HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 01/14/2020 - FIRST READING OF ORDINANCE NO. 015, 2020, ADOPTINGAgenda Item 2
Item # 2 Page 1
AGENDA ITEM SUMMARY January 14, 2020
City Council
STAFF
Tom Leeson, Director, Comm Dev & Neighborhood Svrs
Brad Yatabe, Legal
SUBJECT
First Reading of Ordinance No. 015, 2020, Adopting a Development Agreement Extending the Term of Vested
Rights for the Montava PUD Overlay and Regarding Certain Terms of Development Within the Montava PUD
Overlay.
EXECUTIVE SUMMARY
The purpose of this item is for Council to consider the development agreement regarding the Montava Planned
Unit Development (PUD) Overlay to extend the term of vested rights from three years to twenty-five years and
to adopt certain terms regarding development within the Montava PUD Overlay. The Council process for
considering this item is as follows:
• City staff presentation
• Applicant presentation (suggested time: 10 minutes)
• Public comment
• Council deliberation
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
A. Vested Rights
Land Use Code (LUC) Divisions 2.15 and 4.29 provide for the establishment of a Planned Unit Development
(PUD) Overlay that is superimposed upon existing zoning and allows additional uses and modified densities
and development standards not otherwise available in the underlying zoning. LUC Section 2.2.11(C) states
that in connection with an approved PUD Overlay and its associated PUD Master Plan, additional uses,
modified densities and development standards, Engineering Standards granted variances pursuant to LUC
Section 4.29(L), and development standards that have not been modified are eligible for a vested property
right. Vested property rights are governed by state law and the LUC. A vested property right is the right to
“undertake and complete the development and use of property under the terms and conditions of a site-
specific development plan.” (§ 24-68-102, C.R.S.) A PUD Overlay is considered to be a site specific
development plan for purposes of acquiring vested property rights and during the period for which a vested
property right is valid, the holder of the right is able to develop with the assurance that the uses, densities, and
standards that have been accorded vested property rights cannot be changed by the City except in limited
circumstances.
Agenda Item 2
Item # 2 Page 2
B. Extended Vested Rights Period
Vested property rights associated with a PUD Overlay are not valid for more than three years unless the City
and developer enter into a development agreement extending the vesting. In order for the City to enter into
such a development agreement, the Director of Community Development and Neighborhood Services
(“Director”) must first determine, “that it will likely take more than three (3) years to complete all phases of the
development and the associated engineering improvements for the development, and only if warranted in light
of all relevant circumstances, including, but not limited to, the overall size of the development and economic
cycles and market conditions.” (LUC Section 2.2.11(C)(2)) If the Director determines that extended vesting is
justified, then Council may approve a development agreement regarding extended vested rights by means of
an ordinance.
The Montava developer, HF2M, Inc., (Developer) has requested extended vesting for a period of twenty-five
(25) years for numerous additional uses, modified densities and development standards, Engineering
Standards granted variances pursuant to LUC Section 4.29(L), and development standards that have not been
modified. The letter requesting extended vesting is attached and contains the Developer’s justification why
Council should grant extended vesting including: (1) the size and complexity of the project that encompasses
999 acres, approximately 4200 dwelling units, and 450,000 to 750,000 square feet of nonresidential uses; (2)
multiple phases; (3) economic fluctuation; (4) significant up-front investment for the land, entitlements to
develop, and over $325 million dollars in public improvements; and (5) the significant public benefits of the
proposed development. The Director has determined that extended vesting is justified as stated in the written
determination dated November 15, 2019, attached to the Ordinance. The Development Agreement sets forth
the additional uses, modified densities and development standards, Engineering Standards granted variances
pursuant to LUC Section 4.29(L), and development standards that have not been modified for which the
Developer is seeking extended vested rights for twenty-five years and additional terms to clarify the City’s and
Developer’s respective obligations regarding such extended vested rights.
C. Clarify Certain Terms Regarding Development Within the Montava PUD Overlay
While the Development Agreement principally addresses extended vesting, it also addresses certain issues
related to development within the Montava PUD Overlay including:
Amendment: Specifies that the Developer and its authorized successors and assigns have the ability pursuant
to the LUC to initiate amendments to the PUD Master Plan without the consent of other owners of property
within the PUD Overlay.
Fees: Specifies that each project within the PUD Overlay shall pay all applicable fees as determined in
accordance with City policies as they exist at the time of development.
School district: Poudre School District (PSD) currently owns property within the PUD Overlay. To facilitate
development within the PUD Overlay, PSD has an agreement to sell its current property and acquire another
property within the PUD Overlay. The closing of the described property transfers is required prior to any
development within the PUD Overlay commencing.
Participation in the defense of legal challenges: Specifies that the City will participate in the defense of legal
challenges to not only the Development Agreement, but also to legal challenges of the PUD Master Plan and
Overlay and any related City resolutions or ordinances.
CITY FINANCIAL IMPACTS
There are no direct financial impacts on the City resulting from the Development Agreement.
BOARD / COMMISSION RECOMMENDATION
No board or commission recommendation regarding the Development Agreement was made or required.
Agenda Item 2
Item # 2 Page 3
PUBLIC OUTREACH
No public outreach regarding the Development Agreement was conducted. Public outreach regarding the
Montava PUD Overlay was conducted.
ATTACHMENTS
1. Vested Rights Request Letter, November 7, 2019 (PDF)
2. Powerpoint presentation (PDF)
LILEY LAW OFFICES, LLC
LUCIA A. LILEY, ESQ. JOSHUA C. LILEY, ESQ.
JANELLE KECHTER, CLA
419 CANYON AVENUE, SUITE 220, FORT COLLINS, COLORADO 80521
TELEPHONE (970)449- 8720 FAX (970)682- 1440
November 7, 2019
Mayor Wade Troxell
and City Council Members
City Hall West
300 LaPorte Avenue
Fort Collins, CO 80521
c/o Tom Leeson
CDNS Director
281 N. College Avenue
Fort Collins, CO 80521
Re: Request for Vested Property Rights
Montava PUD Master Plan
Dear Mayor and Council Members:
This firm represents HF2M, Inc., the developer of the proposed Montava project
(“Developer”). The Developer has submitted to the City an application for approval of the
Montava Planned Unit Development Master Plan for the Property (“Montava PUD Master Plan”)
pursuant to Land Use Code Division 4.29. The Montava PUD Master Plan encompasses 999
acres of contiguous, undeveloped, vacant land in northeast Fort Collins (the “Property”)
including parcels currently owned by the Anheuser-Busch Foundation and the Poudre R-1
School District and various road and railroad rights-of-way. A depiction of the Property is
attached to hereto as Attachment A. Current zoning of the Property is a combination of (I)
Industrial, (E) Employment, and (L-M-N) Low Density Mixed-Use Neighborhood.
Based on all relevant circumstances, detailed below, including the size and phasing of the
Montava PUD Master Plan and expected fluctuation of market conditions and economic cycles
during the expected twenty-five (25) to thirty (30) year build out of the Montava PUD Master
Plan, the Developer requests:
1. A determination by Tom Leeson, Director of the Community Development and
Neighborhood Services Department, that: (i) it will likely take more than three
(3) years to complete all phases of the Montava PUD Master Plan and the
associated engineering improvements; and (ii) vested property rights in excess of
three (3) years for the Montava PUD Master Plan are warranted in light of all
relevant circumstances.
ATTACHMENT 1
Mayor and City Council
November 7, 2019
Page 2
2. City Council action by ordinance (i) approving a PUD overlay for the Montava
PUD Master Plan; (ii) approving the Montava PUD Master Plan, including the
uses, densities, development standards and engineering variances described on
Attachment B; and (iii) adopting the PUD Master Plan Development Agreement
for the Montava Planned Unit Development Master Plan (“Development
Agreement”); the Montava PUD Master Plan and the Development Agreement as
site specific development plans establishing vested property rights for a term of
twenty-five (25) years, in accordance with the Colorado Vested Property Rights
Statute (C.R.S. §24-68-102), Ordinance No. 091, 2018 of the Council of the City
of Fort Collins (“PUD Overlay Ordinance”) and the provisions of the
Development Agreement concerning vested property rights.
Circumstances Which Warrant
Extended Vested Property Rights
A. Size and Complexity of Project
The Montava PUD Master Plan, at 999 acres, is by far the largest comprehensively
planned development area in the City. Not only is the Montava PUD Master Plan large, it is also
complex. The Developer’s overall vision is for development of the Property, over time, as a
New Urbanist community of true traditional neighborhoods with an integrated mix of uses
including housing, employment, schools, parks, natural areas and agriculture. It is estimated that
there will be approximately 4,200 dwelling units and approximately 450,000 to 750,000 square
feet of nonresidential uses including commercial, industrial and employment uses in the Montava
PUD Master Plan.
B. Multiple Phases
The Development Phasing Plan submitted with the Montava PUD Master Plan depicts the
Developer’s estimate of the scope and order of the phases of development. Please see a copy of
the Development Phasing Plan in Attachment C. The residential product absorption is targeted
at approximately 150 units per year. Each development phase within the Montava PUD Master
Plan will require Preliminary Development Plan and Final Plan review and approval of the
design of appropriate infrastructure suitable for each phase.
C. Economic Fluctuation
Economic downturns will occur during the long build-out period which, in turn, will
reduce the number of years in which active development will occur during the vesting period.
Mayor and City Council
November 7, 2019
Page 3
D. Significant Up Front Investment
1. Land Purchase: There will be a significant cost for the purchase of the 800+ acre
Anheuser-Busch Foundation property.
2. Land Entitlement: Land entitlement costs which are expected to reach
approximately $2 million just through the Montava PUD Master Plan stage.
Further entitlement costs will be incurred with entitlement of each phase.
3. Public Improvements:
(a) Overall, the public improvements associated with the Montava PUD Master
Plan include, but are not limited to: arterial and collector roadways (2.9 miles);
trail networks (5.8 miles); multi-modal facilities (pedestrian, bicycle and transit);
storm drainage systems (realignment of No. 8 Ditch; creation of 2.24 miles of
storm water channel / conveyance paths and 113 acres of regional detention
ponds); non-potable water system; water, sanitary sewer, electric and broadband;
and parks and recreation.
(b) Although the public improvements will be installed as required by each
development phase of the Montava PUD Master Plan, given the lack of
infrastructure in this area, it is expected that a significant amount of public
improvements will need to be installed in the early phases of development.
(c) The cost, scope, and definition of such public improvements may vary over
time. The total estimated cost of public improvements, as set forth on
Attachment D, is approximately Three Hundred Twenty-Five Million One
Hundred Ninety-Four Thousand Five Hundred Forty Three Dollars
($325,194,543) in 2018 dollars. This total estimated cost does not include costs
for some local public improvements.
E. Public Benefits
There are significant public benefits resulting from this project. See Attachment E taken
from the Montava Metropolitan Districts Service Plan.
Given the size of the Montava PUD Master Plan, the scope of the associated public
improvements and the anticipated fluctuation in market conditions and economic cycles, the
Developer and its consultants estimate build out of all phases to take twenty-five (25) to thirty
(30) years. Without legal assurance that the Montava PUD Master Plan will not be subject to
unilateral changes by the City, the very significant investment in this project is neither
reasonable nor feasible.
Mayor and City Council
November 7, 2019
Page 4
Thank you for your consideration of this request.
Sincerely,
LILEY LAW OFFICES, LLC
/ s / Lucia A. Liley
By: __________________________________
Lucia A. Liley
LAL/jpk
Attachments
Pc: Jeff Mihelich, Deputy City Manager
Carrie Daggett, City Attorney
Brad Yatabe, Assistant City Attorney
Rebecca Everette, Development Review Manager
Cameron Gloss, Comprehensive Planning Manager
Clay Frickey, City Planner
Max Moss, HF2M, Inc.
Attachment B
To Request for Vested Property Rights
Montava PUD Master Plan
Description of Uses, Densities, Development
Standards and Engineering Variances
to be Granted Vested Property Rights
Category Document
Modified Uses Montava PUD Uses, Densities and Development Standards
– Chapter 2
Permitted Land Use Code
Uses
Land Use Code Division 4.5 – Low Density Mixed-Use
Neighborhood District, Division 4.27 – Employment
District and Division 4.28 – Industrial District
Modified Densities Montava PUD Uses, Densities and Development Standards
- Chapter 3
Permitted Land Use Code
Densities
Land Use Code Division 4.5 – Low Density Mixed-Use
Neighborhood District, Division 4.27 – Employment
District and Division 4.28 – Industrial District
Modified Development
Standards
Montava PUD Uses, Densities and Development Standards
– Chapters 4 through 13
Permitted Land Use Code
Development Standards
Montava PUD Master Plan Summary - Appendix A
Variances from Engineering
Design Standards and
Proposed Alternate Designs
Montava PUD Master Plan Summary - Appendix B
Attachment C
To Request for Vested Property Rights
Montava PUD Master Plan
Development Phasing Plan
Attachment D
To Request for Vested Property Rights
Montava PUD Master Plan
CONCEPTUAL OPINION OF COST
PROJECT: JOB NO. DATE: BY:
Montava Metropolitan Districts 1230.0001.00 6/27/2018 JAZ
No. Item Quantity Units Unit Cost Total
ADMINISTRATIVE & MISCELLANEOUS $11,000,000
EARTHWORK $21,499,312
STREETS (ONSITE & OFFSITE) $105,255,350
SANITARY SEWER (ONSITE & OFFSITE) $15,732,500
WATER (ONSITE & OFFSITE) $11,081,500
NONPOTABLE WATER (ONSITE & OFFSITE) $13,814,500
STORM SEWER (ONSITE & OFFSITE) $10,286,290
RECREATION FACILITIES $8,000,000
LANDSCAPING, TRAILS, OPEN SPACE, AND FARM FACILITIES $44,215,395
Additional Costs
Construction Costs $240,884,847
Contingency (20% of Costs) $48,176,969
Engineering / Survey / C. M. (15% of Costs) $36,132,727
Total Infrastructure Cost
$325,194,543
This is a conceptual opinion of cost and supplied only as a guide. TST is not responsible for fluctuation in costs of material,
labor or unforeseen contingencies.
Attachment E
To Request for Vested Property Rights
Montava PUD Master Plan
(Page 1 of 3)
Public Benefits
1. Large-Scale Comprehensive Master Planning:
The approximately 914-acre Service Area will be comprehensively master-planned, with an
emphasis on multi-modal transportation, through the new Planned Unit Development Overlay
Regulations as the Montava PUD Master Plan (the “Montava development”). The Montava
development design will include coordinated, interconnecting trail, street, sidewalk, transit and
storm drainage systems which will both (i) correct existing infrastructure deficiencies within the
boundaries of the Mountain Vista Subarea Plan; and (ii) provide opportunities to connect
infrastructure in such area to existing City infrastructure. The Districts will have authority to
build and, in some cases, to maintain these public systems and can also be used to facilitate the
construction of “off-site” public infrastructure required by the City’s Land Use Code or
Municipal Code for individual projects within the Montava development.
2. New Urbanism:
New Urbanism is an urban design movement which promotes environmentally friendly habits by
creating walkable neighborhoods containing a wide range of housing and job types. The
Montava development has been designed by the industry leaders, DPZ, and New Urbanism
resonates throughout the Montava development.
The Montava development will implement New Urbanism by one or more of the following:
a. Creating a mixed-use town center integrated with surrounding neighborhood fabric;
b. Developing the Montava development as a series of neighborhoods with centers, based
on a 5-minute walk shed;
c. Integrating a wide variety of housing types and intensities within each neighborhood;
d. Creating walkable streets and trails that connect meaningful destinations;
e. Distributing traffic through a network of connected streets;
f. Integrating market rate and affordable housing.
3. Agri-Urban Development:
This is a concept promoted in the Mountain Vista Subarea Plan. There will be an approximately
40-acre organic farm in the Montava development. The land will either be donated or sold at a
substantially discounted amount to the Poudre Valley Cooperative which entity will in turn enter
into a long-term lease with the farmers. A wide variety of high-quality, organic, locally-grown
produce from the farm will be available to the entire Fort Collins community. While there may
be other uses on the farm in the long term, the primary business model is organic produce.
Attachment E
To Request for Vested Property Rights
Montava PUD Master Plan
(Page 2 of 3)
4. Zero Energy Ready Homes:
Residential development in the Montava development will be built to the Department of
Energy’s Zero Energy Ready Home “ZERH” standard.
5. Non-potable Water System:
There is only one quarter section of land within the Montava development that does not have
adequate coffin wells to provide all needed irrigation water for that quarter section. In all other
areas, the Developer commits to the development of a non-potable water system which will
incorporate the historical usage of these wells for the irrigation needs of the Montava
development.
6. Affordable/Workforce Housing:
At least ten percent (10%) of the total housing units approved in the Montava development will
be affordable or workforce housing, whether owner-occupied or leased, ranging from sixty
percent (60%) to one hundred twenty percent (120%) of the Fort Collins’ AMI for a family of
four (“Required Affordable Units”). The Required Affordable Units will be provided through
any of the following mechanisms or any other mechanism mutually agreed upon by the
Developer and the City:
A. The Developer has executed an option contract with the City for the purchase of five
(5) acres within the Montava development, at a mutually acceptable location, for development by
the City as part of its Affordable Housing Land Bank Program at a time it chooses.
B. A continuation of the collaborative effort among developers within the boundaries of
the Mountain Vista Subarea Plan, the City, a community land trust and entities such as Housing
Catalyst and Habitat for Humanity on a strategy for long-term affordability of the Required
Affordable Units. If a program is developed from this strategic collaborative effort which
includes fair and reasonable contributions from all stakeholders, up to five percent (5%) (with
the number depending on what the program can manage) of the annual developed single family
lots would be contributed to the program at Developer’s cost, but not to exceed the Required
Affordable Units.
C. Sale of land within the Montava development by the Developer to a non-profit or for-
profit builder and the development of that land as part or all of the Required Affordable Units.
D. Legally enforceable reservation of acreage within the Montava development for the
eventual sale to an entity for development of the Required Affordable Units (i.e. similar to the
Land Bank option agreement described in paragraph A above).
Attachment E
To Request for Vested Property Rights
Montava PUD Master Plan
(Page 3 of 3)
E. If another method for long-term affordability does not result from the collaborative
effort described in paragraph B above, deed restrictions for a twenty (20) year period will be
placed on all the Required Affordable Units which are single family units.
F. Sixty-five percent (65%) of the Required Affordable Units shall be secured through
one of the mechanisms described in paragraphs A through D above (or through any other
mutually agreed-upon mechanism) prior to receipt of a building permit for more than fifty
percent (50%) of the total housing units approved in the Montava development, and the
remaining thirty-five percent (35%) of the Required Affordable Units shall be so secured prior to
receipt of a building permit for the last one hundred (100) of the total housing units approved in
the Montava development.
1
Montava Extended Vesting
Tom Leeson, CDNS Director
ATTACHMENT 2
Purpose
First Reading of Ordinance Adopting a Development Agreement
Extending the Term of Vested Rights for the Montava PUD Overlay and
Regarding Certain Terms of Development Within the Montava PUD
Overlay
2
Vested Rights
3
LUC Section 2.2.11(C) PUD Overlay and PUD Master Plan
• Additional uses, modified densities and development standards,
Engineering Standards variances are eligible for a vested property
right.
• A vested property right is the right to “undertake and complete the
development and use of property under the terms and conditions of a
site specific development plan.”
Extended Vested Rights
4
• PUD Overlay vested rights are valid for three years unless the City
and developer enter into a development agreement extending the
vesting.
• Required Director determination that extended vesting is justified
• Council may approve a development agreement regarding extended
vested rights by means of an ordinance
Extended Vested Rights
5
• Montava developer has requested extended vesting for a period of
twenty-five (25) years
• Vested Rights for:
• Numerous additional uses
• Modified densities and development standards
• Engineering Standards granted variances pursuant to LUC
Section 4.29(L)
• Development standards that have not been modified
Development Agreement Provisions
6
Development Agreement includes provisions regarding:
• Vested Rights
• Developer can initiate amendments without the consent of other
owners of property within the PUD Overlay
• Each project within the PUD Overlay shall pay all applicable fees
• PSD property transfer must be complete prior to development
-1-
ORDINANCE NO. 015, 2020
OF THE COUNCIL OF THE CITY OF FORT COLLINS
ADOPTING A DEVELOPMENT AGREEMENT EXTENDING THE TERM OF
VESTED RIGHTS FOR THE MONTAVA PUD OVERLAY AND REGARDING
CERTAIN TERMS OF DEVELOPMENT WITHIN THE MONTAVA PUD OVERLAY
WHEREAS, on February 18, 2020, City Council approved on second reading Ordinance
No. 014, 2020, to approve the Montava PUD Overlay and associated PUD Master Plan; and
WHEREAS, pursuant to Land Use Code Section 2.2.11(C), the PUD Master Plan is
eligible to apply for vested property rights in excess of three years solely with respect to uses,
densities, and development standards of the Land Use Code, including those for which
modifications have been granted, and engineering standards for which variances have been
granted; and
WHEREAS, such vested property rights are normally valid for up to three years under
Land Use Code Section 2.2.11(C)(2) unless an extended period of vested rights is granted as
memorialized in a development agreement City Council adopts by ordinance; and
WHEREAS, the Montava PUD developer, HF2M, Inc., (“Developer”) has requested as
part of the PUD Master Plan the extended vesting of certain uses, densities, development
standards of the Land Use Code, including those for which modifications have been granted, and
Engineering Design Standards for which variances have been granted, all for a period of twenty-
five years (25); and
WHEREAS, pursuant to Land Use Code Section 2.2.11(C)(3), in order for City Council
to enter into a development agreement that extends vesting for a period of greater than three (3)
years, the Director of Community Development and Neighborhood Services must determine that
it will likely take more than three years to complete all phases of the development and the
associated engineering improvements for the development, and only if warranted in light of all
relevant circumstances, including, but not limited to, the overall size of the development and
economic cycles and market conditions; and
WHEREAS, the Director of Community Development and Neighborhood Services has
determined that it will likely take more than three (3) years to complete all phases within the
Montava PUD Overlay and the associated engineering improvements and that the granting of
extended vesting is warranted in light of all relevant circumstances and such determination is
attached as Exhibit “A” and incorporated herein; and
WHEREAS, a development agreement (“Development Agreement”) setting forth the
uses, densities, development standards of the Land Use Code, including those for which
modifications have been granted, and engineering standards for which variances have been
granted and the terms for the extended vesting for twenty-five years upon the effective date of
this Ordinance is attached as Exhibit “B” and incorporated herein; and
-2-
WHEREAS, the Development Agreement contains additional terms regarding the rights
and obligations of the parties to the agreement appropriate for identification at the master plan
level with respect to the development of the property subject to the PUD Overlay and Master
Plan; and
WHEREAS, City Council finds that the extended vesting for a period of twenty-five (25)
years, including tolling of the vested rights period during any moratorium and the obligation to
participate in the defense of legal challenges, is warranted because of the large size of the
property subject to the PUD Overlay and Master Plan, the significant investments in public
infrastructure improvements that will be required of the Developer, the mixed-use nature of the
PUD Master Plan, the anticipated twenty-five (25) year build-out period of the PUD Master Plan
in multiple phases and expected changes in economic cycles and market conditions over such
build-out period; and
WHEREAS, City Council finds that the additional terms in the Development Agreement
with respect to development of the property subject to the PUD Overlay and Master Plan are
appropriate for identification at the master plan level; and
WHEREAS, City Council finds that approval of the Development Agreement is
consistent with the Land Use Code and the Montava PUD Master Plan and PUD Overlay and is
in the best interests of the citizens of Fort Collins.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That the Development Agreement is hereby approved by the City Council.
Section 3. That the Mayor is authorized to execute the Development Agreement on
behalf of the City.
Section 4. That a copy of this Ordinance with all attachments shall be recorded in the
Office of the Larimer County Clerk and Recorder promptly after the effective date of this
Ordinance with all recording fees paid by the Developer.
Introduced, considered favorably on first reading, and ordered published this 14th day of
January, A.D. 2020, and to be presented for final passage on the 18th day of February, A.D.
2020.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
-3-
Passed and adopted on final reading on the 18th day of February, A.D. 2020.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Community Development & Neighborhood Services
281 North College Avenue
P.O. Box 580
Fort Collins, CO 80522.0580
970.416.2740
970.224.6134- fax
fcgov.com
Planning, Development & Transportation Services
MEMORANDUM
DATE: November 15, 2019
TO: Mayor Troxell and City Councilmembers
FROM: Tom Leeson, Community Development & Neighborhood Services Director
RE: Extended Vesting Justification
Introduction:
The purpose of this memo is to provide City Council with a written determination that a vesting
period of longer than three years is justified for the proposed Montava Planned Unit
Development (PUD).
Background:
A PUD Master Plan is eligible for a vested property right with respect to uses, densities,
development standards, and Engineering Standards for which variances have been granted for
a period of three (3) years. The vested property right shall not exceed three (3) years unless:
• (a) an extension is granted pursuant to the PUD provisions of the Land Use Code, or;
• (b) the City and the developer enter into a development agreement which vests the
property right for a period exceeding three (3) years.
Such agreement may be entered into by the City if the Director of Community Development &
Neighborhood Services determines that it will likely take more than three (3) years to complete
all phases of the development and the associated engineering improvements for the
development, and only if warranted in light of all relevant circumstances, including, but not
limited to, the overall size of the development and economic cycles and market conditions.
The Montava PUD is one of the largest single proposed development in Fort Collins history.
The project is proposed to develop in multiple phases over the course of more than 20 years,
and upon full buildout, will include about 4,000-5,000 residential dwelling units, 400,000 square
feet of office and commercial uses, 100 acres of industrial uses, and a farm. Montava’s
proposed mix of uses, variety of housing, system of open space, pedestrian orientation,
EXHIBIT "A"
Council Memo Update – Larimer County TDU Program Status Page | 2
incorporation of urban agriculture, energy efficient design, unique design standards, and
infrastructure improvements will take many years to be realized.
Given the scale of the project, I have determined that it will likely take more than three (3)
years to complete all phases of the development and the associated engineering
improvements, that extended vesting beyond three years is warranted in light of the large size
of the development and potential market cycles and market conditions, and that the request for
a 25 years vesting period is reasonable.
PURSUANT TO TITLE 24, ARTICLE 68, C.R.S.
AND FORT COLLINS LAND USE CODE 2.2.11(C),
THIS AGREEMENT IS A SITE SPECIFIC DEVELOPMENT PLAN, THE
APPROVAL OF WHICH CREATES A
VESTED PROPERTY RIGHT, VALID FROM THE EFFECTIVE DATE OF THE
ADOPTING ORDINANCE
PUD MASTER PLAN DEVELOPMENT AGREEMENT FOR
THE MONTAVA PLANNED UNIT DEVELOPMENT OVERLAY
AND MASTER PLAN
DATED __________________, 20____
EXHIBIT B
TABLE OF CONTENTS
RECITALS ……………………………………………………………………………...3
SECTION I. DEVELOPMENT DOCUMENTS ……………………………………..6
SECTION II. VESTED PROPERTY RIGHT...………………………………………7
SECTION III. FEES …………………………………………………………………..11
SECTION IV. SCHOOL DISTRICT ……………...…………………………………11
SECTION V. MISCELLANEOUS …………………………………………………..12
EXHIBITS
Exhibit A – Definitions
Exhibit B – PUD Master Plan
Exhibit C – PUD Master Plan Summary
Exhibit D – Depiction of PUD Property, Anheuser-Busch Property and
School District Property
Exhibit E – Depiction of Development Property and School Site
Exhibit F – Description of Anheuser-Busch Property
Exhibit G – Description of Development Property
Exhibit H – Description of School Site
Exhibit I – Description of PUD Property
Exhibit J – Description of School District Property
Exhibit K – Director Vested Property Rights Determination
EXHIBIT B
PURSUANT TO TITLE 24, ARTICLE 68, C.R.S.
AND FORT COLLINS LAND USE CODE 2.2.11(C),
THIS AGREEMENT IS A SITE SPECIFIC DEVELOPMENT PLAN, THE
APPROVAL OF WHICH CREATES A VESTED PROPERTY RIGHT
UNDER TITLE 24, ARTICLE 68, C.R.S., VALID FROM
THE EFFECTIVE DATE OF THE ADOPTING ORDINANCE
PUD MASTER PLAN DEVELOPMENT AGREEMENT FOR
THE MONTAVA PLANNED UNIT DEVELOPMENT OVERLAY
AND MASTER PLAN
THIS PUD MASTER PLAN DEVELOPMENT AGREEMENT FOR THE
MONTAVA PLANNED UNIT DEVELOPMENT OVERLAY AND MASTER PLAN
(the “Agreement”) is made and entered into this ______ day of ___________,
20___, by and between the CITY OF FORT COLLINS, COLORADO, a municipal
corporation of the State of Colorado (“City”); HF2M, INC., a Texas corporation
(“Developer”); ANHEUSER-BUSCH FOUNDATION, a Missouri charitable trust
(“Anheuser-Busch”); and POUDRE R-1 SCHOOL DISTRICT, a political
subdivision of the State of Colorado (“School District”); Anheuser-Busch and the
School District being collectively referred to herein as “Owners.”
For and in consideration of the mutual promises and covenants herein
contained and other good and valuable consideration, the receipt and adequacy
of which are hereby confessed and acknowledged, the parties agree as follows:
RECITALS
This Agreement is made with respect to the following facts:
A. Capitalized terms have the meanings set forth in Exhibit A attached
hereto and incorporated herein by reference.
B. The Developer has entered into an agreement with Anheuser-Busch
to acquire ownership of the Anheuser-Busch Property (the “AB Agreement”).
C. The Developer and the School District have executed the PSD
Agreement which provides for the sale of the School District Property to the
Developer, in exchange for the sale of the School Site to the School District.
EXHIBIT B
D. The Developer desires to develop the PUD Property and has caused
to be submitted to the City all plans, reports and other documents required for the
approval of the PUD Overlay and the PUD Master Plan in accordance with the
City’s development application submittal master list for a PUD Overlay on the PUD
Property, copies of which are on file in the office of the City Development Review
Center and made a part hereof by reference.
E. The legislature of the State adopted the Vested Property Rights
Statute to provide for the establishment of vested property rights in order to ensure
reasonable certainty, stability and fairness in the land use planning process and in
order to stimulate economic growth, secure the reasonable investment-backed
expectations of landowners and foster cooperation between the public and private
sectors in the area of land use planning. The Vested Property Rights Statute
authorizes the City to enter into development agreements with landowners
providing for a period of vesting of property rights exceeding three (3) years.
F. Pursuant to the PUD Overlay Regulations, the PUD Master Plan is
eligible for a vested property right with respect to the Vested Master Plan
Components.
G. The PUD Overlay Regulations allow for a term of a vested property
right to exceed a three (3) year period if the City and the Developer enter into a
development agreement which vests the property right for a period exceeding
three (3) years, and further provides that such an agreement may be entered into
by the City if the Director determines that (i) it will likely take more than three (3)
years to complete all phases of the Project and the associated engineering
improvements pursuant to the PUD Master Plan; and (ii) if warranted in light of all
relevant circumstances including, but not limited to, the overall size of the PUD
Property, and economic cycles and market conditions (the “Vested Property Rights
Determination”).
H. A vested property rights request was submitted by the Developer to
the City requesting vested property rights for a twenty-five (25)-year period in
connection with the PUD Master Plan for the Vested Master Plan Components.
I. The granting of a vested property right in connection with the PUD
Master Plan for a period of twenty-five (25) years is warranted in view of the
following factors: (1) the large size of the PUD Property; (2) the significant
investment in public infrastructure improvements which will be required to be made
by the Developer; (3) the mixed-use nature of the PUD Master Plan; (4) the
EXHIBIT B
anticipated twenty-five (25)-year build-out of the PUD Master Plan in multiple
phases; and (5) expected changes in economic cycles and varying market
conditions over such build-out period.
J. On November 15, 2019, the Director made the Vested Property
Rights Determination, attached hereto as Exhibit K, that extended vesting in
excess of three (3) years is appropriate.
K. Development of the PUD Property as proposed will provide
substantial benefits for the City including large-scale comprehensive master-
planning, implementation of certain New Urbanism principles in the PUD Master
Plan, Zero Energy Ready homes, a Non-potable Water System, attainable and
affordable housing, energy and water conservation, natural areas, housing and
employment variety, and an opportunity for a working farm, all of which promote
the general welfare of the citizens of the City and others.
L. In addition to the benefits described above, development of the PUD
Property will require substantial Developer investments in public facilities,
including, but not limited to, multi-modal transportation improvements, roads,
utilities, storm water facilities, parks, trails, and open spaces, which will serve the
needs of the Project and the City. Completion of these facilities and provision of
the public benefits will require substantial investments by the Developer. The
Developer is willing to make such investments only if the vested property rights
as set forth in this Agreement are provided.
M. Development of the PUD Property in accordance with the
Development Documents will provide for orderly growth, ensure reasonable
certainty in the land use planning process and otherwise achieve the goals and
purposes for which the Vested Property Rights Statute and the PUD Overlay
Regulations were enacted. In exchange for these benefits and the other benefits
to the City contemplated by this Agreement, together with the public benefits
served by the orderly development of the PUD Property, the Developer desires to
receive the assurance that it may undertake and complete development of the
Project pursuant to the Development Documents within the Vesting Term.
N. The City Council has approved, prior to or concurrently with the
approval of this Agreement, the PUD Master Plan and a PUD Overlay of the PUD
Master Plan.
O. The Parties intend to identify in this Agreement the Vested Master
Plan Components all as specified in the approved PUD Master Plan, for which
EXHIBIT B
extended vesting is granted; and (2) the rights and obligations of the Developer
and its successors and assigns, the City and the Owners appropriate for
identification at the master planning level with respect to development of the PUD
Property.
P. The recitals are hereby incorporated into the body of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants
and agreements contained herein, such consideration being acknowledged as
sufficient and of significant value to the Parties, the Parties agree as follows:
I. DEVELOPMENT DOCUMENTS
A. Relationship to City Regulations. The Parties intend that this
Agreement, the PUD Master Plan, the City Regulations, and any State or federal
laws the City must comply with, collectively, shall govern development of the
PUD Property. Except as otherwise stated in this Agreement, if any provision or
requirement of the City Regulations that conflict with or otherwise materially
impair or abnegate any matters that are specifically addressed in this Agreement,
the applicable terms and conditions of this Agreement shall control and govern.
In the case of any express or implied conflict between this Agreement and the
PUD Master Plan, the provisions of this Agreement shall control.
B. Compliance with PUD Master Plan. All future development of the
Development Property shall require an approved Project Development Plan and
Final Plan in accordance with the requirements of the Land Use Code and such
development shall be in compliance with the PUD Master Plan and any
applicable State or federal laws the City must comply with. Prior to the
development of any portion of the Development Property, Developer
acknowledges that it will be required to submit the applicable plans for that phase
of development and enter into a development agreement with the City for, among
other obligations imposed therein, the construction and maintenance of public
improvements for such phase, including regional improvements as required by
applicable provisions of the PUD Master Plan or the City Regulations, or both.
C. Amendment or Termination.
1. Amendments to, or the termination of, the PUD Master Plan
shall be governed by the applicable provisions of the PUD Overlay
Regulations and this Section I.C.
EXHIBIT B
2. The Developer is acknowledged by the Parties to be
authorized to request amendments to the PUD Master Plan pursuant to
Section 4.29(I)(2) of the PUD Overlay Regulations, provided the conditions
set forth therein are met.
3. Subject to Section 4.29(I)(2)(a)2.b. of the PUD Overlay
Regulations regarding ownership or control of PUD Property, the
Developer and its successors and assigns to whom the Developer has
granted such right in writing, may initiate and process an amendment to
the PUD Master Plan without the consent of other owners of property
within the PUD Property, with the exception of an amendment which
includes any proposed changes to the School Site, if such site is owned by
the School District, shall require the consent of the School District.
4. The provisions of this Section I.C. shall be a binding covenant
upon the Developer, School District, and Anheuser-Busch, and their
respective successors, heirs, legal representatives and assigns, and shall
constitute covenants and/or servitudes which touch, attach to and run with
the title to the PUD Property or any portion thereof and, upon recordation
of this Agreement, shall be deemed to have met the requirements of
Section 4.29(I)(2)(a)2.c. of the PUD Overlay Regulations.
5. An amendment to the PUD Master Plan, to any approved
Final Plan or to a condition of approval of any such amendment shall not
constitute or require an amendment to this Agreement. Nothing in this
Agreement shall limit the ability of the City, in accordance with applicable
City Regulations, to approve or deny any such amendment, or to attach
conditions to an approval of any such amendment based on applicable
City Regulations, provided, however, that no amendment to the PUD
Master Plan, or to any condition of approval thereto, shall have the effect
of terminating or materially changing the vested property right afforded the
Vested Master Plan Components as set forth in Section II below.
II. VESTED PROPERTY RIGHT
A. Acknowledgements. The Developer and the City acknowledge the
following:
1. The Development Property, in its entirety, is estimated to have
a build-out period of twenty-five (25) years or more.
EXHIBIT B
2. The Project will require substantial financial commitments and
the design and installation of major public infrastructure improvements in
the early phases of and throughout the development of the Development
Property.
3. A material consideration of the Developer’s development of
the Development Property under the PUD Master Plan is the City’s
agreement that the Developer has the right to undertake and complete
development of the Development Property in accordance with the terms
and conditions of the Development Documents.
4. The Developer has requested a vested property right for a
period of twenty-five (25) years from the Effective Date solely with respect
to existing permitted uses, densities and Development Standards of the
Land Use Code and to the approved modifications of such uses, densities
and Development Standards of the Land Use Code, and to the
Engineering Design Standards for which variances have been granted
pursuant to Section 4.29(L) of the PUD Overlay Regulations, all of which
are listed on Appendix C to the PUD Master Plan Summary which is
attached hereto as Exhibit C and incorporated herein by reference (the
“Vested Master Plan Components”).
5. For the sole purpose of acquiring a vested property right for
the Vested Master Plan Components, the City finds that the PUD Master
Plan and this Agreement are each a Site Specific Development Plan
eligible for a vested right pursuant to the PUD Overlay Regulations and the
Vested Property Rights Statute.
B. Vested Property Right Granted. To the extent consistent with the
provisions of this Agreement, the parties intend that the Development Property
be granted a vested property right to the fullest extent available under the Vested
Property Rights Statute and the PUD Overlay Regulations. The rights identified
below shall constitute the vested property right under this Agreement:
1. The right to develop the land uses that are included within the
Vested Master Plan Components.
2. The right to develop such land uses in accordance with the
Vested Master Plan Components, to the extent set forth in and pursuant to
the Development Documents.
EXHIBIT B
3. The right to develop the Development Property in accordance
with the Vested Master Plan Components in the order, at the rate and at
the time as market conditions dictate, subject to the terms and conditions
of the Development Documents.
4. In consideration of the acknowledgements described above in
Section II.A., the public benefit to be derived from the development of the
Development Property and the obligations and commitments of the
Developer pursuant to this Agreement and to the extent permitted by law
and not inconsistent with the Vested Property Rights Statute, the City shall
be precluded from taking any zoning or land use action by the City, or
pursuant to an initiative (including but not limited to any zoning law of
general applicability adopted by the City or pursuant to an initiative as well
as any zoning or development regulations that have previously been
adopted by the City and applicable to the Development Property), that
would alter, impair, prevent, diminish, impose a moratorium on
development, or otherwise delay the development or use of the
Development Property as set forth in this Agreement, except as otherwise
provided in Section 24-68-104 of the Vested Property Rights Statute.
Accordingly, and notwithstanding any provision of the Land Use Code to
the contrary, the Development Documents shall not lapse, expire or be
subject to any form of “staleness” review during the Vesting Term. To the
extent that any moratorium or other delay in development or use of the
Development Property that is permitted under the Vested Property Rights
Statute is imposed on development of the PUD Property, the Vesting Term
shall be extended one day for each day that such moratorium is in effect.
C. Term of Vested Property Right.
1. The term of the vested property right granted in the above-
referenced Section II.B. shall commence on the Effective Date and shall
continue for a period of twenty-five (25) years from the Effective Date
(“Vesting Term”).
2. The Vesting Term is granted pursuant to the PUD Overlay
Regulations and Section 24-68-104 of the Vested Property Rights Statute
which authorizes local governments to enter into development agreements
granting vested property rights for a period exceeding three (3) years
where warranted in light of all relevant circumstances.
EXHIBIT B
3. Individual Site Specific Development Plans within the PUD
Overlay shall be afforded vested property rights in accordance with the
Vested Property Rights Statute and the Land Use Code, including the PUD
Overlay Regulations, at the time such plans are approved by the City.
Vested rights for such approved Site Specific Development Plans shall be
for a period of up to three (3) years unless otherwise extended pursuant to
the Land Use Code and the PUD Overlay Regulations.
4. The expiration of the vested property right granted herein shall
not affect (1) the PUD Master Plan; (2) any common-law vested rights
obtained prior to such termination; or (3) any right arising from City permits
or approved Final Plans within the Development Property or other
entitlements for the Development Property which were granted or
approved concurrently with or subsequent to the approval of the
Development Documents.
D. Subsequent Review and Approvals. Nothing in this Section II shall
exempt the PUD Master Plan or Project Development Plans or Final Plans within
the Development Property from subsequent reviews and approvals by the City to
ensure compliance with the terms and conditions of the approved PUD Master
Plan, such Project Development Plans or Final Plans and this Agreement,
provided that such subsequent reviews and approvals are not inconsistent with
the original approvals of the PUD Master Plan, such Project Development Plans
or Final Plans and this Agreement.
E. No Obligation to Develop. The Developer shall have no obligation to
develop all or any portion of the PUD Property and shall have no liability under
this Agreement to the City or to any other party for its failure to develop all or any
part of the PUD Property. The Developer and the City contemplate that the
Development Property will be developed in phases and that the Developer shall
have the right to determine the timing of the various phases of development
within the Development Property. The Developer shall have no obligation to
develop all or any portion of any phase, notwithstanding the development or non-
development of any other phase, and the Developer shall have no liability under
this Agreement to the City for its failure to develop all or any portion of any phase
of the Development Property. Notwithstanding the foregoing, if the Developer
commences development of all or any portion or phase of the Development
Property, the Developer shall be required to construct the public improvements
required to support such development in accordance with the terms and
conditions of any development agreement(s) which the Developer and the City
may execute in connection with any subsequently approved Final Plan. Nothing
EXHIBIT B
in this Agreement shall be construed as relieving the Developer of any obligation
or liability for completion of any public improvements required by any
development agreement(s) hereafter executed by the Developer.
F. Exceptions to Vested Property Right. The Developer acknowledges
that the Vested Property Rights Statute contains certain exceptions which are set
forth in C.R.S. 24-68-105 thereof and agrees that such exceptions shall apply to
the vested property right granted herein which is based on the Vested Property
Rights Statute.
III. FEES
Notwithstanding any language to the contrary in this Agreement,
Developer agrees that each Final Plan within the Development Property shall be
required to pay in full all applicable fees pursuant to applicable City Regulations
in connection with such project.
IV. SCHOOL DISTRICT
A. The School District Property, currently owned by the School District,
is depicted on Exhibit D attached hereto and incorporated herein by reference.
The Developer has entered into the PSD Agreement which provides for the
purchase of the School District Property from the School District by the
Developer for development as part of the Project. The School Site, currently
owned by Anheuser-Busch, is depicted on Exhibit E attached hereto and
incorporated herein by reference. The Developer desires to sell the School Site
to the School District for use as one or more public schools.
B. Developer shall not be entitled to submit to the City any Project
Development Plan within the PUD Property, receive any building permit for a
structure within the PUD Property, or otherwise commence any development on
the PUD Property as the term development is defined in the Land Use Code,
until the closing on the sale of the School District Property to the Developer and
the closing of the sale of the School Site to the School District (the “Closings”).
C. If the Closings occur, so that the School District owns the School
Site and does not own any of the Development Property, either the Developer or
the School District shall thereafter have the right, but not the obligation, to
process a minor amendment to remove the School Site from the PUD Master
EXHIBIT B
Plan and, notwithstanding anything in this Agreement to the contrary, Developer
shall thereupon have no rights or obligations in connection with the School Site.
V. MISCELLANEOUS
A. Attorneys’ Fees. In the event of any litigation between the Parties
concerning the subject matter or enforcement of the terms of this Agreement, the
prevailing Party in such litigation shall be entitled to receive from the non-
prevailing Party, and shall be awarded, in addition to the amount of any judgment
or other award entered therein, all reasonable costs and expenses, including
reasonable attorneys’ fees, incurred by the prevailing Party in such litigation.
B. City Findings. The City hereby finds and determines that the
approval and execution of this Agreement are in the best interest of the public
health, safety and general welfare of the City.
C. Contingencies.
1. AB Contingency. The Parties hereto expressly agree that this
Agreement is contingent upon the closing of the sale of substantially all of
the Anheuser-Busch Property to the Developer pursuant to the terms of
the AB Agreement within five (5) years after the Effective Date. In the
event that such closing does not occur by such date, this Agreement shall
thereupon automatically terminate and thereafter be of no force or effect,
and the Parties hereto shall be released from all obligations hereunder.
2. Utilities’ Contingency. There are ongoing negotiations
between the City, the Developer and certain special districts in connection
with water and sewer service issues affecting the PUD Property. In the
event that such utility issues are not resolved to the satisfaction of the
Developer in its sole discretion within five (5) years after the Effective Date,
the parties acknowledge and agree that the Developer shall have the right
at any time to terminate this Agreement and/or to initiate termination of the
PUD Master Plan pursuant to the PUD Overlay Regulations. In the event
that the Developer exercises either of such termination rights, it shall give
notice thereof to the City and the date of such termination shall be, in the
case of termination of the Agreement, the date of delivery of any such
notice to the City in accordance with Section VII.Q. of this Agreement and,
in the case of termination of the PUD Master Plan, the date of approval, if
any, by the City of any such termination. The Developer acknowledges
EXHIBIT B
that the City does not have any obligation to provide water or sewer
service to the PUD Property.
D. Cooperation in Defending Legal Actions. If any Legal Challenge
occurs, the Developer shall have the option, in its sole discretion, to defend such
Legal Challenge. In the event that the Developer elects to defend any such
Legal Challenge, the Developer, with the consent of the City, shall take the lead
role in defending any such Legal Challenge, including, but not limited to,
preparing all pleadings and other required documents, accomplishing any
necessary service of process, generating necessary correspondence among the
Parties and paying one hundred percent (100%) of both court filing fees and the
costs of any expert witnesses, depositions, interrogatories, transcripts or other
similar costs. The City and the Developer shall each pay its own attorney fees.
Unless the City at its option decides to take a more active role in defending any
such Legal Challenge, the Parties agree that the role of the City and the
Developer therein shall be limited to the following:
1. In the event of any Legal Challenge, the City agrees to
cooperate in the review and signing of pleadings and other documents
reasonably required to defend such Legal Challenge and in forms
reasonably acceptable to the City Attorney of the City; and
2. In the event the Developer decides to appeal any negative
judicial decision in connection with any Legal Challenge, the City agrees to
be named as an appellant along with the Developer and to cooperate in
the review and signing of pleadings and other documents reasonably
required in connection with such appeal and in forms reasonably
acceptable to the City Attorney of the City.
3. Although it is the intent of this provision that, consistent with its
commitments given to the Developer in this Agreement, the City shall
cooperate with the Developer in defending any Legal Challenge as long as
the Developer determines to continue such defense, it is expressly agreed
by the City and the Developer that in the event there is controlling legal
precedent established by either the Colorado Court of Appeals or Supreme
Court or the United States Court of Appeals or Supreme Court supporting
one or more of the positions taken by a party or parties challenging any of
the items described herein above, then to the extent of such precedent as
it applies to those positions, the City shall not be obligated to defend or
continue the defense of any such positions.
EXHIBIT B
E. 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.
F. Covenants/Binding Effect. This Agreement shall be binding upon,
and inure to the benefit of, the Parties and their respective successors, heirs,
legal representatives and assigns, and shall constitute covenants and/or
servitudes, which touch, attach to and run with title to the PUD Property.
G. Default.
1. Notice; Cure. If any Party defaults under this Agreement, the
non-defaulting Party shall deliver written notice to the defaulting Party of
such default in accordance with Section V.Q., 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 V.G.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
V.G.1. shall not be prosecuted by Developer, its successors and assigns,
until the expiration of such cure period except as set forth in this
Agreement, and shall be dismissed by Developer, its successors and
assigns, if the default is cured in accordance with this Section V.G.1. In the
event of a default by the Developer, the City reserves the right to withhold
approval of any pending development application for the Project to the
extent that the subject matter of such default is directly related to such
pending application.
2. Remedies. If any default under this Agreement is not cured as
described above, the non-defaulting Party shall have the right to enforce
EXHIBIT B
the defaulting Party’s obligation hereunder by an action at law or in equity,
including, without limitation, injunction and/or specific performance, and
shall be entitled to an award of any damages available at law or in equity.
In the event of a default by the Developer, the City reserves the right to
withhold approval of any pending development application for the Project
to the extent that the subject matter of such default is directly related to
such pending application.
H. Governing Law. This Agreement shall be construed under and
governed by the laws of the State of Colorado.
I. Governmental Immunity Act. No term or condition of this
Agreement shall be construed or interpreted as a waiver, express or implied, of
any of the immunities, rights, benefits, protections, or other provisions, of the
Colorado Governmental Immunity Act, CRS § 24-10-101 et seq., or under any
other law.
J. Integration; Amendment. This Agreement represents the entire
agreement between the Parties with respect to the subject matter hereof and
there are no oral or collateral agreements or understandings. The Parties agree
that this Agreement may be amended only by an instrument in writing signed by
the City and the Developer, or any successor or assign of the Developer to whom
the Developer has granted in writing the right to consent to any such
amendment, it being expressly acknowledged by the parties that consent of
Developer’s successors or assigns to an amendment of this Agreement shall not
be required unless such right is granted in writing by the Developer.
K. Jurisdiction and Venue. The City and the Developer, its successors
and assigns, stipulate and agree that in the event of any dispute arising out of
this Agreement, the courts of the State of Colorado shall have exclusive
jurisdiction over such dispute and venue shall be proper in Larimer County,
Colorado. All Parties hereby submit themselves to jurisdiction of the State
District Court, 8th Judicial District, County of Larimer, State of Colorado.
L. Liability of Anheuser-Busch. Anheuser-Busch is made a party to this
Agreement solely for the purpose of subjecting the Anheuser-Busch Property to
the covenants contained in this Agreement and Anheuser-Busch specifically
consents to all of the terms and conditions of this Agreement and agrees that the
Anheuser-Busch Property shall be subject to the covenants contained herein.
The Parties expressly acknowledge and agree that Anheuser-Busch shall not be
liable for any obligations of the Developer under this Agreement, unless
Anheuser-Busch was to exercise any of the rights of the Developer, in which
EXHIBIT B
event the obligations of the Developer shall become those of Anheuser-Busch, to
the extent such obligations relate to lands then being developed by Anheuser-
Busch.
M. Liability of the School District. The School District is made a party to
this Agreement solely for the purpose of subjecting the School District Property,
as a development parcel shown on the PUD Master Plan, to the covenants
contained in this Agreement, subject to the provisions of Section V hereof. The
Parties expressly acknowledge and agree that the School District shall not be
liable for any obligations of the Developer under this Agreement and that the
School District is entitled to develop any site it may own within the PUD Master
Plan as a school site at such time and in such manner as the School District
customarily develops its schools.
N. Multi-Fiscal Year Obligations. To the extent that any of the
obligations of the City contained in this Agreement are or should be considered
multi-fiscal year obligations, such obligations shall be subject to annual
appropriation by the City Council, in its sole discretion, and the Developer shall
not be entitled to rely on a future appropriation in furtherance of any such
obligation.
O. No Joint Venture or Partnership. No form of joint venture or
partnership exists between the Developer, the Owners and the City, and nothing
contained in this Agreement shall be construed as making the Developer, the
Owners and the City joint venturers or partners.
P. No Third Party Beneficiaries. Except as otherwise provided in this
Agreement, enforcement of the terms and conditions of this Agreement, and all
rights of action relating to such enforcement, shall be strictly reserved to the City,
the Developer, its successors and assigns, and the Owners and nothing
contained in this Agreement shall give or allow any such claim or right of action
by any third party. Except as otherwise provided in this Agreement, it is the
express intention of the City, the Developer, its successors and assigns, and the
Owners that any other person receiving services or benefits under this
Agreement shall be deemed to be an incidental beneficiary only.
Q. Notices. Any notice or communication required under this
Agreement between the City, the Developer, and the Owners must be in writing
and may be given either personally, by registered or certified mail, return receipt
requested, by Federal Express or other reliable courier service that guarantees
next day delivery or by email (if followed by an identical hard copy via registered
or certified mail). If personally delivered, a notice shall be deemed to have been
EXHIBIT B
given when delivered to the party to whom it is addressed. If given by any other
method, a notice shall be deemed to have been given and received on the first to
occur of: (a) actual receipt by any of the addressees designated below as the
party to whom notices are to be sent; or (b) as applicable: (i) three (3) days after
a registered or certified letter containing such notice, properly addressed, with
postage prepaid, is deposited in the United States mail; (ii) the following business
day after being sent via Federal Express or other reliable courier service that
guarantees next day delivery; or (iii) the following business day after being sent
by email (provided that such email is promptly followed by an identical hard copy
sent via registered or certified mail, return receipt requested). Any party hereto
may at any time, by giving written notice to the other party hereto as provided in
this Section V.Q., designate additional persons to whom notices or
communications shall be given and designate any other address in substitution of
the address to which such notice or communication shall be given. Such notices
or communications shall be given to the parties at their addresses set forth
below:
If to City: City of Fort Collins
ATTN: City Manager
301 LaPorte Avenue
Fort Collins, CO 80521
Email:
With a copy to: City of Fort Collins
ATTN: City Attorney
301 LaPorte Avenue
Fort Collins, CO 80521
Email:
If to Developer: HF2M, Inc.
ATTN: Max Moss
430 N. College Ave. Suite 410
Fort Collins, CO 80524
Email: max@hf2m.com
With copies to: Liley Law Office, LLC
ATTN: Lucia A. Liley
419 Canyon Avenue, Suite 220
Fort Collins, CO 80521
Email: lliley@lileylaw.com
EXHIBIT B
If to Anheuser-Busch: Anheuser-Busch Foundation
ATTN: Jerrie House Plegge
c/o Anheuser-Busch Companies–Legal Depart.
One Busch Place
St. Louis, MO 63118
If to School District: Poudre R-1 School District
ATTN: Brendan Willits, Planning Manager
2407 LaPorte Avenue
Fort Collins, CO 80521
Email: bwillits@psdschools.org
With a copy to: Semple, Farrington, Everall & Case., P.C.
ATTN: Darryl L. Farrington
1120 Lincoln Street, Suite 1308
Denver, CO 80203
Email: dfarrington@semplelaw.com
R. 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.
S. Recordation. The City shall record this Agreement in the Larimer
County Records, and the Developer shall pay the cost of the same.
T. Representations and Warranties.
1. Representations and Warranties by the City. The City
represents and warrants that:
a. The City is a home rule municipality and has the power
to enter into and has taken all actions to date required to authorize
this Agreement and to carry out its obligations hereunder including,
but not limited to (i) all actions necessary to adopt and approve the
land use regulations and other provisions set forth in the
Development Documents in a manner that such regulations shall
legally govern the development of the PUD Property; and (ii) all
actions necessary to grant the vested property rights described in this
Agreement;
b. The City knows of no litigation, proceeding, initiative,
referendum, investigation or threat of any of the same contesting the
EXHIBIT B
powers of the City or its officials with respect to this Agreement that
has not been disclosed in writing to the Developer;
c. The execution and delivery of this Agreement and the
documents required hereunder and the consummation of the
transactions contemplated by this Agreement will not: (a) conflict with
or contravene any law, order, rule or regulation applicable to the City
or to the City’s governing documents, or (b) result in the breach of any
of the terms or provisions or constitute a default under any agreement
or other instrument to which the City is a party or by which it may be
bound or affected;
d. This Agreement constitutes a valid and binding obligation
of the City, enforceable according to its terms. Pursuant to Section
V.D., the City will cooperate in defending the validity of this
Agreement in the event of any litigation arising hereunder that names
the City as a party or challenges the authority of the City to enter into
or perform its obligations hereunder; and
e. Subject to Section V.G. of this Agreement relating to
default and remedies, should the foregoing representations and
warranties of the City prove to be materially inaccurate, in whole or in
part, such inaccuracy shall constitute a default by the City under this
Agreement. The City recognizes that the Developer intends to
expend substantial monies to undertake and complete development
of the Project in accordance with the Development Documents in
reliance upon the accuracy of the representations and warranties of
the City as set forth in this Section V.T.1.
2. Representations and Warranties by the Developer. The
Developer represents and warrants that:
a. The Developer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Texas
and qualified to do business in the State; has the legal capacity and
the authority to enter into and perform its obligations under this
Agreement and the documents to be executed in connection
herewith;
b. The execution and delivery of this Agreement and the
documents required hereunder and the performance and observance
EXHIBIT B
of their terms, conditions and obligations have been duly and validly
authorized by all necessary action on its part to make this Agreement
and such documents valid and binding upon the Developer;
c. The execution and delivery of this Agreement and the
documents required hereunder and the consummation of the
transactions contemplated by this Agreement will not: (a) conflict with
or contravene any law, order, rule or regulation applicable to the
Developer or to the Developer’s governing documents, or (b) result in
the breach of any of the terms or provisions or constitute a default
under any agreement or other instrument to which the Developer is a
party or by which it may be bound or affected;
d. The Developer knows of no litigation, proceeding,
initiative, referendum, or investigation or threat or any of the same
contesting the powers of the City, the Developer or any of its
principals or officials with respect to this Agreement that has not been
disclosed in writing to the City;
e. The Developer has the necessary legal ability to
perform its obligations under this Agreement. This Agreement
constitutes a valid and binding obligation of the Developer,
enforceable according to its terms; and
f. Subject to Section V.G. of this Agreement relating to
default and remedies, should the foregoing representations and
warranties of the Developer prove to be materially inaccurate, in
whole or in part, such inaccuracy shall constitute a default by the
Developer under this Agreement.
U. Severability. If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, all remaining terms, provisions, covenants and conditions of this
Agreement shall continue in full force and effect.
V. 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.
W. Waiver of Defects. In executing this Agreement, the Developer and
Owners waive all rights they may have concerning defects, if any, of the form or
EXHIBIT B
substance of this Agreement and the formalities whereby it is executed,
concerning the power of the City to impose conditions as set forth herein and
concerning the procedure, substance and form of the ordinances or resolutions
adopting this Agreement and approving the PUD Master Plan contemplated
herein. Similarly, the City, to the extent legally permissible, waives all rights it
may have concerning defects, if any, of the form or substance of this Agreement
and the formalities whereby it is executed as well as defects, if any, concerning
the procedure, substance and form of the ordinances or resolutions adopting this
Agreement and approving the PUD Master Plan.
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: _______________________________
Wade Troxell, Mayor
Date: _____________, 2020
APPROVED AS TO FORM:
_____________________________
Brad Yatabe, Assistant City Attorney
ATTEST:
____________________________
Delynn Coldiron, City Clerk
EXHIBIT B
DEVELOPER: HF2M, INC., a Texas corporation
By: _____________________________
Jeffrey N. Drinkard, President
STATE OF ____________________ )
) ss.
COUNTY OF __________________ )
The foregoing Agreement was acknowledged before me this ___ day of
___________, 20___, by Jeffrey N. Drinkard, President of HF2M, Inc., a Texas
corporation.
WITNESS my hand and official seal.
_____________________________
Notary Public
My commission expires: ______________
EXHIBIT B
OWNERS: POUDRE R-1 SCHOOL DISTRICT,
a political subdivision of the State of
Colorado
By: ____________________________
Printed Name: ___________________
Title: __________________________
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing Agreement was acknowledged before me this ___ day of
___________, 20___, by ______________, _____________ of the Poudre R-1
School District, a political subdivision of the State of Colorado.
WITNESS my hand and official seal.
_____________________________
Notary Public
My commission expires: ______________
EXHIBIT B
ANHEUSER-BUSCH FOUNDATION,
a Missouri charitable trust
By: ____________________________
Printed Name: ___________________
Title: __________________________
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing Agreement was acknowledged before me this ___ day of
___________, 20__, by _____________, _______________ of Anheuser-Busch
Foundation, a Missouri charitable trust.
WITNESS my hand and official seal.
_____________________________
Notary Public
My commission expires: ______________
EXHIBIT B
Exhibit A
Definitions
Initialized capitalized terms used in this Agreement have the meanings set
forth below:
Agreement: as defined in the introductory paragraph of this Agreement.
Anheuser-Busch: as defined in the introductory paragraph of this
Agreement.
Anheuser-Busch Property: means the approximately 844 acres of real
property owned by Anheuser Busch and described on Exhibit F attached hereto
and incorporated herein by this reference, and depicted on Exhibit D attached
hereto and incorporated herein by this reference.
City: as defined in the introductory paragraph of this Agreement.
City Council: means the elected governing body of the City as
established in the City’s Charter.
City Regulations: mean the Municipal Code, the Land Use Code and
other general ordinances, resolutions, regulations, policies and plans of the City,
as the same may be amended from time to time, to the extent any such
amendment is consistent with the terms of this Agreement including, but not
limited to, the vested property right granted in this Agreement.
Developer: as defined in the introductory paragraph of this Agreement.
Development Documents: means this Agreement and the PUD Master
Plan.
Development Property: means the PUD Property less the School Site, an
approximately 891-acre parcel, more particularly described on Exhibit G
attached hereto and incorporated by reference and depicted on Exhibit E
attached hereto and incorporated herein by reference.
Development Standards: means the development standards set forth in
Article 3 of the Land Use Code and the development standards of Article 4 of the
Land Use Code.
EXHIBIT B
Director: means the Director of the Community Development and
Neighborhood Services Department of the City.
Effective Date: means the effective date of the ordinances of the City
Council approving this Agreement and the PUD Master Plan or the latest
effective date of either of such ordinance if approved on separate dates.
Engineering Design Standards: means the engineering design standards
described in Section 3.3.5 of Article 3 of the Land Use Code.
Final Plan: means a final plan as described in the Land Use Code as
such description may be amended from time to time, to the extent any such
amendment is consistent with the terms of this Agreement including, but not
limited to, the vested property right granted in this Agreement.
Land Use Code: means the Land Use Code of the City, as the same may
be amended from time to time, to the extent any such amendment is consistent
with the terms of this Agreement including, but not limited to, the vested property
right granted in this Agreement.
LCUASS: means the Larimer County Urban Area Street Standards
originally adopted by City Council on January 2, 2001, by Ordinance No. 186,
together with all amendments thereto subsequently adopted by ordinance or
resolution of City Council, except as otherwise provided in this Agreement.
Larimer County Records: means the real estate records of the Clerk and
Recorder of Larimer County, Colorado.
Legal Challenge: means any third party commencement of any legal
proceeding or other action that directly or indirectly challenges this Agreement,
the PUD Overlay, the PUD Master Plan or any of the City’s resolutions or
ordinances approving this Agreement, the PUD Overlay and the PUD Master
Plan.
Municipal Code: means the Municipal Code of the City, as the same may
be amended from time to time, to the extent any such amendment is consistent
with the terms of this Agreement including, but not limited to, the vested property
right granted in this Agreement.
Owners: means Anheuser-Busch and the School District, collectively.
EXHIBIT B
Party(ies): means each and collectively, the Developer and its successors
and assigns, the School District, Anheuser-Busch, and the City.
Project: means the development pursuant to the PUD Master Plan of the
PUD Property.
Project Development Plan: means a project development plan as
described in the Land Use Code as such description may be amended from time
to time, to the extent any such amendment is consistent with the terms of this
Agreement including, but not limited to, the vested property right granted in this
Agreement.
PSD Agreement: means that Real Estate Exchange Agreement dated
June 27, 2019, between the School District and the Developer.
PUD Master Plan: means the planned unit development master plan for
development of the PUD Property entitled the “Montava - PUD Master Plan,” as
the same may from time to time be amended, the components of which are set
forth on Exhibit B, attached hereto and incorporated herein by reference.
PUD Master Plan Summary: as defined in Section II.A.4. of this
Agreement.
PUD Overlay: means the overlay of the approved PUD Master Plan
entitlements and restrictions upon the underlying zone district requirements.
PUD Overlay Regulations: means the planned unit development overlay
regulations adopted by City Council on July 17, 2018, by Ordinance No. 091,
2018, and codified as Division 4.49 of the Land Use Code, as such regulations
may be amended from time to time to the extent any such amendment is
consistent with the terms of this Agreement including, but not limited to, the
vested property right granted in this Agreement.
PUD Property: means the approximately 999 acres of real property upon
which the PUD Overlay pursuant to the PUD Master Plan has been imposed and
comprised of the Anheuser-Busch Property, the School District Property and
various rights of way, and described on Exhibit I attached hereto and
incorporated herein by this reference, and depicted on Exhibit D attached hereto
and incorporated herein by this reference.
EXHIBIT B
School District: as defined in the introductory paragraph of this
Agreement.
School District Property: means the approximately 108 acres of real
property owned by the School District and described on Exhibit J attached
hereto and incorporated herein by this reference, and depicted on Exhibit D
attached hereto and incorporated herein by this reference.
School Site: means the approximately 108-acre parcel within the PUD
Master Plan owned by Anheuser Busch and described on Exhibit H attached
hereto and incorporated by reference, and depicted on Exhibit E attached hereto
and incorporated herein by reference.
Shall, Will or Must: means that compliance is mandatory, unless the
context requires otherwise.
Site Specific Development Plan: means a site specific development plan
as defined in the Land Use Code as such definition may be amended from time
to time but only to the extent that any such amendment is consistent with the
terms of this Agreement including, but not limited to, the vested property right
granted in this Agreement.
State: means the State of Colorado.
Vested Master Plan Components: as defined in Section II.A.4. of this
Agreement.
Vested Property Rights Determination: as defined in Recital J of this
Agreement.
Vested Property Rights Statute: means Section 24-68-101, et seq., of
the Colorado Revised Statutes, in effect on the Effective Date.
Vesting Term: as defined in Section II.C.1. of this Agreement.
EXHIBIT B
Exhibit B
PUD Master Plan
[The documents listed below are identical to the documents contained in
Exhibit A to Ordinance No. 150, 2019.]
The PUD Master Plan includes the following documents, on file in the City’s
Development Review Center and incorporated herein by reference:
1. PUD Master Plan Summary
2. Montava PUD Master Plan PUD Design Narrative
3. Sheets 1 through 7 of the Montava – PUD Master Plan:
Sheet 1 Cover Sheet
Sheet 2 Existing Conditions & Natural Features Map
Sheet 3 Illustrative Master Plan
Sheet 4 Annotated Illustrative Master Plan
Sheet 5 Existing Zoning
Sheet 6 PUD Transect Districts and Special Districts
Sheet 7 Development Phasing Plan
4. Montava PUD Master Plan Uses, Densities and Development
Standards
5. Development Standards of the Land Use Code, Appendix A to
the PUD Master Plan Summary
6. Variances from Engineering Design Standards and Proposed
Alternate Designs submitted with such variances, Appendix B
to the PUD Master Plan Summary
EXHIBIT B
Exhibit C
PUD Master Plan Summary
[Final approved PUD Master Plan Summary to be inserted prior to recording this
Agreement. The PUD Master Plan Summary to be inserted will be identical to the
PUD Master Plan Summary contained in Exhibit A to Ordinance No. 150, 2019.]
EXHIBIT B
Exhibit D
Depiction of PUD Property, Anheuser-Busch
Property and School District Property
ANHEUSER-BUSCH
PROPERTY
��
ANHEUSER-BUSCH
PROPERTY
�-----.SCHOOL
DISTRICT
.____,_PROPERTY
EXHIBIT B
DEVELOPMENT
PROPERTY
DEVELOPMENT
PROPERTY
PUD BOUNDARY
SCHOOL
SITE
SCHOOL
SITE
EXHIBIT E
Depiction of Development Property and School Site
EXHIBIT B
EXHIBIT F
Description of Anheuser-Busch Property
The land referred to is situated in the County of Larimer, State of Colorado and is described as follows:
Parcel 1:
A parcel of ground 200 feet in length North and South and 60 feet in width East and West in the NW¼ of
Section 33, Township 8 North, Range 68 West, more particularly described as follows:
Commencing at a point on the West line of right-of-way of The Colorado Railroad Company (formerly the
Fort Collins Development Railway Company) 1000 feet South of the North line of said NW¼ of said
Section 33, thence South along the West line of said Colorado Railroad Company's right-of-way 200 feet,
thence West parallel with the North line of said NW¼ of said Section 33 60 feet, thence North parallel
with the West line of said Railroad Company's right-of-way 200 feet, thence East 60 feet to the Place of
Beginning,
County of Larimer,
State of Colorado.
For informational purposes only: APN - 88330-00-003
Parcel 2:
A portion of the Northwest ¼ of Section 33, Township 8 North, Range 68 West of the 6th P.M. as
described in deeds recorded in the following books and pages of the records on file in the office of the
Clerk and Recorder of Larimer County: Book 580 at Page 564, Book 677 at Page 119, and Book 246 at
Page 22, and being more particularly described as follows:
Considering the North-South centerline of said Section 33 as bearing N00°
20'41"W and with all bearings
contained herein relative thereto, Begin at a point on the North line of said Northwest ¼ which point
bears N89°
53'24"W 50.00 feet from the North ¼ of said Section 33, and run thence N89°
53'24"W 60.00
feet; thence S00°
20'41"E 1000.00 feet; thence S89°
53'24"E 60.00 feet; thence N00°
20'41"W 1000.00
feet to the Point of Beginning, EXCEPT the North 30.00 feet thereof presently used for County Road No.
52,
LESS AND EXCEPT that portion thereof conveyed to The City of Fort Collins by Special Warranty Deed
recorded September 14, 1984 in Book 2289 at Page 1283,
County of Larimer,
State of Colorado.
For informational purposes only: APN - 88330-00-009
Parcel 3:
A portion of the Northwest¼ of Section 33, Township 8 North, Range 68 West of the 6th P.M. described
as follows:
Considering the North-South centerline of said Section 33 as bearing N00°
20'41"W and with all bearings
contained herein relative thereto, begin at a point on the North line of said Northwest ¼ which point
bears N89°
53'24"W 125 feet from the North ¼ corner of said Section 33 and runs thence S00°
20'41"E
1200 feet; thence S89°
53'24"E 75 feet; thence N00°
20'41"W 200 feet; thence N89°
53'24"W 60 feet;
thence N00°
20'41"W 1000 feet; thence N89°
53'24"W 15 feet to the Point of Beginning,
County of Larimer,
State of Colorado.
EXHIBIT B
EXHIBIT B
EXHIBIT B
EXHIBIT B
EXHIBIT B
EXHIBIT B
Exhibit G
Description of Development Property
A PARCEL OF LAND SITUATE IN THE EAST HALF OF SECTION 32, A
PORTION OF THE SOUTHWEST CORNER OF SECTION 32, AND THE
WEST HALF OF SECTION 33, TOWNSHIP 8 NORTH, RANGE 68 WEST
OF THE SIXTH PRINCIPAL MERIDIAN, AND THE NORTH HALF OF
SECTION 4, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE SIXTH
PRINCIPAL MERIDIAN, CITY OF FORT COLLINS, COUNTY OF
LARIMER, STATE OF COLORADO; AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTH QUARTER CORNER OF SECTION 32
WHENCE THE SOUTH QUARTER CORNER BEARS S00°29'18"E A
DISTANCE OF 5289.91 FEET AND CONSIDERING ALL BEARINGS
HEREIN RELATIVE THERETO;
THENCE S89°35'02"E A DISTANCE OF 2638.10 FEET;
THENCE S89°53'24"E A DISTANCE OF 1773.90 FEET;
THENCE S00°00'00"E A DISTANCE OF 472.51 FEET;
THENCE S89°53'24"E A DISTANCE OF 864.73 FEET;
THENCE S00°16'21"E A DISTANCE OF 1513.06 FEET;
THENCE S89°59'54"E A DISTANCE OF 397.54 FEET;
THENCE S00°20'11"E A DISTANCE OF 380.10 FEET;
THENCE S89°59'31"E A DISTANCE OF 397.12 FEET;
THENCE S00°16'21"E A DISTANCE OF 2906.93 FEET;
THENCE S00°06'47"E A DISTANCE OF 50.00 FEET;
THENCE S89°47'00"E A DISTANCE OF 945.36 FEET;
THENCE S00°00'50"E A DISTANCE OF 15.00 FEET;
THENCE N89°59'10"E A DISTANCE OF 1022.26 FEET;
THENCE S84°33'41"E A DISTANCE OF 150.45 FEET;
THENCE S00°31'28"E A DISTANCE OF 220.49 FEET;
THENCE S19°10'52"E A DISTANCE OF 716.33 FEET;
THENCE S06°01'40"E A DISTANCE OF 296.08 FEET;
THENCE S00°30'00"W A DISTANCE OF 783.98 FEET;
THENCE N88°21'45"W A DISTANCE OF 92.96 FEET;
THENCE S86°38'10"W A DISTANCE OF 1900.01 FEET;
THENCE S68°38'10"W A DISTANCE OF 99.99 FEET;
THENCE S55°58'15" W A DISTANCE OF 200.00 FEET;
THENCE S36°58'15"W A DISTANCE OF 199.96 FEET;
THENCE S89°38'15"W A DISTANCE OF 15.00 FEET;
THENCE S00°06'47"W A DISTANCE OF 139.93 FEET;
THENCE N89°11'06"W A DISTANCE OF 2627.63 FEET;
THENCE N00°23'56"E A DISTANCE OF 2580.05 FEET;
EXHIBIT B
THENCE N89°53'45W A DISTANCE OF 2639.82 FEET;
THENCE S89°44'44"W A DISTANCE OF 1339.28 FEET;
THENCE N01°15'55"W A DISTANCE OF 1062.88 FEET;
THENCE S89°50'10"W A DISTANCE OF 721.52 FEET;
THENCE N01°15'28"W A DISTANCE OF 1589.29 FEET;
THENCE N89°50'10"E A DISTANCE OF 2060.57 FEET;
THENCE N00°29'18"W A DISTANCE OF 2644.95 FEET TO THE POINT
OF BEGINNING;
SAID PARCEL CONTAINS 999.25 ACRES (43,527,318.65 SQUARE
FEET) MORE OR LESS AND IS SUBJECT TO ALL RIGHTS-OF-WAY,
EASEMENTS AND RESTRICTIONS NOW IN USE OR OF RECORD.
Less:
A parcel of land, approximately 108 acres (+/-) in size, which is a portion
of and located in Section 4, T7N, R68W, 6
th
P.M., County of Larimer, State
of Colorado.
Such land is generally depicted as two parcels (1 – High School Site, 72
acres with off-site detention; and 2 – Middle school Site, 36 acres with off-
site detention) on the next page attached hereto and incorporated herein
by reference.
The parties acknowledge that the description above is a general
description only, and the foregoing is not intended to constitute a newly
created legal description of a subdivided parcel (§38-35-106.5, D.R.S.),
and is not intended to create a subdivision in violation of any applicable
law.
For informational purposes only:
Part of Assessor Parcel Number: 8704000002
Part of Schedule Number: R0 0156191
EXHIBIT B
Exhibit H
Description of School Site
A parcel of land, approximately 108 acres (+/-) in size, which is a portion
of and located in Section 4, T7N, R68W, 6
th
P.M., County of Larimer, State
of Colorado.
Such land is generally depicted as two parcels (1 – High School Site, 72
acres with off-site detention; and 2 – Middle school Site, 36 acres with off-
site detention) on the next page attached hereto and incorporated herein
by reference.
The parties acknowledge that the description above is a general
description only, and the foregoing is not intended to constitute a newly
created legal description of a subdivided parcel (§38-35-106.5, D.R.S.),
and is not intended to create a subdivision in violation of any applicable
law.
For informational purposes only:
Part of Assessor Parcel Number: 8704000002
Part of Schedule Number: R0 0156191
EXHIBIT B
Exhibit I
Description of PUD Property
A PARCEL OF LAND SITUATE IN THE EAST HALF OF SECTION 32, A
PORTION OF THE SOUTHWEST CORNER OF SECTION 32, AND THE
WEST HALF OF SECTION 33, TOWNSHIP 8 NORTH, RANGE 68 WEST
OF THE SIXTH PRINCIPAL MERIDIAN, AND THE NORTH HALF OF
SECTION 4, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE SIXTH
PRINCIPAL MERIDIAN, CITY OF FORT COLLINS, COUNTY OF
LARIMER, STATE OF COLORADO; AND BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTH QUARTER CORNER OF SECTION 32
WHENCE THE SOUTH QUARTER CORNER BEARS S00°29'18"E A
DISTANCE OF 5289.91 FEET AND CONSIDERING ALL BEARINGS
HEREIN RELATIVE THERETO;
THENCE S89°35'02"E A DISTANCE OF 2638.10 FEET;
THENCE S89°53'24"E A DISTANCE OF 1773.90 FEET;
THENCE S00°00'00"E A DISTANCE OF 472.51 FEET;
THENCE S89°53'24"E A DISTANCE OF 864.73 FEET;
THENCE S00°16'21"E A DISTANCE OF 1513.06 FEET;
THENCE S89°59'54"E A DISTANCE OF 397.54 FEET;
THENCE S00°20'11"E A DISTANCE OF 380.10 FEET;
THENCE S89°59'31"E A DISTANCE OF 397.12 FEET;
THENCE S00°16'21"E A DISTANCE OF 2906.93 FEET;
THENCE S00°06'47"E A DISTANCE OF 50.00 FEET;
THENCE S89°47'00"E A DISTANCE OF 945.36 FEET;
THENCE S00°00'50"E A DISTANCE OF 15.00 FEET;
THENCE N89°59'10"E A DISTANCE OF 1022.26 FEET;
THENCE S84°33'41"E A DISTANCE OF 150.45 FEET;
THENCE S00°31'28"E A DISTANCE OF 220.49 FEET;
THENCE S19°10'52"E A DISTANCE OF 716.33 FEET;
THENCE S06°01'40"E A DISTANCE OF 296.08 FEET;
THENCE S00°30'00"W A DISTANCE OF 783.98 FEET;
THENCE N88°21'45"W A DISTANCE OF 92.96 FEET;
THENCE S86°38'10"W A DISTANCE OF 1900.01 FEET;
THENCE S68°38'10"W A DISTANCE OF 99.99 FEET;
THENCE S55°58'15" W A DISTANCE OF 200.00 FEET;
THENCE S36°58'15"W A DISTANCE OF 199.96 FEET;
THENCE S89°38'15"W A DISTANCE OF 15.00 FEET;
THENCE S00°06'47"W A DISTANCE OF 139.93 FEET;
THENCE N89°11'06"W A DISTANCE OF 2627.63 FEET;
THENCE N00°23'56"E A DISTANCE OF 2580.05 FEET;
EXHIBIT B
THENCE N89°53'45W A DISTANCE OF 2639.82 FEET;
THENCE S89°44'44"W A DISTANCE OF 1339.28 FEET;
THENCE N01°15'55"W A DISTANCE OF 1062.88 FEET;
THENCE S89°50'10"W A DISTANCE OF 721.52 FEET;
THENCE N01°15'28"W A DISTANCE OF 1589.29 FEET;
THENCE N89°50'10"E A DISTANCE OF 2060.57 FEET;
THENCE N00°29'18"W A DISTANCE OF 2644.95 FEET TO THE POINT
OF BEGINNING;
SAID PARCEL CONTAINS 999.25 ACRES (43,527,318.65 SQUARE
FEET) MORE OR LESS AND IS SUBJECT TO ALL RIGHTS-OF-WAY,
EASEMENTS AND RESTRICTIONS NOW IN USE OR OF RECORD.
EXHIBIT B
Exhibit J
Description of School District Property
A TRACT OF LAND LOCATED IN THE SW QUARTER OF SECTION 32,
T8N, R68W of 6th PM, BEG AT W 1/4 COR, N 89 50' 10" E 2622.74 FT
TO CEN 1/4 COR, S 0 51' 56" E 2649.77 FT TO S 1/4 COR, S 89 44' 44"
W 1339.28 FT ALG S LN, N 0 15' 16" W 911.83 FT, S 89 44' 44" W
459.73 FT, N 60 15' W 117 FT, N 65 47' 7" W 176.13 FT TO SE CO
As described in that certain warranty deed from MARILYN SHERWIN,
STORYBOOK FARM LLC, and CAROL STORY UTHMANN to POUDRE
SCHOOL DISTRICT R-1, recorded 10/05/1998, at Reception No.
19980086672, County of Larimer, State of Colorado; and in that certain
quit claim deed from MIDTOWN HOMES AT STORYBOOK LLC to
POUDRE SCHOOL DISTRICT R-1, recorded 04/30/2014, at Reception
No. 20140021323, County of Larimer, State of Colorado, consisting of
approximately 108.06 acres (+/-).
For informational purposes only:
Assessor Parcel Number :8832000905
Schedule Number: R1589140
EXHIBIT B
MEMORANDUM
DATE: November 15, 2019
TO: Mayor Troxell and City Councilmembers
FROM: Tom Leeson, Community Development & Neighborhood Services Director
RE: Extended Vesting Justification
Introduction:
The purpose of this memo is to provide City Council with a written determination that a vesting
period of longer than three years is justified for the proposed Montava Planned Unit
Development (PUD).
Background:
A PUD Master Plan is eligible for a vested property right with respect to uses, densities,
development standards, and Engineering Standards for which variances have been granted for
a period of three (3) years. The vested property right shall not exceed three (3) years unless:
• (a) an extension is granted pursuant to the PUD provisions of the Land Use Code, or;
• (b) the City and the developer enter into a development agreement which vests the
property right for a period exceeding three (3) years.
Such agreement may be entered into by the City if the Director of Community Development &
Neighborhood Services determines that it will likely take more than three (3) years to complete
all phases of the development and the associated engineering improvements for the
development, and only if warranted in light of all relevant circumstances, including, but not
limited to, the overall size of the development and economic cycles and market conditions.
The Montava PUD is one of the largest single proposed development in Fort Collins history.
The project is proposed to develop in multiple phases over the course of more than 20 years,
and upon full buildout, will include about 4,000-5,000 residential dwelling units, 400,000 square
feet of office and commercial uses, 100 acres of industrial uses, and a farm. Montava’s
proposed mix of uses, variety of housing, system of open space, pedestrian orientation,
Exhibit K
Vested Property Rights Determination EXHIBIT B
incorporation of urban agriculture, energy efficient design, unique design standards, and
infrastructure improvements will take many years to be realized.
Given the scale of the project, I have determined that it will likely take more than three (3)
years to complete all phases of the development and the associated engineering
improvements, that extended vesting beyond three years is warranted in light of the large size
of the development and potential market cycles and market conditions, and that the request for
a 25 years vesting period is reasonable.
EXHIBIT B