HomeMy WebLinkAboutPARK SOUTH PUD - PRELIMINARY - 46-88C - LEGAL DOCS - LEGAL DOCUMENTSCity kme,,
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Citv of Fort Collins MEMORANDUM
DATE: March 15, 1991
TO: Stewart Ellenberg, Risk Manager
Bob Smith, Manager of Stormwater Utility
Susan Hayes, Civil Engineer II
Tom Peterson, Director of Planning
Joe Frank, Assistant Director of Planning
A
d Shepard, City Planner
ke Herzig, Development Engineering Manager
Sherry Albertson -Clark, Chief Planner
FROM: Steve Roy, City Attorney%
RE: Settlement Agreement -- Park South
Attached is a copy of the settlement agreement which was finally
executed by Park South. Please note the provisions that may be
relevant to your department. With regard to the future development
of Park South, the agreement provides that any such development
will occur according to the approved plat and the particular plans
which have been enumerated. A separate agreement containing those
provisions relevant to future development has been recorded with
the Larimer County Clerk and Recorder.
As to storm drainage, there are two relevant provisions. First,
the parcel being conveyed to Park South must accommodate existing
flows. Secondly, as to the newly acquired drainage easement
through the Park South property, we have until August 1 of this
year to complete the construction of the permanent storm drainage
improvements.
The City has-been reimbursed for the costs --advanced by Storm
Drainage and a portion of the costs paid by the Self Insurance
Fund. Kim will be in touch with Bob Smith and Stewart Ellenberg to
see that those amounts are property credited.
Thanks for all of your work on this file. Please let me know if
you have any questions or concerns.
SJR:kkg
Attachments
,00 LaPorte Avenue • P. O. Box 380 • Fort Collins. CO �03'_-0380 • (303) 2 -6320
0 •
SETTLEMENT AGREEMENT
This agreement, effective as of February 8, 1991, is among
MIDDEL ENTERPRISES, INC., a Colorado corporation ("Middel
Enterprises"), PARK SOUTH VENTURE, a Colorado joint venture ("Park
South"), HORSETOOTH LTD., a Colorado limited partnership
("Horsetooth"), BROWN FARM JOINT VENTURE, a Colorado joint venture
("Brown Farm"), JOHN R. P. WHEELER ("Wheeler"), ROBERT MARTIN
("Martin") and THE CITY OF FORT COLLINS, COLORADO, a municipal
corporation (the "City").
Recitals
A. All parties to this agreement except Horsetooth are
litigants in Civil Action No. 86 CV 471, Middel Enterprises, Inc.,
et al. v. Brown Farm Joint Venture, et al., District Court for
Larimer County, Colorado, and in Civil Action No. 88 CV 391, Middel
Enterprises, Inc., et al. v. The City of Fort Collins, District
Court for Larimer County, Colorado ("the Lawsuits"). Horsetooth is
a co-owner of the real property described in the plat of the Park
South PUD, situate in the Northeast quarter of Section 35, Township
7 North, Range 69 West of the 6th P.M., Larimer County, Colorado
("Park South PUD").
B. The parties wish to terminate and settle the Lawsuits and
to release each other from certain claims and liabilities.
Therefore, in consideration of the terms and conditions set
forth in this document, the parties agree as follows:
1. (a) No later than March 6, 1991 (i) the City shall pay
$38,000 to Middel Enterprises and Park South, $8,000 of which shall
be considered in full satisfaction of all amounts claimed as costs
in connection with the condemnation of the drainage easement by the
City; (ii) Brown Farm, Wheeler and Martin shall pay $45,000 to
Middel Enterprises and Park South ''`(iii) Brown Farm shall convey
the parcel of real property described in Exhibit A (the "Exhibit A' i,,i'
Property") to Park South by Bargain and Sale Deed, without any �jVUv
warranties, express or implied, as to any matter '°and (iv) Brown
Farm shall pay $22,246.24 to the City for previously unreimbursed
fees, costs and expenses incurred by the City to date in connection
with this dispute.
(b) The City agrees to cooperate with Park South in
order that, as soon as the payments � d cdo vgyance_de r,}bed in
subsection 1(a) have been made, Park Sou�i�i3 e leff i:
eY' withdraw�l�.
all funds being held in the registry of the District Court in
connection with the condemnation proceedings, and to obtain
cancellation of any withdrawal bond that Park South may previously
have posted.
2. Upon payment of the funds and conveyance of the Exhibit
A Property as described in subsection 1(a), the parties shall
dismiss with prejudice all claims and causes of action they ark'U;�
asserting against each other in the Lawsuits, except that the third
party complaint filed by the City against Brown Farm, Wheeler and
Martin for indemnification in Civil Action No. 88 CV 391 shall be
dismissed without prejudice, pending final resolution of that
portion of this dispute. Each party shall pay his or its own
costs, expenses and attorney fees. Counsel for the parties shall
execute and file with the Court appropriate stipulations of
dismissal.
3. (a) Upon payment of the funds and conveyance of the
Exhibit A Property as described in subsection 1(a), the City,
Middel Enterprises and Park South shall file a stipulated motion in
Civil Action No. 86 CV 471 requesting that the Court vacate all
previous orders and judgments relating to the legal effect of the
reservation language contained on the plat of Park South PUD. All
parties agree to cooperate with the City and Park South in this
endeavor. All other orders of the Court in that action shall be
final and non -appealable.
(b) The City agrees that it has relinquished all right,
title and interest in, or claim to, any easement over Tracts G, H
and J-P of Park South PUD, except that such release shall not (i)
affect the City's lien for special assessments for improvements
constructed in connection with the Horsetooth Road Special
Improvement District #83, (ii) affect the City's rights, title and
interest in the property condemned by the City in Civil Action No.
86 CV 471; or (iii) limit the City's right to require that any
development of Park South PUD occur in accordance with certain
letters dated June 15, 1978, from Ronald Strahle to Arthur March,
June 15, 1978, from John Arnold to Ron Strahle, and dated February
26, 1991, from Stephen J. Roy to Douglas D. Konkel (copies of which
are attached hereto and incorporated herein as Exhibits B, C and D
respectively), and in accordance with the following plat and plans
presently on file with the City for Park South PUD:
(1) Subdivision plat, sheets 1 and 2, approved by
the Larimer County Commissioners April 3, 1978, file number P-31
951;
(2) Site plan, SP-1 and SP-2, file number P-31 951;
(3) Landscape plan L-1 and L-2, file number P-31
951;
(4) Architectural elevations, D-1, file number P-31
951; and
(5) Utility plans, dated October 30, 1979, file
number C3 746.
Park South PUD may be developed in accordance with the above -
described plat, plans and letters. Alternatively, Park South PUD
may be developed in accordance with any other plat or plan which
may be subsequently approved by the City in accordance with the
relevant provisions of the City Code.
(c) The City also hereby relinquishes any right, title
or interest in, or claim to, any easement in the Exhibit A Property
except (i) the City's interest in Tax Sale Certificates of Pur-
chase, number 45390 and 47176, dated November 18, 1988, and
November 9, 1989, respectively; and (ii) an easement for storm
drainage purposes to carry upstream waters onto and through the
Exhibit A Property into the Tract A Detention Pond situated in Four
Seasons Fifth Filing PUD. The parties acknowledge that storm
drainage waters presently enter the Property at four separate
locations, as shown on Exhibit E, attached hereto and incorporated
herein by this reference. Park South may change these points of
entry and/or the manner in which storm drainage waters are conveyed
through the Exhibit A Property so as to accommodate the development
of the Exhibit A Property, provided that any such change in
location is approved by the City's Manager of Stormwater Utility,
and so long as any such change would not diminish the quantity or
rate of flow of storm waters presently delivered onto the Exhibit
A Property and would not require any third party to construct any
additional, off -site storm drainage improvements to accommodate
said quantity or rate of flow.
(d) The City hereby approves and accepts the existing
improvements installed in and on Manhattan Avenue and that portion
of Dennison Avenue (formerly known as Boulder Avenue) which is
presently constructed. The City will maintain the said portion of
Dennison Avenue, as well as Horsetooth Road and Manhattan Avenue.
The remaining portion of Dennison Avenue, as well as Walden Way,
will be maintained by the City upon their completion according to
the approved plans therefor and acceptance by the City. The
property owners will maintain all other streets in Park South PUD.
(e) Concurrently with the commencement of development of
Park South PUD, or no later than December 31, 2000, the undersigned
owners of Park South PUD or their successors in interest, shall
execute and deliver deeds of easement to the City to ensure that
all private streets shown on the plat for Park South PUD can be
lawfully used for emergency access and for the installation of
water, sewer, electric and storm drainage facilities to serve Park
South PUD. The City shall be entitled to such deeds without the
payment of any consideration other than the amounts to be paid
under this agreement.
(f) Upon payment of the funds and conveyance of the
Exhibit A Property as described in subsection 1(a), the City,
Middel Enterprises, Park South and Horsetooth shall execute and
cause to be recorded a document summarizing the provisions
contained in subsections 3(b) through 3(e) and in sections 8 and 9
of this agreement.
3
(g) Upon payment of the funds and conveyance of the
Exhibit A Property as described in subsection 1(a), Brown Farm,
Wheeler and Martin shall execute a Quit Claim Deed to terminate any
interest they may have or assert in Park South PUD.
4. Effective upon payment of the funds and conveyance of the
Exhibit A Property as described in section 1:
(a) Middel Enterprises, Park South and Horsetooth, for
themselves and their successors, representatives and assigns,
forever and unconditionally release and discharge Brown Farm,
Wheeler, Martin and the City, and their respective attorneys,
agents, officials, employees, heirs, representatives, successors
and assigns from any and all obligations, claims, demands or
liabilities of every kind, whether known or unknown, and whether
mature or not yet mature, that Middel Enterprises, Park South or
Horsetooth may have or may assert against any of the releasees that
arise from or relate to (i) the events, circumstances or claims
that are, or at any time were, the subject of the Lawsuits,
including, but not limited to, each and every claim, cause of
action or right of recovery or relief asserted in the pleadings and
other papers filed by Middel Enterprises or Park South in the
Lawsuits, or (ii) arise from the initiation or prosecution of the
Lawsuits.
(b) Brown Farm, Wheeler, Martin and the City, for
themselves and their successors, representatives and assigns,
forever and unconditionally release and discharge Middel
Enterprises, Park South and Horsetooth, and their respective
attorneys, agents, heirs, representatives, successors and assigns
from any and all obligations, claims, demands or liabilities of
every kind, whether known or unknown, and whether mature or not yet
mature, that Brown Farm, Wheeler, Martin or the City may have or
may assert against any of the releasees that (i) arise from or
relate to the events, circumstances or claims that are, or at any
time were, the subject of the Lawsuits, including, but not limited
to, each and every claim, cause of actioh or right of recovery or
relief asserted in the pleadings and other papers filed by Middel
Enterprises or Park South in the Lawsuits, or (ii) arise from the
initiation or prosecution of the Lawsuits.
(c) Park South, Middel Enterprises and Horsetooth waive
any right they may have under the condemnation decree entered in
Civil Action No. 86 CV 471 to receive any further compensation for
use of the temporary easement for the construction of the drainage
swale prior to the date of this agreement. Park South, Middel
Enterprises and Horsetooth acknowledge that the payment of the
$34,100 condemnation award, $9,202.39 in interest and $8,000 for
costs satisfies in full all claims they may have for compensation
arising from the condemnation of the drainage easement and the use
of the temporary construction easement. Upon reasonable notice to
Park South, the City and its agents, contractors and employees
n
u
shall be entitled to further utilize the temporary construction
easement to complete the final construction of the drainage swale
without payment of any additional compensation. The City shall
diligently work to complete the construction as soon as reasonably
possible in light of weather and other conditions, and shall
utilize construction techniques that will minimize the impact of
the construction on the temporary easement. The right of the City
to further use the temporary easement shall terminate on the latter
of the completion of construction of the drainage swale or August
1, 1991.
5. Park South and Middel Enterprises presently are
plaintiffs in an action against Title USA Insurance Corporation
(Civil'Action No. 88 CV 306, District Court for Larimer County,
Colorado). Park South and Middel Enterprises agree, jointly and
severally, to indemnify and hold Brown Farm, Wheeler, Martin and
the City harmless from any claim, cause of action, damage or
liability asserted against any of them, and any cost or expense,
including reasonable attorney fees, incurred by any of them if any
of them is made a party to such litigation or is separately sued by
Title USA Insurance Corporation or its successor in interest on any
claim or cause of action arising out of, or related to, the title
insurance previously issued by Title USA Insurance Corporation.
6. The parties are entering into this agreement for the sole
purpose of terminating the Lawsuits and avoiding the further cost
and uncertainty of litigation. Each party has denied liability to
the other parties for any claim, demand or cause of action released
under the terms of section 4, and by entering into this agreement,
no party admits or acknowledges any liability to any other party.
7. Each party represents and warrants to each other party
that (i) he or it has not assigned or transferred any right to or
interest in any claim released by him or it under the terms of
section 4 or settled by the terms of this agreement, (ii) the
execution and performance of this agreement has been duly approved
by all persons or entities from whom approval is required, (iii) he
or it is fully authorized and empowered to execute and perform this
agreement, and (iv) the execution and performance of this agreement
do not violate any other agreement or obligation by which he or it
is bound.
8. This agreement shall be binding upon and inure to the
benefit of the parties and their heirs, successors, representatives
and assigns. It shall be governed by and interpreted in accordance
with Colorado law.
9. This agreement shall be specifically enforceable. If any
legal action is brought to enforce this agreement or any of its
terms, the party or parties prevailing in such action shall be
entitled to a judgment against the non -prevailing party or parties
A
9 i
for all costs, expenses and attorney fees incurred in such action,
in addition to any other relief or damages awarded.
DATED this 6th day of March, 1991.
MIDDEL ENTERPRISES, INC.,
ATTEST: a Colorado corporation
(seal 7
By
President
ATTEST:
QJA _�7 City
dieft-'/
APPRO D AS TO F RM:
C'ty AXtornLdy
PARK SOUTH VENTURE,
a Colorado joint venture
HORSETOOTH LTD., a Colorado
limited partnership
i
• �RM �JOINT
a Colorado joint - -
By,
R. P. wneeier
int Venturer
JOHM R. WHEELER, ndividually
Joh R. P. Wheeler, as Attorney -
in -Fact for ROBERT MARTIN
THE CITY OF FORT COLLINS
By C
Steven C. Burkett, City Manager
6
0 0
EXHIBIT "A$$ ATTACHED TO AND MADE A PART OF THAT CERTAIN SETTLEMENT
AGREEMENT BY AND BETWEEN MIDDEL ENTERPRISES, INC., A COLORADO
CORPORATION ("MIDDEL ENTERPRISES"), PARK SOUTH VENTURE, A COLORADO
JOINT VENTURE ("PARK SOUTH"), HORSETOOTH LTD., A COLORADO LIMITED
PARTNERSHIP ("HORSETOOTH"), BROWN FARM JOINT VENTURE, A COLORADO
JOINT VENTURE ("BROWN FARM"), JOHN R. P. WHEELER ("WHEELER"),
ROBERT MARTIN ("MARTIN") AND THE CITY OF FORT COLLINS, COLORADO,
A MUNICIPAL CORPORATION ("CITY")
Legal Description
A tract of land situated in the NW 1/4 of Section 35,
T7N, R69W, of the 6th P.M., Larimer County, Colorado,
being more particularly described as follows:
Considering the North line of the NW 1/4 of Section 35
as bearing N80'4113511W and with bearings contained herein
relative thereto.
Beginning at the N 1/4 corner of said Section 35, thence
S00'0313411E along the east line of the said NW 1/4 and
the West line of Park South, a planned unit development
recorded in the office of the Larimer County Clerk and
Recorder, a distance of 589.82 feet to the True Point of
Beginning. Thence, continuing along the east line of
said Section 35, S00*0313411E 598.98 feet, thence along
the arc of a curve to the right, having a central angle
of 15'2610411, a radius of 302.17 feet, an arc length of
81.40 feet and a long chord which bears N82'2013211W for
a distance of 81.15 feet, thence N74*37130"W, 65.50 feet,
thence, along the arc of a curve to the left, having a
central angle of 12*2312611, a radius of 370.30 feet, an
arc length of 80.08 feet, and a long chord which bears
N80*4911311W for a distance of 79.92 feet, thence, along
the arc of a curve to the right, having a central angle
of 87`1912111, a radius of 15.00 feet, an arc length of
22.86 feet, and a long chord which bears N43'2111511W for
a distance of 20.71 feet, thence, N0001812511E, 486.22
feet, thence, S89'4113511E, 85.32 feet, thence,
N30*18125"E, 34.64 feet, thence, N60'18125"E, 69.00 feet,
thence, S79'0015211E, 36.16 feet, thence, N89'56'26"E,
35.25 feet to the True Point of Beginning., -
EXHIBIT A
.i
.o..�o . s.....a
o..,o s..o�.•
Yr. Arthur E.
City Attorney
Fort Collins,
Dear Art:
STRAHLE & POWER
. r[0 l.r. fu160,,.0
*OS? a/.'Cc .O■ .10
FORT COLLINS. COLORADO $0322
:arch, Jr.
Colorado
'303-04...44
June 15, 1978
"MIC c . %....
o• es.....•
Zhis letter is written in behalf of Park South Company and
constitutes a recitation of the terns and conditions which we
-nderstand to be applicable to the annexation of Park South Plan
ned Unit Development. We are aware, of course, that the final
decision for the city must be :jade by the City Council, but it is
our understanding that the various agencies of the city with wncz
we have been negotiating will recommend the following to the
council:
1. STREETS: In order to protect the edges of the pavement,
all streets will be built with a concrete edge, flush with the
top of Um asphalt, six inches wide and set into the ground twely a
inches damp. Drainage will be by means of a grassy swale, rather
than con'antional gutters.
Stramt widths shall be as follows: Manhattan avenue will
have an eighty foot right-of-way with a forty-four foot paved
area. Boulder Street will have a sixty foot right-of-way with a
thirty-six foot pavement. Walden Way and Rock Way will each have
a fifty foot right-of-way and twenty-eight feet of pavement. all
courts and cul-de-sacs will have twenty-four feet of pavement.
The name of the street denominated as Rockway Court on the
plat will be changed to Rock Way Drive and will be extended to
intersect with Horsetooth Road.
All cul-de-sacs will be ninety feet in diameter.
All sidewalks will be concrete, rather than asphalt, and will
ZMHMIT 3
1 of 3
Mr. Arthur E. uarch, Ir. page Two
15, :373
have a uniform width of four feet. .Main thoroughfares s':all have
sidewalks on one side of the street. Sidewalks serving �c7as
which face on a cul-de-sac will not be adjacent to the cule-
sac, but will be at the rear of the homes.
?ark South will dedicate an additional twenty feet for
'tooth Road, to be added to the existing thirty foot right -a! -,ay,
the total to constitute one-half of a one hundred foot right-of-
way. Park South will be required to widen the south half ofworse-
tooth Road so that the total width of the pavement on such south
half will be thirty feet. Park South shall pay for curbs and gut-
ters for this portion of the street, and the City of Fort Collins
shall pay for any costs occasioned by designation of Horsetooth
Road as an arterial street, including, but not by way of limitat:c,,
the cost of ten feet of the paving involved. A seven foot wide
concrete sidewalk shall be built on the south side of Horsetooth
Road, and ?ark South Company shall pay for four feet of this sida-
walk.
Park South shall also pay for the widening of the south half
of the bridge across the canal of the New Mercer Ditch Company sub-
ject to the provision that the city will pay for so :such of the
work as is occasioned by the fact that the street is an arterial,
including, but not by way of limitation, payment for ten feet of
such widening.
Park South Company shall not be required to do the widening
of Horsetooth Road or the bridge referred to above until such ti-e
as certificates of occupancy have been issued for one: hundred-a.d
sixty living unit„Z in the subdivision or until three years from
the date of annexation, whichever first occurs.
2. UTILITIES: As of the date this letter is written, the
question of whether utilities shall be furnished to the subdiv-
ision by the City of Fort Collins or by service districts is un-
resolved. The city will use its best efforts to resolve this
question, if possible by the time the annexation is complete.
Installation of the water distribution system in the sub-
division, including service to fire hydrants, shall be in accor-
dance with requirements of the Fort Collins -Loveland Water District.
The city has approved the number and location of fire hydrants as
E=IT B
2 of 3
Mr. Arthur E. March, Jr. Page Three rune 15, 1973
shown on the subdivision plat.
At the present time we do not have the city's requirements
for the number and location of street lights or for layout :rit.'ni.1
the, subdivision generally. we anticipate having this information
prior to the time the annexation comes before the city council
and if there are problems they will be the subject of further ne-
gotiation.
3. STOR:Z DRAINAGE: As indicated previously, drainage will
not be by convential curb and gutter, but by grassy Swale. The
detention pond as shown an the plat, which has been accepted by
the New Mercer Ditch Company, is also acceptable to the city.
4. ZONING: Zoning shall be as recommended by the Fort Col-
lins Planning and Zoninq Board, which includes 61.4 acres of
R-L-P, 20.4 acres of R-P, and 16.5 acres of H-B. Lot sizes, set-
backs, and similar requirements shall be as shown on the plat of
the Park South PUD First Phase, as approved by the Lari::er County
Commissioners.
If this letter represents an accurate summary of negotiations
between the City of Fort Collins and Park South Company, please
sign a copy of this letter and return it to me.
Yours sincerely,
Ronald H. Strahle
The foregoing letter constitutes an accurate summary of an,
understanding reached by Park South Company and representatives
of the City of Fort Collins, subject to approval by the Fort Collin:
City Council.
CITY OF FORT COLLINS
By:
E=IT B
3 of 3
11
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��.+rri.� Sy. � t: •: .Jfi, .��, j..sait.J!^� 't. i.. �`ir ., �`..a�;j�'•�, �J; r .. � r� "J
GTY OF FORT COLUNS 0. 90X 580 =^QT r-ni t_ vg_ (-_7?r)Qa0010572
OFFICE OF THE CITY MANAGER
June 15, ]978
. Z. P=nald Strahle
Attorney at Law
United Barak Buildi-:g
-ort Coll:jv, Colorado 90521
Dear Ran:
Reference is made to your letter of June 15, 1978, pertaining to City
annexation of the Park South area. Your letter accurately sets forth
the understandings reached as a result of negotiations, with the follow-
ing additional provisos:
1. Concerning utilities, the materials allowed by the list=:
(PAC) will be pe mitted. Such materials will be installed
according to reasonable requirements to ba determined by
the City. The same proviso relstes to installation of f'::e
hydrants. Also City water and sewer service will be utilized
unless the City determines that the District shall sertim the
area.
2. Wa understand your group will ncLt contest the annexation of
this territory to the City if the agreements reached are
approved by the City Council.
As you hots, negotiations have been ==ducted and understand:, ngs reached
and the final determination will be made by the City Council.
Sincerely,
� Y a CrMS, COLCPAX i11�1� � � U �
BY: J E. Arnold, yar�ager
7a
gx�
City A4-ney
City of Fort Collins February 26, 1991
Douglas D. Konkel, Esq.
Sorensen and Konkel
1405 S. College Avenue
Fort Collins, Colorado 80524
Dear Doug:
I met at length with City staff to determine how to describe
the kind of development that the City would approve in the Park
South PUD. I relayed your concerns that some of, the PUD plans on
file with the City may not have been properly approved by the City.
I also pointed out that this question of approved and unapproved
plans was the subject of considerable testimony and argument at
trial.
In the City's view, the PUD plat and all of the plans
presently on file with the City are part of the PUD as it was first
approved in the County and subsequently approved by the City at the
time of annexation. Admittedly, not all are signed by the City,
but that was the customary practice at the time. Nonetheless, all
do have the same file number and all such plans are considered to
be part and parcel of the PUD approval process. Thus, it is the
City's position that any development of the Park South PUD under
the existing plat and plans must comply with all such plans as are
enumerated in the revised language in paragraph 3(b) of the
settlement agreement.
As you have noted, the final site plan and final landscaping
plan depict sidewalks within the tracts. Those sidewalks would not
have to be constructed because, as you have noted, many of them
would now "dead-end" into the new drainage easement acquired by the
City. Nonetheless, the City does not agree that the open space
shown on the plat and plans could be eliminated or fenced.
Alternatively, the City would permit the property to be
developed according to any new PUD or subdivision which may be
approved under the relevant provisions of the City Code. If
approval were sought for a new subdivision plat, the City would be
willing to relax the requirements of the Code so as to accommodate
the improvements and utilities which have been installed in Stream
Court. The City would either permit Stream Court to remain a
private street as presently constructed, or it would accept Stream
Court as a public street if it were reconstructed according to City
standards with sidewalk, curb and gutter, and additional thickness
of pavement, in which event every effort would be made to not
disturb the existing utilities under Stream Court if that were
reasonably possible.
EXHIBIT D
1 of 2
300 LaPorte Avenue - f. O. Box 380 - Fort Collins, CO M22-0580 - (303) 221-6;20
Douglas D. Konkel, Esq.
February 26, 1991
Page 2
Please review the revised language of the proposed settlement
agreement. It represents the City's best effort to resolve this
dispute and clarify the manner in which development will be
permitted in the Park South PUD.
Very truly yo rs,
/___4
tephen J. Roy/
City Attorney
SJR:kkg
Enclosure
cc: Tom Peterson, Planning Director
Joe Frank, Assistant Planning Director
Sherry Albertson -Clark, Chief Planner
Ted Shepard, City Planner
Mike Herzig, Development Engineering Manager
Bob Smith, Manager of Stormwater Utility
S,qsan Hayes, Civil Engineer II
Lawrence Hamil, Esq.
EXHIBIT D
2 of 2
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EXHIBIT E
Citv Attorney
February 5, 1991
Citv of Fort Collins
TELEFAXED
J. Lawrence Hamil, Esq.
1380 Lawrence Street
Suite 1400
Denver, Colorado 80204
Re: Settlement Negotiations
86 CV 471 and 88 CV 391
Dear Larry:
I have obtained authority from the City's Risk Manager for the
City to contribute the sum of $30,000.00 to the settlement of the
dispute relating to the Park South drainage easement. The City's
contribution of that amount would be contingent upon the following:
(1) The $30,000.00 would be paid to the Plaintiffs in the
above -entitled actions and would be accompanied by a
payment to the Plaintiffs from Brown Farm Joint Venture
("BFJV") in the amount of $45,000.00. BFJV would also
convey to the Plaintiffs certain vacant real property in
Four Seasons Seventh Filing PUD adjacent to Park South
PUD and presently owned by BFJV. It is my understanding
that the appraised value of this property is no less than
$50,000.00, and that a letter of opinion to that effect
would be provided to the City by a qualified real estate
appraiser.
(2) BFJV would reimburse the City for all costs incurred to
date and not yet reimbursed, which have been or will be
expended by the City in connection with this dispute.
The total amount payable would be $22,246.24, which
represents $4,732.60 for attorney's fees, $9,202.39 for
interest on the condemnation award which has been paid
into the Registry of the Court, $8,000.00 in settlement
of the Plaintiffs' claim for costs in the condemnation
(if acceptable to the Plaintiffs) and $900.00 for
engineering fees. (See Attached "A" for breakdown.)
(3) BFJV will produce evidence of having made payment in full
directly to the contractor for all construction work
performed in installing the storm drainage improvements
within the newly acquired drainage easement. BFJV will
also pay for the fine grading and seeding yet to be
completed in the temporary and permanent drainage
easement.
(4) As soon as weather permits, BFJV will cause the final
improvements. to be made to the Tract A detention pond,
`oO A%tnut' - h. 0 6— :nil • F,`r ( Ak ,?. CO • ()0))
0 •
J. Lawrence Hamil. Esq.
February 5, 1991
Page 2
including completion of the grade work, spillway and
concrete trickle channels, and the seeding. Upon
completion of these items and acceptance of those
facilities by the City, the City will release the letter
of credit previously provided by BFJV, and will make
payment to BFJV in the amount of $8,000.00, pursuant to
its earlier agreement to that effect.
(5) In consideration of the payment of the $30,000.00, the
City and its officers and employees will be released by
the Plaintiffs and BFJV from any and all claims of
liability relating to this matter.
As soon as you have had an opportunity to review all of this,
please let me know if the terms and conditions that I have
described are acceptable to your client.
Although I believe that the City would be legally justified in
pursuing the strict enforcement of its indemnity agreement, City
staff believes that the terms and conditions of the proposed
settlement, when viewed in combination with the expenses already
incurred by BFJV in connection with this matter, represent an
equitable solution to the problem. In the event that the
settlement proposal cannot, for any reason, be finalized, please
understand that nothing herein should be construed as an admission
of liability or wrongdoing on the part of the City and, in such
event, the City preserves all rights and remedies which it may have
at law or in equity to fully enforce the terms and provisions of
its indemnity agreement with BFJV.
obviously, your efforts on behalf of BFJV have proved to
be most helpful in moving this matter toward a satisfactory
resolution. Let's hope we can finalize this settlement. Thanks
for your continuing cooperation.
Very truly you s,
Ste hen J. Roy
City Attorney
SJR:kkg
cc: Bob Smith, Stormwater Utility Manager
Stewart Ellenberg, Risk Manager
f
ATTACHMENT A
(2/5/91)
Re: Invoice for Reimbursement to City of Costs
Paid in Connection with 86 CV 471 and 88 CV 391
Attorney's Fees:
Paid by City: $4,243.85
Remaining to
be paid to
Anderson,
Sommermeyer,
Wick and Dow: $ 488.75
court Costs:
Interest on
Award in
Condemnation
Portion of
Case Paid by
City: $9,202.39
Bill of Costs: $8,000.00
(if agreed upon)
Miscellaneous cost:
Northern Colorado
Engineering
Services: $900.00
Total Amount Due City: $22,246.24
Total Amount Due ASW&D: 488.75
Grand Total .$22,734.99