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HomeMy WebLinkAboutStudy Session 12/20/2004 PAM ANDERSON 4:30 p.m. Pre-Meeting AGENDA SPECIAL CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING December 20, 2004 5:00 p.m. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL OF MEMBERS DECISIONS, RESOLUTIONS. AND MOTIONS Item 1. RESOLUTION 38-2004 - APPROVING AN ANNEXATION AND DEVELOPMENT AGREEMENT AMONG THE CITY, CABELA'S RETAIL, INC , AND THE COORS BREWING COMPANY ADJOURNMENT ITEM NO: L REQUEST FOR CITY COUNCIL ACTION COUNCIL MEETING DATE: December 20, 2004 TITLE: RESOLUTION 38-2004 APPROVING AN ANNEXATION AND DEVELOPMENT AGREEMENT AMONG THE CITY, CABELA'S RETAIL, INC., AND THE COORS BREWING COMPANY D PUBLIC HEARING D BIDS/MOTlONS ~ RESOLUTIONS D ORDINANCES FOR 1 ST READING (Date' D ORDINANCES FOR 2ND READING ) Quasi-Judicial. D ~ Yes No ~~)r~ . City Manag '6' City Attorney EXECUTIVE SUMMARY: This resolution approves the Annexation and Development Agreement for the Cabela's Project. COMMISSION/BOARD RECOMMENDATION: N/A STATEMENT OF THE ISSUES: The Agreement provides for annexatIOn of approximately 230 acres, which will be de'v'eloped for a Cabela's store and associated retail uses. This project will include the construction of a series of public improvements, including roadways and road improvements, dramage, and public museum elements. ALTERNATIVES CONSIDERED: Do not approve the Resolution and terminate negotiations. FINANCIAL IMPACT: No negative impact. It is important to recognize that this property currently produces no revenue for the City; its development as proposed will generate sales tax revenues without any requirement for out-of-pocket City expenditures. A portIOn of these City sales tax revenues will be used to bUild public improvements needed for the project. RECOMMENDED MOTION: "I move to approve ResolutiOn 38-2004 Approving an Annexation and Development Agreement Among the City, Cabela's Retail, Inc., and the Coors Brewmg Company." or, "I move to table indefinitely Resolution 38-2004 Approving an Annexation and Development Agreement for the following reason(s) Report Prepared by' Gerald Dahl, City Attorney (303) 376-50l9 Attachments: 1. Resolution 38-2004 041220 CAF Cabelas Annexallon Agreement CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO 38 Series of 2004 TITLE: A RESOLUTION APPROVING AN ANNEXATION AND DEVELOPMENT AGREEMENT AMONG THE CITY, CABELA'S RETAIL, INC , AND THE COORS BREWING COMPANY WHEREAS, the City is a home rule municipality organized and operating pursuant to Article XX of the Colorado Constitution and the Colorado Revised Statutes; and WHEREAS, the City is authorized to annex territory into the corporate boundaries of the City pursuant to C.R.S 931-12-101, et. seq., and WHEREAS, Cabela's Retail, Inc. and the Coors Brewing Company, as owners and/or contract purchasers of real property in unincorporated Jefferson County contiguous with the present City boundaries, have expressed interest in annexing said property into the City; and WHEREAS an Annexation and Development Agreement has been prepared which memorializes the terms and conditions under which the City Council is willing to consider annexation of the property; and WHEREAS the City Council has determined that it is in the best interest of the City that the Annexation and Development Agreement be approved. NOW, THEREFORE, BE IT RESOLVED by the Wheat Ridge City Council, that: Section 1. The Annexation and Development Agreement among the City of Wheat Ridge, Cabela's Retail, Inc., and the Coors Brewing Company dated December 20, 2004 (a copy of which is attached hereto as Exhibit A and fully incorporated herein by this reference) is hereby approved, and the Mayor and City Clerk are hereby authorized and directed to execute the same Section 2. This Resolution shall be effective upon adoption. Section 3. Publication. This Resolution shall be published in a newspaper of general circulation within the City of Wheat Ridge DONE AND RESOLVED this _ day of December, 2004 GEDI53027 17\491603.1 ATTACHMENT 1 ATTEST" Wanda Sang, City Cieri< Published in the Wheat Ridge Transcript: GED\5302717\491603,1 Gretchen Cerveny, Mayor ,2004. EXHIBIT A ANNEXATION AND DEVELOPMENT AGREEMENT [ATTACHED] GED\53027 17\491603,1 ANNEXATION AND DEVELOPMENT AGREEMENT Among The City of Wheat Ridge, a Colorado mUnIcipal corporatIOn, Cabela's Retail Inc., a Nebraska corporation and Coors Brewing Company, a Colorado corporation Dated' December 20, 2004 GED\53027 17\48613407 273090.3 TABLE OF CONTENTS Page PARTIES . ... . . 2 RECiTALS..... .. .......... .... ..... .. .......... 3 DEFINITIONS.. . ........... .... ... ...... 2 4 EFFECTIVE DATE AND TERM OF AGREEMENT .. 6 5 DEVELOPMENT OF THE PROJECT. 7 6 ZONING AND RELATED APPROVALS....... .. 8 7 PUBLIC IMPROVEMENTS. .......... ........... . ..... .. ..... .. 10 8 SALES TAX REVENUE SHARING AND PUBLIC IMPROVEMENT FEE 13 9 BONDS ........ l8 10 ADDITIONAL INCENTIVES . .. 20 II SPECIAL DISTRICTS .. ... 20 l2 OWNERS' ASSOCIATIONS. 21 13 DEFAULT AND REMEDIES. .. 21 14 MISCELLANEOUS... . .. . .. 22 l5 EXHIBITS . ...... 29 GED\53027 17\486134 07 273090.3 ANNEXATION AND DEVELOPMENT AGREEMENT THIS AGREEMENT is made and entered mto as of the 20th day of December, 2004 1. PARTIES The parties to this Agreement are the City of Wheat Ridge, a Colorado mUnicipal corporation (the "City"), and Cabela's Retail Inc, a Nebraska corporation ("Cabela's"), and Coors Brewing Company, a Colorado corporation ("Coors") 2. RECITALS This Agreement is entered into on the basis of the following facts, understandlllgs and intentions of the parties' a The City is a municipal corporation eXistlllg under the laws of the State of Colorado and its home rule charter Cabela's is a corporation, duly organized, existing and in good standing under the laws of the State of Nebraska Coors is a corporation, duly organized, existing and in good standing under the laws of the State of Colorado b Cabela's and Coors are either the owners, contract purchasers or anticipated contract purchasers of the real property described in Exhibit A, attached hereto and lllcorporated herein by reference (the "Property") c Coors and Cabela's desire to annex the Property to the City and for that purpose mtend to submit (or anticipate that other necessary entitIes Will submit) to the City certain annexation petItIOns seeking simultaneous annexation of a group of parcels that collectively constitute the Property d Cabela's desires to construct and operate an approximately 225,000 square foot retail facility on the Property which Will serve as a tounsm destination center specializing in hunting, fishing, campmg and outdoor gear (the "Cabela's Store"), along with the construction and operation of certain other related buildings designed to attract other retailers to the City (the "Retail Center") Other parcels of land owned by Coors within the Property, as shown on the attached Exhibit B, may be developed m the future ("Coors Parcell," "Coors Parcel 2A," "Coors Parcel 2B," "Coors Parcel 3" and "Coors Parcel 4," collectively "Coors Parcels") The Cahela's Store, Retail Center and the Coors Parcels are collectively referred to as "Cabela's Project" The parties agree that the parcel boundaries shown on Exhibit B may be adjusted upon the filing of an Outline Development Plan for all or a portion of the Property, and that a revised Exhibit B shall thereupon be substituted for that attached hereto GED''s3027 17\486134.07 273090.3 e. The Cabela's Project will be developed as a Planned Commercial Development under the Wheat Ridge Code of Laws f Development of the Property will necessitate public mfrastructure Improvements and public services, will contribute to the economic growth of the CIty, and will increase future tax revenues received by the City, and is a development project for which economic incentives will serve a lawful public purpose g The parties contemplate that a portion of the sales tax revenues to be received by the City from activities associated with the Property will be shared with a special distri.::t that will be organized pursuant to this Agreement for the purpose of assisting with the payment of costs for constructing public mfrastructure improvements and providing public services in consideration of the increased tax revenues and other benefits that the City expects to realize as a result of the annexation and development of the Property h The parties desire to s'::t forth in thiS Agreement their agreements relative to the sharing of a portion of the City's sales tax revenue from the Property for the purpose of funding certain public improvements 1. Under the Act, metropolitan distncts have the power to finance the construction of certam public improvements by issuing bonds J The parties contemplate the creation of a metropolitan dlstnct, encompasslllg the Property (the "Metropolitan Dlstnct") k. C.R S Section 3l-12-l2l specifically authorizes the parties to enter into this Agreement in connection with the annexatIOn of the Property lllto the CIty NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideratIOn, the receipt and adequacy of which is hereby acknowledged by the City, Coors and Cabela's, the partIes agree as follows 3. DEFIJ'l.1TIONS As used in this Agreement, unless specifically stated otherwise, the words and phrases used shall have the meaning as defined in the Wheat Ridge Code of Laws For the purpose of this Agreement the followlllg words and phrases shall have the definitions provided for below' a. "Act" means the Special District Act, Colorado Revised Statutes S 32-1-101, et~. b "Agreement" means this AnnexatIOn and Development Agreement GED\53027 17\486134 07 273090 3 2 c. "Annexors" means Cabela's and Coors; provIded, however, it shall also mc\ude any other party that subsequently submits an annexation petition to the CIty for purposes of annexing the Property. d "Bond Indenture" means the definitive agreement entered into by the Metropolitan District and the Trustee which provides for the Issuance of the Bonds in accordance with the terms set forth in this Agreement e "Bonds" means the bonds issued by the Metropolitan District in accordance with the terms of the Act, which shall consist of Tax-Free Bonds to the greatest extent possitle, with the remainder consisting of Taxable Bonds. f "Cabela's" means Cabela's Retail, Inc., a Nebraska corporation, and ItS successors or assIgns. g "Cabela's Project" has the meaning ascribed to it in Section 2 d h. "Cabela's Store" has the meaning ascribed to it m Section 2 d. "CDOT" means the Colorado Department of Transportation J "City" means the City of Wheat Ridge, Colorado, a home rule municIpal corporation. k "Coors" means Coors Brewmg Company, a Colorado corporation "Coors Parcell," "Coors Parcel 2A," "Coors Parcel 2B," "Coors Parcel 3," "Coors Parcel 4," and "Coors Parcels" have the meanings ascribed to such terms in Section 2 d m "Council" means the City CouncIl of the City as that body may be constituted from time to time n "County" means Jefferson County. Colorado, a county established under the provisions of Colorado law o "Final Development Plan" means a Final Development Plan, as described m SectIon 26-308 D of the Wheat Ridge Code of Laws. p "Final Plat" means a final subdivision pIal submitted by Cabela's and approvt:d by the City as part of the subdivision process for any part of the Property, pursuant to the proviSIOns of the Wheat Ridge Code of Laws, Section 26-401 et~ GED\53027 17\486134.07 273090 3 3 q "Force Majeure" means and shall be limited to an event which IS beyond the reasonable control of Annexors or the City and which causes a delay or failure to perform obligations hereunder, including, without limitation, acts of God, earthquake, fire, explosion, war, civil insurrection, acts of the public enemy, acts of Civil or military authority, sabotage, terronsm, floods, IIghtnmg, hurricanes, tornadoes, severe snow storms, major equipment failure, utility disruption, failure of a major supplier to perfonn its obligatIOn to an Annexor not arising out of or involving a failure toward such supplier by an Annexor, strikes, lockouts or other labor disputes with respect to which an Annexor has not been detennined by the National Labor Relations Board to have engaged m any unfair labor practices, or change in law or the mterpretatlOn thereof by responsible authority which shall prohibit any change in the operation of the Cabela's Project or matenally mcrease the costs of the foregomg beyond those foreseeable on the date hereof, so long as, in any such case (1) such events are beyond the reasonable control of, and should not in the exercise of reasonable caution have been foreseen and avoided or mitigated by the subject Annexor or the City, as applicable, and (11) the subject Annexor or the City, as applicable, is using its best reasonable efforts to remedy the effects thereof r "Metropolitan District" means the metropolitan district the parties antiCipate will be established following annexation of the Property to the City The Metropolitan District service plan shall provide that the DlStnct shall eXist for a term not to exceed forty-two (42) years along with such other customary and necessary provisions to reflect the obligations of the Metropolitan DIstnct m accordance with state law and the terms set forth m thiS Agreement s "PCD" means the Planned Commercial District as defined m the Wheat Ridge Code of Laws "PCD Final Plan" means Cabela's Planned Commercial DIstnct Final Development Plan, as defined in the Cny's Planned Development Regulations, and the accompanying exhibIts u "PCD Plan" means Cabela's Planned Commercial District plan as defined m the Planned Development Regulations Such PCD Plan for the Property includes the PCD Outline Development Plan, all PCD Final Plans and such other graphic and written documents designated by the Council at the time of annexation of the Property and approval of the PCD Outline Development Plan, with all conditions that may be attached to such approvals v "PCD Outline Development Plan" means Cabela's Planned Commercial District Outline Development PI,,!) as defined in the City's Planned Development Regulations, and the accompanymg exhibits GED\5302717\486134.07 273090.3 4 w "Planned Development Regulations" shall mean Sections 26-301, et ~ of the Wheat Ridge Code of Laws, as well as all other sections of the Wheat RIdge Code of Laws referred to therein. x "Property" has the meamng ascribed to it in Section 2 b Y "Public Facilities" means those portiOns of the Property and buildIng compnsIng the Cabela's Store that are owned by the Metropolitan DistrIct and avaIlable and used primarily by the general public z "Public Improvements," includes the Publlc Infrastructure, the Publ1c Roadway Improvements and the Public Facillties aa. "Public Improvement Fee" has the meaning ascribed to it in Section 8 b bb "Publlc Improvement Fee Revenue Bonds" has the meanIng ascribed to It in Section 8 b cc "Public Infrastructure" means, within the service area of the Metropolitan District, the design and construction of the utilitIes, draInage Improvements and such other similar items as agreed upon by the partIes dd "Public Roadway Improvements" means the desIgn and constructIon of any access interchanges, ramp improvements, road WIdenIng and other roJds or streets deemed reasonably necessary to improve access to the CJbela' s Project, as further described on Exhibit E under the headIng "Publ1c Road\\ays " ee "Retail Center" has the meaning ascribed to It in SectIon 2 d ff "Service Plan" has the meanIng ascribed to It In Section II b gg "Shared Sales Tax" has the meaning ascribed to It In SectIon 8 a hh "Shared Sales Tax Revenue Bonds" has the meanIng ascribed to it In Section 8 a 11 "State" means the State of Colorado JJ "Subdivision Regulations" means those regulatiOns adopted by the CIty pursuant to C R.S Section 31-23-201, et seq, and now contained in Chapter 26, Article 4 of the Wheat Ridge Code of Laws, as the same may be amended from time to time by ordinance of general applicability throughout the City GED\53027 17\486134.07 273090.3 5 kk. "Taxable Bonds" means the portion of Bonds to be used for acquIsitIOn and/or construction of Public Improvements in conjunction with the Cabela's Project which do not qualify for federal tax-exemption. The Taxable Bonds are expected to be taxable, have a maturity not to exceed forty (40) years, and shall bear interest at a rate or rates to be set forth ill the Service Plan of the Metropolitan District. II "Tax-Free Bonds" means the portion of Bonds to be used for acquisition and/or construction of Public Improvements in conjunction with the Cabela's Project which do qualify for federal tax-exemption. The Tax-Free Bonds are expected to be tax-exempt, have a maturity not to exceed twenty-five (25) years, and shall bear interest at a rate or rates to be set forth in the SerVice Plan of the Metropolitan District. The parties hereby agree that the Tax-Free Bonds shall only be tax-exempt to the extent permitted under the UnIted States Internal Revenue Code of 1986, as amended. Upon or before issuance of the Bonds, bond counsel to the Metropolitan District shall proVide a customary opmlOn with regard to the tax-exempt status of the Tax-Free Bonds In the event that the Tax-Free Bonds are ever deemed taxable, the interest shall automatically adjust to provide the rate of interest earned on Taxable Bonds for any period that the Tax-Free Bonds are deemed taxable mm "Training Grant" means any federal or state employee trammg grant for the trainIng of non-point-of-sale employees who will work m the Cabela's Store nn "Trustee" means the trustee appointed to serve in such role m accordance with the Bond Indenture 00 "Wheat Ridge Code of Laws" means the municipal code and ordmances of the City of Wheat Ridge, Colorado as adopted and as amended from time to time by the Council 4. EFFECTIVE DATE AND TERM OF AGREEMENT a This Agreement shall be effective upon execution by the Parties. The term of thiS Agreement shall be forty-five (45) years from the date of this Agreement, unless earlier terminated as provided herein. After the expiration of the term or earlier termmatlon, this Agreement shall be deemed terminated and of no further force and effect; provided, however, such termination shall not affect (a) annexation of the Property into the City; (b) any right arising from City permits, approvals or other enmlements for the Property which were granted or approved prior to, concurrently wllh, or subsequent to the approval of thiS Agreement and that were contemplated to continue after termination of this Agreement, (c) except as otherWise set forth in thiS Agreement, ...onstruction, maintenallce and GED\53027 17\486l34,07 273090.3 6 repair of Public Improvements; (d) repayment of the Bonds, or (e) any continuing nghts to share III the Public Improvement Fee Despite such expiration and notwithstanding any provision of the Wheat Ridge Code of Laws to the contrary, the zoning of the Property shall remain the same as It eXisted under the PCD Outline Development Plan, except no further permIts or approvals, including but not limited to Final Development Plans, Final Plats or building permit approvals, shall be granted by the City until the City has approved a new or amended Development Agreement which may include an amended Outline Development Plan for the Property or a portion thereof and the necessary subdivision improvements agreements have been executed and security has been provided 5. DEVELOPMENT OF THE PROJECT a Development of Cabela's Project. Cabela's or its aSSigns intends to acqUire (i) approximately eighty (80) acres of real estate in unincorporated Jefferson County, Colorado from Coors, (ii) approximately thmy-six (36) acres of real estate in unincorporated Jefferson County, Colorado (located adjacent to the Coors parcel) from the County, (iii) approximately two (2) acres of real estate in the City of Wheat Ridge, Colorado (located adjacent to the Coors parcel) from Dwaine R Richter and/or 70 WBC, LLC and (IV) approximately seven (7) acres of real estate in unincorporated Jefferson County, Colorado (located adjacent to the Coors parcel) from William J Salter, Jr , Beverly J Salter and Melvin J Salter, all for Cabela's development of the Cabela's Store and the Retail Center which shall be located within the Property III the approximate locations depicted on Exhibit B attached hereto Cabela's will acquire, construct, furnish and equip the Cabela's Store, provided, however, Annexors' obligations under this Section shall be (i) contingent upon Cabela's or Its assigns entering into a binding real estate agreement with each of Coors, Richter and Salter to purchase the property described above, (ii) contingent upon the fulfillment of the other terms of this Agreement by the other parties hereto and (iii) subject to delay, but not cancellation, to the extent such delay is caused by Force Majeure Cabela's expects that it or its assigns will sell a portion or portions of the remallllllg land owned or to be owned by Cabela's that is located in the boundaries of the Property to complementary retail and commercial ventures such as restaurants, a hotel and water park and/or in-line retail stores with a variety of retail tenants Similarly, subject to compliance With the City's Subdivision Regulations, Coors may sell all or portions of the Coors Parcels in connection With further development of those parcels described in Section 5.c The City's obligations under this Agreement are contingent upon the disclosure by Cabela's and Coors of purchase and sale agreements and any development agreements related to the Property entered into by Cabela's, Coors theil affiliates or subsi 'iaries, as those GED\53027 17\48613407 273090.3 7 agreements affect the rights and obligations of the City herein. The City hereby acknowledges that, as requested by Cabela's and Coors, all such informatIOn shall be subject to the confidentiality provisions of C.R.S ~ 24-72-204(3)(a)(IV) to the full extent permitted by law b Completion of Cabela's Store Cabela's shall open the Cabela's Store on or before September 30, 2006, provided, however, said completion date is subject to delays caused by Force Majeure or the failure of the City to fulfill its obligations as contemplated in this Agreement. c Phases Although all of the Property is expected to be annexed by the City at the same !tme, the parties acknowledge that there will probably be more than one annexation petition filed by the Annexors, thereby resulting m a series of simultaneous annexations Additionally, the parties acknowledge that the Property will probably be developed in multiple phases which can generally be described as follows (i) the Cabela's Store, (Ii) the Retail Center, and (Ill) each or all of the Coors Parcels The City agrees such phased development is appropnate under the applicable terms of this Agreement and the PCD Outline Development Plan. d. Reserved e After the expiration or terminatIOn of this Agreement, the zoning of all parts of the Property shall continue and remain in effect as provided in the PCD Outline Development Plan unless and until rezoned by the owner or the City as provided for in Chapter 26 of the Wheat Ridge Code of Laws subject to SectIon 4 a f. Creation of Jobs, Job Trammg Opportunities Cabela's agrees that, upon openmg the Cabela's Store, it shall employ at least 320 full-time eqUivalent employees in the Cabela's Store at wage levels and benefits consistent with area wage levels and benefits for appropriate skills (plus benefits for full-time employees consistent with industry standards) For purposes of this SectIOn, a "full-time equivalent employee" shall mean either (i) one (1) individual who works for a period of not less than forty (40) hours per week or (ii) two (2) or more indiViduals who work for a period of not less than forty (40) hours per week in the aggregate. In addition to Force Majeure, Cabela's obligations under this Section shall be subject to availability of qualified employees 6. ZONING A~1) RELATED APPRO V ALS a Project Plan Approval, Zoning, Suitability The City shall use reasonable efforts consistent with applicable law to support and approve the Cabela's PI0ject and the creation of the Metropolitan District as contemplated by this GED\53027 17\486134.07 273090.3 8 Agreement and the further development of the Coors Parcels by Coors or Its successors and assigns in a manner consistent with the overall development plan contemplated by the PCD Outline Development Plan and execute and delIver all necessary documents or lllstruments contemplated by or related to thiS Agreement. Annexors acknowledge that they shall make their own mdependent investigation as to the suitability of the Property for purposes of developing the Cabela's Project and any future projects to be developed on the Coors Parcels, and further acknowledge that they have not relied upon any representations or warranties by the City with regard to such suitability In the event that Cabela's determines that the Property is not suitable for development of the Cabela's Store for any reason (including, but not limited to, title issues, environmental conditions, soil conditions, access to utilities, planning or zoning), then Cabela's may, in its sole and absolute discretion, terminate this Agreement without penalty and without further obligation of either Annexor to the City hereto Such termination must take place, if at all, pnor to the date of final public hearing on an ordinance annexing all or part of the Property b Permilted Uses The land uses for the Property shall be only as speCified m the approved PCD Outline Development Plan. No different or additional uses shall be permitted, unless approved by the City's Director of Community Development as provided in the Wheat Ridge Code of Laws or through an amendment to the PCD Outlme Development Plan or Final Development Plan pursuant to the provisions of the Wheat Ridge Code of Laws in effect at the time of such amendment. The Coors Parcels will be designated for future commercial, retail, office, warehouse, and/or recreational use as further detailed on the PCD Outline Development Plan. A portIOn of Coors Parcel 1 will be deSignated for use as a pnvate reservoir c Restrictive Covenants. Cabela's will cooperate With the owners of other properties within the Property to prepare and record covenants and restrictions reasonably acceptable to the City to govern development within the Property ("Covenants") The Covenants shall be in a form substantially similar as those attached hereto as Exhibit C. The Covenants shall include, but not be limited to, a restriction against any other retailers in the Retail Center who specialize in selling huntmg, fishing, campmg, and outdoor gear d Open Space and Trails. Open space and trails shall be provided as set forth in the PCD Outline Development Plan. Certain trails currently located in the vicmny of Coors Parcel 28 and Coors Parcel 3 will be relocated to accommodate development of the Property No area that has been designated as open space or trails shall subsequently be subdivided No open space or trail reqUirement will be imposed on any particular Coors Parcel except v'ith respect GED'.53027 17\48613407 273090.3 9 to a final Development Plan approved for that Coors Parcel The prohibitIOn against subsequent subdivision of open space or trails shall appear on the face of any final Plat that contains open space or trails and shall be indicated as a covenant running with such land e Review Process The City agrees to provide fast-track approval to the greatest extent possible when revieWing the PCD application, establishing the Metropolitan District, and reviewing any necessary nghts-of-way or easements for the Roadway Improvements. The City agrees, within the constraInts imposed by its Code of Laws, to execute and deliver all necessary documents or Instruments contemplated by or related to this Agreement. 7. PUBLIC IMPROVEMENTS a. Construction, Maintenance and Repair. The Metropolitan Dlstnct shall be responsible for the acquisition and/or construction of all of the Public Improvements and such other improvements which may subsequently be agreed upon by the parties to this Agreement. The City shall accept dedication of and be responsible for all maintenance on Cabela Dnve and the 40th A venue Extension (as both are defined below in Section 7 b) The Public Roadway Improvements located outside the Property shall be dedicated to and maintained by the City, the County or CDOT, as may be agreed upon by those entities The Metropolitan District shall maintain all Public Improvements withIn the Property except Cabela Drive and the 40th Avenue ExtenSIOn The Public Roadway Improvements shall be constructed and maintained USIng standards approved by the City. The Metropolitan Dlstnct may contract with other parties, including without limitation the City, CDOT, the County and/or the Annexors, to undertake some or all of its obligations under this SectIOn, with the prior approval of the City. The City shall proVide police protection to the Property In a manner consistent with the normal level of services proVided by the City with regard to Similar areas of the City located outSide the Metropolitan Distnct. b Public Roadway Improvements 1) The following constitute the Public Roadway Improvements (i) a new road with two to five lanes (including three lanes through Coors Parcel 28 and Coors Parcel 3 and two lanes for Coors Parcel 28 west to McIntyre Street) to connect 32nd A venue to McIntyre Street ("Cabela Drive"), (ii) the widening of 32nd Avenue by adding one lane in each direction from Youngfield Street to 1-70 Service Road West, including widenIng under the 1-70 bridges, (iii) the construction of transitioning pavement improvements on 32nd A venue from 1-70 Service Road West GED\5302717\486134.07 273090.3 10 to Alkire Street; (iv) the addition of lanes on the west-bound off and on ramps and the east-bound off-ramp of the I-70/32nd A venue Interchange. (v) the widening of Y oungfieId Street to provide double left turn lanes onto 32nd A venue for north-bound traffic; (vi) a 4-lane underpass under 1-70 connecting the Property with 40th A venue at Y oungfielJ Street, including an extension of 40th Avenue into the Property to Cabela Dnve for this purpose (the "40th Avenue ExtenSiOn"), and (Vll) reconstructIOn of the intersection of the South SH 58 Frontage Road at McIntyre Street to accommodate the traffic projected for CabeIa Drive All of the Publlc Roadway Improvements are further described on Exhibit E under the heading "Public Roadways." 2) Cabela's shall assist the City in conforming with the CDOT Policy 1601 concerning improvement of the 1-70/32nd A venue Interchange by proVIding the engineering services reqUIred, the costs of which shall be funded by Bonds 3) CDOT, the City, the County and Cabela's shall have an opportunIty to review and approve the design of the Publlc Roadway Improvements to be constructed by or under the direction of the MetropolItan Dlstnct to assure that such improvements Will be constructed III accorJance WIth approved Jurisdiction standards and wlll accommodate the anticipated traffic to, and development within, the Property The MetropolItan DIStnct, Cabela's and the City shall enter into any agreements or take any actIons deemed reasonably necessary to bnng about construction of the work described in this SectiOn (including, but not lImited to, any eminent domam or condemnation actions which may be necessary to acquire right-of-way or easements for said work, the costs of which eminent domain or condemnation shall be made a part of the costs of construction funded by the Bonds) 4) After the Public Roadway Improvements outside the Property are complete and CDOT, the County and/or City have determmeJ that the Public Roadway Improvements meet theIr standards, the Metropolitan Dlstnct shall convey and it is expected that CDOT, the County and/or the City (as appropriate) shall accept dedication of and shall mamtain those Public Roadway Improvements, provided, however, the MetropolItan District shall mamtain all of the Public Roadway Improvements within the Property (except Cabela Dnve and the 40th Avenue Extension) in a manner consistent with the City's maintenance standards The Metropolitan Distnct will cease to exist 42 years after its formatiOn (provided the Bonds hove been paId), after which time, all GED\53027 17\486134.07 11 273090.3 Public Roadway Improvements will be mamtamed by the entity which has accepted dedication of the same. c Public Infrastructure. The Parties agree that a Master Drainage Plan shall be developed and delivered to the City concurrently with the first Final Plat Any Final Development Plan, Final Plat or other development shall comply with the Master Drainage Plan. Any amendments to the Master Dramage Plan shall be subject to review and approval by the City In the event that a discharge permit under the Clean Water Act (33 U S.C Sections l25l, et ~) or any other discharge permit is required by a federal, state or local governmental agency, Cabela's or the Metropolitan District shall be responsible for obtainmg such permits, the costs of which shall be funded by the Bonds The City agrees to cooperate with Cabela's and the Metropolitan District in their application for these permits When the Metropolitan Distnct ceases to eXist, the PublIc Infrastructure shall be dedicated to and mamtained by the property owner, the City or other governmental entitles or utility prOViders, as appropnate d Public Facilities 1) The Metropolitan District shall acquire and/or construct or be responsible to acquire and/or construct the PublIc Facdltles Such facdiues shall be available for use by all residents of the City and such other persons as the MetropolItan District deems appropnate, subject to such fees or charges, If any, as may be Imposed by the MetropolItan District from time to time. 2) In order to determine which portions of the budding compmmg the Cabela's Store shall constitute Public Facilities, the Cabela's Store shall be platted as a condominium and the Public FacllIues within the budding comprising the Cabela's Store shall be designated as a separate unit in said condominium and shall be deeded to the Metropolitan Dlstnct. The Public Facilities in the Cabela's Store shall be owned, operated and mamtamed by the Metropolitan District or a designee of the Metropolitan District. It is anticipated that the Public Facilities in the building comprismg the Cabela' s Store will be exempt from ad valorem taxation by virtue of ownership by the Metropolitan District 3) Cabela's and the Metropolitan District may enter into a management agreement under which Cabela's will assume certain responsibilities for maintenance, operation and improvement of the Public Facilities To the extent Tax-Free Bonds are issued to finance Public Facilities, such management agreement must comply with the qualified management contract guidelines set forth by the Internal Revenue Service. GED\53027 17\486134.07 12 273090.3 e Timing of Public Improvements The parties hereby agree that they will work in good faith with each other to ensure that the Public Improvements are acquired and/or constructed in a manner and timing sequence that (i) utIlizes resources in a logical and efficient manner, (ii) minimizes delays on other portions of the overall Cabela's Project, (iii) complies with all necessary requirements of governmental entities with jurisdiction over the various aspects of the Public Improvements and (iv) allows the parties to fulfill their respective obligations in a timely manner under this Agreement 8. SALES TAX REVENUE SHARING AND PUBLIC IMPROVEMENT FEE a Effective January 1, 2005, the City will assess a sales tax at a rate of 3% pursuant to the provisions of Chapter 22 of the Wheat Ridge Code of Laws. The parties anticipate an increase in the City's total sales tax revenues as a result of the development of the Property pursuant to this Agreement Accordingly, the City agrees to share a portion of the sales tax revenues from sales occurrIng within the Property. The amount to be shared shall be that portion of the City's sales tax generated from the Property at a rate of one and one-tenth percent (l 1 %) (the" Shared Sales Tax ") for a term which shall expire on the earller to occur of (i) the date upon which the prinCipal and Interest has been paid on Tax-Free Bonds issued by the Metropolltan DistrIct to pay for the Publlc Improvements listed in Exhibit E (the "Shared Sales Tax Revenue Bonds") or (Ii) twenty-five (25) years after the Shared Sales Tax Revenue Bonds are issued. As of the date of thiS Agreement, the parties belleve that the Publlc Improvements Ilsted In Exhibit E will cost $l8,l28,224 The parties further agree these costs will continue to be revised and better determined in the months ahead as the various engineers and advisors who are workIng on the Cabela's Project further define the necessary scope and costs of the Public Improvements. Accordingly, the City hereby agrees that Shared Sales Tax Revenue Bonds may be issued in an amount up to (i) Eighteen Million Five-Hundred Thousand Dollars ($l8,500,OOO.00) based on the current costs set forth in Exhibit E without any further approval required by the City on such amount and (ii) up to an additional Two Million Dollars ($2,000,000 00) (for a total of Twenty Milllon Five-Hundred Thousand Dollars ($20,500,000) of Shared Sales Tax Revenue Bonds) if the City first approves a resolution to authorize such additional expenditures The Shared Sales Tax shall be used solely to pay principal and interest on the Shared Sales Tax Revenue Bonds to be Issued by the Metropolitan District in a principal amount not to exceed (i) $18,500,00000 without further approval by the City or (Ii) up to $20,500,000.00 if approved by the City as permitted above The interest rate borne by the Shared Sales Tax Revenue Bonds from time to time shall not exceed the rate specified for GED\53027 17\486134.07 273090 3 13 Tax-Free Bonds as set forth in the definition thereof and the term thereof shall not exceed twenty-five (25) years b In addition, Annexors will impose by covenant or lease a public Improvement fee of 1 4 % while the Shared Sales Tax Revenue Bonds are outslandmg and 1 5 % thereafter during the remaining term of the Public Improvement Fee (as set forth in Section 8 p) on all sales occurring within the Property (the "Public Improvement Fee") The Annexors acknowledge that the City's sales tax wIll be charged on the combined total of the subject sales transaction and the Public Improvement Fee payable with respect to such transaction The Public Improvement Fee shall be used by the Metropolitan District to pay the cost to acquire, construct, install and maintain the portions of the Public Improvements for which the Metropolitan District is responsible, and for which Shared Sales Tax Revenue Bonds are not to be used The Metropolitan District may issue Tax-Free or Taxable Bonds to finance the costs of Public Improvements not financed with Shared Sales Tax (the "Public Improvement Fee Revenue Bonds ") In the event that (i) the Shared Sales Tax Revenue Bonds are not paid in full twenty-five (25) years after the Shared Sales Tax Revenue Bonds are issued or (ii) the Public Improvement Fee Revenue Bonds are paid in full prIor to the Shared Sales Tax Revenue Bonds being paid in full, then the Public Improvement fee shall be used by the Metropolitan District to pay prInCipal and interest on the Shared Sales Tax Revenue Bonds The Shared Sales Tax Revenue Bonds shall only be used to pay the costs of the Public Improvements as described m Exhibit E and as permitted by Section 8 a and the Shared Sales Tax shall be used only to pay principal and Interest on such Shared Sales Tax Revenue Bonds. All other costs incurred by the Metropolitan Dlstnct to acquire, construct, install, maintain or finance the cost of Public Improvements shall be paid with the Public Improvement Fee The Public Improvement Fee Revenue Bonds shall be used to acquire or construct Public Improvements. The maximum amount of Public Improvement Fee Revenue Bonds that may be issued shall be Thirty-Five Mlllion Dollars ($35,000,00000) Such Public Improvement Fee Revenue Bonds may have a term not to exceed forty (40) years, shall bear interest at a rate not te exceed the rate specified for Taxable Bonds or Tax-Free Bonds, as applicable, and shall be payable from the Public Improvement Fee in accordance with such other terms and conditions the Metropolitan District shall reasonably establish not inconsistent with this Agreement or the Service Plan. c The City agrees that if its sales tax rate is lowered as a result of a change in the overall tax scheme utilized by the City, the City will, to the extent permitted by law, revise this Agreement to replace the Shared Sales Tax that would have otherwise been payable L '1etropolitan District under the current tax scheme GED\53027 17\486134,07 273090.3 14 d. All payments made to the Metropolitan District under the proviSIOns of this Section shall be made within thirty (30) days of the receipt of such funds by the City. The City shall not have any liability for payment of the Bonds The City's responsibilities shall be limited to remitting the Shared Sales Tax and the Pubhc Improvement Fee to the Metropolitan District as provided in and subject to the provisions of this Agreement. e Reserved. f The City agrees to separately account for all of the Shared Sales Taxes upon receipt. AI: payments from the City pursuant to the provisions of this Section shall be made from the Shared Sales Tax. g The City agrees to enforce and collect the sales taxes to be shared under the proviSIOns of this Section no less diligently than elsewhere in the City The Annexors acknowledge that the tax returns filed by individual retallers and the individualized information derived therefrom are confidential and the Annexors agree not to request such returns from the City unless a waiver of confidentiality has been granted by the respective retailer to the City If a retailer provides a waiver of confidentiality to the City, the City shall share the retaller' s tax return lllformatlOn with the Metropohtan District. h Within 75 days of the end of each City fiscal year, the City shall deliver to the Metropolitan District and to Cabela's a statistical report of all sales taxes received in such fiscal year from the Property (claSSified to prevent the identification of a particular return or report unless a waiver of confidentiality has been obtained from any identified retailer) I. Cabela's or the Metropolitan District shall have the right to audit or contest, at Its sole expense, the City's computation of Shared Sales Tax. However, under no circumstances shall the City or its representative be under any obligation in connection with such audit to disclose individual sales tax returns or reports or any lllformation or documents from which indiVidual sales taxes could be ascertallled or determined, as the parties recognize that such llldividualized information is confidential and cannot be disclosed unless a waiver of confidentiality has been obtallled from any identified retailer. Except in the case of contests for which Cabela's has alleged breach of this Agreement, audits shall not occur more than once annually at the time the City subjects its records to audits reqUired by state law In cases of contest for which Cabela's has alleged breach of this Agreement, Cabela' s may conduct an additional audit at its expense GED\5302717\486134.07 273090.3 15 J. Within 75 days of the end of each fiscal year the Metropolitan DIStnct shall provide the City with a full and complete accounting of the expenditure of all funds received by the Metropolitan District under the provisions of thIS Section during the previous fiscal year, in sufficient detail to enable the City to confirm that all expenditures were made for the purposes authorized by thiS Agreement k Nothing herein shall be construed in any manner to limit the nght of the Annexors, their respective successors or assigns, or any nonprofit orgamzatlOn, public entity (including the Metropolitan District), owners' or tenants' associatIOn, or similar entity, to impose or collect, or cause to be imposed or collected, public improvement fees, taxes, assessments or simIlar charges for the purpose of providing, operating or maintaining infrastructure or amenities to serve the Property. Any payments by the City under this Section shall be expressly subject to annual appropriation by the City acting in its sole and exclusive discretion, provided, however, that it is the present intent and expectation. of the partIes that the City will in fact make all of the payments contemplated by thiS Agreement None of the payment obligations of the City hereunder shall be reqUired to be paId from any source other than Shared Sales Taxes as set forth In this SectIOn The City Manager or any other officer or employee of the City charged with the responsibility for formulating the proposed budget of the City. is hereby directed to include in the budget proposal submitted to the Council In each year thiS Agreement is in effect, amounts sufficient to pay the Shared Sales Taxes, to the full extent that the City shall have received such amounts or reasonably anticipates receiving such amounts payable under thIS Agreement m Pnor to the opening of the Cabela's Store the City wIll take the necessary action to temporanly waive nine-tenths of one cent of ItS three cent sales tax on transactions within the Property After the pnnclpal and interest on the Shared Sales Tax Revenue Bonds have been paid in full or the term during which the City has agreed to remit the Shared Sales Tax to the Metropolitan Distnct has expired, If Public Improvement Fee Revenue Bonds are outstanding, the City will take the necessary action to increase the amount of its sales tax that is temporarily waived to one cent. At such time the Public Improvement Fee may be increased to 1.5%. Upon the earlier to occur of (i) the payment of principal and interest on Bonds issued to acqUire and/or construct the Public Improvements described in thiS Agreement or (ii) forty (40) years after the date the first series of Bonds were issued to acquire and/or construct the Public Improvements described in this Agreement, the temporary waiver of a portion of the City' s Sales Tax shall cease and the City shall be entitled to collect the full amount of ItS sales tax The waiver ofa porthn of the City's sale~ taxes as GED\5302717\486134.07 273090 3 16 described to this Section 8 is intended to be temporary only and not a change m the City's tax policy pursuant to applicable law. In the event the City IS unable for any reason to remove the temporary waiver of a portion of its sales tax after the Bonds are paid in full or expire in accordance with theIr terms, the Annexors agree to continue the imposition of the Public Improvements Fee for such period of time and in an amount sufficient to reimburse the CIty for any revenue lost by the City due to the temporary waiver of the City sales tax n If the City should increase its sales tax above the three percent (3 o/c) rate, then the CIty will take the appropriate action to temporarily waIve an addItIonal portIOn of its sales tax to the extent necessary to cause the total of all sales taxes and the Public Improvements Fee charged on transactIOns occurring wIthm the Property (the "Total Project Tax") not to exceed the greater of (1) eight and one-tenth percent (8 1 %); or (ii) the average sales tax and other fees then bemg charged within those cities within the Denver metropolItan area lIsted on Exhibit D (the "Comparable CIties") For example, If the City raises ItS sales tax to 3 5 % and such City sales tax when combined with other sales taxes and the Public Improvements Fee equals 8 6% and the average sales taxes and other fees within the Comparable CIties is then 7 9%, the CIty will temporarIly waive an addItIOnal 5 % of its sales tax such that the total of the sales taxes and other fees charged on sales within the Property WIll be 8 I % Conversely, m the event that the average sales tax and other fees bemg charged by the Comparable CitIes (the "Comparable City Average") increases above 8 I o/c, the CIty may decrease ItS waiver of sales tax such that the Total Project Tax equals the Comparable City Average o The City agrees initially to receive the Public Improvements Fee on behalf of the Annexors (and any other owner of Property) and the MetropolItan District In doing so, the CIty will be entitled to charge, and will be paid by the Annexors or the Metropolitan DistrIct, a fee or reimbursement in an amount not to exceed the City's costs of collectmg and remIttmg the Public Improvements Fee revenues So long as the City is providing such serVIces, any retailer will be required to prepare and file two returns with the City, one for sales taxes and one for the Public Improvements Fees The CIty WIll not undertake to collect or enforce collection of any Public Improvements Fees not received by It, but shall report, to the extent the City has such informatIOn, any retailer to the Metropolitan District who does not remit Public Improvement Fees to the City consistent with the amounts owed Either the City or the Metropolitan District Will be entitled to terminate the City's services upon not less than 180 days' prIor notice to the other party The City agrees to cooperate with the Metropolitan District to (I) determme the timing of payment of the Public Improvements Fees to the City, (ii) produce md update materi .Is for retailers GED\53027 17\486134.07 273090,3 17 collectlllg the Public Improvements Fees stating the procedures related thereto and providing reporting forms; (iii) develop procedures for advlslllg the City of those retailers subject to the Public Improvements Fees, (iv) develop procedures for adJustlllg the Public Improvements Fees for refunds and other post-sale events, and (v) take any other actions reasonably necessary to allow for the orderly and uninterrupted collection of Public Improvements Fees, proVided however, that any costs incurred by the City in connection With the provIsIOn of any other services agreed to in accordance herewith will be paid to, or deducted by, the City from the Public Improvements Fees received by it. The City authorizes the City Manager to enter into such agreement or agreements as may be necessary or appropriate to implement the provisions of thiS Section 8 p The Public Improvement Fee may be imposed for a term not to exceed forty (40) years from the date of issuance of the imtial senes of Public Improvement Fee Revenue Bonds. 9. BONDS a. Issuance and Purchase of the Bonds The Metropolitan Dlstnct shall issue, and Cabela's agrees that it or an affiliate or assignee shall purchase from the Metropolitan Distnct, Bonds in an original prinCipal amount determllled by mutual agreement of the City and Cabela's based on a reasonable determInation of the Public Improvements to be financed with the Bonds and the cash flow available to the Metropolitan Distnct to pay debt service on the Bonds The Bonds will be payable solely from the pledged revenues as available from year to year and It shall not be an event of default under the Bond Indenture or the Bonds if such pledged revenues are lllsufficlent to pay debt service Proceeds of the Bonds will be used by the Metropolitan District to fund the acquisition, constructIOn and installation of the Public Improvements and the finanCIng costs associated therewith Cabela's or its assigns will initially purchase and hold the Bonds for its/their own account, but it/they may later sell the Bonds in accordance with any restrictions set forth in a Bond Indenture between the Metropolitan Distnct and the Trustee for the Bonds. b The City will reasonably cooperate with the Metropolitan District in adopting and approvIng the necessary proceedIngs to enable the Metropolitan District to deliver the Bonds and thereby faCilitate the Metropolitan District's construction of the Public Improvements. c The City agrees that all Shared Sales Taxes and the Annexors agree that all Public Improvement Fees, with the concurrence of the Metropolitan District, may be remitted to a Trustee within thirty (30) days after said Shared Sales Taxes or Public lmprovement Fees are collected by the City The Bond GED\53027 17\.86134 07 273090.3 18 Indentures for the Shared Sales Tax Revenue Bonds will provide that the Trustee will then utilize Shared Sales Taxes to pay debt serVice on the Shared Sales Tax Revenue Bonds The Bond Indenture for the Public Improvement Fee Revenue Bonds will provide that the Trustee will then utilize PublIc Improvement Fees to pay principal and interest on (i) the PublIc Improvement Fee Revenue Bonds and (ii) as set forth in Section 8 b, the Shared Sales Tax Revenue Bonds Cabela's or its assigns shall not be required to guarantee payment of any of the Bonds and the City shall not have liabihty for payment of the Bonds independent of the City's obligation to remit Shared Sales Tax and Public Improvement Fees as provided in and subject to the lImitatIOns of thiS Agreement. d To the greatest extent possible under federal and state law, the different senes of Bonds issued by the Metropolitan District shall be issued as Tax-Free Bonds, and the remainder of the Bonds shall be Taxable Bonds To the extent permmed by the Act, the United States Internal Revenue Code of 1986, as amended, and other applicable laws, rules and regulations, the City hereby acknowledges and agrees that all costs relating to the construction and mstallation of Public Improvements may be reimbursed by proceeds from the Bonds, regardless of whether or not said costs were incurred before or after (i) the formatIOn of the Metropolitan District, or (ii) the issuance of the Bonds e The Bonds shall be payable from two (2) separate sources of revenue collected in the MetropolItan Dlstnct. The PublIc Improvement Fee Revenue Bonds shall be payable solely from Public Improvement Fees The Shared Sales Tax Revenue Bonds shall be payable solely from (i) the Shared Sales Tax and (11) as set forth in Section 8 b, the Public Improvement Fees Any revenues available from each source above the amount needed to pay the current debt service on such Bonds, shall be used to prepay prinCipal on the Bonds payable from each respective fundmg source After the Shared Sales Tax Revenue Bonds have been paid m full, the PublIc Improvement Fee may be increased from 1 4 % to 15% f The Public Improvements Fees shall be used (I) first to pay debt service on the Pubhc Improvement Fee Revenue Bonds, (Ii) second to pay pnnclpal and interest on the Shared Sales Tax Revenue Bonds as permmed by Section 8.b, and (iii) then to the extent available after the Bonds have been paid m full, the Public Improvements Fees may be used to pay ongoing operations and mamtenance costs of the Public lmprovements Notwithstanding anything to the contrary set forth herein, the Public Improvement Fee may continue for up to forty (40) years after the initial issuance of any Public Improvement Fee Revenue Bonds, even if such Bonds have been paid in full, in order '0 continue GED\53027 17\48613407 273090,3 19 funding ongoing operation and maintenance costs associated with the Cabela's Project. 10. ADDITIONAL INCENTIVES a. Tax Credits and Grants In addition to the Shared Sales Tax and the other incentives described herein, the City and Cabela's shall work with each other to determine whether the Cabela's Project qualifies for (i) any other tax credits or tax incentives or (ii) any grants. b Training Grants. The City will aid Cabela's in applying and/or qualifying for federal or state employee Training Grants up to the maximum amount allowed by law These Training Grants will be available for employees hired in connection with the Cabela' s Store and intercompany training expenses shall be eligible for said grants c Advertising and Marketing Grants. The City shall cooperate with Cabela's to assist in acqUiring any advertising or marketing grants which might be available in the State of Colorado to promote the Cabela's Project. d Taxidermy The City shall use reasonable efforts to identify any taXidermy or owners of taxidermy and provide that information to Cabela' s to seek donation of such taxidermy to Cabela's at no charge for permanent display in the Cabela's Store; provided, however, Cabela's acceptance of any such taXidermy shall be based upon its customary standards for the type of taxidermy displayed in a typical Cabela's retail faCility. Any taxidermy accepted by Cabela's and displayed in the Cabela's Store shall be properly marked with plaques or other appropriate markers to give credit to the donor 11. SPECIAL DISTRICTS a. Creation of Metropolitan District The City shall use its reasonable efforts, consistent with applIcable law, to create the Metropolitan District as contemplated in the Act, as necessary to facilitate development of the Public Improvements and to provide for the financing thereof described in this Agreement. GED\53027 17\486134.07 273090.3 20 b. District Service Plan. Not later than ninety (90) days following annexation of the Property, Cabela' s shall file with the City for review and consideratIOn m accordance with C R.S. Section 32-1-204.5, a service plan for the MetropolItan District (which service plan shall include an mtergovernmental agreement between the District and the City) (the "Service Plan") The City Will promptly initiate and conduct to conclusion all proceedings required by State law for the consideration and approval or disapproval of same The City hereby acknowledges that the basis for City review and approval of the Service Plan is to assure that it complies with state law and is consistent with the duties and obligations of the Metropolitan District as set forth in this Agreement. ln the event the City fails to approve the Service Plan as provided m this Section, the sole remedy of Cabela's shall be to disconnect the Property from the City and termmate this Agreement. The City agrees that if it fails to approve the Service Plan as provided in this Section, it will consent to the disconnection of the Property. 12. OWNERS' ASSOCIATIONS The Annexors reserve the right to impose covenants upon any portion of the Property and to form one or more owners' associations for all or any portions of the Property which shall assume responsibilities for collectmg funds to pay common expenses. to repair and maintain common areas and to enforce restrictIve covenants All such covenants and declaratIOns must be approved by the Metropolitan DistrIct and a copy must be provided to the City 13. DEFAULT AND REMEDIES a. Annexors' Default If the City alleges that the Annexors or either of them is in default under this Agreement and such Annexor does not cure that default within thirty (30) days following written notice from the City, the City shall be entitled to the following remedies which shall be cumulative (1) injunctive relief, (2) specific performance, (3) withholding action on any pendmg applIcatIOns or approvals. includmg but not limned to Final Development Plans, subdivision applications, building permIts or certificates of occupancy, to the extent such applications and approvals relate to Cabela' s alleged default, and (4) any other remedies permitted under the SubdIVISIOn RegulatIOns, the Planned Development Regulation, the Wheat Ridge Code of Laws, or otherwise available at law or in equity, other than damages. The City shall extend the cure period if the nature of the default is such that it cannot reasonably be remedied within thirty (30) days, prOVIded the Annexor commences the corrective actIOn withm thirty (30) days and dilIgently pursues such correction thereafter If the Annexor default arise~ from the failure to grant any right of way, easement, or other similar property right as required by this Agreement or GED\53027 17\486134,07 27 3090 3 21 the PCD Outline Development Plan, then the Annexor agrees that the City may condemn the subject land (provided that such land IS a part of the Property itself) to acquire such property rights pursuant to C R S Section 38-6-102 The Annexors agree that in any such condemnatiOn proceeding, the fair and actual cash market value of all such property nghts are subject to an irrevocable obligation to grant or dedicate it to the City pursuant to this Agreement, and Annexors are estopped from asserting otherwise. Annexors agree that It would have granted or dedicated such property upon execution of this Agreement without compensation. Annexors agree that all dedication and grants of rights of way, easements and park lands are necessary for public health, safety and welfare and that the requirements to make such grants or dedications is accomplished pursuant to the City's polIce and regulatory powers It is expressly agreed and understood that the foregoing provisions do not apply to or affect any property other than the Property itself, and do not apply to or affect any other property whether or not contiguous to the Property, includIng any other property owned by Coors Notwithstanding anything expressed or imphed herein to the contrary, Coors shall be under no obhgation whatsoever to (i) annex into the City any property other than the Property as provided herein or (ii) dedicate, encumber, or otherwise contribute any property or Interest in property (whether such interest relates to the Property) to any person or entity for any purpose other than as provided hereIn b City Default. If Annexors allege the City is in default under thiS Agreement and the City does not cure that default within thirty (30) days following wrItten notice from either Annexor, Annexors will be entitled to the follOWIng remedies which shall be cumulative' (1) injunctive rehef; (2) speCific performance, (3) stopping construction of the Cabela's Store or any Pubhc Improvements contemplated in this Agreement, and (4) any other remedies available at law or in equity, except damages. Any remedies available to Annexors shall be limited by the then eXisting governmental immUnIty act. Annexors shall extend the cure period if the nature of the default is such that it cannot reasonably be remedied within thirty (30) days, provided the CIty commences corrective actIOn WIthin thirty (30) days and dIligently pursues such correction thereafter c. No Damages No party shall be entitled to claim or receive any form of damages upon default or otherWise, including without hrnItation, economiC, consequential, contingent, punitive damages, lost profits or attorneys' or experts' fees or court costs 14. MISCELLANEOUS a. Neyus Ruhng The parties each acknowledge that Cabela's willingness to enter into thiS Agreement was contingent upon Cabela's first receiving a favorable GED\53027 17\48613407 273090.3 22 ruling from the Colorado Department of Revenue (the "Department") wnh respect to nexus issues (the "Nexus Ruling"). In connection with thIS, the Department confirmed to Cabela's in a Nexus Ruling that Cabela's actIVItIes In the State will not create nexus for Cabela's remote affiliates and thus. such remote affiliates will have no obligation to collect and remit sales and use tax nor will such remote affiliates be subject to Colorado income tax The City acknowledges and agrees that the revocation of the favorable Nexus Ruhng would substantially Impair the contractual relationship created under thiS Agreement. Further, the City agrees that it Will support the favorable Nexus Ruling which Cabela's received from the Department and, in the event that the Department later challenges or revokes said Ruling, the Cny shall testIfy on behalf of Cabela's and acknowledge that Cabela's would not have located the Cabela's Store in the State without first receiving the favorable Nexus Rulmg b. Time of the Essence Time is of the essence with respect to the performance of each party's obligations hereunder, subject to events of Force Majeure c No Repeal of Code of Laws Nothmg contamed m thiS Agreement shall constitute or be interpreted as a repeal of any provision of the eXlstlng City Code or as a waiver of the City's legislative, executive, admlnIstratlve, or judicial governmental or police powers to promote and protect the health, safety, or general welfare of the City or ns mhabitants Except as expressly provided herem and m the PCD Outline Development Plan, thiS Agreement does not supplant the City's land use regulations and other ordinances and regulations as they relate to the Property and shall not be construed to hmn the authority of the City to adopt different ordinances, resolutIOns, regulatIOns, rules. pohcles or codes so long as they apply throughout the City uniformly or to classes of individuals or properties uniformly In the event of an inconSistency between the Wheat Ridge Code of Laws and the more specific proVISions that have been negotiated in connection with this Agreement. the provisions of thiS Agreement shall govern d Referendum. In the event that the ordmances to be considered by the Cny relative to the annexatIOn and zoning of the Property become the subject of a citIZen petitIoned referendum, the ordinances subject to such referendum and this Agreement shall be suspended pendmg the outcome of the referendum If the result of the referendum election is to reject such annexation or zolllng, all of the provisions contained herem shall be null and VOId and of no effect. and such rejection shall be deemed a "failure to serve" pursuant to C R S Section 3l-l2-ll9, but shall not be deemed to be a default by the City under SectIOn 13 b and remedies provided therein shall not be available Conversely, if the result of such referendum election is to affirm such annexation and GED\53027 17\486134 07 273090.3 23 zoning, the Property shall be deemed finally annexed and zoned, whereupon this Agreement shall remain effective and the parties shall be bound by all of the terms and conditions contained herein as of the effective date of thiS Agreement In the event of such referendum, the parties agree to cooperate in the defense of the annexation and zoning of the Property unless either party determines m ItS sole discretion not to defend a referendum or other challenge to the annexation and zoning of the Property. To the extent Annexors and the City agree to defend and participate in such a referendum, the parties shall share equally in all costs and anorneys' fees in defending and participating in such referendum, including but not limited to the costs of the referendum election e Successors and Assigns This Agreement shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto. f Entire Agreement. This Agreement embodies the whole agreement of the parties on the subjects contained herein This Agreement shall supersede all previous communications, representations, or agreements either verbal or written between the parties hereto If adopted by the City, the parties agree that the ordinances approving annexatIOn of the Property and adoption of the PCD Outline and Final Development Plans may contain additIOnal matters pertment to the integration of the Property into the City and development of the Property Therefore, this Agreement must be interpreted and apphed in a manner consistent with such ordmances; provided, however, any such additIOnal matters do not create financial obligations on the Metropolitan District, the Annexors or the Property inconsistent with the terms set forth herem without the prIor written consent of the parties so impacted. Any property designated for future commercial, retail, office, warehouse and/or recreational uses shall comply with the then-existing reqUirements for Final Development Plan approval g Assignment Cabela' s or Coors may assign their respectIve rights and duties hereunder in whole or in part to others who become fee title holders or ground lessees of the Property or any portion thereof with the CIty's wntten permission, which permiSSIOn will not be unreasonably withheld, provided, however, that Cabela's may assign any or all of its nghts and interests hereunder to one or more of its affiliates to perform its obligations hereunder (in any or all of which cases Cabela's nonetheless shall remain responsible for the performance of all of its obhgations hereunder) No assignment shall release the Property from any restrictions Imposed upon the Property by thiS Agreement, unless a specific release has been given by the City in writmg. The City may, but shall not be obligated to release the seller or ground lessor in such transactions, however, any such release must be executed in writing by the City and recorded with the Jefferson County Clerk, -1 Recorder in order to effective GE0\530l7 17\486134.07 273090.3 24 h Notice Any notice required or permitted under this Agreement will be deemed to be receIved when delivered personally in writmg or five (5) days after notIce has been deposited with the U S. Postal Service, postage prepaid, certified and return receipt requested, and addressed as follows GED\53027 17\486134,07 273090.3 25 To Cabela's: Attn: Kevin Rhodes Cabela's Retail, Inc One Cabela Drive Sidney, NE 69160 with a copy to Attn' Kent Kelsey Cabela's Retail, Inc One Cabela Drive Sidney, NE 69160 and with a copy to: Attn: Tom Ackley Koley Jessen P.c. One Pacific Place, SUite 800 l125 South 103 Street Omaha, NE 68124 To Coors Attn. Neil Jaquet Coors Brewing Company 31l 10th Street Post Office Box 4030 Mail Stop CC370 Golden, CO 8040l with a copy to Attn. Samuel Walker Coors Brewing Company 311 10th Street Golden, CO 8040l and with a copy to' Attn. Jim Serven Moye Giles LLP 1400 16th Street #600 Denver, Cl 80202 GED\53027 17\486134.07 273090.3 26 To City Randy Young Wheat Ridge City Manager 7500 W. 29th A venue Wheat Ridge, CO 80033 With a copy to' City Attorney City of Wheat Ridge 7500 W 29th Avenue Wheat Ridge, CO 80033 Any party may change the address to which notice is to be sent by providing notice in the manner set forth in this Section. Cooperative Drafting This Agreement IS the product of a cooperative drafting effort by the City, Coors and Cabela' s and shall not be construed or mterpreted against any party solely on the baSIS that one party or ItS attorney drafted thiS Agreement or any portion of it. J Severability If any provision of this Agreement IS held to be m conflict with any applicable statute or rule of law or is otherwise held to be unenforceable for any reason whatsoever, such circumstances shall not have the effect of rendenng the provision in question inoperative or unenforceable m any other case or Circumstance, or of rendenng any other provision or provisions herem contained mvalid, inoperative or unenforceable to any extent whatsoever The invalidity of any portion of this Agreement shall not affect any or all of the remaining portions of this Agreement. k Compliance with Article X, Sec 20 of Colorado Constitution If any proviSIOn hereof is declared void or unenforceable due to a purported violation of Article X, Section 20 of the Colorado Constitution, the City shall take all such action as may be necessary to cure such violation, including, but not limited to, seeking voter approvals, either in advance of, or following the purported violation, as may be allowed by law Amendment. This Agreement cannot be modified or revoked except by an instrument in writing signed by the City, Coors and Cabela's or the then owner of the Property or any portion thereof if there has been an assignment as it relates to the specific Property m ThIrd Party B~neficiaries Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon, or to give to, any legal person GED\53027 17\486134,07 273090,3 27 other than the parties, any right, remedy, or claim under or by reason of this Agreement or any covenants, terms, conditions, or provisions thereof, and all of the covenants, terms, conditions, and provisions in this Agreement by and on behalf of the parties shall be for the sole and exclusive benefit of the parties, provided, however, after the Metropolitan District described In thIS Agreement is formed, it shall be deemed to be a third party beneficiary WIth the right to enforce the provisions of this Agreement which are applicable to it Nothmg in this Agreement is intended to interfere with any agreements of the parties WIth third parties. n. CaptIOns. The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any proviSIOns of this Agreement. o Counterparts This Agreement may be executed in two or more counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The parties may execute tlus Agreement and all other agreements, certificates, instruments and other documents contemplated by thiS Agreement and exchange the counterparts of such documents by means of faCSimile transmission and the parties agree that the receipt of such executed counterparts shall be binding on such parties and shall be construed as origInals Thereafter, the parties shall promptly exchange onginal versions of this Agreement and all other agreements, certificate, instruments and other documents contemplated by thiS Agreement that were executed and exchanged by facsimile transmission. p. Governing Law This Agreement shall be construed under the laws of the State of Colorado JunsdictlOn and venue shall be proper and exclUSive ill the District Court for Jefferson County, Colorado q. Execution by Cabela's and Coors The execution by Cabela's and Coors shall not affect then respective rights. duties, obligations, and remedies under any other contract or agreement entered Into between such parties, each of which contracts and agreements shall be governed exclusively by the terms, covenants, and conditions thereof GEDIS3027 \71486134.07 273090,3 28 IS. EXHIBITS. This Agreement includes the following Exhibits, attached hereto and full) incorporated herein by this reference EXHIBIT A: The Property EXHIBIT B: Concept Site Plan [Revised exhibit may be substituted upon filing of Outline Development Plan, as permitted by Section 2.d.] EXHIBIT C: Retail Center Restrictive Covenants EXHIBIT D: Tax Rates of Comparable Cities EXHIBIT E: Public Improvements Funded with Shared Sales Tax Revenue Bonds [The remainder of this page mtentionally left blank] GED\5302717\486134.07 273090,3 29 IN WITNESS WHEREOF, the parties have hereunto subscribed their signatures effective as of the date first set forth above ATTEST: CITY OF WHEAT RIDGE By Pam Anderson City Clerk Gretchen Cerveny Mayor APPROVED AS TO FORM: Gerald E Dahl City Attorney COORS CABELA'S By. Name Title By Name Title GED\53027 17\48613407 273090 3 30 ST A TE OF COLORADO ) ) ss COUNTY OF JEFFERSON ) The foregomg instrument was acknowledged before me by Gretchen Mayor, and by Pamela Anderson, as City Clerk of the City of Wheat Ridge, this of , 2004 Cerveny as day Witness my hand and official seal My commission expires Notary Public [SEAL] STATE OF NEBRASKA ) ) ss COUNTY OF CHEYENNE ) The foregoing instrument was acknowledged before me by of Cabela's Retail, Inc , this day of as ,2004 Witness my hand and official seal. My commission expires Notary Public [SEAL] GED\53027 17\486134.07 273090.3 3l STATE OF COLORADO ) ) ss COUNTY OF JEFFERSON ) The foregoing instrument was acknowledged before me by , of Coors Brewing Company, this day of as 2004 Witness my hand and official seal My commission expires Notary Public [SEAL] GED\5302717\486134.07 273090.3 32 EXHIBIT A ,C'-~ ~_ I ~-,:",--,~ .; ... ~ -- _.,-:'~~,-=_/ ~- -~,~ I .l ! I ~~, l~~ ~~~'_ '/ " ~~~~~ -=-::::-~"::=:-..~.~':-~~-~~. --- ---- .....rf....- COORS PARCEL 2 43.32 ACRES L- JEF-FCQ PARCEL 1 36.01 ACRES ) ~~\ ;Iii i COORS PARCEL 1 122.71 ACRES :::~ ==.J . , n ' , )~ ;~ .-- I 5ALTER I 7 40 ACRES '-i \ ._~~ II;' -'-~ III i ,I , U -" i I, , ._~ I, --, ..""....,.... "- ". , I I '. LEGEND ./"#1 MARTI N MARTIN BOUNDARY PARCEL BOUNDARY 1 ;;&4'io1'" _".T CO......... ...,,'"'. POIllO><'~l!5CC I.--AOCEWOOD CO 80;;& 1 5 303."31.6100 ,........ ::],D3 ...::J., 40llft EXHIBIT B , --- -..--- "".'''':--'-;~ .,;..",0';_".._:;>.' J ...~~-_.. ~~- ./..../ ,- ~:: ---~..~",_..-.. I~__- d~. / / / / / iSALTER I, COORS 1 I' COORS 2 , COORS 3 SUBTOTAL JEFFCO' TOTAL 074 ACRE 7.01 ACRES 1.77 ACRES o 40 ACRE 9.92 ACRES 0.27 ACRE 11019 ACRES ",-..:; ROW: see ......"'IX C-- / ~ / --=. /' . _____- , .r ..~.. ~::____:_.,__,e~----~~-1 '; - --_.- ~.. .. ~' ~0.. ' ---;' '\ \. , !I. " l II " 1: " j - \ \ PARKINGf7<9. 1:,,11 PARKIN" A/ J. . I I , I W I \, v ~, I I \ PARKING / /.. I, ! '" ~ARKIN~.. I ~ -~ ' ....II I j 'i i , -- ---- co::>RS PARCEL 2A 26.'" ACRES JEFFCO PAACc~ 1 36.0' ACRES ROW MATRIX :::;~ NOTES: 1l'l'IDl'OSED flOW IS NOT INCLUDED WITl-iIN JEFFCO PARCEL ACREAGE COORS PARCel 1 28.82 ACAES RETAIL 22.12 ....CRES ." j' I ! ._~I \ff- :l~__ U.( ~ y "...:- ,I I " ~m..~ ~LlFE EsTAn il.Ili ACRES _-i I J -, , LEGEND -j ',- .. .i j- i .. 1" I BOUNDARY PARCEL BOUNDARY ... CABELA'S BUILDING ~ MARTIN MARTIN ./ ." ~ Oq....ULT'...G ll...lJI,...."'...... CABELA'S PARKING AREA ~ PARCEL ACCESS '....Viii .....T QOL.....,. "..... POllio,", 1"'1' "'100 ...........",_<:;1<;:10 co ao~ 1 ~ 30"'1.,",3' .6'00 ....... :J.O~ 4:10' ..oa.. EXHIBIT C Retail Center Restrictive Covenants GED\53027 17\486134.07 273090 3 DECLARATION OF COVENANTS AND RESTRICTIONS THIS DECLARATION is made this _ day of , 200_, by Cabela's Retail, Inc., a Nebraska corporation ("Cabela's") and Coors Brewing Company, a Colorado corporation ("Coors") (Cabela's and Coors are sometimes individually referred to herein as a "Developer" and collectively, as the "Developers") WITNESSETH. WHEREAS, Cabela's is the owner of the real property located in Jefferson County, Colorado, and legally described on Exhibit "A" attached hereto (hereinafter the "Cabela's Property"), and WHEREAS, Coors is the owner of the real property located in Jefferson County, Colorado and legally described on Exhibit "B" attached hereto (hereinafter the "Coors Property") (collectively, the Cabela's Property and Coors Property is sometimes referred to as the "Property"), and WHEREAS, in order to establish a general plan for the improvement and development of the Property, Developers desire to subject the Property to certain conditions, covenants and restrictions, upon and subject to which all of the Property shall be held, improved and conveyed NOW, THEREFORE, Developers hereby make the following declaration. ARTICLE 1 DEFINITIONS 1 1 Owner The term "Owner" shall mean any individual, partnership, joint venture, corporation, trust, unincorporated association, governmental agency or other business entity now or hereafter holding of record an ownership interest in fee in a portion or all of a Lot. 1 2 Lot. The term "Lot" shall mean or refer to any platted or unplatted parcel of real estate located within the boundanes of the Property other than areas used or dedicated for publiC improvements ARTICLE 2 PROTECTIVE COVENANTS, RESTRICTIONS AND CONDITIONS 2.1 Duration and Termination. Subject to the terms of Section 6.2, all of the Lots shall be held, sold and conveyed subject to the following restrictions, covenants and conditions, which are for the purpose of protecting the desirability and value of, and which shall run with, the Lots and be binding upon and inure to the benefit of all parties having any right, title or interest in the Lots or any part thereof, their successors, and assigns for a period of twenty (20) years after the date of this Declaration (the "Initial Term"), after which time they shall be automatically extended for successive periods of five (5) yeals (each, an "Extenaed Term"), GED\53027 17\486134 07 273090,3 Exhibit C unless an instrument terminating this Declaration properly executed by the Owners of 70% of the total area within the Property is duly recorded in the office where this Declaration is recorded within one year of the end of the Initial Term or any Extended Term, in which case this Declaration shall terminate effective as of the end of the Initial Term or such Extended Term as applicable Without limiting the generality of the foregoing, each and all of the restrictions, covenants and conditions contained in this Declaration (whether affirmative or negative in nature): (a) are made for the direct, mutual and reciprocal benefit of each Lot; (b) will create mutual equitable servitudes upon each Lot; (c) will bind every party having any fee, leasehold, mortgage or other interest in any portion of each Lot at any time or from time to time to the extent that such portion is affected or bound by the restriction, covenant or condition; and (d) will inure to the benefit of Owners and their respective successors and assigns as to the respective Lots and to the benefit of mortgagees under mortgages covering said Lots and beneficiaries and trustees under trust deeds covering said Lots 2.2 Default: Enforcement. Owners of the Lots shall have the right to enforce. by any proceeding at law or in equity, all restrictions, covenants and conditions now imposed by the provisions of this Declaration No breach of this Declaration by Developer or any Owner will entitle any Owner to cancel, rescind or otherwise terminate this Declaration. In such action brought to enforce the terms of this Declaration, the unsuccessful party in any action shall indemnify the prevailing party for all reasonable attorney's fees and other reasonable costs and expenses incurred by the prevailing party in connection with such proceedings 2.3 Notice of Compliance Upon request of the Owner of a Lot in connection with proposed financing or sale of such Lot, the Developer who initially owned said Lot on the date of this Declaration will provide to such Owner written notice, in recordable form, indicating the status of Owner's compliance with this Declaration as of the date of such notice ARTICLE 3 USE RESTRICTIONS 3 1 General Restrictions No use shall be permitted on any of the Lots which is inconsistent with the development and operation of a first-class real estate development. Without limiting the generality of the foregoing, the following uses shall not be permitted a. Any use which emits an obnoxious odor (exclusive of cooking odors in connection with the permitted use of the Lot), noise or sound which can be heard or smelled outside of any building constructed on any of the Lots; b Any operation primarily used as a storage warehouse operation and any assembling, manufacturing, distilling, refining, smelting, agricultural or mining operation, GED\53027 171486134,07 273090.3 2 Exhibit C c. Any "second hand" store or "surplus" store, d Any mobile home park, trailer court, labor camp, junkyard or stockyard (except that this provision shall not prohibit a recreational vehicle resort area or the temporary use of construction trailers during periods of construction, reconstruction or maintenance); e Any dumping, disposing, incineration or reduction of garbage, f Any fire sale, bankruptcy sale or auction house operation, g Any dry cleaning plant or laundromat utilized in connection with a commercial cleaning business; h. Any signs promoting or relating to any business, store, restaurant, hotel or other retail establishment not located on the Property; I. Any automobile motorcycle, truck, trailer or mobile home leasing, display or body shop repair operation, except those body shop and repair operations owned and operated by a licensed motor vehicle dealer and operated on the site of the dealer's principal place of business, Any bowling alley; k. Any animal raising facility; Any mortuary or funeral home, m. Any establishment selling or exhibiting drug related paraphernalia, n Any bar, tavern or other establishment whose reasonably projected annual gross revenues from the sale of alcoholic beverages for on- premises consumption exceeds 50% of the aggregate gross revenues of the business or businesses conducted on any Lot; o Any sexually-oriented businesses such as, but not limited to, x-rated movie or video sales, theater or rental facilities, nude modeling studios, massage parlors, lounges or clubs featuring nude or semi-nude entertainers or escort services, p Any prisons, jails or other detention or correctional facilities, q Any flea market, pool or billiard hall or dance hall; provided, however, such activities shall be permitted if the same are incidental to a primary use which is not otherwise prohibited hereby; r Any training or educational facility, including but not limited to, beauty schools, barber colleges, reading rooms, places of instruction or other operations catering primarily to students or trainees rather than to GED"53027 17\486134.07 273090.3 3 Exhibil C customers; provided, however, this prohibition shall not be applicable to on-site employee training or to conference/convention facilities , s Any gambling facility or operation, or t. Any retail establishment selling hunting, fishing, camping or outdoor equipment; provided, however, the Owner of the Lot legally described on Exhibit "C" attached hereto (the "Cabela's Lot") may operate a Cabela's retail store, may assign the right to use said Lot for selling hunting, fishing, camping or other outdoor equipment and may grant a variance to this restriction to other Owners of other Lots in its sole discretion. ARTICLE 4 CONSTRUCTION 4 1 Submission of Plans. No improvements shall be erected, placed, altered, constructed, maintained or permitted to remain on any Lot subject to these restrictions until the proposed use and the plans and specifications showing plot layout and all exterior elevations with materials and colors therefore and structural design, signs and landscaping (collectively, "Plans") shall have been formally submitted, in writing, and approved in writing, as follows ("Developer Approval") a For Lots derived from the Cabela's Property, Plans shall be submitted for approval to Cabela's at: Cabela's Retail, Inc , One Cabela Drive, Sidney, Nebraska 69160, Attention Director of Real Estate Development. b For Lots derived from the Coors Property, Plans shall be submitted for approval to Coors at: Coors Brewing Company, 311 10th Street, POBox 4030, PMB CC370, Golden, Colorado 80401, Attention. 4.2 Developer's Approval and Owner's Warranties The Developer Approval shall be based, among other things, on adequacy of site dimensions, adequacy of structural design, conformity and harmony of external design with neighboring structures, effect of the location and use of improvements on neighboring Lots, proper facing of main elevation with respect to nearby streets, and conformity of the Plans to the purpose and general plan and intent of these restrictions, covenants and conditions Developer shall not unreasonably withhold its approval of such Plans and shall render its written approval or disapproval within twenty-one (21) calendar days of receipt of the Plans If no written disapproval is rendered by Develope, within said twenty-one (21) days, then the Plans shall be deemed to be approved. The Owner who is undertaking said construction represents and warrants that it will not materially alter or deviate from said Plans in the construction of the improvement upon the Lot without prior written consent of Developer, which consent shall not be unreasonably withheld. GED\53027 17\486134 07 273090.3 4 Exhibit C 4 3 Owner's Responsibilities for Commencement of Construction An Owner shall commence construction/development of improvements on his/her/its Lot within one (1) year after receiving Developer Approval for his/her/its Plans for said Lot. 4 4 Owner's Responsibilities for Partlv Constructed Buildinqs. After the commencement of any improvement on a Lot, the Owner of the Lot shall diligently prosecute the work thereon to the end that the improvement shall not remain in a partly finished condition any longer than is reasonably necessary for completion thereof 4 5 Excavation. No excavation shall be made on any Lot except in connection with construction of improvements, and upon completion of said improvements, it shall be the Owner's responsibility to back fill exposed openings and grade and level any ground disturbed by the construction of the improvement. ARTICLE 5 MAINTENANCE OF LOTS 5 1 Maintenance of Constructed Buildinqs. After the completion of construction, each Owner covenants and agrees to maintain and keep the exterior and interior portions of the constructed buildings, if any, located on its Lot in first-class condition and state of repair, in compliance with all governmental laws, rules, regulations, orders and ordinances exercising jurisdiction thereover, and in compliance with the provisions of this Declaration. Each Owner further agrees to store all trash and garbage in adequate containers, to locate such containers so that they are not readily visible from the parking area or highway and to arrange for the regular removal of such trash or garbage 5.2 Maintenance of Damaqed Buildinqs In the event that any of the buildings are damaged by fire or other casualty (whether insured or not), the Owner upon whose Lot the building is located shall, subject to governmental regulations and/or insurance adjustment delays, immediately remove the debris resulting from such event and provide a sightly barrier, and within a reasonable time thereafter shall either (i) repair or restore the building so damaged to a complete unit, such construction to be performed in accordance with all applicable provisions of this Declaration, or (ii) erect another building in such location, such construction to be performed in accordance with all applicable provisions of this Declaration, or (iii) demolish the damaged portion and/or the balance of such building and restore the cleared area to either a hard surface condition or a properly maintained landscaped condition planted with grass seed The Owner shall have the option to choose which of the foregoing alternatives to perform, but such Owner shall be obligated to perform one of such alternatives 5 3 Maintenance of Vacant Lots Owners shall be required to maintain vacant Lots in a manner that does not cause a nuisance to adjoining Lot Owners or Developer Without limiting the generality of the foregoing, such maintenance shall include the mowing of said Lot, the removal of any noxious weeds or other unsightly plant growth, and the removal of all trash, rubbish and debris from said Lot. GED\530n 17'.486134,07 273090 3 5 Exhibil C 54 Landscaoinq Every Lot on which a building has been erected shall be landscaped and maintained thereafter in a sightly and well kept condition according to the following' a. All street and side setback areas as required by local law, with the exception of drainage areas, driveways, sidewalks, other walkways and parking areas shall be used exclusively for the planting and growing of trees, shrubs, lawns and other ground covering or material as approved by Developer b The Lot Owner shall landscape and maintain unpaved areas between the street curb line and the property line adjoining any street. If said landscaping is not properly maintained in the reasonable opinion of Developer, Developer may, after not less than seven (7) calendar days' notice to the Lot Owner, undertake such maintenance as may be necessary, at the expense of the Lot Owner c. Landscaping, as approved by Developer, shall be installed within ninety (90) days of occupancy or completion of th~ building, whichever occurs first, subject to reasonable extension due to delays caused by adverse weather d All unused and non-landscaped land area that is planned for future building expansion or other purposes shall be maintained and kept free of weeds, other unsightly plant growth, rubbish and debris 55 Taxes and Assessments. The Owners of the Lots shall payor cause to be paid, prior to delinquency. directly to the appropriate taxing authorities all real property taxes and assessments which are levied and assessed against their respective Lots ARTICLE 6 VARIANCES, AMENDMENTS AND TERMINATION 6 1 Amendments and Terminations This Declaration may be amended or terminated by written instrument, duly recorded in the office where this Declaration is recorded and properly executed by the Owners of 70% of the total area within the Property; provided, however, no amendment to this Declaration which places any new restrictions on any Lot, or otherwise materially adversely affects the rights or materially increases the obligation of the Owner of any Lot, shall be effective against any such Lot unless the Owner of such Lot executes the written instrument which is recorded to effectuate such amendment. It shall not be necessary for the Developers to be a party to any such written instrument. 6 2 Variances Variances from the restrictions set forth in this Declaration may be granted by written instrument, duly recorded in the office where this Declaration is recorded and properly executed by the Owners of 70% of the total area within the Property GED\53027 171486134 07 273090.3 6 Exhibit C ARTICLE 7 EMINENT DOMAIN Nothing herein shall be construed to give Developer or the Owner of any Lot any interest in any award or payment made to any other Owner in connection with any exercise of eminent domain or transfer in lieu thereof affecting another Owner's Lot or granting the public or any government any rights in such Lot. ARTICLE 8 MISCELLANEOUS 8 1 Waiver of Default. No waiver of any default by Developer(s) or any Owner will be implied from the failure by Developer(s) or any other Owner to take any action in respect of such default. No express waiver of any default will affect any default or extend any period of time for performance other than as specified in such express waiver One or more waivers of any default in the performance of any provision of this Declaration will not be deemed a waiver of any subsequent default in the performance of the same provision or any other provision The consent to or approval of any act or request by Developer or any Owner will not be deemed to waive or render unnecessary the consent to or approval of an)' subsequent similar act or request. The rights and remedies provided by this Declaration are cumulative and no right or remedy will be exclusive of any other, or of any other right or remedy at law or in equity which any Owner might otherwise have by virtue of a default under this Declaration, and the exercise of any right or remedy by any Owner will not impair such Owner's standing to exercise any other right or remedy 82 No Partnership Nothing contained in this Declaration and no action by the Owner of any Lot will be deemed or construed by any Owner or by any third person to create the relationship of principal and agent, or a partnership, or a joint venture, or any association between or among any of the Owners of any of the Lots. 8 3 Severability If any provision of this Declaration is, to any extent, declared by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Declaration (or the application of such provision to persons or circumstances other than those in respect of which the determination of invalidity or unenforceability was made) will not be affected thereby and each provision of this Declaration will be valid and enforceable to the fullest extent permitted by law 8 4 Governinq Law This Declaration will be construed in accordance with the laws of the State of Colorado. 8 5 Captions The captions of the paragraphs of this Declaration are for convenience only and are not intended to affect the interpretation or construction of the provisions herein contained 86 TOone Except as otherwise provided in this Declaration, time is of the essence GED\53027 17\486134.07 273090.3 7 ExhIbit C IN WITNESS WHEREOF, Developer has executed this Declaration the day and year first above written. CABELA'S RETAIL, INC , a Nebraska corporation, Developer By' Its: STATE OF NEBRASKA ) ) ss. COUNTY OF CHEYENNE ) The foregoing Declaration of Covenants and Restrictions was acknowledged before me this _ day of ,200_, by (title) of Cabela's Retail, Inc" a Nebraska corporation, for and on behalf of said corporation IN WITNESS WHEREOF, Developer has executed this Declaration the day and year first above written COORS BREWING COMPANY, a Colorado corporation By' Its. STATE OF COLORADO ss COUNTY OF JEFFERSON The foregoing Declaration of Covenants and Restrictions was acknowledged before me this _ day of ,200_, by (title), of Coors Brewing Company, a Colorado corporation, for and on behalf of said corporation Notary Public THIS INSTRUMENT WAS DRAFTED BY: Koley Jessen P C. A Limited Liability Organization 1125 South 103 Street, Suite 800 Omaha, NE 68124 (402) 390-\"500 GED\53027 17\48613407 273090.3 8 Exhibil C EXHIBIT D Tax Rates of Comparable Cities GED\53027 17\486134.07 273090 3 I (s,elaqe:) pasodoJd) a5p!CJ lea4M . a5P!CJ lea4M ~ ~, . jl c.. 0 ,,' ~ (SIIIVIJ >:JI .. N OpeJOjo:)) .... I pooMa>tel "1' 0 0 N (JeWlas) -- \0 .... pooMa>tel -- N .... I + Eo-- x ;J: tIl ~ l- ll) pOOM8>jBl ~ III CO Ol r-- 0:: tIl ~ Q en Ol ... Ol tIl 010:: tIlLl.. uaplo8 III '-- Ole.. ... u ~ '- ... III 0 (poo::!) -0 c J8^U8O tIl III , Ol ... U Ja^Uao (UOJqej::!) i PI8!JWOOJS Pla!JwOOJS (Aluno:) Swepl;t) epef\J1;t (Aluno:) UOSJ8jJ8r) epef\J1;t r- o .. '" ." 00 '" ;:: o o m o o <Xl o o r-- o o <D d 0 o 0 I.{) ~ o o (") o o N o o o o o r- ......... o ' :;::~ 6~ "'r- c;:>..... alE~ :lId + XEJ. . ~ . c.. o ~ N ..... 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M oc 00 ..,. r:: r- '"',.., o . ~~ 60 u,;M u~ Exhibit E Public Improvements Funded with Shared Sales Tax Revenue Bonds Site Costs Off-Site Work Public Roadways I 32nd Ave. and 1-70 $ 3,500.000 2 40th Ave Underpass $ 3,182,000 3 1-70 east ramp - 'r oungfield $ 300,000 4 32nd Ave, west $ 300,000 5 32nd Ave. east $ 300,000 6 32nd - Y oungfield intersection $ 900,000 7 40th - Y oungfield intersection $ 8 Mclntyre Intersection (roundabout) $ 1,500.000 9 Bridge over Clear Creek $ 860,129 10 McIntyre Extension Road $ 546,000 II Coors Extension Road $ 387,500 I2 32nd - Entry Road intersection $ 300,000 13 Entry Road $ 300.000 Other Improvements Trails - 32nd to Clear Creek $ 475,000 On-Site Work Excavation / Fill Public Roadways $ 30 \.30 I Roadways Cabela's Drive $ 935.000 Traffic signals $ 525,000 Subgrade Prep $ 75,000 40th A ve, Extension $ 90.000 Street lighting $ 200.000 Landscape & Irrigation $ 342,257 Infrastructure Storm sewer $ 100.000 Site Cost Contingency $ 1,156.439 Soft Costs Engineering $ 770.959 Civil Engineer InC Surveying InC Geotechnical Engineer InC Traffic Engineer InC Environmental Engineer inc Materials Testing;lnspections InC Project Management Project One $ 331,513 Cabela's PM - s.te $ 165,756 Financial & Legal City of Wheat Ridge $ 235,000 Real estate legal inc Real estate consulting - Deepwater InC EngineerIng services InC Soft Cost Contin~encv $ 49,3 7 \ ITotal $ i8,128,224 I ~~w ~@M~~~[b 1~~Mlf~~ CITY OF WHEAT RIDGE, COLORADO December 20. 2004 Mayor Ce.r,ve;>v callep the S?Ee' City CoungJ.-Meeting to QJ:def at 5 00 rym pt>uncilme;nbers present: ~en ASafns, Kar Berry, Jerry DiTullio, Dean Gokey, Lena 'Rotor a , Wanda Sang, Larry Schulz, and Mike Stit s Also present: City Clerk, Pamela Anderson, City Manager, Randy Young, City Attorney, Gerald Dahl, Director of Community Development, Alan White, Director of Public Works, Tim Paranto, staff; and interested citizens CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL OF MEMBERS DECISIONS. RESOLUTIONS. AND MOTIONS Item 1. RESOLUTION 38-2004 -APPROVING AN ANNEXATION AND DEVELOPMENT AGREEMENT AMONG THE CITY, CABELA'S RETAIL, INC , AND THE COORS BREWING COMPANY Jti\ v.N\tO ~~UY 8"--{j / Meeting adjourned at 0: t3 . p m Pamela Y Anderson, City Clerk APPROVED BY CITY COUNCIL ON JANUARY 10, 2005 BY A VOTE OF to Lena Rotola, Council President ~~. 0~)~1l.v.. ..... \l>\ito~,Ju:O \303 \ vJ ].qt;..~. / _ ~ ~~ ,,~ 0,\ "\40'",/ ~bW7 61^ ~."." ~ ~""^~ ~ - ~ ~)A) '(;I.. It "",lli ,V...-J joJ'" )We ~ \ ~ Iguj. -\vo.~j;t! 5~ "'" v~ -' . . ~~ ~'lJ e ~'J rift ~ II'" ~ . 1h - ~j) t<VVht .vl"Vi'O t1<e . q '(. ~~.. __ ~ 1-'\" \lot ( :32-1 ~ ~ ~ .' r: ..- ~ ~ w ~ IS]; _1-1~ ~ -/ . \ V - IAM!/ld? T- ~,) 'I, fJ<~ J .tW"~: ~ ~~. J ~lKf "J iJuJ f~' .jcJv.w jjvvvr~ ___ f\."-~ \i'i ~rlf'l ) ~. \3tlO vJ. :l"t ~ ~ (; ( f>>H'~f2 ~;.J- ~ ~ilAf He. ~b _ Sf--t'.v V[JI 13> fh'j lz."..,C! *' ,..;.. f3J.1J1J. {)i. I.,-I?, (JrJ ~'(l)M-'~~) -r.~ m,II''''''~~ .;o.-.;l+ ~ ~ 1- Mi f.!)v/Co {"'r' vW"l~ ' ~ Os I?~e. ~ . ~ c.0 vP~/-7fi I H hI ~~fvvc / ! /}\P'AW ,;vvWA - 1800 {,uJ>4 K t,..p . .~ _~ ~ t-J~' fr ~ ~ --J. T fl~i r. ~;t~ ( /~ 'W'~ ~) 1j,P. A-(fk. lJo/iU; .*"('~vf.-.' . _ ~ . __ s*",'ud ~f>1".4 -li- 1~~ +{w.c""cc0t. 5f.W He. (IN] . 1k(cfi4 Iv wnA f r- S fu.A ~ ~. I'/-t.t ( [p..&t>.ffk.?J.. / .J.....nf /(j 'kf~ / (('-' (.......d- t/~ /II tAr- . ~~ p foh J1p~r~ L I . .. 0.....,... -r w/5/AL ~. . MY -r:;;lf ~ ~ ~ ~ rl t:: *- 'J!""'~ 1-)r W !~-";~. Vlw 4:30 p.m. Pre-Meeting AGENDA SPECIAL CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING December 20. 2004 5:00 p.m. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL OF MEMBERS This Special City Council Meeting is for consideration of one item. THIS IS NOT A PUBLIC HEARING. The order of procedure will be the following: Introduction of the resolution. A motion will be put on the floor. A presentation by staff. Questions by Council members Opportunity for Public Comment. Additional staff information if necessary. Vote on the motion. If you wish to speak under public comment, you must sign up on the back table. If you do not wish to speak at the podium, please do not put your name on the sheet. In order to give everyone an opportunity to speak, you will be limited to three minutes for comments. This resolution is considering the development agreement, not the annexation petition or the proposed development plan which will be heard at a later date. A proposed development plan has yet to be submitted. Your comments must relate to the development agreement only. For example, if you wish to comment regarding traffic impacts to the neighborhood, the appropriate time will be at a future hearing for the annexation petitions or the proposed development plan. CITY COUNCIL AGENDA. January 13, 2003 Page -2- If a previous speaker has addressed your concerns, please feel free to come to the podium, state your name and address for the record, and state that you agree with what has been previously stated. MR. STITES. WOULD YOU PLEASE INTRODUCE THE ITEM. DECISIONS. RESOLUTIONS. AND MOTIONS Item 1. RESOLUTION 38-2004 - APPROVING AN ANNEXATION AND DEVELOPMENT AGREEMENT AMONG THE CITY, CABELA'S RETAIL, INC , AND THE COORS BREWING COMPANY A MOTION IS IN ORDER. Motion by Mr Stites, Seconded by STAFF REPORTS INTRODUCE JERRY DAHL. CABELA'S PRESENTATION TIM LEONARD QUESTIONS FROM COUNCIL PUBLIC COMMENT I would like to remind you that this is not a formal public hearing. This is the opportunity for public comment. The resolution is regarding the development agreement only. When your name is called, please come to the podium, state and spell your name for the record, and give your address. You will have a maximum of 3 minutes to make your comments. The green light on the podium indicates that your time has begun. The yellow light indicates that you have 30 seconds remaining for your concluding remarks, and the red light means that your time has expired. If a previous speaker has addressed your concerns, rather than repeating what has been stated, please come to the podium, state your name and address for the record and that you agree with the previous speakers. CITY COUNCIL AGENDA. January 13, 2003 FURTHER STAFF COMMENTS Page -3- THE MOTION ON THE FLOOR IS TO APPROVE RESOLUTION 38-2004 : APPROVING AN ANNEXATION AND DEVELOPMENT AGREEMENT AMONG THE CITY, CABELA'S RETAIL, INC., AND THE COORS BREWING COMPANY. PLEASE VOTE ADJOURNMENT n~ ~(,O o ~~ ~s (,0- o ~~ .-\~ J:l' ~, ?'O - <:) %.s:a nl ~ ):>' ~~ O~ .-\.0::. "j:- ~~ <6~ ~J:l' i ~rn ~')(. ~~ ~o n~ o~ ~o ~~ :.<.' t1\ b "'tl ~ ~ .-\ ~ ~ ~ t1\ ~ ~ o ~ .-\ ~ (') ~ ~ {t\ ~ ~ ~ G> %. C:. "'0 ~ ~ ~ -n o 13 ~ ~ ~