HomeMy WebLinkAboutMONTAVA - PHASE D CORE AND IRRIGATION POND - BDR240006 - SUBMITTAL DOCUMENTS - ROUND 2 - Supporting Documentation (4)Montava Phase D
Developer Draft #1 7.17.24
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND
MONTAVA PARTNERS, LLC, AND MONTAVA DEVELOPMENT & CONSTRUCTION,
LLC FOR MONTAVA SUBDIVISION PHASE D CORE
AND IRRIGATION POND
THIS DEVELOPMENT AGREEMENT (the “Agreement”), is made and entered into on the
date of the last signature below, by and between the CITY OF FORT COLLINS,
COLORADO, a Municipal Corporation, hereinafter referred to as the “City”; and Montava
Partners, LLC, a Colorado limited liability company (hereinafter referred to as “Owner”),
and Montava Development & Construction, LLC, a Colorado limited liability company,
(hereinafter referred to as the “Developer.”).
WITNESSETH:
WHEREAS, the Developer is the owner has entered into an agreement with the
Owner to acquire ownership of portions of certain real property situated in the County of
Larimer, State of Colorado (hereafter sometimes referred to as the “Property” or
“Development”) and legally described as follows, to wit:
MONTAVA SUBDIVISION PHASE D CORE, Aa parcel of land located in a
portionthe east half of Section 32, Township 8 North, Range 68 West of the 6th
P.M., City of Fort Collins, County of Larimer, State of Colorado.
WHEREAS, the Development is known to the City as Montava Subdivision Phase
D, Core and Irrigation Pond ID# BDR240006; and
WHEREAS, City Council approved the Consolidated Service Plan for Montava
Metropolitan Districts Nos. 1-7 (“Service Plan”) by Resolution 2018-083, which includes
the Property within its boundary; and
WHEREAS, Section IV.B. of the Service Plan contemplates that the Developer and
the Metropolitan Districts, individually or jointly, will deliver as part of the Montava
development certain direct and indirect public benefits (“Public Benefits”) described 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; and
WHEREAS, City Council approved the Development Agreement to Secure Public
Benefits for Montava Planned Unit Development (“Public Benefits Agreement”) by
Resolution 2020-007 to establish the manner by which the Public Benefits are to be
Commented [JPK1]: Since the DA parties will likely be
the same for many if not all of the phases, adding the phase
name to the DA is a simple way to differentiate when
searching.
Commented [JPK2]: Unlike Phase G where the Developer
was going to own the Ditch lands, Partners will be the only
owner at the time of plat and DA recording; the sale to the
Developer will occur after recording.
Commented [JPK3]: These additional recitals are also
included in the Phase G DA draft.
Montava Phase D
Developer Draft #1 7.17.24
secured; the Public Benefits Agreement is recorded at Reception No. 20200105298 and
rerecorded at Reception No. 20220022462; and
WHEREAS, by Ordinance 014, 2020, City Council approved the Montava PUD
Master Plan and PUD Overlay (“PUD Master Plan”), which includes the Property within
its boundary; and
WHEREAS, by Ordinance 015, 2020, City Council approved the PUD Master Plan
Development Agreement for the Montava Planned Unit Development Overlay and Master
Plan (“Master Development Agreement”), which established extended vested property
rights for the PUD Master Plan; and
WHEREAS, the Developer desires to develop the Property and has submitted to
the City all plats, plans (including utility plans), reports and other documents required for
the approval of a final plan according to the City’s development application submittal
requirements master list (the “Final Development Plan Documents”) copies of which are
on file in the office of the City Engineer and made a part hereof by reference; and
WHEREAS, the parties hereto have agreed that the development of the Property
will require increased municipal services from the City in order to serve such area and will
further require the installation of certain improvements primarily of benefit to the P roperty
and not to the City of Fort Collins as a whole; and
WHEREAS, the City has approved the Final Development Plan Documents
submitted by the Developer, subject to certain requirements and conditions, which involve
the installation of and construction of utilities and other municipal improvements in
connection with the development of the Property.
WHEREAS, concurrent with the development of the Property, the Developer is
seeking approval of an infrastructure plan set entitled the MONTAVA SUBDIVISION
PHASE D INFRASTRUCTURE, ID# BDR24________ (the “Infrastructure Plans”), which
plans include the collector an d arterial roadways and intersections adjacent to the
Development; and
NOW, THEREFORE, in consideration of the promises of the parties hereto and
other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, it is agreed as follows:
I. General Conditions
A. The Recitals set forth above are hereby incorporated in and made a part of
this Agreement by this reference.
Commented [JPK4]: In the Phase G DA, we referred to
these as "Final BDR Documents" - do we want to remain
consistent?
Commented [JPK5]: Since some of the improvements for
the Core are connected to improvements in the Infrastructure
plans, we are defining the Infrastructure Plans here for
reference.
Montava Phase D
Developer Draft #1 7.17.24
B. References to the City Code, Land Use Code, or other laws, regulations, or
rules shall include subsequent amendments thereto or adopted laws, regulations, or rules
intended to replace or otherwise supersede prior laws, regulations, or rules. By way of
example, if the City were to adopt in the future a revised Land Use Code or revised
portions of the Land Use Code that replaces and supersedes the current Land Use Code,
then the relevant section of the revised Land Use Code would apply in lieu of the Land
Use Code provisions referenced herein. Notwithstanding, the foregoing language is not
intended to alter or otherwise affect valid vested rights except as may be provided for in
§ 24-68-105, C.R.S. The term “City Code” used herein shall mean the “Code of the City
of Fort Collins.”
B.C. The Development is subject to the PUD Master Plan, the Master
Development Agreement, applicable City Regulations, the Final Development Plan
Documents, and this Agreement.
C.D. Subject to the PUD Master Plan and the Master Development Agreement,
Tthe terms of this Agreement shall govern all development activities of the Developer
pertaining to the Property. For the purposes of this Agreement, “development activities”
shall include, but not be limited to, the following: (1) the actual construction o f public and
private improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour ,
use or appearance of the Property caused by, or on behalf of, the Developer with the
intent to construct improvements thereon.
D.E. All improvements, including but not limited to water lines, sanitary sewer
collection lines, storm sewer lines and facilities, streets, curbs, gutters, sidewalks, and
bikepaths shall be paid for and installed by the Developer as shown on the approved Final
Development Plan Documents and in full compliance with the standards and
specifications of the City on file in the office of the City Engineer at the time of approval
of the utility plans relating to the specific utility, subject to a three (3) year time limitation
from the date of approval of the Final Development Plan Documents. In the event that
the Developer commences or performs any construction pursuant hereto after the
passage of three (3) years from the date of approval of the Final Development Plan
Documents, the Developer shall resubmit the utility plans to the City Engineer for
reexamination. The City may then require the Developer to comply with the approved
standards and specifications of the City on file in the office of the City Engineer at the time
of the resubmittal.
E.F. No building permit for the construction of any structure within the Property
shall be issued by the City until the public water lines and stubs to each lot, fire hydrants,
electrical lines, sanitary sewer lines and stubs to each lot, and public streets (in cluding
curb, gutter, sidewalk, and pavement with at least the base course completed) serving
such structure have been completed and accepted by the City. No building permits shall
be issued for any structure located in excess of 660 feet from a single point of access,
Commented [JPK6]: Changes to B, C and D are same as
changes approved by Brad Yatabe for Phase G DA.
Technically, the Transitional Land Use Regulations still
apply, but we note that portions of the new Land Use Code
are up for revision.
Commented [JPK7]: Can we discuss this? If sidewalks
are installed before homes are built, they will get damaged.
Montava Phase D
Developer Draft #1 7.17.24
unless the structures contain sprinkler systems that are approved by the Poudre Fire
Authority.
F.G. Any water lines, sanitary sewer lines, storm drainage lines, electrical lines,
and/or streets described on Exhibit A, attached hereto and incorporated herein by
reference, shall be installed within the time and/or sequence required on Exhibit A. If the
City Engineer has determined that any water lines, sanitary sewer lines, storm drainage
facilities, and/or streets are required to provide service or access to other areas of the
City, those facilities shall be shown on the Final Development Plan Documents a nd shall
be installed by the Developer within the time as established under “Special Conditions” in
this Agreement.
G.H. Except as otherwise herein specifically agreed, the Developer agrees to
install and pay for all water, sanitary sewer, and storm drainage facilities and
appurtenances, and all streets, curbs, gutters, sidewalks, bikeways and other public and
private improvements required by this Development as shown on the Final Development
Plan Documents and other approved documents pertaining to this Development on file
with the City.
H.I. Street improvements shall not be installed until all utility lines to be placed
therein have been completely installed, including all individual lot service lines (water and
sewer) leading in and from the main to the property line and all electrical lines.
I.J. The installation of all City utilities shown on the Final Development Plan
Documents shall be inspected by the Engineering Department of the City and shall be
subject to such department's approval. The Developer agrees to correct any deficiencies
in such installations in order to meet the requirements of the plans and/or specifications
applicable to such installation. In case of conflict, the Final Development Plan Documents
shall supersede the standard specifications, except that if the conflicts are a r esult of
Federal or State mandated requirements, then the Federal or State mandated
requirements shall prevail.
J.K. Unless authorized by the City in writing and pursuant to law, the public right-
of-way shall not be used for staging or storage of materials , equipment, or construction
debris (“Staging”) associated with the Development, nor shall it be used for parking by
any contractors, subcontractors, or other personnel working for or hired by the Developer
to construct the Development. The Developer shall find a location(s) on private pro perty
to accommodate any necessary Staging and/or parking needs associated with the
completion of the Development. Information on the location(s) of these areas shall be
provided to the City as a part of the Development Construction Permit application.
K.L. Developments constructed with privately maintained streets shall be
constructed to the same design standards as those constructed on similar public rights -
Montava Phase D
Developer Draft #1 7.17.24
of-way (ROW). Public easements shall be provided for access, utilities and drainage as
required by the design and location of such infrastructure and as reflected on the Final
Development Plan Documents. Alignment and grades on privately maintained streets
and drives shall allow for safe access, ingress and egress by owners, visitors, the general
public and public safety officials and equipment, as approved by the City Engineer.
L.M. All storm drainage facilities shall be designed and constructed by the
Developer so as to protect downstream and adjacent properties against injury and to
adequately serve the Property (and other lands as may be required, if any). The
Developer shall meet or exceed the minimum requirements for storm drainage facilities
as have been established by the City’s Drainage Master Plans and Design Criteria. The
Developer, for itself and its successor(s) in interest, does hereby indemnify and hold
harmless the City from any and all claims that might arise, directly or indirectly, as a result
of the discharge of injurious storm drainage or seepage waters from the Property in a
manner or quantity different from that which was historically discharged and caused by
the design or construction of the storm drainage facilities, except for (1) such claims and
damages as are caused by the acts or omissions of the City in maintenance of such
facilities as have been accepted by the City for maintenance; (2) errors, if any, i n the
general concept of the City's master plans (but not to include any details of such plans,
which details shall be the responsibility of the Developer); and (3) specific written or
otherwise documented directives that may be given to the Developer by t he City. No
language in this Paragraph shall be construed or interpreted as establishing in any way
the City’s liability for any act or omission and the terms of this Paragraph solely relate to
the Developer’s obligation to indemnify and hold harmless the City. The City agrees to
give notice to the Developer of any claim made against it to which this indemnity and hold
harmless agreement by the Developer could apply, and the Developer shall have the right
to defend any lawsuit based on such claim and to set tle any such claim provided
Developer must obtain a complete discharge of all City liability through such settlement.
Failure of the City to give notice of any such claim to the Developer within ninety days
after the City first receives a notice of such claim under the Colorado Governmental
Immunity Act for the same, shall cause this indemnity and hold harmless agreement by
the Developer to not apply to such claim and such failure shall constitute a release of this
indemnity and hold harmless agreement as to such claim. Approval of and acceptance
by the City of any storm drainage facility design or construction shall in no manner be
deemed to constitute a waiver or relinquishment by the City of the aforesaid
indemnification. The Developer shall engage a Colorado licensed professional engineer
to design the storm drainage facilities as aforesaid and it is expressly affirmed hereby that
such engagement shall be intended for the benefit of the City, and subsequent purchasers
of property in the Development.
M.N. The Developer shall provide the City Engineer with certified Record Plan
Transparencies (“as-built drawings”) by electronic file upon completion of each phase of
Montava Phase D
Developer Draft #1 7.17.24
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City.
N.O. The Developer specifically represents that to its knowledge all property
dedicated (both in fee simple and as easements) to the City associated with this
Development (whether on or off-site) is in compliance with all environmental protection
and anti-pollution laws, rules, regulations, orders or requirements, including solid waste
requirements, as defined by the U. S. Environmental Protection Agency Regulations at
40 C.F.R., Part 261, and that such property as is dedicated to the City pursuant to this
Development, is in compliance with all such requirements pertaining to the disposal or
existence in or on such dedicated property of any hazardous substances, pollutants or
contaminants, as defined by the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and regulations promulgated
thereunder. The Developer, for itself and its successor(s) in interest, does hereby
indemnify and hold harmless the City from any liability whatsoever that may be imposed
upon the City by any governmental authority or any third party, pertaining to the disposal
of hazardous substances, pollutants or contaminants, and cleanup necessitated by
leaking underground storage tanks, excavation and/or backfill of hazardous substances,
pollutants or contaminants, or environmental cleanup responsibilities of any nature
whatsoever on, of, or related to any property dedicated to the City in connection with this
Development, provided that such damages or liability are not caused by circumstances
arising entirely after the date of acceptance by the City of the public improvements
constructed on the dedicated property, except to the extent that such circumstances are
the result of acts or omissions of the Developer. Said indemnification shall not extend to
claims, actions, or other liability arising as a result of any hazardous substance, pollutant ,
or contaminant generated or deposited by the City, its agents , or representatives, upon
the property dedicated to the City in connection with this Development. The Cit y agrees
to give notice to the Developer of any claim made against it to which this indemnity and
hold harmless agreement by the Developer could apply, and the Developer shall have
the right to defend any lawsuit based on such claim and to settle any such claim provided
the Developer must obtain a complete discharge of all City liability through such
settlement. Failure of the City to give notice of any such claim to the Developer within
ninety days after the City first receives a notice of such claim unde r the Colorado
Governmental Immunity Act for the same, shall cause this indemnity and hold harmless
agreement by the Developer to not apply to such claim and such failure shall constitute a
release of this indemnity and hold harmless agreement as to such c laim.
O.P. The Developer acknowledges and agrees that the City, as the owner of any
adjacent property (the “City Property”) on which off -site improvements may be
constructed, or that may be damaged by the Developer’s activities hereunder, expressly
retains (and does not by this Agreement waive) its rights as property owner. The City’s
rights as owner of the City Property may include without limitation those rights associated
with the protection of the City Property from damage, and/or the enforcement of
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Developer Draft #1 7.17.24
restrictions, limitations and requirements associated with activities on the City Property
by the Developer as an easement recipient.
P.Q. If the Developer or contractor or any agent or representative thereof causes
damage to any public infrastructure (including without limitation, any surface pavers,
flagstones, or other stone or concrete surfaces, planters, street and decorative lights, or
canopies) such damage shall be promptly repaired with the same kind, quality, color,
serviceability and material composition aspects as was possessed by the infrastructure
damaged, unless otherwise expressly agreed to by the City in writing.
Q.R. Future development of any lottract(s) within the Property shall require the
Developer or its successor(s) in interest to enter into a new development agreement(s)
with the City governing the development of such lottract(s). The Developer or its
successor(s) in interest and the City may enter into a new development agreement(s)
without amending this Agreement and without the consent of other parties to this
Agreement other than the City, as long as the new development agreement(s) does not
alter or otherwise contradict the provisions of this Agreement that are applicable to the
other parties.
R.S. A determination of adequacy for the supply of potable and non -potable
water, where applicable, has been found by the City based on evidence and information
provided by the Developer and the water service provider, as required by the Land Use
Code. Any change in the water supply or demand (I.e., changes in land use or
landscaping) may be subject to revision of that finding, and a review of the water supply
requirements by the water service provider.
S.T. Prior to final acceptance of improvements and release of final guarantee,
the Developer shall ensure that all land, improvements, and facilities intended to be
owned, operated, and maintained by one or more owners associations or metropolitan
districts, are fully conveyed to the appropriate entity. With such conveyance, a copy of all
final or as-built drawings for any development, construction, building , and landscaping
plans, and operations and maintenance plans, manuals, and other information shall be
provided by the Developer to said entities, to include but not be limited to: stormwater
facilities, private drives, parking areas, open space, parks, trails, natural hazard buffer
zones, and irrigation systems.
T.U. Landscaping, watering and maintenance in public right-of-way shall be the
responsibility of the Developer pursuant to Paragraph II.G.2 below. { unless specified
otherwise in the Final Development Plan Documents and/or the Special Conditions
section of this Agreement}
II. Special Conditions
Commented [JPK8]: The development does include
several Tracts for Future Development. Should this also
include "future redevelopment of any lot(s)"?
Commented [JPK9]: Please clarify what problem you are
trying to address with this section; "any change" seems
vague and a change in landscaping seems like a pretty minor
change to trigger a re-review.
Montava Phase D
Developer Draft #1 7.17.24
A. Public Benefits Agreement (when applicable – MD &/or PUD)
1. The Developer acknowledges the current agreement with the
City for required public benefits as outlined in the Public
Benefit Agreement for XXX [Development name], dated
___________, and recorded at Reception No.
_______________recorded at Reception No.
_______________.This Agreement is meant to effectuate
certain requirements contained within the Public Benefits
Agreement and is not intended to alter or otherwise
supersede the terms of the Public Benefits Agreement. In the
event of a conflict between this Agreement and the Public
Benefits Agreement, the Public Benefits Agreement shall
control.
1.2. This Development, or portion thereof, is in alignment
with requirements of that the Public Benefits aAgreement, and
more specifically satisfies the following required community
benefits as stated in sections X and Y of the Public Benefits
Agreement:
3. Housing:Non-Potable Water System: Pursuant to Section I.G.
of the Public Benefits Agreement, the Developer is providing
a system of irrigation wells supplemented by other water
sources as needed to supply and transport irrigation water for
landscaping of common areas and private yards of Feasible
Residential Units within the PUD Master Plan (the “Non -
Potable Water System”).
a. The City will not be required to issue a building permit
for any residential structure within the boundaries of the
Development, until the City has approved the Non-Potable
Water System plans for the Development pursuant to all
applicable City ordinances, regulations, standards and
policies therefor and such plans shall also be in compliance
with all applicable county, state and federal laws and
regulations therefor.
b. Prior to the issuance of a certificate of occupancy for
any residential structure in the Development, the portion of the
Non-Potable Water System needed to serve the Development
shall have been installed in accordance with such plans and
approved by the City to the extent required by applicable City
ordinances, regulations, standards and policies.
4. Urban Agriculture Development: Pursuant to Section I.E. of
the Public Benefits Agreement, the Developer shall donate,
sell or lease long-term the approximately 47-acre portion of
the PUD Master Plan designated as the Farm Parcel to an
Commented [JPK10]: The language of this Paragraph II.A
came primarily from the agreed-upon language regarding
Public Benefits in Paragraph II.I of the Phase G DA.
Commented [JPK11]: The recording information was
moved to the applicable recital.
Montava Phase D
Developer Draft #1 7.17.24
entity at a substantially discounted amount and consistent
with the terms of the Public Benefits Agreement to be used
solely for Urban Agriculture uses prior to the issuance of any
building permit within the Development Property as such term
is defined in the Public Benefits Agreement.
2.5. Zero Energy Ready Homes: Prior to the issuance of the
certificate of occupancy for each single-family detached,
single-family attached, two-family, two-family-attached and
multi-family dwelling unit in the Development, the City shall be
provided written certification that each such dwelling unit
complies with the stricter of either (i) the Federal Department
of Energy’s “Zero- Energy Ready Home” standard in effect on
December 11, 2020 or (ii) City legislatively -imposed energy
efficiency or construction standards on new residential
construction throughout the City adopted at least ninety (90)
days prior to the submittal of the relevant building permit
application, pursuant to Section I.F. of the Public Benefits
Agreement.
3.6. Other:Affordable/Workforce Housing: Every dwelling
unit within the Development that qualifies as Affordable
Housing or Workforce Housing shall be counted as a
Required Affordable Unit pursuant to Section I.H. of the Public
Benefits Agreement.
B. Water Lines
Not Applicable {delete if there are paragraphs}
{sample paragraphs – use and modify as necessary}
1. Notwithstanding anything in this Agreement to the contrary,
the Development will be provided potable water service from
the Fort Collins-Loveland East Larimer County Water District
(“Water District”), and all water line improvements shall be
installed and inspected in accordance with the Water District’s
regulations and the approved plans therefor.
2. The Developer shall reimburse the City at the rate of $16.00
per front foot plus an inflation factor for the cost of installation
of the 16” water line in Horsetooth Road adjacent to the
Development. The inflation factor shall be calculated based
upon the Construction Cost Index for Denver as published in
the Engineering News Record of April 13, 1989. Said
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reimbursement shall be paid prior to the issuance of the first
building permit.
3. The City will be constructing a water line in County Road 9
during the summer of 1996. The Developer shall be obligated
to reimburse the city for the cost of the Developer’s
proportionate share of said water line. The amount to be
reimbursed shall be determined at the time of completion of
said water line installation and in accordance with the
provisions of Section 26-121 of City Code. The Developer
shall reimburse the City prior to the issuance of the first
building permit following the issuance of an invoice by the city
to the Developer for said amount or prior to the issuance of
more than 25 building permits, whichever comes first.
C. Sewer Lines
Not Applicable {delete if there are paragraphs}
{sample paragraph – use and modify as necessary}
1. Notwithstanding anything in this Agreement to the contrary,
the Property will be provided sanitary sewer service from the
South Fort Collins Boxelder Sanitation District (“Sewer
District”), and all sewer line improvements shall be installed
and inspected in accordance with the Sewer District’s
regulations and the approved plans therefor.
D. Storm Drainage Lines and Appurtenances
1. The Developer agrees to provide and maintain erosion and
sediment control improvements as shown on the Final
Development Plan Documents until all disturbed areas in and
adjacent to this Development's construction activities are
stabilized. The Developer shall also be required to post a
security deposit in the amount shown in the Final
Development Plan Documents prior to beginning construction
to guarantee the proper installation and maintenance and,
upon completion, removal of the erosion and sediment control
measures shown on the Final Development Plan
Documents. Said security deposit(s) shall be made in
accordance with the criteria set forth in the Stormwater
Criteria Manual referenced at City Code § 26-500 and in the
Dust Prevention and Control Manual referenced in City Code
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§ 12-152, hereinafter the Stormwater Criteria Manual and the
Dust Prevention and Control Manual shall be collectively
referred to as the “Criteria .” When said security deposit(s) is
a letter of credit or a bond the Developer shall replace the
security no later than 30 days before its expiration date. If the
security posted by the Developer is a Letter of Credit, and
such letter has not been replaced or renewed within 30 days
of its expiration date, the City may elect to draw and hold the
funds as it sees fit. The City shall have the option in any case
to also withhold building permits and cert ificates of
occupancy, as stated in Paragraph III.D of this Agreement, as
it deems necessary in order to ensure that at all times the
Developer is maintaining appropriate levels of security to
guarantee completion of the erosion and sediment control
improvements. If, at any time, the Developer fails to abide by
the erosion control provisions of the Final Development Plan
Documents or the erosion control provisions of the Criteria
after receiving notice of the same or an emergency situation
exists which would reasonably require immediate mitigation
measures, then, in either event, and notwithstanding any
provisions contained in Paragraph III.J to the contrary, the
City may enter upon the Property for the purpose of making
such improvements and undertaking such activities as may
be necessary to ensure that the provisions of said plans and
the Criteria are properly enforced. The City may apply such
portion of the security deposit(s) as may be necessary to pay
all costs incurred by the City in undertaking the administration,
construction, and/or installation of the erosion control
measures required by the Final Development Plan
Documents and the Criteria. In addition, the City shall have
the option to withhold building permits and certificates of
occupancy, as stated in Paragraph III.DC of this Agreement,
as it deems necessary in order to ensure that the Developer
installs, maintains, and ultimately removes the erosion and
sediment control measures throughout the build-out of this
Development. When identified, any violations of applicable
laws, regulations, or policies regarding erosion and sediment
control are to be corrected immediately per Part I.D.8 of the
Developer’s Colorado Discharge Permit System (“CDPS”)
Permit for Stormwater Discharges Associated with
Construction Activity as required by the Colorado Department
of Public Health and Environment (“CDPHE”), City Code § 26-
498, Water Quality Control, and City Code § 12-153,
Commented [JPK12]: Confirm internal references.
Commented [JPK13]: Confirm internal references.
Commented [JPK14]: Confirm internal references.
Montava Phase D
Developer Draft #1 7.17.24
Prevention of Fugitive Dust Emissions. If no CDPS Permit is
required, violations of any applicable laws, regulations, or
policies regarding erosion and sediment control are to be
corrected immediately as required by the CDPHE and the
Environmental Protection Agency (EPA) in accordance with
the Clean Water Act, City Code § 26 -498, Water Quality
Control, and City Code § 12-153, Prevention of Fugitive Dust
Emissions. Failure to correct any violation shall prevent the
Developer from building in any future phases until fully
corrected. Upon stabilization of the disturbed areas, and upon
the request of the Developer, the City will confirm that the
Property is stabilized from potential erosion and sediment
discharges and fugitive dust emissionscontrol discharges
from resulting from construction activities and that all
temporary erosion and sediment and dust control measures
used by the Developer are removed. In confirmation by the
City that the Property is stabilized, any remaining portions of
the security deposit that is associated with the adequate
maintenance of erosion and sediment control improvements
shall be returned.
2. {Insert Stormwater’s language here}
E. Floodplain
1. Portions of this property {or lots _____} are located in the
_______100-year floodplain {and floodway}. The Developer shall obtain a Floodplain Use
Permit from the City and pay all applicable floodplain use permit fees prior to commencing
any construction activity (building of structures, grading, fill, detention ponds, bike paths,
parking lots, utilities, landscaped areas, flood control channels, etc.) within the _____
Floodplain Limits as delineated on the Final Development Plan Documents for this
Development. All activities in this Development are subject to the requirements of
Chapter 10 of the City Code.
All structures in the 100-year floodplain shall be built in accordance with the Floodplain
Protection Detail and in accordance with stated elevations as shown on _______ of the
Final Development Plan Documents for this Development. This includes elevating the
lowest floor and all HVAC, electrical, and mechanical to the regulatory flood protection
elevation, which is __ ft. above the 100 -year flood elevation. The regulations stipulate that
basements shall be expressly prohibited in any structure built on any of these lots.
2. A FEMA elevation certificate shall be submitted and approved, prior
to the issuance of a certificate of occupancy for any structure that is located in the 100 -
year floodplain. Said certification shall be submitted to the City at least two weeks prior to
Commented [JPK15]: This looks like leftover City
blacklining.
Commented [JPK16]: Discussions are still underway with
Stormwater.
Commented [JPK17]: Phase D is not in the Floodplain or
Floodway.
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Developer Draft #1 7.17.24
the date of issuance of the desired certificate of occupancy.
At-risk population, essential services, hazardous material or government services critical
facilities are prohibited in the 100 -year floodplain as delineated on the approved plans.
Failure to comply with all floodplain requirements in sections _____ above shall result in
a stop work order and/or the withholding of the issuance of additional building permits
and/ or certificates of occupancy until the violation(s) are corrected and approved by the
City in accordance with Chapter 10 of City Code. {This should be the last note.}
For properties that may have upcoming mapping changes (i.e LOMR, City Map Revision,
new floodplain maps, etc.):
The requirements in effect at the time of a building permit must be met for work under the
permit, in addition to any requirements set forth in this development agreement, which
may be more restrictive.
Floodway
For no construction in the floodway:
1. No construction activities shall be undertaken within the ______ Floodway
as delineated on the Final Development Plan Documents. The developer shall stake the
floodway in the field prior to commencing any site work. The floodway is considered a
no-disturbance area.
The area encompassed within the floodway limits cannot be used during
construction for equipment storage, material storage, or temporary storage of fill dirt.
Failure to comply with such a condition shall result in the stoppage of work on the site,
withholding of building permits and/or certificates of occupancy in this Development and
all other applicable City floodplain and floodway regulations.
For construction in the floodway:
2. An approved no-rise certification must accompany the floodplain use
permit for construction elements within the floodway portion of the floodplain. An as -built
no-rise certification signed by a registered professional engineer in the State of Colorado
is required for construction elements within the floodway portion of th e floodplain. Said
certification shall be submitted to the City at least two weeks prior to the desired date of
approval. The as-built no-rise certification shall be submitted and approved prior to
approval of the overall drainage site certification.
No fill shall be placed in the floodway. All fencing in the floodway shall be break -away,
Montava Phase D
Developer Draft #1 7.17.24
including any construction fencing.
For future development after a map change:
3. Lots ____are located in the _____ floodway and shall not be
developed, including construction of fencing, until such time as they are removed from
the floodway by a map revision. At the time the floodway is removed, the structures must
comply with any requirements of Chapter 10 of the City Code based on the floodplain
delineations effective at time of construction.
CLOMR/LOMR
4. CLOMR xx-xx-xxxx was approved by FEMA prior to signing of the
Final Development Plans and prior to commencing any construction activity within the
_______ Floodway. A LOMR must be approved by the City and submitted to FEMA prior
to issuance of the Certificate of Occupancy for the building.
For any buildings planned in the effective floodway, no building permits shall be issued
for structures until approval of the LOMR by the City and by FEMA for this project.
Floodproofing and Venting
5. The developer must submit and receive approval of the floodproofing
design, including a Pre-Construction Floodproofing Certification prior to approval of the
floodplain use permit. The Developer must submit an as -built Floodproofing Certificate
in order for a Certificate of Occupancy to be released. Said certification shall be submitted
to the City at least two weeks prior to the date of issuance of the desired certificate of
occupancy. The developer is responsible for all operation and maintenance of the
floodproofing design measures.
This project utilizes permanent flood vents to equalize water pressure on the walls of the
building. The developer is responsible for the maintenance of these vents and to make
sure they are free from blockage such that they may function properly during a flood
event. Any vented area is to be used only for parking and storage.
Poudre River
Montava Phase D
Developer Draft #1 7.17.24
6. The construction staging area, including all storage of equipment and
materials shall be located outside the ____________ 100-year floodplain limits as
delineated on the approved plans.
All floatable materials (picnic tables, bike racks, tables, chairs, trash dumpsters, etc.) in
the 100-year floodplain shall be anchored to prevent floatation. There shall be no
overnight parking of unattended vehicles (i.e. fleet vehicles) in the 100 -year floodplain.
At-risk population or essential services critical facilities are prohibited in the 100 -year or
500-year floodplain as delineated on the approved plans. In addition, hazardous material
or government services critical facilities are prohibited in the 100 -year floodplain as
delineated on the approved plans.
The developer is required to submit an Emergency Response and Preparedness Plan for
each structure in the 100-year floodplain prior to approval of the floodplain use permit. It
is the responsibility of the building owner to submit the annual review and conduct practice
drills in accordance with the requirements in Chapter 10 of City Code.
Bank Stabilization – River Work
7. No work including but not limited to the placement of coffer dams or
equipment and machinery accessing or operating in the river shall take place in the
channel of the Poudre River from April 15th – September 30th due to flood concerns.
City Stormwater must be notified prior to the commencement of the bank stabilization
work. City staff will be making periodic inspections of the bank stabilization construction.
The Flood Control Channel and erosion revetment features shall be constructed per
manufacturer’s specifications and Final Development Plan documents. The Developer
shall maintain Flood Control Channel per Final Development Plan documents and
CLOMR-approved support materials. The Developer shall irrigate the Flood Control
Channel vegetation until full establishment as determined by City Officials. Irrigation shall
continue for no less than 2 years. If mowing is desired, the Developer shall not mow Flood
Control Channel to height of less than 6 inches.
Erosion Buffer
8. Any work that is not specifically allowed within the erosion buffer
per Chapter 10 of City Code is required to have an Erosion Buffer Waiver approved by
the Utilities Executive Director prior to starting construction within the buffer.
Montava Phase D
Developer Draft #1 7.17.24
Any work within the Erosion Buffer zone is required to minimize disturbance of channel
bed, bank, vegetation, etc.
Variance
9. All conditions of any floodplain variance approved by the Water
Board on _______for construction of __________shall be met.
Other
The developer shall submit anchoring designs showing the structures are able to
withstand the depths, velocities, and the impact of potential debris.
F.E. Streets
{use if street oversizing reimbursement is due}
1. Subject to the conditions of this Agreement, the City agrees to
reimburse the Developer for oversizing public street improvements along {put street
name(s) in here} for those portions of said street abutting the Property as shown on the
Final Development Plan Documents. Reimbursement for {put street name(s) in here}
shall be for increasing the streets and/or sidewalks width {or indicate specifics if not all,
i.e. sidewalk} from local access standards to {indicate type of street, minor arterial ,
collector, etc.} standards {add right-of-way portion only if applicable} and for the cost of
the right-of-way necessary to accommodate the expansion of such street and sidewalk .
The City shall make reimbursement to the Developer for the aforesaid oversized street
improvements in the manner provided in and in accordance with City Code Section 24 -
112. As identified in City Code, the City shall not participate in the cost of trans portation
improvements required solely for the special use and benefit of the Development required
by the transportation impact study for the Development, or by the City Traffic Engineer.
The Developer acknowledges that the City shall have no obligation to make
reimbursement payments for street oversizing unless funds for such payments are
budgeted and appropriated from the transportation improvements fund by the City
Council. The Developer does hereby agree to construct the aforesaid oversized street
improvements with the understanding that the Developer may not be fully reimbursed by
the City for the cost of such construction. The Developer further agrees to accept
payment in accordance with City Code Section 24-112(d) as the full and final settlement
and complete accord and satisfaction of all obligations of the City to make
reimbursements to the Developer for street oversizing expenses.
{use when reimbursement paragraph (#1) is used}
Montava Phase D
Developer Draft #1 7.17.24
2. It is understood that the improvements that are to be constructed in
the public right-of-way as described in this Section II.D are “City improvements” (as
defined below) and, as such, any contract for the construction of the same must be
executed in writing. If the cost of such improvements exceeds the sum of $60,000, the
contract for the construction of the same must be submitted to a competitive bidd ing
process resulting in an award to the lowest responsible bidder; and evidence must be
submitted to the City prior to the commencement of the work showing that the award was
given to the lowest responsible bidder. If the cost of such improvements exceeds
$100,000, the contract for the construction of the improvements must be insured by a
performance bond or other equivalent security. For purposes of this Paragraph, the term
“City improvements” shall mean either (1) existing improvements owned by the City that
are to be modified or reconstructed, or (2) any improvements funded in whole or in part
by the City.
{use if NO street oversizing reimbursement is to occur}
3.1. No street oversizing reimbursement from the City is due the
Developer for this Development.
{use if a reimbursement is due the City - modify as necessary}
4. The Developer agrees to reimburse the City the sum of , plus
a percentage added to recognize the effects of inflation, for the cost to construct
adjacent to the Property. The inflation factor shall be calculated
using the construction cost index for Denver as published in the Engineering News
Record (ENR) of ,200_, and the same index published in the ENR in the month
preceding payment of the reimbursement, as delineated in subsection 5.b. of this section.
Payment shall be made to the City prior to the issuance of the first building permit.
{use if the developer is delaying a portion of a road ($ amount known) – modify as
necessary}
5. In accordance with Section 24-95 of City Code the Developer is
responsible for constructing the portion of {name of road} adjacent to the site prior to the
issuance of the first building permit. Notwithstanding the foregoing, the Developer has
designed the project so that the local curb, gutter, pavement, sidewalk and parkway for
{name of road} will be postponed by delivering to the City a cash deposit sufficient to
guarantee completion of the design and construction o f the improvements. {OR}>>>shall
have the option to postpone this {name of road} construction (except for the sidewalk) by
delivering to the City a cash deposit sufficient to guarantee completion of the design and
construction of the improvement necessary for {name of road} to meet City design
standards. The amount of said funds shall be $____, the estimated cost to design and
construct said improvements, including but not limited to the future inlet, stormdrain line,
pavement, subgrade, curb, gutter, sidewalk ramps, and right-of-way plantings and
Montava Phase D
Developer Draft #1 7.17.24
irrigation. Said amount shall be deposited with the City prior to the issuance of any
building permit for this Development.
a. If any fee is paid by the Developer after the year {year}, the
Developer agrees to pay the amount specified above plus an
additional amount to be calculated as described below to
recognize the effect of inflation, with said amount to be
increased each year until payment is completed in full. Upon
payment of each fee required under this Subsection, the
Developer’s obligation to pay its share of the {name of road}
improvements in conjunction with this Development shall be
satisfied.
b. The inflation factor (Inf. Fac.) for each year’s increase in the
amount of the fee shall be calculated using the construction
cost index for Denver as published in the Engineering News
Record (ENR) for {current month and year}, as the base index
(I-base) and the same index published in the ENR in the
month preceding payment (I-year of payment). The formula
for calculating said inflation factors shall be as follows:
Inf. Fac. = (I-year of payment) – (I-base)
(I-base)
The amount to be added to the fee to compensate for inflation
shall be equal to the amount of the fee times the inflation
factor. Said amounts added to compensate for inflation shall
not reduce the total (principal) amount due.
c. Any interest earned by the City as a result of said deposit shall
belong to the City.
d. If the Developer is the party that constructs said
improvements, upon completion and acceptance of said
improvements by the City, the City shall return to the
Developer the amount deposited, less three percent of the
total amount remaining. The three percent to be retained by
the City is to cover the costs of administering the deposited
funds. The total amount remaining for calculation of the three
percent shall consist of the amount of the deposit plus accrued
interest.
Montava Phase D
Developer Draft #1 7.17.24
{use if the developer is delaying a portion of a road ($ per local street cost) – modify as
necessary}
6. In accordance with Section 24-95 of City Code the Developer is
responsible for constructing the portion of {name of road} adjacent to the site prior to the
issuance of the first building permit. Notwithstanding the foregoing, the Developer has
designed the project so that the local curb, gutter, pavement, sidewalk and parkway for
{name of road} will be postponed by delivering to the City a cash deposit sufficient to
guarantee completion of the design and construction or the improvements.
{OR}>>>Notwithstanding the foregoing, the Developer shall have the option to postpone
the {name of road} construction from station 10+00 to station 10+13.10, by delivering to
the City a cash deposit sufficient to guarantee completion of the construction of the
improvements and the removal of the interim pan. The amount of said funds shall be the
estimated cost of the removal of the interim improvements in the right-of-way plus the City
adopted Local Street Cost for the year in which the payment is made. The Local Street
Cost is a per linear foot cost estim ate prepared yearly and approved by the City for the
cost to, install the local street portion of a road way. The estimate includes, but is not
limited to the cost of the pavement and subgrade, curb, gutter and 4.5 feet (in width) of
sidewalk, and the parkway landscaping. The removal estimate shall be prepared by the
Developer and approved by the City, plus an additional 25% of the estimate to cover any
contingencies and unexpected costs. The total of the Local Street Cost and removal
costs shall be deposited with the City prior to the issuance of any building permit for this
Development.
a. The improvements to {name of road} shall be constructed at
such time that the City deems the improvements to be
necessary or at such time as improvements are made to
adjacent portions of {name of road}, whichever shall first
occur; provided, however, that the City shall not withhold
building permits or certificates of occupancy on account of
such 13.10 feet of improvements not having been completed
so long as the Developer timely commences and completes
the construction of the remaining street portion as provided
herein and has made the substitutionary payment described
above.
b. Any interest earned by the City as a result of said deposit shall
belong to the City.
c. If the Developer is the party that constructs, or causes the
construction of, said improvements, upon completion and
acceptance of said improvements by the City, the City shall
return to the Developer the amount deposited, less three
percent of the total amount remaining. The three percent to
Montava Phase D
Developer Draft #1 7.17.24
be retained by the City is to cover the costs of administering
the deposited funds. The total amount remaining for
calculation of the three percent shall consist of the amount of
the deposit plus accrued interest.
{use if the developer is delaying a portion of a road ($ amount unknown) – modify as
necessary}
7. In accordance with Section 24-95 of City Code the Developer is
responsible for constructing the portion of {name of road} adjacent to the site prior to the
issuance of the first building permit. Notwithstanding the foregoing, the Developer shall
have the option to postpone the {name of road} construction, with the exception of the
curb, gutter and sidewalk from station 0+00 to station 7+50, by delivering to the City a
cash deposit sufficient to guarantee completion of the design and construction of the
improvements. The amount of said funds shall be the estimated cost of the design and
local street portion of the pavement an d subgrade for the full length of the street (station
0+00 to station 8+32), the fill, curb, gutter and 5 feet (in width) of sidewalk for the
remaining portion of the street for which is not to be constructed at this time (station 7+50
to station 8+32), and two street trees. The estimate shall be prepared by the Developer
and approved by the City, plus an additional twenty-five percent of the estimate to cover
any contingencies and unexpected costs. Said amount shall be deposited with the City
prior to the issuance of any building permit for this Development.
{use when applicable and true}
2. The Transportation Impact Study for Montava Phase D dated June
2024, prepared by Kimley-Horn and Associates, Inc. (the “Phase D TIS”), determined that
the existing off-site intersection of Country Club Road and Lemay Avenue/Gregory Road
(the “CC/Lemay Intersection”) will fail to operate at an acceptable level of serv ice (“LOS”)
during both peak hours in 2027 without the addition of Development traffic. The Phase
D TIS concludes that the Development’s impact to the CC/Lemay Intersection in 2027 will
be equal to 2.2% of the total intersection volume. As required by th e Larimer County
Urban Area Street Standards, it is the Developer’s obligation to mitigate the
Development’s impact to the CC/Lemay Intersection. According to the Larimer County
Country Club Road Corridor Study prepared by Felsburg Holt & Ullevig in Februa ry, 2023
(the “County Study”) and the Phase D TIS, design and installation of a single-lane
roundabout at the CC/Lemay Intersection (the “Roundabout”) by the County would
improve the operation of the CC/Lemay Intersection to an acceptable LOS.
8. It is agreed therefore that the Developer’s mitigation of its impact shall be a lump
sum payment to Larimer County in the amount of $_____________ which represents the
Development’s 2.2% share ($____________) plus the cost of inflation and design of the
Roundabout. It is further agreed by the City that the Developer, by providing said lump
Commented [JPK18]: This language for Phase G was sent
to Brad Yatabe on 5.9.24 and 5.13.24. Montava met with the
County on 7.11.24 and we are close to finalizing the amount
of the contribution and the language of this section.
Montava Phase D
Developer Draft #1 7.17.24
sum payment to Larimer County prior to the issuance of the first residential building permit
within the Development, will satisfy the Developer’s obligation to mitigate the impacts of
the Development to the CC/Lemay Intersection. The funds paid to Larimer County may
be used for construction of the Roundabout in the County’s sole discretion
{use in all agreements}
3. The Developer is responsible for designing and constructing
Longwood Drive through the Development to its intersection with Giddings Road in
accordance with the Final Development Plan Documents to provide access to and from
the Development. The City and Developer agree however that the Developer’s
construction of the approved Infrastructure Plans and acceptance thereof by the City prior
to the issuance of the first Certificate of Occupancy in the Development, shall satisfy the
Developer’s obligation to construct the portion of Longwood Drive from Maple Hill Drive
to Giddings Road.
9.4. As identified in Article III, Chapter 23 of City Code (the
“Encroachment Regulations”) no encroachments or obstructions are allowed within the
public rights-of-way without a permit (“Encroachment Permit”). The Developer
understands and acknowledges that if the Final Development Plan Documents now or in
the future, through an amendment process, include any encroachments or obstructions
in the public rights-of-way the Developer shall apply for, meet any requirements or
conditions, and obtain an approved Encroachment Permit prior to the installation of the
encroachment(s).
a. All requirements and conditions as identified on the
Encroachment Permit and identified in the Encroachment
Regulations shall be met and maintained both prior to and
after issuance of the Encroachment Permit. The
Encroachment Permit, which is non -transferable, is issued to
the property owner or to the lessee of the property (with the
property owner’s consent) in which the encroachment is
adjacent to or benefits and the Developer understands that at
such time as ownership of that parcel changes and/or a new
lessee exists (as applicable) a new encroachment permit will
need to be applied for and new liability insurance will need to
be provided by the property owner. The permit is revocable
pursuant to the Encroachment Regulations.
b. The Developer, for itself and its successor(s) in interest, does
hereby release and hold harmless the City from any damages
to the encroachment arising from the City’s actions in
maintaining, repairing and/or replacing the public
Commented [JPK19]: This language is in draft form,
meant to be a placeholder for City review and comment.
Montava Phase D
Developer Draft #1 7.17.24
infrastructure including utilities, except as caused by the City’s
gross negligence or willful misconduct.
c. The City shall have no responsibility for the installation and
maintenance of any encroachment and the Developer, for
itself and its successor(s) in interest, does hereby indemnify
and hold harmless the City from any and all claims that might
arise, directly or indirectly, as a result of the Developer’s
installation or maintenance of any encroachments onto the
public right-of-way.
d. Only public utilities (defined as utilities owned and maintained
by the City and gas utilities owned by Xcel Energy) or utility
providers that have a franchise agreement with the City are
allowed to be installed and located within public rights -of-way
and public easements. Private utilities are allowed to cross
public rights-of-way and easements provided that the crossing
is perpendicular to the public right-of-way or easement, that
sleeves are provided for the crossing in accordance with City
standards, encroachment permits for such crossing are
obtained, and the utility is registered with the utility locate
center. Any private utilities found within public rights -of-way or
easements not meeting the above criteria serving the
Property shall be required to be removed by the Developer at
the Developer’s expense or apply for and obtain an approved
Encroachment Permit. All sleeves across the right-of-way
shall be designed and installed in accordance with City
standards then in effect.
e. If there is any conflict between this provision and the
Encroachment Regulations, then the Encroachment
Regulations will control. The Developer acknowledges that,
as with any regulation, the Encroachment Regulations are
subject to change and Developer agrees to abide by any
changes to the Encroachment Regulations.
10.5. Notwithstanding any provision herein to the contrary, the Developer
shall be responsible for all costs for the initial installation of traffic signing and striping for
this Development, including related to the Developer’s internal street operations and of
any adjacent or adjoining local, collector or arterial streets that is made necessary
because of the Development.
Montava Phase D
Developer Draft #1 7.17.24
6. Following completion of all public infrastructure improvements, the
Developer shall continue to have responsibility for maintenance and repair of said
improvements in accordance with the Land Use Code.
11.7. Notwithstanding that the Non -Potable Irrigation System installed by
the Developer will be the source of irrigation water for the common spaces within the
Development and that City water will not be utilized, the Developer agrees to submit its
irrigation plans for such common spaces to the City prior to the City’s first acceptance of
the public improvements for the Development for review by the Director. Developer
further agrees that such irrigation plans shall incorporate the City of Fort Collins Irrigation
System Standards for Water Conservation.
G.F. Natural Resources –
Not Applicable {delete if there are paragraphs and insert Natural Resources
language}
1. The Final Development Plan Documents identify areas
within the Property which are not to be disturbed in order to prevent environmental
damage to the natural habitats or features (“Natural Habitat Buffer Zone” or
“NHBZ”). Neither the Developer nor its contractor shall intrude upon, remove, fill,
dredge, build upon, degrade or otherwise alter natu ral habitats and features
delineated on the Final Development Plan Documents, except for the limited
purposes allowed within the Final Development Plan Documents. These activities
are allowable under Land Use Code §3.4.1(E). The City’s Environmental Planne r
shall periodically inspect the Property to ensure compliance with the NHBZ
requirements established in the Final Development Plan Documents.
2. The Developer shall ensure that all landscaping and
restoration activities within the Natural Habitat Buffer Zone are properly
maintained for a three (3) year-minimum period following construction thereof to
ensure that the vegetation is fully established and maintained in accordance with
the Adaptive Management and Restoration Plan attached to this Development
Agreement as Exhibit “y”.
3. Prior to the issuance of a Development Construction Permit
(DCP), the Developer shall provide the City an acceptable form of security
(escrow, bond, or letter of credit) to guarantee completion of the NHBZ landscape
improvements that meets City standards for acceptability. The security must
match the cost of mitigation, restoration, and landscape improvement efforts,
which shall include plant material and irrigation system improvements, weed
management, and a minimum of three years of monitoring and annual reporting
equal to 125% of the cost to be held until said improvements are constructed and
accepted by the City. The City shall return the security to the Developer upon the
Developer’s installations of the landscape improvements and the City’s
Commented [JPK20]: This was discussed with planner,
Kim Meyer, and we agreed to this language..
Montava Phase D
Developer Draft #1 7.17.24
Environmental Planner acceptance thereof. If the seeded areas have not been
established in accordance with the Final Development Plan Documents, then the
Developer shall promptly provide the City’s Environmental Planner with a written
proposal of steps and timing to bring the areas into conformance with such
Documents for the City’s approval and, after receipt of approval shall promptly
take such steps as are necessary to implement the approved plan and bring the
areas into conformance. If the Developer does not take action to bring any and all
NHBZ areas and plantings into conformance with the approved Final
Development Plan documents, the City shall use the security provided by the
Developer to install said NHBZ landscape improvements and the Developer
forfeits any right to the security.
4. The areas of the Development that are planned to be
seeded shall be inspected jointly by the Developer and the City at specified
intervals for a minimum of three (3) growing seasons or until determined by the
City to be well established in accordance with the coverage specifications of this
paragraph, whichever occurs first. The NHBZ success criteria are as follows:
(1) The total vegetative ground cover contributed by all desirable plant
species (excepting mature trees) is equal to or greater than the desirable
vegetative cover of the applicable reference area(s) from that calendar
year,
(2) No more than five percent (5%) of the species noted on the site may
be weedy or noxious species as defined by City Code Section 20 -41 and
Colorado Department of Agriculture’s Noxious Weed List as defined by the
Colorado Noxious Weed Act §§35-5.5,
(3) The development site shall display no evidence of detrimental erosion
due to rills, gullies or excessive bare spots of ground,
(4) Survival rate of all planted shrubs and trees is equal to or greater than
eighty percent (80%), and
(5) Any diversity standards applied according to the City Environmental
Planner’s discretion. Diversity standards should be reflective of the
reference area or target habitat conditions provided by the City.
Total vegetative ground cover and diversity standards (if applicable) will be
determined using a reference area approach, where the reference areas are
representative of the target vegetative community(ies) and are selected by the
City Environmental Planner. The total vegetative ground cover of the applicable
reference area(s) will be measured annually at the end of the growing season
(late summer to early fall) to the point of demonstrating sample adequacy in
order to provide an accurate level of vegetative cover reflective of local climatic
conditions. Acceptable desirable total vegetative cover of the NHBZ cannot be
less than 40%. Determination of required coverage of the NHBZ will be
measured using a line point intercept method with a number of transects
approved by the Environmental Planner across the target habitat type(s) present,
Montava Phase D
Developer Draft #1 7.17.24
distributed either randomly or on a grid-based pattern, to gain an adequate
representation of the seeded areas.
The Developer shall be responsible for weed control at all times and as
prescribed by the Weed Management Plan (Appendix A of Exhibit “y”). The
Developer shall warranty all seeded areas for three (3) growing seasons
minimum from the date of completion. The Developer shall rework and reseed
per original specifications any areas that are dead, diseased, contain too many
weedy species, or fail to meet the coverage requirement at no additional cost to
the City.
Temporary irrigation systems intended to assist the establishment of native
seeding efforts within the NHBZ may only be used for the first two growing
seasons after which any temporary irrigation systems supporting the
establishment of native seeding efforts within the NHBZ must be removed by the
Developer prior to the release of the NHBZ security.
5. The Developer shall provide an Adaptive Management and
Restoration Plan/Wetland Mitigation/etc. that encompasses revegetation techniques,
monitoring methodology and timeline, and weed management before, during, and
after construction, included in Exhibit “y” of this Development Agreement, prepared
by a qualified natural resource professional and reviewed and approved by the City’s
Environmental Planner.
6. The Developer shall provide a Wildlife Management Plan (Appendix
C of Exhibit “y”) that guides nesting raptor/tree protection standards and any
seasonal restrictions associated with the NHBZ, prairie dog mitigation efforts, and
any songbird nesting survey guidelines.
7. Prior to the commencement of grading or other construction on the
development site, burrowing owl surveys will be conducted by a qualified wildlife
biologist according to Colorado Parks and Wildlife Division recommended protocols.
If the site is cleared of burrowing owls, then prairie dogs inhabiting the site will be
removed according to methods approved by the City Environmental Planner. The
removal must be verified through an onsite inspection by the City Environmental
Planner.
8. Prior to issuance of DCP the Developer shall submit a payment in
lieu fee of $xxx.xx to the City of Fort Collis for prairie dog mitigation to the Natural
Areas Department.
9. The red-tailed hawk nest identified by the Wildlife Management
Plan will be monitored during the nesting season (February 15 - July 15) for nesting
activity. Construction activities will be suspended within the buffer identified on the
development plans if active nesting is observed. Any damage to the nest tree shall
be subject to an appraisal of the damages and a payment in lieu fee to the Natural
Areas Department.
Montava Phase D
Developer Draft #1 7.17.24
10.3. At the time that a homeowners association (HOA) is formed,
the Developer will ensure that the HOA is adequately informed of the NHBZ
establishment process and long-term maintenance requirements.
1. The Parties agree, in accordance with LUC Section 3.4.1.C.4, for the
isolated nonjurisdictional wetland swale within the Property, Tract GG of the Development
will include wet meadow/riparian areas equal to or greater in total size than the area of
the impacted wetland (“Natural Features”), which Natural Features are considered to be
an enhancement over the existing low-quality wetland swale. The Parties further agree
that the Natural Features described in this Paragraph II.F.1 satisfy the City’s Natural
Habitat and Features requirements and standards for the Development in LUC Section
3.4.1.
2. The Developer or its assignees, including the applicable Montava
Metropolitan District, shall be responsible for installation, repair, replacement and
maintenance of the Natural Features and all other landscaping and plantings in the
Development in accordance with the requirements of the Final Development Plan
Documents.
3. Security for erosion control purposes will be provided by the
Developer to the City for the Natural Features pursuant to Paragraph II.D.1. The City’s
Environmental Planner will participate in City decisions regarding the release of such
security and the Developer has no objection to such participation.
4. Developer has provided weed management and native seed mix
notes (see Sheets L23 and L24 of the Final Development Plan Documents) that detail a
Stepwise Approach to installation and maintenance to ensure that the benefits of the
Natural Features are realized long term. Compliance with the requirements of the Final
Development Plan Documents will be a requirement of the applicable Montava
Metropolitan District when it assumes the obligation to maintain the Natural Features.
5. A ground clearance nest survey shall be conducted one week prior
to construction to determine if any active nests are present so that the nests can be
avoided.
1.6. Fueling facilities shall be located at least one hundred (100) feet from
any natural body of water, wetland, natural drainage way or manmade drainage way. The
fuel tanks and fueling area must be set in a containment area that will not allow a fuel spill
to directly flow, seep, run off, or be washed into a body of water, wetland or drainage way.
Fueling facilities not in compliance shall be moved at the Developers expense.
2. The Developer shall delineate the Development’s property boundary
adjacent to all Limits of Development (L.O.D.) as defined by Land Use Code Section
5.1.2 and Section 3.4.1(N), including boundaries around existing trees that are to be
undisturbed, with orange construction fence prior to any type of construction, including
over lot grading.
Commented [JPK21]: This approach tracks with the
approach taken in Phase G: no NHBZ required, but
StepWise methodology required and incorporated into the
Landscape Plan.
Commented [JPK22]: Confirm internal reference.
Commented [JPK23]: This is a requirement of the Phase
D ECS.
Montava Phase D
Developer Draft #1 7.17.24
G. Park Planning and Development
1. The City and the Owner are in negotiations regarding the City’s
purchase of a future community park site within the PUD Master Plan (“Future Community
Park”) and the City’s shared use of the Non -Potable Water System described in
Paragraph II.A.2. of this Agreement for irrigation of the Future Community Park. Park
Planning’s participation in the cost of installation and maintenance of the Non -Potable
Water System shall be in accordance with the terms of such purchase and sale
agreement and/or the water services agreement between the City and the Owner.
Reference to the completion of such negotiations is for informational purposes and is not
a condition precedent upon which this Agreement is contingent.
2. Notwithstanding Section 24-42(A) of the Municipal Code, or anything
else to the contrary, the applicable Montava Metropolitan District (or its assigns) shall be
responsible for the operation and maintenance of any parkway, as defined in Section 24 -
6 of the Municipal Code, between a property owner’s property line and the edge of the
adjacent local or collector street.
H. Forestry
{Insert the following language for projects with existing/proposed street
trees}
A Street Tree Permit must be obtained from the City Forester pursuant to
City Code, before any trees noted on the Final Development Plan
Documents are planted or pruned on, or removed from, any public right -of-
way or City property. This includes areas between the sidewalk and curb,
medians, and other City property. The City may withhold any certificate of
occupancy for the Development if the Developer fails to obtain a Street
Tree Permit, until the Developer obtains said permit and the planting,
pruning, and removal of trees or shrubs on or from the public right -of-way
or City property is in compliance with the Street Tree Permit and Final
Development Plan Documents. In addition to withholding any certificate of
occupancy, the City may avail itself of any other legal remedy provided by
law for the failure to obtain a Street Tree Permit. As a condition of the
Street Tree Permit and of this Agreement, at least one week prior to
planting any trees the Developer shall: (1) allow City Forestry Division staff
to inspect the proposed planting sites to review compliance with the Final
Development Plan Documents and applicable regulations; and (2) allow
City Forestry Division staff to inspect and approve, at the nursery if
possible, all trees to be planted. City Forestry has the right to reject and/or
substitute any trees that do not meet the Forestry Divisions s tandards.
Existing and new street trees must continue to be watered at a minimum
of forty gallons per week during all construction activities to maintain
current tree condition in temperatures above forty degrees using irrigation
Commented [JPK24]: This is intended as a placeholder.
We need to reference Park Planning's obligations but not
restate them.
Commented [JPK25]: Missy advised on 5-28-24 that
Parks will request this language, currently in a plat note, also
be included in the DA. Also see Paragraph I.U.
Montava Phase D
Developer Draft #1 7.17.24
or hauled water sources. If street trees are damaged or die due to lack of
water during construction activities, the developer will be charged the
value of the trees as per appraisal by City Forestry Division Staff .
{Insert the following language for with existing trees to be removed on -
site}
_. All tree pruning and removal on the Property must be done by an
arborist licensed by the City of Fort Collins and the name of such arborist
shall be provided to the City Forestry Division prior to any pruning or
removal commencing. A list of licensed arborists is maintained by the City
Forestry Division and is available upon request or at fcgov.com/forestry.
The use of heavy construction equipment, including but not limited to
excavators, backhoes, and bulldozers, to remove trees is not allowed
without prior Forestry Division written permission.
{Insert the following language for projects with existing trees to be protected and/or
removed on-site}
_. During construction, prior to either DCP issuance or of any
demolition, grading, excavation, or site work commencing on the Property,
whichever occurs earlier, tree protection must be installed around all trees
that are shown to be preserved and protected on the Final Development
Plan Documents and an arborist licensed by the City of Fort Collins must
provide written confirmation to the City that such tr ee protection has been
installed. Required tree protection measures are set forth in Land Use
Code Section 3.2.1(G) and include, but are not limited to, the requirement
that a minimum four-foot-high barrier be erected no closer than six feet
from the trunk or one-half the length to the drip line (i.e. the canopy edge),
whichever is greater.
Prior to landscape work commencing on the Property, the Developer shall
schedule a meeting between City Forestry Division staff and the
landscapers who will perform the work.
Tree protection must be maintained throughout the duration of
construction activities on the Property. At any time during construction,
and upon City Forestry Division written notice that tree protection is not
adequate for one or more trees, the Develope r shall cease construction
activities adjacent to such tree or trees until required tree protection
measures are in place to the satisfaction of the City Forestry Division.
{Insert the following language for projects with trees that Forestry has identified as
having structural}
_. The Developer, for itself and its successors in interest, understands
that the City has identified one or more trees on the Property that have
Commented [JPK26]: Per email from Freddie, this
provision should not be applicable to Phase D Core.
Commented [JPK27]: Per BHA's Existing Tree Inventory
Plan, no existing trees will be protected; all will be removed.
I think that means we can delete this entire section, however,
I wonder if the middle paragraph has broader application and
should be retained based on our conversation with Freddie
on 6/18/24. Forrest and Angie?
Commented [JPK28]: Also per the Existing Tree
Inventory Plan, we are not retaining any trees with structural
damage.
Montava Phase D
Developer Draft #1 7.17.24
structural issues that may result in all or part of such tree or trees to fail
and cause harm to people or property. The Developer has voluntarily
decided to retain such tree or trees. The Developer, for itself and its
successors in interest, does hereby indemnify and hold harmless the City
from any and all claims that might arise, directly or indirectly, as a result of
any tree located on the Property that causes harm to any person or
damage to property.
{Insert the following language for projects with a payment -in-lieu for replacement trees}
_. Pursuant to Land Use Code, suitable locations for planting all
required replacement trees within one -half mile of the Property were not
located and the Developer wishes to submit a payment-in-lieu for such
trees. Prior to issuance of the Development Construction Permit, the
Developer shall submit to the City Forestry Division a payment as
determined by the City Forester for [insert number of replacement
trees] replacement trees.
I. Historic Preservation
1. Rehabilitation: The Developer shall be responsible for completing all
approved and to be approved rehabilitation plans for the historic resources on the
Property, specifically the [name of historic resource] addressed as [address]
according to the exact details as approved by the Historic Preservation
Commission, Historic Preservation Staff and the Planning and Zoning
Commission. The rehabilitation work must proceed in a timely manner and within
three years of the date of this Agreement.
2. Plan of Protection: In the interim, the Developer shall be responsible
for following all prudent measures as outlined in the plan of protection for the
project during on-site construction and in the period of use of the Property, prior to
and following the rehabilitation of the historic building(s), in order to prevent
offenses against the historic resource(s), to comply with minimum maintenance
requirements, and to prevent the development of dangerous conditions. The
Developer shall also be bound by the applicable requireme nts of Chapter 14 of
City Code.
3. Interpretive Signs: The Developer shall be responsible for working
with Historic Preservation Staff to design, manufacture, and install interpretive
signage as approved by the Historic Preservation Commission, Historic
Preservation Staff and the Planning and Zoning Commissi on. The design and
installation work must proceed in a timely manner and within three years of the
date of this Agreement.
Commented [JPK29]: We are not making a payment-in-
lieu of tree mitigation, but we are mitigating per the Existing
Tree Inventory Plan.
Commented [JPK30]: The survey was completed in April
and on 5/10, the City's determination of Not Eligible for
Designation was issued. There are no historic preservation
issues.
Montava Phase D
Developer Draft #1 7.17.24
J. Soil Amendment
In all areas associated with this Development that are to be landscaped or
planted in accordance with the Final BDR Development Plan Documents,
and do not require a building permit, the soils shall be loosened and
amended by the Developer in accordance with Land Use Code § 3.8.21 the
Soil Amendment requirements on Sheet L23 of the Final Development Plan
Documents of prior to the issuance of 47 82 building permits in this
Development. In all areas associated with this Development that are to be
landscaped or planted in accordance with the Final BDR Documents, and
do require a building permit, tThe completion of soil amendments shall
include certification by the Developer as required by City Code §12-132(b)
that the work has been completed in accordance with City Code § 2-132the
Final Development Plan Documents. This certification shall be submitted
to the City for review and acceptance at least two (2) weeks prior to the date
of issuance of any certificates of occupancy in this Developmentas set forth
in the Final Development Plan Documents.
{insert Stormwater language for Soil Amendment}
K. Ground Water, Subdrains and Water Rights
1. The Developer, for itself and its successor(s) in interest, hereby
agrees to indemnify and hold harmless the City against any damages
or injuries sustained in the Development as a result of ground water
seepage or flooding, structural damage , or other damage unless
such damages or injuries are proximately caused by the City’s
negligent operation or maintenance of the City’s storm drainage
facilities in the Development. No language in this Paragraph shall be
construed or interpreted as establishing in any way the City’s liability
for any act or omission and the terms of this Paragraph solely relate
to the Developer’s obligation to indemnify and hold harmless the City.
2. If the Development includes a subdrain system, any such subdrain
system, whether located within private property or within public
property such as street rights-of-way or utility or other easements,
shall not be owned, operated, maintained, repaired , or reconstructed
by the City, and it is agreed that all ownership, operation,
maintenance, repair, and reconstruction obligations shall be those of
the Developer or the Developer’s successor(s) in interest. Such
subdrain system is likely to be located both upon private and public
property and, to the extent that it is located on public property, all
maintenance, operation, repair, or reconstruction shall be conducted
Commented [JPK31]: The City's new DA form did not
include language for this section, so we have inserted and
redlined to the language used in the Phase G DA.
Commented [JPK32]: Preferred soil amendment
procedures for street tree planting areas were agreed to with
Freddie; those specific procedures and the standard
requirements for all other areas are set forth in the Street
Tree Notes and the General Landscape Notes on Sheet L23
of the Landscape Plans.
Commented [JPK33]: 82 is 25% of 331 units.
Montava Phase D
Developer Draft #1 7.17.24
in such a manner that such public property shall not be damaged, or
if damaged, shall, upon completion of any such project, be repaired
in accordance with then existing City standards. The City shall not
be responsible for, and the Developer , for itself and its successor(s)
in interest, hereby agrees to indemnify and hold harmless the City
against, any damages or injuries sustained in the Development as
the result of groundwater seepage or flooding, structural damage , or
other damage resulting from failure of any such subdrain system.
3. Without admitting or denying any duty to protect water rights, the
Developer, for itself and its successor(s) in interest, hereby agrees
to indemnify and hold harmless the City against any damages or
injuries to water rights caused, directly or indirectly by the
construction, establishment, maintenance or operation of the
Development.
4. The City agrees to give notice to the Developer of any claim made
against it to which the foregoing indemnities and hold harmless
agreements by the Developer contained in Paragraph II.H could
apply, and the Developer shall have the right to defend any lawsuit
based on such claim and to settle any such claim provided the
Developer must obtain a complete discharge of all City liability
through such settlement. Failure of the City to give notice of any
such claim to the Developer within ninety days after the City first
receives notice of such claim under the Colorado Governmental
Immunity Act for the same, shall cause the foregoing indemnities and
hold harmless agreements by the Developer to not apply to such
claim and such failure shall constitute a release of th e foregoing
indemnities and hold harmless agreements as to such claim.
L. Hazards and Emergency Access
1. No stockpiled combustible material will be allowed on the Property
until a permanent water system is installed by the Developer and
approved by the Cityconfirmed as active.
{For use with retail, commercial or multifamily (4 or more units per building)}
2. Prior to beginning any building construction, and throughout the
build-out of this Development, the Developer shall provide and
maintain at all times a reasonable accessway to each building. Such
accessway shall be adequate to handle any emergency vehicles or
equipment, and the accessway shall be kept open during all phases
Montava Phase D
Developer Draft #1 7.17.24
of construction. Such accessway shall be constructed to an
unobstructed width of at least twenty-feet with four inches of
aggregate base course material compacted according to City
standards and with a 100-foot diameter turnaround at the building
end of said accessway. The turnaround is not required if an exit point
is provided at the end of the accessway. Prior to the construction of
said accessway, a plan for the accessway shall be submitted to and
approved by the Poudre Fire Authority and City Engineer. Digital plan
sets shall be submitted to the Poudre Fire Authority at 102
Remington Street for review and processing. If such accessway is at
any time deemed inadequate by the Poudre Fire Authority or City
Engineer, the accessway shall be promptly brought into compliance
and until such time that the accessway is brought into compliance,
the City and/or the Poudre Fire Authority may issue a stop work order
for all or part of the Development.
{For use with retail, commercial or multifamily (4 or more units per building)}
M. Footing and Foundation Permits
{CHOOSE ONE:}
{Use this paragraph for greenfield conditions:}
Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain Footing and Foundation permits upon the
installation of all underground water, sanitary sewer, and storm sewer facilities, and an
emergency accessway. for the phase in which the permit is being requested. Facilities
shall include but not be limited to all mains, lines, services, fire hydrants and
appurtenances for the Development/phase {choose one delete the other} as shown on
the Final Development Plan Documents.
{Use this paragraph for infill/redevelopment upon concurrence with Engineering
Inspection Manager:}
Notwithstanding any provision in this Agreement to the contrary, the
Developer shall have the right to obtain Footing and Foundation permits under either of
the following circumstances:
1. Upon the installation of all underground water, sanitary sewer, and
storm sewer facilities, and an emergency accessway for the
Development/phase {choose one delete the other} in which the
permit is being requested (the “Required Improvements”). The
Required Improvements shall include but not be limited to all mains,
lines, services, fire hydrants and appurtenances for the site as shown
on the Final Development Plan Documents; or
Montava Phase D
Developer Draft #1 7.17.24
2.1. Upon the installation of only those Required Improvements deemed
necessary or desirable in order to issue the Footing and Foundation
permit as determined in the sole discretion of the City after
discussion with the Developer prior to issuance of the Developmen t
Construction Permit. Should the City allow the Developer to install
certain Required Improvements after issuance of the Footing and
Foundation permit, the remaining Required Improvements that must
be installed by the Developer and the timing for suc h installation shall
be memorialized in the Development Construction Permit. The
Developer agrees to comply with the Development Construction
Permit with regards to the installation and timing of the remaining
Required Improvements.
N. Development Construction Permit
The Developer shall apply for and obtain a Development Construction
Permit for this Development, in accordance with Division 2.6 of the Land Use
Code, prior to the Developer commencing construction. The Developer shall pay
the required fees for said Permit and construction inspection, and post security to
guarantee completion of the public improvements required for this Development,
prior to issuance of the Development Construction Permit.
{Add this additional paragraph for infill/redevelopment upon concurrence with
Engineering Inspection Manager – if not added, delete “1.” above}
1. Prior to the issuance of a Development Construction Permit the
Developer shall obtain the approval of a Construction Management
Plan from the City. The Construction Management Plan shall define
the management of the construction of the Development,
establishing the timing, duration, location, delivery and storage of
materials and idle equipment; the timing, duration, and location of
parking; and the timing, duration and location for the operation of
equipment. The Construction Management Plan shall define t he
impacts (if any) to public rights-of-way, which would then be subject
to the Encroachment Regulations as indicated in Paragraph II.F.9 of
this Agreement.
O. Maintenance and Repair Guarantees
The Developer agrees to provide a two -year maintenance guarantee and a
five-year repair guarantee covering all errors or omissions in the design and/or
construction of the public improvements required for this Development, which guarantees
shall run concurrently and shall commence upon the date of completion o f the public
Montava Phase D
Developer Draft #1 7.17.24
improvements and acceptance thereof by the City. More specific elements of these
guarantees are noted in Exhibit B, attached hereto and incorporated herein by reference.
Security for the maintenance guarantee and the repair guarantee shall be as provided in
Section 3.3.2(C) of the Land Use Code. Notwithstanding the provisions of Paragraphs III
(H) and (I) of this Agreement to the contrary, the obligations of the Developer pursuant to
this Paragraph and Exhibit B may not be assigned or transferred to any other person or
entity unless the warranted improvements are completed by, and a letter of acceptance
of the warranted improvements is received from the City by, such other person or entity.
P. Architectural Approval
Absent extenuating circumstances, the City will administratively approve a
minor amendment of the Final Development Plan Documents approving the consistency
of architectural elevations for two-family and single-family attached dwelling units with
applicable provisions of the Montava Uses, Densities and Development Standards
(“MUDDS”) prior to issuing building permits for each such building type in the
Development. Building permit applications for two -family and single-family attached
dwelling units shall be reviewed for compliance with the Montava approved architectural
elevations. However, in no event shall the Developer b e required to submit to Planning
and Zoning Commission or City Council hearings for approval of any minor amendment
to the Final Development Plan Documents required in this Paragraph except to the extent
a minor amendment is subject to appeal to the Planning and Zoning Commission or City
Council.
Q. Model Home Permits.
1. Notwithstanding any provision in this Agreement to the contrary, the Developer
shall have the right to obtain two (2) Footing and Foundation permits for each
Phase D Segment for up to two (2) model homes per Phase D Segment after City
approved installation, inspection and testing of all underground water facilities,
sanitary sewer facilities, and storm sewer facilities, and an emergency accessway
for the property for which the permit is being requested. As used in this
Paragraph, the term “facilities ” shall include but not be limited to all mains, lines,
services, fire hydrants and appurtenances for the lot for which each permit is
requested as shown on the Final Development Plan Documents. There are seven
(7) Phase D Segments.
2. Notwithstanding any provision of this Agreement to the contrary, after obtaining
said Footing and Foundation permits, the Developer may have the right to obtain
up to two (2) model home building permits (the “Model Home Permits”) per
Segment upon the installation of those public improvements after issuance of the
Model Home Permits, the remaining public improvements deemed necessary or
desirable in order to issue the Model Home Permits as determine d in the sole
discretion the City after discussion with the Developer prior to issuance of the
Commented [BY34]: Update
Commented [JPK35]: This language was submitted for
the Phase G DA; we are awaiting Brad's Yatabe's response.
Montava Phase D
Developer Draft #1 7.17.24
Development Construction Permit. Should the City allow the Developer to install
certain public improvements after issuance of the Model Home Permits, the
remaining public improvements that must be installed by the Developer and the
timing for such installation shall be memorialized in the Development Construction
Permit. The Developer agrees to comply with the Development Construction
Permit with regards to the installation and timing of the remaining public
improvements.
3. No lot upon which a Model Home Permit has been issued may be sold until it
otherwise complies with this Paragraph M and a certificate of occupancy.
R. Future Development Tracts
The City and the Developer agree that no certificate of occupancy shall be
issued for any structure in Tract AA, Block 7 or Tract JJ, Block 9 of the Development until
after approval of the Infrastructure Plans and construction and acceptance of the roadway
improvements included therein.
III. Miscellaneous
A. The Developer agrees to provide and install, at its expense, adequate barricades,
warning signs and similar safety devices at all construction sites within the public
right-of-way and/or other areas as deemed necessary by the City Engineer and
Traffic Engineer in accordance with the City's “Work Area Traffic Control
Handbook” and shall not remove said safety devices until the construction has
been completed.
B. As required pursuant to Chapter 20, Article IV of City Code, the Developer shall,
at all times, keep the public right-of-way free from accumulation of waste material,
rubbish, or building materials caused by the Developer's operation, or the activities
of individual builders and/or subcontractors; shall remove such rubbish as often as
necessary, but no less than daily and; at the completion of the work, shall remove
all such waste materials, rubbish, tools, construction equipment, machinery, and
surplus materials from the public right-of-way. The Developer further agrees to
maintain the finished street surfaces so that they are free from dirt caused by the
Developer's operation or as a result of building activity. Any excessive
accumulation of dirt and/or construction materials shall be considered sufficient
cause for the City to withhold building permits and/or certificates of occupancy until
the problem is corrected to the satisfaction of the City Engineer. If the Developer
fails to adequately clean such streets within two days after receipt of written notice,
the City may have the streets cleaned at the Developer’s expense and the
Developer shall be responsible for prompt paymen t of all such costs. The
Developer also agrees to require all contractors within the Development to keep
Commented [JPK36]: This concept was discussed at
meetings with staff.
Montava Phase D
Developer Draft #1 7.17.24
the public right-of-way clean and free from accumulation of dirt, rubbish, and
building materials.
C. The Developer hereby agrees that it will require its contractors and subcontractors
to cooperate with the City’s construction inspectors by ceasing operations when
winds are of sufficient velocity to create blowing dust that, in the inspector ’s
opinion, is hazardous to the public health and welfare.
D. The Developer shall, pursuant to the terms of this Agreement, complete all
improvements and perform all other obligations required herein, as such
improvements or obligations may be shown on the Final Development Plan
Documents, or any documents executed in the future t hat are required by the City
for the approval of an amendment to a development plan, and the City may
withhold (or to the extent permitted by law, revoke) such building permits and
certificates of occupancy as it deems necessary to ensure performance in
accordance with the terms of this Agreement. The processing and “routing for
approval” of the various development plan documents may result in certain of said
documents carrying dates of approval and/or execution that are later than the date
of execution of this Agreement. The Developer hereby waives any right to object
to any such discrepancy in dates.
E. Nothing herein contained shall be construed as a waiver of any requirements of
City Code or the Land Use Code and the Developer agrees to comply with all
requirements of the same.
F. In the event the City waives any breach of this Agreement, no such waiver shall
be held or construed to be a waiver of any subsequent breach hereof.
G. All financial obligations of the City arising under this Agreement that are payable
after the current fiscal year are contingent upon funds for that purpose being
annually appropriated, budgeted and otherwise made available by the Fort Collins
City Council, in its discretion
H. 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 hereto, their respective personal representatives,
heirs, successors, grantees, and assigns. It is agreed that all improvements
required pursuant to this Agreement touch and concern the Property regardless of
whether such improvements are located on the Property. Assignment of interest
within the meaning of this paragraph shall specifically include, but not be limited
to, a conveyance or assignment of any portion of the Developer's legal or equitable
interest in the Property, as well as any assignment of the Developer's rights to
develop the Property under the terms and conditions of this Agreement.
Montava Phase D
Developer Draft #1 7.17.24
I. In the event the Developer transfers title to the Property and is thereby divested of
all equitable and legal interest in the Property, the Developer shall be released
from liability under this Agreement with respect to any breach of the terms and
conditions of this Agreement occurring after the date of any such transfer of
interest. In such event, the succeeding property owner shall be bound by the terms
of this Agreement.
J. Each and every term of this Agreement shall be deemed to be a material element
hereof. In the event that either party shall fail to perform according to the terms of
this Agreement, such party may be declared in default. In the event that a party
has been declared in default hereof, such defaulting party shall be given written
notice specifying such default and shall be allowed a period of ten days within
which to cure said default. In the event the default remains uncorrected, the party
declaring default may elect to: (a) terminat e the Agreement and seek damages;
(b) treat the Agreement as continuing and require specific performance ; or (c) avail
itself of any other remedy at law or equity.
K. In the event of the default of any of the provisions hereof by the Developer which
shall require the City to commence legal or equitable action against the Developer,
the Developer shall be liable to the City for its reasonable attorney ’s fees and costs
incurred by reason of the default. Nothing herein shall be construed to prevent or
interfere with the City’s rights and remedies specified in Paragraph III.D of this
Agreement.
L. Except as may be otherwise expressly provided herein, this Agreement shall not
be construed as or deemed to be an agreement for the benefit of any third party
or parties, and no third party or parties shall have any right of action hereunder for
any cause whatsoever.
M. It is expressly understood and agreed by and between the parties hereto that this
Agreement shall be governed by and its terms construed under the laws of the
State of Colorado and the City of Fort Collins, Colorado.
N. Any notice or other communication given by any party hereto to any other party
relating to this Agreement shall be hand-delivered or sent by certified mail, return
receipt requested, addressed to such other party at their respective addresses as
set forth below; and such notice or other communication shall be deemed given
when so hand-delivered or three days after so mailed:
If to the City: Engineering Development Review
City of Fort Collins
P.O. Box 580
Montava Phase D
Developer Draft #1 7.17.24
Fort Collins, CO 80522
With a copy to: City Attorney’s Office
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
If to the Developer: Montava Development & Construction, LLC
c/o Forrest Hancock
430 N. College Ave., Suite 410
Fort Collins, CO 80524-2674
With a copy to: Brownstein Hyatt Farber Schreck, LLP
c/o Carolynn C. White
675 15th Street, Suite 2900
Denver, CO 80202
With a copy to: Brownstein Hyatt Farber Schreck, LLP
c/o Gregory A. Vallin
675 15th Street, Suite 2900
Denver, CO 80202
If to the Owners: Montava Partners, LLC
c/o Matthew Cameron Clark
225 N. 9th Street, Suite 530
Boise, ID 83702-5735
Montava Development & Construction, LLC
c/o Forrest Hancock
430 N. College Ave., Suite 410
Fort Collins, CO 80524-2674
With a copy to: Brownstein Hyatt Farber Schreck, LLP
c/o Carolynn C. White
675 15th Street, Suite 2900
Denver, CO 80202
With a copy to: Brownstein Hyatt Farber Schreck, LLP
c/o Gregory A. Vallin
675 15th Street, Suite 2900
Denver, CO 80202
If to the Lender: Elevations Credit Union
Montava Phase D
Developer Draft #1 7.17.24
Attn: Tom Beckett
2960 Diagonal Highway
P.O. Box 9004
Boulder, CO 80301
With a copy :
Notwithstanding the foregoing, if any party to this Agreement, or its successors, grantees
or assigns, wishes to change the person, entity or address to which notices under this
Agreement are to be sent as provided above, such party shall do so by giving the other
parties to this Agreement written notice of such change.
O. When used in this Agreement, words in the singular shall include the plural
and vice versa. This Agreement shall be construed according to its fair
meaning, and as if prepared by all parties hereto, and shall be deemed to
be and contain the entire understanding and agreement between the parties
hereto pertaining to the matters addressed in this A greement. There shall
be deemed to be no other terms, conditions, promises, understandings,
statements, representations, expressed or implied, concerning this
Agreement, unless set forth in writing and signed by all parties hereto.
P. Paragraph or Section headings used herein are for convenience of
reference and shall in no way define, limit, or prescribe the scope or intent
of any provision under this Agreement.
{Delete this paragraph if the Owner and the Developer are the same entity}
a. The Owner is made a party to this Agreement solely for the purpose of subjecting
the Property to the covenants contained in this Agreement. The City and the
Developer expressly acknowledge and agree that the Owner shall not be liable for
any obligations of the Developer under this Agreement, unless the Owner
exercises the rights of the Developer to develop the Property, in which event the
obligations of the Developer shall become those of the Owner.
Montava Phase D
Developer Draft #1 7.17.24
{Delete this section if not applicable – if applicable adjust as appropriate that a lender
either has given them a loan or intends to extend a loan and ADD a contact for the bank
in the notice lines above}
b. Lender Acknowledgment
1. The City acknowledges that it has been informed by {place bank
name here} Wells Fargo Bank, National Association, a national
banking association Elevations Credit Union (the “Lender”), that the
Lender {choose one - has extended/ intends to extend} a loan (the
“Loan”) to the Developer to finance the costs of constructing and
equipping the Development.
2. The City acknowledges that, pursuant to Paragraph III.N of this
Agreement, the Developer has requested that copies of all notices
given by the City to the Developer shall also be given to the Lender
at the address set forth therein. The City further acknowledges that
the Lender has a right (but not the obligation) to remedy or cure any
default by the Developer under this Agreement on behalf of the
Developer and that the City will accept such remedy or cure if
properly carried out by the Lender on behalf of the Developer.
3. Nothing contained herein shall be construed to impose any liability
or obligation of the City to the Lender, except as expressly provided
in this Paragraph III.Q.
c. 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.
Montava Phase D
Developer Draft #1 7.17.24
THE CITY OF FORT COLLINS, COLORADO,
a Municipal Corporation
By: __________________________________
City Manager or Designee
Name: __________________________
Title: __________________________
Date: __________________________
ATTEST:
________________________________
City Clerk or Designee
Name: ___________________________
Title: ___________________________
APPROVED AS TO CONTENT:
________________________________
City Engineer’s Office
Name: ___________________________
Title: ___________________________
APPROVED AS TO FORM:
________________________________
City Attorney’s Office
Name: ___________________________
Title: ___________________________
Montava Phase D
Developer Draft #1 7.17.24
DEVELOPER:
MONTAVA DEVELOPMENT &
CONSTRUCTION LLC, a Colorado limited
liability company
By:
Max Moss, Authorized Signatory
ATTEST:
By:
{Name of person signing, title}
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this _____ day of
_______, 2024, by Max Moss as Authorized Signatory of Montava Development &
Construction LLC.
__________________________________
Notary Public
My Commission Expires: _______________
Montava Phase D
Developer Draft #1 7.17.24
OWNER:
MONTAVA PARTNERS, LLC
a Colorado limited liability company
By: CAMERON INVESTMENTS, L.C.,
an Idaho limited liability company
Manager
By:_________________________
Name: Matthew Cameron Clark
Title: Manager
ATTEST:
By:
{Name of person signing, title}
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this _____ day of
_______, 2024, by Matthew Cameron Clark, Manager of Cameron Investments, L.C.,
Manager of Montava Partners, LLC.
__________________________________
Notary Public
My Commission Expires: _______________
Montava Phase D
Developer Draft #1 7.17.24
Montava Phase D
Developer Draft #1 7.17.24
DEVELOPER:
{put in the Developers name and company
type as shown on page 1}
By:
{Name of person signing, title}
Date: _______________________________
ATTEST:
By:
{Name of person signing, title}
1. Business Entity with one signer and no layers.
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this _____ day of
___________, 202__, by _________________ [name of person] as
__________________ [title of person] of __________________ [name of business
entity].
__________________________________
Notary Public
My Commission Expires: _______________
2. Individual
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this _____ day of
__________, 202__, by _________________ [name of person].
Montava Phase D
Developer Draft #1 7.17.24
__________________________________
Notary Public
My Commission Expires: _______________
3. Corporation officer and other official.
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this _____ day of
____________, 202__, by _______________ [name of person] as _____________ [title
of person] and by _____________ [name of other person] as __________ [title of other
person] of _____________ [name of business entity].
__________________________________
Notary Public
My Commission Expires: _______________
4. Layered Entity
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this _____ day of
____________, 202__, by ____________ [name of business entity] by
_________________ [name of secondary business entity] [manager, general partner,
member, etc, select one] by _______________ [name of person signing] as
___________ [title of person signing].
__________________________________
Notary Public
My Commission Expires: _______________
Montava Phase D
Developer Draft #1 7.17.24
OWNER:
{put in the Owners name and company type as
shown on page 1}
By: __________________________________
{Name of person signing, title}
Date: _______________________________
ATTEST:
By:
{Name of person signing, title}
1. Business Entity with one signer and no layers.
STATE OF COLORADO )
) ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this _____ day of
__________, 202__, by _________________ [name of person] as
__________________ [title of person] of __________________ [name of business
entity].
__________________________________
Notary Public
My Commission Expires: _______________
2. Individual
STATE OF COLORADO )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this _____ day of
__________, 202__, by _________________ [name of person].
__________________________________
Montava Phase D
Developer Draft #1 7.17.24
Notary Public
My Commission Expires: _______________
3. Corporation officer and other official.
STATE OF COLORADO )
) ss.
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this _____ day of
____________, 202__, by _______________ [name of person] as _____________ [title
of person] and by _____________ [name of other person] as __________ [title of other
person] of _____________ [name of business entity].
__________________________________
Notary Public
My Commission Expires: _______________
4. Layered Entity
STATE OF COLORADO )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this _____ day of
____________, 202__, by ____________ [name of business entity] by
_________________ [name of secondary business entity] [manager, general partner,
member, etc, select one] by _______________ [name of person signing] as
___________ [title of person signing].
__________________________________
Notary Public
My Commission Expires: _______________
Montava Phase D
Developer Draft #1 7.17.24
EXHIBIT A
1. Schedule of electrical service installation.
Electrical lines need to be installed prior to the installation of the sidewalk,
curb returns, handicap ramps, paving and landscaping. If the Developer installs
any curb return, sidewalk or handicap ramp prior to the installation of electrical
lines in an area that interferes with the installation of the electrical line installation,
the Developer shall be responsible for the cost of removal and replaceme nt of
those items and any associated street repairs.
2. Schedule of water lines to be installed out of sequence.
Not Applicable
3. Schedule of sanitary sewer lines to be installed out of sequence.
Not Applicable
4. Schedule of street improvements to be installed out of sequence.
Not Applicable
5. Schedule of storm drainage improvements to be installed out of sequence.
Not Applicable
Montava Phase D
Developer Draft #1 7.17.24
EXHIBIT B
MAINTENANCE GUARANTEE:
The Developer hereby warrants and guarantees to the City, for a period of two years from
the date of completion and first acceptance by the City of the public improvements
warranted hereunder, the full and complete maintenance and repair of the public
improvements constructed for this Development. This warranty and guarantee is made in
accordance with the City Land Use Code. This guarantee applies to the streets and all
other appurtenant structures and amenities lying within the rights -of-way, easements and
other public properties, including, without limitation, all curbing, sid ewalks, bike paths,
drainage pipes, culverts, catch basins, drainage ditches and landscaping. Any
maintenance and/or repair required on utilities shall be coordinated with the owning utility
company or city department.
The Developer shall maintain said public improvements in a manner that will assure
compliance on a consistent basis with all construction standards, safety requirements and
environmental protection requirements of the City. The Developer shall also correc t and
repair, or cause to be corrected and repaired, all damages to said public improvements
resulting from development-related or building-related activities. In the event the
Developer fails to correct any damages within thirty days after written notice thereof, then
said damages may be corrected by the City and all costs and charges billed to and paid
by the Developer. The City shall also have any other remedies available to it to the fullest
extent of the law or as authorized by this Agreement. Any damages which occurred prior
to the end of said two year period and which are unrepaired at the termination of said
period shall remain the responsibility of the Developer.
REPAIR GUARANTEE:
The Developer agrees to hold the City harmless for a five year period, commencing upon
the date of completion and acceptance by the City of the public improvements constructed
for this Development, from any and all claims, damages, or demands arising on ac count
of the design and construction of public improvements of the Property shown on the
approved plans and documents for this Development; and the Developer furthermore
commits to make necessary repairs to said public improvements, to include, without
limitation, the roads, streets, fills, embankments, ditches, cross pans, sub -drains, culverts,
walls and bridges within the right-of-way easements and other public properties, resulting
from failures caused by design and/or construction defects. This agreeme nt to hold the
City harmless includes defects in materials and workmanship, as well as defects caused
by or consisting of settling trenches, fills, or excavations.
Montava Phase D
Developer Draft #1 7.17.24
Further, the Developer agrees that the City shall not be liable to the Developer during the
warranty period, for any claim of damages resulting from negligence in exercising
engineering techniques and due caution in the construction of cross drains, drives ,
structures or buildings, the changing of courses of streams and rivers, flooding from
natural creeks and rivers, and any other matter whatsoever on private property. Any and
all monetary liability occurring under this paragraph shall be the liability of the Developer.
The obligations of the Developer pursuant to the “maintenance guarantee” and “repair
guarantee” provisions set forth above may not be assigned or transferred to any other
person or entity unless the warranted improvements are completed by, and a letter of
acceptance of the warranted improvements is received from the City by, such other
person or entity.
Montava Phase D
Developer Draft #1 7.17.24
EXHIBIT C