HomeMy WebLinkAboutResolution 2013-0034CITY OF WHEAT RIDGE, COLORADO
RESOLUTION NO. 34
Series of 2013
TITLE: A RESOLUTION AUTHORIZING THE EXECUTION OF AN
AGREEMENT WITH MUSCLE MASSTER (THE GREEN HERB)
TO PARTICIPATE IN THE WHEAT RIDGE BUSINESS
DEVELOPMENT ZONE PROGRAM FOR A REBATE OF 100%
OF THE ELIGIBLE USE TAX IN ASSOCIATION WITH THE
CONSTRUCTION OF A NEW BUILDING AT 4565 KIPLING
STREET IN WHEAT RIDGE
WHEREAS, the City has adopted as a portion of the Wheat R idge Code of Laws
("Code") Chapter 22 , Article I, Division 5 , "Business Development Zone" to encourage ,
in part, continued development and expansion of opportunities for employment in the
private sector in the City; and
WHEREAS , Muscle Masster (The Green Herb) has applied to participate i n the
Program and a public hearing was posted and conducted ; and
WHEREAS , The Green Herb is the owner and operator of parcel and
improvements thereon within the City and known as the "Owner," and is the operator of
a development s ite that will serve residents of Wheat Ridge and surrounding
communities;
WHEREAS, Owner plans to construct public improvements of approximately
$158 ,567 and a total project budget of approximately $750,000; and
WHEREAS , the project enhances services to the neighborhood and neighboring
communities and brings revenue to the City from surrounding communities-a true
definition of economic development; and
WHEREAS ; the project creates up to 6 new j obs and a tota l employee base over
20,and
WHEREAS; the project spurs reinvestment through remodeling and new
construction of a blighted structure, thus enhancing and preserving its economic viability
in the City; and
WHEREAS , cost-sharing at the rate prescribed herein will serve to aid the Owner
in that it will alleviate a portion of the public improvement costs associated with the
expansion .
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat
Ridge, Colorado, as follows:
An Agreement to participate in the City of Wheat Ridge Business Development
Zone Program with Muscle Masster is hereby approved wherein an amount of
100% of building use-tax generated estimated at $13 ,500 will be rebated to
Muscle Masster.
ATIEST:
AGREEMENT TO P A RT I C I PATE I N THE
C I TY OF WHEAT RIDGE B USINESS D EVELOPMENT ZoNE PROGRAM
Thi s Agreement to Participate in the City o f Wheat Ridge Business Development Zone
Program (this ''Agreement'') is made and entered into as o f the 9th day of September, 2013. by
and between MUSCLE MASSTER, LLC, located at 4565 Kipling Street, hereinafter referred to
as the ''Owner" and the CITY OF WHEAT RIDGE , COLORADO , 7500 W . 29th Avenue, Wheat
Ridge, Colorado 80033 hereinafter referred to as the "City," co llectively the "Parties," and each
individual ly, as a "Party."
WHEREAS , the City has adopted as a portion of t he Wheat Ridge Code of Laws
("Code") Chapter 22 , Art ic le I, D ivision 5, ''Business Development Zone •· (the "Program"), to
e nco urage , in part , contin ued deve lopment and expansion of opportunities for employment in the
private sector in the City ; and
WHEREAS , Owner has a pplied to participate in the Program ; and
WHEREAS , Owner is the owner and operator of leased space and improvements thereon
within the City and known as the "Muscle Masster, LLC , dba The Green Herb;· which is a retail
o utlet center offering herbal supplements and chiropractic services; and
WHEREAS , pursuant to Code Sec. 22-86 (b), the City Counc il has designated the real
property leased by Muscle Masster, LLC as a "Wheat Ridge Business Development Zone ''; and
WHEREAS , Owner plans to construct a new building with an estimated project valuation
of$750,000; and
WHEREAS , Owner's p lans and tenant improvements will lead to increased employment
from their current 16-ernp loyees to approxi mate ly 20-22 employees; and
WHERAS , increased employment wi ll lead to othe r ind irect spending and sales tax
generation by those employees in other local establishments; and
WHEREAS, the Program allows the City to provide for the sharing of certain categories
of fee s, taxes and other business development-related charges for new development within the
business development district (''Eligible C ity Fees , Charges and Taxe s'' as defined in Code Sec.
22-87 ( 1 )) to the extent allowed by an agreement with a bus iness owner; and
WHEREAS , cost-sharing at the rate prescribed herein wi ll serve to aid the expansion of
Muscle Masster, LLC in that it will alleviate a portion of the costs associated with the expansion.
NOW, THEREFORE, in consideration of the foregoing , and the covenants, promises, and
agreements of each of the Parties hereto, to be kept and preformed by each of them, the Parties
agree as follows:
1. Recitals .
The Recitals set forth above are incorporated in this Agreement by reference
2. Term.
The term of this Agreement shaJl commence on September 9 , 2013 and shall terminate
upon full refund by the City to Owner of eligible City fees, charges and taxes as set forth in
Paragraph 7 (the ''Term"). Notwithstanding the foregoing, it is an expressed provision of this
Agreement that this Agreement shall expire and be of no further force and effect upon the
occurrence of the earlier to occur of: (1 ) expiration of the Term or (2) payment of the maximum
amount to be shared as set forth in Paragraph 7 (whether or not the Term has expired), or (3)
determination by the City of Owner's default, as provided in Paragraphs 13 or 15.
3. The Project.
The project proposed by the Owner through which it desires to participate in the Program
consists of the following, generally:
The Green Herb is an existing Wheat Ridge retail , service and manufacturing company
since 1994. The Green Herb specializes in providing vitamins, healthy alternatives to traditional
medicine that include chiropractic and massage services. The Green I Ierb currently leases space
at 11465 I-70 Frontage and has been in operation in Wheat Ridge since 1994. The project
consists of construction a new retail, warehousing. and office building measuring approximately
8,242 square feet which will contain a retail component, office space for the chiropractic and
massage services, manufacturing, shipping and office space. The project will include public
improvements including new curb, gutter, sidewalk, drainage improvements for the site and
surrounding areas, and landscaping to improve the v isual aspect of the corridor. The project has
a valuation of $750,000. The foregoing shaJl be collectively referred to herein as the "Project,"
and is more fully described below in Paragraphs 4 and 8.
4. Representations of Owner. Pursuant to Code Sec. 22-94, Owner hereby represents to
the City the following:
a. Improvements justifying Project approval. An estimated $750,000 of new construction
and improvements will be invested into the property. Of this amount, $158,576 are
considered public or public-related improvements as detailed in Exhibit A.
b . Expected incremental future tax revenue. Estimated Incremental future sales and use tax
revenue will include the following:
1. Incremental Sales Tax of $5 ,000 per year is anticipated to be generated in year 1
of operation and increase year-to-year.
u. Use Tax of $13 ,500 has been paid to the City of Wheat Ridge for a license issued
on February 2, 20 I 3 .
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111. Short-term posiiive impact during construction: Prior to the completion of the
Project, the construction and tenant improvement phases will employ additional
personnel.
iv . Long-term positive impact by addition of staff: With new facilities and an ability
to increase services, Owner will employ more permanent staff. Specifically, it is
estimated that permanent staff will be added to Owner's headquarters. It is
anticipated that at the completion of the Project, an additional 4-6 full-time
employees will be hired. .
v. An indirect benefit will be an increase in the number of visitors to the City as
customers of this new business who may shop at other City businesses as well as
opportunities for Wheat Ridge businesses to provide industrial and office products
to the Owner, likely contributing to the City 's tax base .
S. Personal agreement; non-transferable; no third party beneficiaries
The cost-sharing of Eligible City Fees, Charges and Taxes as approved herein shall
constitute a personal agreement between the City and Owner. The terms of this Agreement do
not run with the land. The obligations. benefits and/or provisions of this Agreement may not be
assigned in whole or in any part without the express authorization of the City Council. No third
party shall be entitled to rely upon or enforce any provision hereof.
6. Agreement not to constitute debt or obligation of tbe City
Nothing herein shall be construed to constitute a debt or obligation of the City.
Notwithstanding any other provision of this Agreement to the contrary , the Parties understand
and acknowledge that the City is subject to Article X , § 20 of the Colorado Constitution
("TABOR"). This Agreement does not create a multi-fiscal year direct or indirect debt or
obligation within the meaning of TABOR and , therefore, notwithstanding anything in this
Agreement to the contrary, all payment obligations of the City are expressly dependent and
conditioned upon the continuing availability of funds beyond the term of the City's current fiscal
period. Financi(\1 obligations of the City payable after the current fiscal year are contingent upon
funds for that purpose being appropriated, budgeted, and otherwise made available in accordance
with ordinances and resolutions of the City and other applicable law.
7. Cost-sharing
Pursuant to Code Sec. 22-88. cost-sharing of the Eligible City Fees, Charges and Taxes may be
granted up to the expected incremental future sales and use tax revenue. lt is anticipated that the
use tax revenue received from the Project will be $13,500 and year 1 sales tax increment will be
$5,000.
a. Estimated Eligible City Fees. Charges and Taxes. The following are estimates of the
Eligible City Fees , Charges and Taxes for this Project:
1. Building Use Tax: $13 ,500 paid on February 22 , 20 13;
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b. Cost-sharing. , Notwithstanding the foregoing. and in r eliance upon the representation of
Owner of the benefits to the City of the Project, the City and Owner agree to the cost-
sharing for the Eligible City Fees, Charges and Taxes as follows:
100% of the Eligib le City Use Taxes shall be due and paid to the City by Owner
based upon review and approval by the City of properly documented requests for
the same. Upon recei p t thereof, the City shall refund 100% of such Eligible City
Taxes back to the Owner in 1 equal payment to their overa ll Tax charge described
in Paragraph 2 herei n . I n no event shall the City be obligated to refund more than
I 00% of eligible City Fees. Charges and Taxes received by it.
8. L ega l ch a ll e nge
In the event of legal chall enge to the Program as applied to Owner, any costs scheduled
to be shared-back to Owner shall be escrowed until resolution of the dispute.
9. Waiver of C ode requirements
To the extent any requirements of Code Sees. 22-85 through 22-96 have been waived,
such waiver bas occurred pursuant to Code Sec. 22-93 (c) whereby the City Council has found
by a 3/.. majority vote that such waiver is in the pub li c's interest and wi ll provide a substantial
benefit to the City.
10. No joint venture
Pursuant to Code Sec. 22-95, nothing herei n shall be construed to create a joint venture
between the City and Owner. Notwithstanding any provision hereof, the Ci ty shaJI never be a
joint venture in any pri vate entity o r activity which participates in the Program, and the City shall
never be liable or responsib le for any debt or obligation of any participant including the Owner,
in the Program.
11. Use of fund s
Pursuant to Code Sec. 22-89, Owner expressly acknowledges and agrees that any Eligib le
City Fees. Charges and Taxes refunded to the Owner under this Agreement, up to the amoun t
agreed upon by the City Council purs uant to this Agreemen t may only be used for the purpose of
the P roject, as described in Paragraph 12. on Owner's P roperty within the underlying Business
Development Zone.
12. Us es enumerated
Pursuant to Code Sec. 22-90, the uses to which the Eligible City Fees, Charges and Taxes
may be put by the Owner shall be strictly limited to those which are approved by the City
Council and which relate directly to the Project within the City. which Pr oject is antici pated to
indirect ly generate more municipal sales and use tax revenues for the City in the future. Uses
hereby expressly approved by City Council are as fo ll ows:
c. Improvements as detai led in Exhibit A
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1. New public parking lot with striping; and
11. Drainage improvements on the site; and
tu. New public curb gutter and sidewalk with drainage aiding adjoining businesses; and
tv. New landscaping aiding in carbon dioxide exchange and creating a greener
environment; and
v. New public structure providing a healthy alternative retail establishment.
13. No Covenant to construct or to operate
The intent of this Agreement is to provide for Owner" s participation in the Program, in
the event that Owner completes the Project. Notwithstanding any provision in this Agreement to
the contrary, Owner shall have no obligation under this Agreement to complete the Project. In
the event Owner fails to complete the Project, this Agreement may be terminated at the option of
the City.
14. Remedies
The Owner waives any constitutional claims against the City arising out of a breach of
this Agreement. The Owner's remedies against the City under this Agreement are limited to
breach of contract claims. In no event shall the City be liable for any form of damages, including
without limitation : exemplary, punitive or consequential damages , including economk damages
and lost profits .
15. Termination
In the event Owner fails to comply with one or more of the terms of thi s Agreement, City
may, in its sole discretion , terminate this Agreement.
16. Indemnification
To the fullest extent permitted by law, Owner agrees to indemnify and hold the City
harmless from any damage, liability or cost (including reasonable attorneys' fees and cost of
defense) to the extent caused by the Owner's negligent acts, errors or omissions in the
performance this Agreement and those of its sub-contractors, sub-consultants or anyone for
whom the Owner is legally liable. To the extent permitted by the Colorado Constitution and
statutes, the City agrees to indemnify and hold the Owner harmless from any damage , liability or
cost (including reasonable attorneys' fees and costs of defense) to the extent caused by the City's
negligent acts, errors or omissions arising from this Agreement. These defense and
indemnification obligations shall survive the expiration or termination of this Agreement. The
Parties acknowledge that the provisions of this Paragraph are not intended to waive or alter any
of the rights and defenses afforded to the City under the common Jaw, the Colorado
Governmental Immunity Act, C.R.S. §§ 24-10-101, et. seq. or any other law.
17. Severability
If any part, tenn or provision of this Agreement or the Program is held by a court of
competent jurisdiction to be illegal or in conflict with any law of the State of Colorado, the
validity of the remaining portions or provisions shall not be affected, the rights and obligations of
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the Parties shall be construed and enforced as if the Agreement did not contain the particular
pan, term or provision held to be invalid, and the Parties shall cooperate to cure any legal defects
in the Agreement or the Program. Should the sharing of Eligible City Fees, Charges and Taxes
pursuant to this Agreement be judicially adjudged illegal , invalid or unenforceable under the
present or future laws effective during the Term of this Agreement by a court of competent
jurisdiction in a final , non-appealable judgment, the Parties shall utilize their best, good faith
efforts to restructure this Agreement or enter into a new agreement consistent with the purposes
of this Agreement. Should the Parties be unsuccessful in their efforts, the Agreement shall
terminate without penalty or recourse to either Party .
18. Governing law; venue
The laws of the State of Colorado shall govern the validity, performance and enforcement
of this Agreement. Should either Party institute legal suit or action for enforcement of any
obligation contained herein , it is agreed that venue of such suit or action shall be proper and
exclusive in the district court for Jefferson County, Colorado.
19. Notices
All notices required or permitted under this Agreement shall be in writing and shall be
hand delivered or sent by certified maiL return receipt requested. postage prepaid, to be
addressed to the Parties set forth below. All notices so given shall be considered effective upon
the earlier of the actual receipt or seventy-two (72) hours after deposit in the United States Mail
with the proper address. Either Party by notice so given may change the address to which future
notices shall be sent:
Notice to the City:
Copy to:
Notice to the Owner:
Copy to:
City Manager
City of Wheat Ridge
7500 W. 29th Ave.
Wheat Ridge , CO 80033
City Attorney
City of Wheat Ridge
7500 W. 29th Ave.
Wheat Ridge , CO 80033
Wheat Ridge, CO 80033
[INSERT CONTACT]
Address
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20. Entire agreerooot-amoodmoots
This AgreellEJ1t 9Tlbodies the whole ~reErnEilt of the Pa1ies. ThEre ere no promires,
ta-ms, conditions, or obligciions otha" tha1 those containEd ha'an. CJld this Agreement Sial
rupe-~ al previous comnunicaio~ reprES:J"~tciions or ~reemalts, a the" Va'bal or written,
bawEB'I the Pa1ies ha'~o . This Agrea1'l91t may be CJ'Tl€lldaj only by written cgra:mEnt
bawEB'I the ONOEJ" CJld the City oc:ti ng purSJcrlt to City Cound I a.rthori z.cii on .
21. Effwivedate
This AgreaTlelt shal be dfoctive Cl1d binding upon the Pa1ies upon the dcte fir& ret
forth ci:>ove.
IN WITNESS WHEREOF, ONOET CJld City have a:d1 ca.JSOO this Agreema-rt to be
e<a::utoo by their a.rthori zoo r~resentcii ves.
Stcie of Col ora::io )
) ss.
County of Jdfa-oon )
The forSJOing AgreErnalt weE> cd<nowla:Jga:i bet ore me this JL dGy of Se Q\eM'v e (, 201j', by
Tom Ali IIi~ eE> Pre9d€nt of Muoo MCH;ta', LLC.
/y ~ ~')
/,/ (I I
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AITEST:
1e: Janelle Shaver
tie: City Clerk
Title:
8
EXHIBIT A
Qualifying Pub lic Improvement Costs
Public Improvements include:
• New public parking lot with striping and drainage for water quality and area drainage
assistance. Includes asphalt, excavation for drainage, impervious pavers-$110,877
• Public curb gutter and sidewalk with drainage aiding adjoining businesses-$24,310
• Landscaping aiding in carbon dioxide exchange and creating a greener environment -
$23,380
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