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Home My WebLink AboutCOUNCIL - AGENDA ITEM - 08/18/2020 - RESOLUTION 2020-069 APPROVING AN AGREEMENT TO SECUAgenda Item 19 Item # 19 Page 1 AGENDA ITEM SUMMARY August 18, 2020 City Council STAFF Paul Sizemore, Interim Director, Comm. Devt. & Neighborhood Serv. Rachel Rogers, Senior Specialist Economic Sustainability John Duval, Legal SUBJECT Resolution 2020-069 Approving an Agreement to Secure Public Benefits for Waters’ Edge Development as Provided in the Service Plan for Waters’ Edge Metropolitan District Nos. 1 through 5. EXECUTIVE SUMMARY The purpose of this item is to consider a Resolution adopting an Agreement to Secure Public Benefits for the Waters’ Edge Development. The Agreement is contemplated in the Consolidated Service Plan for Waters’ Edge Metropolitan Districts Nos. 1-5, approved by City Council on September 18, 2018. Staff has completed its review of the Agreement to ensure it conforms to the service plan adopted by Council. Council considered this item on July 21, 2020 and continued the item to August 18, 2020, to allow for modifications to the Agreement. STAFF RECOMMENDATION Staff recommends adoption of the Resolution. BACKGROUND / DISCUSSION Summary The developer of the Waters’ Edge Development (Developer) is seeking approval of a Public Benefits Agreement (Agreement) to secure benefits established in the adopted Waters’ Edge Metropolitan District Service Plan (Service Plan). At the July 21, 2020, regular Council meeting, discussion was held regarding the Agreement and the methods for securing the public benefits. Council expressed an interest in developing additional provisions to be included in the Agreement. The item was continued to August 18, 2020, to allow staff and the Developer time to discuss and consider revisions to the Agreement to address Council’s concerns. Council Requested Modifications for the August 18 Meeting The adopted Service Plan commits to public benefits that fall into four categories: reduction in potable water use, enhanced public and open space, ditch restoration, and affordable housing (Public Benefits). Council requested that the Agreement be amended to address two considerations related to the affordable housing component of the Public Benefits: 1. Clarifying the required criteria for affordability to be scalable based on household size. 2. Including additional provisions to further secure the affordable housing. The revised Agreement addresses these two considerations. Agenda Item 19 Item # 19 Page 2 Affordability Criteria In the original Agreement as presented to Council, affordability was established at 80% of the Area Median Income (AMI) for a household size of four. Council expressed an interest in making the affordability requirement scalable based on household size rather than basing all units on a household size of four. In the revised Agreement, units are required to be affordable at 80% AMI based on household size established by the number of bedrooms in the unit. The Agreement establishes that studio units will be considered a household size of one, one-bedroom units will be a household size of 1.5 (calculated by averaging the affordability criteria for one and two person households), and all units of two or greater units will be considered a household size of two. This provides for flexibility in the affordability criteria while providing predictability and consistency in the pricing of the affordable units for future resale. Securing Affordable Housing In the original Agreement, shown generally on page 5 of the Agreement, the affordable housing requirements were secured by not only the Agreement, which would be recorded and binding on all the affordable units, but also by a 20-year covenant, in a form acceptable to the City, that imposes the affordability requirements and which would be recorded against each affordable unit (Covenant). In the revised Agreement, the affordable units will continue to be subject to the recorded Agreement and the Covenant, but the Agreement will now also require the deeds by which the Developer either conveys the land for affordable units to be built or conveys the built affordable units themselves, must include the following: 1. Specific reference in the body of the deed, reflecting that the property conveyed is subject to the Covenant. 2. Copy of the Covenant attached as an exhibit to the deed. 3. Notice in the deed that, in accordance with the Covenant, if the deeded affordable unit is subsequently sold or leased while the unit is subject to the Covenant, such subsequent owner or lessee must comply with the Covenant’s affordability requirements. 4. A provision requiring, while the Covenant is in effect, that the Developer or builder prepare a report annually and deliver it to the City for each affordable unit confirming that the unit is either owner-occupied or lessee-occupied by a household that complies with the Covenant’s affordability requirements (the “Compliance Report”). The Compliance Report is to be delivered to the City within 90 days of the end of each calendar year. If the Developer is the seller of a built affordable unit, the Developer, or someone the Developer contracts with, is required to prepare and deliver the Compliance Report to the City. However, if the Developer has first conveyed the land for the affordable units to be built by another developer or builder, it will be that developer or builder who will responsible for providing the City with the Compliance Report. The revised Agreement also requires all these new provisions to be in the Covenant. Below is a summary of the revisions. First Draft of Agreement Second Draft of Agreement Affordability Criteria 80% AMI for household size of 4 80% AMI for household size: studios = 1 person, one-bedroom = 1.5 people (averaged), more than one bedroom = 2 people Securing Affordable Units Recorded Agreement and Covenant Provisions in the deed cross referencing Covenant for added visibility; Covenant required as an exhibit to all deeds; notice of affordability requirements in deed; Developer or Developer’s assignee annually reports compliance with affordability requirements to the City Agenda Item 19 Item # 19 Page 3 Project Overview The Developer of the Waters’ Edge project (Project) proposes a multi-phase 235-acre development in Fort Collins. The Project includes approximately 848 homes with a product-type tailored to a population that is 55 years and older (incorporating single-level, senior-friendly home design). Additionally, the Project proposes a future neighborhood commercial center, which could include up to 70,000 square feet in commercial/retail space. The first phase of the Project, consisting of 377 dwelling units, has completed the development review process and a Final Development Plan was approved on June 4, 2018. The Developer anticipates the second phase of the Project (which has not yet been submitted for development review) will consist of 471 dwelling units and commercial property. The Project relies on five metropolitan districts, established in 2018, to provide and operate a non-potable water system, provide enhanced parks and open space, rehabilitate the Windsor No. 8 ditch, and to provide other lifestyle amenities to its residents (namely a sustainability center, and a senior activity center). In addition, the developer commits to providing 10% of the dwelling units in Phase II of the Project as affordable housing, defined as affordable by households earning 80% or less of the area median income (AMI). On September 18, 2018, Council approved the Consolidated Service Plan for Waters’ Edge Metropolitan Districts Nos. 1-5, based on these commitments to provide the Public Benefits. Staff has reviewed the revised Agreement and has determined that it is consistent with the adopted Service Plan. Public Benefits The approved Service Plan anticipated the provision of the following Public Benefits, which are secured in the revised Agreement: Affordable Housing • Developer commits that in Phase II (Waters’ Edge East) at least 10% of the housing units in that phase will be affordable (defined at 80% of AMI). • This results in at least 48 affordable housing units if 471 total units are developed. • The Agreement provides that at least two-thirds of the required affordable housing units must be completed or guaranteed by a legally enforceable contract before the developer can obtain more than 50% of the building permits for the total units in Phase II. • In addition, the required affordable housing units must be completed or guaranteed by a legally enforceable contract before the final 100 building permits in the development will be issued. • Housing units will be guaranteed to remain affordable, as defined above, for at least twenty years. • If any required affordable housing units are offered as for-rent units, they must be rented at a price affordable for an AMI of 80% or lower and the average of all rents for those units must be affordable for households earning no more than the 60%. Significant Reduction of Potable Water • The inclusion of a non-potable water system will significantly reduce the need for treated water. • The Developer estimates the long-term annual reduction in potable water needs to be approximately 55% less than a typical development. • The Developer estimates this system to result in significant financial benefits of around $151K in annual operating cost savings. • Additionally, there are unquantified environmental benefits due to a reduction in water treatment, primarily in electricity usage. • Traditional non-native and high-water use landscaping would require 158-acre feet of irrigation per year according to estimates. • Water planning, strategic landscaping, and successful performance management will reduce that to 87- Agenda Item 19 Item # 19 Page 4 acre feet during the initial grow-in period then down to 65-acre feet after the native grasses are established. Enhanced and Expanded Public Spaces, Parks, and Trails • Development includes enhanced and expanded open spaces and trails. • Developer represents that there is twice the open space of a typical development. • Developer proposes this as a benefit to the walkability and pedestrian friendliness of the Project, in addition to meeting the intent of nature and outdoors accessibility. • Additional public spaces proposed include sports courts, senior activity center, sustainability center with electric mower charging, and community garden. • Development provides additional pocket parks, enhanced public street design, and enhanced landscape plantings in the open spaces and street corridors. Rehabilitation of the Windsor No. 8 Ditch • As per the Service Plan, the Windsor No. 8 ditch will be significantly rehabilitated to improve water quality, provide habitat for wildlife, act as regional trail connection, and transform an eyesore into an attractive community amenity. • The existing ditch is 6,208 feet long along the eastern boundary of Phase II. In addition to the commitments above, which were a part of the Service Plan, the Developer has included additional benefits as a part of Phase I of the Project. These benefits are included in the approved plans for that phase of development. Solar Energy • To enhance the environmental sustainability of the Project, the Developer has committed to enhanced standards for Phase I of the Project. • The commitment is that 65% of the dwelling units in Phase I will be solar-power-oriented. Public Infrastructure • Phase I of the Project includes a commitment to several critical transportation infrastructure improvements. • Developer has agreed to design and install geometric improvements and infrastructure at the intersection of Turnberry Road and Country Club Road. • Developer committed to a payment of $250,000 to the City which may be used for improvements to the intersection of Timberline Road and Vine Drive to offset traffic impacts. • These public infrastructure improvements are included as obligations in the development agreement for Phase I of the project. Performance Assurances The Waters’ Edge Service Plan prohibits the Metropolitan District from issuing any debt or imposing the debt mill levy or fees to pay debt unless and until the delivery of the Public Benefits are secured for each development phase of the Project in a manner that is approved by Council. This requirement can be satisfied by one or both of the following methods, as applicable: • Intergovernmental Agreement - For any of the Public Benefits to be provided by one or more of the Districts, each such District must enter into an intergovernmental agreement with the City agreeing to provide those Public Benefits as a legally enforceable multiple-fiscal year obligation of the District under TABOR or by securing performance of that obligation with a surety bond, letter of credit or other security acceptable to the City and all such intergovernmental agreements must be adopted by Council. Agenda Item 19 Item # 19 Page 5 • Approved Development Plan - For any of the Public Benefits to be provided by one or more Developers of the Planned Development, each such Developer must enter into a development agreement with the City under the Developer’s applicable Approved Development Plan, which agreement must legally obligate the Developer to provide those Public Benefits before the City is required to issue building permits and/or certificates of occupancy for structures to be built under the Approved Development Plan for that phase of the Planned Development or to secure such obligations with a surety bond, letter of credit or other security acceptable to the City and all such development agreements must be adopted by Council. Here, the method used to secure the Public Benefits is both the revised Agreement and the current development agreement that the Developer has entered into with the City for Phase I of the Project. Funding/Securing of Public Benefits Although the intent is that one or more of the Districts will ultimately reimburse the Developer for those Public Benefits they have the legal ability to fund, the Developer has the obligation to develop, construct and/or install the Public Benefits in accordance with the terms and conditions of the revised Agreement and the Phase I development agreement. Service Plan Review The Service Plan calls for the five Metropolitan Districts to deliver certain public improvements for the Project. The development is phased over time with an anticipated build out in 2027. Highlights of the service plan include: • Assessed Value - Estimated to be approximately $43 million in 2028 (the first year of full value after buildout) • Aggregate Mill Levy - 50 mills, subject to Gallagher Adjustments • Debt Mill Levy - 40 mills, which may not be levied until an approved development plan and/or intergovernmental agreement has been executed that delivers the pledged public benefits • Operating Mill Levy - 10 Mills • Maximum Debt Authorization - $31.5 million in project costs plus cost of issuance to cover a total of $98,512,577 in estimated costs • Regional Mill Levy - 5 Mills, anticipated to be used to fund specific transportation and/or stormwater improvements Conclusion The revised Agreement conforms to the Public Benefits outlined in the Service Plan. The Agreement meets both the letter and spirit of the Metropolitan District Policy and helps the City achieve its strategic objectives. The Metropolitan District Policy speaks to the City’s commitment to water and energy efficiency, and this Project provides benefits beyond typical code requirements. The Project will create at least 48 units of affordable housing, addressing the City’s objective of increasing the inventory of affordable units as outlined in the Affordable Housing Strategic Plan. In addition, rehabilitation of the Windsor No. 8 Ditch as well as trail and open space improvements will provide an enhanced environment for residents and the community at large. CITY FINANCIAL IMPACTS The proposed Agreement will not have an impact on the City’s financials. The Developer has paid the fees required under the City’s Metropolitan District Policy, which fees are designed to offset the cost of staff and outside consultant review. Agenda Item 19 Item # 19 Page 6 ATTACHMENTS 1. Public Benefits Agreement (redlined) (DOCX) 2. Developer Presentation (PDF) 3. Powerpoint Presentation (PDF) 1 AGREEMENT TO SECURE PUBLIC BENEFITS FOR WATERS’ EDGE DEVELOPMENT AS PROVIDED IN SERVICESERVICE PLAN FOR WATERS’ EDGE METROPOLITAN DISTRICT NOS. 1 THROUGH 5 THIS AGREEMENT TO SECURE PUBLIC BENEFITS FOR WATERS’ EDGE DEVELOPMENT AS PROVIDED IN SERVICE PLAN FOR WATERS’ EDGE METROPOLITAN DISTRICT NOS. 1 THROUGH 5 (this “Agreement”) is made and entered into this ______ day of ___________, 2020, by and between the CITY OF FORT COLLINS, COLORADO, a home rule municipality of the State of Colorado (“City”) and WATERS’ EDGE DEVELOPMENTS INC., a Colorado corporation (“Developer”). The City and the Developer shall be referred to herein individually as a “Party” and jointly as the “Parties.” WITNESSETH: WHEREAS, the land-use development agreement between the City of Fort Collins and Waters’ Edge Developments Inc., as amended, (“Second Filing Development Agreement”) and related plat were approved by the City on June 4, 2018 (the “Second Filing”); and WHEREAS, the Second Filing was approved for a total of 377 dwelling units including 197 single family dwelling units, 50 single family alley loaded dwelling units, and 82 single family attached dwelling units, together with a tract for future development of a minimum of 48 multi-family dwelling units; and WHEREAS, the Second Filing is legally described as follows: Waters’ Edge Second Filing, located in Section 30, Township 8 North, Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the Waters’ Edge Second Filing Final Development Plan (the “Second Filing FDP”) was approved by the City on June 4, 2018; and WHEREAS, the second phase of development within Waters’ Edge Metropolitan District Nos. 1-5 (each a “District” and collectively the “Districts”) is identified in the Consolidated Service Plan for the Districts (the “Service Plan”) as the Inclusion Area, and encompasses 126.3 acres and is legally described on Exhibit “A” attached hereto and incorporated by reference (referred to herein as “Waters’ Edge East,” and together with the Second Filing, the “Property” or “Development”); and WHEREAS, the Developer has not yet submitted final site plans or development approval applications to the City for Waters’ Edge East, but the Developer anticipates that such future site plan and development approval applications will include approximately 471 residential lots, as well as a commercial property; and 2 WHEREAS, the Developer desires to develop the Property into a uniquely sustainable healthy living community and this commitment includes full compliance with the required number of affordable homes as well as a significant number of homes in the balance of the community planned to be attainable homes designed to allow aging residents to age-in-place with single story living plans, limited or no entry steps and other architectural modifications addressing the needs of those requiring additional physical considerations, all in a neighborhood that is socially and physically connected to avoid isolation of its residents as they age; and WHEREAS, this vibrant community concept will also promote environmental conservation through reduced water usage and energy efficient homes, and will demonstrate the use of renewable energy not only in the homes but in the maintenance of the community’s significant open space, trail systems and parks; and WHEREAS, the Developer has evidenced its commitment to these goals through the completed buyout of the existing oil and gas production and reserves, the plugging and abandonment of wells in the neighborhood and the planned conversion of oil and gas well-sites into public space that includes programs and/or displays for the continuing education of the greater community on the importance of environmental conservation, including the commitment to build a sustainability center for the residents and other citizens of the City; and WHEREAS, the Developer’s goals for the Property align with and promote the City’s Triple Bottom Line priorities of economic health, environmental services, and social sustainability; and WHEREAS, pursuant to the provisions of Article 1 of Title 32 of the Colorado Revised Statutes (the “Special District Act”), the City Council of the City approved the Service Plan for the Districts by Resolution 2018-084; and WHEREAS, organization of the Districts is intended to enable development of the Property in a manner that will provide the public benefits generally described in Exhibit K of the Service Plan, and more particularly defined and described in Paragraph I.B. below (the “Public Benefits”); and WHEREAS, Section IV.B.2. of the Service Plan requires that the Public Benefits to be provided by a developer of a planned development shall be secured by a development agreement between the City and such developer and the City and the Developer desire to secure the Public Benefits in accordance therewith through this Agreement. NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements of the parties contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is agreed as follows: I. SECURING OF PUBLIC BENEFITS A. Overview. 3 1. Method of Securing Public Benefits. Although the intent is that one or more of the Districts will ultimately reimburse the Developer for those Public Benefits they have the legal ability to fund, the Developer shall have the obligation to develop, construct and/or install the Public Benefits in accordance with the terms and conditions of this Agreement. 2. Public Benefits Summary. Exhibit K to the Service Plan generally summarizes four (4) categories constituting the Public Benefits which are required to be secured under this Agreement: (1) Affordable Housing; (2) Significant Reduction in Potable Water Usage; (3) Enhanced and Expanded Open Space, Parks and Trails; and (4) Rehabilitation of the Windsor #8 Ditch. Each of these categories are defined and addressed in Sections I.B.1 through I.B.4. below. B. Public Benefits Secured 1. Affordable Housing. a. The Developer has not yet submitted final site plans or development approval applications to the City for Waters’ Edge East, but the Developer anticipates that such future site plan and development approval applications will include approximately 471 residential lots. The “Total Dwelling Units” shall mean the total number of dwelling units authorized under one or more approved development plans for Waters’ Edge East. For the purposes of determining compliance with this Section I.B.1.a., at least 10% of the Total Dwelling Units approved within Waters’ Edge East (with any fraction rounded up to the next whole number) must each be a dwelling unit affordable for households earning eighty percent (80%) or less of the area median income for a family of four for the Fort Collins/Loveland Metropolitan Statistical Area published annually by the U.S. Department of Housing and Urban Development (“AMI”),”) for the applicable Household Size (as hereinafter defined) , which units may be offered for-sale or for- rent (“Required Affordable Units”). However, the Required Affordable Units offered for-rent must on average be affordable to households earning no more than sixty percent (60%) of the AMI. for the applicable Household Size. This sixty percent (60%) average shall be calculated using the averaging methodology adopted by the Colorado Housing and Finance Authority in response to the United States Congress’ Fiscal Year 2018 Omnibus Spending Bill signed into law by President Trump on March 23, 2018. As used herein, “Household Size” means, (i) for Required Affordable Units that are studios, a family of 1 person, (ii) for Required Affordable Units that have a single bedroom, a family of 1.5 persons (meaning that the household income level for such Required Affordable Units will be equal to the average of the AMI for a family of 1 and a family of 2) and (iii) for Required Affordable Units that have more than 1 bedroom, a family of 2 persons. If the approved number of Total Dwelling Units is more than 471 residential lots, the number of the Required Affordable Units shall be increased accordingly by the 10% requirement. However, if less than 471 Total Dwelling Units are approved, the number of Required Affordable Units shall not be less than 48 dwelling units. b. Each of the Required Affordable Units must continue to satisfy its affordability standard as defined in Section I.B.1.a. above for at least twenty (20) years from the date of issuance of the first certificate of occupancy for each such unit. This means that it is the intent of the Parties that the initial and subsequent conveyances and leases of each of the Required 4 Affordable Units during the twenty (20)-year period must be to purchasers or lessees whose AMI qualifies them for that Required Affordable Unit as defined in Section I.B.1.a. above. This requirement shall be secured and deemed satisfied upon recording of a restrictive covenant or deed restriction for each of the Required Affordable Units in a form reasonably acceptable to the City, which shall include (without limitation) the information set forth in the last paragraph in Section I.B.1.c. below, that is for the City’s benefit and enforceable by the City at law and in equity and recorded with the Larimer County Clerk and Recorder (the “20-Year Covenant”). When recorded, the 20-Year Covenant shall not be subordinate to any lien or other financial encumbrance other than liens for real property taxes. Notwithstanding the foregoing, the Developer may use methods other than the 20-Year Covenant to secure for twenty (20) years the affordability of the Required Affordable Units if the method is first approved in writing by the City. c. The Required Affordable Units may be provided through any of the following three (3) mechanisms or by any other mechanism mutually agreed upon in writing by the Developer and the City, or any combination of the same: (i) Developer has developed any portion of the Required Affordable Units within Waters’ Edge East under one or more approved final development plan. (ii) Execution of a contract for the sale of land of any portion of Waters’ Edge East by the Developer to a non-profit or for-profit builder with a legally enforceable contract obligation to the City in a form reasonably acceptable to the City to develop such land as part or all of the Required Affordable Units, and the subsequent development of that land under one or more future approved final development plans for Waters’ Edge East by such builder as part or all of the Required Affordable Units. At the time any such sale is closed and relevant documentation provided to the City by the Developer for each such sale, the City shall determine the number and type of Required Affordable Units which reasonably could be expected to develop on such acreage pursuant to the future approved final development plan and all other applicable City ordinances, regulations, standards and policies and, upon such determination, those units shall count toward the Required Affordable Units. (iii) A reservation of any portion of Waters’ Edge East to be developed under one or more future approved final development plans by the Developer for the benefit of and legally enforceable by the City at law and in equity for the eventual sale to an entity for development of all or a portion of the Required Affordable Units. At the time such reservation is made by the Developer and the reservation is in a form reasonably acceptable to the City that is for the City’s benefit and enforceable by the City at law and in equity and recorded with the Larimer County Clerk and Recorder, the City shall determine the number and type of Required Affordable Units which could reasonably be expected to develop on such acreage pursuant to the future approved final development plan and all other applicable City ordinances, regulations, standards and policies. Upon such determination, those units shall count toward the Required Affordable Units. As to any Required Affordable Units provided pursuant to subparts (ii) and (iii) above, in the deed conveying the land for development of such Required Affordable Units from Developer to the initial purchaser thereof from the Developer (the “Initial Purchaser”), the Developer must include 5 the following: (A) a specific reference in the body of the deed, reflecting that the property conveyed thereby is conveyed subject to the 20-Year Covenant, (B) attach a copy of the 20-Year Covenant as an exhibit to such deed, (C) a requirement that the Initial Purchaser include, in the body of the deed conveying each such Required Affordable Unit to a residential purchaser from such Initial Purchaser, a statement that, in accordance with the 20-Year Covenant, if such residential purchaser or any subsequent owner of such Required Affordable Unit sells or leases such Required Affordable Unit while the Required Affordable Unit is subject to the 20-Year Covenant, such subsequent owner or lessee must comply with the affordability requirements of the 20-Year Covenant as set forth in Section I.B.1.a. above (the “Affordability Notice”) and (D) a provision that, while the Required Affordable Units to be developed on such land are subject to the 20-Year Covenant, the Initial Purchaser thereof is responsible for causing to be prepared annually a report to the City, regarding the compliance of such Required Affordable Units with the 20-Year Covenant as set forth in Section I.B.1.a. above (the “Compliance Report”). As to any of the Required Affordable Units provided pursuant to subpart (i) above, the Developer shall include in any deed by which it conveys a Required Affordable Unit to the Initial Purchaser of the Unit: (1) a specific reference in the body of the deed, reflecting that the property conveyed thereby is conveyed subject to the 20-Year Covenant, (2) attach a copy of the 20-Year Covenant as an exhibit to such deed, and (3) the Affordability Notice. In addition, for the Required Affordable Units provided pursuant to subpart (i) above, the Developer shall cause the Compliance Reports for these Units to be prepared and delivered to the City on an annual basis. Each annual Compliance Report for the Required Affordable Units provided under subparts (i), (ii) and (iii) above must be delivered to the City within ninety (90) days after the end of each calendar year and must report whether any Required Affordable Units which were for-rent at any time during the past calendar year and whether any Required Affordable Units which were sold during such preceding calendar year, that such rentals and/or sales, as applicable, were to a household satisfying the requirements of Section I.B.1.a. above. d. At least sixty-six percent (66%) of the Required Affordable Units shall be secured through one of the mechanisms described in Sections I.B.1.c.(i) through (iii) above (or through any other mechanism agreed upon in writing between the City and the Developer) before the City is required to issue any building permit that will authorize the construction of more than fifty percent (50%) of the Total Dwelling Units within Waters’ Edge East, and the remaining thirty-four percent (34%) of the Required Affordable Units shall be so secured prior to the City being required to issue a building permit that will authorize the construction of any of the last one hundred (100) of the Total Dwelling Units within Waters’ Edge East. 2. Significant Reduction in Potable Water Usage. a. Non-Potable Water System. The Parties acknowledge that the Developer has agreed to install a non-potable water system to provide irrigation water to all the natural areas and private lots in the Second Filing as provided under the Second Filing FDP and the Second Filing Development Agreement. It is the intention that such non-potable water system shall be owned and operated by Waters’ Edge Metropolitan District No. 1 or one of the other Districts. The Developer shall apply to the District for acceptance of such non-potable water system in accordance with the relevant agreement(s) in place between the Developer and the 6 District concerning acquisition of public improvements and infrastructure. Developer’s legal obligation to provide this non-potable water system is a prerequisite to Developer’s receipt from the City of any building permit for residential construction under the approved Second Filing FDP. The Parties acknowledge and agree that a final irrigation construction plan for this non-potable water system shall be provided to the City for its review and approval prior to the issuance of any building permit for the Second Filing FDP. Subject to the successful inclusion of Waters’ Edge East into the Districts, Developer agrees to install a non-potable water system to provide irrigation water to all the natural areas and private lots within Waters’ Edge East. The City’s approval of a future final development plan and development agreement for Waters’ Edge East, as required under the City Land Use Code (“LUC”) that legally obligates the Developer to provide such non- potable water system and the City’s approval of a final irrigation construction plan for that system shall be prerequisites to Developer’s receipt from the City of any residential building permit for construction under that future approved final development plan for Waters’ Edge East. b. Strategic Landscaping. The Developer desires to promote water conservation in the community and has agreed to design and install landscaping in a minimum of 50% of the natural areas, open space, and parks that fall within a “low” or “very low” landscape hydrozone calculation within the Second Filing as provided in the Second Filing FDP (the “Strategic Landscaping”). The Parties acknowledge that the Second Filing FDP includes the Strategic Landscaping and the Second Filing Development Agreement obligates the Developer to provide the Strategic Landscaping. The Parties also acknowledge that the Developer’s legal obligation to provide the Strategic Landscaping as set out in the Second Filing FDP is a prerequisite to Developer’s receipt from the City of any building permit for residential construction under the approved Second Filing FDP. 3. Enhanced and Expanded Open Space, Parks and Trails. a. Trails & Pedestrian Friendliness. The Developer desires to create a community that is pedestrian-friendly, walkable, and inter-connected and has committed under the Second Filing FDP and the Second Filing Development Agreement to include the following features in the approved Second Filing to promote walkability and pedestrian friendliness: (i) construction of an eight foot wide tree lawn and five foot wide sidewalk on both sides of Morningstar Way; (ii) a twelve foot wide soft trail along the Natural Habitat Buffer Zone; and (iii) four to six foot wide sidewalk and soft trail connections through blocks and open space areas (the “Pedestrian Benefits”). The Parties acknowledge that the Second Filing FDP includes the Pedestrian Benefits and the Second Filing Development Agreement obligates the Developer to provide the Pedestrian Benefits. Developer’s legal obligation to provide the Pedestrian Benefits is a prerequisite to Developer’s receipt from the City of any building permit for residential construction under the approved Second Filing FDP. b. Public Spaces. Subject to the successful inclusion of Waters’ Edge East into the Districts and to the extent that such benefits are not completed within the Second Filing, Developer agrees to include the following amenities for public use in a future final development plan for Waters’ Edge East: a senior activity center that promotes social inclusion and connections with amenities such as a shared workshop and art studio, innovative open spaces 7 with amenities such as sports courts, a community garden, and a sustainability center with charging stations for electric mowers and educational materials on renewable energy sources (the “Public Spaces”). The City’s approval of a future final development plan and development agreement for Waters’ Edge East, as required under the LUC, that legally obligates the Developer to provide the Public Spaces shall be a prerequisite to Developer’s receipt from the City of any residential building permit for construction under that future approved final development plan for Waters’ Edge East. 4. Rehabilitation of the Windsor #8 Ditch. As part of the Developer’s development of Waters’ Edge East, the Developer agrees to rehabilitate the Windsor #8 Ditch, including creation of wetlands to improve water quality, creation of wildlife habitat, trails that link to the regional trail system provided by other parties, improved storm water retention and transformation of the ditch area into a usable community natural area (the “Ditch Rehabilitation”). The City’s approval of a future final development plan and development agreement for Waters’ Edge East, as required under the LUC, that legally obligates the Developer to provide the Ditch Rehabilitation shall be a prerequisite to Developer’s receipt from the City of any building permit for residential construction under that future approved final development plan for Waters’ Edge East. C. City Acknowledgement. The City specifically acknowledges that this Agreement secures the delivery of the Public Benefits as described and secured in paragraphs I.B.1 through I.B.4. above, satisfyand satisfies the requirement ofand precondition set forth in Section IV.B. of the Service Plan for securing the Public Benefits as generally described in Exhibit K of the Service Plan. II. MISCELLANEOUS A. City Findings. The City hereby finds and determines that the approval of this Agreement is in the best interests of the City and the public’s health, safety and general welfare. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. C. Covenants/Binding Effect. This Agreement shall run with the Property, including any subsequent replatting of all, or a portion of the Property. This Agreement shall also be binding upon and inure to the benefit of the Parties and their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. D. Default. 8 1. Notice; Cure. If either Party defaults under this Agreement, the non- defaulting Party shall deliver written notice to the defaulting Party of such default in accordance with Section II.M, and the defaulting Party shall have thirty (30) days from and after receipt of such notice to cure such default. If such default is not of a type which can be cured within such thirty (30) day period and the defaulting Party gives written notice to the non-defaulting Party within such thirty (30) day period that it is actively and diligently pursuing such cure, the defaulting Party shall have a reasonable period of time given the nature of the default following the end of such thirty (30) day period to cure such default, provided that such defaulting Party is at all times within such additional time period actively and diligently pursuing such cure and provided further that in no event shall such cure period exceed a total of six (6) months. Notwithstanding the cure period set forth in this Section II.D.1, Developer, its successors and assigns, shall have the right to include a claim for breach of this Agreement in any action brought under C.R.C.P. Rule 106 if Developer, its successors and assigns, believes that the failure to include such claim may jeopardize its ability to exercise its remedies with respect to this Agreement at a later date. Any claim for breach of this Agreement brought before the expiration of the applicable cure period set forth in this Section II.D. shall not be prosecuted by Developer, its successors and assigns, until the expiration of such cure period except as set forth in this Agreement, and shall be dismissed by Developer, its successors and assigns, if the default is cured in accordance with this Section II.D. 2. Remedies. If any default under this Agreement is not cured as described above, the non-defaulting Party shall have the right to enforce the defaulting Party’s obligation hereunder by an action at law or in equity, including, without limitation, injunction and/or specific performance, and shall be entitled to an award of any damages available at law or in equity. E. Governing Law. This Agreement shall be construed under and governed by the laws of the State of Colorado. F. Integration; Amendment. This Agreement represents the entire agreement between the Parties with respect to the subject matter hereof and there are no oral or collateral agreements or understandings. The Parties agree that this Agreement may be amended only by an instrument in writing signed by the City and the Developer, and successors and permitted assigns of the Developer to whom the Developer has granted in writing the right to consent to any such amendments. Notwithstanding the foregoing, this Agreement shall be in addition to and supplemented by the development agreements that will be entered into by the Developer with the City for the Property as required in Section 3.3.2.(B) of the City’s Land Use Code. G. Jurisdiction and Venue. The City and the Developer, its successors and assigns, stipulate and agree that in the event of any dispute arising out of this Agreement, the courts of the State of Colorado shall have exclusive jurisdiction over such dispute and venue shall only be proper in Larimer County, Colorado. The Parties hereby submit themselves to jurisdiction of the State District Court, 8th Judicial District, County of Larimer, State of Colorado. H. City Approvals. Where this Agreement requires the City’s future approval or consent, such approval or consent may be given by the City Manager of the City within his or her 9 sole discretion. Where this Agreement requires the City Council’s approval or consent, such approval or consent shall be within the Council’s sole discretion. I. Multiple-Fiscal Year Obligations. To the extent that any of the obligations of the City contained in this Agreement are or should be considered multiple-fiscal year obligations, such obligations shall be subject to annual appropriation by the Fort Collins City Council, in its sole discretion. J. No Joint Venture or Partnership. No form of joint venture or partnership exists between the Developer and the City, and nothing contained in this Agreement shall be construed as making the Developer and the City joint venturers or partners. L. No Third-Party Beneficiaries. Except as otherwise provided in this Agreement, enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the City and the Developer, and its successors and assigns, and nothing contained in this Agreement shall give or allow any such claim or right of action by any third party. M. Notices. Any notice or communication required under this Agreement between the City and the Developer, and its successors and assigns, must be in writing and may be given either personally, by registered or certified mail, return receipt requested, by Federal Express or other reliable courier service that guarantees next day delivery or by facsimile transmission (followed by an identical hard copy via registered or certified mail). If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by any other method, a notice shall be deemed to have been given and received on the first to occur of: (a) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent; or (b) as applicable: (i) three (3) days after a registered or certified letter, return receipt requested, containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail; (ii) the following business day after being sent via Federal Express or other reliable courier service that guarantees next day delivery; or (iii) the following business day after being sent by facsimile transmission (provided that such facsimile transmission is promptly followed by an identical hard copy sent via registered or certified mail, return receipt requested). Any Party hereto may at any time, by giving written notice to the other party hereto as provided in this Section II.M, designate additional persons to whom notices or communications shall be given and designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below: If to City: City of Fort Collins ATTN: City Manager 300 LaPorte Avenue Fort Collins, CO 80521 With a copy to: City of Fort Collins ATTN: City Attorney 300 LaPorte Avenue 10 Fort Collins, CO 80521 If to Developer: Waters’ Edge Developments, Inc. ATTN: Dan Nickless 5935 South Zang Street, Suite 230 Denver, CO 80127 With copies to: WHITE BEAR ANKELE TANAKA & WALDRON Attorneys at Law ATTN: Robert Rogers, Esq. 2154 East Commons Avenue, Suite 2000 Centennial, Colorado 80122 N. Paragraph Captions. The captions of the paragraphs are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit or describe the scope or intent of this Agreement. O. Recordation. The Developer agrees to the City recording this Agreement with the Larimer County Clerk and Recorder, and the Developer shall pay the cost of the same. P. Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force. Q. Survival. The covenants, representations and warranties and agreements to be performed or complied with under this Agreement by the Parties shall be continuing obligations of the Parties until fully complied with or performed, respectively. R. Waiver. No waiver of one or more of the terms of this Agreement shall constitute a waiver of other terms. No waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. [Remainder of page left intentionally blank. Signature Pages follow.] 11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first written above. CITY: CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: _______________________________ Darin A. Atteberry, City Manager Date: _____________, 2020 ATTEST: ____________________________ Delynn Coldiron, City Clerk APPROVED AS TO FORM: _____________________________ John R. Duval, Deputy City Attorney STATE OF COLORADO ) ) ss COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this ______ day of _________, 2020, by __________________________ as City Manager of the City of Fort Collins. Witness my hand and official seal. My Commission expires: Notary Public 12 DEVELOPER: WATERS’ EDGE DEVELOPMENTS INC., a Colorado corporation By: _____________________________ STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing Agreement was acknowledged before me this ___ day of ___________, 2020, by _________________ of Waters’ Edge Developments Inc. WITNESS my hand and official seal. _____________________________ Notary Public My commission expires: ______________ 13 EXHIBIT A (Legal Description of ‘Waters’ Edge East) 14 EXHIBIT B (Legal Description of Annexation Area) Public Benefits Agreement – Waters’ Edge • There were two concerns raised at the City Council hearing on 7/21 • Household size to be used for Adjusted Median Income affordability determination • How to better secure the Public Benefits for the Required Affordable Units • Developer’s counsel and City staff had multiple meetings and exchanged numerous drafts to address these concerns • The revised draft submitted for City Council approval addresses both of these concerns ATTACHMENT 2 Adjusted Median Income Household Size Commitment Studio Unit – household size of 1 person (per CHFA guideline standard) One Bedroom Unit – household size of 1.5 persons - this is CHFA guideline standard; the AMI levels for 1 person and 2 person households will be averaged for these units Units with Two or More Bedrooms – household size of 2 persons Securing of Required Affordable Units Public Benefits Will be secured by the following methods: (i) Following recording of the plat for Waters’ Edge East, the 20 Year Covenant will be recorded in the real property records for Larimer County (ii) Inclusion of express reference to requirements in first deed conveying each Required Affordable Unit (iii) Annual affordable covenant compliance reporting 20 Year Covenant will provide • Requirement that each Required Affordable Unit continue to satisfy the affordability standard for at least twenty (20) years from the date of issuance of the first certificate of occupancy for each such unit. • 20 Year Covenant is enforceable by the City as well as the Developer. • 20 Year Covenant will require the initial conveyance deed for each Required Affordable Unit (or the property on which it will be built) to include the following: • Express reference to the 20 year covenant in the body of the deed • Attach the 20 year covenant as an exhibit to the deed • If a conveyance to a residential home purchaser, include notice of the rental limitations under the affordability standard • If a conveyance to a builder that will be building Required Affordable Units for sale, require that the builder include in each deed to a residential home purchaser notice of the sale and rental limitations under the affordability standard • If a conveyance to a builder, require the builder to submit to the City annual compliance reports during the term of the 20 Year Covenant First Deed from Developer • If to a residential home purchaser, deed will include: • Express reference to the 20 year covenant in the body of the deed • Attach the 20 year covenant as an exhibit to the deed • Notice of the sale and rental limitations under the affordability standard • If to a builder that will be building for-sale units, deed will include: • Express reference to the 20 year covenant in the body of the deed • Attach the 20 year covenant as an exhibit to the deed • Requirement that the builder include in each deed to a residential home purchaser notice of the sale and rental limitations under the affordability standard • Require the builder to submit to the City annual compliance reports during the term of the 20 Year Covenant • If to a builder that will be building rental units, deed will include: • Express reference to the 20 year covenant in the body of the deed • Attach the 20 year covenant as an exhibit to the deed • Require the builder to submit to the City annual compliance reports during the term of the 20 Year Covenant Annual Compliance Reporting • As to any Required Affordable Units built by a Builder • Builder will be required to submit (or cause to be submitted) annually to the City a compliance report setting out compliance with the affordability standard • Applies to both rental and for sale units • As to any Required Affordable Units built by Developer • Developer will submit (or cause to be submitted) annually to the City a compliance report setting out compliance with the affordability standard • Would apply to both rental and for sale units Waterfield Montava Northfield Waters’ Edge Definition of Affordability* 80% of AMI, Family of 4 ($75,250) 30%-80% of AMI, Family of 4 Average, min. 60% of AMI, Family of 4 ($56,460) For Sale: 80% of AMI, Family of 4 ($75,250) For Rent: Average, max. 60% of AMI, Family of 4 ($56,460) For Sale: • Studio: 80% of AMI, Family of 1 ($52,700) • One Bedroom: 80% of AMI Family of 1.5 ($56,450) • Two+ Bedroom: 80% of AMI, Family of 2 ($60,200) For Rent: • Studio: 60% of AMI, Family of 1 ($39,540) • One Bedroom: 60% of AMI, Family of 1.5 ($42,360) • Two+ Bedroom: 60% of AMI, Family of 2 ($45,180) Securing 20- Year Affordability Collaborative effort Or Deed restriction for 20 years on sales Affordability applies to sales and leases Recorded covenant, form approved by City, benefiting City First priority lien on property Substantively the same as Montava Substantively the same as Montava and Northfield PLUS enhanced enforcement responsibilities to be taken on by developer/builder as accommodation of City request after 7/21 City Council Hearing Enforcement of 20-Year Affordability Deed restriction only City has power to enforce Covenant Substantively the same as Montava Montava/Northfield enforcement, PLUS: Initial sale deed must reference Covenant and include Covenant as exhibit Notice to homeowners requiring compliance for leases * AMI figures referenced in this chart are for 2020 Annual compliance reports must be submitted to City EVOLUTION OF AFFORDABLE HOUSING PROVISIONS Water’s Edge Metro District – Public Benefits Agreement August 18, 2020 Paul Sizemore and Rachel Rogers ATTACHMENT 3 Project Description 2 • 55+ Age Targeted Ø Senior friendly design (age in place) Ø Senior amenities Ø Enhanced open space • 235 acres; 847 units Community Wide Benefits ü Affordable Housing ü Water Efficiency ü Public Spaces ü Ditch Restoration 3 Council Requested Modifications 4 1. Clarifying the required criteria for affordability to be scalable based on household size 2. Including additional provisions to further secure the affordable housing Council Requested Modifications 5 First Draft of Agreement Second Draft of Agreement Affordability Criteria 80% AMI for household size of 4 80% AMI for household size: studios = 1 person, one-bedroom = 1.5 people (averaged), more than one bedroom = 2 people Securing Affordable Units Recorded Agreement and Covenant Provisions in the deed cross referencing Covenant for added visibility; Covenant required as an exhibit to all deeds; notice of affordability requirements in deed; Developer or Developer’s assignee annually reports compliance with affordability requirements to the City HUD Affordable Housing Income Limits 6 Household Members Income 1 2 3 4 5 6 7 8 100% AMI $65,900 $75,300 $84,700 $94,100 $101,700 $109,200 $116,700 $124,300 80% of AMI* $52,700 $60,200 $67,750 $75,250 $81,300 $87,300 $93,350 $99,350 60% of AMI $39,540 $45,180 $50,820 $56,460 $61,020 $65,520 $70,020 $74,580 50% of AMI* $32,950 $37,650 $42,350 $47,050 $50,850 $54,600 $58,350 $62,150 30% of AMI* $19,800 $22,600 $25,450 $28,250 $30,550 $32,800 $35,050 $37,300 Income Limits (effective date: July 1, 2020) 2020 Median Income: $94,100 (Fort Collins/Loveland Metropolitan Statistical Area) City of Fort Collins AMI = Area Median Income • 51-80%: Low Income Limit (HOME High Income Limit) • 31-50%: Very Low Income Limit (HOME Low Income Limit) • 0-30%: Extremely Low Income Limit Staff Recommendation Ø Criteria for evaluation of Public Benefits Agreement is that it adequately secures the benefits established in the Service Plan Ø Staff recommends adoption of the resolution 7 RESOURCE SLIDES 8 9 Northeast Fort Collins Water’s Edge Phase 1 & 2 Montava Waterfield Mulberry Northfield Developer Commitments 10 Environmental Sustainability GHG Reduction Water/Energy Conservation Multimodal Transportation Enhance Resiliency Increase Renewable Capacity Critical Public Infrastructure Existing significant infrastructure challenges On-site Off-site Smart Growth Management Increase density Walkability/Pedestrian Infrastructure Availability of Transit Public Spaces Mixed-Use Strategic Priorities Affordable Housing Infill/Redevelopment Economic Health Outcomes Open Space, Parks and Trails 11 Trails & Pedestrian Friendliness Developer has committed to include the following features: Ø Construction of an eight-foot wide tree lawn and five-foot wide sidewalk on both sides of Morningstar Way Ø Twelve-foot wide soft trail along the Natural Habitat Buffer Zone Ø Four to six-foot wide sidewalk and soft trail connections through blocks and open space areas Public Spaces Developer agrees to include the following amenities for public use in a future final development plan for Waters’ Edge East: Ø Senior activity center Ø Sports courts Ø Community garden Ø Sustainability center Environmental Benefits 12 Non-Potable Water System Ø Annual pumping costs are estimated at $25,100, as compared to $176,700 for potable water costs, based on current ELCO rates. Ø Estimated long-term annual water usage is reduced by 55%, from 51.4 million gallons to 23.5 million gallons. Strategic Landscaping Ø Developer is committed to design and install landscaping in a minimum of 50% of the natural areas, open space, and parks that fall within a “low” or “very low” landscape hydrozone calculation within the Second Filing. Solar Power- Provided by Phase I but not included as a designated “public benefit” in the Service Plan Ø Phase I enhanced building standards for energy conservation outcomes. 65% of dwelling units in the Phase I will be solar- power-oriented. Public Infrastructure 13 Turnberry and Country Club Road Intersection- Provided by Phase I but not included as a designated “public benefit” in the Service Plan Ø Developer will design and install geometric intersection improvements and in-ground infrastructure at the intersection of Turnberry Road and Country Club Road. Timberline Road and Vine Drive Intersection- Provided by Phase I but not included as a designated “public benefit” in the Service Plan Ø Developer is committed to make a $250,000 payment to the City to offset the aggregated traffic impacts at the Timberline Road and Vine Drive Intersection. Rehabilitation of the Windsor #8 Ditch Ø Developer agrees to rehabilitate the Windsor #8 Ditch, including creation of wildlife habitat, trails that could link to the regional trail system provided by other parties, and improved storm water retention. -1- RESOLUTION 2020-069 OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS APPROVING AN AGREEMENT TO SECURE PUBLIC BENEFITS FOR WATERS’ EDGE DEVELOPMENT AS PROVIDED IN SERVICE PLAN FOR WATERS’ EDGE METROPOLITAN DISTRICT NOS. 1 THROUGH 5 WHEREAS, Waters’ Edge Development Inc., a Colorado corporation, (the “Developer”) is currently the owner of a proposed 235-acre development in northeast Fort Collins to include primarily residential units and a small amount of commercial development, with all to be to be developed in two phases (the “Development”); and WHEREAS, the first phase of the Development, to be known as Waters’ Edge West, has received final development plan approval from the City for 377 total dwelling, consisting of 197 single family dwelling units, 50 single family alley-loaded dwelling units, 82 single family attached dwelling units and 48 multi-family dwelling units; and WHEREAS, the second phase of the Development, to be known as Waters’ Edge East, has not yet received development review approval from the City but is anticipated to include 471 residential lots and some commercial development; and WHEREAS, pursuant to the provisions of Colorado’s Special District Act, the Developer previously submitted to the City an application for the Fort Collins City Council’s approval of a Consolidated Service Plan for Waters’ Edge Metropolitan District Nos. 1-5 (the “Service Plan”), which Service Plan the City Council approved on September 18, 2018 , in Resolution 2018-084; and WHEREAS, the Developer sought the organization of Waters’ Edge Metropolitan District Nos. 1-5 (the “Districts”) to enable the Development to proceed in a manner that will provide the public benefits described in Exhibit “K” of the Service Plan, which are: (1) affordable housing; (2) a non-potable water irrigation system; (3) enhanced and expanded open space, parks and trials; and (4) rehabilitation of the Windsor Ditch #8 (collectively, the “Public Benefits”); and WHEREAS, Section IV.B. of the Service Plan requires that Developer’s provision of the Public Benefits be secured by a development agreement between the City and the Developer that has been approved by resolution of the City Council before the Districts can, among other things, impose any property taxes or issue any debt; and WHEREAS, City staff and the Developer have negotiated the “Agreement to Secure Public Benefits for the Waters’ Edge Development” attached as Exhibit “A” and incorporated herein by reference (the “Public Benefits Agreement”), which sets forth the terms and conditions by which the Developer’s provision of the Public Benefits will be secured for the City; and WHEREAS, the City Council hereby finds that approval of the Public Benefits Agreement is in the City’s best interest and will serve the public’s health, safety and welfare. -2- NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS, COLORADO, as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That the City Council hereby approves the Public Benefits Agreement. Section 3. That the City Manager is authorized to enter into the Public Benefits Agreement on the City’s behalf in substantially the form attached as Exhibit “A,” subject to minor modifications as the City Manager, in consultation with the City Attorney, may determine to be necessary and appropriate to protect the interests of the City or to effectuate the purposes of this Resolution. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 18th day of August, A.D. 2020. _________________________________ Mayor ATTEST: _____________________________ City Clerk 1 AGREEMENT TO SECURE PUBLIC BENEFITS FOR WATERS’ EDGE DEVELOPMENT AS PROVIDED IN SERVICE PLAN FOR WATERS’ EDGE METROPOLITAN DISTRICT NOS. 1 THROUGH 5 THIS AGREEMENT TO SECURE PUBLIC BENEFITS FOR WATERS’ EDGE DEVELOPMENT AS PROVIDED IN SERVICE PLAN FOR WATERS’ EDGE METROPOLITAN DISTRICT NOS. 1 THROUGH 5 (this “Agreement”) is made and entered into this ______ day of ___________, 2020, by and between the CITY OF FORT COLLINS, COLORADO, a home rule municipality of the State of Colorado (“City”) and WATERS’ EDGE DEVELOPMENTS INC., a Colorado corporation (“Developer”). The City and the Developer shall be referred to herein individually as a “Party” and jointly as the “Parties.” WITNESSETH: WHEREAS, the land-use development agreement between the City of Fort Collins and Waters’ Edge Developments Inc., as amended, (“Second Filing Development Agreement”) and related plat were approved by the City on June 4, 2018 (the “Second Filing”); and WHEREAS, the Second Filing was approved for a total of 377 dwelling units including 197 single family dwelling units, 50 single family alley loaded dwelling units, and 82 single family attached dwelling units, together with a tract for future development of a minimum of 48 multi-family dwelling units; and WHEREAS, the Second Filing is legally described as follows: Waters’ Edge Second Filing, located in Section 30, Township 8 North, Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. WHEREAS, the Waters’ Edge Second Filing Final Development Plan (the “Second Filing FDP”) was approved by the City on June 4, 2018; and WHEREAS, the second phase of development within Waters’ Edge Metropolitan District Nos. 1-5 (each a “District” and collectively the “Districts”) is identified in the Consolidated Service Plan for the Districts (the “Service Plan”) as the Inclusion Area, and encompasses 126.3 acres and is legally described on Exhibit “A” attached hereto and incorporated by reference (referred to herein as “Waters’ Edge East,” and together with the Second Filing, the “Property” or “Development”); and WHEREAS, the Developer has not yet submitted final site plans or development approval applications to the City for Waters’ Edge East, but the Developer anticipates that such future site plan and development approval applications will include approximately 471 residential lots, as well as a commercial property; and 2 WHEREAS, the Developer desires to develop the Property into a uniquely sustainable healthy living community and this commitment includes full compliance with the required number of affordable homes as well as a significant number of homes in the balance of the community planned to be attainable homes designed to allow aging residents to age-in-place with single story living plans, limited or no entry steps and other architectural modifications addressing the needs of those requiring additional physical considerations, all in a neighborhood that is socially and physically connected to avoid isolation of its residents as they age; and WHEREAS, this vibrant community concept will also promote environmental conservation through reduced water usage and energy efficient homes, and will demonstrate the use of renewable energy not only in the homes but in the maintenance of the community’s significant open space, trail systems and parks; and WHEREAS, the Developer has evidenced its commitment to these goals through the completed buyout of the existing oil and gas production and reserves, the plugging and abandonment of wells in the neighborhood and the planned conversion of oil and gas well-sites into public space that includes programs and/or displays for the continuing education of the greater community on the importance of environmental conservation, including the commitment to build a sustainability center for the residents and other citizens of the City; and WHEREAS, the Developer’s goals for the Property align with and promote the City’s Triple Bottom Line priorities of economic health, environmental services, and social sustainability; and WHEREAS, pursuant to the provisions of Article 1 of Title 32 of the Colorado Revised Statutes (the “Special District Act”), the City Council of the City approved the Service Plan for the Districts by Resolution 2018-084; and WHEREAS, organization of the Districts is intended to enable development of the Property in a manner that will provide the public benefits generally described in Exhibit K of the Service Plan, and more particularly defined and described in Paragraph I.B. below (the “Public Benefits”); and WHEREAS, Section IV.B.2. of the Service Plan requires that the Public Benefits to be provided by a developer of a planned development shall be secured by a development agreement between the City and such developer and the City and the Developer desire to secure the Public Benefits in accordance therewith through this Agreement. NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements of the parties contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, it is agreed as follows: I. SECURING OF PUBLIC BENEFITS A. Overview. 3 1. Method of Securing Public Benefits. Although the intent is that one or more of the Districts will ultimately reimburse the Developer for those Public Benefits they have the legal ability to fund, the Developer shall have the obligation to develop, construct and/or install the Public Benefits in accordance with the terms and conditions of this Agreement. 2. Public Benefits Summary. Exhibit K to the Service Plan generally summarizes four (4) categories constituting the Public Benefits which are required to be secured under this Agreement: (1) Affordable Housing; (2) Significant Reduction in Potable Water Usage; (3) Enhanced and Expanded Open Space, Parks and Trails; and (4) Rehabilitation of the Windsor #8 Ditch. Each of these categories are defined and addressed in Sections I.B.1 through I.B.4. below. B. Public Benefits Secured 1. Affordable Housing. a. The Developer has not yet submitted final site plans or development approval applications to the City for Waters’ Edge East, but the Developer anticipates that such future site plan and development approval applications will include approximately 471 residential lots. The “Total Dwelling Units” shall mean the total number of dwelling units authorized under one or more approved development plans for Waters’ Edge East. For the purposes of determining compliance with this Section I.B.1.a., at least 10% of the Total Dwelling Units approved within Waters’ Edge East (with any fraction rounded up to the next whole number) must each be a dwelling unit affordable for households earning eighty percent (80%) or less of the area median income for the Fort Collins/Loveland Metropolitan Statistical Area published annually by the U.S. Department of Housing and Urban Development (“AMI”) for the applicable Household Size (as hereinafter defined) , which units may be offered for-sale or for-rent (“Required Affordable Units”). However, the Required Affordable Units offered for-rent must on average be affordable to households earning no more than sixty percent (60%) of the AMI for the applicable Household Size. This sixty percent (60%) average shall be calculated using the averaging methodology adopted by the Colorado Housing and Finance Authority in response to the United States Congress’ Fiscal Year 2018 Omnibus Spending Bill signed into law by President Trump on March 23, 2018. As used herein, “Household Size” means, (i) for Required Affordable Units that are studios, a family of 1 person, (ii) for Required Affordable Units that have a single bedroom, a family of 1.5 persons (meaning that the household income level for such Required Affordable Units will be equal to the average of the AMI for a family of 1 and a family of 2) and (iii) for Required Affordable Units that have more than 1 bedroom, a family of 2 persons. If the approved number of Total Dwelling Units is more than 471 residential lots, the number of the Required Affordable Units shall be increased accordingly by the 10% requirement. However, if less than 471 Total Dwelling Units are approved, the number of Required Affordable Units shall not be less than 48 dwelling units. b. Each of the Required Affordable Units must continue to satisfy its affordability standard as defined in Section I.B.1.a. above for at least twenty (20) years from the date of issuance of the first certificate of occupancy for each such unit. This means that it is the intent of the Parties that the initial and subsequent conveyances and leases of each of the Required 4 Affordable Units during the twenty (20)-year period must be to purchasers or lessees whose AMI qualifies them for that Required Affordable Unit as defined in Section I.B.1.a. above. This requirement shall be secured and deemed satisfied upon recording of a restrictive covenant or deed restriction for each of the Required Affordable Units in a form reasonably acceptable to the City, which shall include (without limitation) the information set forth in the last paragraph in Section I.B.1.c. below, that is for the City’s benefit and enforceable by the City at law and in equity and recorded with the Larimer County Clerk and Recorder (the “20-Year Covenant”). When recorded, the 20-Year Covenant shall not be subordinate to any lien or other financial encumbrance other than liens for real property taxes. Notwithstanding the foregoing, the Developer may use methods other than the 20-Year Covenant to secure for twenty (20) years the affordability of the Required Affordable Units if the method is first approved in writing by the City. c. The Required Affordable Units may be provided through any of the following three (3) mechanisms or by any other mechanism mutually agreed upon in writing by the Developer and the City, or any combination of the same: (i) Developer has developed any portion of the Required Affordable Units within Waters’ Edge East under one or more approved final development plan. (ii) Execution of a contract for the sale of land of any portion of Waters’ Edge East by the Developer to a non-profit or for-profit builder with a legally enforceable contract obligation to the City in a form reasonably acceptable to the City to develop such land as part or all of the Required Affordable Units, and the subsequent development of that land under one or more future approved final development plans for Waters’ Edge East by such builder as part or all of the Required Affordable Units. At the time any such sale is closed and relevant documentation provided to the City by the Developer for each such sale, the City shall determine the number and type of Required Affordable Units which reasonably could be expected to develop on such acreage pursuant to the future approved final development plan and all other applicable City ordinances, regulations, standards and policies and, upon such determination, those units shall count toward the Required Affordable Units. (iii) A reservation of any portion of Waters’ Edge East to be developed under one or more future approved final development plans by the Developer for the benefit of and legally enforceable by the City at law and in equity for the eventual sale to an entity for development of all or a portion of the Required Affordable Units. At the time such reservation is made by the Developer and the reservation is in a form reasonably acceptable to the City that is for the City’s benefit and enforceable by the City at law and in equity and recorded with the Larimer County Clerk and Recorder, the City shall determine the number and type of Required Affordable Units which could reasonably be expected to develop on such acreage pursuant to the future approved final development plan and all other applicable City ordinances, regulations, standards and policies. Upon such determination, those units shall count toward the Required Affordable Units. As to any Required Affordable Units provided pursuant to subparts (ii) and (iii) above, in the deed conveying the land for development of such Required Affordable Units from Developer to the initial purchaser thereof from the Developer (the “Initial Purchaser”), the Developer must include 5 the following: (A) a specific reference in the body of the deed, reflecting that the property conveyed thereby is conveyed subject to the 20-Year Covenant, (B) attach a copy of the 20-Year Covenant as an exhibit to such deed, (C) a requirement that the Initial Purchaser include, in the body of the deed conveying each such Required Affordable Unit to a residential purchaser from such Initial Purchaser, a statement that, in accordance with the 20-Year Covenant, if such residential purchaser or any subsequent owner of such Required Affordable Unit sells or leases such Required Affordable Unit while the Required Affordable Unit is subject to the 20-Year Covenant, such subsequent owner or lessee must comply with the affordability requirements of the 20-Year Covenant as set forth in Section I.B.1.a. above (the “Affordability Notice”) and (D) a provision that, while the Required Affordable Units to be developed on such land are subject to the 20-Year Covenant, the Initial Purchaser thereof is responsible for causing to be prepared annually a report to the City, regarding the compliance of such Required Affordable Units with the 20-Year Covenant as set forth in Section I.B.1.a. above (the “Compliance Report”). As to any of the Required Affordable Units provided pursuant to subpart (i) above, the Developer shall include in any deed by which it conveys a Required Affordable Unit to the Initial Purchaser of the Unit: (1) a specific reference in the body of the deed, reflecting that the property conveyed thereby is conveyed subject to the 20-Year Covenant, (2) attach a copy of the 20-Year Covenant as an exhibit to such deed, and (3) the Affordability Notice. In addition, for the Required Affordable Units provided pursuant to subpart (i) above, the Developer shall cause the Compliance Reports for these Units to be prepared and delivered to the City on an annual basis. Each annual Compliance Report for the Required Affordable Units provided under subparts (i), (ii) and (iii) above must be delivered to the City within ninety (90) days after the end of each calendar year and must report whether any Required Affordable Units which were for-rent at any time during the past calendar year and whether any Required Affordable Units which were sold during such preceding calendar year, that such rentals and/or sales, as applicable, were to a household satisfying the requirements of Section I.B.1.a. above. d. At least sixty-six percent (66%) of the Required Affordable Units shall be secured through one of the mechanisms described in Sections I.B.1.c.(i) through (iii) above (or through any other mechanism agreed upon in writing between the City and the Developer) before the City is required to issue any building permit that will authorize the construction of more than fifty percent (50%) of the Total Dwelling Units within Waters’ Edge East, and the remaining thirty-four percent (34%) of the Required Affordable Units shall be so secured prior to the City being required to issue a building permit that will authorize the construction of any of the last one hundred (100) of the Total Dwelling Units within Waters’ Edge East. 2. Significant Reduction in Potable Water Usage. a. Non-Potable Water System. The Parties acknowledge that the Developer has agreed to install a non-potable water system to provide irrigation water to all the natural areas and private lots in the Second Filing as provided under the Second Filing FDP and the Second Filing Development Agreement. It is the intention that such non-potable water system shall be owned and operated by Waters’ Edge Metropolitan District No. 1 or one of the other Districts. The Developer shall apply to the District for acceptance of such non-potable water system in accordance with the relevant agreement(s) in place between the Developer and the 6 District concerning acquisition of public improvements and infrastructure. Developer’s legal obligation to provide this non-potable water system is a prerequisite to Developer’s receipt from the City of any building permit for residential construction under the approved Second Filing FDP. The Parties acknowledge and agree that a final irrigation construction plan for this non-potable water system shall be provided to the City for its review and approval prior to the issuance of any building permit for the Second Filing FDP. Subject to the successful inclusion of Waters’ Edge East into the Districts, Developer agrees to install a non-potable water system to provide irrigation water to all the natural areas and private lots within Waters’ Edge East. The City’s approval of a future final development plan and development agreement for Waters’ Edge East, as required under the City Land Use Code (“LUC”) that legally obligates the Developer to provide such non- potable water system and the City’s approval of a final irrigation construction plan for that system shall be prerequisites to Developer’s receipt from the City of any residential building permit for construction under that future approved final development plan for Waters’ Edge East. b. Strategic Landscaping. The Developer desires to promote water conservation in the community and has agreed to design and install landscaping in a minimum of 50% of the natural areas, open space, and parks that fall within a “low” or “very low” landscape hydrozone calculation within the Second Filing as provided in the Second Filing FDP (the “Strategic Landscaping”). The Parties acknowledge that the Second Filing FDP includes the Strategic Landscaping and the Second Filing Development Agreement obligates the Developer to provide the Strategic Landscaping. The Parties also acknowledge that the Developer’s legal obligation to provide the Strategic Landscaping as set out in the Second Filing FDP is a prerequisite to Developer’s receipt from the City of any building permit for residential construction under the approved Second Filing FDP. 3. Enhanced and Expanded Open Space, Parks and Trails. a. Trails & Pedestrian Friendliness. The Developer desires to create a community that is pedestrian-friendly, walkable, and inter-connected and has committed under the Second Filing FDP and the Second Filing Development Agreement to include the following features in the approved Second Filing to promote walkability and pedestrian friendliness: (i) construction of an eight foot wide tree lawn and five foot wide sidewalk on both sides of Morningstar Way; (ii) a twelve foot wide soft trail along the Natural Habitat Buffer Zone; and (iii) four to six foot wide sidewalk and soft trail connections through blocks and open space areas (the “Pedestrian Benefits”). The Parties acknowledge that the Second Filing FDP includes the Pedestrian Benefits and the Second Filing Development Agreement obligates the Developer to provide the Pedestrian Benefits. Developer’s legal obligation to provide the Pedestrian Benefits is a prerequisite to Developer’s receipt from the City of any building permit for residential construction under the approved Second Filing FDP. b. Public Spaces. Subject to the successful inclusion of Waters’ Edge East into the Districts and to the extent that such benefits are not completed within the Second Filing, Developer agrees to include the following amenities for public use in a future final development plan for Waters’ Edge East: a senior activity center that promotes social inclusion and connections with amenities such as a shared workshop and art studio, innovative open spaces 7 with amenities such as sports courts, a community garden, and a sustainability center with charging stations for electric mowers and educational materials on renewable energy sources (the “Public Spaces”). The City’s approval of a future final development plan and development agreement for Waters’ Edge East, as required under the LUC, that legally obligates the Developer to provide the Public Spaces shall be a prerequisite to Developer’s receipt from the City of any residential building permit for construction under that future approved final development plan for Waters’ Edge East. 4. Rehabilitation of the Windsor #8 Ditch. As part of the Developer’s development of Waters’ Edge East, the Developer agrees to rehabilitate the Windsor #8 Ditch, including creation of wetlands to improve water quality, creation of wildlife habitat, trails that link to the regional trail system provided by other parties, improved storm water retention and transformation of the ditch area into a usable community natural area (the “Ditch Rehabilitation”). The City’s approval of a future final development plan and development agreement for Waters’ Edge East, as required under the LUC, that legally obligates the Developer to provide the Ditch Rehabilitation shall be a prerequisite to Developer’s receipt from the City of any building permit for residential construction under that future approved final development plan for Waters’ Edge East. C. City Acknowledgement. The City specifically acknowledges that this Agreement secures the delivery of the Public Benefits as described and secured in paragraphs I.B.1 through I.B.4. above, and satisfies the requirement and precondition set forth in Section IV.B. of the Service Plan for securing the Public Benefits as generally described in Exhibit K of the Service Plan. II. MISCELLANEOUS A. City Findings. The City hereby finds and determines that the approval of this Agreement is in the best interests of the City and the public’s health, safety and general welfare. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. C. Covenants/Binding Effect. This Agreement shall run with the Property, including any subsequent replatting of all, or a portion of the Property. This Agreement shall also be binding upon and inure to the benefit of the Parties and their respective personal representatives, heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to this Agreement touch and concern the Property regardless of whether such improvements are located on the Property. Assignment of interest within the meaning of this paragraph shall specifically include, but not be limited to, a conveyance or assignment of any portion of the Developer's legal or equitable interest in the Property, as well as any assignment of the Developer's rights to develop the Property under the terms and conditions of this Agreement. D. Default. 8 1. Notice; Cure. If either Party defaults under this Agreement, the non- defaulting Party shall deliver written notice to the defaulting Party of such default in accordance with Section II.M, and the defaulting Party shall have thirty (30) days from and after receipt of such notice to cure such default. If such default is not of a type which can be cured within such thirty (30) day period and the defaulting Party gives written notice to the non-defaulting Party within such thirty (30) day period that it is actively and diligently pursuing such cure, the defaulting Party shall have a reasonable period of time given the nature of the default following the end of such thirty (30) day period to cure such default, provided that such defaulting Party is at all times within such additional time period actively and diligently pursuing such cure and provided further that in no event shall such cure period exceed a total of six (6) months. Notwithstanding the cure period set forth in this Section II.D.1, Developer, its successors and assigns, shall have the right to include a claim for breach of this Agreement in any action brought under C.R.C.P. Rule 106 if Developer, its successors and assigns, believes that the failure to include such claim may jeopardize its ability to exercise its remedies with respect to this Agreement at a later date. Any claim for breach of this Agreement brought before the expiration of the applicable cure period set forth in this Section II.D. shall not be prosecuted by Developer, its successors and assigns, until the expiration of such cure period except as set forth in this Agreement, and shall be dismissed by Developer, its successors and assigns, if the default is cured in accordance with this Section II.D. 2. Remedies. If any default under this Agreement is not cured as described above, the non-defaulting Party shall have the right to enforce the defaulting Party’s obligation hereunder by an action at law or in equity, including, without limitation, injunction and/or specific performance, and shall be entitled to an award of any damages available at law or in equity. E. Governing Law. This Agreement shall be construed under and governed by the laws of the State of Colorado. F. Integration; Amendment. This Agreement represents the entire agreement between the Parties with respect to the subject matter hereof and there are no oral or collateral agreements or understandings. The Parties agree that this Agreement may be amended only by an instrument in writing signed by the City and the Developer, and successors and permitted assigns of the Developer to whom the Developer has granted in writing the right to consent to any such amendments. Notwithstanding the foregoing, this Agreement shall be in addition to and supplemented by the development agreements that will be entered into by the Developer with the City for the Property as required in Section 3.3.2.(B) of the City’s Land Use Code. G. Jurisdiction and Venue. The City and the Developer, its successors and assigns, stipulate and agree that in the event of any dispute arising out of this Agreement, the courts of the State of Colorado shall have exclusive jurisdiction over such dispute and venue shall only be proper in Larimer County, Colorado. The Parties hereby submit themselves to jurisdiction of the State District Court, 8th Judicial District, County of Larimer, State of Colorado. H. City Approvals. Where this Agreement requires the City’s future approval or consent, such approval or consent may be given by the City Manager of the City within his or her 9 sole discretion. Where this Agreement requires the City Council’s approval or consent, such approval or consent shall be within the Council’s sole discretion. I. Multiple-Fiscal Year Obligations. To the extent that any of the obligations of the City contained in this Agreement are or should be considered multiple-fiscal year obligations, such obligations shall be subject to annual appropriation by the Fort Collins City Council, in its sole discretion. J. No Joint Venture or Partnership. No form of joint venture or partnership exists between the Developer and the City, and nothing contained in this Agreement shall be construed as making the Developer and the City joint venturers or partners. L. No Third-Party Beneficiaries. Except as otherwise provided in this Agreement, enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the City and the Developer, and its successors and assigns, and nothing contained in this Agreement shall give or allow any such claim or right of action by any third party. M. Notices. Any notice or communication required under this Agreement between the City and the Developer, and its successors and assigns, must be in writing and may be given either personally, by registered or certified mail, return receipt requested, by Federal Express or other reliable courier service that guarantees next day delivery or by facsimile transmission (followed by an identical hard copy via registered or certified mail). If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by any other method, a notice shall be deemed to have been given and received on the first to occur of: (a) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent; or (b) as applicable: (i) three (3) days after a registered or certified letter, return receipt requested, containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail; (ii) the following business day after being sent via Federal Express or other reliable courier service that guarantees next day delivery; or (iii) the following business day after being sent by facsimile transmission (provided that such facsimile transmission is promptly followed by an identical hard copy sent via registered or certified mail, return receipt requested). Any Party hereto may at any time, by giving written notice to the other party hereto as provided in this Section II.M, designate additional persons to whom notices or communications shall be given and designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below: If to City: City of Fort Collins ATTN: City Manager 300 LaPorte Avenue Fort Collins, CO 80521 With a copy to: City of Fort Collins ATTN: City Attorney 300 LaPorte Avenue 10 Fort Collins, CO 80521 If to Developer: Waters’ Edge Developments, Inc. ATTN: Dan Nickless 5935 South Zang Street, Suite 230 Denver, CO 80127 With copies to: WHITE BEAR ANKELE TANAKA & WALDRON Attorneys at Law ATTN: Robert Rogers, Esq. 2154 East Commons Avenue, Suite 2000 Centennial, Colorado 80122 N. Paragraph Captions. The captions of the paragraphs are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit or describe the scope or intent of this Agreement. O. Recordation. The Developer agrees to the City recording this Agreement with the Larimer County Clerk and Recorder, and the Developer shall pay the cost of the same. P. Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force. Q. Survival. The covenants, representations and warranties and agreements to be performed or complied with under this Agreement by the Parties shall be continuing obligations of the Parties until fully complied with or performed, respectively. R. Waiver. No waiver of one or more of the terms of this Agreement shall constitute a waiver of other terms. No waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. [Remainder of page left intentionally blank. Signature Pages follow.] 11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first written above. CITY: CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: _______________________________ Darin A. Atteberry, City Manager Date: _____________, 2020 ATTEST: ____________________________ Delynn Coldiron, City Clerk APPROVED AS TO FORM: _____________________________ John R. Duval, Deputy City Attorney STATE OF COLORADO ) ) ss COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this ______ day of _________, 2020, by __________________________ as City Manager of the City of Fort Collins. Witness my hand and official seal. My Commission expires: Notary Public 12 DEVELOPER: WATERS’ EDGE DEVELOPMENTS INC., a Colorado corporation By: _____________________________ STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing Agreement was acknowledged before me this ___ day of ___________, 2020, by _________________ of Waters’ Edge Developments Inc. WITNESS my hand and official seal. _____________________________ Notary Public My commission expires: ______________ 13 EXHIBIT A (Legal Description of ‘Waters’ Edge East) A parcel of land, located in Section Twenty-nine (29), Township 8 North (T.8N.), Range Sixty- Eight West (R.68W.) of the Sixth Principal Meridian (6th P.M.), City of Fort Collins, County of Larimer, State of Colorado and being more particularly described as follows: All that portion of Section 29 including Lind Property, Second Filing, Final Plat Recorded January 18, 2007 as Reception No. 20070004594, according to County of Larimer Records, excepting therefrom the following parcels: (1.) That portion of Section 29 lying east of the centerline of the W.P. Elder Reservoir Outlet Canal. (2.) Water's Edge Metropolitan Districts 1, 3, 4 and 5. (3.) All of that tract of land known as Lind Property, Final Plat Recorded December 2, 2003 as Reception No. 258077, according to County of Larimer records.