in the interest of time, I ' ll wait and
it introduce them if needed.
12 I know you've got a comprehensive staff report .
13 Mr. Olt just went through his report so I ' ll try to touch
14 on the key points and if necessary come back and answer
15 questions and get into as much detail as we need to here
16 tonight .
17 This plan is based on and compliant with the
18 approved Province Towne amended ODP where all the land
19 uses, densities, and planning areas were established by
20 the Planning Commission in December 16th, 1996, and again
21 upheld by City Council on February 25th, 1997 .
22 I want to point out a few key areas, if the laser
23 pointer will work. Could you go to the overall site plan
24 we discussed earlier? It was the first one before the
25 segment . There you go. Thank you.
11
1 As Mr. Olt stated, there are 70 acres in this
2 proposal with 321 total dwelling units. This, again, is
3 consistent with the approved Province Towne ODP.
4 I wanted to hit on a couple important areas of
5 the plan. The first being what is the -- can you all see
6 this laser pointer okay -- what is designated as wetlands
7 area. There was an existing wetlands area adjacent to
8 this site with a very small portion of the wetlands
9 actually being on the property. About .38 acres -- or
10 actually within the Province Towne boundaries and the
11 other 99 percent of the wetlands are not within the
12 boundary.
13 There was a value and assessment report completed
14 by our wetlands consultant and submitted to the City of
15 Natural Resources Department where it was determined that
16 an enhanced buffer area, which consisted of two tiers of
17 landscaping, a fence with wire mesh to keep pets out of
18 the wetland area, as well as to post signage to encourage
19 people to keep their pets out of the area, would allow
20 that wetlands area to be reduced to 50 feet with the
21 screening.
22 Under the standard LDGS, a buffer of 100 feet is
23 required, but there ' s no landscape buffering or any
24 fencing or anything required. So with the value and
25 assessments completed for the wetlands area, that did, in
12
1 fact, support the enhanced but narrowed buffered design.
2 And I understand Ms . Kreimeyer is here tonight if you have
3 any questions on that of your staff.
4 In terms of traffic circulation, there was one
5 question about a hill near Province Towne Road and some
6 site visibility. We did take a look at that in our
7 supplemental traffic study, asked our traffic engineer to
8 address that specifically. And in accordance with the
9 roadway design manual of CDOT, the available site
10 distances of 560 feet, in fact, exceeds the minimum
it suggested by CDOT both for passenger vehicles and trucks;
12 therefore, site distances at that intersection due to the
13 hill were not traffic engineering concerns.
14 In terms of schools, according to the Thompson
15 Valley School District ' s five-year master plan is
16 estimated that the student population from Province Towne
17 of the 331 dwelling units along with the other
18 applications which received final plat will not cause the
19 district enrollment to exceed the level of service C. And
20 of course you may all be aware of the high school which is
21 due to open in the fall of 2000, and that will correct any
22 deficiencies in the high school situation there .
23 This is a qualified affordable housing project
24 for the townhome area located here (indicating) . And we
25 will meet all the City' s affordable housing criteria where
13
• 1 people need to qualify 80 percent of the area median
2 income.
3 In terms of the most important components of the
4 plan, this is the preliminary PUD. This is where the plan
5 comes to life from the bubble plan presented of the
6 ODP. We did -- just associated with this plan not
7 including the ODP, just with this, we 've had several
8 neighborhood meetings as well as meetings with individual
9 homeowner representatives of the neighborhood groups in
10 the area. I can state those if necessary.
11 But what I want -- what I want to press is that
• 12 we have made several plan revisions based on concerns and
13 things we found out from the neighbors of this meeting. I
14 want to run through them real fast if I can. We did
15 provide, as you can see -- I should point out a couple of
16 things. This is the border of our project (indicating) .
17 The Eagle Tree neighborhood -- the Eagle Tree neighborhood
18 is all this area in here.
19 There have been open-space buffers provided
20 throughout -- adjacent to the Eagle Tree neighborhood.
21 The original plan we showed at the neighborhood meeting
22 did not show a buffer in this location (indicating) , but
23 after being asked if we could include a buffer, we did
24 that . We reoriented some lots, narrowed up this just a
25 touch, and provided these buffer zones . So now every lot
14
1 within Province Towne adjacent to Eagle Tree owners have a
2 buffer zone which is going to be a landscaped tract
3 maintained by the homeowners association.
4 There was also concerns about drainage expressed
5 by the Eagle Tree group. And their statement, they did
6 not want any of the drainage from Province Towne going
7 through their neighborhood. So we spent significant time
8 and energy revising our drainage plan so that, in fact, no
9 drainage from Province Towne is directed through the Eagle
10 Tree neighborhood. And we re-engineered it so drainage,
11 in fact, is not even carried up adjacent Lemay to their
12 area.
13 All of this drainage goes south (indicating) .
14 This drainage goes north -- northwest and then north.
15 This drainage runs along Province Towne on our side of the
16 street to a detention pond in the commercial area and then
17 is discharged down Trilby. So we believe, and I believe
18 we have drainage staff here tonight to concur, there is no
19 drainage that goes through Province Towne at all
20 associated with Province Towne.
21 In addition, we based on the neighborhood
22 meetings there was a small detention pond at this location
23 (indicating) . And there were concerns about the depth of
24 that detention pond and the safety of children in the
25 area. So we relocated that detention pond up to the
15
1 commercial piece, widened that detention pond, made the
2 sides steeper and the detention pond shallower. And just
3 eliminated that detention pond previously at that location
4 based on comments from adjacent homeowners.
5 In addition, we enhanced, at the end of these
6 alleys where automobiles would enter and exit, we
7 clustered landscaping at that location to reduce any
8 headlight glare from coming onto any homeowners in the
9 Eagle Tree Neighborhood.
10 We also included several pedestrian trail
11 connections which primarily run along this open space area
• 12 so that there is access for the Eagle Tree homeowners to
13 the future public park site. Previously in the ODP, it
14 was going to be a natural, unpaved -- basically just rough
15 trail . And through comments, both from the City,
16 neighbors, and our design team, we have decided to make
17 that a paved-trail system.
18 We 've also included the larger -- which were part
19 of the ODP -- but we did include the larger lots at this
20 location (indicating) to provide some better buffering
21 against the Eagle Tree homeowners before we got into the
22 somewhat narrower and smaller cottage lots. So we did the
23 buffer transition not only with the landscape buffer but
24 also with the product type.
25 We also reoriented some of the lots at this
16
1 location (indication) so that if you count the number of
2 lots along this boundary, they coincide with the number of
3 lots adjacent to the Eagle Tree homeowners in that
4 location. So we tried to match up as best we could at
5 that location with the numbers and not increase the
6 density adjacent to them.
7 One of the major concerns was along Brittany
s Drive. At this location (indicating) , there was concern
9 that the Eagle Tree homeowners had -- that the cars would
10 be parking in their neighborhood as well as along the
11 front here. And they didn' t feel that was very
12 aesthetically pleasing.
13 So as originally planned, there was going to be
14 parking allowed along Brittany Drive. And then we
15 presented a plan that had parking behind that 30-foot
16 buffer area to the east of parcel G2 . And still at the
17 protest, what we finally did was eliminate parking on
is Brittany Drive and we posted "No Parking. " And instead,
19 we widened the side streets at this location to
20 accommodate guest parking for those units . Now, of
21 course, those units are also going to have the rear
22 parking and the garage parking near the alley, but we also
23 went one step further to remove any parking from Brittany
24 Drive.
25 I can go into more detail about the solar
17
• 1 orientation request if necessary. I think Mr. Olt summed
2 that up quite well . We basically redesigned some of the
3 homes to eliminate really inefficient flag lots while
4 still maintaining the alley-loaded design.
5 In conclusion, for my presentation, the Planning
6 Commissions is justified in approving the Province Towne
7 PUD preliminary plan. It is in substantial conformance
8 with the approved Province Towne ODP. The densities
9 proposed are all well within the maximum densities set
10 forth in the ODP. It does meet all applicable criteria of
11 the City' s LDGS and is supported by the residential uses
• 12 density chart. It provides a variety of housing types,
13 densities, prices, open spaces, and is designed to
14 accommodate a public park as well as a private
15 neighborhood park and perimeter landscape buffers,
16 pedestrian corroders, and natural wetlands area.
17 City staff is recommending approval, and it is
18 consistent with the City' s LDGS goals and objectives.
19 I will reserve the remainder of my time for
20 questions . But that concludes my presentation, but I 'm
21 happy to go into as much detail about any areas you' d
22 like.
23 MS. CRAIG: Thank you. Are there some questions
24 from the Board? Jerry?
25 MR. GAVALDON: Yes, I do. Sir, can you please --
18
1 I have a hard time seeing your laser pointer so could you
2 go over where the parking issues that you mitigate to not
3 to encroach into Eagle Tree, the other neighborhood.
4 MR. CHAPMAN: Sure. Is this microphone still on?
5 Let me just walk over here.
6 Okay. Originally Brittany Drive, which is this
7 street that runs along here (indicating) -- you may be
8 able to see it better on your screens than you can up
9 here. But Brittany Drive separates --
10 MR. GAVALDON: I can't see. I 'm sorry. That ' s
11 not making any headway. I 'm sorry.
12 MR. CHAPMAN: Do we have a pointer, a mouse? I
13 think Mr. Olt went to get a mouse.
14 MR. GAVALDON: Sorry about that. It ' s just -- I
15 like the old fashioned pointer.
16 MR. CHAPMAN: Okay. This is Brittany Drive at
17 this location (indicating) . This is part of the
18 ally-loaded cottage homes within Province Towne and, of
19 course, this is part of the Eagle Tree neighborhood at
20 this location. The concern was because these were front
21 loaded, the residents would be parking in their garages as
22 well as some parking pullout areas provided in the back,
23 but they didn' t -- they were concerned that there was
24 going to be additional guest parking along Brittany
25 Drive.
19
• 1 So we presented a plan to them that showed
2 parking behind this landscape buffer area, and still they
3 thought that that was not going to be effective either.
4 They didn't want to see cars even behind the landscape
5 buffer area so what we did was eliminated any parking
6 along Brittany Drive. Instead, what we did was widened
7 these side local streets to accommodate parking so that
8 guest parking could park along these side streets, and, of
9 course, the residents could park in the standard parking
10 in the rear. But that would eliminate any parking along
11 Brittany Drive. And, of course, we 've agreed to post "No
12 Parking" along Brittany.
13 So that ' s one of the design considerations we
14 made when discussing it with the homeowners .
15 MR. GAVALDON: For clarification, is Brittany
16 Drive a public street?
17 MR. CHAPMAN.: Brittany Drive is a public street,
is and it is designed, in fact, as a collector street to
19 serve not only this component of the Province Towne plan
20 as well as Eagle Tree, but future components as well . In
21 fact, it is -- even with this at full buildout, this being
22 the Province Towne Filing number 2 , it ' s still
23 significantly below its design capacity in terms of
24 transportation.
25 MR. GAVALDON: Okay. We can'.t typically park on
20
1 a public street, a collector. I 'm just wondering about
2 the process we're using to eliminate parking. And I think
3 that should be a city engineering or transportation
4 decision in conjunction with the neighborhood. But I 'm
5 just questioning our process about this. Any inputs that
6 you' re getting from your neighborhoods.
7 MR. CHAPMAN: Okay.
g MR. GAVALDON: Can someone help me on that, if we
9 can go with those extremes at this point?
10 MR. OLT: I think I 'd like to, you know, ask
11 either Sheri Wamhoff or Ward Stanford. Sheri with the
12 engineering department or Ward with our transportation to
13 address that . I know they're here in the building.
14 MS. CRAIG: Jerry, could that possibly wait until
15 we come to start getting staff questions and then that way
16 we will have them up at the mike one time instead of back
17 and forth?
18 MR. GAVALDON: I 'd rather have this question
19 answered now, only because it deals with the point at hand
20 as he brought this up at input. If we can't get staff
21 here, then I 'm willing to wait . But I would like this to
22 be recorded and answered.
23 MR. CHAPMAN: I am informed a little bit more
24 about the past history that we were, in fact, proposing to
25 widen that for pull-out bays to allow parking. Then we
21
1 were going to provide, again, the landscape buffer, and
1
2 then we went to "No Parking. " So understanding that it ' s
3 a major collector street, we couldn't have parking right
4 on the street, but we were going to design to widen the
5 street initially, which, of course, we 've gone two steps
6 beyond that at this point .
7 MR. GAVALDON: Okay. That sounds fair. Thank
8 you, Sally.
9 MS . CRAIG: Did you still want to talk to staff
10 at this time, Jerry?
11 MR. GAVALDON: While we have them here, maybe we
. 12 can defer. I 'm sure there will be other questions . I
13 just wanted some understanding. And I believe he gave me
14 an answer that I can live with it for now.
15 MS. CRAIG: Okay. Then we' ll come back to that
16 one later.
17 Are there any other Board members that would like
18 to question the applicant at this time?
19 MR. BERNTH: I have a few questions for the
20 applicant.
21 MS . CRAIG: Go ahead.
22 MR. BERNTH: You talked about the site distances
23 and you mentioned 560 feet . What does CDOT require?
24 MR. CHAPMAN: CDOT, for that section of roadway,
25 which is a four-lane road design speed of 35 miles per
22
1 hour. For passenger vehicles, suggests a minimum of 425
2 feet, and for truck design vehicles of 550 feet. So in
3 both cases, the site distances exceed the recommended
4 minimums.
5 MR. BERNTH: You also mentioned the homeowners
6 association. Does the homeowners association also include
7 Eagle Tree neighborhood?
8 MR. CHAPMAN: Does our future --
9 MR. BERNTH: You mentioned homeowners
10 association, excuse me.
11 MR. CHAPMAN: I should probably say homeowners
12 representatives. I believe a portion of the meetings we
13 had with neighborhood leaders, some of them, I believe,
14 were on the board and the others were just acting as
15 neighborhood leaders. Is that your question?
16 MR. BERNTH: Actually my question was, this whole
17 development is going to be under one umbrella homeowners
18 association; is that correct?
19 MR. CHAPMAN: Only our portion will be under a
20 master homeowners association, and then, of course, there
21 may be subassociations for the townhome areas for specific
22 maintenance. It will be a separate homeowners association
23 from the Eagle Tree homeowners association.
24 MR. BERNTH: And my last question was, you
25 mentioned mirror lots. And I, again, with the pointer I
23
1 didn't really understand what you're saying. Could you go
2 back to that point, please?
3 MR. CHAPMAN: I 'm going to walk back to my
4 pointer, if that 's all right.
5 At this location through here (indicating) , there
6 was some concern about the number of our lots on Province
7 Towne that went back to the number of Province -- lots at
8 Eagle Tree, rather. If you count the number of lots that
9 we have aligned through here, due to the orientation,
10 you've got one, two, three, four, five. I can't tell if
11 there's another line. There ' s perhaps six. I can' t tell
12 by looking at this. And then, of course, there are one,
13 two, three, four, five at that location. So I believe we
14 matched that five to five because of the way we oriented
15 our lots due to concerns about density matching up a
16 transition even though the buffer zone is there.
17 MR. BERNTH: Thank you. That concludes my
18 questions.
19 MR. CHAPMAN: Thank you.
20 MS. CRAIG: Okay. I had a question. In your
21 presentation, you talk about the detention area. That ' s
22 up where there ' s going to be the commercial area at one
23 time?
24 MR. CHAPMAN: Yes .
25 MS. CRAIG: So that detention area is going to go
24
1 in with this preliminary; is that right?
2 MR. CHAPMAN: The detention area itself will be
3 constructed with this, but there ' s no land use associated
4 with the commercial piece. So with commercial ground,
5 we're not asking for the ODP, but it will be part of the
6 detention of the overall plan.
7 MS. CRAIG: Okay. And you can do the detention
8 off-site, so to speak? Is that what this would be
9 considered since the preliminary that we 're approving does
10 not have the detention area on it?
11 MR. CHAPMAN: You would have to have the approval .
12 of the property owners to do that. And since we are the
13 property owners in this case or -- the City may still own
14 this, but we have a letter of intent for all necessary
15 drainage easements provided by Alan Karcmarik, City
16 Finance Director. I may have to look to my team to say
17 that particular one, but I know we are covered by that .
18 And, of course, your storm drainage department has
19 reviewed the plans in detail and concurred that this is a
20 good solution.
21 MS. CRAIG: With so much of that area being the
22 detention, why didn't that piece come in as part of this
23 preliminary?
24 MR. CHAPMAN: Because we ' re not ready to do the
25 commercial piece yet, quite frankly. We don' t know what
25
1 that is going to be like in terms of as a design, final
2 uses, and so forth.
3 MS. CRAIG: Any other questions?
4 MS. CARPENTER: Just a follow-up on, Sally, what
5 you're asking. I guess I don' t understand, how are we
6 supposed to know how this is going to drain and where the
7 detention is if we don't have the -- if it ' s -- if the
8 detention pond is all going to be constructed later. I
9 don' t see how we can vote on a preliminary plan without
10 knowing the storm water piece.
11 MR. CHAPMAN: The detention pond will be
. 12 absolutely constructed now. It is just the uses within
13 that area, meaning, commercial facilities are not part of
14 this plan.
15 MS. CARPENTER: Did I miss plans of it somewhere?
16 I didn't see plans for the detention area to show us what
17 that was or from storm water.
18 MR. CHAPMAN: They are located in the overall
19 detention and storm drain plan. I 'd be happy to have our
20 consultant come up and give you more information on the
21 drainage itself. It is shown -- which you can' t see on
22 this very well -- but it is shown on your plans as a
23 detention facility.
24 MS. CARPENTER: On the plans that we have in our
25 packet?
26
1 MR. CHAPMAN: If they are the same plan that ' s up
2 here, yes.
3 MS. CARPENTER: Want to help me, Steve?
4 MR. OLT: You should have that plan as part of
5 your packet . And it probably just earmarks it as a
6 detention area. Do you have the design for that, no, that
7 is on the grading and drainage plan, which is typically
8 not provided to the Planning and Zoning board members.
9 MS. CARPENTER: Okay.
10 MR. CHAPMAN: I am looking at a reduced copy of
11 our Province Towne preliminary PUD, and it does show it
12 and call it out as a detention pond. And, of course, all
13 the details are on the grading and erosion control plans
14 and drainage plans, which again, have been reviewed by
15 your storm water department .
16 MS. CRAIG: Are you comfortable with that right
17 now, Jennifer? And we' ll talk to staff with this after
18 the public presentations?
19 MS. CARPENTER: Yes.
20 MS. CRAIG: Okay. I think we're ready for public
21 input. Mr. Chapman, thank you very much.
22 MR. CHAPMAN: Thank you.
23 MS. CRAIG: I 'd like to see if we 've got some
24 neighborhood representatives that are going to represent
25 possibly some of these -- so you' re all going to be
27
1 individuals? How many people would like to speak tonight?
2 Okay. I think that we can go ahead and stick to four
3 minutes per person then. It looks like it ' s a small
4 enough group of people.
5 What I would like you to do is please come up,
6 both of the mikes work. . So to keep this moving, have one
7 at each mike and be sure and state your name and your
8 address so that we do have it for the record, please. And
9 please start coming forward.
10 STAFF MEMBER: And I would just add if you would
11 please sign on the sheet, also.
12 MS. CRAIG: Thank you.
13 MS . MARCKESANO: Okay. My name is Laura
14 Marckesano, and I live at 800 Biscay Lane. I 'm a resident
15 of Eagle Tree, and I 'm compelled to address this issue of
16 the development referred to as Province Towne PUD Filing 2
17 because I am completely dishearten by what I see taking
18 place.
19 I came to Fort Collins seven years ago for a
20 visit and fell in love with it. There was little traffic,
21 lots of open spaces, and the schools were great with
22 reasonable classroom sizes. When my husband left the Air
23 Force two years ago, we could have lived anywhere we
24 wanted, and we chose Fort Collins for its quality of life.
25 The proposed high density development Province Towne PUD
28
1 Filing 2 impacts this greatly.
2 First of all is the traffic. Trilby Road and
3 Province Road are designed to be major traffic arteries.
4 Brittany Drive is a secondary road serving Eagle Tree and
5 other residential areas. Any ingress or egress from the
6 development Filing 2, should be from the major feeder
7 roads. There is no reason for one development to impact
8 traffic in another area when there are major roads
9 available to provide access to it.
10 Second is parking. It is irresponsible to plan a
11 development that cannot sustain itself. And now he ' s gone
12 ahead and said that they've changed that . And I do
13 appreciate what he' s trying to do, but I still definitely
14 do not want parking on Brittany for various reason. And I
15 feel like by putting in too many homes without adequate
16 parking for those homes, the overflow will spill out onto
17 Brittany Drive.
18 It is unsafe, and it is an unacceptable solution.
19 Brittany Drive is a narrow road designed for residential
20 traffic and cannot accommodate parking. I fear that
21 emergency vehicles will have difficulty navigating through
22 parked cars to reach homes. If parking is going to be a
23 problem for the new development, then it is a
24 responsibility of developers to increase parking capacity
25 within their development or put in fewer homes . I feel
29
• 1 very strongly that Province Towne PUD Filing 2 should
2 sustain itself without negatively impacting Eagle Tree.
3 Furthermore, the covenants of Eagle Tree are
4 specific about what we can and cannot park in front of our
5 own homes. As a homeowner, I take great pride in my
6 neighborhood and try very hard to maintain its beauty.
7 Allowing parking on Brittany Drive will detract from the
8 look of the neighborhood.
9 Thirdly, the density. Putting in five homes per
10 acre adjacent to lots that are one and two homes per acre
11 is wrong. Such high density impacts city services
• 12 required for drainage, water, and sewage treatment. And
13 I 'm not convinced by what he has said, yet, that there is
14 going to be a solution to that .
15 When we purchased our lot, we did so very
16 specifically based on what we were shown was going to be
17 put in behind us. We were told there would be a 100-foot
18 greenbelt and large lots with low home density. In other
19 words, there would be residential compatability.
20 I can only conclude at this time that we were
21 lied to. We have lived here for two years and acknowledge
22 that growth is inevitable. And we trusted the City to be
23 concerned about our needs and preserve the quality of life
24 that makes Fort Collins special .
25 It appears, instead, that they' re being concerned
30
1 with the amount -- about the needs -- of current -- excuse
2 me. It appears that instead of being concerned about the
3 needs of current tax paying citizens, they are more
4 concerned about satisfying developers who want to squeeze
5 every dollar out of every last square inch of Fort Collins
6 land.
7 And fourth, the schools. I am concerned that the
8 schools will not be able to handle the high density of
9 homes that is proposed. Classroom size will be greatly
10 impacted, once again, affecting us negatively.
11 I am very disappointed in what I see happening
12 with the growth of Fort Collins and wonder if you consider
13 that there are real people who are working hard to
14 maintain nice neighborhoods for their children. I would
15 like the developers to consider all of these points when
16 planning future communities. Think about it as if it were
17 happening in your area neighborhood, to your quality of
18 life, to your children' s life, and to your property value.
19 Thank you.
20 MS . CRAIG: Thank you. Would the next speaker
21 please come to the microphone.
22 MR. SPARKS : Hi . My name is Doug Sparks. I 'm
23 also a resident of Eagle Tree. We have been actually
24 protesting the density of this development since the
25 conception of it two and a half years ago, I believe.
31
1 We ' re concerned about not only traffic issues,
2 but safety issues with our children playing on the
3 sidewalks and crossing the streets . Right now we have
4 very little traffic. With the impact of this many homes
5 being adjacent to our property, we're very concerned about
6 cars speeding through the neighborhood and also with cars
7 possibly parking on the streets.
8 I know Brock has mentioned that we have asked and
9 he has agreed to "No Parking" on Brittany and Province.
10 However, I talked to the traffic department two weeks ago
11 and specifically asked them if they would go ahead and put
12 some speed signs up, also the "No Parking" signs. And
13 they have informed me that the street is over 18 feet
14 wide. According to the new City standards, that is
15 adequate for parking.
16 So we have really been deceived in that respect
17 because we have been told all along by both by our
18 Planning Department and the developers before this, which
19 was Pridemark, there would be no parking.
20 We have been told that this is basically an
21 experimental project by the City. And what we ' re also
22 concerned about is the connection of streets from this
23 development into our property. We have asked repeatedly
24 not to have that happen. That would eliminate the
25 traffic, that would eliminate all of our safety concerns .
32
1 The City planning has basically denied any of our
2 requests to have that occur. They are telling us that
3 they will intersect all of the streets that will allow
4 that .
5 In the meantime, what we've done is basically
6 we 've pulled all of our resources together to protest this
7 development. And we have researched the contract that is
8 between the original developer, which was Pridemark, and
9 the City, and we have found that this contract is illegal
10 for the sale of the property.
11 We have submitted all of the paperwork to the
12 Mayor and the City Council . We have received a reply. It
13 would be too complicated to back this out so unfortunately
14 we ' ll proceed in another manner. But I just wanted to
15 give notice of that. Thank you.
16 MS. CRAIG: Thank you. The next speaker, please.
17 MR. EVANS: Good evening, ladies and gentlemen of
18 the Board. My name is Dave Evans. I 'm a resident of
19 Eagle Tree, also. I will abbreviate my comments since
20 Mrs . Marckesano did such a fine job in articulating her
21 concerns.
22 Basically Eagle Tree was the first development on
23 Lemay south of Trilby. It consists of approximately 60
24 acres of development with 93 homes. Subsequent to our
25 purchase in that area and this development, we 've had
33
• 1 Stanton Creek going east of us on Lemay. That consists of
2 300 plus homes.
3 What our major thrust here tonight is trying to
4 convince you to allow us to retain the character of our
5 neighborhood. Our neighborhood was a small neighborhood,
6 rural-lot type, and now we're being surrounded by
7 high-density development . Across the street, again, is
8 Stanton with 300 plus homes.
9 The initial development for Kaufman & Broad is
10 331 homes followed by 620 more homes. So what we 'd like
11 to have you do is take into consideration the full
. 12 spectrum of this development, not the incremental impact
13 of this development as it ' s being presented here tonight,
14 but the overall development that once it comes to fruition
15 when we have 950 homes sitting across in that development,
16 and the impact of the Stanton Creek development, also.
17 Just the two minor things that we would like to
18 see accomplished by this Board tonight would be to have no
19 parking along Brittany and no parking along Province. We
20 don' t think that the width of the streets will accommodate
21 even though it does meet the standard criteria as set
22 forth under the City guidelines.
. 23 The second thing is to close off the connector
24 streets that come into Brittany on Benson and
25 Battsford. We feel that just those minimal things that
34
1 we're requesting would allow us to at least retain some of
2 the character of our neighborhood and the safety and the
3 other aspects which I and the other homeowners have
4 bought . Thank you.
5 MS. CRAIG: Thank you. Are there any other
6 people that would like to speak? Please come to the mike.
7 MS. McSAY: My name is Ann McSay. I live at 6422
8 Kyle Avenue which is slightly west of this and north of
9 Trilby Road. And I want to address some traffic issues
10 not just in the PUD, itself, but Trilby Road and Lemay in
11 general .
12 What I 'm hearing tonight is that they're going to
13 use Trilby Road as a collector for water for this. That ' s
14 the first thing I heard that I didn' t know about, that
15 they' re going to use Trilby as a collector for the water
16 for the subdivision. That seems real poor planning to me.
17 And I hear there may be a detention pond over there, but I
18 don' t believe that ' s going to solve the problem.
19 The other problem I have is I 've lived on Kyle
20 Avenue for over 25 years. And I 've watched the City
21 develop, and I keep asking why can't we do something about
22 the streets and the roads . I called traffic today and
23 said, "When are you going to do something about Lemay and
24 Trilby before somebody gets hurt or killed. " I was told
25 that there will be a four-way stop sign out there, but
35
1 that ' s minimal .
2 I spent probably 10 minutes trying to make a left
3 turn onto Lemay from Trilby on Saturday afternoon. That ' s
4 ridiculous, guys. The traffic on Lemay on the two roads
5 from Harmony to Trilby and beyond to County Road 32 is
6 just horrendous . Trilby Road, itself, is just getting
7 worse and worse.
s If I were to make a left turn when I go out in
9 the morning, I don' t know if I 'd ever be able to get to
10 work. I usually make a right turn so I 'm in pretty good
11 shape.
12 The other problem with Trilby Road is that there
13 are, quote, unquote, many blind spots on there because of
14 the hills and the valleys in the road. Traffic engineer
15 told me today, "Well, yeah. The site is fine if they' re
16 driving 35 miles an hour, " which is what is posted, but
17 most of them are not driving 35 miles an hour. More like
is 45, 55, whatever.
19 I 'm not sure if this Board is aware or not, but
20 Poudre R-1, that they have a bus facility out there that
21 currently has 30 buses . And they are in the process and
22 starting to move dirt to expand that to 60 buses .
M23 Most of those buses are empty when they come and
24 go, but I would hate to see them trying to get out on
25 Brittany because that ' s also a -- I think it ' s Brittany,
36
1 maybe it ' s Portner Drive. I can't remember which one it
2 is right now. That ' s also a blind corner. And I think if
3 there ' s anybody from Brittany Knolls, they will also
4 attest to the fact that there ' s some blind corners out
5 there and they have had some major accidents or some very
6 scary minor ones.
7 Just, you know, Stanton Creek has got 300 houses.
8 You've added Paragon Point and have done nothing to the
9 roads out there other than surface them. Thank you.
10 MS. CRAIG: Thank you very much. Next, please.
11 MS. SCHENDEL: Hello. My name is Joanne
12 Schendel, and I 'm a resident of Eagle Tree. i was one of
13 the first residents of Eagle Tree. we chose our lot;
14 there was one house out there. We were assured that the
15 City would do nothing to destroy the character of the
16 neighborhood even though we knew that there was going to
17 be development. And development has to come when we all
18 agree with that . But what the City is planning for this
19 area is destroying the character of the neighborhood.
20 My understanding of city government is that it is
21 to serve the people. If you were to take a poll of the
22 neighbors in Brittany Knolls, which is on the north side
23 of Trilby, and the people who live in Eagle Tree, I
24 believe you would find no one who is in favor of this
25 project as proposed.
37
1 I think I 've gone to every city and development
2 meeting that has been available for me to go to. We have
3 pleaded for these things to be changed. It ' s as if the
4 City has heard us, but they do not listen to us.
5 When we' re talking about street parking on
6 Brittany, that is a small street . It is -- maybe it ' s
7 legal for parking, but it will not accommodate parking.
8 And when we ' re talking about people coming home at night
9 and then maybe having a guest for dinner, I 'd like to just
10 point out, the -- it just doesn't make any sense to say
11 that they're going to park on these new feeder streets.
. 12 For example, if you live in this house, right
13 here (indicating) , are you going to park or your guest
14 going to park up here and walk down to visit you down
15 here? I don't think so.
16 We 've already had, just this past week, a
17 terrible accident at Trilby and Lemay. There is so much
18 traffic down there. I know three people were terribly
19 injured. There ' s so much traffic down there within the
20 Stanton development. Now we have condominiums at Eagle
21 Tree. We have duplexes on the northeast corner of Lemay
22 and Trilby. And now you're proposing 900 and some houses
• 23 about a block from there. The school buses, the traffic,
24 we cannot handle that . It ' s just entirely out of
25 character.
38
1 We 've been accused of being snobbish because we
2 want to maintain the character of our neighborhood. We've
3 been accused by some of the former members of the P and Z
4 of being uneducated. We were told we should go and read
5 books about the new type of developments that are to be
6 planned. In every way we've been talked down to.
7 You know, we have worked our whole lives to
8 develop this kind of setting that we want to live in, and
9 now we feel it ' s being taken away from us. We feel that
10 Kaufman & Broad and Pridemark have missed deadlines that
11 were contractual deadlines that the City has chosen to
12 overlook. We feel this is against legal procedure, and we
13 feel that in a court of law these would not be allowed.
14 And we feel that that may be a procedure that may have to
15 be looked into.
16 We feel that the schools are already overcrowded
17 in our part of town, and then you're proposing to add
18 hundreds and hundreds of new schoolchildren.
19 We would just ask you to please not just hear us,
20 but to listen to us and to hear us.
21 MS. CRAIG: Thank you. Next, please.
22 MR. MANKE: Good evening. My name is Mark Manke.
23 I 'm a resident at Eagle Tree, also. And we 've been living
24 there for about two years now.
25 When we originally moved into the area, we were
39
1 told, like some other folks that you heard from tonight,
2 of a development that was going to occur next to us. At
3 that time there were some preliminary plans that were laid
4 out, and we were able to see those. And we researched
5 those. And early on in the early stage of investigating
6 the plans, it ' s hard to see what the development is going
7 to be.
8 As this has progressed, there are things that
9 have troubled us greatly. The higher density which has
10 now been adopted by City plan, the street connections that
11 have now been put in -- or that are being put in that
12 weren' t in when we originally moved in. They were
13 proposed. They weren't on the plans at the time.
14 And the people who have been here before -- or
15 earlier tonight have, as far as I 'm concerned, spoken
16 truthfully. At the planning meetings we 've attended, we
17 have asked for the streets to be closed. We have tried to
18 identify our issues early on with the developers and with
19 the Planning Department to address these things so it
20 doesn' t get down a path where the developer -- actually
21 sympathize with the developer, where they have put a lot
22 of time and a lot of investment into the community.
23 The developer has listened to the citizenry for
24 some parts and put in additional buffers . They have
25 realigned. And we recognize that and thank them for
40
1 that .
2 What we run into, though, is a propensity to keep
3 the connector streets coming into our neighborhood which
4 we feel vehemently adamantly about should not occur. It 's
5 been said that the one large street, Brittany Drive, is a
6 collector street. Also, let it be known that that was a
7 collector street that was put in when there was an
8 industrial park that was supposed to be at the far south
9 end of the area. And it wasn't a collector street for a
10 neighborhood environment . It ' s been adopted as that.
11 It ' s also a parkway. It ' s not a straight open
12 street . It ' s a parkway with a very nicely landscaped
13 median down it and very little room, if you start parking
14 cars and parking RVs and parking boats and parking other
15 vehicles on it. And it will make it impossible for
16 traffic to traverse up and down that street .
17 The drainage was an issue. And I think that the.
18 developer has worked hard at addressing that. I heard him
19 say there would be absolutely no drainage come through
20 Eagle Tree. That ' s the first time I 've ever heard them
21 say that. They've always said that there would still be
22 some drainage come through Eagle Tree . Which Eagle Tree,
23 themselves, the actual homeowners have the responsibility
24 to maintain the drainage that comes through there, not the
25 City. This is not a burden that ' s on the City for all the
41
1 drainage. It ' s the homeowners that have to bear that
2 burden. And we're very concerned about the drainage that
3 comes through there.
4 In general, we know that there is going to have
5 to be a development occur next to us . We would prefer to
6 see it be something common to our homes that are there
7 now. We realize it ' s not in the great social science
8 project that ' s proposed by the City. They do have it
9 written as an experimental project in their paperwork
10 which does bother us. It bothers us that they' re going to
11 do an experimental project right next to us . We weren' t
12 aware of that when we bought in that area. And those are
13 the exact words that are in the plan.
14 I thank you for the time tonight.
15 MS . CRAIG: Thank you. Do we have any more
16 speakers? Okay.
17 MR. WALLACE: Hello my name is Scott Wallace. I
18 live at 901 Benson Lane which is right on Brittany. It
19 shares a corner which would become a four-way street if
20 the connector streets would be put in -- were put in.
21 We have a concern also about putting that street
22 through and the safety. We have five children, and we
• 23 really don' t want to expose them to off-street parking or
24 on-street parking along Brittany and having them, you
25 know, be exposed to the risk of maybe stepping out behind
42
1 cars, etc.
2 But also, when we purchased the lots, we like the
3 open feel of the neighborhood. We appreciated the open
4 pasture as well, but we knew it was going to be
5 developed. But right down -- right down this area about
6 halfway through this proposed development (indicating) ,
7 there ' s kind of a ridge.
8 I guess one thing I would like to propose at
9 least is that the density of the -- the housing not be as
10 dense right abutting up against our development or our
11 neighborhood so we don't lose the look and feel of the
12 wider open spaces that we have, but that we would maintain
13 some of the green space that we were told about when I
14 purchased -- we purchased our home there. But also if the
15 houses there are abutting right up against our
16 neighborhood, at least that area could be less dense. I
17 think that would be appreciated by us, anyway.
18 So thank you very much.
19 MS. CRAIG: Thank you. Are there any more that
20 would like to speak?
21 MS . MARCKESANO: May I ask a few questions of the
22 developers.
23 MS. CRAIG: I 'm sorry you had a chance before.
24 If you would like to pass that to somebody else that has
25 not spoken, maybe they could ask those questions .
43
10 1 MS. KUCH: Sally, I just want to make sure that
2 everyone has put their name and address on the sign-in
3 sheet . I don' t know if their address was written on
4 there. I just want to make sure.
5 MS. STORY: Good evening. My name is Ann
6 Story. I live at 806 Biscay Lane, also in Eagle Tree.
7 Two questions. One is, could we get, please, a
8 real definitive answer on the size of the greenbelts. And
9 two, are these detached garages for space for one vehicle
10 or two? And if it ' s for one, is there a true market study
11 that says people really want just a one-car garage? Thank
12 you.
13 MS. CRAIG: Did everybody sign in as Jill
14 requested? I think at this time I 'm going to close the
15 public input and bring it back to the Board so we can get
16 started. And should we -- Jerry?
17 MR. GAVALDON: Yes . I 'd like to take off on --
is Sheri, could you please address the parking issues on
19 Brittany and Province, and what is the City' s view on this
20 and process for allowing parking or no parking, and how
21 does it work so the neighbors can hear about our process
22 we have.
23 MS . WAMHOFF: Sure. On Brittany, we had
24 discussed it, and currently I 'm not sure what the exact --
25 what the width of the pavement between the median and the
44
1 gutter is. But we had discussed that there wouldn' t be no
2 parking along there. It ' s wide enough for traveling in a
3 bike lane which is standard on a collector. Not all
4 collectors have parking on them. we have collectors with
5 parking, and we have collectors without parking.
6 So in the areas with the medians, there would be
7 no parking in the area. As far as further south, we
8 really didn' t discuss that. That ' s all pretty much within
9 the existing development. And I 'm not sure how it ' s
10 striped or if it ' s striped out there.
11 But what we have discussed was that there was no
12 parking. The applicant proposed moving the curb on
13 Brittany west to provide for a parking -- to basically
14 have inset parking. And we have concerns with that as far
15 as moving the curb, there' s going to be drainage concerns,
16 constructability, keeping it clean, and those types of
17 things . So we were not really in favor of that .
18 And so with the layout, we felt that there was
19 going to be adequate parking. Otherwise, the couple of
20 the streets have been widened so there is parking on both
21 sides within the area. Even before they widened them, I
22 did count the number of spaces on the street, parking --
23 on-street parking, and there was more than one space per
24 unit.
25 So looking at it, it may not be the best
45
1 distributed, but with widening those streets out, there 's
2 going to be a little bit more up to Brittany, but it does
3 provide more than one space per unit . I don't know how
4 much more. At this point, I haven't counted it lately,
5 but there was more than one space per unit.
6 MR. GAVALDON: So the "No Parking" is going to be
7 mainly along Brittany where the medians are?
8 MS. WAMHOFF: Correct. And further south where
9 there is medians, I 'm not really sure. I think that ' s --
10 if it ' s wide enough, there could be parking in there and
11 bike lanes and everything. But I 'm not sure it ' s
12 necessary at this point .
13 MR. GAVALDON: So if you get south of the
14 medians, do you get into Eagle Tree?
15 MS, WAMHOFF: Yes .
16 MR. GAVALDON: And is that street median as well?
17 MS. WAMHOFF: No. The median basically ends --
18 I ' ll show you.
19 MR. GAVALDON: And then talk to me about Province
20 itself and what your views are for parking there, please.
21 MS. WAMHOFF: As far as I can tell from the
22 plans, the median basically ends here (indicating) . It
• 23 runs up in these areas. It doesn' t go all the way down?
24 The plans I have don' t show it. So I was going
25 off of what the plans show. Well, this plan doesn' t show
46
1 that area. If there' s median all the way down, then there
2 would be no parking along Province Towne or Brittany. As
3 far this location here (indicating) , there would be no
4 parking here, also. There is a median in there also.
5 As this street would widened out to allow for
6 parking in this area (indicating) , without the median,
7 there could be parking in that area. It is a connector
8 with parking and bike lanes from this point all the way up
9 to here. This part is a collector and no parking along
10 there.
11 MR. GAVALDON: Thank you, Sheri, very much for
12 that portion. I apologize for any inconvenience. Could
13 you please help me and address the intersection, the
14 connectivities to Eagle Tree to Province Towne and why
15 they are important to us?
16 MS. WAMHOFF: Well, the connections here that
17 they're showing, do line up with streets across and then
18 access into the church. They' re important for inner
19 connectivity. This is not under the land use code, but
20 the land use code would require those, also.
21 We felt that it was important for any
22 connectivity between neighborhoods and to provide better
23 distribution of traffic, pedestrians, and that type of
24 information. Those access points are approved access
25 points on the overall development plan. So the streets
47
1 here are in compliance with the overall development plan.
2 MR. GAVALDON: If we didn' t have those
3 connections, we could create bottlenecks in the individual
4 neighborhoods.
5 MS. WAMHOFF: Correct, we could.
6 MR. GAVALDON: And that will create traffic at
7 the streets they don't really want traffic at .
8 MS. WAMHOFF: Yes.
9 MR. GAVALDON: Thank you very much, Sheri. I
10 appreciate it .
11 MS. CRAIG: Any other questions? Jennifer.
12 MS. CARPENTER: Kim? Yeah, I see you back there.
13 If I could get you to come up.
14 MS. KREIMEYER: Yes.
15 MS. CARPENTER: If you could speak to us a little
16 bit about the wetlands and the variance or the change
17 between what normally would be required, the hundred foot
18 to the 50 foot and the reasoning behind that, why you've
19 recommended we do that.
20 MS. KREIMEYER: Okay. The wetland typically
21 would have a hundred foot buffer. And because we went
22 with a two-tier landscaping and the fence with the mesh
23 wire on it to keep dogs and preferably cats and people out
24 of the area, we could reduce the buffer.
25 There was a wetland value and function analysis
48
1 done. And what that required -- the requirement in that
2 was a 66- to 82-foot buffer. And that was with no
3 screening whatsoever. And so we could go down even less
4 than 50 feet with -- especially the two-tier screening and
5 buffering and the fence with the mesh fence on it.
6 MS. CARPENTER: Thanks. Steve, could you tell me
7 when the first ODP came through on this?
8 MR. OLT: Yes. I 'm showing that there was a
9 Province Towne PUD master plan approved by the Board in
10 November of 1982 . This was 410 acres, single family and
11 multifamily, residential, commercial, parkland, and
12 industrial uses.
13 MS. CARPENTER: And how many iterations have we
14 had of it since then? I mean, several or --
15 MR. OLT: Many. I see one -- again, the original
16 that I see is November of 182 . There was an amendment in
17 October of 187 . Second amendment to the Province Towne
18 ODP, September of 193 . And then I see the one that was
19 approved in December of 1996. And that might not be
20 all . I mean, this project is extensive in terms of the
21 projects that have come through.
22 MS. CARPENTER: Have there been significant
23 changes in the density of this entire project or this ODP
24 through that? Did it start out at -- I guess what I 'm
25 driving at, did we start out saying this was going to be
49
1 basically a large lot rural area? And at what point did
2 we change that or did it start from the very beginning?
3 MR. OLT: No. I would say that if you were to
4 research the approved master plans and overall development
5 plans, you would never see that this was intended to be
6 a -- especially a large lot single-family development .
7 It ' s been a mixed-use development with an overall density
8 of -- probably in excess of what we 're seeing now.
9 The overall density that ' s approved for this
10 latest amended ODP in December of 196, allows five. It ' s
11 in the staff report . I think it ' s 5 . 9 dwelling units per
12 acre overall . And that ' s significantly less than the
13 densities we 've seen on previous overall development plans
14 in this property over time.
15 MS. CARPENTER: Thank you.
16 MS . CRAIG: Steve, while you' re talking about
17 that, was Eagle Tree part of the original ODP from 1982?
18 MR. OLT: Yes . It has been part of that until I
19 think this latest overall development plan. Province
20 Towne -- it was Province Towne 1st Filing as a matter of
21 fact . It was approved as Province Towne 1st filing. And
22 then, you know, for marketing purpose and natural
• 23 development, now it has been occupied under the Eagle Tree
24 name. But it was approved as Province Towne 1st Filing.
25 MS. CRAIG: Okay. So the builders that came in
50
1 and built and sold the houses in the Eagle Tree
2 development knew the overall development of that area.
3 They knew what the master plan would look like. Do they
4 usually?
5 MR. OLT: That ' s correct. Ken Duwick was the
6 individual that took the Province Towne 1st Filing, which
7 is now Eagle Tree, through the development review process .
8 Ken Duwick was one of, if not the sole developer of
9 Province Towne, historically through the process. So it
10 was well aware of what the previous master plans looked
11 like. He was part of the original defaulting of the
12 property to the City through the SID and all .
13 But yes, when that was done, certainly there was
14 a knowledge of the previous overall development plans.
15 And what had been proposed, you know, (inaudible) on the
16 different portions of that overall development plan,
17 correct.
18 MS. CRAIG: Okay. Thank you. Any other
19 questions from Board members? Okay. I have -- I 'm sorry.
20 Go ahead, Dan.
21 MR. BERNTH: I had a couple of questions. One
22 comment made by one of the homeowners was that the
23 homeowners bear the burden of the drainage. And I just
24 wanted some clarification on that either from the staff or
25 the particular homeowner that mentioned that. I didn't
51
1 quite understand that .
2 MS. WAMHOFF: Glen Schlueter is here. He ' s in
3 the back. He should be coming up to answer the question,
4 I would assume.
5 MS . CRAIG: Excuse me, sir, I think we do have a
6 find out from staff . I appreciate your offer though,
7 thank you.
8 MR. SCHLUETER: Actually, I 'm going to ask him to
9 explain it because I 'm not sure what area he ' s talking
10 about . He just said something about going through his
11 front yard. And I 'm not aware of that . So could you
12 explain that, sir?
13 MS. CRAIG: So as a staff member you would like
14 him to come up and give us clarification on the drainage
15 issues?
16 MR. SCHLUETER: So I can respond to him.
17 MS. CRAIG: Okay. Sir, would you please come
18 then up to the mike? And please state your name for the
19 record.
20 MR. HOOK: My name is Scott Hook, 906 Province
21 Road. The drainage goes right in my front yard. There ' s
22 a ditch. Right along here (indicating) , there ' s a
• 23 ditch. And it runs right in my front yard.
24 MS. CRAIG: Okay. And you're hoping that this
25 development will get rid of that water?
52
1 MR. HOOK: Not run the water through our front
2 yard.
3 MS. CRAIG: Okay. Let me see if Mr. Schlueter
4 has enough information to answer the drainage on that .
5 MR. SCHLUETER: Actually, the area that he' s
6 concerned about here (indicating) , is they've done
7 everything they can to minimize the drainage. In fact,
8 there will probably be less drainage going through that
9 than there has historically. You can ask the consultants
10 for the exact numbers. Maybe they can spit them out for
11 you.
12 Basically what they've done is they've done
13 everything they can to avoid running drainage through this
14 development. They've taken most of the water that used to
15 go to the north trying to get it to go to the south and
16 through the open space.
17 Along here (indicating) , the only thing that ' s
18 going to drain to here now is about half of these -- the
19 back half of these lots and the street itself . And that
20 will continue to go out here and eliminate down.
21 Up to the north, what they've done -- what
22 they've done up here (indicating) is they've got detention
23 ponds. They've decreased the flow so that it also goes
24 out this direction. And that ' s where it has gone
25 historically. They have gone above and beyond what the
53
• 1 original Province Towne 1st Filing. They used what was
2 called the rationale formula, which in our opinion,
3 greatly undersized a lot of things .
4 When they came in, they were cut off by this
5 development . So they had to go back and resize a lot of
6 their detention ponds. And also, this is a basin that was
7 a huge undeveloped basin. And when we did a master plan,
8 originally we had used a reduction factor for a large area
9 like this . They took that reduction factor out, plus,
10 they used a slim model which gives us a lot closer -- or
11 physically base model . We feel it gives us a lot better
. 12 sizing of detention ponds.
13 So they've gone -- for preliminary stage, they've
14 done a lot of work and fixed a lot of the problems that
15 were existing out there. So I really feel it ' s going to
16 be a lot less drainage coming through their subdivision
17 than there is today even.
18 MS. CRAIG: Okay. Thank you. I would like to
19 ask you though, back to Jennifer' s and my question
20 earlier. With the detention pond not being on this
21 preliminary, what guarantees do we have that that ' s going
22 to be put in with this preliminary, with it not being
23 approved with this preliminary?
24 MR. SCHLUETER: It is being approved, isn' t it?
25 MS. WAMHOFF: They would have to put the
54
1 detention in before they could get their building
2 permits. It would be part of the their site certification
3 that would be required with the development agreement .
4 MS. CRAIG: Okay. That ' s what I was asking
5 whether it would be in the development agreement. It
6 would be somewhere so we know that that will be put in
7 even though it ' s not on our preliminary plan.
8 MS. WAMHOFF: Yeah. If it 's shown on the utility
9 plans and it is needed for their development, they will
10 have to do that and get it built and certified before they
11 can get so many building permits.
12 MR. SCHLUETER: 25 percent is. usually what we
13 use.
14 MS. WAMHOFF: That would drain to that area.
15 MR. SCHLUETER: But we haven' t written a
16 development agreement yet, of course, because preliminary.
17 MS. CRAIG: Okay. Now when you talked about 25
is percent -- and if I remember correctly, how they' re going
19 to phase this in, they're going to work with the
20 multifamily -- or the townhouses up along Trilby anyway.
21 Would that kind of make it the 25 percent so we could get
22 this detention pond put in phase 1?
23 MR. SCHLUETER: Well, when we look at the phasing
24 plan, we look at where the water is going to go from what
25 they're building. And so that limits sometimes to less
55
1 than 25 percent depending on where the water -- the
2 phasing has to include the drainage. It can't just be
3 because it is not on that piece of property.
4 MS. CRAIG: Okay. I think that -- I feel better
5 about it . Are you comfortable with it, Jennifer? Okay.
6 Thank you very much.
7 I think that we need to address some of the
8 questions that were brought• up from public comments.
9 Steve, did you happen to write them down or should I just
10 kind of look at my notes? One of them was size of the
11 greenbelts; the detached garages, whether they are one or
12 two. Another one was a valid concern of the townhouses
13 that are facing Brittany, if they have somebody come for
14 dinner, where is that person going to park. If you could
15 address, maybe at least those three I think off the top of
16 my head, I would appreciate it.
17 MR. OLT: Well, I think what I 'd like to do is
18 have either Brock Chapman of Kaufman & Broad or
19 representative from Downing Thorpe & James answer those
20 questions . They seem to be more specific to the developer
21 in terms of they know specifically the width of all the
22 greenbelts in that area, their parking scheme, which I
• 23 think they've expressed, but they could reiterate.
24 MS. CRAIG: That would be great . Could the
25 applicant bring the appropriate staff up, of your staff so
56
1 that we could . . .
2 MR. CHAPMAN: Sure. I think I can address the
3 majority of these myself. I wrote down a whole list so I
4 can go through it . If I happen to miss one of yours
5 just remind me at the end.
6 MS. CRAIG: That would be great. I would
7 appreciate it.
8 MR. CHAPMAN: I 'm already on the public record
9 for saying this, but let me restate our position. We are
10 not proposing parking on Brittany Drive associated with
11 our subdivision. In addition -- here I am with my pointer
12 again. In addition, we are not proposing on-street
13 parking for this location of Province Towne Drive. As you
14 can see, there are minor driveway pullouts and landscape
15 buffering --
16 MS. CRAIG: Excuse me. I 'm sorry, we can't
17 see. I wish we could.
18 MR. CHAPMAN: Okay. We are proposing "No
19 Parking" along Brittany Drive. Again, we have submitted a
20 plan that allows these local streets (indicating) to be
21 widened to accommodate parking.
22 Also, we 're not proposing any on-street parking
23 along Province Towne Road. These drives allow on-street
24 parking for guest parking plus those homes will have
25 garages and driveways to accommodate parking as well . So
57
1 not only are we not proposing Brittany Drive, we are also
2 not proposing parking along Province Towne Drive adjacent
3 to Eagle Tree.
4 The other issues that came up regarding --
5 MS. CRAIG: Before you switch, head up
6 north. She specifically showed us a place up north where
7 the houses face Brittany and then they have alleyways
8 behind them.
9 MR. CHAPMAN: Yes.
10 MS. CRAIG: And she picked a house about
11 mid-block. And she said, "Okay. Let ' s have a dinner
• 12 party there. " Now where are the people going to park?
13 MR. CHAPMAN: This is a worst-case scenario for
14 this configuration. All the internal streets allow
15 on-street parking. So you not only have the alley system,
16 but you've got the on-street parking allowed on the local
17 streets as well . So the person could either park here
18 (indicating) and walk down to this or park here and walk
19 to this location. And there's a trail connection -- paved
20 trail connection that would get you there as well .
21 MS . CRAIG: Okay. So if you're carrying a cake
22 or large salad, you've got a long way to go to get to that
. 23 person' s door?
24 MR. CHAPMAN: I assume you said cake and not keg.
25 MS . CRAIG: Cake, cake.
58
1 MR. CHAPMAN: You have approximately two house
2 lengths of 100 feet. So you have approximately 200 to 250
3 feet to walk around, park this location (indicating) , take
4 the trail to that location.
5 In terms of additional information regarding
6 Brittany Drive, although not required, early on this
7 Province Towne Drive was planned to act as an internal
8 collector street further reducing the loading off of
9 Brittany Drive. So a majority of the traffic in our
10 subdivision, we'll be using this collector street
11 (indicating) .
12 Also, although there are connections which are
13 important for connectivity and traffic progression, there
14 is no -- and I don't know how well you can see this on the
15 board, but on your plan hopefully you can. There are no
16 outlets directly onto Lemay Avenue from Eagle Tree. So
17 there ' s no reason the residents from Province Towne would
18 be utilizing their local streets as cut throughs. I think
19 that ' s an important distinction to make.
20 The -- talked briefly about the residential
21 compatability as well as the buffers. The minimum
22 buffer -- and it varies, obviously, as you can see through
23 here (indicating) . But the minimum buffer is 50 feet .
24 And that was required to obtain points on the LDGS. There
25 is one exception, and that is along Brittany Drive. That
59
• 1 is a 30-feet landscaped buffer area. So the width is 30
2 feet . And then there ' s a setback to the house, I believe,
3 a minimum of 10 feet since those are rear loaded.
4 So all other buffer areas are at minimum of 50
5 feet wide and much wider in some areas.
6 MR. ECKMAN: Let ' s make sure we stay focused on
7 the questions that were asked rather than --
8 MS. CRAIG: I think he was talking about the
9 greenbelts, and that ' s what I got out of that . So I 'm
10 assuming that the greenbelt that goes along the northern
11 boundary of Eagle Tree, which would be the southern
. 12 boundary of -- what is that? G, where there ' s the trail,
13 that ' s 50 foot between?
14 MR. CHAPMAN: You' re talking about this location?
15 MS . CRAIG: Yes.
16 MR. CHAPMAN: Yes. That ' s a minimum of 50 feet .
17 MS. CRAIG: That is 50 feet. Okay. Thank you.
18 That -- I felt your answer was appropriate that had to do
19 with the greenbelts.
20 MR. CHAPMAN: Regarding -- the questions
21 regarding compatibility and density, I guess I would point
22 out a couple of items.
23 As Mr. Olt pointed out, Eagle Tree was previously
24 Province Towne Filing number 1 . And it was part of this
25 overall ODP and simply had the distribution of the density
60
1 spread a little differently. They had larger lots in this
2 location (indicating) with all of the density, I believe,
3 up to 18 dwelling units per acre, up at that right-hand
4 corner. So there is density there, just distributed
5 differently.
6 In terms of compatibility, that was really
7 established at the ODP, by approving the ODP both the
8 Planning Commission and City Council . And in terms of
9 this plan, the allowable density through the ODP is 5. 97 .
10 And I believe the maximum density proposed here -- or the
11 density proposed is 4 . 76 . So we're talking almost a full
12 dwelling unit per acre below what the maximum allowable is
13 set forth in the ODP.
14 MS. CRAIG: Okay. I think those are their
15 concerns. I did want to check with staff why this came up
16 several times. Why is this called an experiment project?
17 MR. OLT: I don' t know how to answer that . I
18 haven't heard that term. I would like, you know,
19 obviously the citizens to explain where that term has come
20 from. I 'm not familiar with it. I don' t believe, to my
21 knowledge, that we 've been using that in our evaluation of
22 this development. That ' s foreign to me.
23 MS. CRAIG: They made it sound like it was in the
24 paperwork. And you get the same paperwork they got, and
25 you never saw "experimental project" in it?
61
1 MR. OLT: Not to my knowledge. Realize, that
2 I 've only been on this project since January. So there ' s
3 about two and a half-year history that I 'm not familiar
4 with, but I don't know where that term came from.
5 MS. CRAIG: Mr. Chapman, have you heard it or
6 seen it?
7 MR. CHAPMAN: I 've not heard it referred to as
8 experimental .. There ' s only one unique condition of the
9 purchase contract that I 'm aware of, and that is -- well,
10 two, I guess .
11 One is that the affordable housing component be
12 met at 30 percent overall, and this does . And the other
13 one is that we ' re required to just disclose development
14 costs on a quarterly basis once development starts so the
15 City can see what we go through as developers here, since
16 this was previously City owned property. Other than that,
17 to my knowledge, there ' s nothing unique about this project
18 other than disclosing some costs.
19 MS. CRAIG: Okay. Thank you.
20 MR. OLT: It would certainly appear to me -- if I
21 may, Sally, interject -- obviously the property is now
22 zoned LMN. That was rezoned with the adoption of the City
• 23 plan now almost three years ago. This plan -- certainly
24 from not only a density but design standpoint, it ' s
25 commensurate with the goals and intent of the LMN zoning
62
1 district. I guess, that doesn't sound experimental to
2 me. That sounds very much what the -- you know, the
3 direction the City has given to development.
4 MS. CRAIG: I think we as a Board understand
5 that . I just wanted to make sure if there was paperwork
6 that used that word if we got clarification on that. I
7 feel it is appropriate that we address the traffic
8 somewhat, too, since that was brought up several times.
9 Ward, I see that you're coming to the mike. One
10 of my questions was, what is the accident rates down
11 there? And have you -- I know in the past when we 've had
12 situations where neighborhoods were really concerned about
13 traffic, we 've had an engineer or a staff member that has
14 gone down there and sat and really watched it to get a
15 feel of this. Has that happened in this project?
16 MR. STANFORD: The accidents at Trilby and Lemay
17 we 've had since 197, we 've had eight accidents. And that
18 is warranting a stop sign. And the resident that said
19 that there is going to be a stop signed placed there is
20 correct .
21 MS. CRAIG: And that ' s a four way-stop sign; is
22 that right?
23 MR. STANFORD: Yes.
24 MS. CRAIG: When is this going to be placed
25 there?
63
1 MR. STANFORD: Within the next two weeks .
2 MS. CRAIG: Okay. It sounds like it ' s way
3 overdue.
4 MR. STANFORD: Well, we picked up the extra
5 construction traffic also when they shut down Timberline
6 this year. So we have a significant diversion around
7 through that area that comes in from the south and also
8 drives to the south. And we 've had to adjust the timings
9 and stuff up at Lemay and Harmony, and Wheaton and
10 Harmony, and Timberline and Harmony to account for it .
it And a good bit of it is coming through that area so that
. 12 over the summer they've experienced a good bit more
13 traffic than normal, but they still had a -- they still
14 did have accidents in the past .
15 MS. CRAIG: Well, I 'm glad to hear a four-way
16 stop is going to go in. I think that will be very
17 helpful. I still wondered whether staff has gone
18 there. I know that they meet CDOT standards, etc. , but I
19 also know having lived in a neighborhood with traffic
20 problems, sometimes the standards don' t quite meet the
21 area.
22 So I 'm hoping somebody did go down and really sit
23 through and see whether there are some site problems .
24 MR. STANFORD: I did that . The site report on
25 Trilby Road, I did it back in November when I first came
64
1 to traffic. And this was one of the first things given to
2 me.
3 So I went out and sat on Trilby and took
4 measurements of the length and the crest -- what ' s called
5 a crest vertical curve in there -- and what kind of
6 distance could you see from the various access points.
7 And the document that has been provided, the
8 numbers that are on there are accurate. You do have
9 adequate site distance. You won' t see the bottom of
10 another vehicle's tires, but you can certainly see the
11 roof line and the good portion of the vehicle and know
12 there ' s vehicles down there for 500-plus feet . And that
13 does meet all criteria.
14 MS. CRAIG: Did you notice excessive speeding
15 when you were observing?
16 MR. STANFORD: We do know. We 've heard of -- we
17 do get information that there are vehicles speeding out
18 there. I mean, the majority drive properly. There are
19 certain speeding elements, as we have with any street .
20 MS. CRAIG: And so is a neighborhood probably
21 calling the police department trying to get them to sit
22 out there a few times might be beneficial?
23 MR. STANFORD: Since the -- since this past
24 weekend, I 've talked to four or five people out there on
25 the phone in the last couple days and asked those
65
. 1 questions. And from that very small group, they have not
2 called the police yet for any enforcement. And with
3 certain amounts of ability, we can do a little bit to
4 account for that. But between intersections, we have a
5 very difficult time on the arterial because just because
6 it ' s hard to put impairments into a street that is meant
7 to flow vehicles as well as running above 25 miles an
8 hour. Those become hazards more than anything else.
9 MS. CRAIG: Okay. Thank you. I hope anyway,
10 that you addressed the concerns that I heard anyway. I
11 did want to speak with Kim for a few minutes on the
12 wetlands, if possible, please.
13 MS. KREIMEYER: - Yes.
14 MS. CRAIG: Okay. I was trying to understand the
15 buffer that you made and the shrubs and the trees and so
16 forth and trying to think of a place in this vicinity
17 where wetlands has that many trees and shrubs. And I --
18 you know, I 'm not coming up with it. I always think of
19 wetlands more out in an open area. They don't usually
20 have trees and shrubs .
21 Now do you think the water table has something to
22 do with that?
. 23 MS. KREIMEYER: No. Actually because it ' s
24 surface flow, it shouldn't affect anything. I mean, if
25 you think about along the Poudre River, we have a lot of
66
1 trees and shrubs adjacent to wetlands, but there ' s a lot
2 of water.
3 MS. CRAIG: Yes.
4 MS. KREIMEYER: And the water table here is not
5 feeding this wetland. It ' s the soils holding -- it ' s a
6 sump area, and the soils are holding the water there and
7 has created the wetland over time. Drainage comes into
8 this area from the north and from the west . And --
9 actually, it comes from the south and the west and not the
10 north. The north drains out into Trilby.
11 MS. CRAIG: Okay. Now I noticed in the study
12 that was done, that when we came to the 66- to 82-feet
13 buffer, that it specifically said in both of them,
14 "Excluding human activity, cats and dogs . " Now do you
15 sincerely think, especially as close as those houses are
16 to the fence, that the homeowners association can enforce
17 even the mesh fence?
18 MS. KREIMEYER: The mesh fence will be installed
19 with the split-rail fence that goes in with the
20 development enforcing it. The homeowners association is
21 going to maintain the fence. I 'm not sure if I understand
22 the remainder of that --
23 MS. CRAIG: I guess, my concern is, they said,
24 "Yes, you can have a smaller buffer, but only if no dogs,
25 no cats, and no humans are in that buffer area. " And I 'm
67
. 1 really concerned with that -- with the housing, as close
2 as it is, how that can possibly be enforced.
3 MS. KREIMEYER: One, the dogs are pretty much
4 taken care of with the fence and the mesh on the
5 split-rail fence.
6 The cats, about the only way that that will be
7 handled is to have it in the homeowners association
8 agreement, that there would be no cats allowed.
9 And with humans, with the two-tier screening, is
10 to divert. There ' s also two levels of screening. There
11 are shrubs as well as trees . So it prevents -- I should
12 say, discourages people. So if you get over the fence,
13 you've got the shrubs to go through and the trees. And
14 once you get through those, then you would have to go
15 through more shrubs and more trees if you wanted to get to
16 the wetlands -- into the wetland.
17 MS. CRAIG: Did the Natural Resource Department
18 request that the -- part of the covenants be no cats?
19 MS. KREIMEYER: I can' t answer that right now.
20 No.
21 MS. CRAIG: Okay. And I 'm assuming that the
22 buffer area is not going to be mowed or anything. It ' s
23 going to be natural --
24 MS. KREIMEYER: Correct.
25 MS. CRAIG: -- high --
68
1 MS. KREIMEYER: Native grasses, not mowed. So
2 that also discourages children going in there and
3 playing. And adults, I don't see them going in there, but
4 it would discourage human use, I should say.
5 MS. CRAIG: Okay. I think you've answered my
6 questions, anyway. Thank you. Jennifer?
7 MS. CARPENTER: I 'm still stuck on this parking
8 problem. I don' t know if Sheri is the one to talk or
9 Kathleen.
10 I just wanted to hear from staff whether they
it think that ' s a viable idea that people are going to park
12 four houses away and carry a cake or keg or whatever to a
13 party. Is there any alterative parking other than that,
14 if you have that? Is there any parking along in the alley
15 for -- or the street for guests?
16 MS. WAMHOFF: In the alley, the garages have to
17 be set back either 8 feet or 20 feet. Either dimension
18 allows for parking in front of a garage. An 8-foot space
19 would allow you to parallel park in front a garage. An
20 8-foot setback also requires a fence, if there' s one, in
21 back to be placed at 8 feet . So you may end up with more
22 than one space in there. And depending on the width of
23 the lot, I mean, you could end up with two parallel
24 parking spaces as well as the garage. If it ' s the 20-foot
25 setback, you would have parking space in front of the
69
• 1 garage. If it ' s a one-car garage, you'd have one spot .
2 If it ' s two car you would have two.
3 So you will have that space, but they are not
4 really identified as parking spaces, but that is the
5 intent of our standards for those setbacks is to provide
6 additional parking.
7 MS. CARPENTER: And do you feel like that ' s
8 enough and this is a viable parking scheme, whatever it
9 is?
10 MS . WAMHOFF: Yes. As they've said there is a
11 few lots that are kind of -- a little far away. But
12 overall, there ' s a lot of other places within the City --
13 you know, people that live on arterials or, you know,
14 other places don't have parking, you know, on-street or
15 anything like that . So they live with it and stuff, you
16 know.
17 Obviously, it ' s not the ideal situation, but we
18 felt it was acceptable with the parking that was around
19 there that it would work.
20 MS. CARPENTER: Okay. Thank you.
21 MS. CRAIG: Are there any more questions? Dan
22 wanted me to make sure to address the one-car versus
• 23 two-car detached garages . Possibly I need the applicant
24 back again for that question.
25 MR. CHAPMAN: We have -- what we refer to as
70
1 those cottage homes under design at this time. And we are
2 showing a combination of one-car, and two-car. We're also
3 showing a combination of attached and detached garages.
4 Single-family homes is not part of the review
5 process so I didn't bring that architecture with me. But
6 those are in development to accommodate these lots as well
7 as other lots that we have through the Front Range area.
8 But the traffic engineer is correct. Because those lots
9 are a hundred feet deep, a majority of them will have a
10 pull-in parking space to pull in directly behind the
11 garage as well . So that ' s additional parking.
12 MS. CRAIG: So it ' s the homeowner' s choice
13 whether they want a one-car garage or even no-car garage.
14 MR. CHAPMAN: No. They would have to have a
15 minimum of one.
16 MS. CRAIG: Oh, okay. But they could have two if
17 they wanted.
is MR. CHAPMAN: Oh, absolutely.
19 MS . CRAIG: I hope that addressed the fact that
20 there are options with these different housing
21 developments. Jerry?
22 MR. GAVALDON: I 'm ready for a motion.
23 MS. CRAIG: Okay. Then make a motion.
24 MR. GAVALDON: Okay. The motion, Paul, has to be
25 in two parts, the variance, first, and then the
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. 1 approval . Okay. I move for approval of the request for
2 variance to the City' s solar orientation ordinance.
3 MR. TORGERSON: I ' ll second.
4 MS. CRAIG: Okay. It ' s been moved and
5 seconded. So it ' s on the table and ready for some
6 discussion. And it looks like Judy is ready to discuss.
7 MS. MEYER: No.
8 MS. CRAIG: Oh. Is there any discussion that ' s
9 going to go on as far as how you're going to vote, why
10 supporting? This is a pretty big project .
11 MS. MEYER: We 're just voting on it.
• 12 MS. CRAIG: Okay, good.
13 MR. GAVALDON: Solar orientation, only. We still
14 have to make a motion.
15 MS . CRAIG: Then I think we 're ready to vote on
16 that one.
17 MS. KUCH: Bernth.
18 MR. BERNTH: 'Yes.
19 MS. KUCH: Torgerson.
20 MR. TORGERSON: Yes.
21 MS . KUCH: Meyer.
22 MS . MEYER: Yes.
23 MS. KUCH: Gavaldon.
24 MR. GAVALDON: Yes.
25 MS. KUCH: Carpenter.
72
1 MS. CARPENTER: Yes.
2 MS. KUCH: Craig.
3 MS . CRAIG: Yes.
4 That one passed 6 to 0 .
5 MR. GAVALDON: I 'm ready for the main motion.
6 I 'm sure we' ll have a lot of discussion. And I 'll make a
7 motion, and then I ' ll reserve my comments for discussion.
8 I move for approval of Province Towne PUD 2nd Filing
9 Preliminary, number 73-82T.
10 MS . MEYER: I second.
11 MS. CRAIG: Okay. Province Towne PUD Preliminary
12 has been moved to approve and seconded. So I think now we
13 need some discussion. Okay, who wants to start? Jerry?
14 MR. GAVALDON: Thank you, Sally, for allowing me
15 to lead off .
16 1 was on the Board in 196, when the ODP came
17 through for Province Towne. And I 've done my research and
18 study. And I do recognize the neighbors have their
19 individual concerns. I believe they had addressed them
20 quite outwardly to the developer. And I want to
21 compliment the developer for really going above and
22 beyond, and staff, as well, going above and beyond in
23 answering, mitigating, and addressing all particular
24 issues .
25 Though they want some closure of the connection
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• 1 streets, which I do not agree with because you' ll be
2 blocking yourself in, I believe you're going to be the
3 connectivity.
4 To the parking, I have to commend Sheri and staff
5 for working with the neighbors, and the medians -- with
6 the medians relative to the developer and their
7 commitments. I think that ' s above and beyond the call of
8 the request of the developer.
9 Second -- thirdly, I feel that the addressing of
10 the orientation, the mitigations, and the storm water, the
11 drainage, and all of the particulars have been well
• 12 addressed and complimented as well .
13 When this development came in the 180s, there was
14 a clear, concise picture to this. Many were not here. I
15 do recognize that . But it ' s a plan of record. It 's a
16 clear development of what was going to be coming down the
17 pike . And I believe that ' s all been a very careful
18 thought, and I just want to recognize that this has been
19 around for some time. I 'm quite surprised, the comments
20 and addressing of the issues, but yet it ' s been a record
21 since 182 .
22 Secondly, it ' s been addressed in 196, which was
23 clear and concise.
24 So with all this information being available and
25 what the efforts have been made, the discussion and the
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1 planning going with it, I 'm going to support the motion
2 because I believe it has a good fit . The issues of
3 traffic and all that are temporary, which I believe staff
4 has processes in place to address it and mitigate. And I
5 believe you're going to have some wonderful neighbors.
6 Thank you.
7 MS. CRAIG: Jennifer?
s MS. CARPENTER: The first thing I want to do is
9 thank the neighbors, the homeowners, for coming down and
10 speaking in this forum. I understand that that ' s
11 difficult sometimes, but it ' s an important part of the
12 process .
13 I also understand you wanting Fort Collins to
14 stay the same as it was whenever you moved here. I think
15 that would be absolutely wonderful if I could make it go
16 back to 1977, when I moved here, I would. But I think
17 there ' s a lot of people who wouldn't be here then. And we.
is have a lot of nice new neighbors because of that . I think
19 that ' s an unrealistic expectation at this point . We have
20 a nice community. That ' s why people want to move here.
21 And it ' s just -- it ' s the way it is, and we have to
22 recognize this.
23 I do believe that the ODP has been in place for
24 many years, and I believe that this plan does -- does --
25 is in accordance with that ODP.
75
1 I 'm also surprised and a little bit dismayed that
2 the people who moved into Eagle Tree didn' t know what was
3 going to be happening around them eventually. And I do
4 have a concern about that. I don't know who it is that
5 can do a better job. Maybe -- I don't know. Maybe we
6 need to work with the realtors or something to make sure
7 that people know how to get this information, but that
8 information has been available.
9 I still have a few problems with the parking.
10 I 'm not real sure that that ' s as good as we 'd like to see
11 it, but I do realize that they're -- it ' s that way because
12 they' re mitigating some other problems to try to keep
13 parking off Brittany. So I think it ' s probably okay to go
14 through.
15 And I also wanted to comment on the request from
16 the Eagle Tree neighbors to make the streets not go into
17 Brittany Drive. one of the important goals of the City is
18 connectivity between neighborhoods . And I believe that is
19 important . It ' s not going to cause cut-through traffic,
20 but I believe that we do need that connectivity in our
21 neighborhoods and between our neighborhoods .
22 And because of those reasons, I will be
23 supporting the motion.
24 MR. BERNTH: I guess my biggest concern during
25 this whole process is, neighbors just don' t feel
76
1 comfortable about it . And that ' s always a concern in a
2 meeting such as this. i don't know how you mitigate
3 that . I don' t know how you resolve that . I can
4 understand the frustration.
5 I do think the developers have made an effort . I
6 do think there was probably some items that weren' t
7 handled maybe exactly the way they should have been
8 handled, maybe with not all the information that could
9 have been put out. But again, overall I think the -- I
10 appreciate the citizens ' input.
11 But again, I would have to support this motion
12 because it is what we are trying to do. And I do believe
13 the developers followed the rules as the rules were set
14 forth. Thank you.
15 MR. TORGERSON: Well, I appreciate the neighbors
16 coming out and expressing their concerns. What really
17 matters to me in this vote is whether or not this plan is
18 in compliance with the approved ODP and the land
19 developments guidance system. Staff assures us that it
20 is, with the exception of the variance that we 've just
21 given the developer. And I 've reviewed the plans
22 extensively, and I 'm confident also that they are.
23 None of the arguments presented this evening
24 changed my mind so I ' ll be supporting the motion.
25 MS. CRAIG: I understand density is the issue
77
1 here. We, also, as a Board realized that this is an
2 overall development plan. It was a master plan that was
3 put together in 182 . And so we have to look at it as a
4 Board. Did they match the density? Did they do what they
5 were supposed to do?
6 Unfortunately, they built the big lots first. If
7 they had built the smaller lots first, then I don' t think
8 that would be an issue. But it is a master plan and that
9 was the decision that they made. And as Jennifer stated,
10 unfortunately that ' s not what the realtor told you. This
11 has been on the books. And we have to kind of comply
12 with -- with the legal document that it is.
13 The other issue with density is, where do we put
14 the growth that ' s coming into this City? If we don' t
15 start getting a little denser, there will be no open space
16 anywhere for all these people. And I think the people of
17 Fort Collins have pretty much said they don' t want to look
18 at a growth cap, they don' t want to discourage growth. So
19 we as a Board have to figure out where we are going to put
20 the growth. And I think that ' s what City plan addressed.
21 And I also think that 's what this is addressing.
22 By making it a higher density up to the north,
23 they've still given you that 160 acres of open space that
24 could have been developed, and we could have lost it
25 all . I know that ' s not -- that doesn' t help you if you
78
1 look out your backyard and all of a sudden there ' s three
2 neighbors behind you, but at least you can walk down the
3 street and you have open space.
4 So I -- I understand your frustration, but with
5 the growth that ' s going on in this city, we 've got to put
6 them somewhere. And. as a Board, we have to base our
7 decision on criteria. And the criteria for this
8 particular master plan was that now it ' s time for the
9 denser units . So I will be supporting it, also.
10 Roll call please, Jill .
11 MS . KUCH: Torgerson.
12 MR. TORGERSON: Yes.
13 MS. KUCH: Meyer.
14 MS. MEYER: Yes.
15 MS. KUCH: Gavaldon.
16 MR. GAVALDON: Yes.
17 MS. KUCH: Carpenter.
18 MS. CARPENTER: Yes.
19 MS . KUCH: Bernth.
20 MR. BERNTH: Yes.
21 MS. KUCH: Craig.
22 MS . CRAIG: Yes.
23 The preliminary has passed 6 to 0 . Is there any
24 other business that we need to discuss tonight? Does the
25 Board members have any other business or announcements
79
1 that we need to know about? Then I consider this meeting
2 adjourned.
3 (Meeting adjourned at 8 :30 p.m. )
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1 STATE OF COLORADO )
2 ) REPORTER' S CERTIFICATE
3 COUNTY OF LARIMER )
4 I, Anne Hansen, a Shorthand Reporter and Notary
5 Public, State of Colorado, hereby certify that the
6 foregoing Planning and Zoning Board Meeting, was taken on
7 Thursday, August 5, 1999, at 300 West Laporte, Fort
8 Collins, Colorado; that prior to testifying, the witness
9 was duly sworn by me; that said testimony was taken down
10 by me in stenotype notes and thereafter reduced under my
11 supervision to the foregoing 80 pages; that said
12 transcript is an accurate and complete record of the
13 proceedings so taken.
14 I further certify that I am not related to, employed
15 by, nor of counsel to any of the parties or attorneys
16 herein nor otherwise interested in the outcome of the
17 case.
18 Attested to by me this 13th day of September, 1999.
19
20
21 `ate
K ,;5 ;
` a e........� . Anne Hansen
�y'TA r) .: Meadors Court Reporting, LLC
22 140 West Oak Street, Suite 266
Fort Collins, Colorado 80524
23 - ,1 � (970) 482-1506
W�1ae
24 ;., .; My commission expires : 02/13/03
25 i