HomeMy WebLinkAboutFULLY EXECUTED Redevelopment Agreement West End 38R E DEVELOPMENT AGR EEMENT
THIS REDEVELOPMENT AGREEMENT (this "Agreement") dated as of October Z0.
2015. is made by and bet,vcen W HEAT RID GE URBAN RENEWAL AUTHORITY d/b/a/
RENEWAL WHEAT RIDGE. an urban renewal authority and a body corporate and politic of
the State of Colorado {the "Authority") and West End 38. LLC a Colorado limited liability
company (the "Developer"). The Authority and Developer are sometimes collectively called the
"Parties," and mdividually, a "Party."
REC ITALS
All capitalized terms used, but not defined. in these Recitals, have the meanings ascribed
to them in this Agreement. The Recitals are incorporated to this Agreement as though fu ll y set
forth in the body of this Agreement
WHER EAS, the City of Wheat Ridge. Colorado (the "City'') is a home rule municipality
and political subdivision of the State of Colorado organized and existing under a home rule
charter pursuant to Article XX of the Constitution of the State of Colorado: and
\VH ER EAS. the City Council of the City (the "City Council") established the Authority
on October 18. 198 1 : and
WHER EAS, an urban renewal plan known as the West End 38 Urban Renewal Plan (the
"Urban Renc"al Plan" or the "Plan'') has been prepared and will be considered for appro\'al by
the City Council of the City pursuant to the requirements of Title 31. Article 25, Part I. Colorado
Revised Statutes (the "Urban Renewal Law"); and
WHE REAS, Developer has acquired title to, or has a letter of intent to purchase. all of
the real property described in Exhibit A-1 attached hereto. consisting of approximate!) 3.67
acres, which is located at the northwest comer of West 38'h A venue and Uphan1 Street in the City
(the "Property"), which is within an urban renewal area and which is in the West End 38 TIF
Area; and
\\'HE REAS. De\eloper has submitted a proposal to the City and the Authority to
redevelop the Property as further set forth in Exhibit B attached hereto (the "Project"); and
WHEREAS, the Authority has determined that the redevelopment of the Project in order
to remediate blight is consistent with and in furtherance of the purposes of the Authority and the
Urban Renewal Plan: and
WHE REAS. in order to facilitate the acquisition, construction and installation of the
Project, the Authority and Developer desire to tinance certain Eligible improvements related to
the Project up to a maximum aggregate amount of Four Million Eight Hundred Thousand Dollars
(S4,800.000) (as further defined below. the '·Reimbursement Amount") as set forth in this
Agreement; and
\\'HEREAS, pursuant to the Act and the Urban Renewal Plan. the Authority may finance
undertaking:, pursuant to the Plan by any method authonzed under the Act or an) other applicable
law, includmg without limitation, issuance of notes. bonds and other obligations in an amount
sufficient to finance all or part of the Plan; borrowing of funds and creation of indebtedness:
ad\ ancement of reimbursement at,rreemcnts; agreements with public or private entities: and loans,
advances and grants from any other available sources: and the Plan autborit.es the Authority to
pay the principal and interest on any such indebtedness !Tom property and sales tax increments. or
any other funds. revenues. assets or properties legally avai lable to the Authority: and
\VHEREAS, the Urban Renev.,al Plan contemplates that u pnmary method of financing
projects within the urban renewal area ~ill be through the use of property tax increment revenues
and sales tax increment revenues: and
WHEREAS, the Urban Renewal Plan allows the use of tax increment financing related
to the property tax and sales tax for the Property; and
WHEREAS. De' eloper will initially fund the design. acquisition. construction and
installation of the Eligible Improvements in accordance with this Agreement; and
\VHEREAS. subject to the terms and provisions of this Agreement. De' eloper will be
reimbursed lor Eligible Costs mcurred on the Eligible Improvements in an amount equal to the
Reimbursement Amount ti·om the proceeds of the Pledged Tax Increment Re\ enues generated by
the Project (the "Pledged Revenues"): and
WHEREAS. the Authonty will execute and dcJi,er a prom1ssory note (the "Note") to the
Developer to evidence it~ obligation to pay the Reimbursement Amount, subject to the tenns and
provisions of this Agreement, which Note shall be a special and limited obligation of the
Authority payable solely from the Pledged Revenues: and
WHER EAS, the Parties ha\e agreed LO enter into this Agreement for the rede\'elopmcnt
of the Prope11y in accordance with the Urban Renewal Plan and the Act.
NOW THEREFORE, In consideration of the mutual covenants and promises of the
Parties contained in this Agreement. and other valuable consideration. the receipt and adequacy
of\\ hich are acknowledged. the Parties at.rrec to the terms and conditions in this Agreement.
2
AGREEMENT
I. DEFINITIONS. In this A!:,rrecment. unless a different meaning clearly appears from the
context, capitaliLed tenns mean:
''Act" means the Colorado Urban Renewal Law. Part I of Article 25 of Title 31 of the
Colorado Revised Statutes, as amended.
"Agreement" means this Redevelopment Agreement, as it may be amended or
supplemented in writing. References to Sections or Exhibits are to this Agreement unless
otherwise qualified. All exhibits attached to and referenced in this Agreement are hereby
incorporated into this Agreement.
''Authol'ity" means Wheat Ridge Urban Renewal Authority d/b/a Renewal Wheat Ridgc.
an urban renewal authority and a body corporate and politic of the State of Colorado which has
been duly created, organized, established and authorized by the City to transact business and
exercise its powers as an urban renewal authority. all under and pursuant to the Act. and its
successors and assigns.
'"Bonds" means, collectively. bonds, certificates of participation, other obl igations or
securities issued by the Authority to refinance or repay the Note in accordance with the tem1s
and prm isions of this Agreement. including any bonds. certificates of participation. other
obligations or securities 1ssucd by the Authority to refund any such Bonds.
"City" means the City of Wheat Ridge, Colorado, a home rule municipality and political
subdivision of the State or Colorado organi1.cd and existing under a home rule cha11er pursuant
to Article XX of the Constitution of the State of Colorado.
"City Requirements" means, collccti\'ely, the Wheat Ridge Zoning and Development
Code. Architectural and Site Design Manual. Subdi\ision Improvement Agreement, Streetscapc
Design Manual. lmemational (Building) Codes. Site Drainage Requirements, and right-of-way
design standards. except as may be amended by mutual written agreement of the City a11d
Developer through land usc, building and right-of-way pcm1it appro.,als or otherwise.
"Commence Construction·· or "Commencement of Construction" means the
commencement b) Developer of actual physical work on the Project, including without
limitation deconstruction, demolition and /or site gradi ng on the Property as required for the
Project.
"Complete'' or '"Complete Construction" or ••completion" or "Completion of
Constru cti on" means construction acceptance in accordance w1th the Cit) Requirements. the
Subdivision hnprO\ ement A&'Teernent, applicable laws, ordinances, and regulations of the City
and any other governmental entity or public utility with jurisdiction, subject to any applicable
conditions of maintenance und warranty, including without limitation, the issuance of a
permanent certificate or occupancy or completion by the City, with or without conditions. so that
the portion of the Project described in such certificate may open for pem1ancnt occupancy and
utiliLation for its intended purposes.
3
"Default" or "E' cot of Default" means any of the events described in Section 16:
provided, however. that such events will not give rise to any remedy until effect has been gi\en
to all grace periods, cure periods and periods of enforced delay provided for in this Agreement.
"Developer" means West End 38. LLC. a Colorado limited liabi lity company. and any
successors and assigns appro\ ed in accordance with this Agreement.
"Developer Ad vances" means. collecti\ ely. amounts advanced or incurred by Developer
to pay any Eligible Costs.
"Effective Date" means lhe date of this Agreement.
"Eligible Costs" means. collectively. the reasonable and customary expenditures for the
acquisition. design, construction and installation of the Eligible Improvements. including without
limitation reasonable and customary soft costs and expenses, as set forth in Exhibit C attached
hereto. as it may be amended hereunder. Eligible Costs also includes all reasonable and
customary costs and expenses related to the engineering and design work for the Eligible
Improvements. The maxtmum amount of Eligible Costs to be paid or reimbursed pursuant to
this Agreement shall be Four Million Eight Hundred Thousand Dollars ($4.800,000) as set forth
in this Agreement.
"Eligible Improvements" means the improvements set forth on Exhibit C attached
hereto, as amended in accordance with this Agreement
"Executh c Director" means the Executive Director of the Authority.
"Exhibits" The tolltm ing Exhibits attached to this Agreement arc hereby incorporated
into and made a part of this A&,rreement:
Exhibit A-I: Legal Description of the Property
Exhibit A-2: Legal Description of the West End 38 TIF Area
Exhibit 8: Description of the Project
Exhibit C: Eligible Improvements
Exhibit D: Fom1 of Project Completion Certificate
Exhibit E Form ofNote
Exhibit F: Fonn of Subdivision improvement Agreement
"Note" means the promissory note executed and deli,ered by the Authority to
Developer that evidences the obligation to pay the Reimbursement Amount in accordance with
the terms and pro' isions of this Agreement. in substantially the form of Exhibit E attached to this
A&rreement. The Note shall be a special and limited obligation of the Authority payable solei)
from the Pledged Re' cnues. Interest shall not accrue on the Note.
4
"Party" or "Parties" means one or both of the parties to this Agreement.
"Pledged Proper() Tax Increment Revenue·· means the annual ad valorem property tax
re' enue recei\ ed b} the Authority from the Jefferson County Treasurer in excess of the amount
produced by the levy of those taxing bodies U1at lev) property taxes against the Property Tax
Base Amount in the West End 38 TlF Area in accordance'~ ith the Act and the regulations of the
Propet1y Tax Administrator of the Stare of Colorado. but not including, (a) any mills imposed by
the Wheat Ridge Fire District; and (b) any offsets collected by the Jefferson Counry Treasurer
ior return of overpayments or any reserve funds retained by the Authority for such purposes in
accordam.:e wnh Sections 3 I -25-1 07(9)(a)(lll) and (b) or the Act.
"Pledged Sales Tax Increment Revenues" means, for each year that this Agreement
remains in effect, that portion of the SaJes Tax revenue received by the City, and remitted to the
Authority in accordance with the Act and the Plan, equal to the product of the Sales Tax rate of
three percent (3.00%) times the amount of the taxable transactions subject to the Sales Tax in the
West End 38 TIF Area. less the Sales Tax Base Amount.
·'Pledged Revenues" means the Pledged Tax Increment Revenues in the total aggregate
principal amount of$4.800.000.
"Pledged Tax lncr~ment Revenues" means. collecti\ cl}, the Pledged Propeny Tax
Increment Rc\ enues and the Pledged Sales Tax Increment Rc\ enues.
"Project" means the redevelopment of the Property. as further set forth in Exhibtt B
attached hereto.
HProject Account" means the account of the Special Fund created in Section 5.2 into
which the Authority shall deposit the Pledged Tax Increment Rc\ cnues.
''Project Completion Certificate" means the certificate in substantia!Jy the fonn of
Exhibit 0 attached hereto relating to the satisfaction of the conditions precedent set torth 10
Section 3.1 relating to the payment ofthe Reimbursement Amount.
"Propcrt)•" means the real property described in Exhibit A-I attached hereto, which
consists or approximately 3.67 acres. The Property is included in the West End 38 TIF Area.
"Proper()• Tax Base Amount" means the amount certified by the Jefferson County
Assessor as the valuation tor assessment of all taxable property within the West End 38 TIF Area
in accordance with Section 31-25-1 07(9)(a)(l) of the Act. The Property Tax Base Amount and
increment value shall be calculated and adjusted from time to time by the Jefferson County
Assessor in accordance with Section 31-25-I 07(9) of the Act and the rules and regulations of the
Property Tax Administrator of the State of Colorado.
"Reimbursement Amount" means a maximum amount equal to $4.800,000. which is
the maximum amount that will be paid to the Developer to reimburse the Oe\eloper for Eligible
Costs in accordance with the terms and provisions hereof. No interest shall accrue on the
Reimbursement Amount.
5
"Sales Tax·· means the municipal sales tax of the City on sales of goods and services that
arc subject to municipal sales taxes pursuant to the Wheat Ridge C1ty Code. In the event that the
Sales Tax is subsequently increased above 3.00°o, the amount of Sales Tax subject to th1s
Agreement shall not be mcreased abo' e 3.00°o unless othen' ise authorized by the City Council.
"Sales Tax Base Amount" means the total collect1on of Sales Taxes levied at the rate of
three percent (3.00°o) within the West End 38 TIF Area for the applicable twelve-month period
in accordance with Section 31-25-I 07(9)(a)(l) of the Act. The Sales Tax Base Amount is SO.OO.
"Special Fund" means the special fund of the Authority deli ned in Section I 07(9)(a)(ll )
of the Act.
"Subdivision Improvement Agreement" mean s that Subdivision Improvement
Agreement for the Project to be submitted by Developer to the City in substantially the fom1 set
forth hereto as Exhibit F attached hereto.
"Urban Renewal Plan" or "Plan" means the West End 38 Urban Renewal Plan
approved by the City CounciL as amended from time to time.
"\Vest End 38 TIF Area" means the approximately 4.535 acres within \vhich the
Property is located and that is legally described on Exhibit A-2. The West End 38 TIF Area IS
the same as the urban rene\\ al area described in the Urban RcnC\\ al Plan within which the tax
increment provisions of Section 31-25-1 07(9) of the Act apply.
2. FINANCII\G AND CONSTRUCTION OF PROJECT.
2.1 Construction of Project. As set forth in Section 4, if De\ eloper proceeds with the
Project. then Developer shall he responsible for acquiring, constructing and installing the Project.
includmg without limitation, all Eligible Improvements. and shall be responsible tor compliance
in all respects with the City Requirements.
2.2 Financing the Eligible Improvements. Developer sha ll be responsible for initially
financing the costs and expenses in connection with the acquisition, construction and installation
of the Eligible Improvements. including without limitation all desig11 costs, engineering costs and
other soft costs incurred in connection therewith.
3. CONDITIONS PRECEDENT TO PAYMENT OF REIMBURSEMENT AMOUNT.
3.1 Conditions Precedent. Unless waived in "riting hy the Executive Director. the
folio\\ ing conditi ons precedent shall be satisfied prior to Developer recei\ ing any reimbursement
for Eligible Costs pursuant to the tenns and provisions of this A!,rreement:
(a) The Developer shall have acquired all the Property:
(b) 1l1e Subdivision Improvement Agreement shall have been approved by
the City and recorded in the real estate records;
6
(c) Substantially all of the Eligible ImprO\ cments that are pubhc
improvements that the Developer is required to install in connection with the Project pursuant to
the Subdivision lmprO\ emcnt Agreement and the site plan shall be Completed:
(d) An apartment complex on the Property with at least II 0 apartment units
has been Completed;
(e) At least 8.000 square feet of retail space shall have been Completed on the
Property:
(f) Developer shall have submitted the Project Completion Certificate to the
Authority, and the Authority shall not have disputed the certification in accordance with Section
5.1 hereof; provided. however, that in the event that only a portion of the Reimbursement
Amount is disputed. this condition precedent shall be deemed satisfied with respect to the
undisputed portion of the Reimbursement Amount:
(g) No Events of Default by Dc' eloper shall ha' c occurred and be continuing
under this Agreement.
4. DEVELOPER.
4.1 Acquisition. Construction and Installation of Project. This Agreement shall not
obligate the Developer to proceed with the Project. If Developer proceeds with the Project.
Developer shall he responsible for the linancing. design, acquisition. construction and
installation of the ProJeCt, subject to the provtsions in this Agreement regarding reimbursement
of Eligible Costs in accordance herewith. The dcsi!,rn and construction of the Project shall
comply in all material respects with all applicable codes and regulations of entities ha\ ing
JUtisdiction, including the City Requirements. ""-otv.·ithstandmg any pro' tsions to the contrary
contained herein. the De,cloper shall be entttlcd to reimbursement for Eligible Costs incutTed in
connection with an Eligible Improvement only if such Eligible Improvement complies with City
Requirements.
The Developer will use reasonable eff(ms to diligently pursue (i) prospective commercial
lease tenants. including Vectra Bank; (ii) responsive general contractor construction bids; and
(iii) all City of Wheat Rtdgc development revie\\ appro' als. including ~ite plan review and
building pem1its. leadmg to the acquisition, construction. improvement and lease-up of the
Project.
If De\ eloper proceeds with the Project, Developer will pay or cause to be paid all
required fees and costs. including those imposed by the City, in connection with the design,
construction. applicable warranty requirements, and usc of the Project.
The Parties abrrec that if the Developer has not Commenced Construction of the Project
by January I. 2019. that this shall not constitute an Event of Default hereunder. but that the
Authority shall ha\ e the right to tem1inate this Agreement as set forth in Section 18.
7
4.2 Eligible Improvements. The list of Eligible lmpnl\ ements set forth in Exhibit C
attached hereto ma) be amended at the writlen request or De\ eloper with the written consent of
the Executl\c Director. unless such consent is not required pursuant to the tenns of Exhibit C.
4.3 Access to Property. Developer ,.,ill pcm1it representatives of the C1t) and the
Authority access to the Property and the Project at reasonable times during regular business
hours and with prior nouce as necessary for the purpose of carrying out or detennining
compliance with this Agreement. the Urban Renewal Plan, the City Requirements or any City
code or ordinance. including\\ ithout limitation, inspection of any work being conducted.
4.4 Maintenam;e of Project. Developer shall be responsible for the maintenance of
those portions of the Project as set forth in the Subdivision Improvement Agreement.
4.5 Appeal or Property Taxes. Developer shall provide written notice to the
Authority of any requested reduction by Developer in any portion of the Property's real property
tax assessed valuation or abatement of any portion of the Property's real property taxes.
4.6 Notification of Sale of Property. De' eloper shall provide written notice to the
Authority of the sale of all or any portion of the Property by Developer during the tenn of this
Agreement.
5. THE ALJTI IORITY .
5.1 Payment of Reimbursement Amount. Upon compliance with the conditions
precedent set forth in Section 3.1 relating to the payment of the Reimbursement Amount. or the
Executive Director's waiver of any such conditions precedent. the Authority agrees that it shall
reimburse De\ eloper for Eligible Costs incurred in connection with the acquisition. construction
and installation of Eligible Improvements in the Project in an amount equal to the
Reimbursement Amount, but solely from the Pledged Revenues received by the Authority. The
Authority will have thirty (30) days after the De\eloper has submitted the Project Completion
Certifi cate to confi rm whether or not such Certificate complies with the terms and provisions of
this Agreement and whether the conditions precedent set f(:H·th in Section 3.1 have been satisfied
or wai\ed by the Exe<;utive Director. If the Authority docs not provide written approval or
disapproval within such thirty (30) day period. the Cc11ificatc shall be deemed approved by the
Authority. I r the Authority notifies the De\ eloper in wri ting within such thirty (30) day period
that the Authority disputes that the conditions precedent set forth in Section 3.1 ha\ e been
satisfied or waived. or that there is not sufficient documentation relating to all or any portion of
the Eligible Costs that have been incurred by the Developer. and sets forth a detailed explanation
why the conditions precedem have not been satisfied. waived or sufficiently documented. such
portion of the Reimbursement Amount that is in dispute shall not become due and payable until
De' eloper and Authorit} have resolved the dispute. The Parties agree to cooperate in good faith
to resolve any d1spute relating to the satisfaction of the conditions precedent set forth in Section
3.1 within thirty (30) days after either Party's ,.,.ritten request therefor.
5.2 Special Fund; Project Account. The Authority agrees to establish the Special
Fund in accordance with the provisions of the Act and to establish the Project Account as a
separate trust account within the Special Fund. The Autho1ity agrees to deposit the Pledged Tax
8
Increment Re' enues into the Project Account of the Special Fund upon receipt of the same. All
Pledged Tax Increment Revenues on deposit 111 the ProJeCt Account of the Special Fund arc
hereby pledged to the payment of the Note for as long as the Note remains outstanding. In the
e' ent that Bonds are issued by the Authority to prepay the Note in v. hole or in part. all Pledged
Tax Increment Re\ enues on deposit in the Project Account of the Special Fund are hereby
pledged to the payment of the Bonds for as long as the Bonds remain outstanding. In the e\ent
that the Bonds and the Note are outstanding at the same time, the prionty of the lien of the Bonds
and the Note on such Pledged Tax Increment Revenues shall be determined at the time of
issuance of the Bonds v. ith the prior written consent of Developer.
5.3 No Election Required. The Parties acknowledge that. according to the decision of
the Colorado Court of Appeals in Olson v. City of Golden, 53 P.3d 747 (2002), an urban renewal
authorit y is not <1 local govemment and therefore is not subject to the provisions of Article X.
Section 20 of the Colorado Constitution. Accordingly, the Authority may enter into this
Agreement with Developer, execute and deliver the Note and agree to remit the Pledged
Revenues to Developer to retmbursc Developer for Eligible Costs in accordance with the
provisions of this Agreement without electoral authorization, and such obligations are not subject
to annual appropriation.
5.4 No lmpainnent. The Authority will not enter into any agreement or transaction
that impairs the rights of the Parties. including without limitation. the right to receive and apply
the Pledged Rc\'enue in accordance with th e tem1s and proviSions of this Agreement.
6. PAYMENT OR REIMBURSEMENT OF ELIGIBLE COSTS: :--.JOTE FROM
AUTI IORITY. l.Jpon compliance with the conditions precedent set forth in Section 3.1.
Developer shall be reimbursed by the Authority for Eligible Costs mcurrcd in connection with
the Project, but solely from Pledged Revenues. in an amount not to exceed the Reimbursement
Amount. The obligation to pay the Reimbursement Amount shall bee' idenced by the Note to be
executed by the Authority and delivered to Developer.
(a) Upon the execution and deli\ ery of this Agreement, the Authority shall
execute and deliver the Note to Developer in substantiall y the fom1 set forth in Exhibit E
attached hereto. The maximum amount of the Note shall be Four Million Eight Hundred
Thousand Dollars ($4.800,000). Upon compliance with the conditions precedent set forth in
Section 3.1, the Reimbursement Amount shall become due and payable in accordance with the
tenns, provisions and limitations of this Agreement. The Note shall mature on November I.
2040.
(b) The Note shall be a special and limited obligation of the Authority payable
solely !Tom the Pledged Revenues. The Pledged Revenues arc hcreb} pledged to the payment of
the Note. The obligation to reimburse Developer for Eligible Costs. which obligation is
e' idenced by the Note, is and shall be a special and limited obligation of the Authority secured
by an irre,ocable pledge ot~ and payable solely from. lhe Pledged Revenues. Developer may not
look to any general or other fund of the Authority for the payment of the Note except the Pledged
Revenues. The Note shall not constitute an indebtedness, financial obligation or liability of the
City or the State or any county, municipality or public body thereat: and neither the City. the
State nor any political subdivision thereof shall be liable thereon, nor in any event shall the Note
9
be payable out of any funds or properties other than the Pledged Re,enues. Further. the Note
shall not constitute a debt. indebtedness. financial obligation or liability of the City within the
meaning of any constrtutional. statutory or charter debt limitation or prO\ ision.
(c) So long as the Note is outstanding, no later than November I of each year
(beginning on the first November I after the conditions precedent set forth in Section 3.1 have
been met), the Authority shall remit to Developer all Pledged Re' enucs on deposit with the
Authority in the Project Account of the Special Fund. Any such Pledged Revenues remitted by
the Authority to De' eloper shall be applied on each November I to the payment of the
Reimbursement Amount represented by the Note. Developer shall note on the Table of
Outstanding Reimbursement Amount attached to the Note the amount pard on the Note (lll each
November I. The Authority shall remit the Pledged Revenues to Developer by wire transfer
unless otherwise directed in writing by Developer.
{d) The Authority shall have the option to prepay the Note in whole or in part
on any date upon payment of the amount thereof outstanding. without prepayment premium.
Lnlcss wai\ ed in writing by Developer. the Authority shall pro\ ide Developer '''rth at least ten
(I 0) business days' noucc prior to any prepayment date.
(e) The Note shall be made payable to Developer. De' eloper may not sell or
transfer the Note in part. and may not sell or transfer the Note in whole prior to Completion of
Construction of the Project without the pri<)r written consent of the Authority. After Completion
of the Project. the Note may be sold or transfcJTed in whole to any entity that has been assigned
all the Developer's rights under this Agreement in compliance with the tcm1s and provisions of
Section 21 hereof. or with the prior written consent of the Authonty.
(f) for so long as the Note is outstanding. the Authority shall not issue any
Bonds that are payable in \\hole or in part from the Pledged Re\enues "ithout the prior \Vrittcn
consent of De' eloper. In the event that the Authority determines to rssuc Bonds to prepay the
Note in part, and not in whole, the Authority shall not issue such Bonds without the prior written
consent of Developer.
(g) Notwithstanding any other provision contained herein. any outstanding
balance due on the Note as of the maturity date of November 1. 2040 for which the Authority
docs not haYe sufficrcnt available Pledged Revenues to pay will be fully discharged and satisfied
as of that date notwrthstanding such nonpayment. Any such nonpayment shall not constitute an
E\'ent of Default hereunder or under the Note and the twenty-five (25)-ycar period of limitation
set forth in Section 31-25-1 07(9)(a) of the Act shall not be extended pursuant to Section 3 I -25-
1 07(9){1) of the Act to make any payment on the Note after November I. 2040. If the Note has
been discharged pursuant to this paragraph, then the Authority's obligation to reimburse
Developer for El igiblc Costs shall be deemed satisfied hereunder and Developer shall have no
further rights to reimbursement under this A!,rreement.
7. BOOKS AND ACCOUNTS; INSPECTION OF RECORDS. The Authority will keep
proper and current itemi;ed records. books. and accounts in which complete and accurate entries
will be made of the receipt and use of all amounts of revenue recerved !Tom any and all sources
and such other calculations required by this Agreement and any applicable Ia\\ or regulation.
10
De' eloper shall keep accurate books and records of all costs incurred in connection '' ith
the design. management, acquisition. construction and \\arranty (as applicable) of the Eligible
Improvements. and the receipt of payment or reimbursement of Eligible Costs. During regular
business hours and upon reasonable advance notice, the Authority or its desi~:,rnee is hereby
authorized to review. at the Authority's cost and expense. Developer's books and records
relating to the Eligible lmprO\ ements and the receipt of payment or reimbursement of Eligible
Costs.
All books. records and reports {except those allowed or required by applicable Ia\\ to be
kept confidential) tn the possession of the Authority relating to the collection and disbursement
of the Pledged Re' enues and the payment of the Eligible Costs shall at all reasonable umes be
open to inspection by such accountants or other agents as the respective Parties may from time to
time designate.
8. INSURANCE. On or prior to the Commencement of Construction Developer will
prmide the Cit} and the Authority with certificates of insurance showing that Developer ts
carrying. or causing prime contractors to can-y. the foli<.ming insurance: General Liabiltty. v.ith
a general agbrregatc of Two Million Dollars ($2.000,000): fire dnmage of One Hundred
Thousand Dollars ($I 00.000): medical expense of Five Thousand Dollars ($5,000):
productsrcompleted operations agf,rregatc of Two Million Dollars ($2.000.000): personal and
advertising injury of One Million Dollars (S I ,000.000) with each occurrence up to One Million
Dollars ($1 ,000,000). with deductible of Twenty-live Hundred Dollars ($2.500) per claim.
Excess liability shall be covered in an amount equal to Ten Million Dolbrs ($1 0.000.000) per
occurrence/Ten Million Dollars ($10.000,000) aggregate.
9. INDEMN IFIC' ATIOJ\. Except as hereinafter pro\ tded. !Tom Commencement of
Construction of the Project through Completion of Construction of the Project. and for any
acuon arising during that tune period, De' eloper at:.rrecs to indemnify. defend and hold ham1lcss
the City and the Authority, its officers, agents and employees. from and against all liability,
claims. demands. and expenses. including fines imposed by any applicable state or federal
regulatory agency, cou11 costs and attorney fees, on account of any injury. loss. or damage to the
extent arising out of uny of the work to be performed by Developer, any subcontractor of
Developer. or any officer. employee. agent. successor or assign of Developer under this
Agreement. but only to the extent such injury. lo'is. or damage is caused by the negligent act or
omission. error. professional error. mistake. accident, or other fault of Developer. any
subcontractor of De' eloper. or any officer. employee, agent. successor or assign of Developer.
but excluding any injunes. losses or damages which arc due to the gross negligence. breach of
contract or willful misconduct of the City or the Authority, as the case may be.
Notwithstanding the foregoing or any provision to the contrary contained herein. in the
event that all or a p01tion ofthe Project is financed with a HUD-insured Section 220 or 221(d)(4)
loan, and so long as any such loan remains outstanding. any obligation of the Developer to
provide indemnification under this Agreement shall be limited to (i) amounts mandated by State
law. if any. (ii) CO\crage afforded under any liability msurance carried by the De\leloper. and (iii)
available "surplus cash" of the Developer as defined in the Regulatory Agreement executed 111
connection with any such loan. Until funds ff()m a pem1itted source for payment of
indemnification costs are a\'ailable for payment, the Developer shall not (a) pay funds to any
II
indcmnitc~ under this Agreement. or (b) pay the deductible on an indemnification policy for any
indemnitee under this Agreement.
I 0. REPRESENTATIONS AND WARRANTIES.
I 0.1 Representations and Warranties bv the Authoritv. The Authority represents and
warrants as follows:
(a) The Authority is a body corporate and politic of the State of Colorado,
duly organi;;cd under the Act, and has the power to enter into and has taken all actions to
date required to authorize this Agreement and to carry out its obligations.
(b) The Authority knows of no litigation. proceeding, initiative. referendum.
investigation or threat of any of the same contesting th~ powers of the Auth ority or its
of'ficials with respect to this Agreement that has not been disclosed in writing to
De, eloper.
(c) The execution and delivery of this Agreement and the documents required
and the consummation of the transactions contemplated by this Agreement will not (i)
conflict with or contravene any Ia''· order. rule or regulation applicable to the Authority
or to its go\ crning documents. (ii) result in the breach of any of the terms or provisions
or constitute a default under an) at,rreement or other mstrumcnt to which the Authority is
a party orb} which it may be bound or affected, or (iii) pcnmt ::my part) to terminate any
such ahrrccmcnt or instruments or to accelerate the matunty of any indebtedness or other
obligation ofthe Authority.
(d) The Pledged Revenues are not subject to any other or prior pledge or
encumbrance. and the Authority will not pledge or encumber the Pledged Revenues so
long as the Note is outstanding without the prior written consent of Developer.
(c) This Agreement constitutes a valid and bind ing obligation of the
Authority, cntbrccable according to its terms. except to the extent limited by bankruptcy,
insolvency anc.l other laws of general application affecting creditors' rights and by
equitable principles. whether considered at law or in equity.
I 0.2 Representations and Warranties by Developer. Developer represents and warrants
as follows:
(a) Developer is a Colorado limned liability company and in good standing
and authoriLcd to do business in the State of Colorado and has the power and the
authority to enter into and perfonn in a timely manner its obligations under this
Agreement.
(b) The execution and delivery of this Agreement has been duly and validly
authori;cd by all necessary action on its pan to make this Abrreement valid and binding
upon De\cloper.
12
(c) The execution and delivery of this Agreement will not (i) conflict with or
contravene any law, order. rule or regulation applicable to Developer or to Developer's
governing documents. (ii) result in the breach of any of the tenns or provisions or
constitute a defaull under any agreement or other instrument to which Developer is a
pa1ty or by which it may be bound or affected, or (iii) pennit any party to terminate any
such agreement or instnm1ents or to accelerate the maturity of any indebtedness or other
obligation of Developer.
(d) Developer knows of no litigation, proceeding, initiative, referendum. or
investigation or threat or any of the same contesting the powers of Developer or any of its
principals or officials with respect to this Agreement that has not been disclosed in
writing to the Authority.
(e) Developer has prepared or caused to be prepared a financing and
development plan for the Project and Developer reasonably expects that the Pledged
Revenues to be generated from the Project will be suflicient to pay the Reimbursement
Amount represented by the Note prior to the maturity date of the Note.
(f) This Agreement constitutes a valid and binding obligation of Developer,
enforceable according to its terms. except to the extent limited by bankruptcy, insolvency
and other laws of general application affecting creditors' rights and by equitable
principles, whether considered at law or in equity.
II. TERM. The tem1 of this Agreement is the period commencing on the Effective Date and
tenninating on the date that the Note and any Bonds issued by the Authority are no longer
outstanding: provided, that the ft)llowing provisions shall continue beyond the term of this
Agreement: (A) any rights and remedies that a Party has for an Event of Default hereunder: (B)
any rights that a Party has to inspect books and records as set forth herein for a period of four (4)
years following tem1ination of this Agreement; and (C) the indemnitication provisions set forth
in Section 9.
J 2. CONFUCTS OF INTEREST. None of the following will have any personal interest.
direct or indirect, in this Agreement: a member of the governing body of the Authority or the
City. an employee of the Authority or of the City who exercises responsibility concerning the
Urban Renewal Plan. or an individual or fim1 retained by the City or the Authority who has
performed consulting services to the Authority or the City in connection with the Urban Renewal
Plan or this Agreement None of the above persons or entities will participate in any decision
relating to the Agreement that affects his or her personal interests or the interests of any
corporation, partnership or association in which he or she is directly or indirectly interested.
13. ANTl-DlSCRJMlNATION. Developer, for itself and its successors and assigns, agrees
that in the construction of the Eligible Improvements and in Lhe use and occupancy of the
Property and the Eligible lmprovemcnts, Developer will not discriminate against any employee
or applicant for employment because of race, color. creed, religion, sex, sexual orientation.
disability, marital status, ancestry, or national origin.
13
14. NOTICES. An) not1ce required or pcnniucd by this Agreement will be in writing and
will be deemed to have been sufficiently given tor all purposes if delivered 111 person, by prepaid
overnight express mail orO\ ernight couner service, by certified mail or registered mail. postage
prepaid return receipt requested, addressed to the Party to whom such notice is to be given (and
such Party's additional persons to copy) at the address(es) set forth on the signature page below
or at such other or additional addresses as may be furnished in writing to the other Parties. The
Parties may also agree on a different means of providing written notice hereunder. including
'''llhout limitation. notice via electronic mail.
Notice shall be deemed received: (i) if deli\ ered in person. upon actual receipt (or refusal
to accept deli' ery). (ii) if by prepaid overnight express mail or overnight courier service. on the
first business day following sending of the notice, and (iii) if by ce11ified mail or registered mail,
postage prepaid return receipt requested. on the earlier of the date of the receipt or the third
business day following sending of the notice.
15. DELA \'S: FORCE MAJEURE. Subject to the folio\\ ing pn.'l\ isions. time is of the
essence. Any delays in or failure of pcrforn1ancc by any Party of its obligations under this
Agreement shall be cxcu~cd if such delays or failure are a result of acts of God. fires, floods.
cxcessi\'e rain. earthquake, strikes, labor d1sputes. regulation. initiatl\'e. referendum. legislation.
litigation, or order of c1vilor military authorities. or other causes, similar or dissimilar, which arc
beyond the control of such Party.
16. EVENTS OF DEFA ULT. The following events shall consti tute an Event of Default
under this Agreement:
(a) An} representation or ,.,arranty made by an) Part) in this Agreement
pro,·cs to ha' c been umrue or incomplete in any material respect when made and which
untruth or incompletion would ha\ e a material ad\ erse etTect upon the other Party.
(b) So long as the Note remams outstanding, the Authority fails to remit the
Pledged Revenues on deposit with the Authority to Developer on or prior to November I
of each year.
{c) Except as otherwise pro vided in this Agreement, any Part y fails in the
perfonnance of any other CO\ enant in this Agreement and such default continues f(.)r
thirty (30) days allcr "ritten notice speci fying such default and requiring the same to be
remedied is g1' en by a non-defaulting Party to the defaulting Party. If such default is not
of a type v. hich can be cured within such thirty (30) day period and the defaulting Party
gives written notice to the non-defaulting Party or Parties within such thirty (30)-day
period that it is actively and diligently pursuing such cure. the defaulting Party shall have
a reasonable period of time given the nature of the default toiiO\ving the end of such
thirty (30)-day period to cure such default. provided that such defaulting Party is at all
times within such additional time period actively and diligently pursuing such cure in
good faith.
17. REMEDIES. Upon the occurrence and contmuation of an Event of Default. the non-
defaulting Party's remedies will be limited to the right to enforce the defaulting Party's
14
obligations by an action for injunction, specific performance, or other appropriate equitable
remedy or for mandamus, or by an action to collect and enforce payment of sums owing
hereunder, and no other remedy, and no Party will be entitled to or claim damages tor an Event
of Default by the defaulting Party, including without limitation. lost profits. economic damages.
or actual, direct. incidental. consequential, punitive or exemplary damages. In the event of any
litigation or other proceeding to enforce any of the tem1s, covenants or conditions of this
Agreement. the prevailing party in such litigation or other proceeding shall receive. as part of its
judgment or award, its reasonable attomeys' fees and costs.
18. TERMINATION. This Agreement may be terminated by the Developer at any time prior
to the Commencement of Construction of the Project. fn the event that De\'eloper has not
Commenced Construction of the Project on or prior to January I, 2019. then the Authority shall
have the option to tem1inate this Agreement.
In the event that the City Council of the City has not approved the Urban Renewal Plan
on or prior to December 31. 20 I 5, then the Developer and the Autho1ity shall each have the
option to tenninate this Agreement.
In order to tem1inate this Agreement, a Party shall provide written notice of such
termination to the other Party. Such tennination shall be effective th irty (30) days after the date
of such notice. without any further action by the Parties. unless prior to such time, the Parties are
able to negotiate in good faith to reach an agreement to avoid such lcnnination. Upon such
te1mination, this Agreement shall be null and void and of no effect, and no action. claim or
demand may be based on any tenn or provision of this Agreement. except as otherwise expressly
set forth herein. In addition the Parties ahrree to execute a mutual release or other instruments
reasonably required to effectuate and give notice or such tem1ination.
19. PAYMENT OF FEES AND EXPENSES. Each Party agrees to pay 1or its own fees,
costs and expenses incurred by such Party in connection with the execution and delivery of this
Agreement and related agreements and documents.
20. NONLIABILITY OF OFFJClALS. AGENTS. MEMBERS, AND EMPLOYEES.
Except tor willful or vv:mton actions. no trustee, board member, commissioner, official,
employee, consultant manager. member, shareholder, anomey or agent of any Party, nor any
lender to any Party or to the Project. will be personally liable under the Agreement or in the
event of any default or for any amount that may become due to any Party.
21. ASSIGNMENT. Except as hereinafter provided, this Agreement shall not be assigned in
whole or in part by either Party without the prior written consent of the other Party; provided.
however. the following assignments and transfers will not require any such consent: (a) subject
to written notice to the Auth01ity from Developer containing the name and address of the lender
or other party, Developer may pledge, collaterally assign or otherwise encumher all or any part
of its rights under this Agreement, including without limitation its right to receive any payment
or reimbursement, to any lender or other party that provides acquisition, construction, working
capital. tenant improvement or other financing to Developer in connection with development of
the Property and/or construction of the Eligible Improvements, and (b) on or after Completion of
Construction of the Project and subject to written notice to the Authority from Developer,
15
De\ eloper ma) assign all of llS rights under this Agrccmenr to an) cnt1ty that purchases all of the
Property. provided that any such entity has the financial capability and experience to manage the
Project and the Developer has provided the Authority with satisfactory e\ idence of such
financial capability und experience. Notwithstanding anything to the contrary in this Section 21.
the Authority recogni;es that Developer may form. together wilh its investors. separate. special
purpose entities to develop. own and/or operate all or a portion of the Property or of the Eligible
Improvements to be constructed thereon and that one or more assignments of all or any part of
Developer· s rights under this Agreement may be required in connection v. ith such acti\'lties and
such transfer(s) \\ill not require any consent by the Parties.
?? COOPERATION REGARDfNG DEFENSE. In the event of any litigation or other legal
challenge involving this Agreement. the validity of the Urban Renewal Plan. or any other
material part or provision of this Agreement or the ability of any Party to enter into this
Agreement. the Parties will cooperate and jointly defend against such action or challenge. to the
extent permitted by Ia"'.
13. SECTION CAPTIONS. The captions of the Sections arc set forth only for the
con\'enience and reference of the Parties and are not intended in any wa} to deftne, limit. or
describe the scope or mtent of this Agreement.
14. ADDITIONAL DOCUMENTS OR ACTION.
(a) The Parties agree to execute any additional documents or take any
additional action. including v.•ithout limitation estoppel documents requested or requ1red by third
parties, including" ithout limitation. lenders. tenants or potential purchasers. that is necessary to
carry out this Agreement or is reasonably requested by any Party to confirm or clarify the intent
of the prO\ isions of th1s Agreement and to effectuate the agreements and the intent.
Notwithstanding the foregomg. however. no Party shall be obligated to execute any additional
document or take any additional action unless such document or action 1s reasonably acceptable
to such Party.
(b) If all or any portion of this Agreement. or other agreements approved in
com1ection with this Agreement are assc11ed or detcm1ined to be invalid. illegal or are otherwise
precluded. the Parties. within the scope of their powers and duties. will cooperate in the joint
defense of such documents and, if such defense is unsuccessful. the Parties will use reasonable.
diligent good faith eftorts to amend. reform or replace such precluded items to assure. to the
extent legaJiy pennissible. that each Party substanually recei,es the benetits that it would ha\ e
received under this Agreement.
(c) The Executive Director shall have the authority to act on behalf of the
Authority under this Agreement.
25. AMENDMENT. This Agreement may be amended only by an instrument in writing
signed and delivered by the Parties.
26. WAIVER OF BREACH. A waiver by any Part~ to th1s Agreement of the breach of an)
tem1 or provision of th1s Agreement must be in "riting and will not operate or be construed as a
\\ aiver of any subsequ~nt breach hy any Party.
16
27. GOVERNING LAW. The laws of the State of Colorado govern this Agreement.
28. BIND ING EFFECT. This Agreement will inure to the benefit of and be binding upon the
Parties and their respective legal representatives. successors. heirs, and assigns. provided that
nothing in this paragraph pemlits the assignment of this Agreement except as set forth in
Section 21.
29. EXECUTION IN COUNTERPARTS. This A!,rreement may be executed in several
counterparts. each of which will be deemed an original and all of which will constitute but one
and the same instrument.
30. UMITED THIRD-PARTY BENEFICIARIES. Except as hereinafter provided. this
Agreement is not intended and shall not be deemed to confer any rights on any person or entity
not named as a Party to this Agreement; provided, however, that the City shall be deemed to be a
third-party beneficiary under this Agreement to the extent that Developer or Authority have
agreed to undertake cer1ain actions for Lhe benefit of the City.
31. NO PRESUMPTION. The Parties and their attomcys have had a full opportunity to
review and participate in the drafting of the tlnal fonn of this A&rreement. Accordingly, this
Agreement will be construed without regard to any presumption or other rule of construction
against the Party causing the Agreement to be drafted.
32. SEVERABILITY. If any provision of this Agreement as applied to any Party or to any
circumstance is adjudged by a court to be void or unenforceable, the same will in no way affect
any other provision of this Agreement. the application of any such provision in any other
circumstances or the validity, or enforceability of U1e Agreement as a whole.
33. MINOR CHANGES. This Agreement has been approved in substantially the fonn
submitted to the governing bodies of the Parties. The officers executing this Agreement are
authorized to make and may have made. minor changes to this Agreement and attached exhibits
as they have considered necessary. So long as such changes were consistent with the intent and
understanding of the Parties at the time of approval by tl1e governing bodies. the execution of the
Agreement will constitute the approval of such changes by the respective Parties.
34. DAYS. If the day for any perfonnance or event provided for herein is a Saturday. a
Sunday, a day on which national banks are not open for the regular transactions of business, or a
legal holiday pursuant to Secti on 24-11-101(1), C.R.S., such day will be extended until the next
day on which such banks and state offices are open for the transaction of business.
35. GOOD FAITH OF PARTIES. In the perfom1ance of this Agreement or in considering
any requested approval, consent, acceptance, or extension of time, the Parties agree that each will
act in good fa ith and "vill not act unreasonably, arbitrarily, capriciously, or unreasonably
withhold, condition, or delay any approval, acceptance. or extension of time required or
requested pursuant to this Agreement.
36. PARTIES NOT PARTNERS. Notwithstanding any language in this Agreement or any
other agreement, representation, or warranty to the contrary, the Par1ies will not be deemed to be
partners or joint venturers. and no Party is responsible for any debt or liability of any other Party.
17
37. NO WAIVER OF IMMUNITY. Nothing contained in this Agreement constitutes a
\vaivcr of SO\ creign immunity or govemmental immunity by the Authority under applicable state
law.
rThc remainder of this page is intentional ly left blank.)
18
IN WITNESS WHEREOF, this Agreement is executed by the Parties as of ()J ~' ~
2015.
AITEST:
Notice Address:
Wheat Ridge Urban Renewal Authority
7500 West 29th Avenue
Wheat Ridge, Colorado 80033
Attention: Patrick Goff, Executive Director
Email: pgoff@ci.whcatridgc.co.us
WEST END 38, LLC,
Notice Address:
West End 38, LLC
2300 15th Street, Suite 23 5
Denver, Colorado 80202
Attention: Tyler Downs
Email: tdowns@wazeepartners.com
a Colorado limited liability company
19
EXHIBIT A-1
LEGAL DESCRlPTION OF THE PROPERTY
Those parcels ofland, situate, lying and being in the Cotmty of Jefferson. City of\Vheat Ridge, State of
Colorado, including improved land. buildings and unimproved adjacent land. more particularly known
and describecl as follows. to wit:
Parcel I: Lot I, E.S. Allen Subdivision. containing a land area of36.491.5 square feet~
Parcel 2: Tax lD Parcel #39-234-00-088, containing a land area of 12,325 square feet, and a
garage facility improvement;
Parcel 3: Tax ID Parcel #39-234-00-089, containing a land area of 53,840 square feel and a
residentiaVoftic.e building: and
Parcel 4: Tax ID Parcel #39-234-00-086, containing a land area of 57,150 square feet
and an office/bank building.
EXHIBIT A-2
LEGAL DESCRIPTION OF THE WEST END 38 TlF AREA
D.LUSTRATION FOR ZONE LOT
rtnJAT.I!D IN'DJB D 1141BC'Jlaf :0 &NB 114 IIICmNl4. TD,lli9W, aP'TBitftll P.IL
c.rry Of'WHBAT IIDXJB.<XJ'CllfrYQP .JEllllBUClN, ll'AmC. ca..ouDO
NM"l8'12.•E
1.31.113'
-·--
-wv..-_.........__
NM"311'
354..08'
__ .... ---
--......,..-ZONE LOT
PONT OF BEOINNINQ
S8B'l4-' 4a-'W
t.31.7D'
• I • p~ -;___ ~yo
1 !17,5:37 sa. FT ••
OR 4.5.35 ACRES ±
INDA I
I
-41)------4-----t-=z'-----.-.JL-•••"'---~ .. ...........-_ ... ~
VICINITY MAP
1' • t MU
• 44-'lt A¥£
W_...AC I /rm'-
... Nil!. I I
~
I, a.
c I
A-I
LEGAL DESCRJPTJON FOR WEST END 38 TIF AREA
A PARCEL OF LAND LOCATED fN THE SOUTHEAST 1/4 OF SECTION 23. TOWNSHfP 3
SOUTH. R,WGE 69 WEST OF THE 61H PRINCIPAL MERID IAN, AND THE NORTHEAST 1/4
OF SECTION 26. TOWNSHIP 3 SOUTH. RANGE 69 WEST OF THE 6TH PRfNCI PAL
MERIDIAN CITY OF WHEAT RIDGE, COUNTY OF JEFFERSON. STATE OF COLORADO.
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTH l/4 CORNER OF SECTlON 23 FROM WHENCE THE
SOUTHEAST CORNER OF SA ID SECTION 23 BEARS N 89°38'24 .. E A DiSTANCE OF
2633.65 FEET WITH ALL BEARINGS HEREIN RELATIVE THERETO:
THENCE N 75°46'40'' E A DJST ANCE OF 542.64 FEET TO THE POINT OF BEGINNING;
THENCE N 00°10'12" W, ALONG THE WEST LINE OF A PARCEL OF LAND AS DESCRIBED
IN DEED RECORDED rN JEFFERSON COUNTY RECORDERS OFFICE UNDER RECEPTION
NUMBER F0050611 A DISTANCE OF 200.55 FEET:
THENCE N 89°38'12" E. ALONG THE NORTH LINE OF SAID PARCEL A DISTANCE OF
131.83 FEET TO THE SOUTHWEST CORNER OF LOT I, E.S. ALLEN SUBDIVISION AS
RECORDED IN JEFFERSON COUNTY RECORDERS OFFICE UNDER RECEPTION NUMBER
20 I 0000090:
THENCE N 00°12'07" W, ALONG THE WEST LINE OF SAID LOT I A DISTANCE OF 11 9.99
FEET;
THENCE N 89°38'48" E. ALONG THE NORTH LINE OF SAID LOT I A DISTANCE OF 354.09
FEET TO THE EAST RIGHT OF WAY LINE OF UPHAM STREET AS PER EASEMENT
DOCUMENT RECORDED IN JEFFERSON COUNTY RECORDE RS OFFICE UNDER
RECEPTION NUMBER 94113597:
THENCE S 00° 13'03" E. ALONG SAI D EAST RIGHT OF WAY LINE A DISTANCE OF 483.0 I
FEET TO THE SOUTH RIGHT OF WAY LI NE OF WEST 38TH A VENUE AS PER EASEMENT
DOCUMENTS RECORDED rN JEFFERSON COUNTY RECORDERS OFFICE UN DER
RECEPT ION NUMBERS 90086570. 90086575. 90086572 AND 90086573 ;
THENCE S 89°38'24" W, ALONG SA ID SOUTH RIGHT OF WAY UNE A DISTANCE OF
354.42 FEET:
THENCE N 00°11'13" W. A DISTANCE OF 162.65 FEET TO THE SOUTH LINE OF A PARCEL
OF LAND AS DESCRiBED IN DEED RECORDED fN JEFFERSON COUNTY RECORDERS
OFFICE UNDER RECEPTION NUMBER F0050611 A:
TIIENCE S 89°34'48" W. ALONG SAID SOUTH LINE A DISTANCE OF 131.79 FEET TO THE
POINT OF BEGINNJNG.
CONT AINlNG: 197.53 7 SQUARE FEET OR 4.535 ACRES OF LAND, MORE OR LESS.
2
EXHIBIT 8
DESCRIPTION OF THE PROJECT
The Project consists of the redevelopment of approximately 3.67 acres of U1e Prope1iy.
which is located at the northwest comer of West 38111 Avenue and Upham Street in the City of
Wheatridge. The Project is expected to be constructed in two phases.
The Project is zoned for Mixed Use-Commercial (MU-C) and shall meet all the setbacks
and design standards as per the City of Wheat Ridge zoning code.
It is expected that along 38th Avenue, the Project will feature street-fronting ground floor
retail shops and restaurants with two levels of residences above for a total of three stories.
Further west on the Property will be a free standing bank building. Behind these two buildings
will be a parking courtyard with approximately 88 parking spaces and a four story residential
building. The residential building will include a parking structure with approximately 138
parking spaces. The Project will consist of approximately 150 residences and approximately
13.800 square feet of retail space.
B-1
EXH IBIT C
ELIGIBLE IMPROVEMENTS
The Eligible Improvements are set forth in the table below. The costs for the Eligible
Improvements as set forth in the table below are estimates. Hte cost amount in each line item in
the table below may be increased or decreased as directed by Developer. Accordingly, cost
savings in one line item may be applied to increase the amount of reimbursable costs in other
line items. However, notwithstanding any other provision of thi s Agreement. Eligible Costs to
be paid or reimbursed from the Pledged Revenues shall not exceed Four Million Eight Hundred
Thousand DoJJars ($4.800.000) as set forth in this Agreement. and shall be paid or reimbursed
solely from Pledged Revenues in accordance with the Agreement.
TOTAL
ELI GrBLE IMPROVEMENTS ELIGIBLE COSTS
Demolition and Environmental Abatement $290,869
Utilities (Water, Sewer. Electric, Gas, Stom1 1 '131.689
Wa ter and Relocations/Burying
Streets. Sidewalks. Plaza. Hardscape. 1.308.409
Landscaping and Facades
Parking Garage 2.3 78,167
Soft Costs (Architecture. Engineering. 837.343
Pennitting. Financing. Legal and Fees)
Total $5.946.476
C-1
EXHIBIT D
FORM OF PROJECT COMPLETION CERTIFICATE
Wheat Ridge Urban Renewal Authodty
7500 West 29111 A venue
Wheat Ridge, Colorado 80033
Attention: Executive Director
l11e undersigned representative of West End 38. LLC (the ''Developer") hereby makes
the following certitications in accordance with the tenns and provisions of section 3.1 (a) of the
Redevelopment Agreement dated as of _, 2015 (the "Redevelopment Agreement")
between the Wheat Ridge Urban Renewal Authority and Developer. All capitalized tem1s used
herein and not otherwise defined shall have the meanings set forlh in the Redevelopment
Agreement.
The following conditions have been satisfied or waived in writing by the Executive
Director:
I. l11e Property has been acquired by the Developer.
2. Substantially all of the Eligible Improvements U1at are public improvements that
Developer is required to install pursuant to the Subdivision Improvement Agreement and the site
plan have been Completed.
3. An apa11ment complex on the Property with at least II 0 apartment units has been
Completed.
4. At least 8.000 square teet of retail space has been Completed on the Property.
5. No Events of Default by Developer have occurred and are continuing under the
Redevelopment Agreement.
The total amount of Eligible Costs for which reimbursement is requested is
$ (which amount shall not exceed $4,800,000). Attached to this Certificate is
documentation related to ilie Eligible Costs incurred by the Developer in connection with the
financing. acquisition. construction and installation of the Eligible Improvements for which such
reimbursement is requested .
The foregoing certification shall constitute the Project Completion Cert1ficate under the
Redevelopment Agreement.
West End 38. LLC.
a Colorado limited liability company
Date: __________ _ By: ___________________________ ___
Name:
Title:
D-1
Within thirty (30) days of receipt of this Certificate by the Authority, the Authority shall
complete the applicable provision below and remit to Developer:
The Authority hereby verities that: (a) this Project Completion Certificate complies with
the tem1s and conditions of the Redevelopment Agreement and that the conditions
precedent set forth in Section 3. I of the Redevelopment Agreement have been sa tis tied or
waived in writing by the Executive Director, and (b) the documentation submitted with
this Certificate is sufficient to verify that the Reimbursement Amount requested pursuant
to this Certificate has been allocated to the reimbursement of Eligible Costs incurred in
connection with Eligible Improvements in accordance with the Redevelopment
Agreement.
The Authority hereby notifies Developer that (a) the Authority disputes that the
conditions precedent set fotth in Section 3. I of the Redevelopment Agreement have been
satisfied or waived, and/or (b) that the documentation submitted with this CcJtificatc is
not sufficient to verify that the total Reimbursement Amount requested pursuant to this
Certificate is for the reimbursement of Eligible Cost incurred in connection with Eligible
Improvements. Set forth below is a detailed explanation of the reasons why the
Authority disputes that these conditions precedent have been satisfied or waived or that
such documentation is insufficient:
WHEAT RJDGE URBAN RENEWAL AUTHORITY
Dote: __________ _ By: __________________ ___
Name:
Title:
D-2
EXIIIBIT E
FORM OF NOTE
PROMISSORY NOTE
MAXIMUM AMOUNT: US $4,800,000 . 2015
FOR VALLE RECENED. WHEAT RIDGE URBAN RENEWAL AUTHORITY
D 8 A REN EWAL WHEAT RIDGE. a public body corporate and pollt1c duly organized and
existing as an urban renewal authority under the laws of the State of Colorado (hereinafter
referred to as "Authority"}. promises to pay to the order of West End 38, LLC. a Colorado
limited liability company. and its successors (hereinafter referred to as ''De\'eloper''). at the
ortice of Developer. or such place as Developer may from time to time designate in writing, the
maximum sum of FOUR MILLION EIG IIT HUNDRED THOUSAND DOLLARS (US
$4,800.000) or such lesser amount due from the Authority to De\ eloper pursuant to the tenns of
the Redevelopment Agreement dated of even date herewith (U1e "Rede\'elopment Agreement")
by and between the Authority and Developer. 111 lawful money of the Lnited States of Amcnca.
All capitaljLed tem1s used and not othen\ ise dt.!fined herein shall ha,·e the respective meanings
ascribed in the Redevelopment Agreement.
This Note shall C\ idcncc the obligation of the Authority to pay the Reimbursement
Amount to Developer in accordance \Vith the terms and prm isions of the Redevelopment
Agreement. but solely from the Pledged Revenues. No interest shall accrue on this Note. This
Note shall mature on November I. 2040.
Not\\ ithstand111g any pro' 1sions to the contrary contained herein or 111 the Rede\ elopment
Agreement. no amounts shall be due and pa) able under this Note unless or until the conditions
precedent set forth in Section 3.1 of the Rcdc,elopment Agreement have been satisfied or
waived by th e Executive Director.
All payments hereunder shall be made to Developer in accordance with the
Redevelopment Agreement. This Note shall be payable, mature and be enforceable pursuant to
the tenns and provision!> of the Redevelopment Agreement.
Upon receipt of an) payments made b)' the Authority on th1s Note, De\ eloper shall
record the payments so recei' ed on the Table of Outstanding Reimbursement Amount attached
to this Note and by this reference made a part hereof.
This Note shall be a special and limited obligation of the Authority payable solely from
the Pl edged Revenues. The Pledged Revenues arc hereby pledged to the payment of this Note.
The obligation to reimburse Developer tor Eligible Costs, which obligati on is evidenced by this
Note, is and shall be a special and limited obligation of the Authority secured by an in·evocablc
pledge of, and payable solely from the Pledged Re\·enues. De\'cloper may not look to any
general or other fund of the Authority for the payment on th1s Note except the Pledged
Re,·enues. This Note shall not constitute an 111debtedness. financial obi igation or liabilit) of the
City or the State or an) county. municipality or public body thereof, and neither the City. the
State nor any political subdivision thereof shall be liable thereon. nor in any event shall thi s Note
E-1
be payable out of any funds or properties other than the Pledged Revenues. Further. this Note
shall not constitute a debt. indebtedness, financial obligation or liability of the City within the
meaning of any constitutional. statutory or charter debt limitation or provision.
This Note is governed by and interpreted in accordance with the Jaws of the State of
Colorado.
Pursuant to Section 11-57-210 of the Colorado Revised Statutes, as amended, this Note is
entered into pursuant to certain provisions ofthe Supplemental Public Securities Act, being Title
II, Article 57. of the Colorado Revised Statutes, as amended. Such recital shall be conclusive
evidence of the validity and the regularity of the issuance of this N<lte after delivery for value.
If any provision in this Note is held invalid. illegal or unenforceable in any jurisdiction,
the validi ty, legality or enforceability of any defective provisions shall not impair the validity.
legality or enforceability of any other provision of this Note.
All notices under this Note must be sent to U1e addresses given in. and in accordance with
the provisions of: the Redevelopment Agreement.
THE PROVISIONS OF TH IS NOTE MAY BE AMENDED OR REVISED ONLY
BY AN INSTRUMENT IN WRITING SIGNED BY TOE AUTHORJTY AND
DEVELOPER.
IN WITNESS WHEREOF, an authotized representative of the Wheal Ridge Urban
Renewal AuU1ority dlb/a/ Renewal Wheat Ridge has executed this Promissory Note as of the day
and year first above written.
(SEAL]
ATTEST:
Patrick Goff, Executive Director
WHEAT RIDGE URBAN RENEWAL
AUTHORITY
K.risti Davis, Chairperson
E-2
TABLE OF OUTSTANDING REIMBURSEMENT AMOUNT
Total Reimbursement Amount Due Under rhis Note:
Date of Project Completion Certificate: ____ _
On each November I. the ov. ner of this Note shall make the appropriate notation on the table
below relating to the payment or amounts due on this Note.
Beginning
Date Outstanding Balance Amount Paid on Note Remaining Balance
E-3
EXHIBIT F
FORM OF SUBDIVISION IMPROVEMENT AGREEMENT
THIS AGREEMENT made this of , by
and between the CITY OF WHEAT RIDGE , COLORADO, a home rule municipal
corporation (the "City"), and , (the "Developer"),
together referred to as the "Parties".
RECITALS:
The Developer is the owner of certain real property located in the City of Wheat
Ridge, which is more particularly described in Exhibit A and made a part hereof (the
"Property"), commonly known as---------------
On , the City Council of the City of Wheat Ridge,
after holding all required public hearings, approved the final plat for the Property titled
A copy of the Final Plat is
attached hereto as Exhibit B and incorporated herein.
The approvals cited above are contingent upon the express condition that all
duties created by this Agreement be faithfully performed by the Developer.
AGREEMENT
NOW, therefore, for and in consideration of the mutual promises and covenants
contained herein, the sufficiency of which are mutually acknowledged, the parties hereto
agree as follows:
1. Purpose. The purpose of this Agreement is to set forth the terms,
conditions, and fees to be paid by the Developer upon subdivision of the Property. All
conditions contained herein are in addition to any and all requirements of the City of
Wheat Ridge Subdivision Ordinance and Zoning Ordinance, the City of Wheat Ridge
Charter, any and all state statutes, and any other sections of the City of Wheat Ridge
Municipal Code and are not intended to supersede any requirements contained therein.
2. Other Requirements. See Exhibit attached hereto.
3. Fees. The Developer hereby agrees to pay City Development Review
fees to the City for engineering, hydrological, surveying, legal, and other services
rendered in connection with the review of the subdivision of the Property.
4. Parkland dedication fee-in lieu. Fees in lieu of land dedication, when
required, shall be calculated pursuant to the formula in Section 26-413 and shall be paid
at the time of plat recordation.
F-1
5. Title Policy. Prior to recording of the final plat (or, if no plat is associated
with the development; prior to and as a condition of final approval of the development
by the City). title commitment for all those portions of the Property, as well as any other
interests in real property (easements, etc.) to be reserved for public purposes or
dedicated to the City shall be provided to the City. The title commitment shall show that
all such property is or shall be, subsequent to the execution and recording of this
Agreement, free and clear of all liens and encumbrances (other than real estate taxes
which are not yet due and payable) which would make the dedication or reservation
unacceptable as the City determines in its reasonable discretion. The City, in its sole
discretion, may accept any dedication regardless of encumbrances. The title policy
evidenced by the title commitment shall be provided within thirty (30} days after the
recording of this Agreement. in an amount equal to the fair market value of the property
so dedicated or reserved.
6. Breach by the Developer; the City's Remedies. In the event of a breach of
any of the terms and conditions of this Agreement by the Developer, the City Council
shall be notified immediately and the City may take such action as permitted and/or
authorized by law, this Agreement, or the ordinances and Charter of the City as the City
deems necessary to protect the public health, safety and welfare; to protect lot buyers
and builders; and to protect the citizens of the City from hardship and undue risk.
These remedies include, but are not limited to:
(a) The refusal to issue any building permit or certificate of occupancy;
(b) The revocation of any building permit previously issued under which
construction directly related to such building permit has not commenced ,
except a building previously issued to a third party,
(c) A demand that the security given for the completion of the Public
Improvements be paid or honored, or
(d) Any other remedy available at law or in equity.
Unless necessary to protect the immediate health, safety and welfare of the City or to
protect the City's interest with regard to security given for the completion of the Public
Improvements. the City shall provide the Developer thirty (30) days written notice of its
intent to take any action under this paragraph during which thirty day period the
Developer may cure the breach described in the notice.
7. Public Improvements and Warranty. All storm sewer lines, drainage
structures, paved streets. curb, gutter and sidewalk, including the undergrounding of all
overhead utilities. and necessary appurtenances as shown on the subdivision plat and
the associated construction documents (the "Public Improvements" or "Improvements")
as approved by the Director of Public Works or designee of the City, shall be installed
and completed at the expense of the Developer within the timeframes set forth in
Section 10 of this Agreement. The itemized costs of the Public Improvements required
by this Agreement and shown on the construction documents approved by the Director
of Public Works of the City are set forth on Exhibit C. All Public Improvements covered
F-2
by this Agreement shall be made in accordance with the construction documents drawn
according to regulations and construction standards for such improvement and
approved by the Director of Public Works of the City. It is understood by the Parties that
the description of the Public Improvements may be general in nature, and that
reasonable modifications of the scope, nature, costs, and similar aspects of the Public
Improvements may be necessary to secure final approval of the Public Improvements.
The quantities and locations for the Public Improvements are based on information that
was available at the time of approval of the Final Plat. Additional Public Improvements
may be required, and Developer shall be responsible for submitting revisions to the
Final Plat approved by the City. The Public Improvements shall be substantially
complete, with only such exceptions as shall be approved in advance by the Director of
Public Works in the exercise of his or her sole discretion, prior to the issuance of the
first Building Permit.
The Developer shall also warrant any and all Public Improvements which are
conveyed to the City pursuant to this Agreement for a period of two (2) years from the
date the City's Director of Public Works certifies that the same conforms to the
specifications approved by the City. Specifically, but not by way of limitation, the
Developer shall warrant the following:
(a) That the title conveyed shall be marketable and its transfer rightful:
(b) Any and all facilities conveyed shall be free from any security interest or
other lien or encumbrance; and
(c) Any and all facilities so conveyed shall be free of defects in materials or
workmanship for a period of two (2) years as stated above.
(d) To the degree the Developer is required to install and maintain
landscaping on public or private property, it is the obligation of Developer
and its successors and assigns, to maintain the required landscaping in
perpetuity.
The City will finally accept for maintenance all Public Improvements, exclusive of
landscaping materials, after the warranty period has expired provided all warranty work
has been completed. The City shall accept for snow removal purposes only, all
dedicated public streets after the City issues the first certificate of occupancy.
8. Installation of Traffic Signal. A traffic signal may be required to serve this
development. Determination of the need for the signal shall be made by the City's
Public Works Director, hereinafter "Director", prior to building permit issuance and
based upon a traffic study for this development approved by the City. The Developer
shall provide collateral for the estimated cost of installation of the traffic signal prior to
building permit issuance, if the Director has determined that a signal is needed. Prior to
building permit issuance, the Developer shall provide traffic signal plans for approval by
the Developer and the Colorado Department of Transportation.
F-3
The Developer shall notify the City in writing, a minimum of one hundred sixty
(160) days prior to the desired time of installation/modification of the traffic signal in
order to allow the City to coordinate the timing of the traffic signal improvements. If the
Director approves installation of the signal based on meeting traffic warrants, the City
shall then notify the Developer in writing of the exact amount required for the traffic
signal improvements. The Developer shall then make payment to the City in cash for
the required amount within sixty (60) days of receipt of such letter. The City will not
commence traffic signal improvements until the Developer has paid to the City the total
amount determined by the Director to be the total cost of improvements.
9. Observation. Inspection and Testing. The City shall have the right to
require reasonable engineering observations and testing at the Developer's expense.
Observation and testing, acquiescence in, or approval by any engineering inspector of
the construction of physical facilities at any particular time shall not constitute the
approval by the City of any portion of the construction of such Public Improvements.
Such approval shall be made by the City, only after completion of construction and in
the manner hereinafter set forth .
The Director is designated by the City to exercise authority on its behalf under
this Agreement and to see that this Agreement is performed according to its terms.
Work under this Agreement may. without cost or claim against the Ctty, be suspended
by the Director for substantial cause.
The Director shall, within a reasonable time after presentation, make decisions in
writing on all claims of Developer and on all other matters relating to the execution and
progress of the work or the interpretation of this Agreement, the master plan and
specifications. All such decisions of the Director shall be final.
The Director shall make all determinations of amounts and quantities of work
performed hereunder. To assist him in this work Developer shall make available for
inspection any records kept by Developer.
The Director shall make all determinations of amounts and quantities of work
performed hereunder. To assist him in this work Developer shall make available for
inspection any records kept by Developer.
The Director and his authorized representatives shall have free access to the
work at all times, and Developer shall furnish them with facilities for ascertaining
whether the work being performed, or the work which has been completed, is in
accordance with the requirements of the Agreement.
The Director will make periodic observations of construction (sometimes
commonly referred to as "supervision"). The purpose of these observations and
construction checking is to determine the progress of the work and to see if the work is
being performed in accordance with the plans and specifications. He will in no way be
F-4
responsible for how the work is performed, safety in , on, or about the job site, methods
of performance, or timeliness in the performance of the work.
Inspectors may be appointed to inspect materials used and work done.
Inspections may extend to all or any part of the work and to the preparation or
manufacture of the materials to be used. The inspectors will not be authorized to alter
the provisions of this Agreement or any specifications or to act as foreman for
Developer. The Inspector will have authority to reject defective materials and to
suspend any work that is being done improperly, subject to the final decision of the
Director.
10. Completion of Public Improvements. The obligations of the Developer
provided for in paragraph 6 of this Agreement, including the inspections hereof, shall be
performed on or before • and
proper application for acceptance of the Public Improvements shall be made on or
before such date. Upon completion of construction by the Developer of such
Improvements, the City's Director of Public Works or designee, shall inspect the
Improvements and certify with specificity its conformity or lack thereof to the City's
specifications. The Developer shall make all corrections necessary to bring the
Improvements into conformity with the City's specifications. Once approved by the
City's Director of Public Works, the City shall accept said Improvements upon
conveyance; provided , however, the City shall not be obligated to accept the Public
Improvements until the actual costs described in this Agreement are paid in full by the
Developer.
11 . Protection. Developer, at its expense, shall continuously maintain
adequate protection of all Improvements from damage prior to acceptance by the City
and shall protect the City's property from injury and loss arising in connection with this
Agreement. Developer shall make good any such damage, injury or loss except such
as may be caused directly by authorized agents or employees of the City. Developer
shall adequately protect adjacent property and shall provide and maintain all
passageways, guard fences, lights and other facilities for protection required by public
authority or local conditions.
Developer shall be responsible for damage to any public and private property on
and adjacent to the site of Developer's Improvements caused by negligent or willful acts
of Developer, its agents or subcontractors. Developer shall take all reasonable effort
necessary to prevent damage to pipes, conduits. and other underground structures and
to overhead wires, and to water quality. Developer shall protect carefully from
disturbance or damage all land monuments and property marks until an authorized
agent of the City has witnessed or otherwise referenced their location, and shall not
remove them until directed . When any direct or indirect damage or injury is done to
public or private property by or on account of any act, omission, neglect or misconduct
in the construction of Improvements, or in consequence of the non-execution thereof on
his part, such damaged property shall be restored by Developer at its own expense to a
condition similar or equal to that existing before such damage or injury.
F-5
Developer shall at all times. whether or not so specifically directed by the
Director, take necessary precautions to insure the protection of the public. Developer
shall furnish, erect and maintain, at its own expense, all necessary barricades, suitable
and sufficient red lights. construction signs. provide a sufficient number of watchmen,
and take all necessary precautions for the protection of the work and safety of the public
through or around his construction operations as Developer and the Director shall deem
reasonably necessary.
12. Related Costs-Public Improvements. The Developer shall provide all
necessary engineering designs, surveys, field surveys. testing and incidental services
related to the construction of the Public Improvements at its sole cost and expense,
including final drainage study letter certified accurate by a professional engineer
registered in the State of Colorado.
13. Improvements to be the Property of the City. All Public Improvements for
roads, concrete curb and gutters, public storm sewers and public drainage
improvements accepted by the City shall be dedicated to the City and warranted for a
period of twenty-four (24) months following acceptance by the City, as provided above.
14. Performance Guarantee. In order to secure the construction and
installation of the Public Improvements the Developer shall, prior to recording the Final
Plat, if applicable, in the real estate records of Jefferson County. which recording shall
occur no later than ninety (90) days after the execution of this Agreement, furnish the
City, at the Developer's expense, with the Performance Guarantee described herein.
The Performance Guarantee provided by the Developer shall be an irrevocable letter of
credit in which the City is designated as beneficiary, for one hundred twenty-five percent
(125%) of the estimated costs of the Public Improvements to be constructed and
installed as set forth in Exhibit C, if applicable to secure the performance and
completion of the Public Improvements as required by Section 26-418 Security for
Required Improvements, of the Wheat Ridge Subdivision Regulations. The Developer
agrees that approval of this Agreement by the City is contingent upon the Developer's
provision of an irrevocable letter of credit to the City within ninety (90) days of the
execution of this Agreement in the amount and form provided herein. Failure of the
Developer to provide an irrevocable letter of credit to the City in the manner provided
herein shall negate the City's approval of this Agreement. Letters of credit shall be
substantially in the form and content set forth in Exhibit 0 , if applicable, and shall be
subject to the review and approval of the City Attorney. The Developer shall not start
any construction of any public or private improvement on the Property including, but not
limited to , staking, earthwork, overlot grading or the erection of any structure, temporary
or otherwise. until the City has received and approved the irrevocable letter of credit.
The estimated costs of the Public Improvements shall be a figure mutually
agreed upon by the Developer and the City's Director of Public Works. as set forth in
Exhibit C if applicable. If, however, they are unable to agree, the Director of Public
Works' estimate shall govern after giving consideration to information provided by the
F-6
Developer including, but not limited to, construction contracts and engineering
estimates. The purpose of the cost estimate is solely to determine the amount of
security. No representations are made as to the accuracy of these estimates, and the
Developer agrees to pay the actual costs of all such Public Improvements.
The estimated costs of the Public Improvements may increase in the future.
Accordingly, the City reserves the right to review and adjust the cost estimate on an
annual basis. If the City adjusts the cost estimate for the Public Improvements, the City
shall give written notice to the Developer. The Developer shall, within thirty (30) days
after receipt of said written notice. provide the City with a new or amended letter of
credit in the amount of the adjusted cost estimates. If the Developer refuses or fails to
so provide the City with a new or amended letter of credit, the City may exercise the
remedies provided for in this Agreement; provided, however, that prior to increasing the
amount of additional security required, the City shall give credit to the Developer for all
required Public Improvements which have actually been completed so that the amount
of security required at all time shall relate to the cost of required Public Improvements
not yet constructed.
In the event the Public Improvements are not constructed or completed within the
period of time specified by paragraph 9 of this Agreement or a written extension of time
mutually agreed upon by the parties to this Agreement, the City may draw on the letter
of credit to complete the Public Improvements called for in this Agreement. In the event
the letter of credit is to expire within fourteen (14) calendar days and the Developer has
not yet provided a satisfactory replacement, the City may draw on the letter of credit and
either hold such funds as security for performance of this Agreement or spend such
funds to finish Public Improvements or correct problems with the Public Improvements
as the City deems appropriate.
Upon completion of performance of such improvements, conditions and
requirements within the required time, the Developer shall issue an irrevocable letter of
credit to the City in the amount of twenty-five percent (25%) of the total cost of
construction and installation of the Public Improvements, to be held by the City during
the warranty period. If the Public Improvements are not completed within the required
time, the monies may be used to complete the improvements.
15. Indemnification. The Developer shall indemnify and hold harmless the
City and its officers, employees, agents or servants from any and all suits, actions, and
claims of every nature and description caused by, arising from or on account of this
Agreement any act or omission of the Developer, or of any other person or entity for
whose act or omission the Developer is liable, with respect to the Public Improvements;
and the Developer shall pay any and all judgments rendered against the City as a result
of any suit, action, or claim, together with all reasonable expenses and attorney's fees
and costs incurred by the City in defending any such suit, action or claim.
The Developer shall pay all property taxes on the Property dedicated to the City
and shall indemnify and hold harmless the City for any property tax liability.
F-7
16. Waiver of Defects. In executing this Agreement, the Developer waives all
objections it may have concerning defects, if any, in the formalities whereby it is
executed, or concerning the power of the City to impose conditions on the Developer as
set forth herein, and concerning the procedure, substance, and form of the ordinances
or resolutions adopting this Agreement.
17. Third Party Beneficiaries. There are and shall be no third party
beneficiaries to this Agreement.
18. Modifications. This instrument embodies the whole agreement of the
Parties. There are no promises, terms, conditions, or obligations other than those
contained herein; and this Agreement shall supersede all previous communications,
representations , or agreements, either verbal or written, between the parties. There
shall be no modification of this Agreement except in writing , executed with the same
formalities as this instrument. Subject to the conditions precedent herein, this
Agreement may be enforced in any court of competent jurisdiction.
19. Release of Liability. It is expressly understood that the City cannot be
legally bound by the representations of any of its agents or their designees except in
accordance with the City of Wheat Ridge Code of Ordinances and the laws of the State
of Colorado.
20. Captions. The captions to this Agreement are inserted only for the
purpose of convenient reference and in no way define, limit, or prescribe the scope or
intent of this Agreement or any part thereof.
21 . Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors, and assigns as the
case may be.
22. No Waiver. No waiver of any of the provisions of this Agreement shall be
deemed or constitute a waiver of any other provisions herein, nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided, nor shall the waiver
of any default hereunder be deemed a waiver of any subsequent default hereunder.
23. Invalid Provision. If any provision of this Agreement shall be determined
to be void by any court of competent jurisdiction, then such determination shall not
affect any other provision hereof, all of the other provisions shall remain in full force and
effect. It is the intention of the Parties that if any provision of this Agreement is capable
of two constructions, one of which would render the provision void, and the other which
would render the provision valid, then the provision shall have the meaning which
renders it valid.
24. Governing Law. The laws of the State of Colorado shall govern the
validity, performance and enforcement of this Agreement. Should either party institute
F-8
legal suit or action for enforcement of any obligation contained herein, venue of such
suit or action shall be in Jefferson County, Colorado.
25. Attorneys Fees. Should this Agreement become the subject of litigation to
resolve a claim of default of performance or payment by the Developer and a court of
competent jurisdiction finds in favor of the City, the Developer shall pay the City's
attorney's fees and court costs.
26. Notice. All notices required under this Agreement shall be in writing and
shall be hand delivered or sent by registered or certified mail, return receipt requested,
postage prepaid, to the addresses of the parties herein set forth. All notices so given
shall be considered effective seventy-two (72) hours after deposit in the United States
mail with the proper address as set forth below. Either party by notice so given may
change the address to which future notices shall be sent.
Notice to Developer:
Notice to City:
Director of Public Works
7500 West 291h Avenue
Wheat Ridge, CO 80033
27. Force Majeure. Whenever the Developer is required to complete the
construction, repair, or replacement of Public Improvements by an agreed deadline, the
Developer shall be entitled to an extension of time equal to a delay in completing the
foregoing due to unforeseeable causes beyond the control and without the fault or
negligence of the Developer including, but not restricted to, acts of God, weather, fires
and strikes.
28. Assignment or Assignments. There shall be no transfer or assignment of
any of the rights or obligations of the Developer under this Agreement without the prior
written approval of the City.
29. Recording of Agreement. This Agreement shall be recorded in the real
estate records of Jefferson County and shall be a covenant running with the Property in
order to put prospective purchases or other interested parties on notice as to the terms
and provisions hereof.
30. Title and Authority. The Developer,-------------
expressly warrants and represents to the City that it is the record owner of the property
F-9
constituting the Property and further represents and warrants, together with the
undersigned individual(s) that the undersigned individual(s) has or have full power and
authority to enter into this Subdivision Improvement Agreement. The Developer and the
undersigned individual(s) understand that the City is relying on such representations
and warranties in entering into this Agreement.
WHEREFORE, the parties hereto have executed this Agreement on the day and
year first above written.
By:
ATTEST:
Janelle Shaver, City Clerk
APPROVED AS TO FORM:
Gerald Dahl, City Attorney
STATE OF COLORADO
CITY OF WHEAT RIDGE, COLORADO
Joyce Jay, Mayor
DEVELOPER
By: __________________________ __
)
) ss.
COUNTY OF ________________________ )
The foregoing instrument was acknowledged before me this ____ day of
_____________ ,20 ___ ,by ______________________ ,as
__________________ of ________________________________ ___
Witness my hand and official seal.
My commission expires: -----------------------------
Notary Public
(SEAL)
F-10