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HomeMy WebLinkAbout2025-004-01/21/2025-APPROVING THE FIRST AMENDMENT TO THE DEVELOPMENT AGREEMENT TO SECURE PUBLIC BENEFITS FOR DEVELOPMENTRESOLUTION 2025-004 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING THE FIRST AMENDMENT TO THE DEVELOPMENT AGREEMENT TO SECURE PUBLIC BENEFITS FOR DEVELOPMENT OF THE MONTAVA PLANNED UNIT DEVELOPMENT MASTER PLAN A.Montava is a Planned Unit Development (PUD)established under Transitional Land Use Code Divisions 2.15 and 4.29 for a section of rural and agricultural land next to the Anheuser-Busch facility in northeast Fort Collins,modeled after a village- style development for the wide variety of land uses planned.The development intends to include a variety of housing,amenities and public spaces.The proposal calls for a complete,connected community with new neighborhoods,parks,schools,a town center, urban agriculture,businesses,and transportation connections. B.On September 25,2018,Council approved the Consolidated Service Plan for Montava Metropolitan District Nos.1-7 (Service Plan)to govern the Montava Metro Districts by Resolution 2018-083.Thereafter,on February 18,2020,Council approved the Montava PUD Master Plan and Montava PUD Overlay by Ordinance No.014,2020, and the PUD Master Plan Development Agreement by Ordinance No.015,2020,for the development of approximately 844 acres to be acquired from the Anheuser-Busch Foundation and an additional 108 acres to be obtained via an exchange with the Poudre School District. C.In connection with the approval of the PUD Master Plan,Council approved by Resolution 2020-007 the Development Agreement to Secure Public Benefits for Montava Planned Unit Development Master Plan (Public Benefits Agreement,at Reception No.20220022462)for the purpose of securing the Montava developer’s (the “Developer”)delivery of certain “Public Benefits”described in the Service Plan as:(I) large-scale comprehensive master planning;(ii)new urbanism;(iii)agri-urban development;(iv)zero energy ready homes;(v)non-potable water system;and (vi) affordable/workforce housing.The Public Benefits Agreement meets both the spirit of the Metro District Policy and helps the City achieve its strategic objectives. D.The Public Benefits Agreement at Subsection ll.G.contains a contingency requiring the closing of the Developer’s purchase from the Anheuser-Busch Foundation within five (5)years after the Public Benefits Agreement’s effective date of March 25, 2020,and if the closing does not occur before the end of the five (5)years,the Development Agreement shall automatically terminate and thereafter be of no force or effect. E.The Developer has encountered complicated issues in finalizing long-term solutions for ditch crossings,ditch modifications and stormwater management causing years of delay and erosion of the original five (5)-year contingency period. F.The Developer has submitted four (4)development applications for phases within the PUD Master Plan,one (1)of which must be approved before the Anheuser Busch Foundation closing. G.While the Developer continues to pursue resolution,it is also requesting that the Council grant a two (2)-year extension of the five (5)-year contingency period to allow additional time to resolve the issues and close on the purchase to prevent a termination of the Public Benefits Agreement. H.Under Section ll.H.of the Development Agreement,the City and the Developer are authorized to amend the Development Agreement without the consent of the Anheuser-Busch Foundation or the Poudre School District;although,both entities are advised of this request. There will not be financial impact on the City for extending the existing deadline. J.The City Council finds and determines that the adoption of this resolution advances the public’s health,safety,and welfare by ultimately facilitating the Developer’s delivery of the agreed upon Public Benefits. In light of the foregoing Recitals,which the Council hereby makes and adopts as determinations and findings,BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS: Section 1.The First Amendment to the Public Benefits Agreement to extend the contingency period upon the closing of the Developer’s purchase from the Anheuser Busch Foundation from five (5)years after the effective date of the Public Benefits Agreement to seven (7)years after the effective date of the Public Benefits Agreement is hereby approved by the City Council. Section 2.The Mayor is authorized to execute the First Amendment to the Public Benefits Agreement on behalf of the City in substantially the same form attached to this resolution as Exhibit A. Section 3.A copy of this resolution with all attachments shall be recorded in the Office of the Larimer County Clerk and Recorder promptly after the effective date of this resolution with all recording fees paid by the Developer. Passed and adopted on January 21,2025. ,JL ATTEST: 1’ itYCIf Effective Date:January 21,2025 Approving Attorney:Heather N.Jarvis EXHIBITATO RESOLUTION 2025-004 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT TO SECURE PUBLIC BENEFITS FOR MONTAVA PLANNED UNIT DEVELOPMENT MASTER PLAN THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT TO SECURE PUBLIC BENEFITS FOR MONTAVA PLANNED UNIT DEVELOPMENT MASTER PLAN (the “First Amendment”)is made and entered into this day of ,2024,by and between the CITY OF FORT COLLINS,COLORADO,a municipal corporation of the State of Colorado (“City”);and MONTAVA PARTNERS,LLC,a Colorado limited liability company (“Montava”),as successor to HF2M,INC.,a Texas corporation (“HF2M”).City and Montava may be referred to individually,each as a “Party,”or collectively,the “Parties.” RECITALS WHEREAS,City and HF2M entered into the Development Agreement to Secure Public Benefits for Montava Planned Unit Development Master Plan on December 11,2020 (the “Original Agreement”),together with U.S.BANK NATIONAL ASSOCIATION,as successor in interest to U.S.BANK,AS CORPORATE TRUSTEE OF THE ANHEUSER-BUSCH FOUNDATION,a Missouri charitable trust (“Foundation”)and POUDRE SCHOOL DISTRICT T-l,a political subdivision of the State of Colorado (“School District”);the Foundation and School District being collectively referred to herein as “Owners.”The Effective Date of the Original Agreement was March 25,2020; WHEREAS,HF2M assigned all of its obligations,right,title,interest in and to the Original Agreement to Montava effective March 8,2021; WHEREAS,the closing of the sale and conveyance of the Foundation Property to Montava has been delayed by unforeseen complications thus creating a risk that the Foundation Contingency in Subsection H.G of the Original Agreement cannot be satisfied within the time frame originally envisioned; WHEREAS,the Parties wish to enter into this First Amendment for the purpose of amending the Foundation Contingency to extend by two (2)years the time period within which the fee-title conveyance of the Foundation Property to Montava must occur;and WHEREAS,the Original Agreement may be amended only by the City and Montava without the consent of the Owners;Montava has not granted the right to consent to this First Amendment to any successor or assigns. First Amend PBA Draft 01-14-25 32376472.1 EXHIBITATO RESOLUTION 2025-004 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,the Parties agree as follows. AMENDMENT TO ORIGINAL AGREEMENT 1.Incorporation of Recitals.The foregoing Recitals are incorporated herein as material terms. 2.Capitalized Words and Terms.Capitalized words and terms not otherwise defined in this First Amendment shall retain the meaning given to them in the Original Agreement or in the Service Plan. 3.Foundation Contingency.The Parties acknowledge that the Original Agreement provides that should the fee-title conveyance of the Foundation Property to Montava not occur within five (5)years after the Effective Date,or by March 25,2025,the Original Agreement shall automatically terminate,and the Parties agree that it is reasonable and in the best interests of the general welfare of the City to extend the deadline for satisfaction of the Foundation Contingency by an additional two (2)years. 4.Amendment of Foundation Contingency.The Parties therefore agree to amend Subsection II.G of the Original Agreement to read as follows: Foundation Contineencv.The Parties hereto expressly agree that this Agreement is contingent upon the Foundation’s fee-title conveyance of record of the Foundation Property to the Developer pursuant to the terms of the Foundation Agreement within seven (7)years after the Effective Date.Because the legal description of the Foundation Property in Exhibit A has not been surveyed,it may need to be further verified by survey before the Foundation conveys the Foundation Property to the Developer;therefore,the Parties acknowledge and agree that the exact number of acres and boundaries of the Foundation Property to be conveyed under the Foundation Agreement may change and any such reasonable changes shall not affect the satisfaction of this contingency so long as substantially all of the Foundation Property currently described in Exhibit A is conveyed by the Foundation to the Developer.If 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. 5.Amendment ofNotices.The Parties agree to amend Subsection II.P.of the Original Agreement to replace the Developer’s contact information to read as follows: If to Developer:Montava Partners,LLC ATfN:Max Moss First Amend PBA Draft 01-14-25 32376472.1 EXHIBIT A TO RESOLUTION 2025-004 430 N.College Ave.Suite 410 Fort Collins,CO 80524 Email:max@montava.com With copies to:Brownstein Hyatt Farber Schreck,LLP AnN:Claire N.L.Havelda 675 15th Street,Suite 2900 Denver,CO 80202 Email:chavelda@bhfs.com 6.Original Agreement.The Original Agreement remains in full force and effect,as amended by this First Amendment. 7.First Amendment Effective Date:This First Amendment shall be effective upon the adoption of a resolution of the City Council approving the First Amendment. 8.Counteroarts.This First Amendment may be executed in counterparts,each of which shall be deemed to be an original and all of which taken together shall constitute one and the same amendment. 9.Recordation.The City shall record this First Amendment with the Larimer County Clerk and Recorder,and Montava shall pay the cost of the same. IN WITNESS WHEREOF,the Parties agree to the terms and conditions of this First Amendment described above effective as of the First Amendment Effective Date. CITY:Cfl’Y OF FORT COLLINS,COLORADO, a Municipal Corporation By:____________ Jeni Arndt,Mayor Date: APPROVED AS TO FORM: Heather N.Jarvis,Assistant City Attorney AflEST: Delynn Coldiron,City Clerk First Amend PBA Draft 01-14-25 32376472.1 EXHIBIT A TO RESOLUTION 2025-004 MONTAVA:MONTAVA PARTNERS,LLC,a Colorado Limited liability company By:CAMERON INVESTMENTS L.C.,an Idaho limited liability company,Manager By:_________________ Richard P.Clark,Manager Date: ATtEST: Printed name,Title First Amend PBA Draft 01-14-25 32376472.1