HomeMy WebLinkAboutMONTAVA - PHASE D INFRASTRUCTURE - BDR240010 - SUBMITTAL DOCUMENTS - ROUND 2 - Supporting Documentation1
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF FORT COLLINS , AND
MONTAVA PARTNERS, LLC, AND MONTAVA DEVELOPMENT & CONSTRUCTION
LLC FOR MONTAVA PHASE D “INFRASTRUCTURE”
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 has entered into an agreement with is the oOwner 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 INFRASTRUCTURE, a replat of Tract NN
and Tract OO of Montava Subdivision Phase D and A parcel of land located in a
portion of Section 32 and Section 33, Township 8 North, Range 68 West of the 6th
P.M.Sixth Principal Meridian, City of Fort Collins, County of Larimer, State of
Colorado.
WHEREAS, the Development is known to the City as Montava Phase D
Infrastructure, ID# BDR24001006 or as the “Infrastructure Plans”; 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
Commented [JPK1]: Montava's redlines are to the new
City DA template provided in May 2024.
Commented [JPK2]: The following 5 recitals from the
Phase D Core development agreement should be included
here also.
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Resolution 2020-007 to establish the manner by which the Public Benefits are to be
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 Basic Development Plan Documents” or “Final BDR
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 BDR 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.
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.
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 that replaces
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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 BDR 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 of 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 BDR 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 BDR 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 BDR
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,
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
Commented [JPK3]: This is consistent with the Core DA.
Commented [JPK4]: This is consistent with the Core DA.
4
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 BDR Documents and
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 DocumentsBDR 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 utilities shown on the Final Development Plan BDR
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 specifi cations
applicable to such installation. In case of conflict, the Final Development Plan BDR
Documents shall supersede the standard specifications, except that if the conflicts are a
result 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 t he
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 -
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 BDR Documents. Alignment and grades on privately maintained
streets and drives shall allow for safe access, ingress and egress by owners, visitors, the
5
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
the construction. Utilities will not be initially accepted prior to as -built drawings being
submitted to and approved by the City.
6
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
restrictions, limitations and requirements associated with activities on the City Property
by the Developer as an easement recipient.
7
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 lot(s) or tract(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 lot(s) or tract(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 quantities, allotments, 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. { unless specified otherwise in the Final Development
Plan Documents. and/or the Special Conditions section of this Agreement}
II. Special Conditions
A. Public Benefit 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
Commented [JPK5]: This change was approved by Tim
Dinger for the Core DA, so we should also reflect the change
here.
Commented [JPK6]: There is no potable water service to
the Infrastructure Plan area, only non-potable for irrigation.
Montava has requested a deferral of the Water Adequacy
Determination for all of Phase D until prior to the first
building permit in the Core.
Commented [JPK7]: Brad Yatabe suggested these
redlined changes to this paragraph of the Core DA.
8
___________, and recorded at Reception No.
________________. This Development, or portion thereof, is
in alignment with requirements of that agreement, and more
specifically satisfies the following required community benefits
as stated in sections X and Y of the Public Benefit Agreement :
2. Housing:
3. Other:
1. 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.
2. This Development is in alignment with requirements of that Public
Benefits Agreement, and more specifically satisfies the following required community
benefits as stated therein.
3. 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”). There are no residential structures or private
yards in the Development, therefore, only the following Non -Potable Water System
requirements are applicable.
a. The Non-Potable Water System plans for the Development
shall be in compliance with all applicable county, state and federal
laws and regulations therefor.
b. The portion of the Non-Potable Water System needed to
serve the Development shall be installed in accordance with the Non-
Potable Water System plans and approved by the City to the extent
required by applicable City ordinances, regulations, standards and
policies.
4, The remaining requirements of the Public Benefits Ag reement
regarding Urban Agriculture Development, Zero Energy Ready Homes and
Affordable/Workforce Housing all pertain to residential development and are therefore not
applicable to the Development.
B. Water Lines
Not Applicable {delete if there are paragraphs}
Commented [JPK8]: The first two paragraphs of the
Public Benefits Agreement section from the Core DA (and
should be included in every phase's DA).
Commented [JPK9]: All the non-pot related triggers in the
PBA relate to residential structures; however, it remains that
the system must be designed and installed per the applicable
regulations,
Commented [JPK10]: This is included because Staff
wants us to document with every phase how we are
complying/fulfilling the PBA requirements.
Commented [JPK11]: There is no water service to
property within the Infrastructure Plans, however, we are
installing a fire hydrant.
9
The Property is located within the service area of the East Larimer County
Water District (“Water District”); all water line improvements installed within the Property
shall be installed and inspected in accordance with the Water District’s regulations and
the approved plans therefor.
{sample paragraphs – use and modify as necessary}
1. Notwithstanding anything in this Agreement to the contrary, the
Development will be provided water service from the Fort Collins-Loveland 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 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
Sanitation District (“Sewer District”), and all sewer line improvements shall be
installed and inspected in accordance with the Sew er 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 BDR Documents until all disturbed areas
Commented [JPK12]: There is no sewer service to
property within the Infrastructure Plans.
Commented [JPK13]: This is standard stormwater
language.
10
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 BDR 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 § 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 certificates
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 BDR
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.D of this Agreement, as
Commented [JPK14]: Confirm internal references in this
paragraph.
11
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,
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.
Commented [JPK15]: We are unaware of any special
stormwater conditions for the Infrastructure Plans at this
time.
Commented [JPK16]: No part of the Infrastructure Plans
is in the floodplain or floodway or near the Poudre River.
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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
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:
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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 the 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 approve d 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,
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.
14
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
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.
15
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.
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} Giddings Road and Maple Hill Drive for those portions of said streets
abutting the Property as shown on the Final Development Plan BDR Documents.
Reimbursement for {put street name(s) in here} Giddings Road and Maple Hill Drive shall
be for increasing the streets and/or sidewalks and bike lane widths {or indicate specifics
if not all, i.e. sidewalk} (i) from local access standards to {indicate type of street, minor
arterial, collector, etc.} two lane arterial standards for Giddings Road and (ii) from local
access standards to two lane collector standards for Maple Hill Drive, {add right-of-way
portion only if applicable} and for the cost of the right-of-way necessary to accommodate
the expansion of such streets, and sidewalks and bike lanes. 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 sh all 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 aforesa id oversized street improvements
16
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}
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
$100,000, the contract for the construction of the improvements must be insured by a
performance bond or other equivalent security. For purposes of this Paragraph, the term
“City improvements” shall mean either (1) existing improvements owned by the City that
are to be modified or reconstructed, or (2) any improvements funded in whole or in part
by the City.
{use if NO street oversizing reimbursement is to occur}
3. No street oversizing reimbursement from the City is due the
Developer for this Development.
{use if a reimbursement is due the City - modify as necessary}
4. The Developer agrees to reimburse the City the sum of , plus
a percentage added to recognize the effects of inflation, for the cost to construct
adjacent to the Property. The inflation factor shall be calculated
using the construction cost index for Denver as published in the Engineering News
Record (ENR) of ,200_, and the same index published in the ENR in the month
preceding payment of the reimbursement, as delineated in subsection 5.b. of this section.
Payment shall be made to the City prior to the issuance of the first building permit.
{use if the developer is delaying a portion of a road ($ 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
17
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
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
18
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.
{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 roadway. 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.
19
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
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}
8.
{use in all agreements}
9.3. 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 BDR 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
20
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 pe rmit 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
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 license, or other cooperative
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.
Commented [JPK17]: Cyril added this language in the
Core DA with the note that ELCO does not have a franchise
with the City. If that change is acceptable, this paragraph
should be consistent.
21
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.
10.4. 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.
11.5. 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.
12.6. 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 BDR Documents identify new
riparian/wet meadow areas of wetland mitigation within the Property which are not
to be disturbed in order to prevent environmental damage to the natural habitats or
such features (“Natural Habitat Buffer Zone” or “NHBZ”). Neither the Developer nor
its contractor or assignees, including the applicable Montava Metropolitan District,
shall, after initial installation and establishment, intrude upon, remove, fill, dredge,
build upon, degrade or otherwise alter natural habitats and features the NHBZ
delineated on the Final Development Plan BDR Documents, except for the limited
purposes allowed within the Final Development Plan BDR Documents. These
activities are allowable under Land Use Code §3.4.1(E). The City’s Environmental
Planner shall periodically inspect the Property to ensure compliance with the NHBZ
requirements established in the Final Development Plan BDR Documents.
Commented [JPK18]: We included this language in the
Core DA as an acknowledgement that even though the LUC
does not require it, we agreed to submit the irrigation plans.
I suggest we include the same language in this DA.
Commented [JPK19]: Per discussions with Kirk
Longstein, the drainage channel along Maple Hill Drive will
be delineated as a NHBZ in the Infrastructure Plans.
22
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. 2. 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 (3) years of monitoring and annual reporting equal to 125% of
the cost to be held until said improvements are constructed installed 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 Environmental Planner
acceptance thereof. If the seeded areas have not been established in accordance
with the Final Development Plan Documents,NHBZ success criteria set forth in
Paragraph II.F.3 below, 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 criteria 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 documentswith the NHBZ success criteria,
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.
4.3. The areas of the Development NHBZ 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 o f 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 ten percent (510%) 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 NHBZ shall display no evidence of detrimental
erosion due to rills, gullies or excessive bare spots of ground,
Commented [JPK20]: We thought the more logical place
for this section was below; see subparagraph 5.
Commented [JPK21]: If any areas of the NHBZ are
established prior to the expiration of 3 years, can that portion
of the security be released?
Commented [JPK22]: The success criteria for
establishment are contained in the next paragraph, not on the
plans.
Commented [JPK23]: This percentage was approved by
Scott Benton.
Commented [JPK24]: These criteria apply to the NHBZ,
not the entire development site.
23
(4) Survival rate of all planted shrubs and trees is equal to or greater than
eighty seventy percent (8070%)., 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, as referred to in (1) above, 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 for the purpose 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, 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 Control Plan (Appendix A of included in Exhibit “yC”).
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 in (2) above 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.
4. The Developer shall has provided an Adaptive Management
and Restoration Plan/Wetland Mitigation/etc.NHBZ Management Plan that
encompasses revegetation techniques, monitoring methodology and timeline, and
weed management for the Natural Habitat Buffer Zone before, during, and after
constructioninstallation, included in Exhibit “yC” of this Development Agreement,
which has been prepared by a qualified natural resource professional and
reviewed and approved by the City’s Environmental Planner.
5. The Developer shall ensure that all landscaping within the
Natural Habitat Buffer Zone is properly maintained in accordance with the NHBZ
Management Plan attached to this Development Agreement as Exhibit “C”.
5.
Commented [JPK25]: This percentage was approved by
Scott Benton.
Commented [JPK26]: We cannot agree to the imposition
of an unknown set of standards that are not in our plans, this
agreement or the LUC.
Commented [JPK27]: As I understand it, this paragraph
elaborates on how (1) is evaluated.
Commented [JPK28]: Is this what is meant here?
Commented [JPK29]: This seems to conflict with the
language of 4 above, where weed control, as an element of
the success criteria can be met at an earlier time than 3
growing seasons.
Commented [JPK30]: Montava's non-potable irrigation of
the NHBZ will be permanent.
Commented [JPK31]: Please see the attached Exhibit C
prepared by BHA.
24
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.
6. At the time that a homeowners association (HOA) is formed, t The
Developer will ensure that the HOA applicable Montava Metropolitan District is
adequately informed of the NHBZ establishment process and long-term maintenance
requirements.
10.7. 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.
11.8. 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.
12.9. 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.
H.G. Forestry
Commented [JPK32]: Form paragraphs 6 - 10 do not
apply.
Commented [JPK33]: This is a requirement of the ECS.
Commented [JPK34]: Freddie has proposed new language
for the Core DA; the Montava team is working with Freddie
to finalize and will base the Infrastructure DA provisions on
such language.
25
{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 betw een 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 standards. 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 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
Commented [JPK35]: Per BHA's Existing Tree Inventory
Plan, no existing trees will be protected; all will be removed.
26
Plan Documents and an arborist licensed by the City of Fort Collins must
provide written confirmation to the City that such tree 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 Developer 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
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
Commented [JPK36]: Also per the Existing Tree
Inventory Plan, we are not retaining any trees with structural
damage.
Commented [JPK37]: We are not making a payment-in-
lieu of tree mitigation, but we are mitigating per the Existing
Tree Inventory Plan.
Commented [JPK38]: The survey on the buildings west of
Giddings Road was completed in April and on 5/10/24, the
City's determination of Not Eligible for Designation was
issued.
The Infrastructure Plans do not impact any buildings east of
Giddings Road, so a survey was not required.
Thus, there are no historic preservation issues.
27
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 requirements 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 Commission. The design and installation work must
proceed in a timely manner and within three years of the date of this Agreement.
J. Soil Amendment
{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,
Commented [JPK39]: The soil amendment requirements
are tied to certificates of occupancy; there will be no
certificates of occupancy in the Infrastructure Plans.
28
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
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 o f the 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 City.
29
{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
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:
Commented [JPK40]: There are no proposed structures in
the Infrastructure Plans.
Commented [JPK41]: There are no proposed structures in
the Infrastructure Plans.
30
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
2. 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.M. 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 the
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.
Commented [JPK42]: The Infrastructure Plans are not
infill or redevelopment.
31
O.N. 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
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.
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, a nd 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 payment of all such costs. The Developer also
agrees to require all contractors within the Development to keep 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
Commented [BY43]: Update
Commented [JPK44]: Confirm internal references.
32
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 that 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.
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.
33
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 defaul t may
elect to: (a) terminate 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
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
34
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. WhiteClaire N.L. Havelda
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. WhiteClaire N.L. Havelda
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
Attn: Tom Beckett
2960 Diagonal Highway
P.O. Box 9004
Boulder, CO 80301
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
35
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 Agreement. 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. Q. 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.
{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. R. 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
36
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. S. 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.
37
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: ___________________________
38
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: _______________
39
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: _______________
40
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].
41
__________________________________
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: _______________
42
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].
__________________________________
43
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: _______________
44
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
45
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.
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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.
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EXHIBIT C
NHBZ MANAGEMENT PLAN
The existing low-quality wetlands impacted by Phase D construction shall be mitigated
with new native and riparian wet meadow plantings along the drainage channel adjacent
to Maple Hill Drive. This area has been identified in the Final BDR Documents as a
NHBZ and shall be installed and maintained based on the following standards.
STEPWISE APPROACH – INSTALLATION AND MAINTENANCE
Step 1 – Creating Opportunity and reducing competition
Noxious and weedy species should be controlled using mechanical or chemical
methods prior to project construction or grading to ensure that a variety of native seed
species are given the opportunity to establish.
Step 2 - Soil Preparation
The soil surface should be optimized for seeding or planting. Spread topsoil in NHBZ
planting areas. An agronomic assessment is recommended to evaluate the chemical
and physical properties of the topsoil and determine if soil amendments would help
establish native vegetation and pollinator species adapted to native soils. The soil
surface should be smooth, uncompacted, and free from large matter which could
impede planting or seeding. Prior to seeding the soil surface should be loose, allowing
for good soil/seed contact.
Step 3 – Seeding and Planting
After final contouring and incorporation of soil amendment/fertilizer, seeding should
occur as soon as possible to avoid undesirable impacts from wind or precipitation.
Seeding can be accomplished using broadcasting and drilling techniques where
applicable.
Drill Seeding: Final drilling pass must occur on the contour, to create subtle ridges
perpendicular to the flow of energy (wind and/or water erosion). Drill seeding should be
not conducted in sensitive areas. Appropriate native seeding equipment should be
used, which does not include standard turf seeding equipment or agricultural
equipment. Drill the approved seed mix in two passes, each at right angles to the other
and using half the seed in each pass. Seed should be drilled at the application rate
indicated on the Plans. If areas are too wet or steep to drill seed, broadcast seed as
described below.
Broadcast Seeding: The seeding rate should be doubled. Seed to soil contact should be
increased immediately through manipulation which will also provide some protection
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from wind or water erosion and granivores. Manipulation can be accomplished by either
a light disc harrowing perpendicular to the flow of energy (wind and/or water erosion) or
hand raking around sensitive and smaller areas.
- Especially in detention areas, see only when areas are likely to be dry for an
extended period of time.
- Restore fine grade after seeding, and cover seed to depth recommended by
seed supplier by raking or dragging.
- Mulch seeded areas within 24 hours after seed is sewn utilizing either
hydromulch or crimped straw mulch.
- Irrigate seed as needed, per seed supplier’s recommendations.
- Within the first year, and subsequent years, re-seeding may be necessary to
achieve required coverages. In these areas, reseed using the same methods and
seed mix to achieve a healthy stand of grass and forbs. Reseed in a manner to
achieve the quality originally specified.
Step 4 – Maintenance and Management
Maintenance and management activities should be implemented to ensure success of
the NHBZ. The contractor shall monitor seeded areas for erosion control, germination
and reseeding as needed to establish cover.
Mowing after seed establishment - Areas with native seed mixes are intended to be
maintained in a natural-like landscape aesthetic. If and when mowing occurs in native
seed areas, do not mow lower than 5 to 6 inches in height to avoid inhibiting native pl ant
growth. Native seed should be mowed no more than twice a year, but typically only
once in the fall.
REVEGETATION SCHEDULES
Excavation and grading may ordinarily occur during any month of the year. However,
revegetation activities are typically more limited with respect to the time of year in which
they should be completed and must be timed to coincide with a recognized plantin g
season. The following table depicts a schedule that can be followed to achieve the
mitigation objectives.
Site conditions and/or climatic variation may require that these schedules be modified
somewhat to achieve revegetation success. The schedules do not reflect week control
activities that may be employed on site and should be amended to incorporate such a
program if required.
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TABLE: FALL (DORMANT SEEDING) MITIGATION SCHEDULE
Month
Reclamation Technique J F M A M J J A S O N D
Excavation/Grading (Any month)
Resoiling and/or Ripping (if necessary) X X X X
Seedbed Material Sampling X X X X
Fertilization X X X
Seedbed Preparation X X X
Seeding X X X X X X X X X X X X
Mulching (as specified) X X
WEED CONTROL PLAN
THIS SECTION SUMMARIZES THE ELEMENTS OF THE WEED CONTROL PLAN TO BE
PREPARED FOR THE NHBZ DURING THE FIRST GROWING SEASON IF WEEDS ARE
DEEMED TO BE DETRIMENTAL TO ESTABLISHMENT SUCCESS OR ARE REQUIRED TO
BE ERADICATED AS PER REGULATIONS. THE COMPLETED PLAN WILL BE SUBMITTED
TO GOVERNMENTAL AGENCIES, INCLUDING THE CITY OF FORT COLLINS
ENVIRONMENTAL PLANNING DEPARTMENT AND LARIMER COUNTY, AS REQUIRED
FOR REVIEW AND APPROVAL.
THE WEED CONTROL PLAN SHALL BE PREPARED BY A LICENSED COMMERCIAL
PESTICIDE APPLICATOR (LCPA). SUBSEQUENT WEED CONTROL ACTIVITIES WILL
ALSO BE CONDUCTED BY AN LCPA. THE PLAN TO BE PREPARED WILL TAKE THE
FORM OF AN INTEGRATED PEST MANAGEMENT PLAN (IPM) THAT WILL CONSIDER ALL
METHODS OF CONTROL THAT WOULD POTENTIALLY BE APPLICABLE TO THE
PROJECT AREA. THESE METHODS INCLUDE MECHANICAL, CHEMICAL, CULTURAL,
AND BIOLOGICAL TECHNIQUES. PRIOR TO PLAN PREPARATION, A VISIT TO THE
PROJECT AREA SHALL BE CONDUCTED BY THE LCPA, TO ASSESS SITE CONDITIONS,
ROUTES OF ACCESS, WEEDY SPECIES PRESENT, THE RELATIONSHIP OF
SURROUNDING WATER / WETLAND BODIES TO THE PROPOSED AREAS TO BE
TREATED, POTENTIAL SOURCES OF RUN-ON AND RUN-OFF, AND OTHER FACTORS
RELEVANT TO THE WEED CONTROL PLANNING PROCESS GIVEN THE PRESENCE OF
WETLANDS NEAR SOME OF THE NATURAL FEATURES, THOUGH CHEMICAL CONTROLS
DO EXIST THAT ARE CONSIDERED BY THE CORPS OF ENGINEERS TO BE
APPROPRIATE IN SUCH CASES.
PLANT SPECIES TO BE CONSIDERED AS WEEDS AND CONTROLLED AND/OR
ERADICATED AT THIS PROJECT SITE, AS PER CITY CODE, ARE THOSE LISTED BY THE
LARIMER COUNTY WEED CONTROL DISTRICT AND THOSE LISTED AS NOXIOUS BY
THE COLORADO WEED LAW.
ANNUAL MONITORING
WHEN A WEED CONTROL PLAN HAS BEEN IMPLEMENTED, THE NHBZ WILL BE
INSPECTED TWICE A YEAR ON THE FOLLOWING SCHEDULE:
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1. IN THE SPRING, A QUALIFIED ECOLOGIST WILL TRAVERSE THE NATURAL
FEATURES AREA TO ASSESS NOXIOUS WEED POPULATIONS.
2. AT THE PEAK OF GROWING SEASON, A QUALIFIED BIOLOGIST WILL IMPLEMENT
QUANTITATIVE MEASUREMENTS TO EVALUATE GROUND COVER WITHIN THE
NATURAL FEATURES AREAS. QUANTITATIVE MEASUREMENTS WILL CONSIST
OF TWO PERMANENT PHOTO POINTS AND FIVE GROUND COVER SAMPLING
POINTS. AT EACH SAMPLE POINT, GROUND COVER WILL BE MEASURED USING
LINE POINT ESTIMATES, WHERE THE ECOLOGIST WILL ESTIMATE AND RECORD
VEGETATIVE GROUND COVER BY SPECIES TO THE NEAREST ONE PERCENT.
SPECIES, INCLUDING NOXIOUS WEEDS AND INVASIVE SPECIES, AND THEIR
RESPECTIVE PERCENT GROUND COVER WILL BE RECORDED.
3. BRIEF WEED MANAGEMENT ACTION ITEM REPORTS/MEMOS WILL BE NEEDED
PRIOR TO SEPTEMBER 30TH AND NEED TO BE DELIVERED TO THE PLANNER,
DEVELOPER, AND CONTRACTORS TO ENSURE TIMELY ACTION
4. ANNUAL MONITORING WILL CONTINUE FOR A TOTAL OF THREE YEARS
FOLLOWING ESTABLISHMENT OF THE NATURAL FEATURES AREAS. A BRIEF
MEMO CONTAINING FINDINGS AND RECOMMENDATIONS WILL BE PROVIDED TO
THE CITY OF FORT COLLINS ENVIRONMENTAL PLANNING DEPARTMENT BY
SEPTEMEBER 30TH/ OF EACH YEAR.
5. DURING THE THIRD YEAR OF ANNUAL MONITORING, A DERMINATION OF
SUCCESSFUL ESTABLISHMENT IN THE NATURAL FEATURES AREAS WILL BE
MADE BY CITY ENVIRONMENTAL PLANNING DEPARTMENT BASED ON A SITE
INSPECTION AND VEGETATION PERFORMANCE COMPARED TO THE
FOLLOWING SUCCESS CRITERIA:
a. ≥ 80% SURVIVAL OF WOODY PLANTS (TREES AND SHRUBS)
b. 70% TOTAL VEGETATIVE COVER (EXCLUDING NOXIOUS WEEDS) IS
REACHED WITH NO BARE SPOTS LARGER THAN ONE SQUARE FOOT.
c. NOXIOUS WEEDS DO NOT EXCEED 10% OF TOTAL COVER.
d. DEEMED ACCEPTABLE BY CITY ENVIRONMENTAL PLANNING
DEPARTMENT