Loading...
HomeMy WebLinkAboutResolution 2013-0007CITY OF WHEAT RIDGE , COLORADO RESOLUTION NO . 07 Series of 2012 TITLE : RESOLUTION NO. 07-2013 - A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH COLORADO PLUS LIQUID ART WORKS INC . TO PARTICIPATE IN THE WHEAT RIDGE BUSINESS DEVELOPMENT ZONE PROGRAM FOR A REBATE OF 100% OF THE ELIGIBLE USE TAX IN ASSOCIATION WITH THE REMODEL OF A REST AU RANT AT 6995 W. 38th AVENUE IN WHEAT RIDGE WHEREAS , the City has adopted as a portion of the Wheat Ridge Code of Laws ("Code ") Chapter 22 , Article I, Division 5, "Business Development Zone" to encourage, in part , continued development and expansion of opportunities for employment in the private sector in the City ; and WHEREAS , Colorado Plus Liquid Art Works Inc . (Colorado Plus) has applied to participate in the Program and a public hearing was posted and conducted ; and WHEREAS , Colorado Plus is the owner and operator of leased space and Improvements thereon within the City and known as the "Owner," and is the operator of a development site that will serve residents of Wheat Ridge and surrounding communities; WHEREAS , Owner plans to construct public improvements of approximately $250 ,000 and a total project budget of approximately $1 ,000 ,000 ; and WHEREAS , the project enhances services to the neighborhood and neighboring communities and brings revenue to the City from surrounding communities -a true definit ion of economic development; and WHEREAS ; the project creates up to eight full and part-time jobs , and WHEREAS ; the project spurs reinvestment through remodeling and new construction of a blighted structure, thus enhancing and preserving its economic viability in the City ; and WHEREAS , cost-sharing at the rate prescribed herein will serve to aid the expansion of Owner in that it will alleviate a portion of the costs associated with the expansion . NOW, THEREFORE, BE IT RESOLVED by the Cit y Council of th e City o f Wheat R i dge, Colorado, as follows : An Agreement to participate in the City of Wheat Ridge Business D evelopment Zone Program with Co lorado Pl us Liquid Art Works, Inc. is hereby approved wherein an amount of 1 00% of use-tax generated will be rebated to Colorado Plus Liquid Art Works , I nc. ATTEST: AGREEMENT TO PARTICIPATE IN THE CITY OF WHEAT RIDGE BUSINESS DEVELOPMENT ZONE PROGRAM This Agreement to Participate in the City of Wheat Ridge Business Development Zone Program (this '·Agreement") is made and entered into as of the January 28, 2013, by and between COLORADO PLUS LIQUID ART WORKS INC., an S-Corporation located at 6995 W. 38th A venue, Wheat Ridge , CO 80033 , hereinafter referred to as the "Owner" and the CITY OF WHEAT RIDGE , COLORADO, 7500 W. 29th Avenue, Wheat Ridge , Colorado 80033 hereinafter referred to as the "C ity;' collectively the "Parties ," and each individually , as a ·'Party." WHEREAS , the City has adopted as a portion of the Wheat Ridge Code of Laws ("Code") Chapter 22, Article I, Division 5 , "Business Development Zone" (the "Program "), to encourage, in part , continued development and expansion of opportunities for employment in the private sector in the City; and WHEREAS , Owner has applied to participate in the Program and a public hearing was posted and conducted; and WHEREAS, Owner is the owner and operator of a commercial development serving residents of Wheat Ridge and sun·ounding communities; and WHEREAS , pursuant to Code Sec. 22-86 (b), the City Council has designated the real property o-w11ed by Owner as a "Wheat Ridge Business Development Zone"; and WHEREAS , Owner plans to construct tenant improvements totaling approximately $300,000; and WHEREAS, the project creates neighborhood services and brings revenue to the City from surrounding communities -a true definition of economic development ; and WHEREAS ; the project will create up to eight jobs and construction related jobs prior to the opening of the facility, and WHEREAS ; the project creates new revenue through permit fees and use tax on furniture, fixtures and equipment; WHEREAS ; the project spurs reinvestment and remodeling of a blighted facility, thus enhancing and preserving its economic viability in the City; and WHEREAS ; the project should lead to the revitalization of the 38th Avenue commercial corridor and aid the existing commercial establishments; WHEREAS, the Program allows the City to provide for the sharing of certain categories of fees, taxes and other business development-related charges for new development within the business development district ("Eligible City Fees, Charges and Taxes" as defined in Code Sec. 22-87 (1)) to the extent allowed by an agreement with a business owner; and WHEREAS , cost-sharing at the rate prescribed herein will serve to aid the expansion of Owner in that it will alleviate a portion of the costs associated with the expansion. NOW, THEREFORE , in consideration of the foregoing, and the covenants, promises, and agreements of each of the Parties hereto , to be kept and performed by each of them , the Parties agree as follows: I. Recitals. The Recitals set forth above are incorporated in this Agreement by reference. 2. Term. The term of this Agreement shall commence on January 29, 2013 and shall terminate upon full refund by the City to Owner of eligible City fees, charges and taxes as set forth in Paragraph 7 (the "Term "). Notwithstanding the foregoing, it is an express provision of this Agreement that this Agreement shall expire and be of no further force and effect upon the occunence of the earlier to occur of: (I) expiration of the Tenn or (2) payment of the maximum amount to be shared as set forth in Paragraph 7 (whether or not the Term has expired), or (3) determination by the City of Owner's default, as provided in Paragraphs 13 or 16. 3. The Project. The project proposed by the Owner through which it desires to participate in the Program consists of the following, generally: property upon which to provide tenant improvements to interior and exterior of a 1944 structure located on the main street of Wheat Ridge a blighted structure. Owner proposed to construct tenant improvements in the amount of approximately $300,000 that include interior and exterior improvements to the Owner site and the creation of an outdoor patio area, and development of a restaurant with a full licensed commercial kitchen and a brew pub. The foregoing shall be collectively referred to herein as the "Project," and is more fully described below in Paragraphs 4. 4. Representations of Owner. Pursuant to Code Sec. 22-94, Owner hereby represents to the City the following: a. Improvements justifving Project approval. 1. Revitalization of land . The project will invest an estimated $300,000 of improvements , excluding land acquisition costs, into an interior and exterior remodel of the building with plans that have been approved by the City of Wheat Ridge Community Development Department and attached as Scope of Development and attached as Exhibit A which shall also be used as the application for inclusion in the program . 11. Estimated cost. The cost for the initial phase of the Project including the improvements described above is estimated to be approximately THREE HUNDRED THOUSAND DOLLARS ($300,000). 2 b. Expected future tax revenue. Owner operates a Limited Liability Corporation . Any future sales and use tax revenue will be directly generated by this Project. Benefits to the community which may generate future sales and use tax indirectly have been identified by the Owner as follows: 1. Shmt-term positive impact during construction: Prior to the completion of the Project, the tenant improvement phase will employ additional personnel in the construction phase. 11. Upon completion of the improvements , the project will provide new sales tax production. 111. This project should lead to improving the neighborhood and providing more dining options in the community. IV. Creates new revenue through permit fees , use tax on furniture , fixtures and equipment and sales tax ; 5. Personal agreement; non-transferable; no third party beneficiaries The cost-sharing of Eligible City Fees, Charges and Taxes as approved herein shaJl constitute a personal agreement between the City and Owner. The terms of this Agreement do not run with the land. The obligations, benefits and/or provisions of this Agreement may not be assigned in whole or in any part without the express authorization of the City Council. No third party shall be entitled to rely upon or enforce any provision hereof. 6. Agreement not to constitute debt or obligation of the City Nothing herein shall be construed to constitute a debt or obligation of the City. Notwithstanding any other provision of this Agreement to the contrary , the Parties understand and acknowledge that the City is subject to Article X , § 20 of the Colorado Constitution ("TABOR"). This Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and , therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of the City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the City 's current fiscal period ending upon the next succeeding December 31. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated , budgeted , and otherwise made available in accordance with ordinances and resolutions of the City and other applicable law. 7. Cost-sharing a. Estimated Eligible City Fees, Charges and Taxes. The following are estimates of the Eligible City Taxes which are the subject of the cost-sharing herein . b. Cost-sharing. Pursuant to Code Sec. 22-88 , cost-sharing of the Eligible City Fees , Charges and Taxes may be granted up to the Expected Use Tax Revenue. It is anticipated that the Use Tax Revenue received from the Project is currently projected to 3 be $3 ,800. Notw ithstanding the foregoing , and in reliance upon the representation of Owner of the benefits to the City of the Project, the City and Owner agree to the cost- sharing for the Eligible City Fees , Charges and Taxes as follows: 1. 100% of the Eligible Use Tax shall be due and paid to the City by Owner for tenant improvements based upon review and approval by the City of properly documented requests for the same. Upon receipt thereof, the City shall refund 1 00% of such Eligible Use Tax back to the Owner in one equal payment. 8. Legal challenge In the event of legal challenge to the Program as applied to Owner, any costs scheduled to be shared-back to Owner shall be escrowed until resolution ofthe dispute. 9. Waiver of Code requirements To the extent any requirements of Code Sees. 22-85 through 22-96 have been waived, such waiver has occurred pursuant to Code Sec. 22-93 (c) whereby the City COlmcil has found by a ~ majority vote that such waiver is in the public 's interest and will provide a substantial benefit to the City. 10. No joint venture Pursuant to Code Sec. 22-95 , nothing herein shall be construed to create a joint venture between the City and Owner. Notwithstanding any provision hereof, the City shall never be a joint venture in any private entity or activity which participates in the Program , and the City shall never be liable or responsible for any debt or obligation of any participant , including the Owner, in the Program. 11. Use of funds Pursuant to Code Sec. 22-89 , Owner expressly acknowledges and agrees that any Eligible Use Tax refunded to the Owner under this Agreement, up to the amount agreed upon by the City Council pursuant to this Agreement may only be used for the purpose of the Project , as described in Paragraph 12 , on Owner's Property within the underlying Business Development Zone. 12. Uses enumerated Pursuant to Code Sec. 22-90 , the uses to which the Eligible Use Tax , Fees may be put to use by the Owner shall be strictly limited to those which are approved by the City Council and which relate directly to the Project within the City, which Project is anticipated to indirectly generate more mtmicipal sales and use tax revenues for the City in the future. Uses hereby expressly approved by City Council are as follows: -Remodel of a 1944 structure located on the main street in Wheat Ridge located at 6995 W. 38 111 A venue to include full gutting of structure; adherence to accessibility issues; placement of new ingress and egress sites that include a full 4 patio seating area; remodel of the kitchen to current code; parking lot improvements and new signage. 13. No covenant to construct or to operate. The intent of this Agreement is to provide for Owner's participation in the Program, in the event that Owner completes the Project. Notwithstanding any provision in this Agreement to the contrary , Owner shall have no obligation under this Agreement to complete the Project. In the event Owner fails to complete the Project , this Agreement may be terminated at the option of the City. 14. Remedies The Owner waives any constitutional claims against the City arising out of a breach of this Agreement. The Owner's remedies against the City under this Agreement are limited to breach of contract claims. In no event shall the City be liable for any form of damages , including without limitation: exemplary, punitive or consequential damages , including economic damages and lost profits. 15. Termination In the event Owner fails to comply with one or more of the terms of this Agreement, City may , in its sole discretion , terminate this Agreement. 16. Indemnification To the fullest extent permitted by law, Owner agrees to indemnify and hold the City harmless from any damage , liability or cost (including reasonable attorneys ' fees and cost of defense) to the extent caused by the Owner 's negligent acts , errors or omissions in the performance this Agreement and those of its sub-contractors, sub-consultants or anyone for whom the Owner is legally liable. To the extent permitted by the Colorado Constitution and statutes , the City agrees to indemnify and hold the Owner harmless from any damage , liability or cost (including reasonable attorneys ' fees and costs of defense) to the extent caused by the City 's negligent acts , errors or omissions arising from this Agreement. These defense and indemnification obligations shall survive the expiration or termination of this Agreement. The Parties acknowledge that the provisions of this Paragraph are not intended to waive or alter any of the rights and defenses afforded to the City under the common law, the Colorado Governmental Immunity Act , C.R.S. §§ 24-10-101 , et . seq. or any other law. 17. Severability If any part, term or provision of this Agreement or the Program is held by a court of competent jurisdiction to be illegal or in conflict with any law of the State of Colorado, the validity of the remaining portions or provisions shall not be affected , the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular pmt , term or provision held to be invalid , and the Parties shall cooperate to cure any legal defects in the Agreement or the Program . Should the sharing of Eligible City Fees , Charges and Taxes 5 pursuant to this Agreement be judicially adjudged illegal , invalid or unenforceable under the present or future laws effective during the Term of this Agreement by a court of competent jurisdiction in a final , non-appealable judgment, the Parties shall utilize their best, good faith efforts to restructure this Agreement or enter into a new agreement consistent with the purposes of this Agreement. Should the Parties be unsuccessful in their efforts , the Agreement shall terminate without penalty or recourse to either Party. 18. Governing law; venue The laws of the State of Colorado shall govern the validity , performance and enforcement of this Agreement. Should either Party institute legal suit or action for enforcement of any obligation contained herein , it is agreed that venue of such suit or action shall be proper and exclusive in the district court for Jefferson County , Colorado. 19. Notices All notices required or permitted under this Agreement shall be in writing and shall be hand delivered or sent by certified mail , return receipt requested, postage prepaid , to be addressed to the Parties set forth below. All notices so given shall be considered effective upon the earlier of the actual receipt or seventy-two (72) hours after deposit in the United States Mail with the proper address. Either Party by notice so given may change the address to which future notices shall be sent: Notice to the City: Copy to: Notice to the Owner: Copy to : 20. Entire agreement-amendments City Manager City of Wheat Ridge 7500 W. 291h Ave . Wheat Ridge , CO 80033 City Attorney City of Wheat Ridge 7500 W. 29111 Ave. Wheat Ridge , CO 80033 Eugene Kahng -President COLORADO PLUS LIQUID ART WORKS , INC. 6995 W. 38th Avenue , Wheat Ridge , CO 80033 This Agreement embodies the whole agreement of the Parties. There are no promises , terms, conditions, or obligations other than those contained herein , and this Agreement shall supersede all previous communications, representations or agreements , either verbal or written , between the Parties hereto. This Agreement may be amended only by written agreement between the Owner and the City acting pursuant to City Council authorization. 6 21. Effective date This Agreement shall be effective and binding upon the Parties upon the date first set forth above. IN WITNESS WHEREOF, Owner and City have each caused this Agreement to be executed by their authorized representatives. State of Colorado County of Jefferson ) ) ) OWNER OWNER, LLC ss. The foregoing Agreement was acknowledged before me this ~day of Ja 't!IIA ~ , 2013 , by E,JjCOC KAhnj ,Colorado Plus Liquid Art Works , Inc. WITNESS MY HAND AND OFFICIAL SEAL. My Commission expires: C!lfbt/ti I I NOTARY PUBLIC BRUCE A . ROOME NOTARY PUBLIC STATE OF COLORADO NOTARY 10 t 20024025566 MY COMMISSION EXPIRES AUGUST 08 2014 7 ATTEST: me: Janelle Shaver itle: City Clerk 8 EXHIBIT A SCOPE OF DEVELOPMENT The project is a brew-pub on 38 111 Avenue with interior seating for over 130 as well as exterior patio seating. They will have an on-site parking lot for 20 cars and a lot to the east for an additional 50 vehicles. They expect to have an initial staff of approximately 8-10 persons. New improvements being constructed include: Repaving of all parking areas Accommodate accessibility issues to the entire site Exterior renovations to enhance the visual realm of the surrounding area New landscaping After construction the project will provide: • The incremental future sales and use tax revenue expected from the development of this property is significant; • The project will generate many permanent good paying job opportunities , as well as good construction-related jobs during construction and the economic activity they bring to the surrounding neighborhood; • The project will construct improvements in the public right-of-way which will defer improvements being made by the city; and • The project is in conformance with the best aspects of the comprehensive plan. 9