HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 07/21/2020 - RESOLUTION 2020-069 APPROVING AN AGREEMENT TO SECUAgenda Item 21
Item # 21 Page 1
AGENDA ITEM SUMMARY July 21, 2020
City Council
STAFF
Paul Sizemore, Interim Director, Comm. Devt. & Neighborhood Serv.
Rachel Rogers, Senior Specialist Economic Sustainability
John Duval, Legal
SUBJECT
Resolution 2020-069 Approving an Agreement to Secure Public Benefits for Waters’ Edge Development as
Provided in Service Plan for Waters’ Edge Metropolitan District Nos. 1 through 5.
EXECUTIVE SUMMARY
The purpose of this item is to consider a Resolution adopting the Agreement to Secure Public Benefits for the
Waters’ Edge Development. The Agreement is contemplated in the Consolidated Service Plan for Waters’
Edge Metropolitan Districts Nos. 1-5, approved by Council on September 18, 2018. Staff has completed its
review of the Public Benefits Agreement to ensure it conforms to the service plan adopted by Council.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution.
BACKGROUND / DISCUSSION
Project Overview
The developer of the Waters’ Edge project (“Project”) proposes a multi-phase 235-acre development in Fort
Collins. The Project includes approximately 848 homes with a product-type tailored to a population that is 55
years and older (incorporating single-level, senior-friendly home design). Additionally, the Project proposes a
future neighborhood commercial center, which could include up to 70,000 square feet in commercial/retail
space.
The first phase of the Waters’ Edge Development, consisting of 377 dwelling units, has completed the
development review process and a Final Development Plan was approved on June 4, 2018. The developer
anticipates the second phase of the project (which has not yet been submitted for development review) will
consist of 471 dwelling units and commercial property.
The Project relies on five metro districts, established in 2018, to provide and operate a non-potable water
system, provide enhanced parks and open space, rehabilitate the Windsor No. 8 ditch, and to provide other
lifestyle amenities to its residents (namely a sustainability center, and a senior activity center). In addition, the
developer commits to provide 10% of the dwelling units in Phase II of the project as affordable housing,
defined as being affordable by households earning 80% or less of the area median income (AMI).
On September 18, 2018, Council approved the Consolidated Service Plan for Waters’ Edge Metropolitan
Districts Nos. 1-5, based on these commitments to provide public benefits. Staff has reviewed the Agreement
to Secure Public Benefits and has determined that it is consistent with the adopted Service Plan.
Agenda Item 21
Item # 21 Page 2
Public Benefits
The approved Service Plan anticipated the provision of the following public benefits, which are secured in the
Public Benefits Agreement:
Affordable Housing
• Developer commits that in Phase II (Waters’ Edge East) at least 10% of the housing units in that phase
will be affordable (defined at 80% of AMI).
• This results in at least 48 affordable housing units if 471 total units are developed.
• The Agreement provides that at least two-thirds of the required affordable housing units must be
completed or guaranteed by a legally enforceable contract before the developer can obtain more than
50% of the building permits for the total units in Phase II.
• In addition, all of the required affordable housing units must be completed or guaranteed by a legally
enforceable contract before the final 100 building permits in the development will be issued.
• Housing units will be guaranteed to remain affordable, as defined above, for at least twenty years.
• If any required affordable housing units are offered as for-rent units, they must be rented at a price
affordable for an AMI of 80% or lower and the average of all rents for those units must be affordable for
households earning no more than the 60%.
Significant Reduction of Potable Water
• The inclusion of a non-potable water system will significantly reduce the need for treated water.
• The Developer estimates the long-term annual reduction in potable water needs to be approximately 55%
less than a typical development.
• The Developer estimates this system to result in significant financial benefits of around $151K in annual
operating cost savings.
• Additionally, there are unquantified environmental benefits due to a reduction in water treatment, primarily
in electricity usage.
• Traditional non-native and high-water use landscaping would require 158-acre feet of irrigation per year
according to estimates.
• Water planning, strategic landscaping, and successful performance management will reduce that to 87-
acre feet during the initial grow-in period then down to 65-acre feet after the native grasses are
established.
Enhanced and Expanded Public Spaces, Parks, and Trails
• Development includes enhanced and expanded open spaces and trails.
• Developer represents that there is twice the open space of a typical development.
• Developer proposes this as a benefit to the walkability and pedestrian friendliness of the Project, in
addition to meeting the intent of nature and outdoors accessibility.
• Additional public spaces proposed include sports courts, senior activity center, sustainability center with
electric mower charging, and community garden.
• Development provides additional pocket parks, enhanced public street design, and enhanced landscape
plantings in the open spaces and street corridors.
Rehabilitation of the Windsor No. 8 Ditch
• As per the Service Plan, the Windsor No. 8 ditch will be significantly rehabilitated to improve water quality,
provide habitat for wildlife, act as regional trail connection, and transform an eyesore into an attractive
community amenity.
• The existing ditch is 6,208 feet long along the eastern boundary of Phase II.
In addition to the commitments above, which were a part of the Service Plan, the developer has included
additional benefits as a part of Phase I of the project. These benefits are included in the approved plans for
Agenda Item 21
Item # 21 Page 3
that phase of development.
Solar Energy
• To enhance the environmental sustainability of the project, the developer has committed to enhanced
standards for Phase I of the development.
• The commitment is that 65% of the dwelling units in Phase I will be solar-power-oriented.
Public Infrastructure
• Phase I of the development includes a commitment to several critical transportation infrastructure
improvements.
• Developer has agreed to design and install geometric improvements and infrastructure at the intersection
of Turnberry Road and Country Club Road.
• Developer committed to a payment of $250,000 to the City which may be used for improvements to the
intersection of Timberline Road and Vine Drive to offset traffic impacts.
• These public infrastructure improvements are included as obligations in the development agreement for
Phase I of the project.
Performance Assurances
The Waters’ Edge Service Plan prohibits the Metro District from issuing of any debt or imposing the debt mill
levy or fees to pay debt unless and until the delivery of the Public Benefits are secured for each development
phase of the project in a manner that is approved by Council. This requirement can be satisfied by one or both
of the following methods, as applicable:
• Intergovernmental Agreement - For any of the Public Benefits to be provided by one or more of the
Districts, each such District must enter into an intergovernmental agreement with the City agreeing to
provide those Public Benefits as a legally enforceable multiple-fiscal year obligation of the District under
TABOR or by securing performance of that obligation with a surety bond, letter of credit or other security
acceptable to the City and all such intergovernmental agreements must be adopted by Council.
• Approved Development Plan - For any of the Public Benefits to be provided by one or more Developers
of the Planned Development, each such Developer must enter into a development agreement with the City
under the Developer’s applicable Approved Development Plan, which agreement must legally obligate the
Developer to provide those Public Benefits before the City is required to issue building permits and/or
certificates of occupancy for structures to be built under the Approved Development Plan for that phase of
the Planned Development or to secure such obligations with a surety bond, letter of credit or other security
acceptable to the City and all such development agreements must be adopted by Council.
Here, the method being used to secure the Waters’ Edge Public Benefits is as an approved development plan,
which is the proposed Public Benefits Agreement.
Funding/Securing of Public Benefits
Although the intent is that one or more of the Districts will ultimately reimburse the Developer for those Public
Benefits they have the legal ability to fund, the developer has the obligation to develop, construct and/or install
the Public Benefits in accordance with the terms and conditions of the Public Benefits Agreement.
Service Plan Review
The Service Plan calls for the five Metro Districts to deliver certain public improvements for the Project. The
development is phased over time with an anticipated build out in 2027. Highlights of the service plan include:
• Assessed Value - Estimated to be approximately $43 million in 2028 (the first year of full value after
Agenda Item 21
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buildout)
• Aggregate Mill Levy - 50 mills, subject to Gallagher Adjustments
• Debt Mill Levy - 40 mills, which may not be levied until an approved development plan and/or
intergovernmental agreement has been executed that delivers the pledged public benefits
• Operating Mill Levy - 10 Mills
• Maximum Debt Authorization - $31.5 million in project costs plus cost of issuance to cover a total of
$98,512,577 in estimated costs
• Regional Mill Levy - 5 Mills, anticipated to be used to fund specific transportation and/or stormwater
improvements
Conclusion
The Public Benefits Agreement conforms to the public benefits outlined in the Service Plan. The Agreement
meets both the letter and spirit of the Metropolitan District Policy and helps the City achieve its strategic
objectives. The Metropolitan District Policy speaks to the City’s commitment to water and energy efficiency,
and this project provides benefits beyond typical code requirements. The project will create at least 48 units of
affordable housing, addressing the City’s objective of increasing the inventory of affordable units as outlined in
the Affordable Housing Strategic Plan. In addition, rehabilitation of the Windsor No. 8 Ditch as well as trail and
open space improvements will provide an enhanced environment for residents and the community at large.
CITY FINANCIAL IMPACTS
The proposed Public Benefits Agreement will not have an impact on the City’s financials. The applicant has
paid the fees required under the City’s metropolitan district policy, which fees are designed to offset the cost of
staff and outside consultant review.
ATTACHMENTS
1. Powerpoint Presentation (PDF)
Water’s Edge Metro District – Public Benefits Agreement
July 21, 2020 Paul Sizemore and Rachel Rogers
ATTACHMENT 1
Presentation Overview
1) Project Overview
2) Metro District Commitments
3) Staff Recommendation
2
Project Description
3
• 55+ Age Targeted
Senior friendly design
(age in place)
Senior amenities
Enhanced open space
• 235 acres; 847 units
Project Phasing
4
• Phase I
• Approved FDP
• West side of
Turnberry
• 377 units
• Phase II
• Not yet submitted
• Expected 471 units
Community Wide Benefits
Affordable Housing
Water Efficiency
Public Spaces
Ditch Restoration
5
Developer Commitments
6
Environmental
Sustainability
GHG Reduction
Water/Energy
Conservation
Multimodal
Transportation
Enhance Resiliency
Increase Renewable
Capacity
Critical Public
Infrastructure
Existing significant
infrastructure
challenges
On-site
Off-site
Smart Growth
Management
Increase density
Walkability/Pedestrian
Infrastructure
Availability of Transit
Public Spaces
Mixed-Use
Strategic
Priorities
Affordable Housing
Infill/Redevelopment
Economic Health
Outcomes
Conclusions
1) Development Agreement Conforms to the Public Benefits outlined in
the Service Plan
2) Project will create 10% (48 units) of affordable housing at 80% AMI
3) Development Agreement includes performance measures that could
delay issuance of building permits on failure to perform
Affordable housing is front loaded – 2/3 in first half of permits
Provision of public benefits is a prerequisite to Developer’s receipt from
the City of any building permit for residential construction
7
Staff Recommendation
The Public Benefits Agreement is consistent with the commitments
outlined in the Service Plan
Therefore, staff recommends adoption of the resolution
8
Backup Slides
9
10
Northeast Fort Collins
Water’s Edge
Phase 1 & 2
Montava
Waterfield
Mulberry
Northfield
Affordable Housing
11
Source: Housing & Urban Development, US Gov’t, effective 6/18/20
Income
Area Median
Income 3-
person HH
Area Median
Income 4-
person HH
HUD Classification
100% AMI $84,700 $94,100 Moderate Income
80% of AMI $67,750 $75,250 Low Income
60% of AMI $50,820 $56,460 Low Income
50% of AMI $42,350 $47,050 Very Low Income
30% of AMI $25,450 $28,250 Extremely Low Income
Open Space, Parks and Trails
12
Trails & Pedestrian Friendliness
Developer has committed to include the
following features:
Construction of an eight-foot wide tree
lawn and five-foot wide sidewalk on both
sides of Morningstar Way
Twelve-foot wide soft trail along the
Natural Habitat Buffer Zone
Four to six-foot wide sidewalk and soft
trail connections through blocks and open
space areas
Public Spaces
Developer agrees to include the following
amenities for public use in a future final
development plan for Waters’ Edge East:
Senior activity center
Sports courts
Community garden
Sustainability center
Environmental Benefits
13
Non-Potable Water System
Annual pumping costs are
estimated at $25,100, as
compared to $176,700 for
potable water costs, based
on current ELCO rates.
Estimated long-term annual
water usage is reduced by
55%, from 51.4 million
gallons to 23.5 million
gallons.
Strategic Landscaping
Developer is committed to
design and install
landscaping in a minimum
of 50% of the natural
areas, open space, and
parks that fall within a “low”
or “very low” landscape
hydrozone calculation
within the Second Filing.
Solar Power- Provided by
Phase I but not included as
a designated “public
benefit” in the Service Plan
Phase I enhanced building
standards for energy
conservation outcomes.
65% of dwelling units in the
Phase I will be solar-
power-oriented.
Public Infrastructure
14
Turnberry and Country Club
Road Intersection- Provided
by Phase I but not included
as a designated “public
benefit” in the Service Plan
Developer will design and
install geometric
intersection improvements
and in-ground infrastructure
at the intersection of
Turnberry Road and
Country Club Road.
Timberline Road and Vine
Drive Intersection- Provided
by Phase I but not included
as a designated “public
benefit” in the Service Plan
Developer is committed to
make a $250,000 payment
to the City to offset the
aggregated traffic impacts
at the Timberline Road and
Vine Drive Intersection.
Rehabilitation of the
Windsor #8 Ditch
Developer agrees to
rehabilitate the Windsor #8
Ditch, including creation of
wildlife habitat, trails that
could link to the regional
trail system provided by
other parties, and improved
storm water retention.
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RESOLUTION 2020-069
OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS
APPROVING AN AGREEMENT TO SECURE PUBLIC BENEFITS FOR
WATERS’ EDGE DEVELOPMENT AS PROVIDED IN SERVICE PLAN FOR WATERS’
EDGE METROPOLITAN DISTRICT NOS. 1 THROUGH 5
WHEREAS, Waters’ Edge Development Inc., a Colorado corporation, (the “Developer”) is
currently the owner of a proposed 235-acre development in northeast Fort Collins to include
primarily residential units and a small amount of commercial development, with all to be to be
developed in two phases (the “Development”); and
WHEREAS, the first phase of the Development, to be known as Waters’ Edge West, has
received final development plan approval from the City for 377 total dwelling, consisting of 197
single family dwelling units, 50 single family alley-loaded dwelling units, 82 single family
attached dwelling units and 48 multi-family dwelling units; and
WHEREAS, the second phase of the Development, to be known as Waters’ Edge East,
has not yet received development review approval from the City but is anticipated to include 471
residential lots and some commercial development; and
WHEREAS, pursuant to the provisions of Colorado’s Special District Act, the Developer
previously submitted to the City an application for the Fort Collins City Council’s approval of a
Consolidated Service Plan for Waters’ Edge Metropolitan District Nos. 1-5 (the “Service Plan”),
which Service Plan the City Council approved on September 18, 2018 , in Resolution 2018-084;
and
WHEREAS, the Developer sought the organization of Waters’ Edge Metropolitan
District Nos. 1-5 (the “Districts”) to enable the Development to proceed in a manner that will
provide the public benefits described in Exhibit “K” of the Service Plan, which are: (1)
affordable housing; (2) a non-potable water irrigation system; (3) enhanced and expanded open
space, parks and trials; and (4) rehabilitation of the Windsor Ditch #8 (collectively, the “Public
Benefits”); and
WHEREAS, Section IV.B. of the Service Plan requires that Developer’s provision of the
Public Benefits be secured by a development agreement between the City and the Developer that
has been approved by resolution of the City Council before the Districts can, among other things,
impose any property taxes or issue any debt; and
WHEREAS, City staff and the Developer have negotiated the “Agreement to Secure
Public Benefits for the Waters’ Edge Development” attached as Exhibit “A” and incorporated
herein by reference (the “Public Benefits Agreement”), which sets forth the terms and conditions
by which the Developer’s provision of the Public Benefits will be secured for the City; and
WHEREAS, the City Council hereby finds that approval of the Public Benefits
Agreement is in the City’s best interest and will serve the public’s health, safety and welfare.
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NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS, COLORADO, as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That the City Council hereby approves the Public Benefits Agreement.
Section 3. That the City Manager is authorized to enter into the Public Benefits
Agreement on the City’s behalf in substantially the form attached as Exhibit “A,” subject to
minor modifications as the City Manager, in consultation with the City Attorney, may determine
to be necessary and appropriate to protect the interests of the City or to the effectuate the
purposes of this Resolution.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this
21st day of July, A.D. 2020.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
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AGREEMENT TO
SECURE PUBLIC BENEFITS FOR
WATERS’ EDGE DEVELOPMENT AS PROVIDED IN SERVICE PLAN FOR
WATERS’ EDGE METROPOLITAN DISTRICT NOS. 1 THROUGH 5
THIS AGREEMENT TO SECURE PUBLIC BENEFITS FOR WATERS’ EDGE
DEVELOPMENT AS PROVIDED IN SERVICE PLAN FOR WATERS’ EDGE
METROPOLITAN DISTRICT NOS. 1 THROUGH 5 (this “Agreement”) is made and entered
into this ______ day of ___________, 2020, by and between the CITY OF FORT COLLINS,
COLORADO, a home rule municipality of the State of Colorado (“City”) and WATERS’ EDGE
DEVELOPMENTS INC., a Colorado corporation (“Developer”). The City and the Developer
shall be referred to herein individually as a “Party” and jointly as the “Parties.”
WITNESSETH:
WHEREAS, the land-use development agreement between the City of Fort Collins
and Waters’ Edge Developments Inc., as amended, (“Second Filing Development Agreement”)
and related plat were approved by the City on June 4, 2018 (the “Second Filing”); and
WHEREAS, the Second Filing was approved for a total of 377 dwelling units
including 197 single family dwelling units, 50 single family alley loaded dwelling units, and 82
single family attached dwelling units, together with a tract for future development of a minimum
of 48 multi-family dwelling units; and
WHEREAS, the Second Filing is legally described as follows:
Waters’ Edge Second Filing, located in Section 30, Township 8 North, Range 68
West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado.
WHEREAS, the Waters’ Edge Second Filing Final Development Plan (the “Second Filing
FDP”) was approved by the City on June 4, 2018; and
WHEREAS, the second phase of development within Waters’ Edge Metropolitan District
Nos. 1-5 (each a “District” and collectively the “Districts”) is identified in the Consolidated
Service Plan for the Districts (the “Service Plan”) as the Inclusion Area, and encompasses 126.3
acres and is legally described on Exhibit “A” attached hereto and incorporated by reference
(referred to herein as “Waters’ Edge East,” and together with the Second Filing, the “Property”
or “Development”); and
WHEREAS, the Developer has not yet submitted final site plans or development approval
applications to the City for Waters’ Edge East, but the Developer anticipates that such future site
plan and development approval applications will include approximately 471 residential lots, as
well as a commercial property; and
EXHIBIT A
2
WHEREAS, the Developer desires to develop the Property into a uniquely sustainable
healthy living community and this commitment includes full compliance with the required number
of affordable homes as well as a significant number of homes in the balance of the community
planned to be attainable homes designed to allow aging residents to age-in-place with single story
living plans, limited or no entry steps and other architectural modifications addressing the needs
of those requiring additional physical considerations, all in a neighborhood that is socially and
physically connected to avoid isolation of its residents as they age; and
WHEREAS, this vibrant community concept will also promote environmental
conservation through reduced water usage and energy efficient homes, and will demonstrate the
use of renewable energy not only in the homes but in the maintenance of the community’s
significant open space, trail systems and parks; and
WHEREAS, the Developer has evidenced its commitment to these goals through the
completed buyout of the existing oil and gas production and reserves, the plugging and
abandonment of wells in the neighborhood and the planned conversion of oil and gas well-sites
into public space that includes programs and/or displays for the continuing education of the greater
community on the importance of environmental conservation, including the commitment to build
a sustainability center for the residents and other citizens of the City; and
WHEREAS, the Developer’s goals for the Property align with and promote the City’s
Triple Bottom Line priorities of economic health, environmental services, and social sustainability;
and
WHEREAS, pursuant to the provisions of Article 1 of Title 32 of the Colorado Revised
Statutes (the “Special District Act”), the City Council of the City approved the Service Plan for
the Districts by Resolution 2018-084; and
WHEREAS, organization of the Districts is intended to enable development of the Property
in a manner that will provide the public benefits generally described in Exhibit K of the Service
Plan, and more particularly defined and described in Paragraph I.B. below (the “Public Benefits”);
and
WHEREAS, Section IV.B.2. of the Service Plan requires that the Public Benefits to be
provided by a developer of a planned development shall be secured by a development agreement
between the City and such developer and the City and the Developer desire to secure the Public
Benefits in accordance therewith through this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements
of the parties contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, it is agreed as follows:
I. SECURING OF PUBLIC BENEFITS
A. Overview.
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1. Method of Securing Public Benefits. Although the intent is that one or more
of the Districts will ultimately reimburse the Developer for those Public Benefits they have the
legal ability to fund, the Developer shall have the obligation to develop, construct and/or install
the Public Benefits in accordance with the terms and conditions of this Agreement.
2. Public Benefits Summary. Exhibit K to the Service Plan generally
summarizes four (4) categories constituting the Public Benefits which are required to be secured
under this Agreement: (1) Affordable Housing; (2) Significant Reduction in Potable Water Usage;
(3) Enhanced and Expanded Open Space, Parks and Trails; and (4) Rehabilitation of the Windsor
#8 Ditch. Each of these categories are defined and addressed in Sections I.B.1 through I.B.4.
below.
B. Public Benefits Secured
1. Affordable Housing.
a. The Developer has not yet submitted final site plans or development
approval applications to the City for Waters’ Edge East, but the Developer anticipates that such
future site plan and development approval applications will include approximately 471 residential
lots. The “Total Dwelling Units” shall mean the total number of dwelling units authorized under
one or more approved development plans for Waters’ Edge East. For the purposes of determining
compliance with this Section I.B.1.a., at least 10% of the Total Dwelling Units approved within
Waters’ Edge East (with any fraction rounded up to the next whole number) must each be a
dwelling unit affordable for households earning eighty percent (80%) or less of the area median
income for a family of four for the Fort Collins/Loveland Metropolitan Statistical Area published
annually by the U.S. Department of Housing and Urban Development (“AMI”), which units may
be offered for-sale or for-rent (“Required Affordable Units”). However, the Required Affordable
Units offered for-rent must on average be affordable to households earning no more than sixty
percent (60%) of the AMI. This sixty percent (60%) average shall be calculated using the
averaging methodology adopted by the Colorado Housing and Finance Authority in response to
the United States Congress’ Fiscal Year 2018 Omnibus Spending Bill signed into law by President
Trump on March 23, 2018. If the approved number of Total Dwelling Units is more than 471
residential lots, the number of the Required Affordable Units shall be increased accordingly by the
10% requirement. However, if less than 471 Total Dwelling Units are approved, the number of
Required Affordable Units shall not be less than 48 dwelling units.
b. Each of the Required Affordable Units must continue to satisfy its
affordability standard as defined in Section I.B.1.a. above for at least twenty (20) years from the
date of issuance of the first certificate of occupancy for each such unit. This means that it is the
intent of the Parties that the initial and subsequent conveyances and leases of each of the Required
Affordable Units during the twenty (20)-year period must be to purchasers or lessees whose AMI
qualifies them for that Required Affordable Unit as defined in Section I.B.1.a. above. This
requirement shall be secured and deemed satisfied upon recording of a restrictive covenant or deed
restriction for each of the Required Affordable Units in a form reasonably acceptable to the City
that is for the City’s benefit and enforceable by the City at law and in equity and recorded with the
Larimer County Clerk and Recorder (the “20-Year Covenant”). When recorded, the 20-Year
4
Covenant shall not be subordinate to any lien or other financial encumbrance other than liens for
real property taxes. Notwithstanding the foregoing, the Developer may use methods other than
the 20-Year Covenant to secure for twenty (20) years the affordability of the Required Affordable
Units if the method is first approved in writing by the City.
c. The Required Affordable Units may be provided through any of the
following three (3) mechanisms or by any other mechanism mutually agreed upon in writing by
the Developer and the City, or any combination of the same:
(i) Developer has developed any portion of the Required
Affordable Units within Waters’ Edge East under one or more approved final development plan.
(ii) Execution of a contract for the sale of land of any portion of
Waters’ Edge East by the Developer to a non-profit or for-profit builder with a legally enforceable
contract obligation to the City in a form reasonably acceptable to the City to develop such land as
part or all of the Required Affordable Units, and the subsequent development of that land under
one or more future approved final development plans for Waters’ Edge East by such builder as
part or all of the Required Affordable Units. At the time any such sale is closed and relevant
documentation provided to the City by the Developer for each such sale, the City shall determine
the number and type of Required Affordable Units which reasonably could be expected to develop
on such acreage pursuant to the future approved final development plan and all other applicable
City ordinances, regulations, standards and policies and, upon such determination, those units shall
count toward the Required Affordable Units.
(iii) A reservation of any portion of Waters’ Edge East to be
developed under one or more future approved final development plans by the Developer for the
benefit of and legally enforceable by the City at law and in equity for the eventual sale to an entity
for development of all or a portion of the Required Affordable Units. At the time such reservation
is made by the Developer and the reservation is in a form reasonably acceptable to the City that is
for the City’s benefit and enforceable by the City at law and in equity and recorded with the
Larimer County Clerk and Recorder, the City shall determine the number and type of Required
Affordable Units which could reasonably be expected to develop on such acreage pursuant to the
future approved final development plan and all other applicable City ordinances, regulations,
standards and policies. Upon such determination, those units shall count toward the Required
Affordable Units.
d. At least sixty-six percent (66%) of the Required Affordable Units
shall be secured through one of the mechanisms described in Sections I.B.1.c.(i) through (iii) above
(or through any other mechanism agreed upon in writing between the City and the Developer)
before the City is required to issue any building permit that will authorize the construction of more
than fifty percent (50%) of the Total Dwelling Units within Waters’ Edge East, and the remaining
thirty-four percent (34%) of the Required Affordable Units shall be so secured prior to the City
being required to issue a building permit that will authorize the construction of any of the last one
hundred (100) of the Total Dwelling Units within Waters’ Edge East.
2. Significant Reduction in Potable Water Usage.
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a. Non-Potable Water System. The Parties acknowledge that the
Developer has agreed to install a non-potable water system to provide irrigation water to all the
natural areas and private lots in the Second Filing as provided under the Second Filing FDP and
the Second Filing Development Agreement. It is the intention that such non-potable water system
shall be owned and operated by Waters’ Edge Metropolitan District No. 1 or one of the other
Districts. The Developer shall apply to the District for acceptance of such non-potable water
system in accordance with the relevant agreement(s) in place between the Developer and the
District concerning acquisition of public improvements and infrastructure. Developer’s legal
obligation to provide this non-potable water system is a prerequisite to Developer’s receipt from
the City of any building permit for residential construction under the approved Second Filing FDP.
The Parties acknowledge and agree that a final irrigation construction plan for this non-potable
water system shall be provided to the City for its review and approval prior to the issuance of any
building permit for the Second Filing FDP. Subject to the successful inclusion of Waters’ Edge
East into the Districts, Developer agrees to install a non-potable water system to provide irrigation
water to all the natural areas and private lots within Waters’ Edge East. The City’s approval of a
future final development plan and development agreement for Waters’ Edge East, as required
under the City Land Use Code (“LUC”) that legally obligates the Developer to provide such non-
potable water system and the City’s approval of a final irrigation construction plan for that system
shall be prerequisites to Developer’s receipt from the City of any residential building permit for
construction under that future approved final development plan for Waters’ Edge East.
b. Strategic Landscaping. The Developer desires to promote water
conservation in the community and has agreed to design and install landscaping in a minimum of
50% of the natural areas, open space, and parks that fall within a “low” or “very low” landscape
hydrozone calculation within the Second Filing as provided in the Second Filing FDP (the
“Strategic Landscaping”). The Parties acknowledge that the Second Filing FDP includes the
Strategic Landscaping and the Second Filing Development Agreement obligates the Developer to
provide the Strategic Landscaping. The Parties also acknowledge that the Developer’s legal
obligation to provide the Strategic Landscaping as set out in the Second Filing FDP is a prerequisite
to Developer’s receipt from the City of any building permit for residential construction under the
approved Second Filing FDP.
3. Enhanced and Expanded Open Space, Parks and Trails.
a. Trails & Pedestrian Friendliness. The Developer desires to create a
community that is pedestrian-friendly, walkable, and inter-connected and has committed under the
Second Filing FDP and the Second Filing Development Agreement to include the following
features in the approved Second Filing to promote walkability and pedestrian friendliness: (i)
construction of an eight foot wide tree lawn and five foot wide sidewalk on both sides of
Morningstar Way; (ii) a twelve foot wide soft trail along the Natural Habitat Buffer Zone; and (iii)
four to six foot wide sidewalk and soft trail connections through blocks and open space areas (the
“Pedestrian Benefits”). The Parties acknowledge that the Second Filing FDP includes the
Pedestrian Benefits and the Second Filing Development Agreement obligates the Developer to
provide the Pedestrian Benefits. Developer’s legal obligation to provide the Pedestrian Benefits
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is a prerequisite to Developer’s receipt from the City of any building permit for residential
construction under the approved Second Filing FDP.
b. Public Spaces. Subject to the successful inclusion of Waters’ Edge
East into the Districts and to the extent that such benefits are not completed within the Second
Filing, Developer agrees to include the following amenities for public use in a future final
development plan for Waters’ Edge East: a senior activity center that promotes social inclusion
and connections with amenities such as a shared workshop and art studio, innovative open spaces
with amenities such as sports courts, a community garden, and a sustainability center with charging
stations for electric mowers and educational materials on renewable energy sources (the “Public
Spaces”). The City’s approval of a future final development plan and development agreement for
Waters’ Edge East, as required under the LUC, that legally obligates the Developer to provide the
Public Spaces shall be a prerequisite to Developer’s receipt from the City of any residential
building permit for construction under that future approved final development plan for Waters’
Edge East.
4. Rehabilitation of the Windsor #8 Ditch. As part of the Developer’s
development of Waters’ Edge East, the Developer agrees to rehabilitate the Windsor #8 Ditch,
including creation of wetlands to improve water quality, creation of wildlife habitat, trails that link
to the regional trail system provided by other parties, improved storm water retention and
transformation of the ditch area into a usable community natural area (the “Ditch
Rehabilitation”). The City’s approval of a future final development plan and development
agreement for Waters’ Edge East, as required under the LUC, that legally obligates the Developer
to provide the Ditch Rehabilitation shall be a prerequisite to Developer’s receipt from the City of
any building permit for residential construction under that future approved final development plan
for Waters’ Edge East.
C. City Acknowledgement. The City specifically acknowledges that the Public
Benefits as described and secured in paragraphs I.B.1 through I.B.4. above, satisfy the
requirement of Section IV.B. of the Service Plan for securing the Public Benefits as generally
described in Exhibit K of the Service Plan.
II. MISCELLANEOUS
A. City Findings. The City hereby finds and determines that the approval of this
Agreement is in the best interests of the City and the public’s health, safety and general welfare.
B. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement.
C. Covenants/Binding Effect. This Agreement shall run with the Property, including
any subsequent replatting of all, or a portion of the Property. This Agreement shall also be
binding upon and inure to the benefit of the Parties and their respective personal representatives,
heirs, successors, grantees and assigns. It is agreed that all improvements required pursuant to
this Agreement touch and concern the Property regardless of whether such improvements are
7
located on the Property. Assignment of interest within the meaning of this paragraph shall
specifically include, but not be limited to, a conveyance or assignment of any portion of the
Developer's legal or equitable interest in the Property, as well as any assignment of the
Developer's rights to develop the Property under the terms and conditions of this Agreement.
D. Default.
1. Notice; Cure. If either Party defaults under this Agreement, the non-
defaulting Party shall deliver written notice to the defaulting Party of such default in accordance
with Section II.M, and the defaulting Party shall have thirty (30) days from and after receipt of
such notice to cure such default. If such default is not of a type which can be cured within such
thirty (30) day period and the defaulting Party gives written notice to the non-defaulting Party
within such thirty (30) day period that it is actively and diligently pursuing such cure, the
defaulting Party shall have a reasonable period of time given the nature of the default following
the end of such thirty (30) day period to cure such default, provided that such defaulting Party is
at all times within such additional time period actively and diligently pursuing such cure and
provided further that in no event shall such cure period exceed a total of six (6) months.
Notwithstanding the cure period set forth in this Section II.D.1, Developer, its successors and
assigns, shall have the right to include a claim for breach of this Agreement in any action brought
under C.R.C.P. Rule 106 if Developer, its successors and assigns, believes that the failure to
include such claim may jeopardize its ability to exercise its remedies with respect to this
Agreement at a later date. Any claim for breach of this Agreement brought before the expiration
of the applicable cure period set forth in this Section II.D. shall not be prosecuted by Developer,
its successors and assigns, until the expiration of such cure period except as set forth in this
Agreement, and shall be dismissed by Developer, its successors and assigns, if the default is cured
in accordance with this Section II.D.
2. Remedies. If any default under this Agreement is not cured as described
above, the non-defaulting Party shall have the right to enforce the defaulting Party’s obligation
hereunder by an action at law or in equity, including, without limitation, injunction and/or specific
performance, and shall be entitled to an award of any damages available at law or in equity.
E. Governing Law. This Agreement shall be construed under and governed by the
laws of the State of Colorado.
F. Integration; Amendment. This Agreement represents the entire agreement
between the Parties with respect to the subject matter hereof and there are no oral or collateral
agreements or understandings. The Parties agree that this Agreement may be amended only by
an instrument in writing signed by the City and the Developer, and successors and permitted
assigns of the Developer to whom the Developer has granted in writing the right to consent to any
such amendments. Notwithstanding the foregoing, this Agreement shall be in addition to and
supplemented by the development agreements that will be entered into by the Developer with the
City for the Property as required in Section 3.3.2.(B) of the City’s Land Use Code.
G. Jurisdiction and Venue. The City and the Developer, its successors and assigns,
stipulate and agree that in the event of any dispute arising out of this Agreement, the courts of the
8
State of Colorado shall have exclusive jurisdiction over such dispute and venue shall only be
proper in Larimer County, Colorado. The Parties hereby submit themselves to jurisdiction of the
State District Court, 8th
Judicial District, County of Larimer, State of Colorado.
H. City Approvals. Where this Agreement requires the City’s future approval or
consent, such approval or consent may be given by the City Manager of the City within his or her
sole discretion. Where this Agreement requires the City Council’s approval or consent, such
approval or consent shall be within the Council’s sole discretion.
I. Multiple-Fiscal Year Obligations. To the extent that any of the obligations of the
City contained in this Agreement are or should be considered multiple-fiscal year obligations,
such obligations shall be subject to annual appropriation by the Fort Collins City Council, in its
sole discretion.
J. No Joint Venture or Partnership. No form of joint venture or partnership exists
between the Developer and the City, and nothing contained in this Agreement shall be construed
as making the Developer and the City joint venturers or partners.
L. No Third-Party Beneficiaries. Except as otherwise provided in this Agreement,
enforcement of the terms and conditions of this Agreement, and all rights of action relating to
such enforcement, shall be strictly reserved to the City and the Developer, and its successors and
assigns, and nothing contained in this Agreement shall give or allow any such claim or right of
action by any third party.
M. Notices. Any notice or communication required under this Agreement between
the City and the Developer, and its successors and assigns, must be in writing and may be given
either personally, by registered or certified mail, return receipt requested, by Federal Express or
other reliable courier service that guarantees next day delivery or by facsimile transmission
(followed by an identical hard copy via registered or certified mail). If personally delivered, a
notice shall be deemed to have been given when delivered to the Party to whom it is addressed.
If given by any other method, a notice shall be deemed to have been given and received on the
first to occur of: (a) actual receipt by any of the addressees designated below as the Party to
whom notices are to be sent; or (b) as applicable: (i) three (3) days after a registered or certified
letter, return receipt requested, containing such notice, properly addressed, with postage prepaid,
is deposited in the United States mail; (ii) the following business day after being sent via Federal
Express or other reliable courier service that guarantees next day delivery; or (iii) the following
business day after being sent by facsimile transmission (provided that such facsimile transmission
is promptly followed by an identical hard copy sent via registered or certified mail, return receipt
requested). Any Party hereto may at any time, by giving written notice to the other party hereto
as provided in this Section II.M, designate additional persons to whom notices or communications
shall be given and designate any other address in substitution of the address to which such notice
or communication shall be given. Such notices or communications shall be given to the Parties
at their addresses set forth below:
If to City: City of Fort Collins
ATTN: City Manager
9
300 LaPorte Avenue
Fort Collins, CO 80521
With a copy to: City of Fort Collins
ATTN: City Attorney
300 LaPorte Avenue
Fort Collins, CO 80521
If to Developer: Waters’ Edge Developments, Inc.
ATTN: Dan Nickless
5935 South Zang Street, Suite 230
Denver, CO 80127
With copies to: WHITE BEAR ANKELE TANAKA & WALDRON
Attorneys at Law
ATTN: Robert Rogers, Esq.
2154 East Commons Avenue, Suite 2000
Centennial, Colorado 80122
N. Paragraph Captions. The captions of the paragraphs are set forth only for the
convenience and reference of the Parties and are not intended in any way to define, limit or
describe the scope or intent of this Agreement.
O. Recordation. The Developer agrees to the City recording this Agreement with the
Larimer County Clerk and Recorder, and the Developer shall pay the cost of the same.
P. Severability. If any term, provision, covenant or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this Agreement shall continue in full force.
Q. Survival. The covenants, representations and warranties and agreements to be
performed or complied with under this Agreement by the Parties shall be continuing obligations
of the Parties until fully complied with or performed, respectively.
R. Waiver. No waiver of one or more of the terms of this Agreement shall constitute
a waiver of other terms. No waiver of any provision of this Agreement in any instance shall
constitute a waiver of such provision in other instances.
[Remainder of page left intentionally blank. Signature Pages follow.]
10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first written above.
CITY: CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: _______________________________
Darin A. Atteberry, City Manager
Date: _____________, 2020
ATTEST:
____________________________
Delynn Coldiron, City Clerk
APPROVED AS TO FORM:
_____________________________
John R. Duval, Deputy City Attorney
STATE OF COLORADO )
) ss
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this ______ day of _________,
2020, by __________________________ as City Manager of the City of Fort Collins.
Witness my hand and official seal.
My Commission expires:
Notary Public
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DEVELOPER: WATERS’ EDGE DEVELOPMENTS INC., a
Colorado corporation
By: _____________________________
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing Agreement was acknowledged before me this ___ day of ___________,
2020, by _________________ of Waters’ Edge Developments Inc.
WITNESS my hand and official seal.
_____________________________
Notary Public
My commission expires: ______________
12
EXHIBIT A
(Legal Description of ‘Waters’ Edge East)
A parcel of land, located in Section Twenty-nine (29), Township 8 North (T.8N.), Range Sixty
Eight West (R.68W.) of the Sixth Principal Meridian (6th P.M.), City of Fort Collins, County of
Larimer, State of Colorado and being more particularly described as follows:
All that portion of Section 29 including Lind Property, Second Filing, Final Plat Recorded January
18, 2007 as Reception No. 20070004594, according to County of Larimer Records, excepting
therefrom the following parcels:
(1.) That portion of Section 29 lying east of the centerline of the W.P. Elder Reservoir Outlet
Canal.
(2.) Water's Edge Metropolitan Districts 1, 3, 4 and 5.
(3.) All of that tract ofland known as Lind Property, Final Plat Recorded December 2, 2003 as
Reception No. 258077, according to County of Larimer records.
O:12015374-B\PROP_DESC\2015374B-INCLUSION AREA docPage I of 2
Waters' Edge East Legal Description