HomeMy WebLinkAboutResolution-2004-0038
CITY OF WHEAT RIDGE, COLORADO
RESOLUTION NO 38
Series of 2004
TITLE.
A RESOLUTION APPROVING AN ANNEXATION AND
DEVELOPMENT AGREEMENT AMONG THE CITY, CABELA'S
RETAIL, INC, AND THE COORS BREWING COMPANY
WHEREAS, the City is a home rule municipality organized and operating
pursuant to Article XX of the Colorado Constitution and the Colorado Revised Statutes,
and
WHEREAS, the City is authorized to annex territory into the corporate
boundaries of the City pursuant to C R.S ~ 31-12-101, et. seq , and
WHEREAS, Cabela's Retail, Inc. and the Coors Brewing Company, as owners
and/or contract purchasers of real property in unincorporated Jefferson County
contiguous with the present City boundaries, have expressed interest in annexing said
property into the City; and
WHEREAS an Annexation and Development Agreement has been prepared
which memorializes the terms and conditions under which the City Council is willing to
consider annexation of the property; and
WHEREAS the City Council has determined that it is in the best interest of the
City that the Annexation and Development Agreement be approved
NOW, THEREFORE, BE IT RESOLVED by the Wheat Ridge City Council, that:
Section 1. The Annexation and Development Agreement among the City of
Wheat Ridge, Cabela's Retail, Inc , and the Coors Brewing Company dated December
20, 2004 (a copy of which is attached hereto as Exhibit A and fully incorporated herein
by this reference) is hereby approved, and the Mayor and City Clerk are hereby
authorized and directed to execute the same
Section 2. This Resolution shall be effective upon adoption
Section 3. Publication. This Resolution shall be published in a newspaper of
general circulation within the City of Wheat Ridge
DONE AND RESOLVED this.~ day of December, 2004
GED\53027 17\491603,1
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Gretchen Cerveny, Mayor
ATTEST
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'.Pamela Y An$rson, City Clerk
Published in the Wheat Ridge Transcript: December 30
,2004
GED\53D27 17\491603 1
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EXHIBIT A
ANNEXATION AND DEVELOPMENT AGREEMENT
[ATTACHED]
GED'53027 17\491603 1
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ANNEXATION AND DEVELOPMENT AGREEMENT
Among
The City of Wheat Ridge,
a Colorado municipal corporation,
Cabela's Retail Inc.,
a Nebraska corporation
and
Coors Brewing Company,
a Colorado corporation
Dated
December 20, 2004
T ABLE OF CONTENTS
Page
1 PARTIES .............. .. ................. . .. . .. 1
2 RECIT ALS . ............. 1
3 DEFINITIONS . . . ... 2
4. EFFECTIVE DATE AND TERM OF AGREEMENT. 6
5. DEVELOPMENT OF THE PROJECT .7
6. ZONING AND RELATED APPROVALS. . 8
7. PUBLIC IMPROVEMENTS ... . .. . 9
8 SALES TAX REVENUE SHARING AND PUBLIC IMPROVEMENT FEE 12
9 BONDS ... 18
10 ADDITIONAL INCENTIVES 19
11 SPECIAL DISTRICTS 20
12 OWNERS' ASSOCIATIONS 20
13 DEFAULT AND REMEDIES 21
14 MISCELLANEOUS 22
15. EXHIBITS 27
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ANNEXATION AND DEVELOPMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the 20th day of December, 2004
1. PARTIES
The parties to this Agreement are the City of Wheat Ridge, a Colorado municipal
corporation (the "City"), Cabela's Retail Inc , a Nebraska corporation ("Cabela's"),
and Coors Brewing Company, a Colorado corporation ("Coors")
2. RECITALS
This Agreement is entered into on the basis of the following facts, understandings and
intentions of the parties.
a. The City is a municipal corporation eXlstlllg under the laws of the State of
Colorado and its home rule charter Cabela's is a corporation, duly organized,
existing and in good standing under the laws of the State of Nebraska. Coors is
a corporatIOn, duly organized, existing and in good standing under the laws of
the State of Colorado
b. Cabela' s and Coors are either the owners, contract pun.:hasers or antiCipated
contract purchasers of the real property described in Exhibit A, attached hereto
and incorporated herein by reference (the "Property")
c Coors and Cabela's desire to annex the Property to the City and for that purpose
intend to submit (or anticipate that other necessary entities will submit) to the
City certain annexation petitions seeking simultaneous annexation of a group of
parcels that collectively constitute the Property
d. Cabela's desires to construct and operate an approximately 225,000 square foot
retail facility on the Property which will serve as a tourism destination center
specializing in hunting, fishing, camping and outdoor gear (the "Cabela's
Store"), along with the construction and operation of certain other related
buildings designed to attract other retailers to the City (the "Retail Center")
Other parcels of land owned by Coors within the Property, as shown on the
attached Exhibit B, may be developed in the future ("Coors Parcell," "Coors
Parcel 2A," "Coors Parcel 2B," "Coors Parcel 3" and "Coors Parcel 4,"
collectively "Coors Parcels") The Cabela's Store, Retail Center and the Coors
Parcels are collectively referred to as "Cabela's Project." The parties agree that
the parcel boundaries shown on Exhibit B may be adjusted upon the filing of an
Outline Development Plan for all or a portion of the Property, and that a revised
Exhibit B shall thereupon be substituted for that attached hereto
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e The Cabela's Project will be developed as a Planned Commercial Development
under the Wheat Ridge Code of Laws
f. Development of the Property will necessitate public infrastructure improvements
and public services, will contribute to the economic growth of the City, and will
increase future tax revenues received by the City, and is a development project
for which economic incentives will serve a lawful public purpose
g The parties contemplate that a portion of the sales tax revenues to be received
by the City from activities associated with the Property will be shared with a
special district that will be organized pursuant to this Agreement for the purpose
of assisting with the payment of costs for constructing public infrastructure
improvements and providing public services in consideration of the increased
tax revenues and other benefits that the City expects to realize as a result of the
annexation and development of the Property
h The parties desire to set forth in this Agreement their agreements relative to the
sharing of a portion of the City's sales tax revenue from the Property for the
purpose of funding certain public improvements
Under the Act, metropolitan districts have the power to finance the construction
of certain public improvements by issuing bonds
J The parties contemplate the creation of a metropolitan district, encompassing the
Property (the "Metropolitan District")
k. C R. S Section 31-12-121 specifically authorizes the parties to enter into this
Agreement in connection with the annexation of the Property into the City
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained here III and for other good and valuable consideration, the receIpt and adequacy of
which is hereby acknowledged by the City, Coors and Cabela's, the parties agree as follows
3. DEFINITIONS
As used in this Agreement, unless specifically stated otherWise, the words and phrases
used shall have the meaning as defined in the Wheat Ridge Code of Laws For the
purpose of this Agreement the following words and phrases shall have the definitions
provided for below
a "Act" means the Special District Act, Colorado Revised Statutes ~ 32-1-101,
et~
b "Agreement" means this Annexation and Development Agreement
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c "Annexors" means Cabela's and Coors, provided, however, it shall also include
any other party that subsequently submits an annexation petition to the City for
purposes of annexing any portion of the Property
d. "Bond Indenture" means the definitive agreement entered into by the
Metropolitan District and the Trustee which provides for the issuance of the
Bonds in accordance with the terms set forth in this Agreement.
e "Bonds" means the bonds issued by the Metropolitan District in accordance with
the terms of the Act, which shall consist of Tax-Free Bonds to the greatest
extent possible, with the remainder consisting of Taxable Bonds
f "Cabela's" means Cabela's Retail, lnc, a Nebraska corporation, and its
successors or assigns
g "Cabela's Project" has the meaning ascribed to it in Section 2 d
h "Cabela's Store" has the meaning ascribed to it in Section 2 d
"CDOT" means the Colorado Department of Transportation
J "CIty" means the City of Wheat Ridge, Colorado, a home rule municipal
corporation.
k. "Coors" means Coors Brewing Company, a Colorado corporation
"Coors Parcel I," "Coors Parcel 2A," "Coors Parcel 2B," "Coors Parcel 3,"
"Coors Parcel 4," and "Coors Parcels" have the meanings ascribed to such
terms in Section 2 d
m "Council" means the City Council of the City as that body may be constituted
from time to time
n "County" means Jefferson County, Colorado, a county established under the
provisions of Colorado law
o "Final Development Plan" means a Final Development Plan, as described m
Section 26-308 D of the Wheat Ridge Code of Laws
p "Final Plat" means a final subdivision plat submitted by Cabela's and approved
by the City as part of the subdivision process for any part of the Property,
pursuant to the provisions of the Wheat Ridge Code of Laws, Section 26-401
et~
lJ "Force Majeure" means and shall be limited to an event which is beyond the
reasonable control of Annexors or the City and which causes a delay or failure
to perform obligations hereunder, including, without limitation, acts of God,
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earthquake, fire, explosion, war, civil insurrection, acts of the public enemy,
acts of civil or military authority, sabotage, terrorism, floods, lightmng,
hurricanes, tornadoes, severe snow storms, major equipment failure, utility
disruption, failure of a major supplier to perform its obligation to an Annexor
not arising out of or involving a failure toward such supplier by an Annexor,
strikes, lockouts or other labor disputes with respect to which an Annexor has
not been determined by the National Labor Relations Board to have engaged in
any unfair labor practices, or change in law or the interpretation thereof by
responsible authority which shall prohibit any change in the operation of the
Cabela's Project or materially increase the costs of the foregoing beyond those
foreseeable on the date hereof, so long as, in any such case (i) such events are
beyond the reasonable control of, and should not in the exercise of reasonable
caution have been foreseen and avoided or mitigated by the subject Annexor or
the City, as applicable, and (ii) the subject Annexor or the City, as applicable, is
using its best reasonable efforts to remedy the effects thereof
r "Metropolitan District" means the metropolitan district the parties anticipate will
be established following annexation of the Property to the City The
Metropolitan District service plan shall provide that the Metropolitan District
shall exist for a term not to exceed forty-two (42) years along with such other
customary and necessary provisions to reflect the obligations of the Metropolitan
District in accordance with state law and the terms set forth in this Agreement
s "PCD" means Ihe Planned Commercial District as defined in the Wheat Ridge
Code of Laws
1. "PCD final Plan" means Cabela's Planned Commercial District final
Development Plan, as defined in the City's Planned Development Regulations,
and the accompanying exhibits
u "PCD Plan" means Cabela's Planned Commercial District plan as defined in the
Planned Development Regulations Such PCD Plan for the Property includes the
PCD Outline Development Plan, all PCD final Plans and such other graphic
and written documents designated by the Council at the time of annexation of
the Property and approval of the PCD Outline Development Plan, with all
conditions that may be attached to such approvals
v "PCD Outline Development Plan" means Cabela's Planned Commercial District
Outline Development Plan, as defined in the City's Planned Development
Regulations, and the accompanying exhibits
w "Planned Development Regulations" shall mean SectIOns 26-30 I, et ~ of the
Wheat Ridge Code of Laws, as well as all other sections of the Wheat Ridge
Code of Laws referred to therein.
x "Property" has the meaning ascribed to it in Section 2 b
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y "Public Facihties" means those portions of the Property and buildmg comprising
the Cabela's Store that are owned by the Metropolitan Distnct and available and
used primarily by the general public
z "Public Improvements," includes the Public Infrastructure, the Public Roadway
Improvements and the Public Facilities
aa "Public Improvement Fee" has the meaning ascribed to it in Section 8 b
bb "Public Improvement Fee Revenue Bonds" has the meaning ascribed to it III
Section 8. b
cc "Public Infrastructure" means, within the service area of the Metropolitan
District, the design and construction of the utilities, drainage improvements and
such other similar items as agreed upon by the parties
dd "Public Roadway Improvements" means the design and construction of any
access interchanges, ramp improvements, road widening and other roads or
streets deemed reasonably necessary to improve access to the Cabela's Project,
as further described on Exhibit E under the heading "Public Roadways."
ee "Retail Center" has the meanmg ascribed to it in Section 2 d
ff "Service Plan" has the meaning ascribed to it III Section 11 b
gg "Shared Sales Tax" has the meaning ascribed to it in SectIOn 8 a.
hh "Shared Sales Tax Revenue Bonds" has the meaning ascribed to it III
Section 8 a
1J "State" means the State of Colorado
JJ "Subdivision Regulations" means those regulations adopted by the City pursuant
to C R S Section 31-23-201, et seq, and now contained in Chapter 26,
Article 4 of the Wheat Ridge Code of Laws, as the same may be amended from
time to time by ordinance of general applicability throughout the City
kk "Taxable Bonds" means the portion of Bonds to be used for acquisition and/or
construction of Public Improvements in conjunction with the Cabela's Project
which do not quahfy for federal tax-exemption. The Taxable Bonds are
expected to be taxable, have a maturity not to exceed forty (40) years, and shall
bear interest at a rate or rates to be set forth III the Service Plan of the
Metropolitan District
II. "Tax-Free Bonds" means the portion of Bonds to be used for acquisition and/or
construction of Public Improvements in conjunction with the Cabela's Project
which do qualify for federal tax-exemption The Tax-Free Bonds are expected
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to be tax-exempt, have a maturity not to exceed twenty-five (25) years, and shall
bear interest at a rate or rates to be set forth in the Service Plan of the
Metropolitan District. The parties hereby agree that the Tax-Free Bonds shall
only be tax-exempt to the extent permitted under the United States Internal
Revenue Code of 1986, as amended. Upon or before issuance of the Bonds,
bond counsel to the Metropolitan District shall provide a customary opinion with
regard to the tax-exempt status of the Tax-Free Bonds In the event that the
Tax-Free Bonds are ever deemed taxable, the interest shall automatically adjust
to provide the rate of interest earned on Taxable Bonds for any period that the
Tax-Free Bonds are deemed taxable
mm "Training Grant" means any federal or state employee tramlllg grant for the
training of non-point-of-sale employees who will work in the Cabela's Store
nn "Trustee" means the trustee appointed to serve in such role in accordance with
the Bond Indenture
00 "Wheat Ridge Code of Laws" means the municipal code and ordinances of the
City of Wheat Ridge, Colorado as adopted and as amended from time to time by
the Council
4. EFFECTIVE DATE AND TERM OF AGREEMENT
a. This Agreement shall be effective upon execution by the Parties. The term of
this Agreement shall be forty-tive (45) years from the date of this Agreement,
unless earlier terminated as provided herein. After the expiration of the term or
earlier termination, this Agreement shall be deemed terminated and of no further
force and effect, provided, however, such termination shall not affect (a)
annexation of the Property into the City, (b) any right arising from City permits,
approvals or other entitlements for the Property which were granted or approved
prior to, concurrently with, or subsequent to the approval of this Agreement and
that were contemplated to continue after termination of this Agreement, (c)
except as otherwise set forth in this Agreement, construction, maintenance and
repair of Public Improvements, (d) repayment of the Bonds, or (e) any
continuing rights to share in the Public Improvement Fee Despite such
expiration and notwithstanding any provision of the Wheat Ridge Code of Laws
to the contrary, the zoning of the Property shall remain the same as it existed
under the PCD Outline Development Plan, except no further permits or
approvals, including but not limited to Final Development Plans, Final Plats or
building permit approvals, shall be granted by the City until the City has
approved a new or amended Development Agreement which may include an
amended Outline Development Plan for the Property or a portion thereof and the
necessary subdivision improvements agreements have been executed and
security has been provided
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S. DEVELOPMENT OF THE PROJECT
a. Development of Cabela's Project. Cabela's or its assigns intends to acquire (i)
approximately eighty (80) acres of real estate in unincorporated Jefferson
County, Colorado from Coors, (ii) approximately thirty-six (36) acres of real
estate in unincorporated Jefferson County, Colorado (located adjacent to the
Coors parcel) from the County, (iii) approximately two (2) acres of real estate in
the City of Wheat Ridge, Colorado (located adjacent to the Coors parcel) from
Dwaine R. Richter and/or 70 WBC, LLC and (iv) approximately seven (7) acres
of real estate in unincorporated Jefferson County, Colorado (located adjacent to
the Coors parcel) from William 1. Salter, Jr , Beverly J Salter and Melvin J
Salter, all for Cabela's development of the Cabela's Store and the Retail Center
which shall be located within the Property in the approximate locations depicted
on Exhibit B attached hereto Cabela's will acquire, construct, furnish and
equip the Cabela's Store, provided, however, Annexors' obligations under this
Section shall be (i) contingent upon Cabela's or its assigns entering into a
binding real estate agreement with each of Coors, Jefferson County, Richter and
Salter to purchase the property described above, (ii) contingent upon the
fulfillment of the other terms of this Agreement by the other parties hereto and
(iii) subject to delay, but not cancellation, to the extent such delay is caused by
Force Majeure Cabela's expects that it or its assigns will sell a portion or
portIOns of the remaining land owned or to be owned by Cabela' s that is located
in the boundanes of the Property to complementary retail and commerCial
ventures such as restaurants, a hotel and water park and/or in-line retail stores
with a variety of retail tenants Similarly, subject to compliance with the City's
Subdivision Regulations, Coors may sell all or portIOns of the Coors Parcels in
connection With further development of those parcels described in Section 5. c
The City's obligations under this Agreement are contingent upon the disclosure
by Cabela' s and Coors of purchase and sale agreements and any development
agreements related to the Property entered into by Cabela's, Coors, their
affiliates or subsIdianes, as those agreements affect the rights and obligations of
the City herein The City hereby acknowledges that, as requested by Cabela's
and Coors, all such information shall be subject to the confidentiality provisions
of C R S ~ 24-72-204(3)(a)(IV) to the full extent permitted by law
b Completion of Cabela's Store Cabela's shall open the Cabela's Store on or
before September 30, 2006, provided, however, said completion date is subject
to delays caused by Force Majeure or the failure of the City to fulfill its
obligations as contemplated in this Agreement
c Phases Although all of the Property is expected to be annexed by the City at
the same time, the parties acknowledge that there will probably be more than
one annexation petition filed by the Annexors, thereby resulting in a series of
simultaneous annexations Additionally, the parties acknowledge that the
Property will probably be developed in multiple phases which can generally be
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described as follows (i) the Cabela's Store; (ii) the Retail Center; and (iii) each
or all of the Coors Parcels. The City agrees such phased development is
appropriate under the applicable terms of this Agreement and the PCD Outline
Development Plan.
d. Reserved.
e After the expiration or termination of this Agreement, the zoning of all parts of
the Property shall continue and remain in effect as provided in the PCD Outline
Development Plan unless and until rezoned by the owner or the City as provided
for in Chapter 26 of the Wheat Ridge Code of Laws subject to Section 4 a.
f Creation of Jobs, Job Training Opportunities. Cabela's agrees that, upon
opening the Cabela's Store, it shall employ at least 320 full-time equivalent
employees in the Cabela' s Store at wage levels and benefits consistent with area
wage levels and benefits for appropriate skills (plus benefits for full-time
employees consistent with industry standards) For purposes of this Section, a
"full-time equivalent employee" shall mean either (i) one (1) individual who
works for a period of not less than forty (40) hours per week or (ii) two (2) or
more individuals who work for a period of not less than forty (40) hours per
week in the aggregate In addition to Force Majeure, Cabela's obligations
under this SectIOn shall be subject to availability of qualified employees
6. ZONING AND RELATED APPROVALS
a Project Plan Approval, Zoning; Suitability The City shall use reasonable
efforts consistent with applicable law to support and approve the Cabela's
Project and the creation of the Metropolitan District as contemplated by this
Agreement and the further development of the Coors Parcels by Coors or its
successors and assigns in a manner consistent with the overall development plan
contemplated by the PCD Outline Development Plan and execute and deliver all
necessary documents or instruments contemplated by or related to this
Agreement Annexors acknowledge that they shall make their own independent
investigation as to the suitability of the Property for purposes of developing the
Cabela's Project and any future projects to be developed on the Coors Parcels,
and further acknowledge that they have not relied upon any representations or
warranties by the City With regard to such suitability In the event that Cabela's
determines that the Property is not suitable for development of the Cabela's
Store for any reason (including, but not limited to, title issues, environmental
conditions, soil conditions, access to utilities, planning or zonmg), then Cabela's
may, in its sole and absolute discretion, terminate this Agreement without
penalty and without further obligation of either Annexor to the City hereto
Such termination must take place, if at all, prior to the date of final public
hearing on an ordinance annexing all or part of the Property
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b Permitted Uses The land uses for the Property shall be only as specified in the
approved PCD Outline Development Plan No different or additional uses shall
be permitted, unless approved by the City's Director of Community
Development as provided in the Wheat Ridge Code of Laws or through an
amendment to the PCD Outline Development Plan or Final Development Plan
pursuant to the provisions of the Wheat Ridge Code of Laws in effect at the time
of such amendment The Coors Parcels will be designated for future
commercial, retail, office, warehouse, and/or recreational use as further detailed
on the PCD Outline Development Plan. A portion of Coors Parcel 1 will be
designated for use as a private reservoir
c Restrictive Covenants Cabela's will cooperate with the owners of other
properties within the Property to prepare and record covenants and restrictions
reasonably acceptable to the City to govern development within the Property
(" Covenants") The Covenants shall be in a form substantially similar to those
attached hereto as Exhibit C The Covenants shall include, but not be limited
to, a restriction against any other retailers in the Retail Center who specialize in
selling hunting, fishing, camping, and outdoor gear
d Open Space and Trails Open space and trails shall be provided as set forth in
the PCD Outline Development Plan. Certain trails currently located in the
vicinity of Coors Parcel 2B and Coors Parcel 3 may be relocated to
accommodate development of the Property No area that has been designated as
open space or trails shall subsequently be subdivided No open space or trail
requirement will be imposed on any particular Coors Parcel except with respect
to a Final Development Plan approved for that Coors Parcel The prohibition
against subsequent subdivision of open space or trails shall appear on the face of
any Final Plat that contains open space or trails and shall be indicated as a
covenant running with such land.
e Review Process The City agrees to prOVide fast-track approval to the greatest
extent possible when reviewing the PCD application, establishing the
Metropolitan District, and reviewing any necessary rights-of-way or easements
for the Roadway Improvements The City agrees, within the constraints
imposed by its Code of Laws, to execute and deliver all necessary documents or
instruments contemplated by or related to this Agreement
7. PUBLIC IMPROVEMENTS
a. Conslruction, Maintenance and Repair The Metropolitan District shall be
responsible for the acquisition and/or construction of all of the Public.
Improvements and such other improvements which may be subsequently agreed
upon by the parties to this Agreement. The City shall accept dedication of and
be responsible for all maintenance on Cabela Drive and the 40th A venue
Extension (as both are defined below in Section 7 b) The Public Roadway
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Improvements located outside the Property shall be dedicated to and maintained
by the City, the County or CDOT, as may be agreed upon by those entities
The Metropolitan District shall maintain all Public Improvements within the
Property except Cabela Drive and the 40th A venue Extension. The Public
Roadway Improvements shall be constructed and mamtained using standards
approved by the City The Metropolitan District may contract with other
parties, including without limitation the City, CDOT, the County and/or the
Annexors, to undertake some or all of its obligations under this Section, with
the prior approval of the City The City shall provide police protection to the
Property in a manner consistent with the normal level of services provided by
the City with regard to similar areas of the City located outside the Metropolitan
Distnct
b Public Roadway Improvements
1) The following constitutes the Public Roadway Improvements (i) a new
road with two to five lanes (including three lanes through Coors
Parcel 2B and Coors Parcel 3 and two lanes from Coors Parcel 2B west
to McIntyre Street) to connect 32nd Avenue to McIntyre Street ("Cabela
Drive"), (ii) the widening of 32nd Avenue by adding one lane in each
direction from Youngfield Street to 1-70 Service Road West, including
widening under the 1-70 bridges, (iii) the construction of transitioning
pavement improvements on 32nd A venue from 1-70 Service Road West
to Alkire Street, (iv) the addition of lanes on the west-bound off and on
ramps and the east-bound off-ramp of the 1-70/32nd A venue Interchange,
(v) the widening of Y oungfield Street to provide double left turn lanes
onto 32nd A venue for north-bound traffic, (vi) a 3-1ane underpass under
I -70 connecting the Property with 40th A venue at Y oungfield Street,
including an extension of 40th A venue into the Property to Cabela Drive
for this purpose (the "40th Avenue Extension"), and (vii) reconstruction
of the intersection of the South SH 58 Frontage Road at McIntyre Street
(the "McIntyre Intersection (roundbout)" and "McIntyre Extension
Road" as shown on Exhibit E) to accommodate the traffic projected for
Cabela Drive All of the Public Roadway Improvements are further
described on Exhibit E under the heading "Public Roadways"
2) Cabela's shall assist the CIty in conforming With the CDOT Policy 1601
concerning improvement of the 1-70/32nd A venue Interchange by
providing the engineering services required, the costs of which shall be
funded by Bonds
3) CDOT, the City, the County and Cabela' s shall have an opportunity to
review and approve the deSign of the Public Roadway Improvements to
he constructed by or under the direction of the Metropolitan District to
assure that such Improvements Will be constructed in accordance with
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approved jurisdiction standards and will accommodate the anticipated
traffic to, and development within, the Property. The Metropolitan
District, Cabela's and the City shall enter into any agreements or take
any actions deemed reasonably necessary to bring about construction of
the work described in this Section (including, but not limited to, any
eminent domain or condemnation actions which may be necessary to
acquire right-of-way or easements for said work, the costs of which
eminent domain or condemnation shall be made a part of the costs of
construction funded by the Bonds).
4) After the Public Roadway Improvements outside the Property are
complete and CDOT, the County and/or City have determined that the
Public Roadway Improvements meet their standards, the Metropolitan
District shall convey and it is expected that CDOT, the County and/or
the City (as appropriate) shall accept dedication of and shall maintain
those Public Roadway Improvements, provided, however, the
Metropolitan District shall maintain all of the Public Roadway
Improvements within the Property (except Cabela Drive and the 40th
A venue Extension) in a manner consistent with the City's maintenance
standards The Metropolitan District will cease to eXist 42 years after its
formation, after which time, all Public Roadway Improvements will be
maintained by the entity which has accepted dedicatIOn of the same
c Public Infrastructure The Parties agree that a Master Drainage Plan shall be
developed and delivered to the City concurrently with the first Final Plat. Any
Final Development Plan, Final Plat or other development shall comply with the
Master Drainage Plan. Any amendments to the Master Drainage Plan shall be
subject to review and approval by the City In the event that a discharge permit
under the Clean Water Act (33 U S C Sections 1251, et ~) or any other
discharge permit is required by a federal, state or local governmental agency,
Cabela's or the Metropolitan District shall be responsible for obtaining such
permits, the costs of which shall be funded by the Bonds The City agrees to
cooperate with Cabela' s and the Metropolitan District in their application for
these permits When the Metropolitan District ceases to exist, the Public
Infrastructure shall be dedicated to and maintained by the property owner, the
City or other governmental entities or utility providers, as appropriate
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d Public Facilities
1) The Metropolitan District shall acquire and/or construct or be
responsible to acquire and/or construct the Public Facilities. Such
facilities shall be available for use by all residents of the City and such
other persons as the Metropolitan District deems appropriate, subject to
such fees or charges, if any, as may be imposed by the Metropolitan
District from time to time
2) In order to determine which portions of the building compnsmg the
Cabela's Store shall constitute Public Facilities, the Cabela's Store shall
be platted as a condominium and the Public Facilities Within the building
comprising the Cabela's Store shall be designated as a separate unit in
said condominium and shall be deeded to the Metropolitan District. The
Public Facilities in the Cabela's Store shall be owned, operated and
maintained by the Metropolitan District or a designee of the Metropolitan
District. It is anticipated that the Public Facilities in the building
comprising the Cabela's Store will be exempt from ad valorem taxation
by virtue of ownership by the Metropolitan District
3) Cabela's and the Metropolitan District may enter into a management
agreement under which Cabela's will assume certain responsibilities for
maintenance, operation and improvement of the Public Facilities To the
extent Tax-Free Bonds are issued to finance Public Facilities, such
management agreement must comply with the qualified management
contract guidelines set forth by the Internal Revenue Service
e Timing of Public Improvements The parties hereby agree that they will work
in good faith with each other to ensure that the Public Improvements are
acquired and/or constructed in a manner and timing sequence that (i) utilizes
resources in a logical and efficient manner, (ii) minimizes delays on other
portions of the overall Cabela's Project, (iii) complies with all necessary
requirements of governmental entities with jurisdiction over the various aspects
of the Public Improvements and (iv) allows the parties to fulfill their respective
obligations in a timely manner under this Agreement.
8, SALES TAX REVENUE SHARING AND PUBLIC IMPROVEMENT FEE
a Effective January I, 2005, the City will assess a sales tax at a rate of 3%
pursuant to the provisions of Chapter 22 of the Wheat Ridge Code of Laws
The parties anticipate an increase in the City's total sales tax revenues as a result
of the development of the Property pursuant to this Agreement Accordingly,
the City agrees to share a portion of the sales tax revenues from sales occurring
within the Property The amount to be shared shall be that portion of the City's
sales tax generated from the Property at a rate of one and one-tenth percent
273U9U 4
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(1 1 %) (the "Shared Sales Tax") for a term which shall expire on the earlier to
occur of (i) the date upon which the principal and interest has been paid on
Tax-Free Bonds issued by the Metropolitan District to pay for the Public
Improvements listed in Exhibit E (the "Shared Sales Tax Revenue Bonus") or
(Ii) twenty-five (25) years after the date the Shared Sales Tax Revenue Bonds
are issued As of the date of this Agreement, the parties believe that the Public
Improvements listed in Exhibit E will cost Eighteen Million One Hundred
Twenty-Eight Thousand Two Hundred Twenty-Four and No/lOO
($18,128,224.00) The parties further agree these costs will continue to be
revised and better determined in the months ahead as the various engineers and
advisors who are working on the Cabela's Project further define the necessary
scope and costs of the Public Improvements Accordingly, the City hereby
agrees that Shared Sales Tax Revenue Bonds may be issued in an amount up to
(i) Eighteen Million Five-Hundred Thousand and No/lOO Dollars
($18,500,00000) based on the current costs set forth in Exhibit E without any
further approval required by the City on such amount and (ii) up to an additional
Two Million and No/lOO Dollars ($2,000,000 00) (for a total of Twenty Million
Five-Hundred Thousand and No/lOO Dollars ($20,500,00000) of Shared Sales
Tax Revenue Bonds) if the City first approves a resolution to authorize such
additional expenditures The Shared Sales Tax shall be used solely to pay
pnncipal and Illterest on the Shared Sales Tax Revenue Bonds to be issued by
the Metropolitan DIstrict in a principal amount not to exceed (i) Eighteen
Million Five-Hundred Thousand and No/lOO Dollars ($18,500,00000) without
further approval by the City or (ii) up to Twenty Million Five-Hundred
Thousand and No/lOO Dollars ($20,500,000 00) if approved by the City as
permitted above. The interest rate borne by the Shared Sales Tax Revenue
Bonds from time to time shall not exceed the rate specified for Tax-Free Bonds
as set forth in the definition thereof and the term thereof shall not exceed
twenty-five (25) years
b In addition, Annexors will impose by covenant or lease a public improvement
fee of 1.4 % while the Shared Sales Tax Revenue Bonds are outstanding and
1 5 % thereafter during the remaining term of the Public Improvement Fee (as
set forth in Section 8 p) on all sales occurring within the Property (the "Public
Improvement Fee") The Annexors acknowledge that the City's sales tax will
be charged on the combined total of the subJect sales transaction and the Public
Improvement Fee payable with respect to such transaction The Public
Improvement Fee shall be used by the Metropolitan District to pay the cost to
acquire, construct, install and maintain the portions of the PublIc Improvements
for which the Metropolitan District is responsible, and for 'W hich Shared Sales
Tax Revenue Bonds are not to be used The Metropolitan District may issue
Tax-Free or Taxable Bonds to finance the costs of Public Improvements not
financed with Shared Sales Tax (the "Public Improvement Fee Revenue
Bonds") In the event that (i) the Shared Sales Tax Revenue Bonds are not paid
in full twenty-five (25) years after the Shared Sales Tax Revenue Bonds are
13
Issued or (ii) the Public Improvement Fee Revenue Bonds are paid in full prior
to the Shared Sales Tax Revenue Bonds being paid in full, then the Public
Improvement Fee shall be used by the Metropolitan District to pay principal and
interest on the Shared Sales Tax Revenue Bonds. The Shared Sales Tax
Revenue Bonds shall only be used to pay the costs of the Public Improvements
as described in Exhibit E and as permitted by Section 8 a and the Shared Sales
Tax shall be used only to pay principal and interest on such Shared Sales Tax
Revenue Bonds All other costs incurred by the Metropolitan District to
acquire, construct, install, maintain or finance the cost of Public Improvements
shall be paid with the Public Improvement Fee The Public Improvement Fee
Revenue Bonds shall be used to acquire or construct Public Improvements. As
of the date of this Agreement, the parties believe that the Public Improvements
to be funded by the Public Improvement Fee Revenue Bonds will cost Twenty-
Eight Million Nine Hundred Ninety-One Thousand Three Hundred Eleven and
No/lOO ($28,991,311.00). The parties further agree that these costs will
continue to be revised and better determined in the months ahead as the various
engineers and advisors who are working on the Cabela's Project further define
the necessary scope and costs of the Public Improvements Accordingly, the
City hereby agrees that the Public Improvement Fee Revenue Bonds may be
issued in an amount up to 0) Thirty Million and NollOO Dollars
($30,000,000 00) without any further approval required by the City on such
amount ami (ii) up to an additional Five Million and No/lOO Dollars
($5,000,00000) (for a total of Thirty-Five Million and No/lOO Dollars
($35,000,000 00) of Publ1c Improvement Fee Revenue Bonds) if the City first
approves a resolution to authorize such additional expenditures Such Public
Improvement Fee Revenue Bonds may have a term not to exceed forty (40)
years, shall bear interest at a rate not to exceed the rate specified for Taxable
Bonds or Tax-Free Bonds, as applicable, and shall be payable from the Public
Improvement Fee in accordance with such other terms and conditions the
Metropolitan District shall reasonably establish not inconsistent with this
Agreement or the Service Plan.
c. The City agrees that if its sales tax rate is lowered as a result of a change in the
overall tax scheme utilized by the City, the City will, to the extent permitted by
law, revise this Agreement to replace the Shared Sales Tax that would have
otherwise been payable to Metropolitan District under the current tax scheme
d. All payments made to the Metropolitan District under the proVisions of thiS
Section shall be made Within thirty (30) days of the receipt of such funds by Ihe
City The City shall not have any liability for payment of the Bonds The
City's responsibililies shall be limited to remitting the Shared Sales Tax and the
Public Improvement Fee to the Metropolitan District as provided in and subject
to the proviSIOns of this Agreement
e Reserved
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f The City agrees to separately account for all of the Shared Sales Taxes upon
receipt. All payments from the City pursuant to the provisions of this Section
shall be made from the Shared Sales Tax.
g The City agrees to enforce and collect the sales taxes to be shared under the
provisions of this Section no less diligently than elsewhere in the City. The
Annexors acknowledge that the tax returns filed by individual retailers and the
individualized information derived therefrom are confidential and the Annexors
agree not to request such returns from the City unless a waiver of confidentiality
has been granted by the respective retailer to the City If a retailer provides a
waiver of confidentiality to the City, the City shall share the retailer's tax return
information with the Metropolitan District.
h Within 75 days of the end of each City fiscal year, the City shall deliver to the
Metropolitan District and to Cabela's a statistical report of all sales taxes
received in such fiscal year from the Property (classified to prevent the
identification of a particular return or report unless a waiver of confidentiality
has been obtained from any Identified retailer)
Cabela's or the Metropolitan District shall have the right to audit or contest, at
its sole expense, the City's computation of Shared Sales Tax However, under
no circumstances shall the City or its representative be under any obligation in
connection with such audit to disclose individual sales tax returns or reports or
any information or documents from which individual sales taxes could be
ascertallled or determined, as the parties recognize that such individualized
information is confidential and cannot be disclosed unless a waiver of
confidentiality has been obtained from any identified retailer Except in the case
of contests for which Cabela' s has alleged breach of this Agreement, audits shall
not occur more than once annually at the time the City subjects its records to
audits required by state law In cases of contest for which Cabela's has alleged
breach of this Agreement, Cabela' s may conduct an additional audit at its
expense
J Within 75 days of the end of each fiscal year the Metropolitan District shall
provide the City with a full and complete accounting of the expenditure of all
funds received by the Metropolitan District under the provisions of this Section
during the previous fiscal year, in sufficient detail to enable the City to confirm
that all expenditures were made for the purposes authorized by this Agreement.
k Nothing herem shall be construed in any manner to limit the right of the
Annexors, their respective successors or assigns, or any nonprofit organization,
public entity (including the Metropolitan District), owners' or tenants'
association, or similar entity, to impose or collect, or cause to be imposed or
collected, public improvement fees, taxes, assessments or similar charges for
15
27311911 4
the purpose of providing, operating or maintaining infrastructure or amenities to
serve the Property
Any payments by the City under this Section shall be expressly subject to annual
appropriation by the City actmg III its sole and exclusive discretion, provided,
however, that it is the present intent and expectation of the parties that the City
will in fact make all of the payments contemplated by this Agreement None of
the payment obligations of the City hereunder shall be required to be paid from
any source other than Shared Sales Taxes as set forth in this Section. The City
Manager or any other officer or employee of the City charged with the
responsibility for formulating the proposed budget of the City, is hereby
directed to include in the budget proposal submitted to the Council in each year
this Agreement is in effect, amounts sufficient to pay the Shared Sales Taxes, to
the full extent that the City shall have received such amounts or reasonably
anticipates receiving such amounts payable under this Agreement
m. Prior to the opening of the Cabela' s Store the City will take the necessary action
to temporarily waive nine-tenths of one cent of its Ihree cent sales tax on
transactions within the Property After the principal and interest on the Shared
Sales Tax Revenue Bonds have been paid in full or the term during which the
City has agreed to remit the Shared Sales Tax to the Metropolitan District has
expired, if Public Improvement Fee Revenue Bonds are outstanding, the City
will take the necessary actIOn to increase the amount of Its sales tax that is
temporarily waived to one cent At such time the Public Improvement Fee may
be increased to 1 5 % Upon the earlier to occur of (i) the payment of principal
and interest on Bonds issued to acquire and/or construct the Public
Improvements described in this Agreement or (ii) forty (40) years after the date
the first series of Bonds are issued to acquire and/or construct the Public
Improvements described in this Agreement, the temporary waiver of a portion
of the City's Sales Tax shall cease and the City shall be entitled to collect the
full amount of its sales tax The waiver of a portion of the City's sales taxes as
described to this Section 8 is intended to be temporary only and not a change in
the City's tax policy pursuant to applicable law In the event the City is unable
for any reason to remove the temporary waiver of a portion of its sales tax after
the Bonds are paid in full or expire in accordance with their terms, the
Annexors agree to continue the imposition of the Public Improvement Fee for
such period of time and in an amount sufficient to reimburse the City for any
revenue lost by the City due to the temporary waiver of the City sales tax
n If the City should mcrease its sales tax above the three percent (3 %) rate, then
the City will take the appropriate action to temporarily waive an additional
portion of its sales tax to the extent necessary to cause the total of a\l sales taxes
and the Public Improvement Fees charged on transactions occurring within the
Property (the '"Total Project Tax and Fee") not to exceed the greater of (i) eight
and one-tenth percent (8 1 %), or (\1) the average sales tax and other fees then
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273090 4
being charged within those cities within the Denver metropolitan area listed on
Exhibit D (the "Comparable Cities"). For example, if the City raises its sales
tax to 3 5 % and such City sales tax when combined with other sales taxes and
the Public Improvement Fee equals 86% and the average sales taxes and other
fees Within the Comparable Cities is then 7 9%, the City will temporarily waive
an additional .5 % of its sales tax such that the total of the sales taxes and other
fees charged on sales within the Property will be 8 1 % Conversely, in the
event that the average sales tax and other fees being charged by the Comparable
Cities (the "Comparable City Average") increases above 8 1 %, the City may
decrease its waiver of sales tax such that the Total Project Tax and Fee equals
the Comparable City Average
o The City agrees initially to receive the Public Improvement Fee on behalf of the
Annexors (and any other owner of Property) and the Metropolitan District. In
doing so, the City will be entitled to charge, and will be paid by the Annexors
or the Metropolitan District, a fee or reimbursement in an amount not to exceed
the City's costs of collecting and remitting the Public Improvement Fee
revenues So long as the City is providing such services, any retailer will be
required to prepare and file two returns with the City, one for sales taxes and
one for the Public Improvement Fees The City will not umlertake to collect or
enforce collection of any Public Improvement Fees not received by it, but shall
report, to the extent the City has such information, any retailer to the
Metropolitan District who does not remit Public Improvement Fees to the City
consistent with the amounts owed Either the City or the Metropolitan District
will be entitled to terminate the City's services upon not less than 180 days'
prior notice to the other party The City agrees to cooperate with the
Metropolitan District to (I) determine the timing of payment of the Public
Improvement Fees to the City, (ii) produce and update materials for retailers
collecting the Public Improvement Fees stating the procedures related thereto
and providing reporting forms, (iii) develop procedures for advising the City of
those retailers subject to the Public Improvement Fees, (iv) develop procedures
for adjusting the Public Improvement Fees for refunds and other post-sale
events, and (v) take any other actions reasonably necessary to allow for the
orderly and uninterrupted collection of Public Improvement Fees, provided
however, that any costs incurred by the City ill connection with the provision of
any other services agreed to III accordance herewith will be paid to, or deducted
by, the City from the Public Improvement Fees received by it The City
authorizes the City Manager to enter into such agreement or agreements as may
be necessary or appropriate to implement the provisions of this Section 8
p The Pubhc Improvement Fee may be imposed for a term not to exceed forty
(40) years from the date of issuance of the initial series of Public Improvement
Fee Revenue Bonds
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273UYlI 4
9. BONDS
a. Issuance and Purchase of the Bonds The Metropolitan District shall issue, and
Cabela's agrees that it or an affiliate or assignee shall purchase from the
Metropolitan District, Bonds in an original principal amount determined by
mutual agreement of the City and Cabela's based on a reasonable determination
of the Public Improvements to be financed with the Bonds and the cash flow
available to the Metropolitan District to pay principal and interest on the Bonds.
The Bonds will be payable solely from the pledged revenues as available from
year to year and it shall not be an event of default under the Bond Indenture or
the Bonds if such pledged revenues are insufficient to pay principal and interest.
Proceeds of the Bonds will be used by the Metropolitan District to fund the
acquisition, construction and installation of the Public Improvements and the
financing costs associated therewith. Cabela's or its assigns will initially
purchase and hold the Bonds for its/their own account, but it/they may later sell
the Bonds in accordance with any restrictions set forth in a Bond Indenture
between the Metropolitan District and the Trustee for the Bonds
b The City will reasonably cooperate with the Metropol1tan District in adopting
and approving the necessary proceedings to enable the Metropol1tan District to
deliver the Bonds and thereby facilitate the Metropolitan District's construction
of the Public Improvements
c The City agrees that all Shared Sales Taxes and the Annexors agree that all
Public Improvement Fees, with the concurrence of the Metropolitan District,
may be remitted to a Trustee within thirty (30) days after said Shared Sales
Taxes or Public Improvement Fees are collected by the City The Bond
Indenture for the Shared Sales Tax Revenue Bonds will provide that the Trustee
will then utilize Shared Sales Taxes to pay principal and interest on the Shared
Sales Tax Revenue Bonds The Bond Indenture for the Public Improvement Fee
Revenue Bonds will provide that the Trustee will then utilize Public
Improvement Fees to pay principal and interest on (i) the Public Improvement
Fee Revenue Bonds and (ii) as set forth in Section 8 b, the Shared Sales Tax
Revenue Bonds Cabela's or its assigns shall not be required to guarantee
payment of any of the Bonds and the City shall not have liability for payment of
the Bonds independent of the City's obligation to remit Shared Sales Tax and
Public Improvement Fees as provided in and subject to the limitations of thiS
Agreement
d. To the greatest extent possible under federal and state law, the different series of
Bonds issued by the Metropolitan District shall be Issued as Tax-Free Bonds,
and the remainder of the Bonds shall be Taxable Bonds To the extent permitted
by the Act, the United States Internal Revenue Code of 1986, as amended, and
other applicahle laws, rules and regulations, the City hereby acknowledges and
agrees that all costs relating to the construction and installation of Public
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Improvements may be reimbursed by proceeds from the Bonds, regardless of
whether or not said costs were incurred before or after (i) the formation of the
Metropolitan District, or (ii) the issuance of the Bonds.
e. The Bonds shall be payable from two (2) separate sources of revenue collected
III the Metropolitan District The Public Improvement Fee Revenue Bonds shall
be payable solely from Public Improvement Fees. The Shared Sales Tax
Revenue Bonds shall be payable solely from (i) the Shared Sales Tax and (ii) as
set forth in Section 8,b, the Public Improvement Fees Any revenues available
from each source above the amount needed to pay the current principal and
interest on such Bonds, shall be used to prepay principal on the Bonds payable
from each respective funding source. After the Shared Sales Tax Revenue
Bonds have been paid in full, the Public Improvement Fee may be increased
from 1 4 % to 1 5 %
f The Public Improvement Fees shall be used (i) first to pay principal and interest
on the Public Improvement Fee Revenue Bonds, (ii) second to pay principal and
interest on the Shared Sales Tax Revenue Bonds as permitted by Section 8 b,
and (Iii) then to the extent available after the Bonds have been paid in full, the
Public Improvements Fees may be used to pay ongoing operations and
maintenance costs of the Public Improvements Notwithstanding anything to the
contrary set forth herein, the Public Improvement Fee may continue for up to
forty (40) years after the initial issuance of any Public Improvement Fee
Revenue Bonds, even if such Bonds have been paid in full, in order to continue
funding ongoing operation and maintenance costs associated with the Cabela's
Project
10. ADDITIONAL INCENTIVES
a. Tax Credits and Grants In addition to the Shared Sales Tax and the other
incentives described herein, the City and Cabela's shall work with each other to
determine whether the Cabela's Project qualifies for (i) any other tax credits or
tax incentIVes or (ii) any grants
b Training Grants The City will aid Cabela's in applying and/or qualifying for
federal or state employee Training Grants up to the maximum amount allowed
hy law These Training Grants will be available for employees hired m
connection with the Cabela's Store and intercompany training expenses shall be
eligible for said grants
c Advertising and Marketmg Grants The City shall cooperate With Cabela's to
assist in acquiring any advertismg or marketing grants which might be available
in the State of Colorado to promote the Cabela's Project
d Taxidermy The City shall use reasonable efforts to identify any taxidermy or
owners of taxidermy and provide that information to Cabela's to seek donation
19
2730904
of such taxidermy to Cabela's at no charge for permanent display in the
Cabela's Store, provided, however, Cabela's acceptance of any such taxidermy
shall be based upon its customary standards for the type of taxidermy displayed
in a typical Cabela's retail facility. Any taxidermy accepted by Cabela's and
displayed in the Cabela's Store shall be properly marked with plaques or other
appropriate markers to give credit to the donor
e Coors Matters Similar to the provisions described above which may benefit
Cabela's, the City and Coors shall cooperatively work with each other to
determine whether any development from time to time undertaken by Coors on
any of the Coors Parcels will qualify for any tax credits, tax incentives, grants,
Training Grants and/or advertising or marketing grants as described above
11. SPECIAL DISTRICTS
a. Creation of Metropolitan District The City shall use its reasonable efforts,
consistent with applicable law, to create the Metropolitan District as
contemplated in the Act, as necessary to facilitate development of the Public
Improvements and to provide for the financing thereof described in this
Agreement.
b District Service Plan Not later than ninety (90) days followmg annexation of
the Property, Cabda's shall file with the City for review and consideration in
accordance with C R.S Section 32-1-204 5, a service plan for the MetropolItan
District (which service plan shall include an intergovernmental agreement
between the District and the City) (the "Service Plan") The City will promptly
initiate and conduct to conclUSIOn all proceedings required by State law for the
consideration and approval or disapproval of same The City hereby
acknowledges that the basis for City review and approval of the Service Plan is
to assure that it complies with state law and is consistent with the duties and
obligations of the Metropolitan District as set forth in this Agreement. In the
event the City fails to approve the Service Plan as provided in this Section, the
sole remedy of Cabela's shall be to disconnect the Property from the City and
terminate this Agreement. The City agrees that if it falls to approve the Service
Plan as provided in this Section, it will consent to the disconnection of the
Property
12. OWNERS' ASSOCIATIONS
The Annexors reserve the right to impose covenants upon any portion of the Property
and to form one or more owners' associations for all or any portIOns of the Property
which shall assume responsibilities for collecting funds to pay common expenses, to
repair and maintain common areas and to enforce restrictive covenants All such
covenants and declarations must be approved by the MetropolItan District and a copy
must be provided to the City
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273U9ii 4
13. DEFAULT AND REMEDIES
a Almexors' Default. If the City alleges that the Annexors or either of them is in
default under this Agreement and such Annexor does not cure that default within
thirty (30) days following written notice from the City, the City shall be entitled
to the following remedies which shall be cumulative (1) injunctive relief; (2)
specific performance, (3) withholding action on any pending applications or
approvals, including but not limited to final Development Plans, subdivision
applications, building permits or certificates of occupancy, to the extent such
applications and approvals relate to Cabela's alleged default, and (4) any other
remedies permitted under the Subdivision Regulations, the Planned
Development Regulation, the Wheat Ridge Code of Laws, or otherwise
available at law or in equity, other than damages The City shall extend the
cure period if the nature of the default is such that it cannot reasonably be
remedied within thirty (30) days, provided the Annexor commences the
corrective action within thirty (30) days and diligently pursues such correction
thereafter If the Annexor default arises from the failure to grant any right of
way, easement, or other similar property right as required by this Agreement or
the PCD Outline Development Plan, then the Annexor agrees that the City may
condemn the subject land (provided that such land is a part of the Property
itself) to acquire such property rights pursuant to C R. S Section 38-6-102 The
Annexors agree that in any such conde1llllation proceeding, the fair and actual
cash market value of all such property rights are subject to an irrevocable
obligation to grant or dedicate It to the City pursuant to this Agreement, and
Annexors are estopped from asserting otherwise Annexors agree that it would
have granted or dedicated such property upon execution of this Agreement
without compensation. Annexors agree that all dedication and grants of rights
of way, easements and park lands are necessary for public health, safety and
welfare and that the requirements to make such grants or dedications is
accomplished pursuant to the City's police and regulatory powers. It is
expressly agreed and understood that the foregoing provisions do not apply to or
affect any property other than the Property itself, and do not apply to or affect
any other property whether or not contiguous to the Property, including any
other property owned by Coors Notwithstanding anything expressed or implied
herein to the contrary, Coors shall be under no oblIgation whatsoever to (i)
annex into the City any property other than the Property as provided herem or
(Ii) dedicate, encumber, or otherwise contribute any property or interest ill
property (whether such interest relates to the Property) to any person or entity
for any purpose other than as provided herein
b City Default If Annexors allege the City is in default under this Agreement and
the City does not cure that default within thirty (30) days following wntten
notice from either Annexor, Annexors will be entitled to the following remedies
which shall be cumulative (I) injunctive relief, (2) specific performance, (3)
stopping construction of the Cabela's Store or any Public Improvements
21
27309U 4
contemplated in this Agreement; and (4) any other remedies available at law or
in equity, except damages. Any remedies available to Annexors shall be limited
by the then existing governmental immunity act. Annexors shall extend the cure
period if the nature of the default is such that it cannot reasonably be remedied
within thirty (30) days, provided the City commences corrective action within
thirty (30) days and diligently pursues such correction thereafter
c No Damages. No party shall be entitled to claim or receive any form of
damages upon default or otherwise, including without I1mitation, economic,
consequential, contingent, punitive damages, lost profits or attorneys' or
experts' fees or court costs
14. MISCELLANEOUS
a Nexus Ruling The parties each acknowledge that Cabela's willingness to enter
into this Agreement was contingent upon Cahela's first receiving a favorable
ruling from the Colorado Department of Revenue (the "Department") with
respect to nexus issues (the "Nexus Ruling") In connection with this, the
Department confirmed to Cabela's III a Nexus Ruling that Cabela's activities in
the State will not create nexus for Cabela's remote affiliates and thus, such
remote affiliates will have no obligation to collect and remit sales and use tax
nor will such remote affiliates be subject to Colorado income tax The City
acknowledges and agrees that the revocation of the favorable Nexus Ruling
would substantially impaIr the contractual relatIOnship created under this
Agreement. Further, the City agrees that it will support the favorable Nexus
Ruling which Cabela's received from the Department and, in the event that the
Department later challenges or revokes said Ruling, the City shall testify on
behalf of Cabela's and acknowledge that Cabela's would not have located the
Cabela's Store III the State without first receiving the favorable Nexus Ruling
b Time of the Essence Time is of the essence with respect to the performance of
each party's obligatIOns hereunder, subject to events of Force Majeure
c No Repeal of Code of Laws Nothing contained in this Agreement shall
constitute or be interpreted as a repeal of any provision of the existing City
Code or as a waiver of the City's legislative, executive, administrative, judicial,
governmental or police powers to promote and protect the health, safety, or
general welfare of the City or its inhabitants Except as expressly provided
herein and in the PCD Outline Development Plan, this Agreement does not
supplant the City's land use regulations and other ordinances and regulations as
they relate to the Property and shall not be construed to limit the authority of the
City to adopt different ordmances, resolutions, regulatIOns. rules, policies or
codes so long as they apply throughout the City uniformly or to classes of
indlViduals or properties uniformly In the event of an inconsistency between
the Wheat Ridge Code of Laws and the more specific provisions that have been
22
273090 4
negotiated in connectIOn with this Agreement, the provisions of this Agreement
shall govern.
d Referendum. In the event that the ordinances to be considered by the City
relative to the annexation and zoning of the Property become the subject of a
citizen petitioned referendum, the ordinances subject to such referendum and
this Agreement shall be suspended pending the outcome of the referendum. If
the result of the referendum election is to reject such annexation or zoning, all
of the provisions contained herein shall be null and void and of no effect, and
such rejection shall be deemed a "failure to serve" pursuant to C R.S Section
31-12-119, but shall not be deemed to be a default by the City under
Section 13 b and remedies provided therein shall not be available Conversely,
if the result of such referendum election is to affirm such annexation and
zoning, the Property shall be deemed finally annexed and zoned, whereupon this
Agreement shall remain effective and the parties shall be bound by all of the
terms and conditions contained herein as of the date of this Agreement In the
event of such referendum, the parties agree to cooperate in the defense of the
annexation and zoning of the Property unless either party determines in its sole
discretion not to defend a referendum or other challenge to the annexation and
zoning of the Property To the extent Annexors and the City agree to defend
and participate in such a referendum, the parties shall share equally in all costs
and attorneys' fees in defending and participating in such referendum, including
but not limited to the costs of the referendum election.
e Successors and Assigns This Agreement shall be binding upon and mure to the
benefit of the heirs, successors and assigns of the parties hereto
f. Entire Agreement. This Agreement embodies the whole agreement of the
parties on the subjects contained herein. This Agreement shall supersede all
previous communications, representations, or agreements either verbal or
written between the parties hereto If adopted by the City, the parties agree that
the ordmances approving annexation of the Property and adoption of the PCD
Outline and Final Development Plans may contain additional matters pertment to
the integration of the Property into the City and development of the Property
Therefore, this Agreement must be interpreted and applied in a manner
consistent with such ordinances, provided, however, any such additional matters
do not create financial obligations on the Metropolitan District, the Annexors or
the Property inconsistent with the terms set forth herein without the prior
written consent of the parties so impacted Any property desIgnated for future
commercial, retaiL office, warehouse and/or recreational uses shall comply with
the then-existing requirements for Final Development Plan approval
g Assignment. Cabela's or Coors may assign their respective rights and duties
hereunder in whole or in part to others who become fee title holders or ground
lessees of the Property or any portion thereof with the City's written permission,
23
273090 4
which permission will not be unreasonably withheld, provided, however, that
either Cabela's or Coors may assign any or all of their respective rights and
interests hereunder to one or more of their respective affiliates to perform their
respective obligations hereunder (in any or all of which cases Cabela's or
Coors, as the case may be, nonetheless shall remain responsible for the
performance of all of its obligations hereunder) No assignment shall release
the Property from any restrictions imposed upon the Property by this
Agreement, unless a specific release has been given by the City in writing, The
City may, but shall not be obligated to release the seller or ground lessor in such
transactions, however, any such release must be executed in writing by the City
and recorded with the Jefferson County Clerk and Recorder in order to
effective
h. Notice Any notice required or permitted under this Agreement will be deemed
to be received when delivered personally in writing or five (5) days after notice
has been deposited with the U S Postal Service, postage prepaid, certified and
return receipt requested, and addressed as follows'
To Cabela's
Attn Kevin Rhodes
Cabela's Retail, Inc
One Cabela Drive
Sidney, NE 69160
With a copy to
Attn. Kent Kelsey
Cabela's Retail, Inc
One Cabela Drive
Sidney, NE 69160
and with a copy to
Attn Tom Ackley
Koley Jessen P C
One Pacific Place, Suite 800
1125 South 103 Street
Omaha, NE 68124
To Coors
Attn. Neil Jaquet
Coors Brewing Company
311 Wh Street
Post Office Box 4030
Mail Stop CC370
Golden, CO 80401
24
2730904
with a copy to
Attn: Samuel Walker
Coors Brewing Company
311 10th Street
Golden, CO 80401
and with a copy to
Attn Jim Serven
Moye Giles LLP
1400 16th Street #600
Denver, CO 80202
To City
Randy Young
Wheat Ridge City Manager
7500 W 29th Avenue
Wheat Ridge, CO 80033
With a copy to
City Attorney
City of Wheat Ridge
7500 W 29[/\ Avenue
Wheat Ridge, CO 80033
Any party may change the address to which notice is to be sent by providlllg
notice in the manner set forth in this Section.
Cooperative Drafting, This Agreement IS the product of a cooperative drafting
effort by the City, Coors and Cabela' s and shall not be construed or interpreted
against any party solely on the basis that one party or its attorney drafted this
Agreement or any portion of it.
J Severability If any provision of this Agreement is held to be in conflict with
any applicable statute or rule of law or is otherWise held to be unenforceable for
any reason whatsoever, such circumstances shall not have the effect of rendering
the provision in question inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or provisions herein contained
invalid, inoperative or unenforceable to any extent whatsoever The invalidity
of any portion of this Agreement shall not affect any or all of the remainlllg
portions of this ^greement
k Compliance with Article X, Sec 20 of Colorado Constitution If any provision
hereof is declared void or unenforceable due to a purported violation of Article
X, Section 20 of the Colorado Constitution, the City shall take all such action as
may be necessary to cure such violation, including, but not limited to, seeklllg
25
273U9U 4
voter approvals, either in advance of, or following the purported violation, as
may be allowed by law.
1. Amendment. This Agreement cannot be modified or revoked except by an
instrument in writing signed by the City, Coors and Cabela's or the then owner
of the Property or any portion thereof if there has been an assignment as it
relates to the specific Property
m. Third Party Beneficiaries Nothing expressed or implied in this Agreement is
intended or shall be construed to confer upon, or to give to, any legal person
other than the parties, any right, remedy, or claim under or by reason of this
Agreement or any covenants, terms, conditions, or provisions thereof, and all of
the covenants, terms, conditions, and provisions in this Agreement by and on
behalf of the parties shall be for the sole and exclusive benefit of the parties,
provided, however, after the Metropolitan District described in this Agreement
is formed, it shall be deemed to be a third party beneficiary with the right to
enforce the provisions of this Agreement which are applicable to it Nothing in
this Agreement is intended to interfere with any agreements of the parties with
third parties
n Captions The caplions or headings in this Agreement are for convenience only
and in no way define, limit or describe the scope or intent of any provisions of
this Agreement
o Counterparts This Agreement may be executed in two or more counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument The parties may execute this Agreement and all other
agreements, certificates, instruments and other documents contemplated by this
Agreement and exchange the counterparts of sUl:h documents by means of
facsimile transmission and the parties agree that the receipt of such executed
counterparts shall be binding on such parties and shall be construed as originals.
Thereafter, the parties shall promptly exchange original versions of this
Agreement and all other agreements, certificates, instruments and other
documents contemplated by this Agreement that were executed and exchanged
by facsimile transmission.
p Governing Law This Agreement shall be construed under the laws of the State
of Colorado Junsdiction and venue shall he proper and exclusive in the District
Court for Jefferson County, Colorado
4. Execution by Cabela's and Coors The execution by Cabela's aml Coors shall not
affect their respective rights, duties, obligations, and remedies under any other
contract or agreement entered inlo between such parties, each of which contracts
26
273U~O 4
and agreements shall be governed exclusively by the terms, covenants, and
conditions thereof
15. EXHIBITS. This Agreement includes the following Exhibits, attached hereto and fully
incorporated herein by this reference
EXHIBIT A:
The Property
EXHIBIT B:
Concept Site Plan [Revised exhibit may be substituted
upon filing of Outline Development Plan, as permitted
by Section 2.d.]
EXHIBIT C:
Retail Center Restrictive Covenants
EXHIBIT D:
Tax Rates of Comparable Cities
EXHIBIT E:
Public Improvements Funded with Shared Sales Tax
Revenue Bonds
[The remainder of this page intentionally left blank.]
27
273090 4
IN WITNESS WHEREOF, the parties have hereunto subscribed their signatures
effective as of the date first set forth above.
ATTEST:
~~
m Anderson
City Clerk
CITY OF WHEAT RIDGE
By:
^
.. '- '. I...
,Jt. I II.' , .
~ietchen Cerveny
Mayor
,
\ <.. ,'" y < '-'- 1.
I~
AP~~p
Gerald ,Dahl
City Attorney
COORS
BY:~~
Name: Samuel D. Walker
Title: Chief Legal Officer Coors
Coors Brewing Worldwide &
CABELA'S
By., i~
Name: /fI. i.('/); , . c"1' /ld0
d T. I -~ '/ ,) .
US an It e: .,~t'> ,'/cl' t. 'let r; <-:5/,:-(, A-T
Group VP Public Affairs
STATE OF COLORADO )
) ss,
COUNTY OF JEFFERSON )
The foregoing instrument was acknowledged before me by Gretchen Cerveny as Mayor,
and by Pamela Anderson, as City Clerk of the City of Wheat Ridge, this ;;::Ze) ~h' day of
}:J./CL/,It?/~ ,2004.
Witness my hand and official seal.
My commission expires: ~ - /0 -,;J
..--
--t""'../ -f;:>-< /'''>
ublic
[SEAL]
2730904
28
STATE OF NEBRASKA )
) ss,
COUNTY OF CHEYENNE )
, Th~ fQregoing instrument was acknowledged before me\ by /1 III)( th 'lei. k.I'_ as
'\. ').. I ;/~i (IC:i 1._ ,.::ic,Jof Cabela's Retail, Inc" this ,}/L (I day of ! \((0, m/ I~ r' ,2004.
Witness my hand and official seal.
My commission expires: '1' /,,~,
GENERAl NOTARY - Slate of Nebraska
DONNA M. JUELfS
Comm. . M 10,2008
[SEAL]
STATE OF COLORADO )
) ss.
COUNTY OF JEFFERSON )
,
The foregoing instrument was acknowledged before me by, \\ I " \ i: \ \ \ ,,\ l, [( as
( \ \ \1 (\ \ , 1'1 \ ( ~ \ " :, of Coors Brewing Company, this ) : day of \ ,f ( 'I i " I.; I r
2004. ' ' '
Witness my hand and official seaL
My commission expires: I j I'~ [1
[SE
--. /
. ~'" ~' ,1
,I I '~l,,(( I L(
Notary Public
29
2730904
EXHIBIT A
The Property
273090 4
EXHIBIT A
-~-~~~-
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~"
-,-~:_<~,ro ,'.c'/
--
l '1
I
~~~.,
--~--~~
~~~_~_n ~~..~~_~_
-~ - --~
/
. ,
/rr
CCOA.S PAACEi. 2
43.32 ~E5
:i
,
JEH'CQ
PAACEL ,
)6 01 ACAE&
C(X)fl.5 PAPeU'
.... .<cAfS
COORS P~El 1
, 22J1 ACRES
:::-- --...=3
---'
),
,I
&AI.. TEA
1 40 ACRES
\ .-~L
, ,--- I
11 ,I '.~...
P
,1.11
,- j' .
LEGEND
/~--z
MART" r>.1A~rIN
co....'-''-..-....u w:..ro'''''l...
BOUNDARY
PARCEL BOUNDARY
I ~"'..v _..y C<h'.... ..."...
PO .0" ''''' .00
L>"""._..H'O ~o .O~ 1 3
3D") "':}' 6' 00
,..... JlO:' ...", "0..
EXHIBIT B
Concept Site Plan
273090 4
EXHIBIT B
~ -
~.." '._~
~~-r
-~I
-/
.",..~;- -
'~
~~
. ~
-.;;;>,,:;
~-
~-.---"........~
- ==----...
1- '
~ - .~~.:-=~--:')
. ~~<\\
---' '~I ;L\
,/
ROW MATRIX
SALTER~ [074 ACRE
COORS 1 701 ACRES
COORS 2 1 nACRES
COORS 3 040 ACRE
SUBTOTAL ,9~92ACRES
JEFFCO' ~2I-!'~~E_
TOTAL 11019 ACRES
CDORS P~ElU
~,~~
COOR-5 P..o.R(;U 2B
15-41 KA.:.5
J(FFCQ
P AHCEl 1
)6.01..-.cRES
"'~' -----, ;_" NO! .' ~ ~,' '_.,0./,
_______. " ~ / / V ~; , .. \
,~ ',' / PAAXlNO }1.,I,
-- ~ -VI .
-- '
. I- - ',/ r-
eV ) / I
CDORS PAACU. ._"" " : I \
16 li.l.Cf\fS / \....
(P~ !
POw SeE
w..rRO:
'",",<NO
-
J'
NOTES
rpROP'OSED ROW 1$ NOT INC;LUDED WlTHIN
JEFFCO PARCEL ACREAGE
C()()Al; PA.ACfl 1
28I12.....cF1.f..S
"fT....
22 11 A.CRt.S
!I
SAU'"
..,1ACAES
LEGEND
j--
j~-
I:
BOUNDARY
PARCEL BOUNDARY
~
CABELA'S BUILDING
/~
r-1/, n T. r, ~v1 A U11 rj
CABELA'S PARKING AREA
~
PARCEL ACCESS
,:.1.4.<;1<1....... <x,,- "A "yo.
,. a .D" ,~ ~oo
~"._ooo co .o~,..
:JC.:1 ...:'1, '" I 00
,... .:103 ..::>. ...0.....
,
-----
EXHIBIT C
Retail Center Restrictive Covenants
2731)91) 4
DECLARATION OF
COVENANTS AND RESTRICTIONS
THIS DECLARATION is made this _ day of , 200_, by Cabela's
Retail, Inc., a Nebraska corporation ("Cabela's") and Coors Brewing Company, a Colorado
corporation ("Coors") (Cabela's and Coors are sometimes individually referred to herein as a
"Developer" and collectively, as the "Developers")
WITNESSETH
WHEREAS, Cabela's is the owner of the real property located in Jefferson County,
Colorado, and legally described on Exhibit "A" attached hereto (hereinafter the "Cabela's
Property"), and
WHEREAS, Coors is the owner of the real property located in Jefferson County,
Colorado and legally described on Exhibit "B" attached hereto (hereinafter the "Coors Property")
(collectively, the Cabela's Property and Coors Property is sometimes referred to as the
"Property"), and
WHEREAS, in order to establish a general plan for the improvement and development of
the Property, Developers desire to subject the Property to certain conditions, covenants and
restrictions, upon and subject to which all of the Property shall be held, improved and conveyed
NOW, THEREFORE, Developers hereby make the following declaration'
ARTICLE 1
DEFINITIONS
1 1 Owner The term "Owner" shall mean any individual, partnership, joint venture,
corporation, trust, unincorporated association, governmental agency or other
business entity now or hereafter holding of record an ownership interest in fee in
a portion or all of a Lot.
1,2 Lot. The term "Lot" shall mean or refer to any platted or unplatted parcel of real
estate located within the boundaries of the Property other than areas used or
dedicated for public improvements.
ARTICLE 2
PROTECTIVE COVENANTS, RESTRICTIONS AND CONDITIONS
2.1 Duration and Termination. Subject to the terms of Section 62, all of the Lots
shall be held, sold and conveyed subject to the following restrictions, covenants
and conditions, which are for the purpose of protecting the desirability and value
of, and which shall run with, the Lots and be binding upon and inure to the benefit
of all parties having any right, title or interest in the Lots or any part thereof, their
successors, and assigns for a period of twenty (20) years after the date of this
Declaration (the "Initial Term"), after which time they shall be automatically
Exhihit C
27309U 4
extended for successive periods of five (5) years (each, an "Extended Term"),
unless an instrument terminating this Declaration properly executed by the
Owners of 70% of the total area within the Property is duly recorded in the office
where this Declaration is recorded within one year of the end of the Initial Term
or any Extended Term, in which case this Declaration shall terminate effective as
of the end of the Initial Term or such Extended Term as applicable Without
limiting the generality of the foregoing, each and all of the restrictions, covenants
and conditions contained in this Declaration (whether affirmative or negative in
nature) (a) are made for the direct, mutual and reciprocal benefit of each Lot; (b)
will create mutual equitable servitudes upon each Lot; (c) will bind every party
having any fee, leasehold, mortgage or other interest in any portion of each Lot
at any time or from time to time to the extent that such portion is affected or
bound by the restriction, covenant or condition, and (d) will inure to the benefit of
Owners and their respective successors and assigns as to the respective Lots
and to the benefit of mortgagees under mortgages covering said Lots and
beneficiaries and trustees under trust deeds covering said Lots
2.2 Default; Enforcement. Owners of the Lots shall have the right to enforce, by any
proceeding at law or in equity, all restrictions, covenants and conditions now
imposed by the provisions of this Declaration No breach of this Declaration by
either Developer or any Owner will entitle any Owner to cancel, rescind or
otherwise terminate this Declaration. In such action brought to enforce the terms
of this Declaration, the unsuccessful party in any action shall indemnify the
prevailing party for all reasonable attorney's fees and other reasonable costs and
expenses incurred by the prevailing party in connection with such proceedings
2.3 Notice of Compliance Upon request of the Owner of a Lot in connection with
proposed financing or sale of such Lot, the Developer that initially owned said Lot
on the date of this Declaration will provide to such Owner written notice, in
recordable form, indicating the status of Owner's compliance with this
Declaration as of the date of such notice.
ARTICLE 3
USE RESTRICTIONS
3 1 General Restrictions No use shall be permitted on any of the Lots which is
inconsistent with the development and operation of a first-class real estate
development. Without limiting the generality of the foregoing, the following uses
shall not be permitted
a Any use which emits an obnoxious odor (exclusive of cooking odors in
connection with the permitted use of the Lot), noise or sound which can
be heard or smelled outside of any building constructed on any of the
Lots,
b Any operation primarily used as a storage warehouse operation and any
assembling, manufacturing, distilling, refining, smelting, agricultural or
mining operation,
c. Any "second hand" store or "surplus" store,
2
Exhihit ('
273090 4
273090 4
d Any mobile home park, trailer court, labor camp, junkyard or stockyard
(except that this provision shall not prohibit a recreational vehicle resort
area or the temporary use of construction trailers during periods of
construction, reconstruction or maintenance),
e Any dumping, disposing, incineration or reduction of garbage,
f Any fire sale, bankruptcy sale or auction house operation,
g. Any dry cleaning plant or laundromat utilized in connection with a
commercial cleaning business,
h Any signs promoting or relating to any business, store, restaurant, hotel
or other retail establishment not located on the Property;
I. Any automobile, motorcycle, truck, trailer or mobile home body shop or
repair operation, except those body shop and repair operations owned
and operated by a licensed motor vehicle dealer and operated on the site
of the dealer's principal place of business,
Any bowling alley;
k. Any animal raising facility;
Any mortuary or funeral home,
m. Any establishment selling or exhibiting illegal drug related paraphernalia,
n Any bar, tavern, or other establishment serving alcoholic beverages other
than (i) one holding a valid hotel and restaurant license as described in
Section 12-47-411, C R.S , provided, that if such establishment utilizes a
theme that incorporates the name or logo of a particular brewery or
otherwise conducts its alcoholic beverage operations to promote the
products of a particular brewery in preference to the products of all or
substantially all other breweries, such establishment shall be prohibited
hereunder unless such theme and primary products are those of Coors
and such establishment is operated by or under a license from Coors, or
(ii) one holding a brew pub license as described in Section 12-47-415,
C R.S, provided that such establishment is operated by or under a
license from Coors;
o Any sexually-oriented businesses such as, but not limited to, x-rated
movie or video sales, theater or rental facilities, nude modeling studios,
massage parlors, lounges or clubs featuring nude or semi-nude
entertainers or escort services,
p Any prisons, jails or other detention or correctional facilities,
q Any flea market, pool or billiard hall or dance hall, provided, however,
such activities shall be permitted if the same are incidental to a primary
use which is not otherwise prohibited hereby;
3
Exhihit C
r Any training or educational facility, including but not limited to, beauty
schools, barber colleges, reading rooms, places of instruction or other
operations catering primarily to students or trainees rather than to
customers; provided, however, this prohibition shall not be applicable to
on-site employee training or to conference/convention facilities;
s Any gambling facility or operation, or
1. Any retail establishment which devotes more than 10% of its retail selling
space (but in no event more than 5,000 square feet of retail selling
space), or utilizes any temporary kiosk or tent sale, for the purpose of
selling anyone or any combination of the following product categories.
(x) hunting products including, but not limited to, such items as firearms,
handguns, ammunition, optics, hunting apparel, hunting footwear, ATV
and SUV accessories, and hunting accessories, (y) fishing products
including, but not limited to, such items as rods, reels, waders, fishing
lures, fishing footwear, marine products, boats, boat motors, fishing
electronics, and fishing accessories, and (z) camping products including,
but not limited to, such items as tents, sleeping bags, camping cookware,
hiking footwear (but excluding from this prohibition any shoe store, or
other retail establishment having a shoe department, selling multiple lines
of general purpose footwear that may include hiking footwear), and
related camping accessories Provided, however, that the Owner of the
Lot legally described on Exhibit "C" attached hereto may operate a
Cabela's retail store thereon, may assign the right to use said Lot for
selling hunting, fishing, camping or other outdoor equipment, and may
grant a variance to this restriction to other Owners of other Lots in its sole
discretion. Provided further, however, that any non-profit organization
may sell any amount of hunting, fishing, camping, or outdoor equipment if
such sales are limited to its members and not to the general public.
Provided, that notwithstanding anything expressed or implied herein to the contrary,
Coors shall have the right to construct and maintain on any portion of the Coors Property such
structures as are from time to time deemed by Coors to be necessary or appropriate in
maintaining, utilizing, and/or servicing any lake located on the Coors Property (each, a "Coors
Lake Structure")
ARTICLE 4
CONSTRUCTION
4 1 Submission of Plans No improvements shall be erected, placed, altered,
constructed, maintained or permitted to remain on any Lot subject to these
restrictions until the proposed use and the plans and specifications showing plot
layout and all exterior elevations with materials and colors therefore and
structural design, signs and landscaping (collectively, "Plans") shall have been
formally submitted, in writing, to each of the Developers and approved in writing
by each of the Developers ("Developer Approval"), which approval shall not be
unreasonably withheld or conditioned Plans shall be submitted as follows
a To Cabela's at: Cabela's Retail, Inc, One Cabela Drive, Sidney,
Nebraska 69160, Attention Director of Real Estate Development.
4
Exhihit C
273090 4
b To Coors at: Coors Brewing Company, 311 10th Street, POBox 4030,
PMB CC370, Golden, Colorado 80401, Attention Neil Jaquet.
4.2 Developer Approval and Owner's Warranties The Developer Approval shall be
based, among other things, on adequacy of site dimensions, adequacy of
structural design, conformity and harmony of external design with neighboring
structures, effect of the location and use of improvements on neighboring Lots,
proper facing of main elevation with respect to nearby streets, and conformity of
the Plans to the purpose and general plan and intent of these restrictions,
covenants and conditions Each Developer shall render its written approval or
disapproval within twenty-one (21) calendar days of receipt of the Plans. If no
written disapproval is rendered by either Developer within said twenty-one (21)
days, then the Plans shall be deemed to be approved. The Owner who is
undertaking said construction represents and warrants that it will not materially
alter or deviate from said Plans in the construction of the improvement upon the
Lot without prior written consent of each Developer, which consent shall not be
unreasonably withheld, conditioned, or delayed
4 3 Owner's Responsibilities for Commencement of Construction An Owner shall
commence construction/development of improvements on his/her/its Lot within
one (1) year after receiving Developer Approval for his/her/its Plans for said Lot.
4 4 Owner's Responsibilities for Partly Constructed Buildinqs After the
commencement of any improvement on a Lot, the Owner of the Lot shall
diligently prosecute the work thereon to the end that the improvement shall not
remain in a partly finished condition any longer than is reasonably necessary for
completion thereof
4 5 Excavation No excavation shall be made on any Lot except in connection with
construction of improvements, and upon completion of said improvements, it
shall be the Owner's responsibility to back fill exposed openings and grade and
level any ground disturbed by the construction of the improvement.
ARTICLE 5
MAINTENANCE OF LOTS
5 1 Maintenance of Constructed Buildinqs After the completion of construction,
each Owner covenants and agrees to maintain and keep the exterior and interior
portions of the constructed buildings, if any, located on its Lot in first-class
condition and state of repair, in compliance with all governmental laws, rules,
regulations, orders and ordinances exercising jurisdiction thereover, and in
compliance with the provisions of this Declaration Each Owner further agrees to
store all trash and garbage in adequate containers, to locate such containers so
that they are not readily visible from the parking area or highway and to arrange
for the regular removal of such trash or garbage
5.2 Maintenance of Damaqed Buildinqs In the event that any of the buildings are
damaged by fire or other casualty (whether insured or not), the Owner upon
whose Lot the building is located shall, subject to governmental regulations
and/or insurance adjustment delays, immediately remove the debris resulting
from such event and provide a sightly barrier, and within a reasonable time
5
Exhihit C
273U9U 4
thereafter shall either (i) repair or restore the building so damaged to a complete
unit, such construction to be performed in accordance with all applicable
provisions of this Declaration, or (ii) erect another building in such location, such
construction to be performed in accordance with all applicable provisions of this
Declaration, or (iii) demolish the damaged portion and/or the balance of such
building and restore the cleared area to either a hard surface condition or a
properly maintained landscaped condition planted with grass seed The Owner
shall have the option to choose which of the foregoing alternatives to perform,
but such Owner shall be obligated to perform one of such alternatives
5 3 Maintenance of Vacant Lots. Owners shall be required to maintain vacant Lots in
a manner that does not cause a nuisance to adjoining Lot Owners or Developers.
Without limiting the generality of the foregoing, such maintenance shall include
the mowing of said Lot, the removal of any noxious weeds or other unsightly
plant growth, and the removal of all trash, rubbish and debris from said Lot.
Provided, that Coors shall not be obligated to mow or remove any natural flora
(other than noxious weeds) growing on the Lot legally described on Exhibit "0"
attached hereto
54 Landscaping, Every Lot on which a building (other than a Coors Lake Structure)
has been erected shall be landscaped and maintained thereafter in a sightly and
well kept condition according to the following
a. All street and side setback areas as required by local law, with the
exception of drainage areas, driveways, sidewalks, other walkways and
parking areas shall be used exclusively for the planting and growing of
trees, shrubs, lawns and other ground covering or material as approved
by the Developers under Section 4 1 hereof
b The Lot Owner shall landscape and maintain unpaved areas between the
street curb line and the property line adjoining any street. If said
landscaping is not properly maintained in the reasonable opinion of either
Developer, such Developer may, after not less than seven (7) calendar
days' notice to the Lot Owner, undertake such maintenance as may be
necessary, at the expense of the Lot Owner
c. Landscaping, as approved by the Developers under Section 4 1 above,
shall be installed within ninety (90) days of occupancy or completion of
the building, whichever occurs first, subject to reasonable extension due
to delays caused by adverse weather
d All unused and non-landscaped land area that is planned for future
building expansion or other purposes shall be maintained and kept free of
weeds, other unsightly plant growth, rubbish and debris
55 Taxes and Assessments. The Owners of the Lots shall payor cause to be paid,
prior to delinquency, directly to the appropriate taxing authorities all real property
taxes and assessments which are levied and assessed against their respective
Lots
6
Exhibit C
273U9U 4
ARTICLE 6
VARIANCES, AMENDMENTS AND TERMINATION
6 1 Amendments and Terminations This Declaration may be amended or
terminated by written instrument, duly recorded in the office where this
Declaration is recorded and properly executed by the then Owners of 70% of the
total area within the Property; provided, however, no amendment to this
Declaration which places any new restrictions on any Lot, or otherwise materially
adversely affects the rights or materially increases the obligation of the Owner of
any Lot, shall be effective against any such Lot unless the Owner of such Lot
executes the written instrument which is recorded to effectuate such amendment.
It shall not be necessary for the Developers to be a party to any such written
instrument.
6 2 Variances Variances from the restrictions set forth in this Declaration may be
granted by written instrument, duly recorded in the office where this Declaration
is recorded and properly executed by the then Owners of 70% of the total area
within the Property
ARTICLE 7
EMINENT DOMAIN
Nothing herein shall be construed to give the Developers or the Owner of any Lot any
interest in any award or payment made to any other Owner in connection with any exercise of
eminent domain or transfer in lieu thereof affecting another Owner's Lot or granting the public or
any government any rights in such Lot.
ARTICLE 8
MISCELLANEOUS
8 1 Waiver of Default. No waiver of any default by either Developer or any Owner
will be implied from the failure by either Developer or any other Owner to take
any action in respect of such default. No express waiver of any default will affect
any default or extend any period of time for performance other than as specified
in such express waiver One or more waivers of any default in the performance
of any provision of this Declaration will not be deemed a waiver of any
subsequent default in the performance of the same provision or any other
provision. The consent to or approval of any act or request by either Developer
or any Owner will not be deemed to waive or render unnecessary the consent to
or approval of any subsequent similar act or request. The rights and remedies
provided by this Declaration are cumulative and no right or remedy will be
exclusive of any other, or of any other right or remedy at law or in equity which
any Owner might otherwise have by virtue of a default under this Declaration,
and the exercise of any right or remedy by any Owner will not impair such
Owner's standing to exercise any other right or remedy
8.2 No Partnership Nothing contained in this Declaration and no action by the
Owner of any lot will be deemed or construed by any Owner or by any third
person to create the relationship of principal and agent, or a partnership, or a
joint venture, or any association between or among any of the Owners of any of
the Lots.
7
Exhibit C
--
273090 4
8 3 Severability If any provision of this Declaration is, to any extent, declared by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Declaration (or the application of such provision to persons or circumstances
other than those in respect of which the determination of invalidity or
unenforceability was made) will not be affected thereby and each provision of this
Declaration will be valid and enforceable to the fullest extent permitted by law
8 4 Governinq Law This Declaration will be construed in accordance with the laws
of the State of Colorado
8 5 Captions. The captions of the paragraphs of this Declaration are for convenience
only and are not intended to affect the interpretation or construction of the
provisions herein contained.
8 6 Time Except as otherwise provided in this Declaration, time is of the essence
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
8
Exhihit C
273090 4
IN WITNESS WHEREOF, the parties hereto have executed this Declaration as of the
day and year first above written.
CABELA'S RETAIL, INC ,
a Nebraska corporation, Developer
By'
Its.
STATE OF NEBRASKA )
) ss
COUNTYOFCHEYENNE)
The foregoing Declaration of Covenants and Restrictions was acknowledged before me
this _ day of ,200_, by ,(title)
of Cabela's Retail, Inc , a Nebraska corporation, for and on behalf of said corporation
COORS BREWING COMPANY,
a Colorado corporation
By'
Its
STATE OF COLORADO )
) ss
COUNTY OF JEFFERSON)
The foregoing Declaration of Covenants and Restrictions was acknowledged before me
this _ day of ,200_, by ,(title),
of Coors Brewing Company, a Colorado corporation, for and on behalf of said corporation.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY
Koley Jessen P C
A Limited Liability Organization
1125 South 103 Street, Suite 800
Omaha, NE 68124
(402) 390-9500
9
Exhihit C
273090 4
Exhibit "A"
Cabela's Property
LEGAL DESCRIPTION OF PARCELS 1-2
10
Exhihit C
273090 4
Exhibit "B"
Coors Property
LEGAL DESCRIPTION OF PARCELS 3-5
11
Exhihil l
2730904
Exhibit "C"
Cabela's Lot
LEGAL DESCRIPTION OF CABELA'S LOT
12
Exhibit C
27309\1 4
2730l/(J 4
EXHIBIT D
Tax Rates of Comparable Cities
Sales Tax and Public Improvement Fee
Comparative Analysis
(Effective January 1, 2005)
Public Regional Scientific and F ootba II
Cultural
City Improvement County Transportation Facilities Stadium State
Fee District District District
Arvada (Adams County) 3,21 0,00 0,70 1.00 0,10 0,10 2.90
Arvada (Jefferson County) 3.21 0.00 0,50 1.00 0.10 0,10 2,90
Aurora (Arapahoe County) 3,75 000 0,25 100 0,10 0,10 2,90
Aurora (Adams County) 3,75 000 070 100 010 0,10 2,90
Boulder 3.41 000 0,65 100 010 0,10 2,90
Boulder (Food Service) 3,56 000 0,65 1,00 010 0,10 2,90
Brighton (Adams County) 3,75 0,00 0.70 100 010 010 2,90
Brighton (Weld County) 375 000 000 000 0,00 000 2,90
Broomfield City and County 415 000 NA 1 00 0,10 0,10 2,90
Broomfield Flatiron 1 415 0,20 NA 1 00 0,10 0,10 2,90
Castle Rock 3,60 000 1.00 100 010 0,10 2,90
Commerce City 3,50 000 0.70 100 0,10 0,10 2,90
Denver City and County 350 000 NA 1.00 010 010 2,90
Denver (Food and Liquor)' 400 0,00 NA 1.00 0,10 010 2,90
Douglas County (Park Meadows) 000 000 100 100 000 010 2,90
Englewood 3,50 000 0,25 1.00 010 010 2,90
Fort Collins 3,00 000 080 000 000 000 2,90
Golden 3,00 000 0,50 100 010 010 2,90
Greeley 3,30 000 0,00 000 000 000 2,90
Greenwood Village 3,00 0,00 0,25 1.00 010 0,10 2,90
Lakewood 2,00 000 0,50 100 010 0,10 2,90
Lakewood Belmar' 100 2,50 0,50 100 0,10 010 2,90
Lakewood Colorado Mills' 2,00 140 050 100 010 010 2,90
Littleton (Arapahoe County) 3,00 000 0,25 100 010 010 2,90
Littleton (Douglas County) 3,00 0,00 100 100 010 010 2,90
Littleton (Jefferson County) 300 000 0,50 100 010 010 2,90
Lone Tree 1 50 0,00 100 1 00 010 010 2,90
Longmont 2,95 0,00 0,55 1 00 010 010 2,90
Louisville 3,38 000 055 1 00 010 0,10 2,90
Loveland 3,00 0,00 0,80 0,00 0,00 000 2,90
Northglenn (Adams) 400 000 070 100 0,10 0,10 2,90
Parker 3,00 000 1 00 100 010 010 2,90
Superior 346 0,00 0,55 100 010 010 2,90
Thornton 3.75 0,00 0.70 100 010 0,10 2,90
Westminster (Adams County) 3,85 0,00 070 100 010 0,10 2,90
Westminster (Jefferson County) 3,85 000 0,50 1.00 010 0,10 2,90
Wheat Ridge 3,00 000 0,50 100 010 010 2,90
Wheat Rid e Cabela's' 2,10 1.40 0,50 1,00 0,10 010 2,90
Avera e
1 Flatiron Improvement District
2 Sale of food and beverage for Immediate consumption and liquor stores
:.> Plaza Metropolitan District No.1 1 % sales tax waived
4 Elk Valley PubliC Improvement Corporation
5 Proposed Metropolitan District, With a waiver of 09'% sales tax being shown while the City shares 1 1% sales tax to pay the Shared Sales Tax Revenue
Bonds and collects 1 0% sales tax for the City The City shall collect 2.0% and waive 1 0% of its sales tax after the Shared Sales Tax Revenue Bonds are
paid (or expire) After the PubliC Improvement Fee Revenue Bonds are paid (or expire), the City will collect 3.0% (or the City s then current sales tax rate)
and waive 0 0% of Its sales tax
273U90 4
EXHIBIT E
Public Improvements Funded with
Shared Sales Tax Revenue Bonds
Exhibit E
Public Improvements
Funded with
Shared Sales Tax Revenue Bonds
Site Costs
Off-Site Work
Public Roadways
1 32nd Ave. and 1-70
2 40th Ave. Underpass
3 1-70 east ramp - Y oungfield
4 32nd Ave. west
5 32nd Ave. east
6 32nd - Y oungfield intersection
7 40th - Y oungfield intersection
8 Mcintyre Intersection (roundaboul)
9 Bridge over Clear Creek
10 Mcintyre Extension Road
11 Coors Extension Road
12 32nd - Entry Road intersection
13 Enlry Road
Other Improvements
Trails - 32nd to Clear Creek
On-Site Work
Excavation / Fill
Public Road\Vays $
Road\Vays
Cabela's Drive $
Traffic signals $
Subgrade Prep $
40th A ve. Extension $
Street lighting $
Landscape & Irrigation $
Infrastructure
Storm sewer $
Site Cost Contingency S
Soft Costs
Engineering $
Civil Engineer
Surveying
Geotechnical Engineer
Traffic Engineer
Environmental Engineer
Materials Testing/Inspections
Project Management
Project One $
Cabela's PM - site $
Financial & Legal
City of Wheat Ridge $
Real estate legal, Gorsuch
Real estale consulting - Deepwater
Engineering Sef\1CeS
Soft Cost Contingencv $
ITotal $
$ 3,500,000
$ 3,182,000
$ 300,000
$ 300,000
$ 300,000
$ 900,000
$
$ 1,500,000
$ 860.129
$ 546.000
$ 387.500
S 300,000
S 300.000
$ 475.000
301.301
935,000
525,000
75 000
90,000
200,000
342.257
100,000
1.156.439
770.959
mc
me
me
me
me
JIle
331.513
165,756
235.000
me
me
me
49,3 71
18,128,224 I
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