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HomeMy WebLinkAboutResolution 2014-0023CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 23 Series of 2014 TITLE: A RESOLUTION CONCERNING THE PROPOSED REDEVELOPMENT AT THE SOUTHWEST CORNER OF WEST 39TH AVENUE AND KIPLING STREET, AND THE PROPOSED INCURRENCE OF A LOAN BY THE WHEAT RIDGE URBAN RENEWAL AUTHORITY TO BE SECURED BY CERTAIN TAX INCREMENT REVENUES GENERATED BY THE PROJECT; DECLARING THE CITY COUNCIL'S PRESENT INTENT TO APPROPRIATE FUNDS TO REPLENISH THE RESERVE FUND SECURING SUCH LOAN, IF NECESSARY; AND AUTHORJZING A REDEVELOPMENT AGREEMENT, A COOPERATION AGREEMENT AND OTHER RELATED ACTIONS IN CONNECTION WITH WHEREAS , the City is a home rule municipality and political subdivision of the State of Colorado organized and existing under a home rule charter pursuant to Article XX of the Constitution of the State of Colorado ; and WHEREAS , the City Council of the City (the "City Council ") established the Wheat Ridge Urban Renewal Authority d/b/a/ Renewal Wheat Ridge (the "Authority") on October 18 , 1981 , as an urban renewal authority pursuant to Colorado Revised Statutes, Part 1 of Title 31 , Article 25, as amended ; and WHEREAS , the City Council has adopted the 1-70/Kipling Corridors Urban Renewal Plan , as amended (the "Urban Renewal Plan " or the "Plan") for the area described therein (the "Urban Renewal Area "); and WHEREAS, Millennium Venture Group, Inc., a Delaware corporation (the "Developer") has one or more contracts to purchase certain real property consisting of approximately 6 .5 acres which is located at the southwest corner of West 38th Avenue and Kipling Street (the "Property"), which is in the Urban Renewal Area ; and WHEREAS , the Developer has submitted a proposal to the City and the Authority to redevelop the Property (the "Project"); and WHEREAS , the City has determined and hereby determines that it is in the best interests of the City and its citizens to assist in the redevelopment of the Project in order to promote employment and increase sales tax revenues; and WHEREAS , the Authority has determined that the redevelopment of the Project in order to remediate blight is consistent with and in furtherance of the purposes of the Authority and the Plan ; and WHEREAS , the Urban Renewal Plan contemplates that a primary method of financing projects within the Urban Renewal Area will be through the use of property tax increment revenues and City sales tax increment revenues ; and WHEREAS, the Plan adopted the utilization of property and sales tax increment for the Property and authorizes the Authority to pledge all or any portion of such property tax increment revenues and City sales tax increment revenues to finance public infrastructure that benefits the Urban Renewal Area pursuant to one or more Cooperation Agreements (as defined therein ); and WHEREAS, the City , the Authority and the Developer desire to enter into a Redevelopment Agreement (the "Redevelopment Agreement"), attached hereto as Exhibit A , that sets forth the rights and responsibilities of each party with respect to the financing and construction of the Project; and WHEREAS , in order to finance certain eligible improvements for the Project, the Redevelopment Agreement provides that , upon compliance with certain conditions precedent , the Authority will issue bonds or enter into a loan with a bank or other financial institution (the "Lender") in the maximum amount of $2 .6 million (the "Loan ") with such Loan to be payable from property tax increment revenues and sales tax increment revenues to be generated from the redevelopment of the Project; and WHEREAS , it is expected that the Loan will be secured by a reserve fund (the "Reserve Fund ") to be held by the Lender and that such Reserve Fund will be required to be maintained in an amount equal to the Reserve Fund Requirement (as defined in the Redevelopment Agreement); and WHEREAS , in connection with the closing on the Loan and in order to help facilitate the redevelopment of the Project, the City Council wishes to make a non- binding statement of its present intent with respect to the appropriation of funds for the replenishment of the Reserve Fund , if necessary , and to authorize and direct the City Manager to take certain actions for the purpose of causing requests for any such appropriation to be presented to the City Council for consideration ; and WHEREAS , in order to help facilitate the redevelopment of the Project, the City desires to appropriate between $800 ,000 and $1 ,000 ,000 of City moneys to finance a portion of certain eligible improvements for the Project in accordance with the terms and prov isions of the Redevelopment Agreement; and WHEREAS , in connection with the redevelopment of the Project and the incurrence of the Loan by the Authority , it is necessary and in the best interests of the City to enter into a Cooperation Agreement (the "Cooperation Agreement"), attached hereto as Exhibit 8 , between the City and the Authority; and WHEREAS , there has been filed w ith the City Clerk of the City (the "City Clerk ") the proposed form of the Redevelopment Agreement and the proposed form of the Cooperation Agreement ; and 2 WHEREAS , capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Redevelopment Agreement. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge , Colorado , that: Section 1. Finding of Best Interests and Public Purpose . The City Council hereby finds and determ ines , pursuant to the Constitution , the laws of the State and the City's home rule charter (the "Charter"), and in accordance with the foregoing recitals , that adopting this Resolution , entering into the Redevelopment Agreement and the Cooperation Agreement , and facilitating the issuance of the Loan by the Authority to finance the redevelopment of the Project are necessary , convenient , and in furtherance of the City's purposes and are in the best interests of the inhabitants of the City. Sect ion 2. Replenishment of Reserve Fund ; Declaration of Intent. To the extent that the Authority enters into the Loan with the Lender in accordance with the terms and provisions of the Redevelopment Agreement and the Loan is secured by a Reserve Fund that is held by the Lender, the following provisions shall apply. Within 90 days after the City's receipt of a written notice from the Lender (the "Written Notice") of a draw on the Reserve Fund , to the extent that such draw has not been replenished by another source, the City shall replenish the Reserve Fund to the Reserve Fund Requirement from legally available funds of the City , subject to appropriation by the City Council in its sole discretion . Any such City payment (the "City Payment") shall be made directly to the Lender for deposit in the Reserve Fund in immediately available funds pursuant to the instructions set forth in the Written Notice. It is the present intention and expectation of the City Council to appropriate the City Payment requested in any such Written Notice received by the City , w ithin the limits of available funds and revenues , but this declaration of intent shall not be binding upon the City Council or any future City Council in any future fiscal year. The City Payments shall constitute currently appropriated expenditures of the City. This Resolution shall not create a general obligation or other indebtedness or multiple fiscal year direct or indirect debt or other financial obligation of the City within the meaning of its Charter or any constitutional debt limitation , including without limitation Article X, Section 20 of the Colorado Constitution . Neither this Resolution nor the issuance of the Loan by the Authority shall obligate or compel the City to make City Payments in the event of a draw on the Reserve Fund beyond those appropriated in the City Council 's sole discretion. Section 3. Direction to City Manager. In the event of a draw on the Reserve Fund that has not been replenished from another source , the Lender may submit the Written Notice to the City Manager, with such Written Notice setting forth the amount required to be paid by the City to restore the Reserve Fund to the Reserve Fund Requirement after replenishment from all other ava ilable sources . The Written Notice shall also include instructions for making the City Payment. Upon receipt of a Written Notice by the City Manager, the City Council hereby authorizes and directs the City Manager to prepare and submit to the City Council a request for an appropriation of 3 the amount set forth in the Written Notice . Such request shall be made in sufficient time to enable the City to make the City Payment within 90 days of receipt of the Written Notice as provided in Section 2 hereof. Section 4 . Repayment of Amounts Appropriated . In the event that the City Council appropriates funds to make the City Payment as contemplated by Section 2 hereof, any amounts actually transferred by the City to the Lender in accordance with the provisions of Section 2, shall be treated as an advance under the Cooperation Agreement and shall be repaid by the Authority in accordance with the provisions of the Cooperation Agreement , on a basis expressly subordinate and junior to that of the Loan and any other obligations or indebtedness that are secured or payable in whole or in part by the Pledged Revenues on a parity with the Loan . Section 5. Limitation to Loan . Unless otherwise expressly provided by a subsequent resolution of the City Council , the provisions of this Resolution relating to the replenishment of the Reserve Fund shall apply only to the replenishment of the Reserve Fund that secures the payment of the Loan and shall not apply to any other reserve funds established in connection with the issuance of any other obligations . Section 6 . Approval of Redevelopment Agreement and Cooperation Agreement. The Redevelopment Agreement and the Cooperation Agreement , in substantially the forms on file with the City Clerk , are in all respects approved , authorized and confirmed . The Mayor is hereby authorized and directed to execute and deliver the Redevelopment Agreement and the Cooperation Agreement, for and on beha lf of the City, in substantially the forms and with substantially the same contents as are on file with the City Clerk, provided that such documents may be completed , corrected or revised as deemed necessary by the parties thereto in order to carry out the purposes of this Resolution . The execution of the Redevelopment Agreement and the Cooperation Agreement by the Mayor shall be conclusive evidence of the approval by the City Council of such documents in accordance with their respective terms . Section 7. Direction to Act. The City Clerk is hereby authorized and directed to attest all signatures and acts of any official of the City in connection with the matters authorized by this Resolution and to place the seal of the City on any document authorized and approved by this Resolution. The Mayor, the City Manager, the City Clerk , the City Attorney , and all other appropriate officials or employees of the City are hereby authorized and directed to execute and deliver for and on behalf of the City any and all additional certificates , documents , instruments and other papers , and to perform all other acts that they deem necessary or appropriate, in order to facilitate the redevelopment of the Project and implement and carry out the transactions and other matters authorized by this Resolution . Section 8 . Ratification . All actions (not inconsistent with the provisions of this Resolution) heretofore taken by the City Council or the officers , employees or agents of the City directed toward the redevelopment of the Project , the issuance of the Loan by the Authority , and the execution and delivery of the Redevelopment Agreement and the Cooperation Agreement are hereby ratified, approved and confirmed . 4 Section 9. Severability . If any section , subsection , paragraph , clause or provision of this Resol ution or the documents hereby authorized and approved shall for any reason be held to be invalid or unenfo rceable , the invalidity or unenforceability of such section , subsection , paragraph , clause or provision shall not affect any of the remaining provisions of this Resolution or such documents, the intent being that the same are severable . Section 1 0. Repealer. All prior resolutions , or parts thereof, inconsistent herewith are hereby repealed to the extent of such inconsistency. Section 11 . Effectiveness . This Resolution shall take effect immediately. DONE AND RESOLVED this 14th day of April, 2014 . '"\ ( I [SEAL] Attest: 20657842 v2 5 EXHIBIT A REDEVELOPMENT AGREEMENT THIS REDEVELOPMENT AGREEMENT (this "Agreement") dated as of April _, 2014, is made by and among WHEAT RIDGE URBAN RENEWAL AUTHORITY d/b/a/ RENEWAL WHEAT RIDGE, an urban renewal authority and a body corporate and politic of the State of Co lorado (the "Aut h ority''), MILLENNIUM VENTURE GROUP, INC., a Delaware corporation (the "Developer") and the CITY OF WHEAT RIDGE, COLORADO, a home rule municipality and political subdivision of the State of Colorado (the ·'City"). The Authority, the Developer, and the City are sometimes collectively called the "Parties," and individually, a "Party." RECITALS AJI capitalized terms used , but not defined, in these Recitals, have the meanings ascribed to them in this Agreement. The Recita ls are incorporated to this Agreement as though fully set forth in the body of this Agreement. WHEREAS, the City is a home rule municipality and political subdivision of the State of Colorado organized and existing under a home rule charter pursuant to Article XX of the Constitution of the State of Colorado ; and WHEREAS, the City Council of the City (the "City Council"') established the Authority on October 18 , 198 1 : and WHEREAS, the City Council has adopted the 1-70/Kipling Corridors Urban Renewal Plan, as amended (the "Urban Renewal Plan" or the "Plan"): and WHEREAS, the Developer has a contract to purchase all of the real property described in Exhib it A attached hereto, consisting of approximately 6.5 acres, which is located at the southwest comer of West 38th Avenue and Kipling Street (the "Property"), which is in the Urban Renewal Area and in the TJF Area; and WHEREAS, the Developer has submitted a proposal to the City and the Authority to redevelop the Property (the ''Project"); and WHEREAS, the City bas determined that it is in the best interests of the City and its citizens to assist in the redevelopment of the Project in order to promote employment and increase sales tax revenues ; and WHEREAS, the Authority bas determined that the redevelopment of the Project in order to remediate blight is consistent with and in furtherance of the purposes of the Authority and the Urban Renewal Plan; and WHEREAS, in order to facilitate the acquisition, construction and installation of the Project, the City and the Authority desire to finance certain Eligible Improvements related to the Project in the aggregate amount of$3.000,000; and WHEREAS, pursuant to the Act and the Urban Renewal P lan, the Authority may finance undertakings pursuant to the Plan by any method authorized under the Act or any other applicable Jaw, including without limitation , issuance of note s, bonds and other obligations in an amount sufficient to finance all or part of the Plan; borrowing of funds and creation of indebtedness ; advancement of reimbursement agreements; agreements with public or private entities; and loans, advances and grants from any other available sources; and the Plan authorizes t he Authority to pay the principal, interest, costs and fees on any indebtedness with any lawfully available funds of the Authority; and WHEREAS , the Urban RenewaJ Plan contemplates that a primary method of financing projects within the Urban Renewal Area wi ll be through the use of property tax increment revenues and City sales tax increment re ve nues ; and WHEREAS, the Plan adopted the utilization of property and sales tax increment for the properties located in the TIF Area and authorized the Authority to pledge all or any port ion of such property tax increment revenues and City sales tax increment revenues to finance public infrastructure that benefits the Urban Renewal Area pursuant to one or more Cooperation Agreements (as defined therein); and WHEREAS , in order to finance a portion of the E li gible Improvements for the Project, the Authority desires to enter into a loan with BOKF, NA, d/b/a Colorado State Bank and Trust (the '·Lender") in the maximum amount of $2,615,000 (the .. Loan ") with s uch Loan to be repayable solely from property tax increment revenues and sales tax increment revenues to be generated from the redevelopment of th e Project ; and WHEREAS , in connection with the Closing on the Loan and in order to help faci li tate the redeve lopment of the Project, the City w ill adopt a resolution (the ''Replenishment Resolution ") setting forth its non-binding statement of present intent to appropriate funds to replenish the Reserve Fund securing the Loan in the event of a draw on such Reserve Fund; and WHEREAS , in order to help facilitate the redevelopment of the Project, the City desires to contribute between $800,000 and $1,000,000 (the "City Contribution") of City moneys to finance a portion of the Eligible Improvements for the Project ; and WHEREAS , the Parties have agreed to enter into thi s Agreement for the redevelopment of the Property in accordance with the Urban Renewal Plan and the Act. NOW THEREFORE , In considerat io n of the mutual covenants and promises of the Parties contained in this Agreement. and other valuable consideration, the receipt and adequacy of which are acknowledged , the Parties agree to the term s and conditions in this Agreement. 2 AGREEMENT 1. DEFI N I T IONS. In this Agreement, unless a different meaning clearly appears from the conte>.1 , capitalized terms mean: "Ac t " means the Colorado Urban Renewal Law, P art 1 of Article 25 of Title 31 of the Co lorado Revised Statutes. "Agreeme n t'· means this Redevelopment Agreement, as it may be amended or s upplemented in writing . References to sections or exhibits are to this Agreement unless otherwise qualified . All exhibits are incorporated to this Agreement. "Authority " means Wheat Ridge Urban Renewal Authority d/b/a Renewal Wheat Ridge, an urban ren ewal aut h ority and a body corporate and pol itic of the State of Colorado which has been duly created, organized , established and authorized by the City to transact business and exercise its powers as an urban renewal authority , all under and pursuant to the Act, and its s uccesso rs and assigns. "Clo sing" s hall mean the d ate of the Clos ing of the Loan and the deposit of the net proceeds of the Loan into the Loan Proceeds Account of the Project Fund . '·City" means the City of Wheat Ridge, Colorado, a home ru le municipality and political subdivision of t he State of Co lorad o orgaruzed and existing under a home ru le ch arter p urs u ant to Article XX of the Constitution of the S tate of Co lorado. "Ci ty Contribution, means moneys appropriated by the City to finance the City F inanced Improvements, in an amount not les s than $800,000 nor more than $1 ,000,000. The actual amount of the City Contribution s hall be determined as set forth in Section 6.2 of this Agreement. "City C ontribution Account" means that cert ain account of the Project Fund held by the City into which the net proceeds of t he City Contri bution shall be depos ited , and from which the Developer s hall be reimbursed for the Eli gible Costs associated with the City Financed Improvements after the submission of a Requisition meeting the requ irements of Exhibit E . "C ity F inanced Improv ements" means the Eligible Improvements that are eligible fo r reimbursement from th e City Contribution, which the Developer will acquire , construct or install on the Property as part of the Project, as further described in Exhibit D , as amended in accordance with this Agreement. "C ity Manager" means the C ity Manager of the City. "C ity Require m e nts " means, collectively, the Wheat Ridge Zoning and Development Code, Architectural and Site Design Manual, Subdivision Improvement Agreement, Streetscape Design Manual , International (Building) Codes and Site Drainage Requirements , except as may be amended at the City's sole discretion through s ite p lan or building permit approv als. 3 ·'Commence Construction" or "Commencement of Construction'' means the commencement by the Developer of actual physical work on the Project , including, but not limited to , deconstruction. demolition and site grading on the Property as required to carry out the Project. "Complete Construction'' or "Completion of Construction" means construction acceptance in accordance with the City Requirements, applicable laws, ordinances. and regulations of the City and any other governmental entity or public utility with jurisdiction, subject to any applicable conditions of maintenance and warranty, including without limi tation, the issuance of a certificate of occupancy by the City so that the portion of the Project described in such certificate may open for pennanent occupancy and utilization for its intended purposes. "Costs of Issuance" means the reasonable and necessary costs incurred in connection with the Loan , the City Contribution and this Agreement, including, without limitation, funding the Reserve Fund , capitalized interest on the Loan, financial co nsultant fees , fees and expenses of bond counsel , fees and expenses of the City and the Authority. including but not limited to counsel to the City and the Authority , and economic analysis and financial consulting services for the City and the Authority, and fees and eligible expenses of the Developer related to tbis Agreement and financing the Eligible Improvements. "Default" or ''Event of Default" means any of the events described in Section 17 ; provided , however, that such events will not give rise to any remedy until effect has been given to all grace periods. cure periods and periods of enforced delay provided for in this Agreement. '·Developer" means Millennium Venture Group, Inc .. a Delaware corporation and any successors and assigns approved in accordance with this Agreement. "Developer Advances•· means, collectively , amounts advanced or incurred by the Developer to pay any Eligible Costs. "Effective Date" means the date of this Agreeme nt. "Eligible Costs'' means, collectively , the reasonable and customary expenditures for the acquisition , design , construction and installation of the E li gible Improvements as set forth in Exhibit D , as it may be amended hereunder, whlch shall be certified and approved in accordance with Exh ibit E. The maximum amount of Eligible Costs to be paid or reimbursed pursuant to this Agreement shall be $3 ,000,000. Eligible Costs shall not include interest on Developer Advances. "Eligible Improvements" means, collectively, the City Financed Improvements and the Loan Financed Improvements, as set forth on Exhibit D , as amended in accordance with this Agreement. Eligible Improvements includes both improvements that are financed by the City Contribution and improvements that are financed by the proceeds of the Loan. "Executive Director" means the Executive Director of the Authority . "Exhibits·• The following Exhibits are a part of this Agreement: 4 Exhibit A: Legal Description of the Property Exhibit B: Description of TIF Area Exhibit C: Description of the Project Exhibit D: Eligible Improvements Exhibit E: Procedure for Documenting, Certifying and Paying Eligible Costs Exhibit F: Loan Commitment from Lender Exhibit G: Form of Subdivision Improvement Agreement "Lender" means BOKF, NA, d/b/a Colorado State Bank and Trust, and its successors; provided, however, that if the Authority determjnes to enter into the Loan with an alternative lender, the term "Lender" shall mean such alternative lender and its successors. "Loan" means the loan in the maximum amount of $2,615,000 from the Lender to the Authority, which is repayable from the Pledged Revenues ; provided , however, that if the Lender does not fund such loan for any reason and the Authority determines to enter into an alternative loan with an alternative lender, "Loan " shall mean any such alternative loan that is satisfactory to the Authority and the City Manager. "Loan Agreement" means the agreement between the Lender and the Authority to be executed and delivered in connection with the Closing on the Loan. "Loan Commitment'' means the commitment from the Lender to the Authority to make the Loan, as set forth in Exhibit F . "Loan Documents" means the Loan Agreement and any other agreements or documents , including an opiruon of bond counsel as to the tax-exempt status of the interest on the Loan, as are necessary or desirable to effectuate the making of the Loan. "Loan Financed Improvements" means the improvements that are eligible for reimbursement from the Loan proceeds, which improvements the Developer intends to acquire, construct or install on the Property as part of the Project, as further described in Exhibit D, as amended in accordance with this Agreement. "Loan Proceeds Account" means that certain account of the Project Fund held by the City into which the net proceeds of the Loan shall be deposited , and from which the Developer shall be reimbursed for the Eligible Costs associated with the Loan Financed Improvements after the submission of a Requisition meeting the requirements of Exhibit E . "Party" or "Parties'' means one or all of the parties to this Agreement. "Pledged Property Tax Increment Revenue" means the annual ad valorem property tax revenue received by the Authority from the Jefferson County Treasurer in excess of the 5 amount produced by the levy of those taxing bodies that levy property taxes against the Property Tax Base Amount in the TIF Area in accordance with the Act and the regulations of the Property Tax Administrator of the State of Colorado , but not including, (a) the 7.5000 mills imposed by the Wheat Ridge Fire District; and (b) any offsets collected by the Jefferson County Treasurer for return of overpayments or any reserve funds retained by the Authority for such purposes in accordance with Sections 31-25-107(9)(a)(III) and (b) of the Act. "Pledged Sales Tax Increment Revenues" means, for each year that the Loan is outstanding, that portion of the Sales Tax revenue received by the City , and remitted to the Authority in accordance with the Act and the Plan, equal to the product of the Sales Tax rate of 3.00% times the amount of the taxable transactions subject to the Sales Tax in the TIF Area, less the Sales Tax Base Amount. "Pledged Revenues" means, collectively, the Pledged Property Tax Increment Revenues and the Pledged Sales Tax Increment Revenues. ·'Project" means the redevelopment of approximately 6.5 acres of land located at the southwest comer of West 38th Avenue and Kipling Street, as further set forth in Exhibit C. "Project Fund" means the fund to be created and held by the City that will include: (a) the Loan Proceeds Account , into which net proceeds of the Loan will be deposited to pay all or a portion of the Eligible Costs of the Loan Financed improvements , and (b) the City Contribution Account, into which the net proceeds of the City Contribution will be deposited to pay all or a portion of the Eligible Costs of the City Financed Improvements . "Property" means the real property described in Exhibit A, which is either owned by Developer or the Developer has a contract to purchase such property. "Property Tax Base Amounf' means the amount certified by the Jefferson County Assessor as the valuation for assessment of all taxable property with the TIF Area in accordance with Section 31-25-1 07(9)(a)(I) of the Act. The Property Tax Base Amount and increment value shall be calculated and adjusted from time to time by the Jefferson County Assessor in accordance with Section 31-25-1 07(9) of the Act and the rules and regulations of the Property Tax Administrator of the State of Colorado. "Replenishment Resolution'' means that certain resolution to be adopted by the City on or prior to the Effective Date setting forth the City's present intention to consider appropriating funds to replenish the Reserve Fund securing the Loan in the event of a draw on the Reserve Fund. Any such replenishment of the Reserve Fund shall be subject to annual appropriation in the sole discretion of the City Council , and shall not create a debt or indebtedness or other multiple fiscal year fmancial obligation of the City. The Replenishment Resolution shall take effect on the date of Closing on the Loan. "Requisition" means a request for reimbursement for Eligible Costs submitted by the Developer in accordance with Exhibit E. "Reserve Fund" means the Reserve Fund held by the Lender in the amount of the Reserve Fund Requirement and securing the payment of the Loan. 6 "Reserve Fund Requirement" means an amount equal to the least of: (a) 10% of the original principal amount of the Loan; (b) 125% of the average annual debt service requirements of the Loan; and (c) 1 00% of the maximum annual debt service requirements of the Loan. The Reserve Fund Requirement may be recalculated in the event of a prepayment of a portion of the Loan, or as otherwise set forth in the Loan Documents. "Sales Taxn means the municipal sales tax of the City impo sed at the rate of 3.00% on sales of goods and services that are subject to municipal sales taxes pursuant to the Wheat Ridge City Code. In the event that the Sales Tax is subsequently increased above 3.00%, the amount of Sales Tax subject to this Agreement shall not be increased above 3.00% unless otherwise authorized by the City Council. "Sales Tax Base Amount" means the total collection of sales taxes levied at the rate of 3.00% within the TIF Area for the applicable twelve-month period in accordance with Section 31-25-1 07(9)(a)(I) of the Act. ''Senior Housing Component" means a 64-unit assisted living and memory care senior housing facility, which is expected to be a joint venture between the Developer and MorningStar Senior Living, which will be located on the Property. "Special Fund'' means the special fund of the Authority defined in Section 1 07(9)(a)(II) of the Act. "Subdivision Improvement Agreement" means that Subdivision Improvement Agreement for the Project to be submitted by the Developer to the City in substantially the form set forth hereto as Exhibit G. "TIF Area" means that part of the urban renewal area described in the Urban Renewal Plan as described and depicted in Exhibit B, within which the tax increment provisions of Section 31-25-1 07(9) of the Act apply. "Urban Renewal Plan" or "Plan" means the I-70/Kipling Corridors Urban Renewal Plan approved by the City Council, as amended, and as may hereinafter be amended from time to time. 2. FINANCING AND CONSTRUCTION OF PROJECT. 2.1 Construction of Project. As set forth in Section 4 of this Agreement, the Developer shall construct the Project, including without limitation, all Eligible Improvements, and shall be responsible for compliance in all respects with the City Requirements . 2.2 Financing the Eligible Improvements. There shall be deposited in the Project Fund net proceeds of the Loan and the City Contribution in the amount of $3,000,000, which shall be applied to the payment or reimbursement of Eligible Costs in accordance with this Agreement and Exhibit E hereto. The City Contribution and the Loan may also be used to pay Costs of Issuance, but shall be in addition to the $3,000,000 of net proceeds deposited in the Project Fund. The net proceeds from the City Contribution shall be deposited in the City Contribution Account and applied to the payment or reimbursement of City Financed 7 Improvements upon compliance with the provisions of this Agreement and Exhibit E attached hereto. The net proceeds from the Loan shall be deposited in the Loan Proceeds Account of the Project Fund and applied to the payment or reimbursement of the Loan Financed Improvements, upon compliance with the provisions of this Agreement and Exhibit E attached hereto. The Project Fund shall be held by the City as a separate trust account and moneys therein shall be disbursed to pay Eligible Costs in accordance with the terms and provisions of this Agreement. 3. CONDITIONS PRECEDENT. 3.1 Conditions Precedent. Unless waived in writing by the City Manager and the Executive Director, the following conditions precedent shall be satisfied prior to (i) the deposit of the net proceeds of the City Contribution into the City Contribution Account ; (i i) the Closing on the Loan and the deposit of the net proceeds thereof into the Loan Proceeds Account ; and (iii) the effective date of the Replenishment Resolution: (a) The Developer shall have acquired the Property or have in its possession a fully-executed purchase and sale agreement for all of the parcels of land comprising the Property and shall have provided evidence of the same in a form satisfactory to the City Manager and the Executjye Director. (b) The Developer shall provide to the City Manager evidence satisfactory to the City Manager that the Developer has obtained the equity and private financing above the $3,000,000 provided for in this Agreement necessary to acquire the Property and construct a 27,000 square foot retail grocery store and horizontal improvements necessary to support such store on the Property. (c) The Developer shall have obtained an executed lease agreement from SFM , LLC, a Delaware limited liability company, for a retail grocery store known as "Sprouts Farmers Market" on the Property consisting of at least 27,000 square feet (the "Sprouts Store"). (d) The Developer shall have obtained, or shall have shown progress toward obtaining in a manner satisfactory to the City Manager, an executed lease agreement from Starbucks for a drive-thru Starbucks store on the Property. (e) The Developer shall have obtained an executed purchase and sale agreement with MVG-MS (Wheat Ridge) LLC for the sale of a portion of the Property for the Senior Housing Component. (f) The Developer shall have submitted Site Plans to the City for the Sprouts Store and for the Senior Housing Component, and the Site Plans for the Sprouts Store shall be substantially complete to the satisfaction of the City Manager. (g) No Events of Default shall have occurred and be continuing under this Agreement. (h) To the extent that any portion of the Loan is tax-exempt, the Authority shall receive an opinion of nationally recognized bond counsel selected by the Authority 8 that the interest on such portion of the Loan is excludable from gross income under federal income tax Jaws pursuant to Section 103 of the Internal Revenue Code of 1986, as amended to the date thereof. 4 . DEVELOPER. 4 .1 Acquisition, Construction and Installation of Project. The Developer shall be responsible for the financing , design, acquisition , construction and installation of the Project. The design and construction of the Project shall comply in all material respects with all applicable codes and regulations of entities having jurisdiction, including the City Requirements. The Developer will pay or cause to be paid all required fees and costs, including those imposed by the City, in connection with the design , construction, applicable warranty requirements , and use of the Project. The Developer agrees to Commence Construction of the Project by May 3 I, 2014 and to reasonably proceed with the Project until Completion of Construction of the Project, which shall be no later than December 31 , 2015, unless otherwise agreed to in writing by the City Manager and the Executive Director. 4.2 Construction of Eligible Improvements . The Developer shall acquire, construct and install the Eligible Improvements set forth in Exhibit D hereto, as it may be amended in accordance with this Agreement. Such Eligible Improvements shall be fmanced with the moneys available in the Project Fund , and, if necessary , other financing sources obtained by the Developer. The list of Eligible Improvements set forth in Exhibit D may be amended at the written request of the Developer with the written consent of the City Manager and the Executive Director, provided, however, that in connection with any amendment of the Loan Financed Improvements , that the Developer obtain an opinion of nationally recognized bond counsel that such amendment will not adversely affect the tax-exempt status of interest on the portion of the Loan that is tax-exempt. 4.3 Access to Property. Developer will permit representatives of the City and the Authority access to the Property and the Project at reasonable times during regular business hours and with prior notice as necessary for the purpose of carrying out or determining compliance with this Agreement, the Urban Renewal Plan, the City Requirements or any City code or ordinance, including, without limitation, inspection of any work being conducted. 4.4 Maintenance of Project. The Developer shall be responsible for the maintenance of those portions of the Project owned by Developer, except as hereinafter provided. The City shall be responsible for the maintenance of any portions of the Project that are dedicated to the City, subject to any applicable warranty periods. 4.5 Appeal of Property Taxes. The Developer shall provide written notice to the City and to the Authority of any requested reduction by the Developer in any portion of the Property 's real property tax assessed valuation or abatement of any portion of the Property's real property taxes. 9 4.6 Notification of Sale of Property. The Developer shall provide written notice to the City and the Authority of any sale of all or any portion of the Property by the Developer during the term of this Agreement. 4.7 Conditions Precedent to Developer's Obligations. Notwithstanding anything to the contrary in this Agreement, Developer's obligations in this Section 4 are conditioned upon (i) the deposit of the net proceeds of the City Contribution into the City Contribution Account and (ii) the Closing on the Loan and the deposit of the net proceeds thereof into the Loan Proceeds Account. 5. THE AUTHORITY. 5.1 Origination and Repayment of Loan. The Authority covenants and agrees that within thirty (30) days after compliance with the conditions precedent set forth in Section 3 hereof, it will use good faith efforts to enter into the Loan with the Lender substantially in accordance with the Loan Commitment attached hereto as Exhibit F and it will execute and deliver the Loan Agreement and any other Loan Documents necessary or desirable to effectuate the Closing on the Loan, and that it will pledge the Pledged Revenues for the repayment of the Loan substantially in accordance with the terms and provisions of this Agreement and the Loan Commitment. The Loan shall be a special and limited obligation of the Authority payable solely from the Pledged Revenues. Notwithstanding the foregoing , however, o r anything to the contrary contained herein , in the event that the Lender informs the Authority that it will not fund the Loan for any reason, the Authority agrees to use good faith efforts to obtain an alternative loan from an alternative lender on terms and conditions satisfactory to the Developer, the City and the Authority . In the event that the Loan does not Close and the Authority is not able to obtain an alternative loan that is satisfactory to the Developer, the City and the Authority , the Parties agree that they will negotiate in good faith to enter into a sharing agreement pursuant to which the Pledged Revenues will be remitted to the Developer as received by the Authority to pay or reimburse the Developer for eligible costs incurred in connection with the acquisition, construction and installation of the Eligible Improvements plus reasonable interest thereon. 5.2 Special Fund. The Authority agrees to establish the Special Fund in accordance with the provisions of the Act and to deposit the Pledged Revenues into the Special Fund upon receipt of the same. All Pledged Revenues on deposit in the Special Fund shall be pledged to the repayment of the Loan for as long as the Loan remains outstanding. The Loan Agreement shall set forth the process for remitting the Pledged Revenues to the Lender in repayment of the Loan. 5.3 No Election Required. The Parties acknowledge that, according to the decision of the Colorado Court of Appeals in Olson v . City of Golden, 53 P.3d 747 (2002), an urban renewal authority is not a local government and therefore is not subject to the provisions of Article X, Section 20 of the Colorado Constitution. Accordingly. the Authority may enter into the Loan with the Lender and agree to remit the Pledged Revenues to the Lender in accordance with the provisions of this Agreement and the Loan Documents without electoral authorization , and such obligations are not subject to annual appropriation. 10 5.4 No Impairment. The Authority will not enter into any agreement or transaction that impairs the rights of the Parties, including, without limitation , the right to receive and apply the Pledged Revenue in accordance with the terms and provisions of this Agreement and the Loan Documents. 6. THECITY. 6.1 Replenishment Resolution. On or prior to the Effective Date , the City shall have adopted the Replenishment Resolution evidencing its present intention of considering the appropriation of funds to replenish the Reserve Fund to the Reserve Fund Requirement in the event of a draw on the Reserve Fund; provided, however, that the Replenishment Resolution shalJ take effect onJy upon the Closing of the Loan. If the Loan or an alternative loan satisfactory to the Developer, the City and the Authority does not Close for any reason, the Replenishment Resolution shall be of no force and effect. 6 .2 City Contribution. On or prior to the Effective Date, the City shall have appropriated the City Contribution. Upon compliance with the conditions precedent set forth in Section 3 hereof and the Closing of the Loan, the City shaH deposit the net proceeds of the City Contribution into the City Contribution Account. The net amount of the City Contribution to be deposited in the City Contribution Account shall be equal to the difference between $3,000 ,000 and the net proceeds of the Loan to be deposited in the Loan Proceeds Account, provided that the gross amount of the City Contribution shall not be less than $800 ,000 nor more than $1 ,000 ,000. In the event that the Loan does not Close, the City shall not be required to apply all or any portion of the City Contribution to the payment or reimbursement of Eligible Costs for Eligible Improvements . Notwithstanding the foregoing, however, in the event that the conditions precedent set forth in Section 3 hereof have been satisfied , but the Loan does not Close, the City Manager, in his sole discretion, may apply all or any portion of the City Contribution, in an amount not exceeding $1 ,000,000, to the payment or reimbursement of Eligible Costs incurred in connection with Eligible Improvements. Upon a determination by the City Manager to apply the City Contribution to such payment or reimbursement, the City Manager shall determine the process by which such payment or reimbursement shall be made. Neither the Authority nor the Developer shall have any obligation to repay the City for the City Contribution and the Pledged Revenues shall not be pledged to the repayment of the City Contribution. 6.3 Collection of Pledged Sales Tax Increment Revenues. The City covenants and agrees to collect the Pledged Sales Tax Increment Revenues and remit the same to the Authority in accordance with the Act, this Agreement and the Urban Renewal Plan for so long as the Loan remains outstanding in accordance with the terms and provisions of the Loan Agreement. Upon payment in full of the Loan in accordance with the Loan Documents, the lien on the Pledged Sales Tax Increment Revenues shall be discharged and the City shall no longer be required to remit any Sales Tax increment revenues from the Property to the Authority. In the event that the Loan does not Close , but the Parties enter into an agreement to share the Pledged Revenues in accordance with Section 5.1 hereof, the City shall comply with the 11 tenns and provis ion s of any such sharing agreement relating to collecting and remitting the Pledged Sales Tax Increment Revenues to the Authority. 6.4 Administration of the Project Fund. The City covenants and agrees that it will create the Project Fund, and the City Contribution Account and the Loan Proceeds Account therein , and administer the Project Fund as a trus t account in accordance with the terms and provisions of this Agreement and Exhibit E hereto . The City shall not be paid a fee for administering the Project Fund. 7. PAYMENT OR REIMBURSEMENT OF ELIGIBLE COSTS. The Developer shall be paid or reimbursed for Eligible Costs from moneys on deposit in the Project Fund held by the City upon compliance with the requirements of this Agreement and the Requisition process set forth in Exhibit E hereto, or as otherwise agreed to in writing by the Parties. In the event that Developer Advances are made to finance Eligible Costs, the Developer may seek reimbursement for the principal amount of any Developer Advances, but shall not be reimbursed for any interest accruing on Developer Advances. 8. BOOKS AND ACCOUNTS: INSPECTION OF RECORDS. The City and the Authority will keep proper and current itemized records, books, and accounts in which complete and accurate entries will be made of the receipt and use of all amounts of revenue received from any and all sources and such other calculations required by this Agreement, the Loan Documents, and any applicable law or regulation. The Developer shall keep accurate books and records of all costs incurred in connection with the design. management. acquisition. construction and warranty (as applicable) of the Eligible Improvements, and the receipt of payment or reimbursement of Eligible Costs. During reguJar business hours and upon reasonable advance notice, the City, the Authority or its respective designee is hereby authorized to review the Developer's books and records relating to the Eligible Improvements and the receipt of payment or reimbursement of Eligible Costs. AJJ books, records and reports (except those allowed or required by applicable law to be kept confidential) in the possession of the City and the Authority relating to the collection and disbursement of the Pledged Revenues and the payment of the Eligible Costs shall at all reasonable times be open to inspection by such accountants or other agents as the respective Parties may from time to time designate. 9 . TNSURANCE . On or prior to the Commencement of Construction the Developer will provide the City and the Authority with certificates of insurance showing that the Developer is carrying, or causing prime contractors to carry. the following insurance: General Liability , with a general aggregate of $2,000,000; fire damage of $1 00,000; medical expense of $5 ,000; products/completed operations aggregate of $2,000,000; personal and advertising injury of $1 ,000,000 with each occurrence up to $1 ,000,000, with deductible of $2,500 per claim. Excess liability shall be covered in an amount equal to $10,000,000 per occurrence/$} 0 ,000,000 aggregate. 10 . INDEMNIFICATION. From Commencement of Construction of the Project through Completion of Construction of the Project, and for any action arising during that time period, 12 DeveJoper agrees to indemnify , defend and hold harmJes s the City and the Authority, its officers, agents and employees, from and against all liability, claims, demands, and expenses, including fines imposed by any applicable state or federal regulatory agency, court costs and attorney fees , on account of any injury, lo ss, or damage , which arise out of or are in any manner connected with any of the work to be performed by Developer, any subcontractor of Developer, or any officer, employee, agent , successor or assign of Developer under this Agreement, if such injury, los s, or damage is caused in whole or in part by, the negligent act or omission, error, professional error, mistake , accident, or other fault of Developer, any subcontractor of Developer, or any officer, employee, agent, successor or assign of Developer, but excluding any injuries , losses or damages which are due to the gross negligence, breach of contract or willful misconduct of the City or the Authority , as the case may be. 11. REPRESENTATIONS AND WARRANTIES. 1 1.1 Representations and Warranties by the Authority. The Authority represents and warrants as follows: (a) The Authority is a body corporate and politic of the State of Colorado , duJy organized under the Act, and bas the power to enter into and has taken all actions to date required to authorize this Agreement and to carry out its obligations. (b) The Authority knows of no litigation. proceeding, initiative, referendum , investigation or threat of any of the same contesting the powers of the Authority or its officials with respect to this Agreement that has not been disclosed in writing to the Parties. (c) The execution and delivery of this Agreement and the documents required and the consummation of the transactions contemplated by this Agreement will not (a) conflict with or contravene any law, order, rule or regulation applicable to the Authority or to its governing documents, (b) result in the breach of any of the terms or provisions or constitute a default under any agreement or other instrument to which the Authority is a party or by which it may be bound or affected, or (c) permit any party to terminate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of the Authority. (d) The Pledged Revenues are not subject to any other or prior pledge or encumbrance, and the Authority will not pledge or encumber it except as specified herein or as may be provided in the Loan Documents or the documents related to the origination of the Loan. (e) This Agreement constitutes a valid and binding obligation of the Authority, enforceable according to its terms , except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors • rights and by equitable principles, whether considered at law or in equity. 13 11.2 Representations and Warranties by the Developer. Developer represents and warrants as follows: (a) Developer is a corporation duly organized , validly existing and in good standing under the Jaws of the State of Delaware and in good standing and authorized to do business in the State of Colorado and has the power and the authority to enter into and perform in a timely manner its obligations under this Agreement. (b) The execution and delivery of this Agreement has been duly and validly authorized by aJJ necessary action on its part to make this Agreement valid and binding upon Developer. (c) The execution and delivery of this Agreement will not (a) conflict with or contravene any law, order, rule or regulation applicable to Developer or to Developer's governing documents. (b) result in the breach of any of the tem1s or provisions or constitute a default under any agreement or other instrument to which Developer is a party or by which it may be bound or affected, or (c) pennit any party to terminate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of Developer. (d) Developer knows of no litigation, proceeding, initiative, referendum, or investigation or threat or any of the same contesting the powers of the Developer or any of its principals or officials with respect to this Agreement that has not been disclosed in writing to the other Parties. (e) The Developer has prepared or caused to be prepared a financing and development plan for the Project and the Developer reasonably expects that the Pledged Revenues to be generated from the Project will be sufficient in each year to pay the principal of and interest on the Loan, in accordance with the Loan Commitment set forth as Exhibit F. (t) Thls Agreement constitutes a valid and binding obligation of the Developer, enforceable according to its tenns, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors ' rights and by equitable principles, whether considered at law or in equity. 11.3 Representations and Warranties by the City. The City represents and warrants as follows: (a) The City is a body corporate and politic and a home rule municipality of the State of Colorado, and has the power to enter into and has taken all actions to date required to authorize this Agreement and to carry out its obligations under this Agreement. (b) The City knows of no Litigation , proceeding, initiative, referendum, investigation or threat of any of the same contesting the powers of the City or its officials with respect to this Agreement that has not been disclosed in writing to the Parties. 14 (c) The execution and delivery of this Agreement and the documents required hereunder and the consummation of the transactions contemplated by this Agreement will not (a) conflict with or contravene any law, order, rule or regulation applicable to the City or to its governing documents, (b) result in the breach of any of the terms or provisions or constitute a default under any agreement or other instrument to which the City is a party or by which it may be bound or affected , or (c) permit any party to terminate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of the City. (d) This Agreement constitutes a valid and binding obligation of the City, enforceable according to its terms , except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by equitable principles, whether considered at law or in equity. 12. TERM. The term of this Agreement is the period commencing on the Effective Date and terminating on the date of payment in full of the Loan; provided. however. that the Authority 's obligation to remit the Pledged Revenues to the Lender to repay the Loan shall terminate upon the expiration of the time period that the Authority is authorized pursuant to the Act to receive the Pledged Revenues, and provided, further, that the following provisions , without limitation , shall continue beyond the term of this Agreement: (A) any rights and remedies that a Party has for an Event of Default hereunder, and (B) any rights that a Party has to inspect books and records as set forth in Section 8 hereof for a period of four (4) years following termination of th is Agreement. 13. CONFLICTS OF INTEREST. None of the following will have any personal interest , direct or indirect. in thi s Agreement: a member of the governing body of the Authority or the City, an employee of the Authority or of the City who exercises responsibility concerning the Urban Renewal Plan , or an individual or firm retained by the City or the Authority who has performed consulting services to the Authority or the City in connection with the Urban Renewal Plan , this Agreement , or the Loan Agreement. None of the above persons or entities will participate in any decision relating to the Agreement that affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. 14. ANTIDISCRIMlNA TION. Developer, for itself and its succes sors and assigns, agrees that in the construction of the Eligible £mprovements and in the use and occupancy of the Property and the Eligible Improvements. Developer will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex , sexual preference. disability, marital status, ancestry , or national origin. 15. NOTICES. Any notice required or permitted by this Agreement will be in writing and will be deemed to have been sufficiently given for all purposes if delivered in person, by prepaid overnight express mail or overnight courier service, by certified mail or registered mail, postage prepaid return receipt requested, addressed to the Party to whom such notice is to be given at the address set forth on the signature page below or at such other or additional addresses as may be furnished in writing to the other Parties. The Parties may also agree on a different means of providing written notice hereunder, including, without limitation. notice via electronic mail. 15 16. DELAYS: FORCE MAJEURE. Subject to the following provisions, time is of the essence. Any delays in or failure of performance by any Party of its obligations under this Agreement shall be excused if such delays or failure are a result of acts of God, fires, floods, earthquake, strikes, labor disputes, regulation or order of civil or military authorities, or other causes, similar or dissimilar, which are beyond the control of such Party. 17 . EVENTS OF DEFAULT. The following events shal l constitute an Event of Default under this Agreement: (a) Any representation or warranty made by any Party in this Agreement proves to have been untrue or incomplete in any material respect when made and which untruth or incompletion would have a material adverse effect upon any other Party; (b) Any Party fails in the performance of any covenant in this Agreement and such default continues for thirty (30) days after written notice specifying such default and requiring the same to be remedied is given by a non-defaulting Party to the defaulting Party. If such default is not of a type which can be cured within such thirty (30) day period and the defaulting Party gives written notice to the non-defaulting Party or Parties within such thirty (30) day period that it is actively and diligently pursuing such cure, the defaulting Party shall have a reasonable period of time given the nature of the default following the end of such thirty (30) day period to cure such default, provided that such defaulting Party is at all times within such additional time period actively and diligently pursuing such cure in good faith. 18 . REMEDIES . Upon the occurrence and continuation of an Event of Default, the non- defaulting Party"s remedies will be limited to the right to enforce the defaulting Party's obligations by an action for injunction, specific performance, or other appropriate equitable remedy or for mandamus, or by an action to collect and enforce payment of sums owing hereunder, and no other remedy, and no Party will be entitled to or claim damages for an Event of Default by the defaulting Party, including, without limitation , lost profits, economic damages, or actual, direct, incidental, consequential, punitive or exemplary damages. In the event of any litigation or other proceeding to enforce any of the terms, covenants or conditions of this Agreement, the prevailing party in such litigation or other proceeding may receive, as part of its judgment or award. its reasonable attorneys' fees and costs. The occurrence and continuation of an Event of Default will not affect the obligation of the City or the Authority to collect and remit Pledged Revenues or the obligation of the Authority to remit the Pledged Revenues to the Lender to repay the Loan in accordance with the terms and provisions of this Agreement and the Loan Documents. 19 . TERMINATION. In the event that the Developer has not Commenced Construction of the Project on or prior to July 31, 2014, then the City, the Authority, and the Developer shaH each have the option to terminate this Agreement. In order to terminate this Agreement, a Party shall provide written notice of such termination to the other Parties. Such termination shall be effective thirty (30) days after the date of such notice unless prior to such time, the Parties are able to negotiate in good faith to reach an agreement to avoid such termination. Upon such termination , this Agreement shall be null and 16 void and of no effect, and no action, claim or demand may be based on any term or provision of this Agreement. In addition the Parties agree to execute a mutual release or other instruments reasonably required to effectuate and give notice of such termination. 20. PAYMENT OF FEES AND EXPENSES. The Parties intend that the fees , costs and expenses incurred by each of the Parties in connection with the execution and delivery of this Agreement, the Loan, the City Contribution and the Replenishment Resolution, and related agreements and documents, will be paid from the proceeds of the City Contribution or the Loan as Costs of Issuance. To the extent that any fees , costs or expenses of any Party are not eligible to be paid as Costs of Issuance, or to the extent that the Loan does not Close, each Party agrees to pay for its own fees , costs and expenses. 21. NONLIABILITY OF OFFICIALS, AGENTS. MEMBERS, AND EMPLOYEES . Except for willful or wanton actions, no trustee, board member, commissioner, official, employee, consultant, manager, member, shareholder, attorney or agent of any Party, nor any lender to any Party or to the Project , will be personally liable under the Agreement or in the event of any default or for any amount that may become due to any Party. 22. ASSIGNMENT. This Agreement shall not be assigned in whole or in part by any Party without the prior written consent of the other Parties; provided , however, that subject to written notice to the City and the Authority from Developer containing the name and address of the lender or other party, Developer may pledge , collaterally assign or otherwise encumber all or any part of its rights under this Agreement, including its right to receive any payment or reimbursement , to any lender or other party that provides acquisition, construction, working capital , tenant improvement or other financing to Developer in connection with development of the Property and/or construction of the Eligible Improvements. 23. COOPERATION REGARDING DEFENSE. In the event of any litigation or other legal challenge involving thi s Agreement, the Loan, the validity of the Urban Renewal Plan, or any other material part or provision of this Agreement or the ability of any Party to enter into this Agreement, the Parties will cooperate and jointly defend against such action or challenge. to the extent permitted by law. 24. SECTION CAPTIONS. The captions of the sections are set forth only for the convenience and reference of the Parties and are not intended in any way to define , limit, or describe the scope or intent of this Agreement. 17 25. ADDITIONAL DOCUMENTS OR ACTION. 25.1 The Parties agree to execute any additional documents or take any additional action, including but not limited to estoppel documents requested or required by third parties, including without limitation, lenders, tenants or potential purchasers, that is necessary to carry out this Agreement or is reasonably requested by any Party to conftnn or clarify the intent of the provisions of this Agreement and to effectuate the agreements and the intent. Notwithstanding the fo regoing, however, no Party sbaU be obligated to execute any additional document or take any additional action unless such document or action is reasonably acceptable to such Party. 25.2 If a ll or any portion of this Agreement, or other agreements approved in connection with this Agreement are asserted or determined to be invalid, illegal or are otherwise precluded, the Parties , within the scope of the ir powers and duti es, will cooperate in the joint defense of such documents and, if such defense is unsuccessful , the Parties will use reasonable, diligent good faith efforts to amend, reform or replace such precluded items to assure, to the extent legally permissible. that each Party substantiall y receives the benefits that it would have received under this Agreement. 25.3 The City Manager shall have the authority to act on beha lf of the City under this Agreement and the Executive Director shall have the authority to act on behalf of the Authority under this Agreement. 26. AMENDMENT. This Agreement may be amended only by an instrument in writing signed by the Parties. 27. WAIVER OF BREACH . A waiver by any Party to this Agreement of the breach of any term or provision of this Agreement must be in writing and will not operate or be construed as a waiver of any subsequent breach by any Party. 28. GOVERNING LAW . The laws of the State of Colorado govern this Agreement. 29. BINDING EFFECT. This Agreement will inure to the benefit of and be binding upon the Parties and their respective legal representatives, s uccessors, heirs, and assigns, provided that nothing in this paragraph permits the assignment of this Agreement except as set forth in Section22. 30. EXECUTION IN COUNTERPARTS. This Agreement may be executed in several counterparts. each of which will be deemed an original and all of which will constitute but one and the same instrument. 31. LIMITED THIRD-PARTY BENEFICIARIES. Except as hereinafter provided, this Agreement is not intended and shall not be deemed to confer any right s on any person or entity not named as a Party to this Agreement; provided, however, that the Lender shall be deemed to be a third-party beneficiary under this Agreement with respect to any provisions relating to the Loan, the repayment of the Loan and the Pledged Revenues. 32. NO PRESUMPTION . The Parties and their attorneys have had a full opportunity to review and participate in the drafting of the final form of this Agreement. Accordingly, this 18 Agreement will be construed without regard to any presumption or other rule of construction against the Party causing the Agreement to be drafted. 33. SEVERABILITY. If any provision of this Agreement as applied to any Party or to any circumstance is adjudged by a court to be void or unenforceable, the same will in no way affect any other provision of this Agreement, the application of any such provision in any other circumstances or the validity, or enforceability of the Agreement as a whole. 34. MINOR CHANGES. This Agreement has been approved in substantially the form submitted to the governing bodies of the Parties. The officers executing this Agreement are authorized to make and may have made, minor changes to this Agreement and attached exhibits as they have considered necessary. So long as such changes were consistent with the intent and und e rstanding of the Parties at the time of approval by the governing bodies, the execution of the Agreement will constitute the approval of such changes by the respective Parties. 35. DAYS. If the day for any performance or event provided for herein is a Saturday, a Sunday, a day on which national banks are not open for the regular transactions of business , or a legal holiday pursuant to Section 24-11-10 I (I), C.R.S., such day will be extended until the next day on which such banks and state offices are open for the transaction of business. 36. GOOD FAITH OF PARTIES. ln the performance of this Agreement or in considering any requested approval, consent , acceptance , or extension of time , the Parties agree that each will act in good faith and will not act unrea sonably, arbitrarily, capriciously , or unreasonably withho ld , condition, or delay any approval , acceptance, or extension of time required or requested pursuant to thi s Agreement. 37. PARTIES NOT PARTNERS . Notwithstanding any language in thi s Agreement or any other agreement , representation, or warranty to the contrary, the Parties will not be deemed to be partners or joint venturers, and no Party is responsible for any debt or liability of any other Party. 38. NO WAIVER OF IMMUNITY. Nothing contained in this Agreement constitutes a waiver of sovereign immunity or governmental immunity by the City o r the Authority under applicable state law. 19 IN WITNESS WHEREOF, this Agreement is executed by the Parties as of ___ _, 2014. WHEAT RIDGE URBAN RENEWAL AUTHORITY AITEST: Notice Address: Wheat Ridge Urban Renewal Authority J 500 West 29th Avenue Wheat Ridge, Colorado 80033 Attention: Patrick Goff, Executive Director Email: pgoff@ci.wheatridge.co.us 20 (SEAL) Attest: J Notice Address: City of Wheat Ridge 1500 West 29111 Avenue Wheat Ridge, Colorado 80033 Attention: Patrick Goff, City Manager Email: pgoff@ci.wheatridge.co.us CITY OF WHEAT RIDGE, COLORADO 21 Notice Address: MILLENNIUM VENTURE GRO UP, INC . a Delaware corporation By: Title: 22 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY 10101 W. 371h Place Our Ordtr No : ABB70393418 LEGAL DESCRIPTION THAT PART OF THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE -QUARTER OF THE NORTHEAST ONE -QUARTER OF SECTION 28 , TOWNSHIP 3 SOUTH , RANGE 69 WEST OF THE 6TH P.M., DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 28: THENCE SOUTHERLY , ALONG THE EAST UNE OF SAID SECTION. 230 FEET: THENCE WESTERLY , PARALLEL WITH THE NORTH UNE OF SAID SECTION , 200 FEET TO THE TRUE POINT OF BEGINNING ; THENCE CONTINUING WESTERLY . PARALlEL WTTH THE NORTH LINE OF SAID SECTION , 109.99 FEET , MORE OR LESS . TO A POINT 20 FEET EAST OF THE WEST LINE OF THE EAST ONE -HALF OF THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE -QUARTER OF SAID SECTION 28 ; THENCE SOUTHERLY PARALLEl WITH THE WEST LINE OF THE EAST ONE -HALF OF THE NORTHEAST ONE -QUARTER OF THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF SAID SECTION , 124 .86 FEET. MORE OR LESS , TO A POINT 355 FEET SOUTH OF THE NORTH LINE OF SAID SECTION Z8: THENCE WESTERLY , PARALLEl WITH THE NORTH LINE OF SAID SECTION , 40 FEET ; THENCE SOUTHERlY. PARALLEL WITH AND 20 FEET WEST OF THE WEST UNE OF THE EAST ONE-HALF OF THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE -QUARTER OF THE NORTHEAST ONE -QUARTER. 75 FEET ; THENCE WESTERlY , PARALLEl WITH THE NORTH UNE OF SAID SECTION . 290.19 FEET , MORE OR l ESS. TO THE EAST LINE OF LEE STREET : THENCE NORTHERLY ALONG SAID EAST LINE , PARAUEL WITH AND 20 FEET EAST OF THE WEST LINE OF SAID NORTH£AS'T ONE -QUARTER Of THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER, 400 FEET , MORE OR lESS, TO lHE SOUTH UNE OF 38TH AVENUE ; THENCE EASTERlY ALONG SAID SOUTH LINE , PARALLEL WITH AND 30 FEET SOUTH OF THE NORTH UNE OF SAID SEC TION 28, A DISTANCE OF 440 .53 FEET , MORE OR LESS. TO A POINT 200 FEET WEST OF THE EAST UNE OF SAID SECTION: THENCE SOUTHERLY . P ARALL£1. WITH THE EAST LI NE OF SAID SECTION , ZOO FEET TO THE TRUE POINT OF BEGIN NING , COUNTY OF JEFFERSON . STATE OF COLORADO , EXCEPTING THEREFROM THE PORTIONS DESCRIBED IN BOOK 1579 AT PAGE 296 AND IN BOOK 1969 AT PACE 800 AND IN BOOJ< 1970 AT PAGE 1 OF THE JEFFERSON COUNTY RECORDS . 10050 W . 371b Place nL\T PARt 0~ ntf 'IORTIIUSTOIJARflJl ~ niF NDiffilf.ASJ QUARTFJt<» niT NQitniMST QUARTPJI or UCOOI\ ll TCM'IISIDP l sount.IL\"CCF Cl WID 01-nil CTll I'RIJIICIMl MIJUDCA!II OESCRlllD AS Rlll<MS UGI!\"'«NC U nl£ NORntf.ASI' COIINE:R Ill' WU SKl1CJII, Zl ntt-.Q lil>l11ll.lU Y A1.0M. nil' FAST IJH. 01' SU>S~ ll A DCSTANO OlolM HJ'T 11ID'iC1' YI'Ull':Rl Y PARAU.FJ. Wl'niTllli\'Oml Ut\£01-SMDSF.eTl(JI!ll A llfiTANn OF. UfT TO Tllf. TRUf I'WIT Of. RrCIN"'INC ntENO' 5lXIlllllU. Y I'ARAIJ.El wmt niE EAS T IJHt. Of SAil> SKllCN 21A lliSl ANCI Of. tX .• HrT TOA I'OI.l~T O.'l niESOlftll USl' Of nl£ t.URnrEASTOUARlU OF niF NalllUASTQUARtutOF nu: HORntfASl OUAlfTDI Of." SAW Sl:CT10~ Zl. nliHO' WI m.Rl.Y Al.oNG SAil) SOV111 LJIIF A OlSTANCt. OF ll't Cl FEET to A I'OINT ON n 1£ FAST UNi. Of ntME Slllf.l"T . ntFNCf NOIInlf.IU.Y AI.ONC SAil OST I.L'll: (lli KUNf. ~TJU:Il AND AID UNI' F.XTHIDtl> Nfltnt ANU I'AIWJJ-1 Wml ANO. ~UTMST~ Til£ WFSIUN.I. Ol'n& ~~ 11!\l.l'Of. nt~ NORnll-..U'T()OARTtROI-nlf NOimii!ASTQUARmtOF TIIENOR111£AS1 OUAR»JI o\ 015TAM~F 01-U' U rUT NORF OR USS, T() A I'OIHT rM sount e»' nF NOICOII.I'IE 0~ WU 51TTION U ; lli~."'Ii I!AST M'tl Po\RAI.£1. WIT II Til£ NOimiF-'SI' IJNt IIF SAID S...cnO.~ ll A OtU A. '«'F ()I IDU9 FEn. >.«111 •. OR IJ'SS 1'01\ rcJCNT liiO FF.£TW • .:sTOf niF tASTUNF OF Sl\.ll) ~\llONll nl~.l't'n. HORniER! Y AND PARAI.UL wrm TIIJ.. MST LIN. 011 SAJDSJ;~ 11 A DISTN'IC. 01' ZOO F£IT TDA POINT 0!11 nil' SOUTI-IUN\: 01• Yo'£STlrrii A\fflUL TIIF:NG IIASTI!Itl Y 1\WNGS.\IOD.ml U!Oi, PAIL\ll.E:L Wlnl ANO M ~UTliOUTII <» ntf' Naml I ~F I»'SAIDSfCTllN ll A IIISTANCE<IF45 ~U T to A I'OINT I~ HJ'lWE:ST <» Tllt. WT 1.111• 01-!WO SFcmN lS ntEl'IO SOUTU.lU .Y I'ARAIJ [J wrrtJ AND IS\ Ft:rTWl:STOI' nil tASTI.I.\1' Of.S.\Ill SlCTlOo"'ll A OISTANCI' Of M FUT TO A. IUI\T Zll fUT 50Unll». nu N<•m UN. a. SAID SfCTlON ll ntF.HO F.ASlt.RI Y rAIW . .U I \\ml TTIE NORnt IJNF. Of SAID SEC I'10H 21. A UISTAHO 01' 125 l•l n TO m; lllUF POM OF lt:Cl'IN l'ffi: f.JCC."HnHC ntEJU"J110t.( TliAT Cf.ITA.I'I PARCU Cot.Vn'UJ TO ntF IJHARNI'NT Ill lllc:li\\AYS A 'G) OOCIUlr.D AS A TltAC'TOR PAJICII OF U."O t.U It& Of ntf STATF lll'l'ARTND.'T Of IIICIIWA ''S OI\'1SIJ.\ O.IIIGIIWAY~STAfUlHOIDRAOO,PRO)KTNO U N I ~~~fr.noNl Ill nu NOalllt.ASTQUARmtOFS.KTION ll TOWN'SIUP llDUnl RA'CUI~Ul IJ ntrmt r'IIINCTI'A.I MEJUDIAN, INJmn!SOH COUNTY COlORADO. SAl> lllACTOilPAAC"Fl.llf.IIIC: MOitf PAJt'TlCUIARI Y Df.SCRI.til.J AS ;U.J.CM5 ftUJI""'<ISG AT A POINT WI l O llS sount o\l.ONC nil T..U1' U"l' 0.. nit. NOIITHfAST (JUAllTl.R 01' SFr.'OUN ll. A DJSTA..O. 01-llO 0 .-LET AA1l WF.sT P/111\1 JJJ. Wl'nl nlf l«llml 1.1.\1: ()lo nt; ..Uimi£AST QUAJITl.JI 01> 51CT10N ll. A DISTANU O.IS.e FH.T ni0\1 nlf NURntt.AST C:ORNf.JI 01' SKOOS Zl. TOWNS! liP l sotltlliiANCHi \\1ST I TliH«:UUUTU PARAIJ.ll Wmt Till:. £ASf l.ll'l'f 01-TTU: NOintf.ASl QUAlllfJI or ~CTIO\ 21 A lltSTANC; OJ.._ tt fTI"TTO mFSOUlll PROr[JOY IJNf · 2 TIU'NCH.M'T AJ .QIIC ntf' SOI1111 PROI' •• RTY IJ'(I A.I>ISUNfl 01 n 0 H :FrlO ntr Sotll11li • .A.ST ri!Of'F.Rn CORM:ll: l Tlll't«"f NOROI A Tl6 "-ASTPI!UI'fJITY IJNf. AUISTJINO ()1.1 UUtfHI' I TT IIllln W~T PAIIIII I.Jll. WITH ntF. SOII'Tll IJ.'(F 01• nil '«>'rniU~'T QUARTT'R ot• 9 ('llON Z1 A. DISTANC'f OF I~ f J-UT TOTTI"-POl'lT OFti~"!III\'C C.'OU'IlY Of~-SlATt.OF cot.Oitl\00 A l -2 3785 Kipling l£GAL DESCRIPTION Our Order No : ABJ70397564 A PARCEL OF LAND IN THE EAST 112 01: rnE NORTHEAST t /4 OF THE NORTHEAST 1/4 Of THE NORTHEAST V4 OF SECTION 28. TOWNSHIP 3 SOUTH. RANGE 69 WEST . COUNTY OF JEFFERSON . STATE OF COLORADO. DESCRIBED AS FOUOWS: BEGINNING AT A JlOINT \\'HICH IS 30 FEET SOUTH AND 30 FEET WEST OF THE NORTHEAST CORNER OF SAID SECT ION 28; THENCE SOUTH 100 FEET ALONG THE WEST UNE OF KJPUNG STREET TO rnE TRUE POINT OF BEGINNING : TIIENCE SOUTH ALONG nt£ WEST LINE OF KIPLING STREET A DISTANCE OF 100 FEET: THENCE WEST AND PARALLEL TO THE SOUTH LINE OF WEST 38rn AVENUE A DISTANCE OF 125 FEET: THENCE NORTH AND PARALLEL TO THE WEST UN£ OF KIPLING STREET A DISTANCE OF 100 FEET: TIIENCE EAST AND PARALLEL TO THE SOurn LINE OF OF WEST 38TH AVENUE . A. DISTANCE OF 125 FEET TO nt£ TRUE POINT OF BEGINNING. EXCEPT THAT PORTION CONVEYED TO THE DEPARTMENT OF HIGHWAYS BY DEED RECORDED AUGUST 27. 19691N BOOK 2128 AT PAGE 357, COUNTY OF JEFFERSON. STATE OF COLORADO . 3795 Kipling The South 100 feet of the North 130 feet of the West 115 feet of the East 155 feet of the East ha~ of the Northeast Quarter of the Northeast Quarter of the Northeast Quarter of section 28, Township 3 South, Range 69 We9. of the 6th Principal Meridian, EXCEPT that portion thereof conveye<l to The Oty' of Wheat Ridge, Colorado by DeedS recorded November 10, 1972 in Book 2444 at Pages 376 and 377, AI-3 EXHIBITS LEGAL DESCRIPTION OF THE TIF AREA 10101 W. 37'h Place Our Order No : ABB70393418 LEGAL DESCRIPTION THAT PART OF THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE -QUARTER OF THE NORTHEAST ONE -QUARTER OF SECTION 28 , TOWNSHIP 3 SOUTH . RANGE 69 WEST OF THE 6TH P.M., DESCRIBED AS FOLLOWS : BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 28 ; THENCE SOUTHERLY , ALONG THE EAST liNE OF SAID SECTION , 230 FEET: THENCE WESTERLY, PARALLEL WITH THE NORTH LINE OF SAID SECTION , 200 FEET TO THE TRUE POINT OF BEGINNING: THENCE CONTINUING WESTERLY . PARALLEL WITH THE NOR1l4 LINE OF SAID SECTION, 109 .99 FEET , MORE OR LESS . TO A POINT 20 FEET EAST OF THE WEST LINE OF THE EAST ONE-HALF OF THE NORTHEAST ONE -QUARTER OF T HE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE -QUARTER OF SAID SECTION 28 ; THENCE SOUTHER LY PARALLEL WITH THE WEST liNE OF THE EAST ONE -HALF OF THE NORTHEAST ONE -QUARTER OF THE NORT HEAST ONE -QUARTER OF THE NORTHEAST ONE-QUARTER OF SAID SECTION , 124 .86 FEET . MORE OR LESS , TO A PO INT 355 FEET SO UTH OF T HE NORTH liNE OF SAID SECTION 28 ; THENCE WESTERLY . PARALLEl WITH THE NORTH liNE OF SAID SECTION , 40 FEET: THENCE SOUTHERLY , PARALLEL WITH AND 20 FEET WES'f OF THE WEST UN£ OF THE EAST ONE-HALF OF THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE -QUARTER OF THE NORTHEAST ONE -QUARTER , 75 FEET : THENCE WESTERLY , PARALLEL WITH THE NORTH LINE OF SAID SECTION . 290 .19 FEET , MORE OR LESS . TO ll4E EAST liNE OF LEE STREET ; THENCE NORTHERLY AlONG SAID EAST liNE, PARAUR WITH AND 20 FEET EAST OF THE WEST liNE OF SAID NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER. 400 FEET , MORE OR LESS , TO 1l4E SOUTH LINE OF 38TH AVENUE ; T HENCE EASTERLY ALONG SAID SOUTH liNE, PARALLEL WITH AND 30 FEET SOUll{ OF THE NORTH liNE OF SAID SECTION 28, A DISTANCE OF 440 .53 FEET. MORE OR LESS , TO A POINT 200 FEET WEST OF THE EAST liNE OF SAID SECTION ; THENCE SOUTHERLY , PARALLEL WITH THE EAST LINE OF SAID SECTION. 200 FEET TO THE TRUE POINT OF BEGINNING , COUNTY OF JEFFERSON. STATE OF COLORADO , EXCEPTING THEREFROM THE PORTIONS DESCRIBED IN BOOK 1579 AT PAGE 296 AND IN BOOK 1969 AT PAGE 800 AND IN BOOK 1970 AT PAGE 1 OF THE JEFFERSON COUNTY RECORDS. 10050 W . 371 b Place ll&.\T PART 011 llllo, NOIITttlAS"r QUARTER!»' TIGi NOII'TliJ..ASl QUARlHI or ntr NORlllEI\~ QUARTFJI Of SI:CTIOI\ ll fO\\~SIDP l !Dtfnt R.\NC~ 8 W~:sT m nil'. Glll PIIJNCIJ'At MI:JW.ltA N, Of:SCIII.II£1l AS Rltl.OWS lfGII'MSC Al lllE NOIIOI~'T COIINl:R 01o SAID SF.CllON ll llG.Hcr SOUT'IIDU Y AI ONC lll£ f.ASTUN .. orSA.IDS~C~ ll A DIS1ANO. CF 2111 FEFT llG:Na:W£Sll.RlY PAIIAU.U wtnllll~ 'iORnt IJI\f ()1. ~SfCTlQ\111 ,\ I~ANrl or» HfT ru ntr RUf I'OIHT Of' RfCHNIHC nt£HCE SOl1lliDU Y PAIIAJ..UJ Willi ntE EAST UNE OF SAID SJ:Cna. ll A UISTt."'CE Of 010 .• FEET TOA PONT IV( Tm30Utlii.M OF lllf NlRTIIL\ST OU.urr£11 OF llE Nl:llllUAST QUARTFJI 01 TIIF HORllllASlQUAJ!TFJt C» WDSfCTlO'Ill lll£:.'10. WlmRl Y Al.c»>C SAID 50U111 ~~ A DISTANCl. at 219 Cl fn T TO A I'OINT ON ntf FAST UN£ at Wflt mm nt.ENO I'DtlliUll Y Al.oNC Sill> U.~ IJ!(I! OF KLINt. STJI(}l A.l«l W IJNI' O."TEHDDD HORlll AND PAIWJJoJ WJnl ANO. FUT FAST Of Ti ll' WEST lJ!ilf OJ llll. EA.~ IIAIJ' 01 ntE. 'IORTIIf..U"l OUAIITfR U~ lltf SOIIT11£AST OUAIIlllt Of Til£ NOII111£AST QUAIUlll A Dl\TANCE C» 4 ~ U fli'IIT WOilf OR I e.'S, TO A IUNr llO SOOn! C. Til' NORllliJ\1£ <II< SAID lil'CTION U ; ntF.NG tAST ANJJ PAIIAI.E I WTTII lll£ NOIIlliF.A.'IT IJNF OfSA.IV !aCTI()lj ll A DISTA'«:[ Of lot I! Ffl:T. MURf. 011 U'.SS TO A POINT !01 ~T.ET WfST or Tl IF Jl.AST lDO! OF So\1D Sl:CllON 21 lliPIO HORntf.Rl Y ANO PARAIUL Willi Till'. WT IJM Of SAIOlifCTJO-.ll A DISTANCL C» 2ell F£rT TOA I'OM 0'1 nlf SOUTII UNI:! OF WESTliTII A'H:NUl lli£NCI-I!ASTJJtl Y Al.O'C SAIOSOUlll ~'1'-PAitAU.U Win I ANO»FU:TDmU• Til~ N<JmiiJIIFot SAJOSU~ ll ADISTANClOf4S FUT TOA POINT 116 HI'TY.'FST <» llll iAST Lfojf at SAID S£CTDI\ !1. lllrNO sotmiFJU Y PAR.\IJJl. Willi A.'iD In FEFTWJo.:STOf ntr F.ASTJ..M()I.SAllJ S£C110N ll A OISTANCF C» -f£FT TO A f'O"T 2lO n:rt SOUTll Of ntf N<Jml UNJ OF SAID SJ'ITIQIII H ntENO" EASTFRI Y I'AIIAIJ ~I Willi nu.: NORllllL~ Of SAID SKTKN 21. Ito OISTANO. Of liS FUT TO 1llF TRln POINT Olo ltx;WIIL~C. fXCUTlNC TIIF.IUl •llat.l lliAT CFJrrAfoj I'ARCfl (()p.'\ln'FDTO niE OfPARNENT OJ' IUCIIWA YS M'D D£SCIRDr.O AS A TRACTOR I'AJICI'I OF \.AND NO liS 01· lliESTATf.ll~.I'J\Rfl'oUI(T ()II IIK:IIWit.'I'S. 0 1\'ISDI\ OF IIIICIIWAYS, ~TA THM CO I.ORADO. I'ROJF.CTNO u •u 1(_, SI-LTIONl, II\ nrr N(Jilllf.lt.ST OUARniiOf ~.CTION II, TOWNSIDI' JSOUTII RA"'C~CIW~ST <ll· lll£ml I'RINOI'AI t.UliiDIAN, INJF.FTEIISON COUNTY CUI.ORADil SAil TRACT 041 I'AJClll B£1\jf, t.IOR£ I'AIIllCUIJ\RI Y Ut.SCRIWI AS ..OU OWS Rf.CINSL\'C AT A POINT WI DOllS SOUlll .\J.o\'C nn: 1.AST UM L)I.TIIt NORTHEAST QUAIITill OF SB:llel'lll A DlSJ A '10 Of lJO I fU:T Al'l11 ~liST I' A RAJ J .rr Wfllllllf ~Til I.!Xf Of llll "'IRTIIFAST OUAIITlll Of SFCllON H . A OISTI.'«'f 01 4S 'nn t1IDt.C llll NatnllASl CORMJI C» SlCTlO.'( 21. TOWNSriD' l SOUTII RANCf .. Y.Hl I n IFNCE SOUnt PAR.\U.ll Wfnt TUf EAST I Jl\'£ Of llll NOimlfAST QUARTER CJI. SECTD' ll A 01'\TANU Of t.X. tll:l TO 11{f SClUTIIPIIOI'l:JI'n IJillt l. llltNCf FAST, AI !JIIG lllUOIJlll PROI'fRfY u•n A DISTA."'Cl 01 "0 H.FTTO Tltr SOlllllf.AST I'ROPEJITl COIINl.R; l lliDICl NORTII A Till lASli'ROI'Iilln' UNt A OtsTMCt OF llUtfHT: 4. nttNCE Wt:Sf I'AIIAliJJ WfTII lltF.ICOI!'TII W~ 01' llll NOQntlAST OUARlTR (Jii Sl:t-n:IN ll f. DISTANC.£ or IS I F£FT TOll!~ POINT OF III:Cf'\NI'((;, COUNTY or JFH-ntSOr\. STATE Of COLDRAOO B-2 3785 Kipling lfGAl DESCRt PTION Our Onlrr No : ABJ70397564 A PARCSL Of L.AND IN THE EAST 112 OF TifE NORTHEAST 1/4 OF THE NORTHEAST 1/4 OF THE NORTHEAST 1/4 OF SECTION ZB . TOWNSHIP 3 SOlml . RANGE 69 WEST. COUNTY OF JEFFERSON . STATE OF COLORADO. DESCRIBED AS FOUOWS: BEGINNING AT A POINT WHICH IS 30 FEET SOUTH AND 30 FEET WEST OF THE NO~THEAST CORNER OF SAID SECTION 28 : TIIENCE SOUTH 100 FEET ALONG THE WEST UNE OF KIPLING STREET TO llf£ TRU E POINT OF BEGINNING : TIIENCE SOUTH ALONG THE WEST LINE OF KIPLING STREET A DISTANCE Of 100 FEET: TIIENCE WEST AND PARALUL TO THE SOUlllliNE OF WEST 38TH A VENUE A DISTANCE OF 125 FEET: TIIENCE NORTH AND PARALLEL TO THE WEST UNE OF KlPUNG STREET A DISTANCE OF 100 FEET: THENCE EAST AND PARALLEl TO THE SOl.Jllf LINE OF OF WEST 38TH AVENUE . A DISTANCE OF 125 FEET TO lliE TRUE J'OINT OF BEG INNING . EXCEPT THAT PORTION CONVEYED TO THE DEPARTMENT OF HIGHWAYS BY DEED RECORDED AUGUST 27 . 1969IN BOOK 2128 AT PAGE 357. COUNTY OF JEFFERSON . STATE OF COLORADO . 3795 Kipling The South 100 feet of the North 130 feet of the West 115 feet of the East 155 feet of the East half of the Northeast Qt.Jarter of the Northeast Quarter of the Northeast Quarter ot Section 28, Township 3 SOuth, Range 69 Wei.. of the 6th Principal Meridian, EXCEPT that portion thereof conveyed to The Oty of Wheat Ridge , Colorado by Deeds recorded November 10, 1972 in Book 2444 at Pages 376 and 3n, B-3 EXHIBITC DESCRIPTION OF THE PROJECT The Project consists of the redevelopment of approximately 6.5 acres of land located at the southwest comer of West 38th Avenue and Kipling Street, in accordance with the City Requirements. The Project is expected to include a 27,000 square foot Sprouts Market grocery store, a drive-through Starbucks, and a quick serve restaurant, and the construction and installation of an additional half-acre of right-of-way for Kipling Street and 38th Avenue, which will be dedicated to the City. The Project wiU also include the construction of a 64-unit senior housing facility known as MorningStar Senior Living. Public improvements to be constructed , acqui red or installed as part of the Project include the abatement and demolition of existing structures , upgrades to City storm water and sewer systems, expansion of and upgrades to public rights of way including the widening of Kipling Street with the dedication and the construction of turning lanes, sidewalk s and streetscaping, and the burying of overhead electrical power lines. EXHIBIT D ELIGIBLE IMPROVEMENTS The Eligible Improvements consist of the Loan Financed Improvements. which shall be eligible to be paid from the net proceeds of the Loan, and City Financed Improvements, which shall be eligible to be paid from the City Contribution. The total Eligible Improvements to be paid or reimbursed from the combination of the City Contribution and the Loan shall be equal to $3 ,000,000 notwithstanding that the amounts set forth below total $4,474 ,424. Set forth below are estimates of the costs of the Loan Financed Improvements and the City Financed Improvements based on budgeted numbers provided by the Developer. As actual costs are incurred for each line item, the amounts eligible to be paid or reimbursed as Loan Financed Improvements or City Financed Costs may change, as hereinafter set forth. Loan Financed Improvements Land Acquisition Costs Demolition and Abatement for entire site Grading & Site Preparation for entire site Stonn Water Infrastructure for entire site Concrete, Asphalt & Roadway Improvements Utilities Work (Water, Fire, Electrical) Landscaping Amenity Benches, Etc. Architectural & Engineering Permit Fees TOTAL (1) Not subject to change. $ 417 ,798(1 ) 348 ,655 (2) 511 ,544 (2) 265 ,060 (2) 126 ,779(3) 132,240(3) 84.974(3) 6,960 (3) 76,387 (1) 118.097<4> $ 2.088,495 (2) These amounts can increase or decrease based on the actual amount spent on this line item as certified by the Developer in the Requisition. (3) These amounts can increase or decrease based on the actual amount spent on this tine item, but such amounts shall not exceed the percentage of costs in this Line item attributable to costs incurred in the right-of-way to be dedicated to the City, as certified by the Developer in the Requisition. (4) These amounts can increase or decrease , but shall be based on the actual permit fees attributable to the Loan Financed Improvements, as certified by the Developer in the Requisition. City Financed Improvements(!) Concrete, Asphalt & Roadway Improvements $443 ,587 Utilities Work (Water, Fire, Electrical) 168,293 Landscaping 111 ,707 Architectural Upgrades to Sprouts Building 406 ,706 Amenity Benches, Etc. 8 , 700 Architectural & Engineering 153 ,450 Permit Fees 91 ,120 TIF Consultants 20.164 TOTAL $ 1.403.727 (1) These amounts can increase or decrease based on the actual amount spent on this line item for the Project (not including any amounts paid or reimbursed as Loan Financed Improvements) as certified by the Developer in the Requisition. In addition, to the extent that amounts remain in the City Contribution Account after the line items set forth above have been paid or reimbursed from the City Contribution , then such excess amount may be applied to the reimbursement of the costs of acquiring the Property in an amount not exceeding $982 ,202. EXHIBITE PROCEDURE FOR DOCUMENTING, CERTIFYING AND PAYING ELIGffiLE COSTS 1. Applicability. All capitalized terms that are not specifically defined in this Exhibit E will have the same meaning as defined in the Agreement. The procedures set forth herein shall apply to both Requisitions submitted by the Developer to the City for reimbursement from the City Contribution Account for the City Financed Improvements, and Requisitions submitted for reimbursement from the Loan Proceeds Account for the Loan Financed Improvements. The foregoing notwithstanding, the Parties recognize and acknowledge that in connection with origination of the Loan, the Loan Documents may establish a different procedure for the requisition of moneys from the Loan Proceeds Account, in which event that procedure shall be substituted for the procedure in this Exhibit E to the extent that they conflict with the procedures in this Exhibit E. 2. Documentation. The Developer will be responsible for documenting aU Eligible Costs. Eligible Costs may be certified when (i) an expenditure for an Eligible Cost , including, without limitation, land acquisition costs, bas been made by the Developer, (ii) a pay application has been submitted by a contractor that complies with the procedure set forth in this Exhibit E, or (iii) upon Completion of Construction of an Eligible Improvement. All such submissions shall include a certification signed by an authorized representative of the Developer. The certificate shall state that the information contained therein is true and accurate to the best of each individual's information and belief and , to the best knowledge of such individual , qualifies as an Eligible Cost. Such submissions will include copies of backup documentation supporting the listed cost items, including bills. statements, pay request forms from first-tier contractors and suppliers, conditional lien waivers , and copies of each check issued by the Developer for each item listed on the statement. The Developer will allocate the Eligible Costs to the EHgible Improvements according to the category for each listed in Exhibit D, and each requisition shall contain an aggregate running total of the Eligible Costs in each category. Unless required by a Developer construction contract then being performed, statements for payment of Eligible Costs shall not include advance payments of any kind for unperformed work or materials not delivered and stored on the Property. 3. Verification, Submission, and Pavment. Each payment request will be submitted to the Executive Director of the Authority and the City Manager for review. Such review is for the purpose of verifying that the expenditure or work represented in each payment request and supporting documentation complies with the requirements of this Agreement. Upon the earlier of approval of such documentation or expiration of the ten (1 0) business day period, the City will make payments of Eligible Costs as set forth in such requisition request from moneys on deposit in the applicable account of the Project Fund. If the City or the Authority dispute all or any portion of the requisition, the City or the Authority, as the case may be , shall provide the Developer with a written dispute, setting forth the reasons for such dispute. If the objection is made on the basis of incomplete or insufficient documentation, the Developer shall promptly provide complete and sufficient documentation in a good faith effort to facilitate resolution. The Parties shall cooperate in good faith to resolve any dispute concerning the payment or reimbursement of Eligible Costs, but without being obligated to waive or relinquish any rights hereunder. If the Parties have not satisfactorily resolved any such dispute within ten (10) business days, the City may withhold the amounts in dispute from payment and shall process and pay the remainder of the undisputed Eligible Costs, and the Parties may proceed as hereinafter provided. 4. Dispute Resolution. If the Parties have not resolved a dispute pertaining to payment or reimbursement of Eligible Costs (a "Payment Objection") within thirty (30) calendar days of the submission of the Requisition, at the written request of any of the Parties involved in the dispute, the Parties shall comply with the following procedures: (a) The Parties involved in the dispute shall select an independent decision-maker ("Independent Decision-maker") for purposes of resolving the dispute. If the Parties are unable to mutually agree on an Independent Decision-maker, the Developer shall select a decision- maker (''Developer Decision-maker"), the City shall select a decision-maker ('·City Decision- maker") and the Authority shall select a decision-maker (the ''Authority Decision-maker''), and the Developer Decision-maker, the City Decision-maker and the Authority Decision-maker shall collectively select an individual or fum with expertise in the field of construction or construction litigation to serve as the Independent Decision-maker who shall comply with the procedures hereinafter set forth, as if such decision maker was selected directly by the Parties. The Independent Decision-maker shall have no material affiliation or relationship with any of the Parties. Lf the Developer Decision-maker, the City Decision-maker and the Authority Decision- maker are unable to so select the Independent Decision-maker, any Party may file an action in the District Court for Jefferson County, Colorado, to have the Court select the Independent Decision-maker in accordance with the foregoing provisions . In the event that only two of the Parties dispute all or any portion of a Requisition, then only those two Parties shall be involved with this dispute process and the selection of the Independent Decision-maker. (b) The Independent Decision-maker shall review the information pertaining to any Payment Objection and shall provide an opinion in writing to the Parties involved with the dispute within ten (I 0) calendar days of submittal of the dispute as to whether the cost items in dispute constitute Eligible Costs. lf the Independent Decision-maker determines that the disputed cost items constitute Eligible Costs, then within five (5) business days of receipt of the opinion, the City shall disburse the applicable amounts to the Developer from moneys on deposit in the applicable account of the Project Fund. ln the event the Independent Decision-maker determines all or a portion of the disputed payments do not qualify as Eligible Costs, then the City shall have no obligation to disburse such amounts to the Developer from amounts on deposit in the Project Fund. (c) While each Party agrees to the process under this Exhibit E, Section 4 for purposes of facilitating payments and the construction process, it shall do so under a complete reservation of its rights under this Agreement and otherwise and without prejudice to any claims it may have against the other Parties or others, which may include as applicable, and without limitation, recovery of any costs paid under Section 4(d) below. (d) Each Party to any dispute agrees to pay its pro-rata share of any retainer required by the Independent Decision-maker. If a dispute is addressed by the process under this Section 4, the non-prevailing Party shall pay all reasonable costs and expenses incurred by the lndependent Decision-maker with respect to such dispute, and also the reasonable costs and expenses incurred by the prevailing Party or Parties in connection with such dispute. The non- prevailing Party's obligation to pay such costs and expenses shall be paid promptly after the decision is rendered. Notwithstanding the foregoing, the City's obligation to pay costs and expenses hereunder shall be subject to appropriation by the City Council. If a portion of each Parties ' position is upheld , the Independent Decision-maker shaH make a corresponding allocation between the Parties of the applicable costs and expenses. 5. Retainage. Notwithstanding any provisions to the contrary contained herein , an amount equal to five percent (5%) of each periodic payment requested for work performed on Eligible Improvements may be retained in the Project Fund until the Eligible Improvements ha ve been accepted in accordance with the City Requirements ; provided, however, that for any contractor or subcontractor who performs a discrete portion of the work ( eg. grading, stonn drainage or other utility facilities), the retainage allocable thereto shall be released from the Project Fund when such portion of the work has been accepted in accordance with the City Requirements. EXHIBIT F LOAN COMMITMENT EXHIBIT G FORM OF SUBDIVI SIO N IMPROV EMENT AGRE EMEN T SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT made this of , 2014 by and between the CITY OF WHEAT RIDGE, COLORADO , a home rule municipal corporation (the "City"), and Millennium Venture Group, Inc ., a Delaware corporation, (the "Deve loper''), together referred to as the "Parties". RECITALS The Developer is the owner of certain real property located in the City of Wheat Ridge , which is more particularly described in Exhibit A and made a part hereof (the "Property"), commonly known as--------------- On , the City Council of the City of Wheat Ridge , after holding all required public hearings , approved the final plat for the Property titled A copy of the Final Plat is attached hereto as Exhibit Band incorporated herein . The approvals ci ted above are contingent upon the express condition that all duties created by this Agreement be faithfully performed by the Developer. AGREEMENT NOW, therefore , for and in consideration of the mutual promises and covenants contained herein , the sufficiency of which are mutually acknowledged , the parties hereto agree as follows : 1. Purpose . The purpose of this Agreement is to set forth the terms , conditions , and fees to be paid by the Developer upon subdivision of the Property . All conditions contained herein are in addition to any and all requirements of the City of Wheat Ridge Subdivision Ordinance and Zoning Ordinance, the City of Wheat Ridge Charter , any and all state statutes , and any other sections of the C ity of Wheat Ridge Mun icipal Code and are not intended to supersede any requ irements contained therein . 2. Intentionally deleted . 3. Fees . The Developer hereby agrees to pay City Development Review fees to the City for engineering , hydrological , surveying , legal , and other services rendered in connection with the review of the subdivision of the Property . 4 . Title Policy . Prior to record ing of the final plat (or, if no plat is associated with the development; prior to and as a condition of final approval of the development by the City), a title commitment for all those portions of the Property , as well as any other interests in real property (easements , etc .) to be reserved for public purposes or dedicated to the C ity shall be provided to the City. The title commitment shall show that all such property is or shall be , subsequent to the execution and recording of this Agreement , free and clear of all liens and encumbrances (other than real estate taxes which are not yet due and payable) wh ich would make the dedication or reservation unacceptab le as the City determines in its reasonab le d iscretion . The City , in its sole discretion , may accept any dedication regardless of encumbrances . The title policy evidenced by the title commitment shall be provided within thirty (30) days after the recording of this Agreement , in an amount equal to the fair market value of the property so dedicated or reserved . 5. Brea ch by the Developer: the City's Remed ies . In the event of a breach of any of the terms and conditions of this Agreement by the Developer . the City Council shall be notified immediately and the City may take such action as permitted and /or authorized by law, this Agreement , or the ordinances and Charter of the City as the City deems necessary to protect the publ ic health , safety and welfare ; to protect lot buyers and builders ; and to protect the citizens of the City from hardship and undue risk . These remedies include , but are not limited to : (a) The refusal to issue any building permit or certificate of occupancy ; (b) The revocat ion of any bu ilding perm it previously issued under wh ich construction directly re lated to such build ing permit has not commenced , except a bu ild ing perm it previously issued to a th ird party, (c) A demand that the security given for the completion of the Public Improvements be paid or honored , or (d) Any other remedy available at law or in equity . Unless necessary to protect the immediate health , safety and welfare of the City or to protect the City's interest with regard to security given for the completion of the Public Improvements, the City shall provide the Developer thirty (30 ) days written notice of its intent to take any action under this paragraph during which th irty day period the Developer may cure the breach described in the notice. 6 . Public Improvements and Warranty. All storm sewer lines . drainage structures , paved streets , including curb , gutter and sidewalk , and necessary appurtenances as shown on the subdivision plat and the associated construction documents (the "Public Improvements" or "Improvements") as approved by the Director of Public Works or des ignee of the City , shall be installed and completed at the expense of the Developer w ith in the t imeframes set forth on Exhibit C . The Publ ic Improvements required by th is Agreement and shown on the co nstru ction documents approved by the Director of Public Works of the City , the timeframes for construction of the Improvements and the itemized costs of these Improvements are set forth on Exhibit C if applicable . All Public Improvements covered by this Agreement shall be made in accordance with the construction documents drawn according to regulations and construction standards for such improvement and approved by the Director of Public Works of the City . It is understood by the Parties that the description of the Public Improvements may be general in nature , and that reasonable modifications of the scope , nature , costs , and similar aspects of the Public Improvements may be necessary to secure final approval of the Public Improvements. The quantities and locations for the Public Improvements are based on information that was available at the time of approval of the Final Plat. Additional Public Improvements may be required , and Developer shall be responsible for submitting revisions to the Final Plat approved by the City . The Public Improvements shall be substantially complete and granted construction acceptance , with only such exceptions as shall be approved in advance by the Director of Public Works in the exercise of his or her sole discretion, prior to the issuance of the first certificate of occupancy . The Developer shall also warrant any and all Public Improvements which are conveyed to the City pursuant to this Agreement for a period of two (2) years from the date the City's Director of Public Works certifies that the same conform with the specifications approved by the City . Specifically, but not by way of limitation , the Developer shall warrant the following : (a) That the title conveyed shall be marketable and its transfer rightful ; Any Public Improvements conveyed shall be free from any security interest or other lien or encumbrance ; and (b) Any Public Improvements so conveyed shall be free of defects in materials or workmanship for a period of two (2) years as stated above . (c) To the degree the Developer is required to install and maintain landscaping on public or private property, it is the obligation of Developer to maintain the required landscaping for two (2) growing seasons . The City will finally accept for maintenance all Public Improvements after the warranty period has expired provided all warranty work has been completed. The City shall accept for snow removal purposes only, all dedicated public streets after the City issues the first certificate of occupancy . 7. Installation of Traffic Signal on 38 1h Avenue . A traffic signal on 38 1h Avenue may be required to serve this development. Determination of the need for the signal shall be made by the City's Public Works Director, hereinafter "Director", prior to building permit issuance and based upon a traffic study for this development approved by the City. The Developer shall provide collateral for the estimated cost of installation of the traffic signal prior to building permit issuance , if the Director has determined that a signal is needed . Prior to building permit issuance , the Developer shall provide traffic signal plans for approval by the Developer and the Colorado Department of Transportation. The Developer shall notify the City in writing , a m inimum of one hundred sixty (160) days prior to the desired time of installation/modification of the traffic signal in order to allow the City to coordinate the timing of the traffic signal improvements. If the Director approves installation of the signal based on meeting traffic warrants , the City shall then notify the Developer in writing of the exact amount required for the traffic signa l improvements . The Developer shall then make payment to the C ity in cash for the required amount within sixty (60) days of receipt of such letter. The City will not commence traffic signal improvements until the Developer has paid to the City the total amount determined by the Director to be the total cost of improvements . 7. Intentionally Deleted . 8 . Observation. Inspection and Testing . The City shall have the right to require reasonable engineering observations and testing at the Developer's expense . Observation and testing , acquiescence in , or approval by any engineering inspector of the construction of the Public Improvements at any particular time shall not constitute the approval by the City of any portion of the construction of such Public Improvements. Su ch approval shall be made by the City , only after completion of construction and in the manner hereinafter set forth . The Dire ctor is designated by the City to exercise authority on its behalf under th is Agreement and to see that this Agreement is performed accord ing to its terms . Work under th is Agreement may, withou t cost or cla im aga inst the City, be suspended by the Director for substantial cause. The Director shall , within a reasonab le time after presentation , make decisions in writing on all claims of Developer and on all other matters relating to the execution and progress of the work or the interpretation of this Agreement, the master plan and specifications . All such decisions of the Director shall be final. The Director shall make all determinations of amounts and quantities of work performed hereunder. To assist him in this work Developer shall make available for inspection any re cords kept by Developer. The Director and his authorized representatives shall have free access to the work at all t imes , and Developer shall furnish them with facil ities for ascertaining whether the work being performed , or the work which has been completed , is in accordance with the requirements of the Agreement. The Director will make period ic observations of construction (sometimes commonly referred to as "supervision"). The purpose of these observations and construction checking is to determine the progress of the work and to see if the work is be ing performed in accordance with the plans and specifications . He will in no way be responsible for how the work is performed , safety in, on , or about the job site , methods of performance , or t imeliness in the performance of the work . Inspectors may be appointed to inspect materials used and work done. Inspections may extend to all or any part of the work and to the preparation or manufacture of the materials to be used . The inspectors will not be authorized to alter the provis ions of this Agreement or any specificat ions or to act as foreman for Developer. The Inspector will have authority to reject defective materia ls and to suspend any work that is be ing done improperly , subject to the final decision of the Director . 9. Completion of Public Improvements. The obligations of the Developer provided for in paragraph 6 of this Agreement , including the inspections hereof, shall be performed on or before December 31 , 2015, and proper application for acceptance of the Public Improvements shall be made on or before such date . Upon completion of construction by the Developer of such Improvements, the City's Director of Public Works or designee , shall inspect the Improvements and certify with specificity its conformity or lack thereof to the City's specifications. The Developer shall make all corrections necessary to bring the Improvements into conformity with the City's specifications . Once approved by the City's Director of Public Works , the City shall accept said Improvements upon conveyance ; prov ided , however , the City shall not be obligated to accept the Publ ic Improvements until the actual costs described in this Agreement are pa id in full by the Developer. 1 0. Protection . Developer, at its expense , shall continuously maintain adequate protection of all Improvements from damage pr ior to acceptance by the City and shall protect the City 's property from injury and loss aris ing in connection with this Agreement. Developer shall make good any such damage , injury or loss except such as may be caused d irectly by authorized agents or employees of the City . Developer shall adequately protect adjacent property and shall provide and maintain all passageways , guard fences , lights and other facilities for protection required by public authority or local conditions . Developer shall be responsible fo r damage to any public and private property on and adjacent to the site of Developer's Improvements caused by negligent or willful acts of Developer, its agents or subcontractors . Developer shall take all reasonable effort necessary to prevent damage to pipes , conduits , and other underground structures and to overhead wires , and to water quality. Developer shall protect carefully from d isturbance or damage all land monuments and property marks until an authorized agent of the City has witnessed or otherwise referenced their location , and shall not remove them until directed . When any direct or indirect damage or injury is done to publ ic or private property by or on account of any act , om iss ion , neglect or misconduct in the construction of Improvements, or in consequence of the non -execut ion thereof on his part, such damaged property shall be restored by Developer at its own expense to a condition similar or equal to that existing before such damage or injury. Developer shall at all times, whether or not so specifically directed by the Director, take necessary precautions to insure the protection of the publ ic. Developer shall furnish , erect and maintain , at its own expense , all necessary barricades, suitable and sufficient red lights , construction signs , provide a sufficient number of watchmen , and take all necessary precautions for the protection of the work and safety of the public through or around his construction operations as Developer and the Director shall deem reasonably necessary. 11 . Related Costs -Public Improvements . The Developer shall provide all necessary engineering designs , surveys , field surveys , testing and incidental services related to the construction of the Public Improvements at its sole cost and expense , including final drainage study letter certified accurate by a professional engineer registered in the State of Colorado . 12 . Improvements to be the Property of the Citv. All Public Improvements for roads , concrete curb and gutters , public storm sewers and public drainage improvements accepted by the City shall be dedicated to the City and warranted for a period of twenty-four (24) months following acceptance by the City , as provided above . 13. Performance Guarantee . The Parties have entered into that certain Redevelopment Agreement dated April_, 2014 and because of the Redevelopment Agreement, there is no performance guaranty required to secure the completion of the Public Improvements . After the City's acceptance of the Public Improvements, Developer shall provide an irrevocable letter of credit to the City in the amount of twenty-five percent (25%) of the total cost of construction and installation of the Public Improvements , to be held by the City during the warranty period . The letter of credit shall be substantially in the form and content set forth in Exhibit D. 14 . Indemnification. The Developer shall indemnify and hold harmless the City and its officers , employees , agents or servants from any and all suits , actions , and cla ims of every nature and description caused by, arising from or on account of this Agreement any act or om ission of the Developer, or of any other person or entity for whose act or omission the Developer is liable, with respect to the Public Improvements; and the Developer shall pay any and all judgments rendered against the City as a result of any suit , action , or cla im, together with all reasonable expenses and attorney's fees and costs incurred by the City in defending any such suit, action or claim . The Developer shall pay all property taxes on the Property dedicated to the City and shall indemnify and hold harmless the City for any property tax liability. 15. Waiver of Defects . In executing this Agreement, the Developer waives all objections it may have concern ing defects, if any, in the formalities whereby it is executed , or concerning the power of the City to impose conditions on the Developer as set forth here in, and concerning the procedure , substance , and form of the ordinances or resolutions adopting this Agreement. 16 . Third Party Beneficiaries . There are and shall be no third party beneficiaries to this Agreement. 17 . Modifications. This instrument 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 . There shall be no modification of this Agreement except in writing , executed with the same formalities as this instrument. Subject to the conditions precedent herein , this Agreement may be enforced in any court of competent jurisdiction. 18. Release of Liability. It is expressly understood that the City cannot be legally bound by the representations of any of its agents or their designees except in accordance with the City of Wheat Ridge Code of Ordinances and the laws of the State of Colorado . 19 . Captions . The captions to this Agreement are inserted only for the purpose of convenient reference and in no way define , limit, or prescribe the scope or intent of this Agreement or any part thereof. 20 . Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors , and assigns as the case may be . 21 . No Waiver . No waiver of any of the provisions of this Agreement shall be deemed or constitute a waiver of any other provisions herein , nor shall such waiver constitute a continuing waiver unless otherwise expressly provided , nor shall the waiver of any default hereunder be deemed a waiver of any subsequent default hereunder. 22 . Invalid Provision . If any provision of this Agreement shall be determined to be void by any court of competent jurisdiction , then such determination shall not affect any other provision hereof, all of the other provisions shall remain in full force and effect. It is the intention of the Parties that if any provision of this Agreement is capable of two constructions , one of which would render the provision void , and the other which would render the provision valid, then the provision shall have the meaning which renders it valid . 23 . Governing Law . 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 , venue of such suit or action shall be in Jefferson County, Colorado . 24. Attorney Fees . Should any party hereto institute an action or proceeding to enforce any provision of this Agreement or for damages by reason of an alleged breach of any provision hereof, the prevailing party shall be entitled to recover from the party not prevailing all costs and expenses (including reasonable attorneys ' fees) incurred by such prevailing party in connection with such action or proceeding and the enforcement of any judgment or settlement obtained in such action or proceeding and , the provisions of any such judgment shall expressly provide for the recovery of such post-judgment costs and expenses. A "prevailing party" includes one who dismisses an action brought under or with respect to this Agreement in exchange for the payment of the sums alleged to be due, performance of the covenants alleged to have been breached or other consideration substantially equal to that sought in such action . 25 . Notice. All notices required under this Agreement shall be in writing and shall be hand delivered or sent by registered or certified mail, return receipt requested , postage prepaid , to the addresses of the parties herein set forth . All notices so given shall be considered effective seventy-two (72) hours after deposit in the United States mail with the proper address as set forth below. Either party by notice so given may change the address to which future notices shall be sent. Notice to Developer: Notice to C ity : Millennium Venture Group , Inc Attn : Jon Rankin 1509 York Street , 3rd Floor Denver, CO 80206 Director of Public Works 7500 West 291h Avenue Wheat Ridge , CO 80033 26 . Force Majeure. Whenever the Developer is required to complete the construction , repair , or replacement of Public Improvements by an agreed deadline , the Developer shall be entitled to an extension of time equal to a delay in completing the foregoing due to unforeseeable causes beyond the control and without the fault or negligence of the Developer including , but not restricted to , acts of God , weather, fires and strikes . 27 . Assignment or Assignments . There shall be no transfer or assignment of any of the rights or obligations of the Developer under this Agreement without the prior written approval of the City. 28 . Recording of Agreement. This Agreement shall be recorded in the real estate records of Jefferson County and shall be a covenant running with the Property in order to put prospective purchases or other interested parties on notice as to the terms and provisions hereof. 29 . Title and Authority. The Developer expressly warrants and represents to the City that it is the record owner of the property constituting the Property and further represents and warrants, together with the undersigned individual(s) that the undersigned individual(s) has or have full power and authority to enter into this Subdivision Improvement Agreement. The Developer and the undersigned individual(s) understand that the City is relying on such representations and warranties in entering into this Agreement. WHEREFORE , the parties hereto have executed this Agreement on the day and year first above written . CITY OF WHEAT RIDGE, COLORADO By : Joyce Jay, Mayor ATTEST: Janelle Shaver, City Clerk APPROVED AS TO FORM : Gerald Dahl, City Attorney Millennium Venture Group , Inc., a Delaware corporation By : _________________________ __ STATE OF COLORADO ) ) ss. COUNTY OF ________________________ ~ The foregoing instrument was acknowledged before me this ___ day of -----------· 2014, by , as ______________ _ of Millennium Venture Group , Inc., a Delaware corporation . Witness my hand and official seal. My commission expires: ------------------ Notary Public (SEA L ) 20668744 v3 EXIIIBIT 8 COOPERATION AGREEMENT BETWEEN THE CITY OF WHEAT RIDGE AND WHEAT RIDGE URBAN RENEWAL AUTHORITY THIS COOPERATION AGREEMENT (this '·AgreemenC) dated as of April _, 20 I 4, is made and entered into between the CITY OF WJIEA T RIDGE , CO LORADO (the --city .. ) and the WHEAT RIDGE URBAN RENEWAL AUTHORJ TY d/b/a/ RENEWAL WHEAT RIDGE (the "Authority''). WllEREAS. the City is a Colorado home rule municipality with all the powers and authority granted pursuant to Article XX of the Colorado Co nst itution and it s home rule charter (the "Charter''); and WI IEREAS, the Au th ority is a Colorado Urban Renewal Authority. with all the powers and autho rity granted to it pursuant to Title 31, Article 25. Part I. Co lorado Revised Statutes ("C.R.S.'') (the "U rban Renewal Law''); and WHEREAS. pursuant to Article X IV of the Colorado Constitution, and Title 29. Article 1, Part 2. C.R.S .. the City and the Authority are authorized to cooperate and contract with one another to provide an) function. service or facility lawfully authorized to each governmental entity; and WHEREAS, the City Council of the City (the ··city Council") has previously adopted the 1-70/Kipling Corridors Urban Renewal Plan , as amended (the "Urban Renewal Plan'· or the "Plan") for th e area described therein (the "Urban Renewal Area''); and WI IEREAS, Millennium Venture Group, Inc ., a Delaware co rporat ion (the ·'Developer'') has one or more contracts to purchase certain real property consisting of approximately 6.5 acres which is located at the southwest comer of West 38 111 Avenue and Kipling Street (the ''Property''). which is in the Urban Renewal Area; and WI IEREAS, the Developer has submitted a proposal to the City and the Authority to redevelop the Property (the "Project"); and WHEREAS , the Project is being undertaken to facilitate the elimi nation and prevention of blighted areas and to promote redevelopment. conservation and rehabilitation of the Urban Renewal Area; and WHEREAS , pursuant to section 31-25-112, C.R.S., the Ci ty is specifically authorized to do all things necessary to aid and coope rate with the Authority in connection with the planning or undertaking of any urban renewal plans, projects. programs. works , operations, or activities of the Authority, to enter into agreements with the Authority respecting such actions to be taken by the City, and app ropriat in g funds and making such expenditures of it s funds to aid and cooperate with the Authority in undertaking the Project and carrying out the Plan; and WHEREAS, the City, the Authority and the Developer expect to enter into a Redevelopment Agreement (the ··Redevelopment Agreement") that sets forth the rights and responsibilities of each party with respect to the financing and construction of the Project; and WHEREAS, in order to finance certain eligible improvements for the Project, the Redevelopment Agreement provides that. upon compliance with certain conditions precedent, the Authority will issue bonds o r enter into a loan with a bank o r other financial institution (the ''Lender") in the maximum amount of $2,615.000 (the "Loan'') with such Loan to be payable from property tax increment revenues and sales tax increment revenues to be generated from the redevelopment of the Project; and WHEREAS. it is expected that the Loan will be secured by a reserve fund (the .. Reserve Fund'') to be held by the Lender and that such Reserve Fund will be required to be maintained in an amount equal to the R eserve Fund Requirement (as defined in the Redevelopment Agreement): and WHEREAS, in order to help facilitate the redevelopment of the Project, the City Council has adopted a Resolution declaring its nonbinding intent and expectation that it will appropriate any funds requested, within the limits of available funds and revenues, in a sufficient amount to replenish the Reserve Fund to the Reserve Fund Requirement in the event of a draw thereunder (the "Replenishment Resolution .. ); and WHEREAS , capitalized tem1s used herein and not otherwise defined shall have the meanings set forth in the Redevelopment Agreement. NOW, THEREFORE, in consideration of the mutual promises set forth below, the City and the Authority agree as follows: I. LOAN. lf the City Council appropriates funds pursuant to the Replenishment Resolution to replenish the Reserve Fund as set forth therein, such funds shall be a loan from the City to the Authority to be repaid as provided herein. 2. PAYMENT. All amounts payable by the Authority to the City hereunder shall be repaid from and to the extent of availab le Pledged Revenues. or from other available revenues of the Authority. provided that any s uch repayment from Pledged Revenues shall be made on a basis expressly subordinate and junior to the payments due on the Loan. 3. FURTHER COOPERATION. (a) The City shall continue to make available such employees of the City as may be necessary and appropriate to assist the Authority in carrying out any authorized duty or activity of the Authority pursuant to the Urban Renewal Law, the Plan, or any other lawfully authorized duty or activity of the Authority. (b) The City agrees to assist the Authority by pursuing all lawful procedures and remedies available to it to collect and transfer to the Authority on a timely basis all Pledged Sales Tax Increment Revenues for deposit into the Special Fund. 2 (c) The City agrees to pay to the Authority any Pledged Property Tax Increment Revenues when, as and if received by the City, but whjcb are due and owing to the Authority pursuant to the Plan and the Urban Renewal Law. 4. GENERAL PROVISIONS . (a) Separate Entities. Nothing in this Agreement shall be interpreted in any manner as constituting the City or its officials, representatives, consultants, or employees as the agents of the Authority, nor as const ituting th e Authority or its officials, representatives, consultants, or employees as agents of the City. Each entity shall remain a separate legal entity pursuant to applicable law. Neither party shall be deemed hereby to have assumed the debts. obligations, or liabilities of the other. (b) Third Parties. Neither the City nor the Authority shall be obligated or liable under the terms of this Agreement to any person or entity not a party hereto, provided, however, that the Lender is a trurd party beneficiary to the provisions hereof related to the collection and remittance to the Authority of the Pledged Revenues. (c) Modifications. No modification or change of any prov1s1on in this Agreement shall be made, or construed to have been made, unless such modification is mutually agreed to in writing by both parties and incorporated as a written amendment to this Agreement. Memoranda of understanding and correspondence shall not be construed as amendments to the Agreement. (d) Entire Agreement. This Agreement shall represent the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior negotiations. representations, or agreements, eithe r written or o ral, between the parties relating to the subject matter of this Agreement and shall be independent of and have no effect upon any other contracts. (e) SeverabilitY. If any provision of this Agreement is held to be invalid, illegal or unenforceable , the validity. legality and enforceability of the remaining provisions shall not in any way be affected or impaired. (f) Assignment. Except for the pledge under the Loan Documents. this Agreement shall not be assigned, in whole or in part, by either party without the written consent of the other. (g) Waiver. No waiver of a breach of any provision of this Agreement by either party shall constitute a waiver of any other breach or of such provision. Failure of either party to enforce at any time. or from time to time, any provision of this Agreement shall not be construed as a waiver thereof. The remedies reserved in this Agreement shall be cumulative and additional to any other remedies in law or in equity. 3 fN WITNESS WHEREOF, this Agreement is executed by the Parties as of April _, 2014. CITY OF WHEAT RIDGE, COLORADO (SEAL) Attest: elle Shaver, City Clerk APPROVED AS TO FORM (l~ Gerald Dahl , C ity Attorney WHEAT RIDGE URBAN RENEWAL AUTHORITY ATTEST: 20657920 v2 4