HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 03/16/2010 - FIRST READING OF ORDINANCE NO. 034, 2010, ADOPTING DATE: March 16, 2010 SUMMARYAGENDA ITEM
STAFF: Steve Dush
Steve Roy FORT COLLINS CITY COUNCIL
First Reading of Ordinance No. 034, 2010, Adopting a Development Agreement Extending the Term of Vested
Property Rights for Rigden Farms, LLC and Rigden Development, LLC for Phases II and III of Rigden Farm Filing Six
Final Plan for Ten Years.
EXECUTIVE SUMMARY
This proposed Ordinance adopting a Development Agreement Extending the Term of Vested Rights for Rigden Farm
Filing Six, is part of a larger settlement of a dispute between the Rigden Farm developers and the City.
BACKGROUND / DISCUSSION
Litigation has arisen between Rigden Farms, LLC, Rigden Development, LLC(hereafter referred to as"Rigden")and
the City regarding the development of Rigden Farm Filing Six in particular and other portions of Rigden Farm in
general. In an effort to resolve the dispute behind the litigation, Rigden and the City engaged in mediation, and a
tentative settlement agreement has been reached. One of the elements of settlement is the establishment of an
extended vested right for Rigden Farm, to run for ten years, essentially until April 30, 2020.
Rigden contends that the length of time that it has taken for the public infrastructure to be constructed around Rigden
Farm allegedly caused Rigden to be subject to the current recession and has made it difficult, if not impossible for
Rigden to meaningfully market the property at the present time. Therefore, Rigden has sought an extension of the
vested right that it had for the property prior to its expiration so that it can engage in development and/or marketing
efforts.
Section 2.2.11(D)(3)of the Land Use Code establishes a three-year term of vested right, but also authorizes the City
Council to adopt development agreementwhich would extend the term of vested right, provided that the development
agreement is adopted by ordinance of the City Council as a legislative act and also provided that the City Council
determines that it will likely take more than three years to complete all engineering improvements for the development,
and only if warranted in light of all relevant circumstances including, but not limited to, the size and phasing of the
development, economic cycles, and market conditions. Given the current economic cycle and market condition,
Rigden is asking the City Council to make this finding and authorize the ten year vesting. While City staff disputes
Rigden's contention that it has breached any legal duty to Rigden or that Rigden has suffered economic harm as a
result of any acts or omissions of the City, staff believes that the extension of the vesting period for Rigden Farm is
reasonable under the circumstances, especially in view of the size of the development, the level of Rigden's
investment in the property and the recent economic downturn.
The attached Ordinance would make the necessary finding and would approve a"Development Agreement Regarding
Vested Rights'which would essentially afford Rigden until April 30,2020,to undertake and complete the development
in accordance with the approved site specific development plan and engineering drawings.
FINANCIAL IMPACT
The financial impact of granting the extended period of vested rights would be negligible upon the City. Even though
the financial impact of the extension of vested rights is negligible, there is a financial impact in the amount of
approximately$300,000 for the settlement generally.
March 16, 2010 -2- ITEM 24
SUSTAINABILITY: ECONOMIC, ENVIRONMENTAL AND SOCIAL IMPACTS
The economic impact of the extension of vested rights is negligible. There are no identifiable environmental impacts
to the extension of vested rights and the extension would have a positive social impact because it would help Rigden
through some difficult economic times in the present recession.
STAFF RECOMMENDATION
Staff recommends adoption of this Ordinance on First Reading.
ORDINANCE NO. 0341 2010
OF THE COUNCIL OF THE CITY OF FORT COLLINS
ADOPTING A DEVELOPMENT AGREEMENT EXTENDING
THE TERM OF VESTED PROPERTY RIGHTS FOR RIGDEN FARMS, LLC
AND RIGDEN DEVELOPMENT, LLC FOR PHASES II AND III
OF RIGDEN FARM FILING SIX FINAL PLAN FOR TEN YEARS
WHEREAS, Section 2.2.11(D)(3) of the Land Use Code establishes a three-year term of
vested property right for approved final development plans and also authorizes the City Council to
adopt a development agreement extending the term of vested property right provided that such
development agreement is adopted by ordinance of the Council as a legislative act subject to
referendum and provided that the City-Council determines that it will likely take more than three
years to complete all engineering improvements for the development, and only if warranted in light
of all relevant circumstances, including but not limited to,the size and phasing of the development,
economic cycles, and market conditions; and
WHEREAS,Section 24-68-104 of the Colorado Revised Statutes also provides that any such
development agreement extending the term of vested property rights shall be adopted as a legislative
act by ordinance of the City Council; and
WHEREAS,Rigden Farms,LLC,Rigden Development,LLC,(hereafter collectively referred
to as "Rigden") have filed suit against the City in connection with a dispute involving the
development of Rigden Farm Filing Six, and the entire Rigden Farm development in general; and
WHEREAS, Rigden and the City have attempted to resolve their differences through
mediation and have tentatively reached an agreement, which agreement is contingent upon City
Council approval of a ten-year extension of a vested right for certain phases of the Rigden Farm
development, which would give Rigden until April 30,2020 to develop and/or market the property;
and
WHEREAS, the City Council finds that it will likely take more than the ordinary vesting
period to complete all engineering improvements for the development and that in light of all relevant
circumstances, including but not limited to, the size and phasing of the development, economic
cycles,and market conditions in extremely recessionary times,it is appropriate that the Rigden Farm
Filing Six be vested for a period of ten years from the effective date of a development agreement
extending the term of vested property right; and
WHEREAS, the City Council has determined that the extension of the term of vested
property right for a period of ten years from the effective date of such development agreement is in
the best interests of the City.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that, pursuant to Section 2.2.11(D)(3) of the Land Use Code, Phases II and III of the
Rigden Farm Filing Six Final Plan shall be granted a ten-year term of vested property right for
development in accordance with the approved final development plan documents and in accordance
with the Development Agreement Regarding Vested Rights,attached hereto and incorporated herein
as Exhibit"A".
Introduced, considered favorably on first reading, and ordered published this 16th day of
March, A.D. 2010, and to be presented for final passage on the 6th day of April, A.D. 2010.
Mayor
ATTEST:
City Clerk
Passed and adopted on final reading on the 6th day of April, A.D. 2010.
Mayor
ATTEST:
City Clerk
EXHIBIT "A"
DEVELOPMENT AGREEMENT REGARDING VESTED RIGHTS
THIS DEVELOPMENT AGREEMENT REGARDING VESTED RIGHTS (the
"Agreement") is entered into as of the day of , 2010, by and
between the CITY OF FORT COLLINS, COLORADO, a municipal corporation (the
"City") and RIGDEN FARMS, LLC, a Colorado limited liability company and RIGDEN
DEVELOPMENT, LLC, a Colorado liability company (the later two entities referred to
hereafter collectively as "Rigden").
RECITALS
WHEREAS, Rigden owns certain property in the City which property is more
specifically described as "Rigden Farm, Filing Six, Phases II and III" in the City of Fort
Collins, Larimer County, Colorado, the plat of which is recorded at Reception No.
20040051421 of the Larimer County, Colorado Records (the "Property"); and
WHEREAS, the Property has been annexed into the City; and
WHEREAS, Rigden has heretofore obtained the approval of a Final Plan for
Rigden Farm Filing Six, Phases II and III, which Final Plan expired in accordance with
its then existing vested right in 2007; and
WHEREAS, Section 2.2.11(D)(3) of the Land Use Code establishes a
three-year term of vested property right for approved final development plans and also
authorizes the City Council to adopt a development agreement extending the term of
vested property right provided that such development agreement be adopted by ordinance
of the Council as a legislative act subject to referendum and provided that the City
Council determines that it will likely take more than three years to complete all
engineering improvements for the development, and only if warranted in light of all
relevant circumstances, including but not limited to, the size and phasing of the
development, economic cycles, and market conditions; and
WHEREAS, Section 24-68-104 of the Colorado Revised Statutes also provides
that any such development agreement extending the term of vested property rights shall
be adopted as a legislative act by ordinance of the City Council; and
WHEREAS, a dispute has arisen between Rigden Farms, LLC, Rigden
Development, LLC, (hereafter collectively referred to as "Rigden") and the City
regarding the development of Rigden Farm Filing Six, in particular and the entire Rigden
Farm development in general; and
WHEREAS, Rigden and the City sought to resolve their differences through
mediation; and
Eckman/agreements/2010/vested rights-rigden 1
WHEREAS, during the mediation, one of the elements of settlement that became
important to Rigden was the establishment of a vested right to run for a period of ten
years from the effective date of a development agreement extending the term of vested
right which would give Rigden until April 30, 2020, to develop and/or market the
Property; and
WHEREAS, the City Council found in Ordinance No. , 2010, that it will
likely take more than the ordinary vesting period to complete all engineering
improvements for the development and that in light of all relevant circumstances,
including but not limited to, the size and phasing of the development, economic cycles,
and market conditions in extremely recessionary times, and that it is appropriate that the
Rigden Farm Filing Six be vested for such period of ten years.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties agree as follows:
AGREEMENT
1. Consent. Rigden promises that it intends to develop the Property subject
to the terms and conditions of its site specific development plan and the terms and
conditions of this Agreement and any subsequent development agreements executed by
the parties.
2. Vested Rights. Pursuant to Section 2.2.11 of the Fort Collins Land Use
Code and applicable Colorado law, including C.R.S. 24-68-101, et seq., the parties agree
that Rigden shall have until April 30, 2020, (the "Term of the Vested Property Right") to
(i) undertake and complete the development and use of the Property under the terms and
conditions of the approved site specific development plan and site development
agreements, and (ii) install and complete all engineering improvements (water, sewer,
streets, curb, gutter, street lights, fire hydrants, landscaping and storm drainage) in
accordance with the engineering drawings heretofore approved by the City, and the City
will not forfeit Rigden's vested rights in the Property within the Term of the Vested
Property Right. Nothing herein shall be construed to prohibit the City from applying to
the development of the Property such ordinances or regulations as may exist at the time
of development that are general in nature and are applicable to all property subject to land
use regulation by the City, as permitted under §24-68-105(2), C.R.S.
3. Amendment. This Agreement may only be amended by written agreement
signed by Rigden and the City. Only the City Council, as a representative of the City,
shall have the authority to amend this Agreement.
4. Binding Effect and Recordation. This Agreement shall be binding upon
the parties, their representatives, successors, agents and assigns and shall be construed as
having been prepared by both parties hereto. This Agreement shall be recorded by the
City with the Larimer County Clerk and Recorder and all rights and obligations set forth
Eckman/agreements/2010/vested rights-rigden 2
in this Agreement shall constitute equitable servitude that runs with the land and shall
benefit and burden any successors to the parties.
IN WITNESS WHEREOF, the parties have caused this Development Agreement
Regarding Vesting Rights to be executed as of the date first written above.
RIGDEN FARMS, LLC
A Colorado limited liability company
By:
Sierra Resources Corp., Manager
By: David J. Pietenpol, its President
Date:
r
By:
Wolverine Management Group, Inc. Manager
By: Fred L. Croci, its President
Date:
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of
2010, by David J. Pietenpol and Fred L. Croci.
Notary Public
My Commission Expires:
RIGDEN DEVELOPMENT , LLC
A Colorado limited liability company
By:
Sierra Resources Corp., Manager
By: David J. Pietenpol, its President
Date:
By:
Wolverine Management Group, Inc. Manager
By: Fred L. Croci, its President
Date:
Eckman/agreements/2010/vested rights-rigden 3
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of
2010, by David Pietenpol and Fred Croci.
Notary Public
My Commission Expires:
CITY OF FORT COLLINS, COLORADO,
a home-rule municipality
By:
Darin Atteberry, City Manager
Date:
ATTEST:
Wanda Krajicek, City Clerk
APPROVED AS TO FORM:
W. Paul Eckman, Deputy City Attorney
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of
2010, by Darin Atteberry.
Notary Public
My.Commission Expires:
Eckman/agreements/2010/vested rights-rigden 4