Loading...
HomeMy WebLinkAboutResolution 2015-0054CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 54 Series of 2015 TITLE: RESOLUTION NO. 54-2015 -A RESOLUTION CONCERNING THE PROPOSED REDEVELOPMENT AT THE NORTHWEST CORNER OF WEST 38TH AVENUE AND UPHAM STREE T, AND AUTHORIZING A COOPERATION AGREEMENT IN CONNECTION THEREWITH WHEREAS, the City is a home rule municipality and political subdivision of the State of Colorado organized and existing under a home rule charter pursuant to Article XX of the Constitution of the State of Colorado; and WHEREAS, the City Council of the City (the "City Council") established the Wheat Ridge Urban Renewal Authority d/b/a/ Renewal Wheat Ridge (the "Authority") on October 18, 1981 , as an urban renewal authority pursuant to Colorado Revised Statutes, Part 1 of Title 31 , Article 25 , as amended; and WHEREAS, the City Council has adopted the West End 38 Urban Renewal Plan (the "Urban Renewal Plan" or the "Plan") for the area described therein (the "Urban Renewal Area"); and WHEREAS, West End 38, LLC (the "Developer") has acquired title to, or has a letter of intent to purchase certain real property consisting of approximately 3.67 acres which is located at the northwest corner of West 38th Avenue and Upham Street (the "Property"), which is in the Urban Renewal Area ; and WHEREAS, the Developer has submitted a proposal to the City and the Authority to redevelop the Property (the "Project"); and WHEREAS, the City has determined and hereby determines that it is in the best interests of the City and its citizens to assist in the redevelopment of the Project; and WHEREAS, the Authority has determined that the redevelopment of the Project in order to remediate blight is consistent with and in furtherance of the purposes of the Authority and the Plan; and WHEREAS, the Urban Renewal Plan contemplates that a primary method of financing projects within the Urban Renewal Area will be through the use of property tax increment revenues and City sales tax increment revenues; and WHEREAS, the Plan adopted the utilization of property and sales tax increment for the Property and authorizes the Authority to pledge such property tax increment revenues and City sales tax increment revenues to finance public infrastructure that benefits the Urban Renewal Area pursuant to one or more Cooperation Agreements (as defined therein); and WHEREAS, the Authority and the Developer desire to enter into a Redevelopment Agreement (the "Redevelopment Agreement") EXHIBIT A that sets forth the rights and responsibilities of each party with respect to the financing and construction of the Project; and WHEREAS, in order to finance certain eligible improvements for the Project, the Redevelopment Agreement provides that, upon compliance with certain conditions precedent, the Authority will reimburse the Developer for eligible costs incurred in connection with such eligible improvements in the maximum amount of $4.8 million (the "Reimbursement Amount ") with the Reimbursement Amount to be payable solely from property tax increment revenues and sales tax increment revenues to be generated from the redevelopment of the Project; and WHEREAS, in connection with the execution and delivery of the Redevelopment Agreement and the repayment of the Reimbursement Amount in accordance therewith, the City and the Authority believe it is in the best interests of the City and the Authority to enter into a Cooperation Agreement (the "Cooperation Agreement") EXHIBIT B related to the Project; and WHEREAS, there has been filed with the City Clerk of the City (the "City Clerk") the proposed form of the Cooperation Agreement. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, that: Section 1. Finding of Best Interests and Public Purpose. The City Council hereby finds and determines, pursuant to the Constitution , the laws of the State and the City's home rule charter (the "Charter"), and in accordance with the foregoing recitals , that adopting this Resolution , redeveloping the Project and entering into the Cooperation Agreement are in the best interests of the inhabitants of the City. Section 2. Approval of Cooperation Agreement. The Cooperation Agreement, in substantially the form on file with the City Clerk, is in all respects approved, authorized and confirmed. The Mayor is hereby authorized and directed to execute and deliver the Cooperation Agreement, for and on behalf of the City, in substantially the form and with substantially the same contents as is on file with the City Clerk, provided that such document may be completed, corrected or revised as deemed necessary by the parties thereto in order to carry out the purposes of this Resolution. The execution of the Cooperation Agreement by the Mayor shall be conclusive evidence of the approval by the City Council of such document in accordance with its terms. Section 3. Direction to Act. The City Clerk is hereby authorized and directed to attest all signatures and acts of any official of the City in connection with the matters authorized by this Resolution and to place the seal of the City on any document authorized and approved by this Resolution . The Mayor, the City Manager, the City Clerk, the City Attorney, and all other appropriate officials or employees of the City are hereby authorized and directed to execute and deliver for and on behalf of the City any 2 and all additional certificates, documents, instruments and other papers, and to perform all other acts that they deem necessary or appropriate , in order to facilitate the redevelopment of the Project and implement and carry out the transactions and other matters authorized by this Resolution. Section 4. Ratification. All actions (not inconsistent with the provisions of this Resolution) heretofore taken by the City Council or the officers, employees or agents of the City directed toward the redevelopment of the Project and the execution and delivery of the Cooperation Agreement are hereby ratified , approved and confirmed. Section 5. Severability. If any section, subsection, paragraph, clause or provision of this Resolution or the documents hereby authorized and approved shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, subsection, paragraph, clause or provision shall not affect any of the remaining provisions of this Resolution or such documents, the intent being that the same are severable. Section 6. Repealer. All prior resolutions, or parts thereof, inconsistent herewith are hereby repealed to the extent of such inconsistency. Section 8. Effectiveness. This Resolution shall take effect immediately. DONE AND RESOLVED this 14th day of December, 2015. oyce Jay, Mayor [SEAL] Attest: 3 EXHIBIT A REDEVELOPMENT AGREEMENT THIS REDEVELOPMENT AGREEMENT (this "Agreement") dated as of October 20, 2015, is made by and between WHEAT RIDGE URBAN RENEWAL AUTHORITY dfb/al 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 individually, a "Party." RECITALS 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 fully set forth in the body of this Agreement. WHEREAS, 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 WHEREAS, the City Council of the City (the "City Co1mcil") established the Authority on October 1 8, 1981 ; and WHEREAS, an urban renewal plan known as the West End 38 Urban Renewal Plan (the "Urban Renewal Plan" or the "Plan") has been prepared and will be considered for approval by the City Council of the City pursuant to the requirements of Title 31, Article 25, Part 1, Colorado Revised Statutes (the "Urban Renewal Law"); and WHEREAS, Developer has acquired title to, or has a letter of intent to purchase, all of the real property described in Exhibit A-I attached hereto, consisting of approximately 3.67 acres, which is located at the northwest comer of West 381h Avenue and Upham Street in the City (the "Property"), which is within an urban renewal area and which is in the West End 38 TIF Area; and WHEREAS, Developer 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 WHEREAS, in order to facilitate the acquisition, construction and installation of the Project, the Authority and Developer desire to finance certain Eligible Improvements related to the Project up to a maximum aggregate amount of Four Million Eight Hundred Thousand Dollars ($4,800,000) (as further defined below, the "Reimbursement Amount") as set forth in this Agreement; and WHEREAS, pursuant to the Act and the Urban Renewal Plan, the Authority may finance undertakings pursuant to the Plan by any method authorized under the Act or any other applicable law, including 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; advancement of reimbursement agreements; agreements with public or private entities; and loans, advances and grants from any other available sources; and the Plan authorizes the Authority to pay the principal and interest on any such indebtedness from property and sales tax increments, or any other funds, revenues, assets or properties legally available to the Authority; and WHEREAS. the Urban Renewal Plan contemplates that a primary method of financing projects \l.rithin the urban renewal area will 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 \\'HEREAS, Developer will initially fund the design, acqUJsttton, construction and installation of the El igible Improvements in accordance with this Agreement; and WHEREAS, subject to the tenns and provisions of this Agreement, Developer will be reimbursed fo r Eligible Costs incurred on the Eligible Improvements in an amount equal to the Reimbursement Amount from the proceeds of the Pledged Tax Increment Revenues generated by the Project (the "Pledged Revenues''); and WHEREAS, the Authority will execute and deliver a promissory note (the "Note") to the Developer to evidence its 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 WHEREAS, the Parties have agreed to enter into this Agreement for the redevelopment of the Property 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 which are acknowledged, the Parties agree to the tenns and conditions in this Agreement. 2 AGREEMENT I. DEFINITIONS. ln this Agreement, unless a different meaning clearly appears from the context, capitalized terms mean: "Act" means the Colorado Urban Renewal Law, Part 1 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. Al l exhibits attached to and referenced in this Agreement are hereby incorporated into this Agreement. "Authority" means Wheat Ridge Urban Renewal Authority d/b/a Renewal Wheat Ridge, an urban renewal authority and a body corporate and politic of the State of 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 obligations or securities issued by the Authority to refinance or repay the Note in accordance with the terms and provisions of this Agreement, including any bonds, certificates of participation, other obligations or securities issued by the Authority to refund any such Bonds. "City" means the City of Wheat Ridge, Colorado, a home rule municipality and political subdivi sion 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. ·'City Requirements" means, collectively, the Wheat Ridge Zoning and Development Code, Architectural and Site Design Manual, Subdivision Improvement Agreement, Streetscape Design Manual, International (Building) Codes, Site Drainage Requirements, and right-of-way design standards, except as may be amended by mutual written agreement of the City and Developer through land use, building and right-of-way permit approvals or otherwise. ''Commence Construction" or "Commencement of Construction" means the commencement by Developer of actual physical work on the Project, including without lirnitatjon deconstruction, demolition and/or site grading on the Property as required for the Proje.ct. "Complete" or "Complete Construction,. or ''Completion" or "Completion of Construction" means construction acceptance in accordance with the City Requirements, the Subdivision improvement Agreement, applicable laws, ordinances, and regulations of the City and any other governmental entity or public utility with jurisdiction, subject to any applicable conditions of maintenance and warranty, including without limitation, the issuance of a permanent certificate of occupancy or completion by the City, with or without conditions, so that the portion of the Project described in such certificate may open for permanent occupancy and utilization for its intended purposes. 3 "Default" or ''Event 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 given 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 liability company, and any successors and assigns approved in accordance with this Agreement. "Developer Advances" means, collecti vely, amounts advanced or incurred by Developer to pay any Eligible Costs. "Effective Date" means the 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 hereund er. Eligible Costs also includes all reasonable and customary costs and expenses related to the engineering and design work for the Eligible Lmprovements. The maximum 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. "Executive Director" means the Executive Director of the Authority. "Exhibits" The following Exhibits attached to this Agreement are hereby incorporated into and made a part of thts Agreement: Exhibit A-1: Legal Description of the Property Exhibit A-2: Legal Description of the West End 38 T IF Area Exhibit B: Description of the Project Exhibit C: Eligible Improvements Exhibit D: Fonn of Project Completion Certificate Exhibit E Form of Note Exhibit F: Form of Subdivision Improvement Agreement "Note" means the promissory note executed and delivered by the Authority to Developer that evidences the obligation to pay the Reimbursement Amount in accordance with the terms and provisions of this Agreement, in substantially the form of Exhibit E attached to this Agreement. The Note shall be a special and limited obligation of the Authority payable solely from the Pledged Revenues. Interest shall not accrue on the Note. 4 "Party" or "Parties" means one or both of the parties to this Agreement. "Pledged Property Tax Increment Revenue" means the annual ad valorem property tax revenue received by the Authority from the Jefferson County Treasurer in excess of the amount produced by the levy of those taxing bodies that levy property taxes against the Property Tax Base Amount in the West End 38 TIF Area in accordance with the Act and the regulations of the Property Tax Administrator of the State of Colorado, but not including, (a) any mills imposed by the Wheat Ridge Fire District; and (b) any offsets collected by the Jefferson County Treasurer for return of overpayments or any reserve funds retained by the Authority for such purposes in accordance with Sections 31-25-1 07(9)(a)(III) and (b) of the Act. "Pledged Sales Tax Increment Revenues" means, for each year that this Agreement remains in effect, that portion of the Sales Tax revenue received by the City, and remitted to the Authority in accordance with the Act and the Plan, equal to the product of the Sales Tax rate of three percent (3.00%) times the amount of the taxable transactions subject to the Sales Tax in the West End 38 TJF 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 Increment Reveouest' means, coll ectively, the Pledged Property Tax Increment Revenues and the Pledged Sales Tax Increment Revenues. "Project" means the redevelopment of the Property, as further set forth in Exhibit B attached hereto. "Project Account" means the account of the Special Fund created in Section 5.2 into which the Authority shall deposit the Pledged Tax In crement Revenues. ''Project Completion Certificate" means the certificate in substantially the form of Exhibit D attached hereto relating to the satisfaction of the conditions precedent set forth in Section 3.1 relating to the payment of the Reimbursement Amount. "Property" means the real property described in Exhibit A-1 attached hereto, which consists of approximately 3.67 acres. The Property is included in the West End 38 TIF Area. "Property Tax Base Amount'' means the amount certified by the Jefferson County Assessor as the valuation for assessment of all taxable property within the West End 38 TIF Area in accordance with Section 3 1-25-1 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 31-25-1 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 Developer 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 are subject to municipal sales taxes pursuant to the Wheat Ridge City Code. ln the event that the Sales Tax is subsequently increased abo\ e 3.00%, the amount of Sales Tax subject to this Agreement shall not be increased above 3.00% unless otherwise authorized by the City Council. "Sales Tax Base Amount'' means the total coll ection of Sales Taxes levied at the rate of three percent (3.00%) within the West End 38 TIF Area for the applicable twelve-month period in accordance with Section 31-25-1 07(9)(a)(l) of the Act. The Sales Tax Base Amount is SO.OO. "Special Fund'' means the special fund of the Authority defined in Section l 07(9)(a)(II) of the Act. "Subdivision Improvement Agreement" means that Subdivision Improvement Agreement for the Project to be submitted by Developer to the City in substantially the form set forth hereto as Exhibit F attached hereto. "Ur ban Renewal Plan" or "Pla n" means the West End 38 l.,rban Rene\,al Plan approved by the City Council. as amended from time to time. "West End 38 T IF Area" means the approximately 4.535 acres within whtch the Property is located and that is legally described on Exhibit A-2. The West End 38 TlF Area is the same as the urban renewal area described in the Urban Renewal Plan within whtch the tax increment provisions of Section 31-25-I 07(9) of the Act apply. 2. FINANCING AND CONSTRUCTION Of PROJECT. 2. I Construction of Project. As set forth in Section 4, if Developer proceeds with the Project. then Developer shall be responsible for acquiring, constructing and installing the Project. including without limitation, all Eligible Improvements, and shall be responsible for compliance in all respects with the City Requirements. 2.2 Financing the Eligible Improvements. Developer shall be responsible for initially financing the costs and expenses in connection with the acquisition, construction and installation ofthc Eligible Improvements, including without limitation all design costs, engineering costs and other soft costs incurred in connection therewith. 3. CONDITIONS PRECEDENT TO PAYMENT OF RE IMBURSEMENT AMOUNT. 3.1 Conditions Precedent. Unless waived in writing by the Executive Director, the following conditions precedent shall be satisfied prior to Developer receiving any reimbursement for Eligible Costs pursuant to the tenns and provisions of this Agreement: (a) The Developer shall have acquired all the Property; (b) The Subdivision Improvement Agreement shall have been approved by the City and recorded in the real estate records; 6 (c) Substantially all of the Eligible Improvements that are public improvements that the Developer is required to install in connection with the Project pursuant to the Subdivision Improvement Agreement and the site plan shall be Completed; (d) An apartment complex on the Property with at least 110 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 Developer shall have 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 be responsible for the financing, design, acquisition, construction and installation of the Project, subject to the provisions in this Agreement regarding reimbursement of Eligible Costs in accordance herewith. The design and construction of the Project shall comply in all material respects with all applicable codes and regulations of entities having jurisdiction, including the City Requirements. Notwithstanding any provisions to the contrary contained herein, the Developer shall be entitled to reimbursement for Eligible Costs incurred in connection with an Ehgible Improvement only if such Eligible Improvement complies with City Requirements. The Developer will use reasonable efforts to diligently pursue (i) prospective commercial lease tenants, including Vectra Bank; (ii) responsive general contractor construction bids; and (iii) all City of Wheat Ridge development review approvals, including site plan review and building permits, leading to the acquisition, construction, improvement and lease-up of the Project. If Developer 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 use of the Project. The Parties agree that if the Developer has not Commenced Construction of the Project by January 1, 2019, that this shall not constitute an Event of Default hereunder, but that the Authority shall have the right to terminate this Agreement as set forth in Section 18. 7 4.2 Eligible Improvements. The list of Eligible Improvements set forth in Exhibit C attached hereto may be amended at the written request of Developer with the written consent of the Executive Director, unless such consent is not required pursuant to the terrns of Exhibit C. 4.3 Access to Property. Developer will pennit representatives of the City and the Authority access to the Property and the Project at reasonable times during regular business hours and with prior notice as necessary for the purpose of carrying out or detennining compliance with this Agreement, the Urban RcnewaJ Plan, the City Requirements or any City code or ordinance, including without limitation, inspection of any work being conducted. 4.4 Maintenance 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 of 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. Developer 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 AUTHORITY. 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 Lhe Executive Director's waiver of any such conditions precedent, the Authority agrees that it shall reimburse De\ eloper for Eligible Costs tncurred 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 Developer has submitted the Project Completion Certificate to confirm whether or not such Certificate complies with the terms and provtsions of this Agreement and whether the conditions precedent set forth in Section 3.1 have been satisfied or waived by the Executive Director. If the Authority does not provide written approval or disapproval within such thirty (30) day period, the Certificate shall be deemed approved by the Authority. If the Authority notifies the Developer in writing within such thirty (30) day period that the Authority disputes that the conditions precedent set forth in Section 3.1 have been satisfied or waived, or that there is not sufficient documentation relating to aU or any portion of the Eligible Costs that have been incurred by the Developer, and sets forth a detailed explanation why the conditions precedent have not been satisfied, waived or sufficiently documented, such portion of the Reimbursement Amount that is in dispute shaH not become due and payable until Developer and Authority have resolved the dispute. The Parties agree to cooperate in good faith to resolve any dispute relating to the satisfaction of the conditions precedent set forth in Section 3 .I within thirty (30) days after either Party's written request therefor. 5.2 Special Fund; Pro ject 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 Authority agrees to deposit the Pledged Tax 8 Increment Revenues into the Project Account of the Special Fund upon receipt of the same. All Pledged Tax Increment Revenues on deposit in the Project Account of the Special Fund are hereby pledged to the payment of the Note for as long as the Note remains outstanding. ln the event that Bonds are issued by the Authority to prepay the Note in whole or in part, all Pledged Tax Increment Revenues 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. ln the event that the Bonds and the Note are outstanding at the same time, the priority of the lien of the Bonds and the Note on such Pledged Tax Increment Revenues shall be detennined at the time of issuance of the Bonds with 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 authority is not a local government and therefore is not subject to the provisions of Article X, Section 20 of the Colorado Constitution. Accordingly, the Authority may enter into this Agreement with Developer, execute and deliver the Note and agree to remit the Pledged Revenues to Developer to reimburse 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 Impairment. The Authority will not enter into any agreement or transaction that impairs the rights of the Parties. including without limitation, the right to receive and apply the Pledged Revenue in accordance with the tenns and provisions of this Agreement. 6. PAYMENT OR REIMBURSEMENT OF ELIGIBLE COSTS: NOTE FROM AUTHORITY. Upon compliance with the conditions precedent set forth in Section 3.1, Developer shall be reimbursed by the Authority for Eligible Costs incurred 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 be evidenced by the Note to be executed by the Authority and delivered to Developer. (a) Upon the execution and delivery of this Agreement, the Authority shall execute and deliver the Note to Developer in substantially the form 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 terms, 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 from the Pledged Revenues. The Pledged Revenues are hereby pledged to the payment of the Note. The obligation to reimburse Developer for Eligible Costs, which obligation is evidenced by the Note, is and shall be a special and limited obligation of the Authority secured by an irrevocable pledge of, and payable solely from, the 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 thereof, 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 Revenues. Further, the 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. (c) So long as the Note is outstanding, no later than November I of each year (beginning on the first November 1 after the conditions precedent set forth in Section 3.1 have been met). the Authority shall remit to Developer all Pledged Revenues on deposit with the Authority in the Project Account of U1e Special Fund. Any such Pledged Revenues remitted by the Authority to Developer shall be applied on each November 1 to the payment of the Reimbursement Amount represented by the Note. Developer shall note on the Table of Outstanding Reimbursement Amount attached to U1e Note the amount paid on the Note on 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. Unless waived in writing by Oe\'eloper. the Authority shall provide Developer with at least ten (I 0) business days' notice 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 ofthe Project without the prior written consent of the Authority. After Completion of the Project, the Note may be sold or transferred in whole to any entity that has been ass1gned all the Developer's rights under this Agreement in compliance with the tenns and provisions of Section 21 hereof. or w1th the pnor written consent of the Authority. (f) For so long as the Note is outstanding, the Authority shall not issue any Bonds that are payable in whole or in part from the Pledged Revenues without the prior written consent of Developer. In the event that the Authority determines to issue 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 J, 2040 for which the Authority does not have sufficient available Pledged Revenues to pay will be fully discharged and satisfied as of that date notwithstanding such nonpayment. Any such nonpayment shall not constitute an Event of Default hereunder or under the Note and the twenty-five (25)-ycar period of limitation set forth in Section 3 1-25-1 07(9)(a) of the Act shall not be extended pursuant to Section 31-25- 1 07(9)(f) of the Act to make any payment on the Note after November 1, 2040. If the Note has been discharged pursuant to this paragraph, then the Authority's obligation to reimburse Developer for Eligible Costs shall be deemed satisfied hereunder and Developer shall have no further rights to reimbursement under this Agreement. 7. BOOKS AND ACCOUNTS; INSPECTION OF RECORDS. The Authority will keep proper and current itemized records, books, and accounts in which complete and accurate entries will be made of the receipt and use of all amounts of revenue received from any and all sources and such oU1er calculations required by tllis Agreement and any applicable law or regulation. 10 Developer shall keep accurate books and records of all costs incurred in connection with the design, management, acquisition, construction and warranty (as applicable) of the Eligible Improvements. and the receipt of payment or reimbursement of Eligible Costs. During regular business hours and upon reasonable advance notice, the Authority or its designee is hereby authorized to review, at the Authority's cost and expense, Developer's books and records relating to the Eligible Improvements and the receipt of payment or reimbursement of Eligible Costs. All books, records and reports (except those allowed or required by applicable law to be kept confidential) in the possession of the Authority relating to the collection and disbursement of the Pledged Revenues and the payment of the Eligible Costs shall at all reasonable times be open to inspection by such accountants or other agents as the respective Parties may from time to time designate. 8. INSURANCE. On or prior to the Commencement of Construction Developer will provide the City and the Authority with certificates of insurance showing that Developer is carrying, or causing prime contractors to carry, the following insurance: General Liability, with a general aggregate of Two Million Dollars ($2,000,000); fire damage of One Hundred Thousand Dollars ($1 00,000); medical expense of Five Thousand Dollars ($5,000); products/completed operations aggregate of Two Million Dollars ($2,000,000); personal and advertising injury of One Million Dollars ($1 ,000,000) with each occurrence up to One Million Dollars ($1,000,000), with deductible of Twenty-five Hundred Dollars ($2,500) per claim. Excess liability shall be covered in an amount equal to Ten Million Dollars ($1 0,000.000) per occurrence/ Ten Million Dollars ($1 0,000,000) aggregate. 9. INDEMNIFICATION. Except as hereinafter provided, from Commencement of Construction of the Project through Completion of Construction of the Project, and for any action arising during that time period, Developer agrees to indemnify, defend and hold ham1less the City and the Authority, its officers, agents and employees, from and against all liability, claims, demands, and expenses, including fines imposed by any applicable state or federal regulatory agency, court costs and attorney fees, on account of any injury, loss, or damage to the extent arising out of any of the work to be performed by Developer, any subcontractor of Developer, or any officer, employee, agent, successor or assign of Developer under this Agreement, but only to the extent such injury, loss, or damage is caused by the negligent act or omission, error, professional error, mistake, accident, or other fault of Developer, any subcontractor of Developer, or any officer, employee, agent, successor or assign of Developer, but excluding any injuries, losses or damages which are due to the gross negligence, breach of contract or willful misconduct of the City or the Authority, as the case may be. Notwithstanding the foregoing or any provision to the contrary contained herein, in the event that all or a portion of the Project is financed with a HUD-insured Section 220 or 22 I (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) coverage afforded under any liability insurance carried by the Developer, and (iii) available "surplus cash" of the Developer as defined in the Regulatory Agreement executed in connection with any such loan. Until funds from a permitted source for payment of indemnification costs are available for payment, the Developer shall not (a) pay funds to any I 1 indemnitee under thts Agreement, or (b) pay the deductible on an indemnification policy for any indemnitee under this Agreement. 10. REPRESENTATIONS AND WARRANTIES. I 0.1 Representations and Warranties by the Authority. The Authority represents and warrants as follows: (a) The Authority is a body corporate and politic of the State of Colorado, duly organized 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 the powers of the Authority or its officials with respect to this Agreement that has not been disclosed in writing to Developer. (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 law, order, rule or regulation applicable to the Authority or to its governing documents, (ii) result in the breach of any of the terms or provisions or constitute a default under any agreement or other instrument to which the Authority is a party or by which it may be bound or affected. or (iii) permit any party to tenninate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of the Authority. (d) The Pledged Revenues are not subject to any other or prior pledge or encumbrance, and the Authority will not pledge or encumber the Pledged Revenues so long as lhe Note is outstanding without the prior written consent of Developer. (e) This Agreement constitutes a valid and binding obligation of lhe Authority. enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other Jaws of general application affectmg 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 limited liability company and in good standing and authorized to do business in the State of Colorado and has the power and the authority to enter into and perform in a timely manner its obligations under this Agreement. (b) The execution and delivery of this Agreement has been duly and validly authorized by all necessary action on its part to make this Agreement valid and binding upon Developer. 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 default under any agreement or other instrument to which Developer is a party or by which it may be bound or affected, or (iii) permit any party to terminate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of Developer. (d) Developer knows of no litigation, proceeding, initiative, referendum, or investigation or threat or any of the same contesting the powers of 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 sufficient 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 tenn 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 following provisions shall continue beyond the tenn 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 termination of this Agreement; and (C) the indemnification provisions set forth in Section 9. 12. CONFLICTS 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 finn 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. ANTJ-DISCRIMINA TION. Developer, for itself and its successors and assigns, agrees that in the construction of the Eligible lmprovements and in the use and occupancy of the Property and the Eligible Improvements, Developer will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, sexual orientation, disability, marital status, ancestry, or national origin. 13 14. NOTICES. Any notice required or permitted by this Agreement will be in writing and will be deemed to have been sufficientl y given for all purposes if delivered in person, by prepaid overnight express mail or overnight courier service, by certified mail or registered mail , postage prepaid return receipt requested. addressed to the Party to whom such notice is to be given (and such Party's additional persons to copy) at the address(es) set forth on the signature page below or at such other or additiona l addresses as may be furnished in writing to the other Parties. The Parties may also agree on a different means of providing written notice hereunder, including without limitation, noti ce via electronic mail. Notice shall be deemed received: (i) if delivered in person, upon actual receipt (or refusal to accept delivery), (ii) if by prepaid overnight express mail or overnight courier service, on the first business day followmg sending of the notice, and (iii) if by cert ified mail or registered mail. postage prepaid return receipt requested, on the earli er of the date of the receipt or the third business day following sending of the notice. 15. DELAYS; FORCE MAJEURE. Subject to the following provisions, time is of the essence. Any delays m or fatlure of performance by any Party of its obligations under thi s Agreement shall be excused if such delays or failure are a result of acts of God. fires, floods. excessive rain, earthquake, strikes. labor disputes, regulation. initiative. referendum, legislation, litigation, or order of civil or military authorities, or other causes. similar or dissimilar, which are beyond the control of such Party. 16. EVENTS OF DEFAULT. The following e\ents shall constitute an Event of Default under this Agreement: (a) Any representation or warranty made by any Party in this Agreement proves to have been untrue or incomplete in any material respect when made and which untruth or incompletion would have a material adverse effect upon the other Party. (b) So long as the Note remains outstanding. the Authority fai ls to remit the Pledged Revenues on deposit with the Authority to Developer on or prior to November I of each year. (c) Except as otherwi se provided in this Agreement, any Party fails in the performance of any other covenant in this Agreement and such default continues for thirty (30) days after written notice specifying such default and requiring the same to be remedied is given by a non-defaulting Party to the defaulting Party. If such default is not of a type which can be cured wi thin 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 penod of time given the nature of the default following the end of such thirty (30)-day period to cure such default, provided that such defaulting Party is at all times within such additional time period acti vely and diligently pursuing such cure in good faith. 17. REMEDIES. Upon the occurrence and continuation of an Event of Default, the non- detaulting 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 for an Event of Default by the defaulting Party, including without limitation, lost profits, economic damages, or actual, direct, incidental, consequential. punitive or exemplary damages. In the event of any litigation or other proceeding to enforce any of the terms, covenants or conditions of this Agreement, the prevailing party in such litigation or other proceeding shall receive, as part of its judgment or award, its reasonable attorneys' 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. In the event that Developer has not Commenced Construction of the Project on or prior to January 1, 2019, then the Authority shall have the option to terminate 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, 2015, then the Developer and the Authority shall each have the option to terminate this Agreement. In order to terminate this Agreement, a Party shall provide written notice of such termination to the other Party. Such tennination shall be effective thirty (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 tennination. Upon such termination, this Agreement shall be null and void and of no effect, and no action, claim or demand may be based on any term or provision of this Agreement, except as otherwise expressly set forth herein. In addition the Parties agree to execute a mutual release or other instruments reasonably required to effectuate and give notice of such termination. 19. PAYMENT OF FEES AND EXPENSES. Each Party agrees to pay for 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 OFFICIALS, AGENTS, MEMBERS, AND EMPLOYEES. Except for willful or wanton actions, no trustee, board member, commissioner. official, employee, consultant, manager, member, shareholder, attorney or agent of any Party, nor any lender to any Party or to the Project, will be personally liable under the Agreement or in the event of any default or for any amount that may become due to any Party. 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 Authority from Developer containing the name and address of the lender or other party. Developer may pledge, collaterally assign or otherwise encumber all or any part of its rights under this Agreement> including 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 Developer may assign all of its rights under this Agreement to any entity that purchases all of the Property, prO\ ided that any such entity has the financial capability and experience to manage the Project and the Developer has provided the Authority with satisfactory ev1dence of such financial capability and experience. Notwithstanding anything to the contrary in this Section 21, the Authority recognizes that Developer may form, together with 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 with such activities and such transfer(s) will not require any consent by the Parties. 22. COOPERATION REGARDING 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 law. 23. SECTION CAPTIONS. The captions of the Sections are set forth only fo r the convenience and reference of the Parties and arc not intended in an) way to define, limit. or describe the scope or intent of this Agreement. 24. ADDITIONAL DOCUMENTS OR ACTION. (a) The Parties agree to execute any additional documents or take any additional action, including without limitation estoppel documents requested or required by third parties, including without limitation, lenders, tenants or potential purchasers, that IS necessary to carry out this Agreement or is reasonably requested by any Party to confirm or clarify the intent of the provisions of this Agreement and to effectuate the agreements and the tntent. Notwithstanding the foregoing. however, no Party shall be obligated to execute any additional document or take any additional action unless such document or action is reasonably acceptable to such Party. (b) If all or any portion of this Agreement, or other agreements approved in connection with this Agreement are asserted or determined to be invalid, illegaJ or are otherwise precluded, the Parties, within the scope of the1r 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 efforts to amend. reform or replace such precluded items to assure, to the extent legally permissible, that each Party substantially receives the benefits that it would have 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. WAfVER OF BREACH. A waiver by any Party to this Agreement of the breach of any term or provision of this Agreement must be in writing and will not operate or be construed as a waiver of any subsequent breach by any Party. 16 27. GOVERNING LAW. The laws of the State of Colorado govern this Agreement. 28. BINDING 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 permits the assignment of this Agreement except as set forth in Section 21. 29. EXECUTION IN COUNTERPARTS. This Agreement may be executed in several counterparts, each of which will be deemed an original and all of which will constitute but one and the same instrument. 30. LIMITED 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 certain actions for the benefit of the City. 31. NO PRESUMPTION. The Parties and their attorneys have had a full opportunity to review and participate in the drafting of the final forn1 of this Agreement. 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 the Agreement as a whole. 33. MINOR CHANGES. This Agreement has been approved in substantially the form submitted to the governing bodies of the Parties. The officers executing this Agreement are authorized to make and may have made, minor changes to this Agreement and attached exhibits as they have considered necessary. So long as such changes were consistent with the intent and understanding of the Parties at the time of approval by the governin g bodies, the execution of the Agreement will constitute the approval of such changes by the respective Parties. 34. DAYS. If the day for any performance or event provided for herein is a Saturday, a Sunday, a day on which national banks are not open for the regular transactions of business, or a legal holiday pursuant to Section 24-11-101(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. ln the performance of this Agreement or in considering any requested approval, consent, acceptance, or extension of time, the Parties agree that each will act in good faith and will not act 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 Parties will not be deemed to be partners or joint venturers, and no Party is responsible for any debt or liability of any other Party. 17 37. NO WAIVER OF IMMUNITY. Nothing contained in tllis Agreement constitutes a waiver of sovereign immunity or governmental immunity by the Authority under applicable state law. [The remainder of this page is intentionall y left blank.] 18 2015. JN \J,..[ f';£SS WHEREOF, this Agreement is executed by the P:~rtics a.; of .Q-L 7~ AITEST· Noucc: Address: WHEAT RJDGE GIHiAN RE~EWAI. AUTIIORITY )~ ~:~:. --= )\lf~""?vis, Cha~--:::2::::=:===~ Wheat R adge Urban Renewal Authority 7500 West 29111 Avenue \\'heat Ridge, (olorado 80033 Anentton· Patnck Gon. Lxecutive Darector Email: pgolJi'4ca whcauidgc ... o u" Notice Address West rnd 38. L I C 2300 151h Street, SUite 235 Denver. Colorado 80202 Attention· Tyler Downs Email. tdowns:g;wazeepartners.com \\ E.Sl END 38. Ll.C. a Co lorado limited liability company 19 EXHIBIT A-1 LEGAL DESCRIPTION OF THE PROPERTY Those parcels of land, situate, lying and being in the County of Jefferson. City of Wheat Ridge, State of Colorado, including improved land, buildings and unimproved adjacent land, more particularly known and described as follows, to wit: Parcel 1: Lot 1. E.S. AJlen Subdivision, containing a land area of36,49J.5 square feet; Parcel 2: Tax ID Parcel #39-234-00-088, con taining a land area of 12,325 square feet. and a garage facility improvement; Parcel 3: Tax lD Parcel #39-234-00-089, containing a land area of 53,840 square feet, and a residential office building; and Parcel 4: Tax 10 Parcel #39-234-00-086, containing a land area of 57.150 square feet, and an office/bank building. II! I I I I I I I. EXHIB£T A-2 LEGAL DESCRIPTION OF THE WEST END 38 TIF AREA D.LUSTRATION FOR ZONB LOT ~Df'IBaD 1,14aa:;u:a 21 &Jia II' IICDDNM. T!l,lltiW,OI',_tiRP.IL arYOP~TJDIXIK.UJCMH Of........_ll'ABOPOCU1'ADO N81"31!1'12•E 131.113' --!!!!!!.! ·---u----... ... , PONT OF BECINNINC SM"34'48"'W 131.7i' '----------11:!. ZONE LOT 1Q7,537 sa. FT .• OR 4.535 ACR[S ± ....... Do ;, I"' § I I ~-~ -;__ i .--uu--~iiiliiiliniil:'#"~-...-.. ... --1-----Hii'J VICINITY MAP ,._ t ~ •*~- •ant• 1/-. ·-.. I I ~ t cl GRAPHIC SCALE T t T T T ( If • lnllr ,.. ) ls-k••& 1111 UJm'IM'IIIt Dalli IGT = EMf A ... ...,.. -..Nft rr all"'l''eeD liLY 'ft)IIINT 'K A1TADD cam.nca A-1 LEGAL DESCRIPTION FOR WEST END 38 TIF AREA A PARCEL OF LAND LOCATED IN THE SOUTHEAST 1/4 OF SECTION 23, TOWNSHIP 3 SOUTH, RANGE 69 WEST OF THE 6r11 PRINCIPAL MERIDIAN, AND THE NORTHEAST 1/4 OF SECTION 26, TOWJ\ISHIP 3 SOUTH. RANGE 69 WEST OF THE 6m PRINCIPAL MERIDIAN CITY OF WHEAT RIDGE, COUNTY OF JEFFERSON. STATE OF COLORADO. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTH I /4 CORNER OF SECTION 23 FROM WHENCE THE SOUTHEAST CORNER OF SAID SECTION 23 BEARS N 89°38'24" E A DISTANCE OF 2633.65 FEET WITH ALL BEAR INGS HEREIN RELATlVE THERETO; THENCE N 75°46'40" E A DISTANCE OF 542.64 FEET TO THE POINT OF BEGINNING; THENCE N 00°10'12" W, ALONG THE WEST UNE OF A PARCEL OF LAND AS DESCRIBED TN DEED RECORDED IN 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 LNE OF SAID LOT I A DISTANCE OF 119.99 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 JN JEFFERSON COUNTY RECORDERS OFFICE UNDER RECEPTIO 1 NUMBER 94 11 3597: THENCE S 00°13'03" E. ALONG SAID EAST RIGHT OF WAY LINE A DISTANCE OF 483.01 FEET TO THE SOUTH RIGHT OF WAY U NE OF WEST 38TH AVENUE AS PER EASEMENT DOCUMENTS RECORDED Tl'\ JEFFERSON COUNTY RECORDERS OFFICE UNDER RECEPTION NUMBERS 90086570. 90086575, 90086572 AND 90086573; TliENCE S 89°38'24" W, ALONG SAID SOUTH RIGHT OF WAY LINE 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 IN JEFFERSON COUNTY RECORDERS OFFICE UNDER RECEPTION NUMBER F0050611 A; THENCE S 89°34'48" W, ALONG SAID SOUTH LINE A DISTANCE OF 131 .79 FEET TO THE POINT OF BEGINNING. CONTAINING: 197,537 SQUARE FEET OR 4.535 ACRES OF LAND, MORE OR LESS. 2 EXHIBITB DESCRIPTION OF THE PROJECT The Project consists of the redevelopment of approximately 3.67 acres of the Property, which is located at the northwest comer of West 381h Avenue and Upham Street in the City of Wbeatridge. 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 EXHIBIT C ELIGIBLE IMPROVEMENTS The Eligible Improvements are set forth in the table below. The costs for the Elig1ble Improvements as set forth in the table below are estimates. The 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 Dollars ($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 ELIGIBLE IMPROVEMENTS ELIGIBLE COSTS Demolition and Environmental Abatement $290,869 Utilities (Water, Sewer, Electric, Gas, Stonn I ,131 ,689 Water and Relocations/Burying Streets. Sidewalks. Plaza. Hardscape. I ,308,409 Landscaping and Facades Parking Garage 2,378,167 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 Authority 7500 West 291h Avenue Wheat Ridge, Colorado 80033 Attention: Executive Director The undersigned representative of West End 38, LLC (the "Developer") hereby makes the following certifications in accordance with the terms 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 tenns used herein and not otherwise defined shall have the meanings set forth in the Redevelopment Agreement. The following conditions have been satisfied or waived in writing by the Executive Director: l. The Property has been acquired by the Developer. 2. Substantially all of the Eligible Improvements that are public improvements that Developer is required to install pursuant to the Subdivision Improvement Agreement and the site plan have been Completed. 3. An apartment complex on the Property with at least II 0 apartment units has been Completed. 4. At least 8,000 square feet 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 the 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 Certificate 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 shaJJ complete the applicable provision below and remit to Developer: The Authority hereby \·erifies that: (a) this Project Completion Certificate complies with the terms and conditions of the Redevelopment Agreement and that the conditions precedent set forth in Section 3.1 of the Redevelopment Agreement have been satisfied 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 iorth in Section 3.1 of the Redevelopment Agreement have been satisfied or waived. and/or (b) that the documentation submitted with this Certificate 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 f01th 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 RIDGE URBAN RENEWAL AUTHORITY Date: __________ _ By: __________________________________ __ Name: Title: D-2 EXHJBITE FORM OF NOTE PROMISSORY NOTE MAXIMUM AMOUNT: US $4,800,000 . 2015 FOR VALUE RECEIVED, WHEAT RIDGE URBAN RENEWAL AUTHORITY DIBIN RENEWAL WHEAT RIDGE, a public body corporate and politic 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 "Developer''), at the office of Developer, or such place as Developer may from time to time designate in writing, the maximum sum of FOUR MILLION EIGHT HUNDRED THOUSAND DOLLARS (US $4,800,000) or such lesser amount due from the Authority to Developer pursuant to the terms of the Redevelopment Agreement dated of even date herewith (the "Redevelopment Agreement") by and between the Authority and Developer, in lawful money of the United States of America. All capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed in the Redevelopment Agreement. This Note shall evidence the obligation of the Authority to pay the Reimbursement Amount to Developer in accordance with the terms and provisions 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. Notwithstanding any provisions to the contrary contained herein or in the Redevelopment Agreement, no amounts shall be due and payable under this Note unless or until the conditions precedent set forth in Section 3.1 of the Redevelopment Agreement have been satisfied or waived by the 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 terms and provisions of the Redevelopment Agreement. Upon receipt of any payments made by the Authority on this Note, Developer shall record the payments so received 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 Pledged Revenues. The Pledged Revenues are hereby pledged to the payment of this Note. The obligation to reimburse Developer for Eligible Costs, which obligation is evidenced by this Note, is and shall be a special and limited obligation of the Authority secured by an irrevocable pledge of, and payable solely from the Pledged Revenues. Developer may not look to any general or other fund of the Authority for the payment on this Note except the Pledged Revenues. This Note shall not constitute an indebte-dness, financial obligation or liability of the City or the State or any 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 sball this Note E-1 be payable out of any funds or properties other than the Pledged Revenues. Further, this Note shall not constitute a debt, indebte{}ncss, 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 of the 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 Note after delivery for value. lf any provision in this Note 1s held invalid, illegal or unenforceable in any jurisdiction, the validity, 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 the addresses given in. and in accordance with the provisions of. the Redevelopment Agreement. THE PROVISIO NS OF THIS NOTE MAY BE AMENDED OR REVISED ONLY BY AN INSTRu MENT IN \VRITING SIGNED BY TilE AUTHORITY AND DEVELO PER. IN WITNESS WHEREOF. an authonzed representative of the Wheat Ridge Urban Renewal Authority dlblaf Renewal Wheat Ridge has executed this Promissory Note as of the day and year first above wntten. [SEAL] ATTEST: Patrick Goff, Executive Director WHEAT RIDGE URBAN RENEWAL AUTHORITY K.risti Davis. Chairperson E-2 TABLE OF OUTSTANDING REIMBURSEMENT AMO UNT Total Reimbursement Amount Due Under this Note: ----- Date of Project Completion Certificate: ____ _ On each November I, the owner of this Note shall make the appropriate notation on the table below relating to the payment of 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 RI DGE , 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 City, 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 Citv. All Public Improvements for roads, concrete curb and gutters, public storm sewers and public drainage improvements accepted by the City shall be dedicated to the City and warranted for a period of twenty-four (24) months following acceptance by the City, as provided above. 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 D, 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 Developerfor 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 Jetter 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 (S EAL ) F-10 EXHIBITB WEST END 38 COOPERATION AGREEMENT BETWEEN THE CITY OF WHEAT RIDGE AND WHEAT RIDGE URBAN RENEWAL AUTHORITY THIS WEST END 38 COOPERATION AGREEMENT (this "Agreement") dated as of December 14, 2015, is made and entered into between the CITY OF WHEAT RIDGE, COLORADO (the '"City'') and the WHEAT RIDGE URBAN RENEWAL AUTHORITY d/b/a/ RENEWAL WHEAT RIDGE (the "Authority"). WHEREAS, the City is a Colorado home rule municipality with all the powers and authority granted pursuant to Article XX of the Colorado Constitution and its horne rule charter (the ·'Charter"); and WHEREAS, the Authority is a Colorado Urban Renewal Authority, with all the powers and authority granted to it pursuant to Title 31 , Article 25, Part 1, Colorado Revised Statutes C·C.R.S.") (the "Urban Renewal Law"); and WHEREAS, pursuant to Article XIV of the Colorado Constitution, and Title 29, Article l , Part 2, C.R.S., the City and the Authority are authorized to cooperate and contract with one another to provide any function, service or facility lawfully authorized to each governmental entity; and WHEREAS, an urban renewal plan known as the West End 38 Urban Renewal Plan (the "Urban Renewal Plan" or the "Plan") for the area described therein (the "Urban Renewal Area") has been prepared and will be considered for approval by the City Council of the City pursuant to the requirements of Urban Renewal Law; and WHEREAS, this Agreement shall take effect only upon the approval of the Urban Renewal Plan by the City Council of the City; and WHEREAS, West End 38, LLC (the "Developer") has acquired title to, or has a letter of intent to purchase, certain real property consisting of approximately 3.67 acres, which is located at the northwest comer of West 38th Avenue and Upham Street (the "Property"), which is in the Urban Renewal Area; and WHEREAS, the Developer has submitted a proposal to the City and the Authority to redevelop the Property (the "Project"); and WHEREAS, the Project is being undertaken to facilitate the elimination and prevention of blighted areas and to promote redevelopment, conservation and rehabilitation of the Urban Renewal Area; and WHEREAS, pursuant to section 31-25-112, C.R.S., the City is specifically authorized to do all things necessary to aid and cooperate with the Authority in connection with the planning or undertaking of any urban renewal plans, projects, programs. works, operations, or activities of the Authority, to enter into agreements with the Authority respecting such actions to be taken by the City, and appropriating funds and making such expenditures of its funds to aid and cooperate with the Authority in undertaking the Project and carrying out the Plan; and WHEREAS, the Authority and the Developer have entered into a Redevelopment Agreement dated as of October_, 2015 (the '·Redevelopment Agreement") that sets forth the rights and responsibilities of each party with respect to the financing and construction of the Project; and WHEREAS, capitalized tem1s used herein and not otherwise defined shall have the meanings set forth in the Redevelopment Agreement; and WHEREAS, under the Redevelopment Agreement, the Developer has agreed to initially fund the design, acquisition, construction and installation of certain Eligible Improvements for the Project; and WHEREAS, subject to the terms and provisions of the Redevelopment Agreement, the Developer will be reimbursed for Eligible Costs incurred on the Eligible lmprovements in a maximum amount of $4.800,000 (the ·'Reimbursement Amount") from the proceeds of the Pledged Tax Increment Revenues generated by the Project (the ''Pledged Revenues"); and WHEREAS, the Authority will execute and deliver a promissory note (the ''Note") to the Developer to evidence its obligation to pay the Reimbursement Amount, subject to the terms and provisions of the Redevelopment Agreement, which Note shall be a special and limited obligation of the Authority payable solely from the Pledged Revenues. NOW, THEREFORE, in consideration of the mutual promises set forth below, the City and the Authority agree as follows: l. COOPERATION. (a) The City shall continue to make available such employees of the City as may be necessary and appropriate to assist the Authority in carrying out any authorized duty or activity of the Authority pursuant to the Urban Renewal Law, the Plan, or any other lawfully authorized duty or activity of the Authority. (b) The City agrees to assist the Authority by pursuing all lawful procedures and remedies available to it to collect and transfer to the Authority on a timely basis all Pledged Sales Tax Increment Revenues for deposit into the Project Account of the Special Fund. The City agrees that so long as the Note remains outstanding, that by the last business day of each month that it will remit to the Authority for deposit into the Project Account of the Special Fund all Pledged Sales Tax Increment Revenues collected by the City in such month. 2 (c) To the extent lawfully possible, the City will take no action that would have the effect of reducing tax collections that constiMe Pledged Tax Increment Revenues. 2. GENERAL PROVISIONS. (a) Separate Entities. Nothing in this Agreement shall be interpreted in any manner as constituting the City or its officials, representatives, consultants. or employees as the agents of the Authority, nor as constituting the Authority or its officials, representatives, consultants, or employees as agents of the City. Each entity shall remain a separate legal entity pursuant to applicable law. Neither party shall be deemed hereby to have assumed the debts, obligations, or liabilities of the other. (b) Third Parties. Neither the City nor the Authority shall be obligated or liable under the terms of this Agreement to any person or entity not a party hereto, provided, however, that so long as the Note is outstanding. the owner of the Note shall be a third party beneficiary to the provisions hereof related to the collection and remittance to the Authority of the Pledged Sales Tax Increment Revenues. (c) Modifications. No modification or change of any prOVlSIOn in this Agreement shall be made, or construed to have been made, unless such modification is mutually agreed to in writing by both parties and incorporated as a written amendment to this Agreement. Memoranda of understanding and correspondence shall not be construed as amendments to the Agreement. (d) Entire Agreement. This Agreement shall represent the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior negotiations, representations, or agreements, either written or oral, between the parties relating to the subject matter of this Agreement and shall be independent of and have no effect upon any other contracts. (e) Severability. lf any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity. legality and enforceability of the remaining provisions shall not in any way be affected or impaired. (t) Assignment. Except as hereinafter provided, this Agreement shall not be assigned, in whole or in part, by either party without the written consent of the other; provided that this Agreement may be assigned or pledged without the written consent of the parties hereto to secure the payments due on the Note. (g) Waiver. No waiver of a breach of any provision of this Agreement by either party shall constitute a waiver of any other breach or of such provision. Failure of either party to enforce at any time, or from time to time, any provision of this Agreement shall not be construed as a waiver thereof. The remedies reserved in this Agreement shall be cumulative and additional to any other remedies in law or in equity. 3